PARTLY DISSENTING OPINION OF JUDGE LEMMENS

1 . I agree with the finding of a violation of Article 10 of the Convention. To my regret, however, I disagree with the finding that there has also been a violation of Article 6 § 1.

In my opinion, the decision on Article 6 § 1 is incompatible with the principles developed in the Court ’ s case law. Moreover, I am afraid that it will be difficult to implement the new approach in practice. In any event, the majority ’ s decision will open a Pandora ’ s Box and lead to litigation that will deflect the attention of the courts, in particular the supreme courts, away from what really matters.

2 . In the present case, there was an in camera hearing before the district court (court of first instance), but a public hearing took place before the regional court (appellate court). The question is whether the lack of a public hearing before the lower instance was remedied by the public hearing at the appeal stage.

Where the appeal is brought before an appellate court that has “full jurisdiction”, the public hearing before that court can in principle remedy the lack of a public hearing before the lower court (see, e.g., A. v. Finland (dec.), no. 44998/98, 8 January 2004; Buterlevičiūtė v. Lithuania , no. 42139/08, §§ 53-54, 12 January 2016; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 192, 6 November 2018).

By contrast, where the scope of the appeal proceedings is limited, and in particular where the appellate court cannot review the merits of the case, the public hearing before that court cannot remedy the lack of a public hearing before the lower court (see Le Compte, Van Leuven and De Meyere v. Belgium , 23 June 1981, § 60, Series A no. 43; Albert and Le Compte v. Belgium , 10 February 1983, § 36, Series A no. 58; Riepan v. Austria , no. 35115/97, § 37, ECHR 2000 ‑ XII; Malhous v. the Czech Republic [GC], no. 33071/96, § 62, 12 July 2001; Khrabrova v. Russia , no. 18498/04, § 52, 2 October 2012; Ramos Nunes de Carvalho e Sá , cited above, § 192).

For the purposes of the requirement of a public hearing, the jurisdiction of the appellate court must be such that it can conduct a “complete rehearing” of the case (see Riepan , cited above, § 40, and Khrabrova , cited above, § 52).

These are the long-standing principles developed in the Court ’ s case law, and they are reflected in paragraph 80 of the judgment.

3 . It is important to note that what is decisive according to these principles is the scope of the jurisdiction of the appellate court. The jurisdiction of an appeal court, which can re-examine the claim de novo , is different from that of a court of cassation or a constitutional court, which looks at the dispute through a much narrower lens.

Jurisdiction is about the power which a court has to hear cases. It is not about the actual use which the court has made of that power in a given case.

It is precisely on this point that I respectfully disagree with the majority.

4 . The majority do not deny that the regional court could “rehear the case anew”. They consider, however, that that court failed to ensure a complete rehearing in the present case. They point in particular to the fact that the regional court “expressly refused to look into the essential issue of proportionality of the award to Mr D.”,instead endorsing the relevant findings of the district court “without providing any detailed reasons for doing so” (paragraph 81 of the judgment).

I would not rule out the possibility of arguing that the regional court failed to properly examine an essential argument raised by the applicants, and thus failed to ensure the fairness of the trial. But that is not the point here. The present complaint is not about the fairness of the trial, but only about the public character of the hearing.

Whether or not the appellate court went deeply into the matter, whether or not it looked into all essential issues raised by the parties, and whether or not it gave reasons for its decisions, all that has nothing to do with the scope of its jurisdiction. Even a court that has “full jurisdiction”, in the most literal sense, can make minimal use of its powers, perhaps even arriving at an unlawful or arbitrary decision. The thoroughness of the investigation carried out by a court in a given case does not and cannot have an impact on the scope of its jurisdiction for the category of cases to which that case belongs.

In my opinion, if under domestic law the appellate court can rehear the case anew, the publicity of the hearing before that court remedies the lack of publicity of the hearing at first instance. It is irrelevant how the appellate court actually dealt with the case, and in particular whether or not its judgment actually dealt anew with all the aspects of the case.

The majority depart from the relevant principle by making the remedial capacity of a public hearing before the appellate court, in effect, dependent on the intensity of its scrutiny. There is no support in the case-law of the Court for such a novel approach.

5 . The majority ’ s approach will be difficult to implement in practice.

Where there has not been a public hearing at first instance and where an appeal is brought before an appellate court, the latter court should know from the outset whether by holding a public hearing it will be able to remedy the defect before the lower court (and can thus proceed to examine the merits of the appeal), or whether it will in any event be required under Article 6 § 1 of the Convention to send the case back to the lower court for a complete rehearing by that court (provided that such a possibility of remitting the case exists under domestic law). The majority ’ s decision makes it impossible for the appellate court to make such a determination. It is only after the appellate court has examined the appeal and delivered its judgment that an assessment can be made of whether the public hearing before the appellate court has remedied the deficiency that occurred at first instance.

This means that such an assessment can only be made by a court that stands above the appellate court in the judicial hierarchy: that is to say a supreme court or a constitutional court.

Such a situation leads to legal uncertainty in the proceedings before the appellate court itself. That court is walking in the dark. Others will have to shed light on the publicity issue.

6 . It is also obvious that the majority ’ s approach may lead to unnecessary litigation. The losing party may find ammunition in the present judgment to challenge the appellate court ’ s decision (before the supreme court or the constitutional court) by simply arguing that the examination of the case at the appellate level was “not sufficient”, or not sufficiently intense, to cure the formal defect of lack of a public hearing at first instance. It may argue that it is no longer necessary to demonstrate that the appellate court ’ s decision violates the law. Even a legally correct decision, handed down after a fair trial, could run the risk of being censored by a higher court, simply because the appellate court considered that it could deal with the case by endorsing the findings of the first-instance court without providing further reasons of its own.

I hope that domestic courts will not fall into that trap. But I can see unnecessary litigation looming.

7 . For the reasons set out above, I would conclude that there has been no violation of Article 6 § 1 of the Convention.