PARTLY DISSENTING OPINION OF JUDGE WALSH

1.   I regret that I do not find myself in agreement with the majority of the Court in their conclusion that there has been no violation of the public-hearing requirement of Article 6 para. 1 (art. 6-1).

2.   The Court has held that Article 6 para. 1 (art. 6-1) of the Convention is applicable to the case and that as Swedish law did not permit the judicial review of the relevant decisions of the Swedish Government there has been a violation of Article 6 para. 1 (art. 6-1). On that point the Court has rejected the Government ’ s plea that the applicants had waived their right to a court by subscribing to the conditions of the auction of 1979 as there was nothing in the evidence to suggest that the applicants had waived their right to a court.

3.   It appears to me that once it has been held that there was a right to a court in accordance with Article 6 para. 1 (art. 6-1) it must follow, in the absence of evidence of a waiver, that the hearing must be a public hearing. The norm is a public hearing. The Code of Judicial Procedure provided for public hearings "where [this was] necessary for the purposes of the investigation". Such a discretion is not compatible with Article 6 para. 1 (art. 6-1) save in the particular exceptions specified in that provision. This case does not fall within any of those exceptions.

4.   It is agreed that there was no express waiver. The fact that there was no express request for a public hearing does not, in my opinion, amount to a tacit waiver of a public hearing. The proof of a waiver lies upon those asserting the existence of a waiver. The absence of an express objection to a departure from the norm cannot amount to the acceptance of such a departure. In my opinion it would radically alter the interpretation of Article 6 para. 1 (art. 6-1) to hold that the mandatory requirement of a public hearing is to be interpreted as meaning that it is qualified to the extent of being dependent upon an express or tacit request. The public-hearing requirement of Article 6 para. 1 (art. 6-1) is enshrined in the Convention because the Contracting States thought it was important, not because a party may think that it is important. The administration of justice in public is a matter of paramount importance in every democracy and is one of the cornerstones put in place by the Convention to guarantee the impartial administration of justice and the defence of the rights guaranteed by the Convention. The fact that the public may not manifest any particular interest in a given case is not a consideration. Equally a lack of interest in having a hearing in public on the part of one or both parties to a suit does not alter the matter. Only where both parties agree to a hearing other than in public can the mandatory provisions of Article 6 para. 1 (art. 6-1) be waived. Any such waiver of a guaranteed right must be manifested by clear and unambiguous words or by conduct from which the only reasonable inference to be drawn is that both parties were so agreed. There is no such evidence in the present case. In my opinion silence cannot amount to such waiver, particularly, as in this case, where there is no evidence that the applicants ever contemplated a joint or several waiver.

In my opinion there was a breach of the public-hearing requirement of Article 6 para. 1 (art. 6-1) of the Convention.

[*]  Note by the Registrar: This case is numbered 15/1988/159/215. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year.  The last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[*]  Note by the Registrar: For practical reasons, this annex will appear only with the printed version of the judgment (volume 171 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.