Application No. 13942/88
Martin KRASKA
against
SWITZERLAND
REPORT OF THE COMMISSION
(adopted on 15 October 1991)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 14) ........................................ 1
A. The application
(paras. 2 - 4) ................................. 1
B. The proceedings
(paras. 5 - 9) ................................. 1
C. The present Report
(paras. 10 - 14) ............................... 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 41) ....................................... 3
A. The particular circumstances of the case
(paras. 15 - 34) ............................... 3
1. Proceedings before the Zurich authorities
(paras. 15 - 24) ........................... 3
2. Proceedings before the Federal Court
(paras. 25 - 34) ........................... 4
B. Relevant domestic law
(paras. 35 - 41) ............................... 6
III. OPINION OF THE COMMISSION
(paras. 42 - 73) ....................................... 8
A. Complaint declared admissible
(para. 42) ..................................... 8
B. Point at issue
(para. 43) .................................... 8
C. Applicability of Article 6 para. 1 of the
Convention
(paras. 44 - 61) ............................... 8
D. Compliance with Article 6 para. 1 of the
Convention
(paras. 62 - 72) ............................... 11
E. Conclusion
(para. 73) ..................................... 12
DISSENTING OPINION OF MM. MARTINEZ and J.-C. GEUS JOINED BY MM. F.
ERMACORA AND B. MARXER ........................ 13
APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 14
APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 15
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, a Swiss national born in 1950, is a doctor
residing at Zurich.
3. The application is directed against Switzerland. The
Government are represented by their Deputy Agent, Mr. Ph. Boillat,
Head of the European Law and International Affairs Section of the
Federal Office of Justice.
4. The case concerns the applicant's complaint under Article 6
para. 1 of the Convention that a Federal Court judge decided on 22
October 1987 on his public law appeal without knowing the entire
case-file.
B. The proceedings
5. The application was introduced on 2 April 1988 and registered
on 15 June 1988.
6. On 8 September 1989 the Commission decided to give notice of
the application to the respondent Government and to invite them to
present their observations in writing on the admissibility and merits
of the application limited to the issue under Article 6 para. 1 of the
Convention.
7. The Government's observations were submitted on 22 December
1989. The applicant submitted his observations in reply on 21 January
1990.
8. On 4 October 1990 the Commission declared the application
admissible insofar as it related to the applicant's complaint under
Article 6 para. 1 of the Convention concerning the proceedings before
the Federal Court. The remainder of the application was declared
inadmissible.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Consultations with the parties took place
between 12 October 1990 and 23 March 1991. The Commission now finds
that there is no basis on which such a settlement can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
11. The text of this Report was adopted on 15 October 1991 and is
now transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the Application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. Proceedings before the Zurich authorities
15. After successfully passing the required examinations, the
applicant obtained his diploma in medicine in 1981. Since then he has
been working inter alia as an assistant doctor (Assistenzarzt). In
respect of this activity he does not require an additional
authorisation in the Canton of Zurich.
16. On 19 October 1982 the applicant was further granted the
authorisation independently to work as a doctor in the Canton of
Zurich. On 26 April 1983 the authorisation was withdrawn by the Zurich
Health Direction (Gesundheitsdirektion) on the ground that he had not
made use of this authorisation, in particular as he had moved to
another area in Switzerland.
17. The applicant's appeal (Rekurs) against this decision was
dismissed by the Zurich Council of State (Regierungsrat) on 17 August
1983. The Council of State found that the mere fact that the
applicant's authorisation had been terminated and that, on payment of
a small fee, it could again be granted once the applicant resumed his
practice in Zurich, did not suffice to create for the applicant a
legally protected interest to obtain an appeal decision. The Council
of State further found that in any event the authorisation
independently to practise as a doctor was not a general authorisation
to practise at an undetermined moment in time. Rather, it concerned
a concrete activity. The applicant however no longer lived in the
Canton of Zurich.
18. Between 6 August and 17 September 1984 the Emergency Service
of the Medical Association of the Zurich District (Ärztlicher Not-
falldienst des Ärzteverbandes des Bezirks Zürich) employed the
applicant as an assistant doctor.
