DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

To my regret, I dissent from the majority ’ s conclusion that, by reason of failure to exhaust domestic remedies, the Court is unable to take cognisance of the merits of the case, and I do so for two reasons.

1. In the first place, I voted with Judge Martens in favour of rejecting the French Government ’ s preliminary objection because the Commission, after examining Mr Cardot ’ s application, declared it admissible, in accordance with Article 27 para. 3 (art. 27-3) of the Convention.

I agree with Judge Martens ’ s analysis and arguments in his separate opinion in the Brozicek case (judgment of 19 December 1989 , Series A no. 167, pp. 23-28). In it he indicates that he is in favour of departing from the precedent set by the Court in the De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 29-31, paras . 47-55), in which the Court held that it had jurisdiction to entertain preliminary objections as to admissibility, such as pleas that domestic remedies had not been exhausted, provided that they had previously been raised before the Commission.

To reiterate his practical arguments, from the point of view of the functioning of the Convention system and of more efficient protection of human rights, I likewise think that the Court is not to act as a court of appeal from the Commission and that it does not fit in with this system that (as is possible under the Court ’ s doctrine) in one and the same case the Commission should reject the preliminary objection, accept the petition and express the opinion that there has been a violation, while the Court should find that objection well-founded and therefore hold that it is unable to take cognisance of the merits of the case. It is also undesirable that an applicant, after winning his case before the Commission, should find himself denied a judgment on the merits after lengthy proceedings.

2. Furthermore, in the instant case I consider that the applicant did in substance make before the French Court of Cassation the complaints relating to paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) of the Convention. In the Van Oosterwijck judgment of 6 November 1980 (Series A no. 40, p. 14, para. 27) the Court held that in order to determine whether a remedy satisfies the conditions laid down in Article 26 (art. 26) "and is on that account to be regarded as likely to provide redress for the complaints of the person concerned, the Court does not have to assess whether those complaints are well-founded; it must assume this to be so, but on a strictly provisional basis and purely as a working hypothesis".

Article 26 (art. 26), which refers to the "generally recognised rules of international law", must be applied with some degree of flexibility and without excessive formalism (see the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 26, para. 72). The special character of the Convention and its purpose of protecting rights which benefit from "collective enforcement" (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, para. 239, and the Soering judgment of 7 July 1989, Series A no. 161, p. 34, para. 87) "require that its provisions be interpreted and applied so as to make its safeguards practical and effective" (see the Soering judgment, loc. cit.). The object and purpose of the Convention call in this case for a flexible "pro victima " interpretation of this Article (art. 26), favouring admissibility of applications, so that the complaints made can be considered by the Convention institutions.

In the instant case the ground of appeal to the Court of Cassation based on a breach of the rights of the defence expressly referred to the "hearing which [had] preceded the judgment of the Grenoble Court of Appeal" (see paragraph 26 of the 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. Furthermore, he alleged that "the court ... ha[d] to reach its verdict in the light of the particular circumstances of the case and not by reference to cases already tried" (ibid.). Like the Commission I consider that by challenging the Grenoble Court of Appeal ’ s reasoning, the applicant had by implication criticised the procedure whereby evidence was taken.

The ground of appeal was therefore indeed tantamount to reasoning based on a disregard of the rights enshrined in paragraph 1, of which paragraph 3 (d) is a specific aspect (see, among other authorities, the Deweer judgment of 27 February 1980, Series A no. 35, p. 30, para. 56; the Pakelli judgment of 25 April 1983, Series A no. 64, p. 19, para. 42; and the Goddi judgment of 9 April 1984, Series A no. 76, p. 11, para. 28), because "when compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots" (see the Artico judgment of 13 May 1980, Series A no. 37, p. 15, para. 32).

The ground of appeal could probably have been drawn in terms that were clearer and more precise and might, similarly, have alleged a breach of paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) of the Convention. But while it is normally for the domestic courts to assess the evidence they have gathered (see the Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 15, para. 33), the reasons set out by the applicant clearly 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 the Guzzardi judgment previously cited, p. 27, para. 72).

[*]  The case is numbered 24/1990/215/277.  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 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 200 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[1] See : Andrew Z. Drzemczewski , European Human Rights Convention in Domestic Law (1983), p. 78; Marc-André Eissen , 'le statut juridique interne de la Convention devant les juridictions pénales françaises' in Gérard Cohen-Jonathan et al., Droits de l'Homme en France (1985), p. 28; Gérard Cohen-Jonathan , la Convention Européenne des Droits de l'Homme (1989), pp. 245 and 257.

[2] See : Jacques Boré , La cassation en matière pénale (1985), nos. 3086 et seq .