CONCURRING OPINION OF JUDGES NUSSBERGER, LEMMENS AND JÄDERBLOM

1. We voted with our colleagues in finding that there had been no violation of Article 6 of the Convention. We disagree, however, with the reasoning of the majority. In our opinion the absence of an oral hearing is covered by Liechtenstein ’ s reservation relating to Article 6 § 1 of the Convention.

2. We agree with the majority ’ s conclusion that the reservation is valid (see paragraphs 59-75). Our disagreement relates to the interpretation given by the majority to the reservation (see paragraphs 82-93).

Our analysis starts with the text of the reservation. Since Liechtenstein drafted its reservation in English and French, we have looked at both versions. We note, with the majority, that the wording of the reservation refers to the publicity of hearings, not to hearings as such (see paragraph 89 of the judgment). The question is, however, what this reference to the “publicity” of hearings encompasses. More specifically, should it be understood as including a reference to the oral character of proceedings?

In interpreting the reservation, made in 1982, the case-law of the Convention organs existing at that time should be taken into account. We would like to refer in particular to two reports of the European Commission of Human Rights from 1981. In these reports the Commission examined whether purely written proceedings (at the cassation stage) complied with the requirement of a “public hearing” (see Sutter v. Switzerland , no. 8209/78, Commission report of 10 October 1981, and Axen v. Germany , no. 8273/78, Commission report of 14 December 1981). Both cases were referred to the Court. At the time of the depositing of Liechtenstein ’ s instrument of ratification, the right to oral proceedings was therefore a contentious issue. If the Court recognised such a right, it was likely that it would do so by considering it as an aspect of the right to a “public hearing”. [1] We conclude from all this that the reference to the “public hearing” requirement in Liechtenstein ’ s reservation should not necessarily be interpreted as referring exclusively to the publicity requirement. On the contrary, given the circumstances, the wording used lends itself to an interpretation covering the more general requirement of oral proceedings as well.

More importantly, the reservation itself refers to the principles (concerning the public character of hearings and the public pronouncement of judgments) embodied in a number of Liechtenstein laws, including the Act of 21 April 1922 on national administrative justice. The relevant provision of that act is Section 100 § 4, which provides that the Administrative Court can decide “on the basis of the files”, that is to say, after purely written proceedings, if an “oral hearing” is considered unnecessary or not requested by the parties. The reference to this provision is a clear indication that Liechtenstein intended to have the reservation cover not only the public character of the hearing, but also, more generally, the oral character of the proceedings.

Furthermore, a strict interpretation such as the one followed by the majority would lead to the conclusion that non-public oral proceedings are, just like public oral proceedings, an option envisaged by the Convention. This contradicts, however, the underlying philosophy of Article 6 of the Convention according to which judicial proceedings have to be transparent. Excluding the public is allowed only in exceptional circumstances (see the second sentence of Article 6 § 1) and can never be the general rule. While Article 57 of the Convention allows States to make a reservation in respect of a particular provision of the Convention and thus to exclude the applicability of a given rule, this must nevertheless not be done in such a way that the remainder of the Convention provision cannot stand on its own. Holding, like the majority does, that Liechtenstein refused only to be bound by the obligation to hold public hearings, and not by the obligation to have oral proceedings, leads to such a result. Indeed, to consider that Liechtenstein is obliged only to organise – as a matter of principle – oral proceedings, and not to ensure that the hearings are public, strips the requirement of a public hearing of its character as a general rule.

On the basis of the above-mentioned elements, we conclude that the purely written character of the proceedings before the Administrative Court is covered by Liechtenstein ’ s reservation. In so far as the applicant complains of the lack of an “oral hearing”, we consider that her complaint is incompatible ratione materiae with the provisions of the Convention.

3. In so far as the applicant complains of the refusal by the Administrative Court to take the additional evidence proposed by her, and in particular its refusal to hear the witnesses she had proposed, we believe that this is a separate complaint which has to be examined from the standpoint of the right to a fair trial.

We agree with the majority that it was not unreasonable for the Administrative Court to consider that it was able to decide the case on the basis of the material already available to it, and that there was no need to seek further clarification (see paragraphs 104-105).

Therefore, we do not discern any violation of the applicant ’ s right to a fair trial in this regard.

[1] The Court did indeed eventually examine the complaint from the point of view of the requirement of a “public hearing”. It held that the absence of such a hearing did not infringe Article 6 § 1 of the Convention in either of the two cases ( Axen v. Germany , 8 December 1983, Series A, no. 72, and Sutter v. Switzerland , 22 February 1984, Series A, no. 74).