19. On 28 August 1984 the applicant fetched the patient Mrs. E.
de V., who was partly paralysed and residing at a private old persons'
home, and brought her into her flat in Zurich where he organised her
treatment. On 29 August 1984 the Emergency Service requested the
applicant to treat Mrs. E. de V. The applicant subsequently prepared
on a form of the Emergency Service of the Medical Association his bill
for the treatment of Mrs. E. de V., amounting to 7,447.80 SFr. The
applicant transmitted the bill to the curator (gesetzlicher Vertreter)
of Mrs. E. de V. who on 13 September 1984 was provisionally placed
under tutelage. The bill was to be paid directly into the applicant's
postal account (Postscheckkonto) rather than the account of the Medical
Association.
20. The applicant was then charged with fraud and certain
contraventions of the Zurich Health Act (Gesetz über das Gesundheits-
wesen) of 1962. He was accused inter alia of having treated Mrs. E.
de V. without being in possession of an authorisation independently to
practise as a doctor, as required by Section 7 para. 1 (a) of the
Health Act (see below, Relevant domestic law).
21. On 13 January 1986 the Zurich District Court (Bezirksgericht)
acquitted the applicant, noting inter alia that the bill of indictment
had not stated with sufficient precision which medical treatment the
applicant had undertaken without the authorisation independently to
practise as a doctor.
22. Meanwhile, on 31 January 1985 the applicant applied for the
authorisation independently to practise as a doctor. This was rejected
by the Zurich Health Direction on 11 September 1985 on the ground that
the applicant was not "trustworthy" as required by the Health Act
(Gesundheitsgesetz) for this authorisation. The Health Direction found
that the applicant, by bringing Mrs. E. de V. to her flat, had in fact
undertaken a medical act within the meaning of Section 7 of the Act.
23. The applicant's appeal (Rekurs) was on 1 October 1986 dismissed
by the Zurich Council of State (Regierungsrat) which found that the
applicant, by writing out bills for his treatment of Mrs. E. de V.,
had violated Section 7 para. 1 (a) of the Health Act. This finding was
not affected by the fact that the District Court had on 13 January 1986
acquitted the applicant. The Council of State noted in particular that
the applicant himself had in his bill referred to his treatment as
instances of medical work.
24. The applicant filed a further appeal (Beschwerde) with the
Zurich Administrative Court (Verwaltungsgericht) in which he requested
the authorisation independently to practise as a doctor. On 11 March
1987 the Court dismissed the appeal, though it determined a waiting
period for the applicant until the beginning of 1988 for applying for
a new authorisation.
2. Proceedings before the Federal Court
25. The applicant's then lawyer subsequently filed a public law
appeal (staatsrechtliche Beschwerde) numbering 73 pages on which the
Federal Court (Bundesgericht) deliberated in public on 22 October 1987.
According to the subsequent decision of the Federal Court of that date,
five judges participated in the deliberations and later in the decision
on the applicant's public law appeal (see below, Relevant domestic
law).
26. The applicant's lawyer, who was present, later described the
deliberations in a statement to the applicant. According to this
statement, judge X., as Rapporteur, proposed to uphold as a whole the
applicant's public law appeal and to grant him the authorisation to
practise.
27. According to the lawyer's statement, judge Y., who acted as
Co-Rapporteur, was upset about the extraordinary length of the public
law appeal statement. As it had been far too long for him, he had only
read it up to about page 30. He had also not been able to study the
documents, as due to an error on the part of the Court Chancellery
these had only been at his disposal one day before the deliberations.
28. On 22 October 1987 the Federal Court gave its decision in which
it quashed the waiting period imposed on the applicant. The remainder
of the public law appeal was dismissed. According to a document
submitted by the applicant, the Federal Court took its decision by four
votes to one, namely the vote of judge Rapporteur X.
29. In its decision the Federal Court first rejected certain
complaints as being inadmissible though it noted that exceptionally it
could in such cases, if the public law appeal was successful, not only
quash the contested decision but also order the granting of the
authorisation requested if all the other conditions were met. The
Court also noted that professional medical practice (gewerbsmäßig
ausgeübte Tätigkeit als Arzt) fell under the protection of Article 31
of the Swiss Federal Constitution (Bundesverfassung; see below,
Relevant domestic law).
