JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA, CAFLISCH AND JUNGWIERT

(Translation)

1. This case concerns two of the highest French courts, which are pillars of the rule of law: the Court of Audit ( Cour des Comptes ) and the Supreme Administrative Court ( Conseil d’Etat ). On two points, which are very important in our view, we are unable to subscribe to the reasoning and conclusions of the Grand Chamber judgment and, with all due respect to the majority, we would like to express our profound and resolute disagreement.

2. Before giving a technical explanation – so to speak – of these two points of disagreement, we would like to place this judgment in a more general context. It is part of a long series of judgments of which we are critical both regarding the premises on which they are based and the way in which they have developed.

3. The judgment in Delcourt v. Belgium (17 January 1970, Series A no. 11) had augured well, however. In that case the applicant had maintained, among other things, that the presence of a member of the procureur général ’s department at the deliberations of the Belgian Court of Cassation had infringed the rights protected by Article 6 of the Convention. The Court unanimously dismissed his application, considering that the wide measure of agreement that had existed for a century and a half in favour of that system “would be impossible to explain” if participation at the deliberations was “thought in any single case to open the door to unfairness or abuse” (§ 36). In our opinion, that observation is still valid today.

4. Whatever the force of precedents, we know that there can be departures from them – and there have been. In Borgers v. Belgium [1] , while reaffirming the independence and impartiality of the Belgian Court of Cassation and the procureur général ’s department, the Court held that there had been a violation of Article 6 § 1 both because the applicant had been unable to reply to the avocat général ’s submissions and “[f]urther and above all” on account of the avocat général ’s participation, in an advisory capacity, in the deliberations (see Borgers , § 28). The Court justified this radical departure from precedent on grounds of the developments in the Court’s case-law regarding the concept of a fair trial, “notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice” (§ 24). In that particular case it held that “it could reasonably be thought that the deliberations afforded the avocat général an additional opportunity to promote, without fear of contradiction by the applicant, his submissions to the effect that the appeal should be dismissed” (§ 28).

5. To give a non-exhaustive list of examples, the judgment in Borgers has been transposed to the participation in deliberations of a member of “State Counsel’s Office” at the Supreme Court of Portugal [2] , at the French Conseil d’Etat [3] and at the French Court of Cassation [4] .

6. The argument therefore appears clear: Principal State Counsel, the avocat général , the Government Commissioner – all deemed to share the same characteristics, which is a highly debatable supposition – must, in the name of “appearances” and the allegedly “increased sensitivity of the public to the fair administration of justice” (but what is “fair” justice?), yield to the requirements, construed in an extensive and questionable manner, of a fair trial and, in particular, not participate or even be present (a point to which we will return) at the deliberations of the courts of which they are members.

7. We contest the very presuppositions of the judgment in Borgers and, therefore, those of its epigones. Appearances are certainly important, but less so than what Freud and others have called the reality principle and, in any event, than reality in the strict sense of the term [5] . That the public are increasingly sensitive to the guarantees of fair justice is both evident and desirable. How, though, does the quality of justice depend on the position of “State Counsel” in the proceedings before the Court of Audit or on the fact that the Government Commissioner takes part in, or is merely present at, the deliberations of the Conseil d’Etat ? In our view, public sensitivity should not be confused with the fantasies harboured by the occasional litigant or the arguments advanced by certain lawyers.

