JOINT DISSENTING OPINION OF JUDGES VALTICOS, PEKKANEN AND Sir John FREELAND

1.   In this case an appeal to the Court of Cassation on a point of law which had been lodged by the applicant company on 1 December 1989 was declared inadmissible on 1 December 1992, with reference to Article 979 NCCP, on the ground that neither an ordinary copy nor an office copy of an interlocutory judgment given by the Paris Court of Appeal at an earlier stage of the proceedings had been filed. It is to be assumed that, by virtue of the requirements of Article 977 NCCP, a copy of that judgment would, in any event, have formed part of the case file forwarded to the registrar of the Court of Cassation from the registry of the Court of Appeal, so that its absence from the material annexed with the pleadings lodged by the applicant company would have been readily apparent. No prior intimation of the omission to file such a copy or of the potential consequences was given by the Court of Cassation or its registry to the applicant company or its counsel, nor was any request made for the omission to be repaired.

2.   We are not wholly satisfied that on the basis of the terms of Article 979 NCCP and the case-law of the Court of Cassation it should have been foreseeable by the applicant company ’ s counsel, even though he was a member of the specialised Conseil d ’ Etat and Court of Cassation Bar, that the interlocutory judgment in question was of a kind which was required to be produced with the appeal to that court and that failure to produce it would lead to the appeal ’ s being declared inadmissible. Even, however, if this should have been foreseeable, the question remains whether the limitation on the right of access to a court represented by Article 979 NCCP and the way in which that Article was applied in the present case restricts that right to an impermissible extent, having regard to the requirements of Article 6 para . 1 of the Convention (art. 6-1) as interpreted by the Court.

3.   We of course accept that, as is well recognised in the case-law of the Court, where courts of appeal or of cassation are set up by Contracting States those States enjoy a wide latitude as regards the conditions for access to those courts, particularly in cases (like the present) concerning civil rights and obligations, provided always that the very essence of the right of access is not impaired. We also accept that, as the Court has been informed, the rules of French civil procedure governing access to the Court of Cassation are traditionally, and well understood by practitioners to be, of a formalistic character.

4.   It has nevertheless to be asked whether there was a reasonable relationship of proportionality between the limitation applied in this case and the aim sought to be achieved (which we take to be the clearly legitimate aim of ensuring that the Court of Cassation has available to it all the material necessary to enable it to adjudicate properly upon an appeal). For a court of final jurisdiction to be in a position to declare, of its own motion and three years to the day after the appeal was lodged, that an appeal on a point of law is inadmissible because a party has failed to produce a document which is required to be among those available in any event in that court ’ s own registry, and which could also be obtained by a simple request to that party, in our view goes beyond reasonable proportionality. Rules of procedure and their observance are, of course, generally necessary for the administration of justice; but the dismissal of an appeal on so minor a matter of form, and the consequent removal of the possibility of an adjudication on the merits, without the appellant ’ s having been given an opportunity to remedy an omission which could so easily have been repaired, seems to us to be excessive.

5.   For these reasons we would have found that there had been a violation of Article 6 para . 1 of the Convention (art. 6-1).

[1] The case is numbered 51/1995/557/643. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.