30. The Federal Court then dealt inter alia with the authorities'
reproach that the applicant had treated Mrs. E. de V. without the
necessary permission. The Court concluded that at least two reproaches
levelled against the applicant appeared relevant in respect of his
trustworthiness. In one case he has exercised a medical activity
without the permission to practise. Also, when issuing the bill he had
mixed medical and non-medical activities, and had employed a form of
the Emergency Service, thereby creating the impression that it
concerned exclusively medical services.
31. The applicant then filed a request for reopening the
proceedings before the Federal Court on the ground that the Court had
given a decision without knowing the case-file.
32. On 14 March 1988 the Court dismissed this request. Its
decision first summarised the deliberations on 22 October 1987 as
follows:
"At the public deliberation one judge expressed his dissatisfaction that the documents had not been available for a sufficiently long period of time [beforehand they had been transmitted to a supplementary judge participating at the session]; therefore, he had been able to read thoroughly only the first 35 pages of the - much too long - public law appeal statement which numbered 73 pages." "Anlässlich der öffentlichen Beratung äusserte ein Richter seinen Unmut darüber, dass die Akten nicht genügend lange auflagen [sie waren zuvor dem an der Sitzung teilnehmenden Ersatzrichter zugesandt worden]; er habe deswegen nur die ersten 35 Seiten der - viel zu langen - 73 Seiten umfassenden Beschwerdeschrift gründlich lesen können." 33. The Court then considered that the applicant's complaint did not correspond to any of the statutory reasons for reopening the proceedings and therefore dismissed the applicant's request. 34. The applicant submitted three further requests for the reopening of the Federal Court's proceedings which were dismissed by the Federal Court in decisions of 5 May and 23 August 1988 and 6 June 1989, respectively. B. Relevant domestic law 35. Article 31 of the Swiss Federal Constitution enshrines the right to commercial freedom (Handels- und Gewerbefreiheit). The Federal Court has interpreted this provision as including a constitutional right to freedom of private commercial and professional activity. According to the Federal Court's case-law, Article 31 of the Constitution also includes professional medical activities; on the other hand, it does not include the exercise of public functions (see Arrêts du Tribunal Fédéral [ATF] 111 Ia 186, 103 Ia 401; see also above, para. 29). This right may be restricted, in particular by requiring an authorisation to practise, in the public interest, inter alia for the protection of order and health. A restriction of this constitutional right can be contested by means of a public law appeal before the Federal Court (see Article 84 para. 1 [a] of the Federal Judiciary Act [Organisationsgesetz]). 36. Section 7 para. 1 (a) of the Zurich Health Act requires an authorisation from the Health Direction if it is intended, against remuneration or professionally, to determine or to treat illnesses, injuries or other health disturbances or generally to undertake medical acts (medizinische Verrichtungen). 37. Section 8 para. 1 of the Zurich Health Act states: "The Health Direction will grant the authorisation if the applicant meets the professional requirements of this Act, if he is trustworthy and if he is not suffering from a mental or bodily disorder which renders him manifestly unable to exercise his profession." "Die Direktion des Gesundheitswesens erteilt die Bewilligung, wenn der Gesuchsteller die durch dieses Gesetz verlangten fachlichen Anforderungen erfüllt, vertrauenswürdig ist und nicht an einem geistigen oder körperlichen Gebrechen leidet, das ihn zur Berufsausübung offensichtlich unfähig macht." 38. As regards the proceedings before the Federal Court, Section 38 para. 1 of the Federal Judiciary Act states that, with the exception of penal, bankruptcy and disciplinary matters, the proceedings with the parties (Parteiverhandlungen) before the Court as well as its deliberations and votes are as a rule conducted in public. 39. According to Section 9 of the Federal Court's Regulations (Reglement für das Schweizerische Bundesgericht), the Presidents of the Divisions (Abteilungen) of the Federal Court distribute the cases among the judges of their Divisions who will undertake the task of judge Rapporteur (Berichterstattung) in a certain number of cases. 40. Section 11 of the Regulations determines that the President of the Division concerned convenes the sessions by means of agenda lists (Traktandenlisten) which must be distributed at least six days in advance. The files of the cases stated on the agenda lists must be available for consultation at the latest when the sessions are convened. 