PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

In this case, I voted against the violation in so far as the question of procedural violation concerning the absence of public access to the hearing was concerned.

The leading case concerning the admissibility of an application relating to a procedural violation – in a case in which the applicant has been acquitted – is X v. Austria (application no. 5575/72, Commission decision of 8 July 1974, Decisions and Reports 1, p. 44).

In X v. Austria the applicant had been charged with several crimes committed in a concentration camp under the Nazi regime. Many witnesses for the prosecution were heard abroad during the preliminary judicial investigations, in the absence of both the applicant and his counsel. Most of these witnesses were not present at the hearing. At the end of the trial, the accused was acquitted.

Clearly, the procedural violation in X v. Austria was much more serious compared to the situation in the case we decided today. The applicant in X v. Austria had been denied the chance to cross-examine, or to have cross-examined, witnesses against him. This procedural right is fundamental in any modern criminal procedure; it concerns a most fundamental truth-finding device at the disposal of the defendant. The ratio legis of this evidentiary right to examine and cross-examine the witnesses derives from the truth-finding function of criminal procedure of which the conviction or acquittal is a final result. In this sense, this privilege is substantive rather than procedural.

In the present case, however, the defendant was denied a right which is not even a procedural right of the defendant. The reason for the principle according to which all criminal trials must be public does not reside in the defendant's particular procedural interest, but in the abstract public interest. It is primarily in the public interest that all criminal trials be conducted in public, that is, to enable the general control of the public over the workings of the criminal courts. Obviously, in many cases this will also be in the interest of the defendant in so far as the public control contributes to maintaining the principled and regular nature of the criminal trial. I find it difficult to believe, specifically, that this was the applicant's problem in this particular procedure.

Thus, it is not at all clear that Mr Guisset actually suffered an injury due to the fact that his trial was not conducted in public. The burden to show this specifically would have been on him. True, his reputation in the diplomatic circles could have been affected – positively or negatively – if there were public access to his trial. This alleged interest concerning the defendant's professional reputation is, however, wholly outside the scope of the specific guarantees of criminal procedure which target only acquittal or

conviction, in other words it is not what is contemplated by Article 6 of the Convention.

If we were to consider such broad interests as protected by the Convention, the right to a public trial would open a whole new horizon in the area of human rights going far beyond the context of criminal procedure.

Anyway, Mr Guisset did not, in my opinion, show that he had suffered any specific injury from the fact that his trial was not held in public. Article 41 speaks of an “injured party”; in terms of so-called systematic interoperation this has implications not only for the question of “just satisfaction” but also for the issue of standing ( legitimatio ad causam activa ) [1] . In terms of constitutional justiciability doctrine the case, in other words, is moot.

It is difficult, therefore, to maintain that Mr Guisset was in any specific sense a “victim” of the procedural violation consisting in the denial of public access to this quasi-criminal trial.

Mr Guisset was in the end acquitted of any wrongdoing just as the applicant in the case cited above. However, precisely to the extent that the procedural violation in the Austrian case was incomparably more serious, it a fortiori follows, that Mr Guisset ought not to have been considered a victim in the present case.

[1] Notes by the Registry

1. Protocol No. 11 came into force on 1 November 1998.

[2] 2. The report is obtainable from the Registry.

[1] . See, for example, the following judgments: De Wilde, Ooms and Versyp v. Belgium, 10 March 1972, Series A no. 14, p. 11, § 23; Artico v. Italy, 13 May 1980, Series A no. 37, pp. 17-18, § 35; and Johnston and Others v. Ireland, 18 December, 1986, Series A no. 112, p. 21, § 42.