JOINT DISSENTING OPINION OF JUDGES RYSSDAL, PALM AND PEKKANEN

1. According to Article 6 para. 1 (art. 6-1) of the Convention everyone is entitled to a fair trial by an impartial tribunal. The right to a fair hearing includes, inter alia, the right for the parties to the proceedings to submit to the court observations which they regard as relevant to their case. This right is, however, effective only if the submissions made to the court are also duly considered by the court.

2. The Court has on many occasions stressed the importance of appearances in the administration of justice. The courts in a democratic society must inspire confidence in the public and, above all, in the parties to the proceedings. The perceptions of the persons involved in the proceedings are important, but not decisive; any doubts as to the unfairness of the hearing must also be objectively justified (see, among others, mutatis mutandis, the Hauschildt v. Denmark judgment of 24 May 1989 , Series A no. 154, p. 21, para. 48).

3. According to a summary made by the Federal Court on 14 March 1988, one of the judges of that court expressed dissatisfaction during the public deliberations of the case on 22 October 1987 that the documents had not been available for a long enough period of time; he had therefore been able to read thoroughly only the first thirty-five pages of the over-lengthy public-law appeal statement which comprised seventy-three pages (see paragraph 16 of the Court ’ s judgment). After this statement the judge proceeded to take part in the deliberations and decision on the appeal.

In a letter to his client describing the deliberations of the Federal Court, Mr Kraska ’ s lawyer indicated that he had misgivings as to the fairness of the hearing since the judge in question had called for the dismissal of the appeal without having had the possibility to study the file which he had received only a day before (see paragraph 13 of the Court ’ s judgment).

4. From these facts we can only draw the same conclusion as the Commission that the judge in question gave the impression by his remarks that he wanted to read the entire public-law appeal statement, but had not been able to do so, although he regarded the document as being pertinent to the case. Mr Kraska had been able to make his submissions to the court, but there was a doubt as to whether his observations had been given proper consideration by one member of the court. Since these misgivings were based on the admission of the judge himself no other objective justification is in our opinion necessary.

In our view the decisive fact in this case is the above-mentioned statement of the judge in question and the impression which it made on the parties as to the fairness of the hearing.

5. For these reasons we are of the opinion that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention with regard to Mr Kraska ’ s right to a fair hearing.

CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

While I agree with the conclusions of the majority concerning the finding of no violation of Article 6 para. 1 (art. 6-1), I wish to reaffirm my view (which I expressed in my dissenting opinions in the cases of König v. Germany, Series A no. 27, p. 45; Le Compte , Van Leuven and De Meyere v. Belgium, Series A no. 43, p. 34; and Albert and Le Compte v. Belgium, Series A no. 58, p. 26), that proceedings relating to the practice of medicine - or indeed the practice of any other profession governed by public law - are not proceedings concerning a civil right, as their outcome has only an indirect bearing on such a right, in this case the right to conclude (private law) contracts for medical treatment.

I recognise that it is also important for an individual to enjoy certain procedural guarantees in his relations with the administrative authorities, but this should be the subject of specific rules in the Convention, as Article 6 (art. 6), which was intended to apply to civil (and criminal) cases, constitutes a somewhat inappropriate basis for such protection.

If I did not vote against finding Article 6 para. 1 (art. 6-1) applicable, it was purely out of respect for the well-established case-law of the Court.