41. Section 12 of the Regulations states that at the deliberations the President first gives the floor to the judge Rapporteur, then to the other members. The President speaks last. III. OPINION OF THE COMMISSION A. Complaint declared admissible 42. The Commission has declared admissible the applicant's complaint under Article 6 para. 1 (Art. 6-1) of the Convention concerning the proceedings before the Federal Court. B. Point at issue 43. Accordingly, the issue to be determined is whether there has been a violation of the applicant's right to a fair hearing, as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, in that a Federal Court judge decided on the applicant's public law appeal without having had the opportunity to read the entire case-file. C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention 44. The first issue to be decided is whether Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue. 45. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." 46. The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable in the present case. The European Court of Human Rights has so far not dealt with the issue whether the request to exercise the medical profession falls under the scope of Article 6 para. 1 of the Convention. With reference to the Commission's Report in the Karni case (see Karni v. Sweden, Comm. Report 15.12.88) the Government submit that such an authorisation is an administrative act, subject to certain conditions, and does not grant any subjective right. In the present case, the authorisation was refused on the ground that the applicant was not trustworthy, which is a matter of appreciation. As a result, his request for an authorisation did not concern a "right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Even if it did, it would fall into the domain of public law and not concern a "civil" right. 47. The Commission, in its examination of whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable, has first considered whether there was a dispute ("contestation") over a right. 48. The Commission is not called upon to rule on the general question of the right in Switzerland independently to practise as a doctor. On the other hand, the Commission notes that the applicability of Article 6 para. 1 (Art. 6-1) of the Convention is not excluded solely by the fact that the dispute at issue concerned the applicant's readmission to a professional activity after his authorisation for this activity had been withdrawn (see Eur. Court H.R., H. v. Belgium judgment of 30 November 1987, Series A no. 127B, pp. 31-34, paras. 37-48). 49. The Commission recalls that the "rights" referred to in Article 6 para. 1 (Art. 6-1) are those which can be said, at least on arguable grounds, to be recognised under domestic law. This provision does not in itself guarantee any particular content of the substantive rights recognised in the laws of the Contracting States (see Eur. Court H.R., H. v. Belgium judgment, loc. cit., p.31, para. 40). Furthermore, the dispute concerning this right must be "genuine and of a serious nature" (see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 15, para. 32). It may concern both questions of fact and law (cf. Eur. Court H.R., Van Marle and Others judgment of 26 June 1984, Series A no. 101, p. 11, para. 32). 50. In the present case the applicant obtained his diploma in medicine in 1981. Since then he has been working inter alia as an assistant doctor; in respect of this activity he does not require an additional authorisation in the Canton of Zurich. Moreover, from 1982 to 1983 the applicant was authorised independently to work as a doctor, though the authorisation was withdrawn as he no longer resided in the Canton of Zurich. 51. The proceedings at issue concerned the applicant's renewed request for an authorisation independently to practise as a doctor. The request was refused on 11 September 1985 by the Zurich Health Direction on the ground that the applicant was not "trustworthy" within the meaning of Section 8 para. 1 of the Zurich Health Act. The decision was eventually upheld by the Federal Court on 22 October 1987 though it quashed the waiting period imposed on the applicant. 52. The Commission notes that there is a constitutional right under Swiss law, derived from Article 31 of the Federal Constitution, to freedom of professional activity. According to the Federal Court's case-law this right includes professional medical activity (see above, para. 35). Moreover, the applicant could arguably claim that, contrary to the conclusions of the Swiss authorities, he was "trustworthy" within the meaning of Section 8 para. 1 of the Zurich Health Act. 53. The Commission therefore finds that, in the proceedings at issue, the Swiss authorities had to determine a "dispute" ("contestation") concerning a right, asserted by the applicant, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 54. The next issue is whether the disputed right was a "civil" one within the meaning of this provision. 