PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER

( Translation )

1.  As I have already observed on many occasions (see, in particular, my separate opinion in the case of Fischer v. Austria, judgment of 26 April 1995, Series A no. 312), in certain proceedings and especially those relating to claims for compensation for detention pending trial (or in similar cases) a public hearing and public delivery of the judgment are of no value either to the individuals concerned or to the general public. In cases of that kind they are not in fact “procedural safeguards” at all.

I voted with the other, unanimous members of the Chamber in favour of finding a violation in this respect only in order to conform to the Court’s settled case-law.

2.  In my view, there was no breach of the principle of equality of arms or the principle that proceedings must be adversarial.

I accept that the principal public prosecutor’s submissions that the appeal should be dismissed could have been communicated to the applicant; however, the applicant must have been aware of the principal public prosecutor’s position, seeing that the public prosecutor had previously submitted that the compensation claim should be dismissed, and, further, even if the applicant had been in possession of the principal public prosecutor’s observations, he would have had no opportunity of replying to them as the Court of Appeal decides solely on the file (applicant’s appeal and principal public prosecutor’s observations). In sum, the principle of equality of arms was not breached in its substance.

The principle that proceedings must be adversarial does not require a double or triple exchange of pleadings, once both parties have had an opportunity to submit their points of view. Matters are different only in criminal proceedings, in which, in accordance with a general principle that has been recognised and applied also in the Court’s case-law, the accused must always have the last word. But here we are dealing with civil proceedings, in which the adversarial principle requires only that each of the parties should have an equal opportunity to submit his point of view, which was so in the instant case.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 138/1996/757/956. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is available from the registry.