8. We take particular issue with the illogical and dangerous developments in the case-law. It is illogical to afford the States a margin of appreciation , or even a wide margin of appreciation (which derives from the subsidiarity principle and recognises national traditions) where entirely essential rights and liberties are concerned [6] and to attempt to erase often old and respected national traditions in favour of abstract procedural uniformity, which – imperceptibly – reduces the margin of appreciation to nought. There is a dangerous paradox here: it is dangerous to squeeze into a uniform and abstract mould national procedures which have provided satisfaction for all for decades and longer, without taking account of the efforts made by the domestic courts, in all spheres, to draw inspiration from the Strasbourg case-law and conform to it [7] . Beyond the present judgment and the courts in question here, it is illogical and dangerous to bend the Contracting States and their Supreme Courts to procedural rules that are made uniform down to the last detail when there are better things to be done regarding European supervision of respect for the rights guaranteed by the Convention. It is better to accept certain national judicial features and concentrate on harmonising the guarantees which States must provide in respect of substantive rights and liberties: the necessary dialogue between judges will, we think, be greatly facilitated by this, in the interests of all, domestic courts and European Court alike, and will promote justice that is truly “fair”.

9. Thus the majority of the Grand Chamber have succumbed to the temptations of uniformity whereas what the judicial institutions of democratic Europe need is to be able to function smoothly, constantly, foreseeably and in conformity with the spirit of the Convention, rather than uniformity. The “purism” shown by the majority is liable to undermine the effectiveness and stability of legal institutions that have proved their worth. The doctrine of appearances does not justify interference of this kind. “If it ain’t broke, don’t fix it” goes an old American proverb. The majority would have done well to remember that.

10. We will now address, specifically, the more technical points about which we disagree in the Martinie case.

11. The first concerns “State Counsel’s position in the proceedings before the Court of Audit” (point 3 of the operative provisions of the judgment). That position (as it were) appears to combine a number of specific grievances referred to by the applicant. He criticises, in turn, the presence of “State Counsel” at the Court of Audit hearing to which he himself did not have access, the presence of “State Counsel” at the deliberations (but the judgment dismisses that argument as being factually unsubstantiated, see paragraph 47), the disclosure of the reporting judge’s report to State Counsel and not, inter alia , to the accountant (which is described in paragraph 48 as “problematic”), and lastly the presence of the reporting judge at the deliberations. On the last point paragraph 49 of the judgment describes his presence as “as such, legitimate and justified” but goes on to find it problematic merely on account of the fact that the reporting judge, before participating in the deliberations, has expressed his point of view on the merits orally before “State Counsel”. In sum, the conclusion is reached in paragraph 50 of the judgment that it is the position of “State Counsel” in the proceedings which creates an imbalance detrimental to public accountants and thus gives rise to a breach of Article 6 § 1. Without going into the terminological imprecisions (Principal State Counsel, State Counsel), we consider the judgment to be flawed on account of the difficulty for the respondent State to abide by it, as required by Article 46 of the Convention. This likely difficulty in execution is coupled, as far as public accountants are concerned, with legal uncertainty in the future. We accept that, in the light of the case-law (even if we do not approve of it), this procedure for appealing against a judgment of a regional audit office levying a surcharge against a public accountant is perhaps not compatible on every point with Article 6 § 1. However, it would have been infinitely better, in the reasoning and the operative provisions of the judgment, to set out the various sub-complaints and indicate which were founded and which were not.

However, as the judgment has lumped all the complaints together and inferred that there has been a breach of Article 6, we have felt unable to follow our colleagues and vote in favour of point 3 of the operative provisions.

12. Regarding point 4 of the operative provisions, we disagree for different reasons. We are among those who disapprove of the part of the judgment in Kress relating to the “Government Commissioner’s participation in the ... deliberations” (point 2 of the operative provisions of Kress ) [8] . Since that judgment was delivered, the semantic argument between participation (which implies the possibility of “taking part” in the deliberations, that is, addressing the court) and the mere presence (which prohibits participation in them) has been the subject of a large number of articles and commentaries by legal authors which we regret we are unable to cite here despite their importance. Beyond the question of semantics, however – there are, moreover, a number of internal inconsistencies in Kress , both in the French version and between the French and English versions, but there is no point in going back over them here – the main basis of that judgment, descended from Borgers , cited above, is the “doctrine” of appearances. In other words, a litigant or lawyer who is not present at the deliberations and does not therefore know what happens there may imagine that the Commissioner, who is present, thus has “if only to outward appearances, an additional opportunity to bolster his submissions in private, without fear of contradiction” [9] .