55. According to the Convention organs' case-law, "the concept of 'civil rights and obligations' cannot be interpreted solely by reference to the domestic law of the respondent State" (see Eur. Court H.R., König judgment of 28 June 1978, Series A no. 27, p. 29. para. 88). Moreover, Article 6 (Art. 6) does not cover only "private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law" (loc. cit. p. 30, para. 90). Accordingly "only the character of the right at issue is relevant" (loc. cit.). 56. In the present case the Commission notes that according to Article 31 of the Swiss Federal Constitution, as interpreted by the Federal Court, a distinction is made between a right to private professional activity and the exercise of public functions which is not guaranteed by Article 31. Medical professional activity is expressly included among the private professional activities (see above, para. 35). 57. It is true that the applicant's activity may have certain public aspects, in particular the responsibility of a doctor for the health of society at large. However, as in the König case, the applicant's activity is carried out in the private sector through the conclusion of contracts between him and his patients. The fact that this activity is subject to administrative authorisation, provided for by law and in the interest of public order and public health, cannot automatically convert the applicant's activity into a public law one (see Eur. Court H.R., König judgment, loc. cit. p. 31, paras. 91-92). 58. In consequence, what was at stake was a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 59. There remains the question whether Article 6 para. 1 (Art. 6-1) applies to proceedings in which, as in the present case, the Federal Court was acting as a constitutional court (see Eur. Court H.R., Bock judgment of 29 March 1989, Series A no. 150, p. 18, para. 37, with further references). 60. The Commission considers that, if the applicant's public law appeal had been successful, the Federal Court could not only have quashed the contested decision but also ordered the granting of the authorisation requested if all the other conditions were met (see above para. 29). The Federal Court's decision was therefore "capable of affecting the outcome of the case" (see Eur. Court H.R., Bock judgment, loc. cit.). 61. It follows that Article 6 para. 1 (Art. 6-1) of the Convention was applicable in the proceedings before the Federal Court. D. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention 62. The applicant complains that contrary to Article 6 para. 1 (Art. 6-1) of the Convention a Federal Court judge decided on 22 October 1987 on his public law appeal without knowing the case-file. 63. The Government submit that, rather than concentrating on an isolated incident, due consideration must be given to the fact that the applicant's new request for an authorisation was dealt with thoroughly by various instances, namely the Zurich Health Direction and the Zurich Council of State each in a decision of 9 pages, the Zurich Administrative Court in a decision of 27 pages, and the Federal Court in a decision of 16 pages. 64. As regards the proceedings before the Federal Court, the Government submit that the complaint is unfounded. They distinguish between the file of the Federal Court, consisting of the public law appeal statement, the contested decision and the further submissions of the parties, and the Cantonal file. The latter may be consulted a number of days before the hearing at the Federal Court's Chancellery. Knowledge of the Rapporteur's Report and the Cantonal file will suffice for a judge to be in a position to decide on the allegations. Moreover judge Y. did not avail himself of the opportunity to request adjournment of the decision which he could have done if he did not feel at ease with regard to the case-file. 65. The Commission observes that Article 6 para. 1 (Art. 6-1) of the Convention entitles everyone in the determination of his civil rights to "a fair hearing ... by an independent and impartial tribunal established by law". The right to a fair hearing includes, inter alia, the right for the parties to the proceedings to make submissions which they regard as relevant to their case. 66. The Commission further recalls that the Convention does not intend to guarantee rights that are theoretical or illusory, but rights that are practical and effective (Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p. 16, para. 33). It follows therefrom that the parties' right under Article 6 para. 1 (Art. 6-1) of the Convention to file submissions can only be regarded as being effective if these submissions are actually "heard" in the sense that they are duly considered by the court concerned. 67. In the present case the Commission observes that the deliberations of the Federal Court are as a rule held in public (see above, para. 38). This was also the case in respect of the deliberations and the decision concerning the applicant's public law appeal on 22 October 1987. 