C ONCURRING OPINION OF JUDGES G ARLICKI AND MARUSTE

We share the majority ' s general conclusion regarding the finding of a violation of A rticle 10 because of the disproportionate sentence imposed on the applicant. We are also in agreement with the main line of reas oning of that finding. However, we consider it important to emphasise that the freedom of expression in court pleadings has its specific nature and limitations or , in other words, it does not apply in full scale. Our departing point is that the defence lawyers on court pleadings do not represent (express) themselves – their own eg o, emotions, ambitions or views – but rather their clients ' interests. In exercising their freedom of expression in court proceedings , lawyers are limited by the best interests of their clients and also by the i nterests of justice. Just a s the judges never represent their own interests. It is true that this idea has been in principle recognised in the Court ' s doctrine and expressed in judgments such as Nikula v . Finland (no. 31611/96, ECHR 2002-II) , and was once again explained in para graphs 173- 75 of the judgment. Our purpose is just to stress it clearly once again.

It has been well established that A rticle 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. But this general principle has its bounds in judicial proceedings. In court proceedings it has always to be kept in mind that the form – choice of pleadings , strategy and manner of presentation of arguments – is always essentially dependent upon the defendant ' s defence position , and only secondly upon lawyers ' personal preferences , etc. The representation should never become an unlimited solo perfo r mance of the defence lawyer where the essence and the very purpose of the mission as well as other relevant interests could be left aside , and expressing personal interests takes precedence .

A proper defence should never lead to the detriment or harm of the client ' s interests and case. We recall that the impulsive personal reaction of the defence lawyer as well as the bench in this case ended with the client receiving ineffective representation. It also interrupted the smooth and proper conduct of the proceedings and so harmed the interests of justice. This has jeopardised not only the authority of the judiciary but also the authority and credibility of the Bar and its members as well as the judiciary. That is why we see this case as above all an Article 6 case and that is why we believe that its Article 10 aspects are of a secondary and subordinate nature only.

PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

1. Where identic a l facts entail a breach of several of the rights guaranteed in the European Convention on Human Rights, judges at the European Court often find themselves in a difficult position. Should the Court conclude that there have been multiple violations of the Convention, or should it restrict itself to what appear to be the core aspects ? The Court ' s case-law does not provide an unequivocal response to this question ; much depends on the particular circumstances of each case, and also on the subjective assessment of the judges, who may be more or less sensi tive to a particular aspect of the case. There are also “mono-violationist” and “poly-violationist” judges.

2. This is perhaps even more valid where, having given rise to a judgment by a Chamber of seven judges , a case is referred , in accordance with Article 43 of the Convention , to a Grand Chamber of seventeen judges , which decides the case by means of a final judgment . The very few judges ( two at the most ) who, under Article 27 § 3 of the Convention, sit (and therefore vote) twice , occasionally find themselves in a disconcerting position. Must they adhere strictly to their initial opinion ( which, moreover, is now only of historical value, since the Chamber judgment, as res judicata , is invalidated with retrospective effect) ? Or must they, with the benefit of hindsight, depart from or even overturn their previous opinion ? Here again, everything depends on the specific features of the case – and on each judge ' s greater or lesser degree of stubbornness (o r ability to reconsider his or her previous conclusions ); once again, this depends on individual cases, more perhaps than on individual temperaments .

3. I wish to explain my successive positions in Kyprianou v . Cypr us . The Chamber in which I sat held unanimously that there had been a threefold violation of A rticle 6, namely of paragraphs 1 ( lack of impartiality of the court ), 2 ( breach of the principle of presumption of innocence ) and 3 ( a) (violation o f the right to be informed in detail of the nature and cause of the accusation against oneself) ; the Chamber also held, again unanimously, that there was no need to examine separately the applicant ' s complaint under Article 10, which protects freedom of expression .

4. After reading the observations of the parties and third-party interveners before the Grand Chamber, and having (carefully) listened to the addresses at the hearing and to my colleagues ' ar guments during the deliberations, I have changed my mind in two ways with regard to my in itial conclusions in this case.

5. Needless to say, I have not changed my opinion with regard to the finding of both objective and subjective bias on the part of the Assize Court , which instantaneously – or at any rate after two short breaks – p rosecuted the applicant for contempt of court , convicted him and imposed a sentence of five days ' imprisonment. This is the kernel of the dispute brought before our Court, and I have no comment to make concerning the Grand Chamber ' s reasoning, to which I subscribe without difficulty. Indeed, the vote on this point was unanimous, even if interesting separat e opinions have been expressed.

