European Court of Human Rights

There appeared before the Court:

- for the Government:

       Mr. J. Voyame, Director

                            of the Federal Office of Justice,                                  Agent,

       Mr. G. Messmer, Judge

                            at the Federal Court,

       Mr. R. Barras, Chief Military Prosecutor,

       Mr. O. Jacot-Guillarmod, Federal Office of Justice,

       Mr. M. Rusca, Federal Office of Justice,                                   Counsel;

- for the Commission:

       Mr. S. Trechsel,

       Mr. A. Weitzel,                                                                      Delegates,

       Mr. L. Minelli, the applicant’s representative

                            before the Commission, assisting the Delegates (Rule 29    

                            para. 1, second sentence, of the Rules of Court).

The Court heard addresses by Mr. Trechsel, Mr. Weitzel and Mr. Minelli for the Commission and by Mr. Voyame and Mr. Barras for the Government, as well as their replies to its questions and a question put by one of its members. On 15 December 1983, the Commission filed two documents which the Registrar, acting on the President’s instructions, had asked it to produce.

AS TO THE FACTS

I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE

Mr. Sutter’s defence counsel had unsuccessfully requested the Divisional Court to decline jurisdiction on the ground that it lacked the independence and impartiality required by Article 6 (art. 6) of the Convention; he had also applied, in vain, for a supplementary enquiry into the futility, or indeed abusive nature, of the regulations on hair-cuts.

A copy of the decision was sent to the applicant on 23 June 1977.

On 2 July 1977, within the prescribed period of ten days from service of the judgment, the applicant filed a memorial containing a "final" statement (section 189 para. 3 of the 1889 Act) of his grounds of appeal.

He submitted that the decision appealed against had infringed the law (section 188 para. 1, no. 1, of the 1889 Act) by applying regulations that were incompatible with Article 8 (art. 8) of the Convention; that the Divisional Court had not been composed in the manner prescribed by law (ibid., no. 2), four of the six judges being substitutes for the ordinary judges and the grand juge having been appointed by the Chief Military Prosecutor (auditeur en chef); that the Divisional Court had erred in not declining jurisdiction to hear the case on the merits (ibid., no. 3), since the military courts were not tribunals within the meaning of Article 6 (art. 6); and that the refusal to order a supplementary enquiry had prejudiced the defence on decisive points (ibid., no. 6) concerning the application of Article 8 (art. 8) and in particular paragraph 2 (art. 8-2) thereof.

Mr. Sutter also drew the attention of the Military Court of Cassation to the fact that it was not consonant with Article 6 (art. 6) to conduct proceedings entirely in writing; he therefore requested it to hold at least one hearing and to pronounce its judgment publicly.

The grand juge afterwards sent the appeal and the papers in the case, without appending "his report on the matters in dispute" (ibid.), to the Chief Military Prosecutor.

The latter forwarded the documents to the Military Court of Cassation. He could himself have filed observations if he had thought fit, but - like the Military Prosecutor and the grand juge - he confined himself to submitting that the appeal should be dismissed.

The operative provisions of the judgment were immediately served on Mr. Sutter in writing. He received the full text on 24 January 1978 (section 197 of the 1889 Act). The reasons covered twenty pages and concerned mainly Mr. Sutter’s submissions as to the incompatibility of the 1889 Act with Articles 6 and 8 (art. 6, art. 8) of the Convention. As to the composition of the Divisional Court, the judgment stated that the substitute judges had the same legal status as the ordinary judges, and that the Chief Military Prosecutor had not infringed the law by appointing the grand juge - who had the status of an ordinary judge - to sit on the case, the ordinary president being unable to take part as he had had to deal with the matter at a previous stage as Military Prosecutor.

II.   DOMESTIC LAW

The Divisional Courts, which heard military-law cases at first instance, were required to give their decisions after holding public hearings and to pronounce their judgments in open court.

On the other hand, proceedings before the Military Court of Cassation were conducted entirely in writing and its judgments were not delivered in public. Concerning the latter point, section 197 of the Act laid down merely that "an extract" of the judgment had to be communicated to the Chief Military Prosecutor, the accused and the grand juge.

The existing system was maintained for proceedings before the Divisional Courts, and was extended to the Courts of Appeal which were set up by the same statute.

As regards the Military Court of Cassation, the 1979 Act provides that "There shall be no oral hearings" (section 189 para. 1). The Act did, however, make two innovations: in future, the Court of Cassation was to deliver judgment in open court (sections 48 para. 3 and 194 para. 1) and could in no circumstances itself rule on the merits of the case.

If judgments contain features that are novel or of importance for the interpretation of the law, they are subsequently published in printed form.

The Sutter judgment of 21 October 1977 appeared in 1983 in volume 9 (covering the years 1973 to 1979) of the judgments of the Military Court of Cassation, under the number 136.

PROCEEDINGS BEFORE THE COMMISSION

Mr. Sutter also claimed to be the victim of a violation of Article 8 (art. 8): he asserted that the regulations on hair-cuts prevented a Swiss citizen, for a period of thirty years, from wearing his hair as he chose and constituted an unjustified interference with the right to respect for private life.

On 11 July 1979, the Commission declared the remainder of the application admissible. In its report of 10 October 1981 (Article 31 (art. 31) of the Convention), it expressed the opinion by ten votes to eight that there had been no violation of Article 6 para. 1 (art. 6-1).

The report contains two separate opinions, one being dissenting.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

AS TO THE LAW

"In the determination of ... any criminal charge against him, 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 eight of its members agreed with Mr. Sutter.

I.   PRELIMINARY OBSERVATIONS

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 the proceedings before the Military Court of Cassation had, like those before the Divisional Court, to be accompanied by each of the guarantees laid down in Article 6 para. 1 (art. 6-1).

II.   ABSENCE OF PUBLIC HEARINGS

The Court accordingly finds that the absence of public hearings at the cassation stage did not 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 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) (see the two above-mentioned judgments of 8 December 1983, Series A no. 71, p. 12, paras. 25-26, and Series A no. 72, pp. 13-14, paras. 30-31).

Having regard to the issues dealt with by the Military Court of Cassation in the instant case and to its decision - which made the judgment of the Divisional Court final and changed nothing in respect of its consequences for Mr. Sutter -, a literal interpretation of the terms of Article 6 para. 1 (art. 6-1), concerning pronouncement of the judgment, seems to be too rigid and not necessary for achieving the aims of Article 6 (art. 6).

The Court thus concurs with the Government and the majority of the Commission in concluding that the Convention did not require the reading out aloud of the judgment delivered at the final stage of the proceedings.

FOR THESE REASONS, THE COURT

1.   Holds unanimously that the absence of public hearings before the Military Court of Cassation did not contravene Article 6 para. 1 (art. 6-1);

2.   Holds by eleven votes to four that the absence of public pronouncement of that Court’s judgment did not contravene the said Article (art. 6-1).

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-second day of February, one thousand nine hundred and eighty-four.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court, the following separate opinions and observations are annexed to the present judgment:

- dissenting opinion of Mr. Cremona, Mr. Ganshof van der Meersch, Mr. Walsh and Mr. Macdonald;

- supplementary observations of Mr. Ganshof van der Meersch in support of his dissenting opinion;

- concurring opinion of Mr. Bernhardt, joined by Mrs. Bindschedler-Robert and Mr. Matscher.

R. R.

M.-A. E.