In the Axen case,
The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 48 of the Rules of Court* and composed of the following judges:
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mr. W. Ganshof van der Meersch,
Mrs. D. Bindschedler-Robert,
Mr. L. Liesch,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Mr. B. Walsh,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. J. Gersing,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,
Having deliberated in private on 23 and 24 March and on 24 and 25 October 1983,
Delivers the following judgment, which was adopted on the last-mentioned date:
The applicant, who at the outset was designated by the initial X, subsequently consented to the disclosure of his identity.
On 14 March 1983, the Registrar, acting on the President’s instructions, requested the Commission to produce several documents; they were received on 18 and 21 March.
There appeared before the Court:
- for the Government
Mrs. I. Maier, Ministerialdirigentin
at the Federal Ministry of Justice, Agent,
Mr. P. Schuster, Ministerialrat
at the Federal Ministry of Justice, Head of the Section concerned with civil and labour court procedure,
- for the Commission
Mr. S. Trechsel,
Mr. A. Weitzel, Delegates,
Mr. H.J. Schüler, the applicant’s lawyer before the Commission,
assisting the Delegates (Rule 29 para. 1, second
sentence, of the Rules of Court).
The Court heard addresses by Mrs. Maier for the Government and by Mr. Trechsel, Mr. Weitzel and Mr. Schüler for the Commission, as well as their replies to its questions.
AS TO THE FACTS
On 6 August 1950, he drove his car into the parked and unlighted trailer of a lorry belonging to a firm. His mother, a passenger in the car, died from her injuries and Mr. Axen himself was severely injured.
The driver of the lorry and two other persons, namely a garage owner and a filling-station assistant, who had undertaken to repair the trailer and tow it off the road, were convicted by the Lüneburg Regional Court (Landgericht) on 31 January 1951 of negligently causing death and personal injuries.
The first action concluded with two judgments of the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) in Hamburg, one of 23 January 1968 awarding the applicant about DM 41,000 for loss of earnings and the other of 6 August 1973 awarding him DM 8,000 for non-pecuniary damage.
The hearings before these courts and the pronouncement of their decisions took place in public.
In his memorial of 18 May 1976, setting out the grounds of appeal (Revisionsbegründung), he complained of the Court of Appeal’s failure to grant his request that an expert be heard on the subject of the reports made by other experts concerning his loss of earning capacity; according to him, the Court of Appeal should at least have called for a further expert opinion (Obergutachten). He also challenged the method used by the Court of Appeal for assessing the respective share of responsibility of the persons involved in the accident. A last ground of appeal concerned the question whether the Court of Appeal was entitled to take into account the social security benefits received by the applicant.
On 8 March 1977, the 6th Chamber of the Federal Court of Justice, without holding a hearing, unanimously rejected the appeal. Its judgment (Beschluss) was neither pronounced in open court nor published but was served on the applicant on 15 March 1977 pursuant to Article 329 of the Code of Civil Procedure (Zivilprozessordnung), which provides (translation): "decisions adopted by courts after a hearing must be pronounced" and "decisions which are not pronounced shall be communicated to the parties in such manner as may be found appropriate".
The judgment read as follows (translation):
"Having informed the parties and sought their views (gehört), the 6th Chamber of the Federal Court, at its session of 8 March 1977 ..., considered unanimously that it was not necessary to hold a hearing and decided ...:
the appeal ... is dismissed. The appellant is to bear the costs of the proceedings ..."
Section 1 para. 2 of the Act of 15 August 1969 provided as follows (translation):
"A court determining an appeal on points of law (Revisionsgericht) may take its decision without holding a hearing if it unanimously considers that the appeal is ill-founded and that oral argument is not necessary. The parties shall be informed and asked for their views (gehört) beforehand. The judgment (Beschluss) shall record that the conditions for adopting this procedure are satisfied; no further reasons need be given."
In a ruling given on 14 July 1977 by a panel of three judges, the Federal Constitutional Court decided not to hear the appeal. It considered that, in so far as the appeal concerned the legislation, it was inadmissible as being out of time and that, as regards the judicial decisions complained of, it did not offer sufficient prospects of success since there had been no violation of a right specifically guaranteed by the Basic Law and notably Article 3 thereof.
PROCEEDINGS BEFORE THE COMMISSION
On 19 July 1979, the Commission declared the application admissible as regards the proceedings before the Federal Court; it declared the second complaint inadmissible as being manifestly ill-founded. In its report of 14 December 1981 (Article 31 (art. 31) of the Convention), the Commission expressed the opinion by twelve votes to three that there had been no violation of Article 6 para. 1 (art. 6-1).
The report contains one dissenting opinion.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
AS TO THE LAW
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] tribunal .... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
The Government contended, on the contrary, that this two-fold absence of publicity did not contravene the Convention. A majority of the Commission was of the same opinion, whereas a minority of three of its members agreed with Mr. Axen.
I. PRELIMINARY OBSERVATIONS
The Delegates of the Commission took formal exception to this criticism.
Although the Government, in arguing this point, have not raised a preliminary objection in the proper sense, the Court deems it necessary to answer their remarks.