6. Nor have I abandoned my unambiguous conclusion that there has been a violation of the presumption of innocence. I consider this violation to be self-evident: the lawyer, Mr Kyprianou, was presumed guilty by the judges, who merely offered him the choice between a plea of mitigating circumstances or r e traction of his statement . However, a court may be biased even where the accused is, at least formally, presumed innocent. The two complaints are not necessarily identical . Equally, the presumption of innocence may be breached at the pre-trial stage without the court subsequently being accused of bias ( I am thinking, for example, of Allenet de Ribemont v . France , judgment of 10 February 1995, Series A no. 308). Admittedly, it is not unreasonable here to argue that the two violations have overlapped to a certain extent. Nonetheless, the presumption of innocence is, to my mind, such a fundamental principle of fairness that I cannot resign myself to seeing a violation of it subsumed or absorbed into the issue of the court ' s bias. I have therefore voted, once again, in favour of finding a breach of A rticle 6 § 2, this time against all my coll ea gues, who considered that a separate examination u nder this head was unnecessary.

7. In contrast, I have realised that the third violation of A rticle 6, namely of paragraph 3 (a), was no t only a clear duplication, but did not even occur! On this point, and on this point alone, the respondent Government have convinced me . The case was prejudged ( and this indeed is precisely what the Assize Court is criticised for) and, given that it was, how could a lawyer with forty years ' experience not be aware of the accusation against him? I considered this complaint to be genuine and distinct ; on reflection, I consider it artificial and pointless. Accordingly, I have voted with all the other Grand Chamber judges on this point.

8. There remains the question of freedom of expression. This is where I hesitated most. The core of the application concerns defence rights, the words spoken by a lawyer in the heat of the action while defending, before a court, a client accused of a serious crime, words which the judges held to be so insulting that they convicted him too readily. Freedom of expression is the backdrop to this case rather than the key issue, which explains the view expressed by the Chamb e r in paragraph 72 of its judgment . However, it is also one of the most important democratic values. I accept that it is desirable for the Court to affirm that the lawyer ( advocatus ) is also entitled to benefit from this freedom, especially when he or she contributes through his or her words to the rights of the defence . In this connection, I undoubtedly attached insufficient importance to the leading judgment Nikula v . Finland

( no. 31611/96, E CH R 2002-II), which has been cited several times by the Grand Chamber. In the end, I have willingly voted with my colleagues on this occasion in favour of finding a violation of Ar ticle 10 .

9. I would therefore conclude that, in my opinion at least, the referral of this case to the Grand Chamber has not been a pointless formality ; i t has bolstered m y views while enabling me to corr ect them : on e can always do better (or in any event less badly ... ).

[1] . Northern Ireland : the law in Northern Ireland concerning contempt committed in the face of the court does not differ materially from that in England and Wales .

[2] . In his written submissions of 6 December 2004 , the applicant pointed out that on 20 February 2004 the advice in the memorandum had been amended in the light of the Chamber judgment in the present case. In particular, he noted that the advice recommended that presiding judges should generally remit contempt applications to another judge, but the procedure following on a remit was not prescribed, and had to be determined in the light of the circumstances in the particular case ( see Mayer v. H.M. Advocate , unreported, 16 November 2004).

[3] . Article 6 – Right to a fair trial

...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...

[4] . This problem is further aggravated by the fact that, for example, the investigating magistrate must of necessity form a hypothesis of guilt. Without it the investigation would make no sense. Little, therefore, remains of the postulated presumption of innocence in a setting that is not adversary but inquisitorial. It may not be too far-fetched to say that Mr Kyprianou was in fact tried in an inquisitorial setting.

[5] . For the sake of simplifying the argument, I say “apply the law”. But the subsequent “application of law”, in turn, is epistemologically as complex, and more so, as the antecedent “truth-finding”. In fact, the two mental processes can only artificially be separated one from the other. The choice of the norm to be applied ( la qualification du cas ) determines the selective apperception of the “legally relevant” facts. The “discovery” of those and additional “facts” ( éléments ) in turn modifies the choice of the norm as the major premise of legal syllogism. This is a two-way street. The choice of the applicable norm determines which facts are legally relevant. The choice of the applicable norm largely determines what the selective legal “truth-finding” will focus on in the first place. The fact that the accused, to paraphrase Camus, did not cry at his mother’s funeral may suddenly become a pivotal element of the absurd legal “truth”. Unaddressed and left non-explicit, this two-step sequence of the unexplored aspects of legal reasoning almost invariably generates in the mind of the unsophisticated something akin to a “belief”. Due to the self-referential nature of such “application of the law”, the inquisitorial witch-hunts may come to be seen as referring to an established “truth”.