PARTLY DISSENTING OPINION OF JUDGE MOTOC

With all due respect to the majority, I cannot agree that paragraph 196 of the judgment belongs to the “general principles” developed by the case-law of this Court. The paragraph is obviously a legal transplant from the US Supreme Court’s case-law. As Shakespeare said in the words of Hamlet: “Neither a borrower nor a lender be; for loan oft loses both itself and friend.” I find that our Court is in exactly the situation described by Hamlet.

Paragraph 196 does not reflect the general principles established by our Court or the mere distinctions between in rem and ad personam formulated in the context of recidivism in Achour v. France ([GC], no. 67335/01, §§ 47-49, ECHR 2006-IV) [1] . And I do see the reasons why these should be included under the heading “General principles”. In fact paragraph 196 borrows, without citations, ideas from the US Supreme Court expressed in several cases, such as Kent v. the United States , In re Gault and especially Robinson v. California . In this sense the paragraph operates a legal transplant or a “cross-fertilisation of the case-law”.

As the creator of the notion of legal transplant, A. Watson has warned us that legal transplants should be operated in a careful way [2] . Even if cross-fertilisation has become common practice nowadays, at the Court some criteria are still to be used; otherwise, as Vico has stated, “ La mente umana è naturalmente portata a dilettarsi dell’uniforme ” ( The human mind naturally tends to delight in the uniform) [3] . It is essential that the cross-fertilisation take into account the differences between legal cultures and rebut any attempt at the axiomatisation of similarity [4] .

Furthermore, including the paragraph under the general principles gives the impression that the majority would like to develop a critique of the doctrine of parens patria in the context of juvenile justice. Whilst the evolution of criminal justice in the United States of America, especially in California in the 1960s, had determined a need for the US Supreme Court to intervene and to ensure against “processing a child offender through the justice system on the sole basis of his status of being a juvenile offender”, there is no counterpart to this in the member States of the Council of Europe nowadays.

Furthermore, the majority view becomes confusing when stating, under the general principles again, that “the status of juvenile delinquent lacks definition”. It is true that the term “juvenile delinquent” is still used by some international, European and domestic instruments but after the adoption of the Convention on the Rights of the Child, the term was increasingly replaced with “minor” or “child”. In the present case, the remark that the term lacks definition does not make sense since the applicant was 12 years old when he committed the crime. Furthermore, the Court has already cited the international instruments relevant to juvenile justice in part III, “Relevant international materials”. The lack of definition of the notion could be relevant in other contexts, for instance where the delinquent is between 18 and 20 years old.

Again, the majority should be more careful regarding general principles which have been correctly stated by the Court and when operating “cross-fertilisation”.

[1] . “ 47. Consequently, the issue before the Court is indeed whether the principle that only the law can define a crime and prescribe a penalty was observed. The Court must, in particular, ascertain whether in the present case the text of the statutory rule, read in the light of the accompanying interpretative case-law, satisfied the requirements of accessibility and foreseeability at the material time.

48. The Court notes that the applicant was initially convicted of drug trafficking on 16 October 1984 and that he finished serving his sentence on 12 July 1986. He was subsequently convicted of further drug offences committed in the course of 1995 and up to 7 December of that year. In their respective decisions of 14 April and 25 November 1997, the Lyons Criminal Court and Court of Appeal found the applicant guilty of offences under Article 222-37 of the Criminal Code and sentenced him in accordance with that provision and with Article 132-9 of the same Code, on recidivism.

49. The Court notes that Article 132-9 provides that the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism and that the applicable period is no longer five years, as prescribed by the former legislation, but ten years from the expiry of the previous sentence or of the time allowed for its enforcement. As the new statutory rules came into force on 1 March 1994, they were applicable when the applicant committed fresh offences in 1995, so that he was a recidivist in legal terms as a result of those offences .. . ”

[2] . A. Watson, Legal Transplants . An Approach to Comparative Law , Edinburgh, Scottish Academic Press, 1974.

[3] . G. Vico, Principi di scienza nuova: d'intorno alla comune natura delle nazioni .

[4] . D. Nelken, J. Feest (eds), Adapting Legal Cultures , Oxford and Portland , Oregon : Hart Publishing, 2001.