DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGE TULKENS

We are unable to agree with the majority in respect of their findings that neither the right to a public hearing nor the right to public pronouncement of judgment were violated in this case.

1. As far as the right to a public hearing is concerned we observe the following: in the determination of a person’s civil rights and obligations, or of any criminal charge against him, Article 6 § 1 of the Convention, in addition to requiring a “fair” hearing, provides expressly for a right to a “public” hearing. The Article then makes provision for the exclusion of the press and public “ from all or part of the trial ”, inter alia , “ where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice” (emphasis added).

In our view, it is evident from the wording of Article 6, regard being had to the above italicised words, that private hearings can take place only in respect of specific proceedings pending before a court if, in the opinion of that court, the conditions set out in Article 6 for a private hearing are actually met, with reference to the nature and circumstances of the specific case.

Private hearings, then, apart from being an exception to the general requirement for public hearings, can be justified only if the needs of a particular case so demand; and this has to be decided by the court in any specific case where such an issue arises. It follows that the exceptional decision to hold a private hearing cannot be decided in abstracto or by reference to a category of cases; it must be determined in concreto by reference to the particular facts of a case. This, we believe, is the only interpretation which is compatible with the terms of Article 6. For how can the possibility of excluding the press and public from part of the trial, for example, be implemented in abstracto or by reference to a category of cases without regard to the facts and circumstances of any concrete case before the court? This is also true for the other conditions for a private hearing under Article 6.

The majority accept that the requirement under Article 6 to hold public hearings is the rule and that private hearings are the exception (see paragraphs 37 and 39 of the judgment). However, the majority proceed with the following proposition with which, for the reasons mentioned above, we entirely disagree:

“However, while the Court agrees that Article 6 § 1 states a general rule that civil proceedings, inter alia , should take place in public, it does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or

national security or where required by the interests of juveniles or the protection of the private life of the parties”.

In support of this proposition the majority refer to Campbell and Fell v. the United Kingdom (judgment of 28 June 1984 , Series A no. 80, p. 42, §§ 87-88). However, this judgment cannot be taken as an authority for the approach of the majority for the following reasons.

The decision to have a private hearing in Mr Campbell’s case did not follow from the application of a rule of law obliging the judicial authorities to conduct private hearings as a matter of general principle, as in the present case. Private hearings were conducted in cases like Mr Campbell’s as a matter of practice , taking into account specific factors common to these cases (security problems, possible propagation of malicious allegations by a prisoner and the latter’s own wish for privacy) (ibid., pp. 19-20 and 42, §§ 36, 86 and 87).

The application of the practice in question in Mr Campbell’s case was reviewed and accepted by the Court after ascertaining that, on the basis of the particular facts, the concerns raised by the Government existed and justified a private hearing in accordance with Article 6; the Court concluded that there were “sufficient reasons of public order and security justifying the exclusion of the press and public from the proceedings against Mr Campbell” (ibid., p. 42, §§ 86-88).

Not only are the facts of the present cases different from those in the case of Mr Campbell, but, more importantly the decisions to have private hearings in the present cases were not taken by reference to any specific facts applicable to the relevant proceedings but were the direct result of implementing a general rule of law in the absence of any concrete criteria. As a result, this Court is deprived of the possibility to examine whether or not it was necessary to have the hearings in these cases in camera.

We believe that the legal rule in England, to the effect that unless the court directs otherwise hearings of family cases should be in camera, is the reverse of what Article 6 demands, namely, that in civil proceedings such as the present the hearings must be held in public unless the court (and not any general rule of law) decides, exceptionally, in the light of the particular facts, nature or circumstances of the concrete case before it to exclude the press and public from all or part of the trial on any of the grounds specified in Article 6. In actual fact in the present cases, as pointed out above, the courts did not decide to hold private hearings after assessing the relevant facts but proceeded to private hearings because that was the position under the English rules of procedure. This is clearly reflected in the relevant judgments of the domestic courts.

