DISSENTING OPINION OF Mrs J. LIDDY, MM. E. BUSUTTIL,

   F. MARTINEZ, M.A. NOWICKI, N. BRATZA, J. MUCHA and G. RESS

     Article 6 para. 1 provides for the right to a "public hearing" by

a tribunal.

     The applicant had a conditional right under the 1938 detailed

development plan to build on his property. His position was therefore

comparable to that of the applicant in Pine Valley v. Ireland (judgment

of 29 November 1991, Series A no. 222). The detailed development plan was

revoked in 1989. The applicant challenged that revocation, arguing that

the authorities were under an obligation to take into consideration the

loss of rights created by the old detailed development plan when

considering the public interest in adopting a new plan. In its decision

on admissibility the Commission rejected the applicant's complaint under

Article 1 of Protocol No. 1. It considered, however, that Article 6 was

applicable to the dispute because the repercussions on the applicant's

conditional right to build meant that the determination of a civil right

was involved. It declared admissible the applicant's complaint that he

had no oral hearing before a court.

     It is undisputed that the Supreme Administrative Court was the first

and only judicial instance in the contested proceedings. Its jurisdiction

extended to factual issues as well as matters of law. There is no

question of the applicant having waived his right to an oral hearing: his

request for one was rejected.

     The situation is therefore directly analogous to that in the Fischer

case (judgment of 26 April 1995 Series A no. 312). There the Court said:

     "[T]here do not appear to have been any exceptional

     circumstances that might have justified dispensing with a

     hearing. The Administrative Court was the first and only

     judicial body before which Mr Fischer's case was brought; it

     was able to examine the merits of his complaints; the review

     addressed not only issues of law but also important factual

     questions. This being so, and having due regard to the

     importance of the proceedings in question for the very

     existence of Mr Fischer's tipping business, the Court

     considers that his right to a 'public hearing' included an

     entitlement to an 'oral hearing' ... The refusal by the

     Administrative Court to hold such a hearing amounted therefore

     to a violation of Article 6 § 1 of the Convention" (pp. 20-21,

     para. 44).

     We consider that the majority's reformulation (at para. 46 of the

Report) of the Court's reasoning as laying down an exception to the

principle of an oral hearing when "in particular" (a) the review seen

post facto addressed only issues of law and (b) the outcome of the

proceedings would be of little or no importance to the right involved

goes further than the above quoted passage warrants, having regard to the

importance of publicity of court proceedings in a democratic society.

     As to (a) we consider that post facto evaluation of the domestic

court's reasoning is an inadequate legal mechanism for determining

whether a prior "right" has been violated or not. As to (b) we see no

evidence that the outcome of the proceedings was of little or no

importance to the applicant. As to both (a) and (b), we note that it is

often the case that the correct interpretation of a disputed legal

provision is understood and expressed within the context of concrete

factual circumstances.

     In particular, we do not share the majority's assumption that no

factual issues called for an oral hearing. Against the background of the

Court's judgment of 29 October 1989 (Series A No. 163) concerning the

impossibility for the applicant to challenge before a court the

lawfulness and compatibility with the Convention of the building

prohibitions imposed on his property, one could not ex ante say that the

factual and legal issues were of little or no importance to the

applicant's rights. Likewise, while the Supreme Administrative Court

eventually held that there was no obligation to take into account private

interests, it was not precluded from taking into account the applicant's

particular factual situation when formulating its findings as to the

relationship between Sections 5 and 11 of Chapter 1 of the 1987 Act. It

cannot be excluded that an oral hearing would have led to a weighing of

different interests and clarification of the applicant's own legal

situation. It may seem post facto that the outcome would have made no

difference to the applicant's rights but the question has to be answered

on the basis of the different factual and legal circumstances which were

before the Supreme Administrative Court ex ante.

     Finally, we consider that if there are exceptions other than those

set out in the text of Article 6 para. 1 to the principle that where only

one court can be seized of civil proceedings, its hearing must, in the

absence of a waiver, be in public, the relevant exceptional circumstances

should be clearly delineated rather than indicatively indicated by an "in

particular" formulation.