and drafting of judgments. In some civil law jurisdictions, for instance, great
importance is attached to the fiction that the judiciary can be seen as a unity,
speaking with one mouth and giving its unequivocal opinion. All judgments
(civil, criminal, and administrative) are in writing, and they give their reasons in
full (discussing all essential statements the parties have submitted), but if unanimity
is not reached only the opinion of the majority of the judges is published. The
publishing of dissenting opinions is even forbidden and constitutes a criminal
offense (secret of the deliberationsin camera).
Dissenting Opinions Common law jurisdictions follow a system that is different
but not incompatible with the principle of a right to a reasoned judgment. In those
jurisdictions, judgments are often oral and the written version will not contain any
reasons at all, just the provisions of the verdict. On the other hand, common law
judges often produce a written opinion on the case, either concurring with the
outcome of the case or dissenting from it. These opinions tend to investigate all
legal dimensions of the problem at hand without entering into a debate with the
submissions of the parties. This approach is understandable against the background
of common law, where the development of certain fields of law (like tort law) is left
to the courts.
13.3.3 Public Hearing and Public Pronouncement of the Judgment
An administration of justice that is fair can only exist in an open setting. Public and
media must be allowed to witness hearings and to comment on them afterwards.
This way of public control compels courts to stick to the straight and narrow path of
justice since deviations will be noticed, criticized, named, and blamed. Exceptions
to this rule (closing the doors) should be formulated with caution.
Art. 6 ECHR allows closing the doors only “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”.
In addition, judgments themselves should be given in public. The interest of
justice itself is served by public judgments as well since this will help scholars,
lawmakers, and courts to develop the law by studying, discussing, and commenting
on the reasoning of the courts. In fact, common law could not even exist if
judgments were kept secret.
In a modern society, pronouncing every judgment is virtually impossible and at
least very impractical. Having regard to the number of cases and the length of the
judgments, there is not enough manpower and time to read out loud all judgments.
And besides, who would care to come and listen? In European jurisdictions, most
judgments are only virtually (by means of a fiction) pronounced in public. In
13 Elements of Procedural Law 299