CONCURRING OPINION OF JUDGE SPIELMANN

JOINED BY JUDGE ROZAKIS

( Translation )

First, the Court notes that in the present case the applicant appealed on points of law against the CNITAAT ’ s judgment of 24 November 1997, relying in particular on the fact that she had not been informed of the accredited doctor ’ s opinion concerning her case. The applicant ’ s claim was based on Article 6 of the Convention and invited the domestic court to censure the fact that the “requirements of the right to a fair trial” and, more specifically, the principle of equality of arms within the meaning of that article, had not been respected (paragraph 43 of the judgment).

The Court goes on to admit that at the material time the settled case-law of the Court of Cassation rejected that ground of appeal, while noting, with the Government, that that did not prevent the applicant from hoping for a departure from the case-law on that point. Considering that the applicant ’ s ground of appeal was based on the requirements of Article 6 of the Convention in the wide sense, it would have been logical for her to invoke in her appeal all the points in respect of which she considered that those requirements had not been met (paragraph 44 of the judgment).

Lastly, the Court concludes that the applicant had what she considered to be an effective means to remedy the violations of the Convention she complained of, that she should have raised all her grievances in respect of the proceedings before the CNITAAT in her appeal to the domestic court and that this part of the complaint must accordingly be rejected, under Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies (paragraph 45 of the judgment).

3. This was not a foregone conclusion.

Under the Court ’ s case-law, the only remedies Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied. [1] The case-law of the Court and the former Commission clearly shows that the objection of failure to exhaust domestic remedies must be rejected when the respondent Government are unable to cite a single precedent establishing the effectiveness of the remedy which exists in theory in domestic law [2] .

4. In the present case the applicant ’ s position was not logical. Notwithstanding the Court of Cassation ’ s case-law, which was clearly against her, in her further pleadings on 23 October 1998 she invoked a violation of “the requirements of the rights of the defence” and of “equality of arms in a fair trial within the meaning of Article 6” of the Convention, in that the report by the CNITAAT ’ s accredited doctor, drawn up solely on the basis of documents, had not been made available to her or to the doctor she had appointed to submit observations. She appealed on this ground in spite of the fact that the case-law of the Employment and Welfare Division of the Court of Cassation established that the procedure before the CNITAAT did not violate the rights of the defence (paragraph 20 of the judgment).

5. It is therefore the applicant ’ s subjective attitude that led the Court to declare certain complaints inadmissible for non-exhaustion of domestic remedies. So, in basing itself on the fact that she had what she considered to be an effective means to remedy the violations of the Convention she wished to complain of, and considering that she should have raised all her complaints in respect of the proceedings before the CNITAAT in her appeal to the domestic court, the Court is suggesting that the applicant should have anticipated the departure from case-law that came about in 1998 and in December 2000. In so doing the Court has adopted a subjective approach to the requirement of exhaustion of domestic remedies, an approach that could give rise to uncertainty of the law, whereas the viewpoint of an applicant alone cannot be decisive in determining whether a remedy is objectively ineffectual, theoretical or illusory.

6. If I voted with the majority on this point, it is only because in this particular case the departure from the case-law was objectively “in the air” at the time. That distinguishes this case from those where the Court has rejected the objection because a remedy could be regarded as being “bound to fail” [3] . In this case, on the contrary, there was reason to believe that the remedy might ultimately prosper.

7. To my mind, therefore, it is not so much the applicant ’ s attitude that led to the conclusion that the remedy before the Court of Cassation was effective, as the fact that the Court of Cassation itself, in its 1998 annual report, published in April 1999, expressed doubts as to the compatibility of the procedure before the CNITAAT with the guarantees of the right to a fair trial (paragraph 23 of the judgment). Had the applicant included the other complaints in her further pleadings filed on 23 October 1998, the Court of Cassation might have accepted them. After all, it did depart from its case-law in its judgment of 17 December 1998, limited though it was to the question of the lack of independence and impartiality of the disability claims tribunals (paragraph 21 of the judgment), and in its five judgments of 22 December 2000 (paragraph 24 of the judgment).

[1] See, amongst many other cases, Rezette v. Luxembourg, no. 73983/01, § 26, 13 July 2004, Dattel v. Luxembourg , no. 13130/02, § 35, 4 August 2005, and Casse v. Luxembourg , no. 40327/02, § 36, 27 April 2006.

[2] See Berlin v. Luxembourg ( dec .), no. 44978/98, 7 May 2002, and Rezette and Dattel , both cited above . See also , mutatis mutandis , G.B. v . France , no. 23312/94, d e cision of the Commission of 17 January 1996.

[3] See Pressos Compania Naviera S.A. and Others v. Belgium , judgment of 20 November 1995, series A no. 332, p. 20, § 27, citing mutatis mutandis , the judgments Hauschildt v. Denmark of 24 May 1989, series A no. 154, p. 19, § 41, and The Holy Monasteries v. Greece of 9 December 1994, series A no. 301-A, p. 29, § 51.