DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT

(Translation)

For the reasons which follow, I voted in support of the view that Article 6 (art. 6) was not applicable in this case.

In the cases of Engel and Others (Series A no. 22, § 81) and Öztürk (Series A no. 73, §§ 48 et seq.) the Court accepted that the Convention allowed the State to make a distinction between, on the one hand, criminal cases and, on the other, disciplinary cases or administrative offences and that only the former automatically came within the ambit of Article 6 (art. 6) of the Convention; but it added that it did not follow that the classification thus adopted by the State was decisive for the purposes of the Convention and that Article 6 (art. 6) could apply to an offence deemed in the State ’ s legislation not to be a criminal one if the nature of the offence and/or the severity of the penalty warranted it.

In the instant case the majority have accepted that the offence in question was a criminal one on the ground that since the relevant Article of the Vaud Code of Criminal Procedure applied to practically the whole population, the offence did not come within the disciplinary sphere.

Having regard to the judgment in the case of Engel and Others, in which the Court accepted that the case was a disciplinary one because it concerned legal rules "governing the operation of the ... armed forces", one might consider that in the present case too, in which the applicable provision was designed to ensure the proper functioning of another public service, the judicial system, the offence in question could legitimately be classified as a disciplinary one. Even if this conception of disciplinary law is deemed to be too broad, it does not necessarily follow that the offence was a criminal one within the meaning of the Convention.

If it is noted that the behaviour which Article 185 is intended to punish lies within a well-defined sphere - ensuring the proper conduct of judicial proceedings - and that by applying to it not the provisions of the Swiss Criminal Code but a provision of the Vaud Code of Criminal Procedure, the prosecuting authority itself classified the offence as being of minor importance, it can be accepted that the offence was an administrative one contravening merely a provision for the maintenance of order. As to the penalty incurred, it is not of such seriousness that it would entail the applicability of Article 6 (art. 6). This is no doubt a matter of opinion, but it appears to me that the Court has not had sufficient regard to the circumstances in which a fine may be converted into a term of imprisonment, namely where there is a deliberate intention not to pay it, and not merely where the person concerned finds himself unable to do so through no fault of his own. In the applicant ’ s case, failure to pay would have been deliberate and the conversion into imprisonment actively desired. There is therefore no occasion to take into account, as the majority have done, the possibility of conversion in order to assess the seriousness of the penalty incurred. Furthermore, as is apparent from the case of Engel and Others, not all penalties consisting in deprivation of liberty are necessarily criminal ones within the meaning of Article 6 (art. 6) where they cannot be appreciably detrimental either by their nature or by their duration or by their manner of execution. Furthermore, the maximum amount of the fine (CHF 500) - and the fine imposed in the instant case amounted to CHF 300 - does not appear substantial in the Swiss context or likely to cause appreciable detriment. From this point of view too, therefore, I consider it unjustified to classify the offence as a criminal one within the meaning of the Convention.

I will add that the punitive, deterrent nature of the penalty incurred does not seem to me to be such as to affect that view, since it is inherent in any penalty and since any offence necessarily calls for a penalty.

The foregoing considerations accordingly prompt me to say that in my humble opinion Article 6 (art. 6) was not applicable in the instant case and that consequently there cannot have been a violation of it. I will add that if I had reached a different conclusion as to applicability, I would have held, like my colleagues, that there had been a breach of that provision.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

As regards Switzerland ’ s reservation in respect of Article 6 § 1 (art. 6-1) of the Convention [1] , I confirm, if need be, the observations I made in 1988 with regard to the Belilos case [2] .

[*]  Note by the Registrar: The case is numbered 10/1989/170/226.  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.

[*]   Note by the Registrar: The amendments to the Rules of Court which entered 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 177 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Paragraphs 23, 24 and 36-38 of the judgment.

[2] Judgment of 29 April 1988 , Series A no. 132, p. 36.