The Court observes that it is not part of its function to evaluate the expediency of the decision to bring a case before it. In this domain the Commission exercises an autonomous power conferred on it by Article 48, paragraph (a) (art. 48-a), of the Convention; the same is true, moreover, of the Contracting States listed in paragraphs (b), (c) and (d) (art. 48-b, art. 48-c, art. 48-d).
Having said that, the Court would recall that in proceedings originating in an "individual" application (Article 25) (art. 25), it has to confine itself, as far as possible, to an examination of the concrete case before it (see, amongst many other authorities, the Minelli judgment of 25 March 1983, Series A no. 62, p. 17, para. 35). Accordingly, the sole task of the Court is to determine whether the manner in which the contested legislation was applied to Mr. Axen was consonant with Article 6 (art. 6) of the Convention. The mere fact that such a determination could have consequences for other cases that also concerned the operation of the above-mentioned Act does not mean that the determination would be the result of an abstract review of the Act’s compatibility with the Convention.
Again, it matters little that the Act of 15 August 1969 is no longer in force, since the applicant has not thereby regained the right claimed by him under Article 6 para. 1 (art. 6-1) (see notably, mutatis mutandis, the Silver and others judgment of 25 March 1983, Series A no. 61, pp. 31-32, para. 81). It likewise matters little that the correct interpretation of Article 6 para. 1 (art. 6-1) in the instant case is not one of his major sources of concern: the complaints he made in this regard nonetheless constitute the object of the proceedings (see, mutatis mutandis, the Corigliano judgment of 10 December 1982, Series A no. 57, p. 12, paras. 30-31).
The manner of application of this text depends, however, on the particular circumstances of the case (ibid.). The Court, concurring with the Government and the Commission, considers that account must be taken of the entirety of the proceedings conducted in the domestic legal order; what has to be determined is whether in the present instance their final phase had, like the earlier phases, to be accompanied by each of the guarantees laid down in Article 6 para. 1 (art. 6-1).
II. ABSENCE OF PUBLIC HEARINGS
For the applicant and the minority of the Commission, the Federal Court’s decision not to hold a hearing was contrary to the Convention; in the opinion of the Court, however, that decision can be seen to be justified by the special features of the proceedings viewed as a whole.
In the first place, the Lüneburg Regional Court and the Celle Court of Appeal had heard the case in public before giving their respective rulings (see paragraphs 14 and 23 above). As for the Federal Court of Justice, which determines solely issues of law, it could - short of holding hearings - only dismiss Mr. Axen’s appeal on points of law and make final the judgment which the Celle Court of Appeal had delivered at the close of proceedings whose compatibility with the publicity requirements of Article 6 (art. 6) has not been contested; had the Federal Court been minded to reverse the appeal court judgment, section 1 para. 2 of the Act of 15 August 1969 would not have been applicable and oral argument would thus have been compulsory under German law.
The Court accordingly finds that the absence of public hearings before the Federal Court of Justice did not, in the particular circumstances, infringe Article 6 para. 1 (art. 6-1).
III. ABSENCE OF PUBLIC PRONOUNCEMENT
At first sight, Article 6 para. 1 (art. 6-1) of the European Convention would thus appear to be stricter in this respect than Article 14 para. 1 of the 1966 International Covenant on Civil and Political Rights, which provides that the judgment "shall be made public", "sera public".
The Court therefore does not feel bound to adopt a literal interpretation. It considers that in each case the form of publicity to be given to the "judgment" under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 para. 1 (art. 6-1).
In the particular circumstances, the absence of public pronouncement of the Federal Court of Justice’s judgment of 8 March 1977 thus did not contravene the Convention; the object pursued by Article 6 para. 1 (art. 6-1) in this context - namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial - was achieved during the course of the proceedings taken as a whole.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Article 6 para. 1 (art. 6-1).
Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this eighth day of December, one thousand nine hundred and eighty-three.
For the President
The separate opinion of Mr. Ganshof van der Meersch is annexed to the present judgment, in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court.
CONCURRING OPINION OF MR. GANSHOF VAN DER MEERSCH
I am of the opinion, like my distinguished colleagues, that there was no violation of the rights guaranteed by Article 6 para. 1 (art. 6-1) of the Convention in the concrete case of application of the German Federal Republic’s Act of 15 August 1969 which was referred to the Court; however, I cannot agree with one of the reasons on which the Court has based its decision.
I regret that in paragraphs 28 and 32 of the judgment the Court refers, in order to justify the absence of violation, to the fact that the Federal Court of Justice "determines solely issues of law".
Apparently this is not just an obiter dictum, and this impression is reinforced by the fact that in paragraph 31 the Court also cites in support of its decision the example, to be found in several member States of the Council of Europe, of the procedure consisting of the deposit of the judgment in a registry accessible to the public, such procedure being utilised "especially [in] their courts of cassation".
* Note by the registry: In the version of the Rules applicable when proceedings were instituted. A revised version of the Rules entered into force on 1 January 1983, but only in respect of cases referred to the Court after that date.