JOINT DISSENTING OPINION OF JUDGES KELLER AND KJØLBRO

1. We agree with the majority as regards the application of Article 6 § 1 of the Convention in this case. However, we regret that we cannot agree with the majority ’ s finding that Article 6 § 1 has been violated, for the reasons set out below.

I. The right to a public hearing

2 . According to the Court ’ s well-established case-law, the right to a public hearing under Article 6 § 1 entitles individuals to an oral hearing in proceedings before a court of first and only instance absent exceptional circumstances that justify dispensing with such a hearing (see Allan Jacobsson v. Sweden (no. 2) , 19 February 1998, § 46, Reports of Judgments and Decisions 1998 ‑ I, and Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002 ‑ V).

3. However, while the right to an oral hearing is an essential element of the right to a fair trial, we note that it is not an absolute right (see Döry v. Sweden , no. 28394/95, 12 November 2002, cited in paragraph 27 of the present judgment). In the interests of procedural efficiency and economy, the highest courts in several Member States of the Council of Europe may decide cases without holding oral hearings, at least absent particular reasons to the contrary. For example, the Icelandic Supreme Court can decide to hear cases in writing if appropriate, [1] while the Albanian Constitutional Court decides whether to hear cases orally or in writing “according to the nature of the case”. [2] Comparable approaches also apply under, for example, Swiss, [3] Finnish, [4] and Austrian [5] law. While there seems to be no common standard among Member States in this regard, the above shows that, far from being aberrant, the respondent State ’ s approach to the holding of oral hearings on appeal is certainly a tenable alternative.

4 . The requirement of a public hearing under Article 6 § 1 is applied less strictly in civil proceedings than in criminal ones. In civil cases, Article 6 § 1 does not necessarily require oral hearings on appeal (see K . v. Switzerland , no. 10807/84, Decision of the Commission (Plenary) of 1 December 1984, D.R. 41, p. 242). In cases falling under the criminal head of Article 6 § 1, the Court ’ s case-law does not necessarily require a further oral hearing on appeal (see Seliwiak v. Poland , no. 3818/04, § 56, 21 July 2009, and Sibgatullin v. Russia , no. 32165/02, § 36, 23 April 2009 ). An oral hearing before the court of appeal is necessary if that court must assess the facts, the question of guilt or innocence, or the character of the accused (see Axen v. Germany , 8 December 1983, § 28, Series A no. 72; Seliwiak , cited above, § 56; and Sibgatullin , cited above, § 36 ).

5 . Although tax surcharges fall under the criminal head of Article 6, the Court has previously held that they “differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency” (see Jussila v. Finland [GC] , no. 73053/01, § 43, ECHR 2006-XIV). In addition, the specific features of the proceedings in question and the presentation and protection of the applicant ’ s interests before the court of higher instance are significant for determining whether an oral hearing is required before the court of higher instance (see Helmers v. Sweden , 29 October 1991, §§ 31-32, Series A no. 212-A, cited in paragraph 33 of the present judgment). The nature of the proceedings in question here must be kept in mind when considering whether the requirements of Article 6 § 1 have been met.

6 . Furthermore, we note that a tacit waiver of the right to a public hearing under Article 6 § 1 of the Convention can be inferred if it is “shown that [the applicant] could reasonably have foreseen what the consequences of his [or her] conduct would be” (see Hermi v. Italy [GC], no. 18114/02, § 74, ECHR 2006-XII). In the past, the Court has inferred a tacit waiver of the right to an oral hearing where applicants failed to avail themselves of the legal possibility to request such a hearing (see Håkansson and Sturesson v. Sweden , 21 February 1990, §§ 67-68, Series A no. 171-A).

7 . We note that, in the present case, it was open to the applicant to request an oral hearing under section 274(1) of the Code of Civil Procedure, but she did not do so. The applicant submitted that she “had had no opportunity to find out that there was a risk of the Supreme Court ’ s ignoring her father ’ s testimony, that there was a risk of its reassessing the evidence, or that consequently there was a need to request an oral hearing” (see paragraph 25 of the judgment). We do not consider the arguments advanced by the applicant in this regard convincing: at the material time, based on the statutory regulation of the matter in the Code of Civil Procedure and the nature of the dispute, her legal representatives should have known what could potentially be at stake in the proceedings before the Supreme Court. We also observe that the Supreme Court was acting as a court of third instance in the present case, and that the proceedings before it did not involve any new facts or information. As a result, the failure of the applicant and her representatives to avail themselves of the possibility to request an oral hearing in this case amounts, in our opinion, to a tacit waver of entitlement to such a hearing.

I I . Overall fairness of the proceedings

8 . We would reiterate that the Court ’ s only concern under Article 6 § 1 is to examine whether the domestic proceedings were conducted fairly (see paragraph 29 of the present judgment, citing Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). We consider that, overall, the proceedings in the present case cannot be considered unfair.

9 . We note that the applicant was represented by legal professionals, who must have been aware both of the possibility of requesting an oral hearing and of the fact that such a hearing would not be held without a corresponding request (see section 275 of the Code of Civil Procedure). The applicant and her legal representatives ought to have known what was at stake in the proceedings before the Supreme Court, as the tax authorities had previously made clear that the applicant was expected to submit bookkeeping evidence in support of her allegations (see paragraph 9 of the judgment).

10. We note that the Supreme Court did not disregard the testimony of the applicant ’ s father, but rather considered that testimony insufficient proof of the origin of the funds in question. This finding concerned the testimony ’ s value as evidence, and not the concrete statements it contained; repeating the testimony of the applicant ’ s father before the Supreme Court would not have altered this outcome.

11. The nature of the Supreme Court ’ s judgment is in accordance with its powers under the Code of Civil Procedure and its role as a court of third instance in this case. Under section 275(4) of the Code of Civil Procedure, the Supreme Court has a right to render a new decision where it quashes that of the lower court if the necessary facts have been established. Considering that no new facts were raised in the proceedings before the Supreme Court in the instant case, its final judgment was one of several foreseeable outcomes; the applicant ’ s legal representatives should have been aware of this possibility.

12. Given the above, we conclude that the proceedings in question were not, as a whole, unfair, and are therefore unable to agree with the judgment of the majority that there has been a violation of Article 6 § 1 in this case. While the applicant may have failed to avail herself of the possibility to request a public hearing, the potential ramifications of this decision should have been clear to her and her legal representatives.

[1] Article 161(3) of the Icelandic Code of Civil Procedure (Law n o. 91/1991 ). See also Súsanna Rós Westlund v. Iceland, no. 42628/04 , 6 December 2007 .

[2] Section 23 of Law n o. 8577 on the o rganisation and f unctioning of the Constitutional Court of the Republic of Albania of 10 February 2000 .

[3] Section 57 of the Swiss Federal Court Act ( Bundesgesetz über das Bundesgericht (Bundesgerichtsgesetz , BGG) ) of 17 June 2005, R S 173.110; j udgment of t he Swiss Federal Court of 10 February 2014 , BGer 5A_885/2013 .

[4] Article 14 of Chapter 26 (Law no. 165/1998) of the Finnish Code of Judicial Procedure (Law no. 768/2002) concerning the Court of Appeal and Article 20 of Chapter 30 ( Law no. 104/1979) concerning the Supreme Court.

[5] Section 19(4) of the Austrian Constitutional Court Act 1953 , BGBl . Nr. 85/1953 .