In the second applicant’s case, the county court’s judgment pronounced on 14 March 1996 states:

“I do not feel that I have any power, even if I wished to do – which I do not – to hear this particular case in open court. I think I would be breaking the law, in the sense that I would be interpreting in a perverse manner the rules of court laid down under the Children Act. Therefore, despite all the arguments to the contrary – and again I commend the way in which they were presented to me – I feel I have no alternative but to direct that the hearing of this case shall be in camera.” (See paragraph 21 of the judgment)

In an earlier part of the same judgment the judge observed:

“... But finally I dispose of this case, I am afraid, in a very simplistic manner. The rules of court – the Family Proceedings Rules – ... came into force on 14 October 1991 , which coincided with the coming into force of virtually the whole of the substantial provisions of the Children Act. I think I must approach this case in this manner.”

In the judgment of the Court of Appeal of 20 June 1996 , Lord Justice Butler- Sloss considered that it was abundantly clear that the courts were bound by the Family Proceedings Rules to hear child cases generally in private. Turning to the decision of the county court judge who had heard the second applicant’s case, Lord Justice Butler- Sloss found that, despite the strong language used in his decision, the judge had correctly recognised that the pre-existing practice of hearing child custody cases in private had been restated in the Family Proceedings Rules 1991, which provided for exceptions only where the case had unusual features. Since the applicant’s case was run of the mill, following the general practice was appropriate.

It is correct, as the majority state in the judgment, that English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and that the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. However, in the light of the foregoing, it is evident that this discretion is the reverse of what is required by Article 6. In exercising his or her discretion the judge proceeds on the premise that all hearings under the Children Act should be in private, without examining the reasons for such a course. It is moreover striking that, on the basis on the material placed before our Court, it appears that this discretion is exercised in favour of a public hearing only in quite exceptional cases.

We believe that the general legal rule against public hearings applied in these cases is incompatible not only with the wording but also with the basic objective and philosophy of the requirement for public hearings under Article 6, namely the protection of litigants against the administration of justice in secret with no public scrutiny and the maintenance of confidence in the courts. As pointed out in Sutter v. Switzerland (judgment of 22 February 1984 , Series A no. 74, p. 12, § 26):

“By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention”.

The majority refer to certain facts of the specific proceedings in order to justify, in terms of the relevant exceptions under Article 6, their being held in private. In particular they refer to the fact that the proceedings in question “concerned the residence of each man’s son following the parents’ divorce or separation” and that “[t]o enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment” (see paragraph 38 of the judgment). However, these issues were neither raised before the domestic courts nor considered by them when they arrived at their decisions to hold private hearings, which, as mentioned above, followed from an automatic application of the general rule of law in accordance with the Family Proceedings Rules 1991. The reasons for a domestic court’s decision cannot be supplied ex post facto and certainly not by this Court.

2. As regards the finding of the majority that the fact that the judgments were not pronounced publicly does not amount to a violation of Article 6, with which finding we also disagree, we would like to state the following.

We should first like to recall that the obligation under Article 6 to pronounce judgments publicly is expressed in unqualified terms and, as pointed out in Campbell and Fell (op. cit., p. 43, § 90), that obligation is not subject to any implied limitations. In the words of the Court,

“Bearing in mind the terms of Article 17 and the importance of the principle of publication, the Court does not consider that that principle may be regarded as subject to an implied limitation as suggested by the Government.”

However, the majority rely on Sutter (op. cit., p. 14, § 33) and find that the Convention did not require making available to the general public the residence judgments in the present cases because “anyone who can establish an interest may consult or obtain a copy of the full text of the orders and/or judgments of first-instance courts in child residence cases, and that the judgments of the Court of Appeal and of first-instance courts in cases of special interest are routinely published, thereby enabling the public to study the manner in which the courts generally approach such cases and the principles applied in deciding them” (see paragraph 47 of the judgment).