13. It is this argument, which is hard to refute (since it would be necessary to prove the unprovable), that the French government sought to address (at least for the future, since regulations are not of retrospective effect) by enacting the decree of 19 December 2005 cited in paragraph 21 of the present judgment and referred to by the Government (see paragraph 52) [10] . Article R. 731-7, added to the Administrative Courts Code by the decree, provides: “The Government Commissioner shall be present at deliberations. He shall not participate in them.” Nothing could be clearer. Even the most suspicious litigant will be sure that, in his case, the Commissioner will be present at deliberations but will not have the right to participate in them and will therefore not have “an additional opportunity to bolster his submissions in private”. Reference to this new provision could have been made in the “Law” part of the Martinie judgment, as was done in Odièvre v. France , for example, with regard to the Law of 22 January 2002 [11] . By refusing to do so, the Court gives the impression of being deaf to the dialogue between judges and entrenched in a general, abstract and dogmatic position, which is a pity.

14. We consider that the present judgment “drives home” the point made in Kress and we regret this. After denting the reputation [12] of the institution of Government Commissioner [13] , the Martinie judgment may now wound it. This wound is both unjust and gratuitous for we are unable to discern in this inflexible position any progress towards genuine fairness of proceedings, still less towards the defence of human rights to which our Court contributes so effectively in general.

15. Accordingly, we regret to have to say that we find the reasoning and conclusions of the majority, on these two points in any event (and the overall conception underlying them), totally unconvincing.

[1] . 30 October 1991, Series A no. 214-B.

[2] . Lobo Machado v. Portugal , 20 February 1996, Reports of Judgments and Decisions 1996-I.

[3] . Kress v. France , no. 39594/98, ECHR 2001-VI.

[4] . Slimane-Kaïd v. France (no. 2) , no. 48943/99, 27 November 2003.

[5] . We refer on this point to the joint partly dissenting opinion of Judges Wildhaber, Costa, Pastor Ridruejo, Kūris, Bîrsan, Botoucharova and Ugrekhelidze in Kress (see, in particular, points 7-9).

[6] . For example, respect for private and family life, the freedoms of religion, expression and association, the peaceful enjoyment of possessions, the right to free elections.

[7] . These efforts, which are to be encouraged and which, we hope, will be continued, are fully in evidence in the case of the French courts and in the Conseil d'Etat in particular. On this point we refer to an article by Professor Frédéric Sudre, to be published in Revue française de droit administratif no. 2 of 2006. This article, which the author has kindly sent us, and for which we thank him, is entitled “Towards a normalisation of relations between the Conseil d’Etat and the European Court of Human Rights: the Decree of 19 December 2005 amending the regulatory section of the Administrative Courts Code”.

[8] . Only one of us sat in the Kress case. He is one of the co-authors of the joint partly dissenting opinion referred to in footnote 4 on page 36 above.

[9] . See Kress , § 82, which cites in support the following judgments: Borgers ; Vermeulen v. Belgium , 20 February 1996, Reports 1996-I; and Lobo Machado .

[10] . It is this text which is welcomed by Professor Sudre in his above-mentioned study: he sees it as a “revival”, by France and the Conseil d’Etat , “of the dialogue between judges”.

[11] . No. 42326/98, § 49, ECHR 2003-III.

[12] . The image is used in the joint partly dissenting opinion in Kress – see point 9.

[13] . Contrast this with paragraph 71 of Kress , where it is stated that “[n]o one has ever cast doubt on the independence or impartiality of the Government Commissioner, and the Court considers that his existence and institutional status are not in question”. If that unique institution, which has worked so hard for the protection of liberties, deserves such earnest recognition, is it really necessary to criticise it so insultingly on a minor point?