CONCURRING OPINION OF JUDGE pettiti

( Translation )

The Court was unanimous on the first issue (length of the proceedings). In order to put the second part of the judgment in clearer perspective in the Court’s case-law, I think it useful to reiterate that the applicants maintained that the failure to communicate the reporting judge’s report in full to their lawyers had infringed the adversarial principle and the fact that it had been impossible for either the applicants or their counsel to reply to the advocate-general’s submissions was contrary to the principle of equality of arms.

The advocate-general’s presence at the deliberations was also criticised.

In its decision the Court examined the proceedings taken as a whole (see paragraph 104 of the judgment). Its main finding was that with regard to the reporting judge’s report there had been a breach of the principle of fairness since it had been communicated to the advocate-general, but not to the lawyers.

In paragraph 105 of the judgment the Court uses the expression “like” in distinguishing the two parts of the report. The “draft judgment” section remains confidential if intended solely for the chamber. The first part containing a description of the facts and grounds of appeal should, if communicated to the advocate-general, also be communicated to the parties’ lawyers (following the reasoning in paragraph 106 of the judgment); that did not happen in the Reinhardt and Slimane-Kaïd case in which no oral submissions were made at the hearing. In paragraphs 74 and 75 of the judgment the Court referred to the special role of the advocate-general at the Court of Cassation: he is not a party to the proceedings (but a party “joined” to the criminal proceedings) and receives no instructions regarding the performance of his duties.

The Court notes in its judgment the changes that have been made to the practice of the Court of Cassation regarding oral submissions at hearings.

The wording used in the present judgment is not the same as that used in particular in similar Belgian cases (in which the Court found a violation); thus in the Borgers v. Belgium judgment (which concerned criminal proceedings) the Court spoke of breaches (apparent or alleged) with respect to the issues of independence and impartiality, the rights of the defence and equality of arms (paragraphs 24, 28 and 29). But that case was different from the Reinhardt and Slimane-Kaïd case.

In its judgment in the Vermeulen v. Belgium case (which concerned civil proceedings) the Court relied on the fact that it was impossible for the applicant to reply to the advocate-general’s submissions before the end of the hearing in finding a breach of the right to adversarial proceedings (paragraph 33). In our dissenting opinion Mr Gölcüklü, Mr Matscher and I said in particular that there was no reason to view the advocate-general as an adversary of either party.

In its judgment in the Van Orshoven v. Belgium case (civil proceedings concerning the ordre des médecins ) the Court again relied on the fact that it had been impossible to reply before the end of the hearing (without referring to the theory of appearances or adopting the wording used in paragraph 37 of the Vermeulen judgment). In our separate opinions, Mr Storme and I noted the special nature of the procureur général 's department at the Court of Cassation in Belgium.

A comparison of the judgments therefore sheds greater light on the question. In any event, the Court has not assimilated the role of the advocate-general at the Court of Cassation to that of the Advocate General at the Court of Justice of the European Communities.