CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I came to agree with the finding of a violation principally because the present case was very different from those which have previously been dealt with by the European Court in its decisions in French cases concerning the hearing of witnesses, namely the Delta and Cardot cases*.

* Judgments of 19 December 1990 and 19 March 1991 , Series A nos. 191-A and 200.

In the Saïdi case the Court was confronted with a judgment of the Aix-en-Provence Court of Appeal which was based solely, as had been the decision of the Nice Criminal Court, on testimony obtained by the police and during the judicial investigation, with no reference to other precise and concurring evidence on which it could have founded its finding of the applicant ’ s guilt beyond reasonable doubt. This does not mean that in other circumstances - for example inter partes hearing of witnesses by the investigating judge not repeated before the Criminal Court or the Court of Appeal, or conviction without confrontation of the witnesses at the hearing, but based on additional evidence - there would not be a finding of no violation from the point of view of Article 6 (art. 6) of the European Convention.

It is possible to understand the position of the Court of Appeal in view of the seriousness of the alleged offences in a case in which there had been two young victims of drug dealers, but the extreme and traditional vigilance of the courts in the necessary punishment of such offences, when they are proved, must of course also extend to the grounds for the decision from the point of view of Article 6 (art. 6) of the Convention. This is particularly so where the defence ’ s failure to call witnesses in the Criminal Court and the decision not to have recourse to Article 513 of the Code of Criminal Procedure would appear to have been a tactic adopted by the accused, who reserved the possibility of invoking Article 6 (art. 6) of the Convention for the proceedings in the Court of Cassation. Even though some of the depositions of the witnesses did not have a decisive influence on the Court of Appeal ’ s assessment of the applicant ’ s guilt, it would have been prudent in proceedings involving serious offences and heavy sentences to organise a confrontation with the prosecution witnesses, even if this was not expressly requested by the defence in that it did not call witnesses in the Criminal Court or seek to invoke Article 513 of the Code of Criminal Procedure in the Court of Appeal.

The decision of the European Court on Article 50 (art. 50) and the dismissal of the claim for just satisfaction shed further light on the scope of this judgment which should be considered with reference to the Delta and Cardot judgments.

[*]  The case is numbered 33/1992/378/452.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 261-C of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.