CONCURRING OPINION OF JUDGE LORENZEN JOINED BY JUDGE HEDIGAN

I have voted with the majority in favour of finding a violation of Article 6 § 1 of the Convention owing to the failure of the Court of Cassation to communicate the tenor of the advocate-general's submissions to the applicants and give them an opportunity to reply in writing. This finding is in line with the case-law of the Court which I can in principle agree to (see, as the most recent authority, Fretté v. France , no. 36515/97, ECHR 2002-I). However, in the present case I have only voted for a violation after some hesitation based on the observations in the dissenting opinion of Judge Costa.

The Court has often generally stated that the Convention is intended to guarantee “not rights that are theoretical or illusory but rights that are practical and effective” (see, among other authorities, Kreuz v. Poland , no. 28249/95, § 57, ECHR 2001-VI). In my opinion this principle should serve as a basis not only for an evolutive and dynamic interpretation of the Convention but also as a barrier to creating rights which have no real substance.

Based on the information in Judge Costa's dissenting opinion, I have no difficulties in accepting that an automatic obligation of the Court of Cassation to make the advocate-general's submissions available to appellants in all cases will create “substantial and unnecessary complications”. The Court has in some cases accepted that in the sphere of Article 6 of the Convention national authorities – depending on the circumstances – should have regard to the demands of efficiency and economy (see, mutatis mutandis , Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, p. 19, § 58, and Beer v. Austria , no. 30428/96, § 18, 6 February 2001). Even if I agree that such demands are important and should be taken into account also by this Court, I cannot find that administrative complications in themselves justify not applying the fundamental principles of adversarial process.

However, according to the information in Judge Costa's dissenting opinion, a large part of the submissions of the advocate-general to the Court of Cassation is of a very summary character, often limited to a statement that he agrees with the judge rapporteur's proposal. I fully share Judge Costa's view that a right to reply to such statements would be very formalistic and without any real substance – taking into account that the applicant has already had an opportunity to state his opinion on the case in a written note to the Court of Cassation. I would not be able to find that the failure to communicate such submissions constitutes a violation of the Convention.

Unfortunately, no information is available in the present cases about the content of the advocate-general's submissions to the Court of Cassation and, in the absence of such information, I feel bound to accept that the normal principles of an adversarial process should have been applied. Accordingly, I have voted in favour of finding a violation.

PARTLY DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES WILDHABER, CAFLISCH AND BAKA

(Translation)

Legal representation is not compulsory before the Criminal Division of the Court of Cassation. Under Article 6 §§ 1 and 3 (c), litigants may legitimately be denied the right to plead their case orally (either in person or through a member of an ordinary bar); however, it is not legitimate for them to be denied an opportunity to reply to the advocate-general's submissions by a note to the Court of Cassation in deliberations, owing to a failure to inform them of the tenor of those submissions.

That is what the present judgment means. I do not disagree with the first limb of the Court's reasoning, but cannot accept the second (indeed, there seems to me to be a contradiction between the two, but I do not wish to press the point).

On the face of it, however, the second finding is the result of implacable jurisprudential logic. In Reinhardt and Slimane-Kaïd v. France (judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II), which concerned a case before the Court of Cassation, and in Kress v. France ([GC], no. 39594/98, ECHR 2001-VI), which concerned a case before the Conseil d'Etat , the Court stressed the importance of ensuring that the tenor of the submissions are communicated and the appellant afforded an opportunity to lodge a supplemental note or a note to the court in deliberations subsequently. Admittedly, the applicants in those cases were represented by a member of the Conseil d'Etat and Court of Cassation Bar. However, recently in Fretté v. France (no. 36515/97, ECHR 2002-I) the Court ruled that those requirements applied also to a case in which a litigant before the Conseil d'Etat had elected, with the Conseil d'Etat 's permission, not to be represented. The Court noted that he had been unable to ascertain the general tenor of the Government Commissioner's submissions and had therefore been deprived of the possibility of lodging a note to the court in deliberations in reply. It held that there had been a violation of Article 6 § 1 (ibid., §§ 49-51).

I accept that it is therefore tempting to pursue that line of case-law and to transpose “mechanically” the solution adopted in the case concerning the Conseil d'Etat to the Criminal Division.

The reality is, however, perhaps different. As is noted in paragraph 28 of the judgment in the present case, the Criminal Division alone heard 9,637 appeals in 2001 (as for the Social Division, before which representation is not compulsory either, it delivers between 6,000 and 7,000 judgments annually). Theoretically at least, in all these cases, litigants may represent themselves, ask to be informed of the tenor of the advocate-general's submissions and lodge a note to the court in deliberations. However, in addition to the inevitable and undesirable delays that would cause in appeals to an already overburdened supreme court (on 31 December 2000 the combined total of appeals pending before all divisions of the Court of Cassation came to 37,000!), it is difficult to believe that a litigant who, according to paragraph 44 of the judgment in the instant case, does not have the technical skills necessary to be permitted to make oral representations, could make effective use of the note-to-the-court-in-deliberations procedure: for someone who is not a specialist lawyer, are written submissions any easier to make than oral ones?

It should also be noted that there is (in general) a difference in content between the submissions of the advocate-general at the Court of Cassation and those of the Government Commissioner at the Conseil d'Etat . Mr Arnaud Lyon-Caen, an expert on the subject who knows both courts well, explains this in his contribution to Mélanges offerts à Pierre Drai (Dalloz, 2000, pp. 415 et seq.). The Government Commissioner's submissions “contain a full and thorough analysis, in all cases, of the factual issues and problems of law arising” (see, in addition, the example given by Fretté itself, at paragraph 15 of the judgment), while the advocate-general's can be far more concise: “It is thus not uncommon, particularly in the almost 60% of appeals that are dealt with by a committee because 'an order quashing the judgment appears warranted' (see Article L. 131-6 of the Judicature Code), for the advocate-general merely to express his agreement with the reporting judge and his or her draft judgment, without making any proper written or oral submissions” (ibid.). If the only information available to litigants is “appeal to be dismissed” or “appeal to be allowed”, it will be no easy matter to draft a note to the court in deliberations without repeating what was said in the initial pleading, a procedure that serves no useful purpose.

It is for that reason that the finding of a violation of Article 6 § 1 on this point, which admittedly is defensible on a strict application of the principles, appears to me to be based on an unduly formalistic approach and to seek guarantees which, it must be said, are largely illusory.

Lastly, I fear that compliance with the Court's judgment, a mandatory obligation for the respondent State under Article 46 of the Convention, will cause substantial and unnecessary complications.

Not without hesitation, I have therefore resisted resigning myself to concurring with the view of the vast majority of my colleagues, despite my great respect for them.