68. Moreover, it is undisputed that, when deliberating on the applicant's public law appeal, judge Y. complained that the documents had not been available for a sufficiently long time. As a result, he, judge Y., who had been appointed as Co-Rapporteur, had only been able to read 35 pages of the public law appeal statement numbering 73 pages. After the deliberations the Federal Court dismissed the applicant's public law appeal by four votes to one. 69. Thus one of the Federal Court judges decided on the applicant's public law appeal without having read all the documents of the case. An issue arises whether in this respect the applicant had a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 70. The Commission considers it unnecessary to examine whether, as the Government point out, the Federal Court judges had sufficient other documents before them when deliberating on the case, e.g. the so-called Cantonal file and the Rapporteur's Report. The Commission also finds it unnecessary to examine whether the right to a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention requires a court comprehensively to read and consider statements of the parties which are extensive and yet manifestly irrelevant to the case. 71. It suffices to point out that the impression given by judge Y. at the deliberations on 22 October 1987 was that he wanted to read the entire public law appeal statement, but could not do so. Thus, judge Y. must have regarded the document as being pertinent to the case. In fact, it was the document leading to the proceedings before the Federal Court. Although judge Y. had not read the entire document, he then nevertheless participated in the judgment dismissing the applicant's public law appeal. 72. In the Commission's opinion a party is not effectively heard where a judge participates in the case without having acquainted himself with all the material which he regards as possibly relevant to the outcome of the case. The applicant did not therefore have a fair hearing in the determination of his civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. E. CONCLUSION 73. The Commission concludes, by 14 votes to 5, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD) Opinion dissidente de MM. F. MARTINEZ et J.-C. GEUS à laquelle se rallient MM. F. ERMACORA et B. MARXER Nous ne pouvons nous rallier à la conclusion de la majorité selon laquelle il y aurait violation de l'article 6 pour la seule raison qu'une des cinq juges a déclaré, avant l'audience, n'avoir pas eu le temps de prendre connaissance de l'acte d'appel du requérant dans sa totalité. Dans toute procédure menée devant un organe juridictionnel collégial, il appartient au seul juge rapporteur d'avoir une connaissance exhaustive du dossier avant l'audience, son rôle étant de présenter, à l'intention de ses collègues, les faits de la cause, les problèmes juridiques qu'elle pose et les arguments que les parties ont exposés par écrit. Ces arguments seront d'ailleurs développés oralement par les plaideurs. Au cours du délibéré, le juge rapporteur pourra, le cas échéant, compléter les explications qu'il a déjà données et les autres juges pourront relire l'une ou l'autre pièce dont l'audience aurait révélé l'importance particulière. Cette manière de procéder n'empêche pas chaque juge de se prononcer en toute connaissance de cause, ce qui est évidemment essentiel. En revanche, exiger que chaque membre de la formation de jugement ait étudié de façon approfondie une affaire complexe avant l'audience aurait pour résultat de multiplier par trois, cinq ou plus, la durée du traitement des dossiers, avec la conséquence inévitable de rendre très problématique le respect du "délai raisonnable" imposé par l'article 6. En tout état de cause, la Convention n'impose pas de délai au-delà duquel la méconnaissance du dossier par un juge serait de nature à porter atteinte au caractère équitable du procès. Le respect du caractère contradictoire des débats, et donc des droits de la défense, exige au contraire que les magistrats forgent leur opinion au stade ultime de la procédure, et, en tout cas, après avoir entendu les parties. En l'espèce, on ne pourrait même pas soutenir que le juge Y. se serait rallié aux vues du juge rapporteur, faute d'avoir pu se faire une opinion par lui-même, puisqu'ils ont voté en sens contraire. C'est la raison pour laquelle nous estimons que rien ne permet de mettre en doute le caractère équitable du procès. APPENDIX I HISTORY OF THE PROCEEDINGS Date Item ______________________________________________________________________ 2 April 1988 Introduction of the application 15 June 1988 Registration of the application Examination of the Admissibility 8 September 1989 Commission's decision to invite the Government to submit observations on the admissibility and merits of the application concerning issues under Article 6 para. 1 of the Convention 22 December 1989 Government's observations 21 January 1990 Applicant's observations in reply 9 October 1990 Commission's decision to declare the application partly admissible Examination of the Merits 2 March, Commission's consideration of the 13 April ) state of proceedings 7 September 1991) 9 October 1991 Commission's deliberations on the merits and final vote 15 October 1991 Adoption of the Report
Full & Egal Universal Law Academy