partly dissenting OPINION OF JUDGE Thór Vilhjálmsson

I agree with the judgment in this case as far as it finds a violation of Article 6 § 1 of the Convention in that the applicants’ case was not heard within a reasonable time.

On the other hand, I am of the opinion that there was no violation of that Article with regard to the fairness of the hearing.

The procedure followed in the Criminal Division of the French Court of Cassation is specific. In my opinion, the rules applied as a whole and, in particular, the roles played by the reporting judge and the advocate-general contribute to an examination of cases and preparation of judgments that are thorough and fair to defendants. Admittedly, only the main points of the report and conclusions of the reporting judge are communicated to defendants’ lawyers. This communication nevertheless distinguishes the present case from earlier cases concerning the role of advocates-general described in other judgments of our Court. In my opinion, the information thus provided before the hearing is sufficient. Counsel for the defendants in this case had the opportunity to request an oral hearing and to prepare themselves for such a hearing. At the hearing they would have been able to answer the comments made by the advocate-general and he would not have been present at the subsequent deliberations. His presence at the deliberations when there is no oral hearing is not likely to be to the disadvantage of the defendant or to give the impression of unfairness.

The rules on the procedure before the Court of Cassation have been developed over a long period of time. I find them balanced, finely tuned and unbiased, even if they are somewhat foreign to lawyers from other European countries with other traditions and systems. I am also basically of the same opinion on the legal questions here under scrutiny, as I stated in my dissenting opinion in the Borgers case.

Accordingly, I find myself in a minority on point 2 of the operative provisions of the present judgment.

partly dissenting OPINION OF JUDGE De Meyer

( Translation )

I. Length of the proceedings

In this case there is no doubt that the length of the proceedings was excessive.

The proceedings started, in my opinion, when “inquiries were made and an investigation opened” into the relevant offences [1] , that is to say at the latest on 1 August 1984, when the public prosecutor attached to the Chartres tribunal de grande instance ordered a “preliminary investigation” [2] into the activities of the Servec and Provex companies [3] , which led shortly afterwards to investigations into the Urka company [4] .

That is the date that should be taken as the starting-point of the proceedings in the cases of both Mr Slimane-Kaïd and Mrs Reinhardt, who were taken into police custody on 2 October 1984 [5] and 16 October 1984 [6] respectively, both in connection with the inquiries.

The date “the person concerned is officially notified that he would be prosecuted” [7] is less important than the date “preliminary investigations are opened” [8] , in cases – as is usual and as occurred here – where the latter date is earlier than the former.

II. Whether the proceedings in the Court of Cassation were fair

I have not been persuaded that the applicant’s right to a fair hearing has been violated.

The Court has always accepted that in court systems such as those in France and Belgium, members of Principal State Counsel's Office at the Court of Cassation perform their duties entirely independently, impartially and objectively and, save in exceptional circumstances, cannot in any way be considered as parties to appeals to the Court of Cassation [9] .

Yet, since the Borgers judgment, it has on more than one occasion condemned their presence at deliberations [10] and the fact that at the hearing they address the court last, without communicating their submissions to the parties beforehand [11] .

In the instant case the Court also disapproves of the practice whereby, with a view to the hearing, the advocate-general is given the reporting judge’s reports and draft judgments, but the parties are not [12] .

What harm lies in these practices? In what way do they adversely affect the fairness of the proceedings? Surely representatives of State Counsel's Office at the Court of Cassation are, like the judges of that court and in particular the reporting judges, independent, impartial and objective, both in law and in practice? Should they not be so presumed until proved otherwise [13] ?

Has it been suggested or is there any reason to think that in the present case Mr Culie, the reporting judge, and Mr Libouban, the advocate-general, were not independent or failed to comply with the duty to be impartial and objective that is inherent in their office [14] ? In any event, it has not been shown, or even alleged, that the concerns the applicants may have had in that regard could be “considered objectively justified” [15] .

It is interesting to note that the Court takes care to avoid repeating in the present judgment some of the bad arguments it relied on in previous judgments and on which the Commission again relied in the instant case [16] .

The Court also avoids considering the issue in relation to the “requirements imposed by the principles of the rights of the defence and equality of arms” [17] or the “right to adversarial proceedings” [18] and likewise abstains from mentioning the “role of appearances in determining whether they have been complied with” [19] . It therefore no longer suggests that those requirements may apply to the relationship between Principal State Counsel's Office at the Court of Cassation and the parties or that appearances have a part to play in this domain. Yet ultimately it is still on the basis of appearances, which cannot mislead those who know the true position [20] , that it considers that the applicants’ right to a fair hearing had been infringed, whereas “looking beyond appearances” one “does not find the realities of the situation to be in any way in conflict with that right” [21] .

Nor does it reiterate that “by recommending that an accused’s appeal be allowed or dismissed”, the representative of Principal State Counsel's Office “becomes objectively speaking his ally or his opponent” [22] . The very fact that both possibilities exist clearly shows him to be neutral. He does not lose that neutrality when making his submissions one way or the other [23] , any more than the reporting judge when giving his opinion or the Court of Cassation when delivering judgment. Could it also be said that the Court of Cassation becomes “objectively speaking the ally” of the “winning” party and “objectively speaking the opponent” of the “losing” party?

The fact is that neither the reporting judge nor the advocate-general can be dissociated from the court itself. The reporting judge’s report and draft judgment and the advocate-general’s submissions remain independent of the debate between the parties, as they form part of the process of preparation of the decision, in readiness for the actual deliberations. The fact that the reporting judge and the advocate-general communicate those documents to each other before the hearing without informing the parties of their content does not in any way adversely affect the fairness of the proceedings.

The position here is very different from cases concerning the observations of a “prosecuting authority”, such as, in the present case, the Chartres public prosecutor or the public prosecutor attached to the Versailles Court of Appeal or, in the Bulut case, the Attorney-General attached to the Austrian Supreme Court [24] , as it is obvious that the prosecution cannot be allowed to bring anything to the court’s attention without the defence being informed.

Nor did the present case concern observations of a lower court that had heard the case at an earlier stage, such as those that were submitted in the Nideröst-Huber case by the Schwyz Cantonal Court to the Federal Court [25] . That practice too is only acceptable if the observations are communicated to the parties.

NOTES