DISSENTING OPINION OF JUDGE MACDONALD

Unfortunately I am unable to share the opinion of the majority of the Court on the question relating to Article 26 (art. 26) of the Convention.

This provision must be applied with some degree of flexibility and without excessive formalism (see, among other authorities, the Guzzardi judgment of 6 November 1980 , Series A no. 39, p. 26, para. 72). In the instant case the ground of appeal based on a breach of the rights of the defence, although perhaps drawn in terms lacking in clarity and precision, expressly referred to the "hearing which [had] preceded" the judgment of the Grenoble Court of Appeal (see paragraph 26 of the present judgment). The circumstances of the hearing in that court on 17 March 1983 were precisely what, according to the defence, had been influenced to Mr Cardot ’ s detriment by those of the hearing in the same court on 17 February 1982 , at which Mr Cardot had not been present. The ground of appeal was therefore indeed tantamount to complaining in substance of a disregard of the rights enshrined in paragraph 1 of Article 6 (art. 6-1) of the Convention, of which paragraph 3 (d) (art. 6-3-d) is a specific aspect. In so doing, Mr Cardot provided the Court of Cassation with the opportunity which is in principle intended to be afforded to Contracting States by Article 26 (art. 26), namely the opportunity of putting right the violations alleged against them (see, inter alia, the Guzzardi judgment previously cited, Series A no. 39, p. 27, para. 72).

It follows that, in my opinion, the objection that domestic remedies have not been exhausted is unfounded.

DISSENTING OPINION OF JUDGE MARTENS

1. I have voted in favour of rejecting the French Government ’ s preliminary objection because it was examined and rejected by the Commission: for the reasons given in my separate opinion in the Brozicek case (judgment of 19 December 1989, Series A no. 167, pp. 23 et seq.), I think that the Court should leave it to the Commission to determine whether such pleas are founded or not.

2. I have so voted with all the more conviction because in my opinion the objection was indeed unfounded.

I agree with those of my colleagues who think that in his appeal to the Court of Cassation on points of law the applicant did not raise, even in substance, the grievance which in the course of the Strasbourg proceedings gradually became his principal complaint, namely that although he had had the opportunity to question his former co-accused when confronted with them by the investigating judge, the Grenoble Court of Appeal nevertheless violated his rights under Article 6 paras . 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention by using their statements as decisive evidence, because those statements had not been made at a public hearing in court.

Assuming, however, that this complaint is well-founded - as in this context one should (see the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 14, para. 27) - and taking into account the facts that French courts seem to be bound to apply (self-executing provision s of) the Convention ex officio [1] and that if the lower courts have failed to do this, the Court of Cassation may quash ex officio [2] , I think that the applicant did provide the French courts to a sufficient degree with the opportunity which the rule of exhaustion of domestic remedies is designed in principle to afford, namely "the opportunity of preventing or putting right the violations alleged ..." (see paragraph 36 of the present judgment): if the applicant ’ s interpretation of Article 6 paras . 1 and 3 (d) (art. 6-1, art. 6-3-d) is assumed to be correct, the Court of Cassation should have quashed ex officio because it was evident from the Court of Appeal ’ s judgment that his conviction was based on "unlawful" evidence. I realise, of course, that this conflicts with what the European Court held in paragraph 39 of its Van Oosterwijck judgment but, in my opinion, the view taken there is, as regards human rights cases, too strict: it unnecessarily disregards the protection which a national law that requires its judiciary to apply the Convention ex officio intends to afford to those who for present purposes should be assumed to be victims of a violation of that instrument.