In Sutter , the Court reiterated the principle that publicity of judgments is necessary under Article 6 and clarified that such publicity might be achieved by other means, besides reading them out aloud. It went on to find that the fact that “anyone who could establish an interest may consult or obtain a copy of the full text of judgments of the Military Court of Cassation” amounted to an acceptable form of publicity. The Court neither dispensed with the requirement of publicity nor did it accept that such publicity could be subject to any limitations. This was made even clearer in the subsequent decision of the Court of 28 June 1998 in Campbell and Fell .

The majority seem to have disregarded the fact, confirmed before it by the Government, that, in the case of family proceedings, persons who establish an interest cannot automatically, as of right, consult or obtain a copy of a full text of the relevant orders and/or judgments. Such copies can be obtained by third parties only if leave is granted by the judge or district judge (see Rule 4.23(1) of the Family Proceedings Rules 1991, paragraphs 29 and 43 of the judgment). The majority also refer to the fact that “the judgments of the Court of Appeal and of first-instance courts in cases of special interest are routinely published” (see paragraph 47 of the judgment). But again the majority do not seem to have given sufficient weight to the fact that such routine publication concerns only “ cases of special interest ” (see paragraph 43 of the judgment).

The majority further rely on the proposition that since “the domestic authorities were justified in conducting these proceedings in chambers in order to protect the privacy of the children and the parties and to avoid prejudicing the interests of justice ... to pronounce the judgment in public would, to a large extent, frustrate these aims” (see paragraph 46 of the judgment). This was also the argument of the Government.

However, a similar argument was rejected by the Court in Campbell and Fell , cited above, which states:

“The Government relied in this context too on problems of security and public order; they further submitted that, if it was considered that the power to exclude the public applied only to the trial as distinct from pronouncement of the judgment, this particular requirement of Article 6 should be read as subject to the implied limitation that members of the public could legitimately be excluded in those cases in which disciplinary offences by prisoners were adjudicated upon.” (pp. 42-43, § 89)

The answer of the Court was given:

“the Court does not consider that [the principle of publication] may be regarded as subject to an implied limitation as suggested by the Government.” (p. 43, § 90)

The majority’s reasoning appears at first sight reasonable. However, what has taken place in a private hearing does not have to be fully reflected in a publicly pronounced judgment and care can be taken to ensure that names and other information which might lead to identification of the parties or details about the family’s personal life can be omitted from the judgment without affecting the clarity of the approach and the solution given by the court to the issues arising in the case, which should be made public in order to achieve the purpose of public scrutiny.

Finally we would like to express our disagreement with the approach of the majority as stated in paragraph 48 of the judgment, according to which a literal interpretation of the provisions of Article 6 concerning the pronouncement of judgments would be “unnecessary for the purposes of public scrutiny [and] might even frustrate the primary aim of Article 6 § 1, which is to secure a fair hearing”. This conclusion appears to be based on a misconception of the statement in paragraph 34 of the judgment in Sutter that “... a literal interpretation of the terms of Article 6 § 1, concerning pronouncement of the judgment, seems to be too rigid and not necessary for achieving the aims of Article 6”.

It is clear from what follows (that is: “The Court thus agrees with the Government and the majority of the Commission in concluding that the Convention did not require the reading out aloud of the judgment delivered at the final stage of the proceedings”) that the Court in Sutter was not introducing, by that statement, a general flexibility rule that could justify dispensing with the requirement of publication of judgments in all circumstances. The Court was simply accepting that such publication does not necessarily have to be in the form of “... [a] reading out aloud of the judgment”.

For the above reasons we also disagree with the second conclusion of the majority that “... the Convention did not require making available to the general public the residence judgments in the present cases, and that there has been no violation of Article 6 § 1 in this respect” (see paragraph 49 of the judgment).

In our opinion Article 6 has been violated in this case both because of the private hearing of the relevant proceedings and because of the fact that the judgments were not made available to the public.