PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I fully agree with the finding of a violation of Article 6 § 1 in this case by reason of the fact that the applicants were not informed of the tenor of the advocate-general's submissions and were thus unable to reply in writing, if they so wished. However, I do not share the majority's view that the fact that the applicants were not allowed to make oral representations in the proceedings before the Court of Cassation because they were not legally represented by any of the prescribed specialist lawyers does not amount to a violation of the same Article.

A very important premiss for my approach in this case is the fact that under the French legal system appellants before the Criminal Division of the Court of Cassation are given the choice either of being represented by a lawyer from the prescribed group of lawyers specialising in cases of that court, or not being represented at all by any lawyer. It is correct, as pointed out in paragraph 46 of the judgment, that there are a number of High Contracting Parties to the Convention in which representation by a lawyer is compulsory for proceedings before a similar high court. In the latter case, I would have no difficulty accepting that the system is compatible with Article 6 and that no problem of a possible breach of this Article arises as a result of not allowing individual appellants to address the court concerned in person. The participation of all the parties in the proceedings through a lawyer places them in a position of equality and secures them effective participation as litigants through their lawyers (see Dombo Beheer B.V. v. the Netherlands , judgment of 27 October 1993, Series A, no. 274, p. 19, § 33). However, once the system accepts that a party does not have to be legally represented before the Court of Cassation, fairness, in my view, requires (see Dombo Beheer B.V. , ibid.) that the system place such litigant in the same position, as far as rights and liberties are concerned, as a litigant represented by a lawyer.

If a litigant is entitled to participate in the proceedings without a lawyer, I do not understand why the law should deprive him of any rights enjoyed by litigants who choose to have a lawyer. He may de facto be in a less advantageous position because of his lack of legal qualifications but I do not see why his rights must be restricted and his participation in the proceedings rendered less effective than the other parties to the proceedings who are legally represented.

In the case under consideration it appears that French law itself does place litigants who choose not to be legally represented in the same position as those who are represented in the proceedings by a specialist lawyer. In particular, as regards the possibility of being heard by the Court of Cassation an ordinance of 15 January 1826, which is still in force, provides that the parties may be heard after obtaining the permission of the court. No distinction between parties who are legally represented and those who are not is made in that ordinance. Yet, in practice the Court of Cassation has, through its settled case-law, established a general principle of not allowing individual litigants who are not legally represented by the prescribed specialist lawyers to participate in the oral hearing, regardless of the particular circumstances of their case (see paragraphs 26 and 27 of the judgment).

It is precisely this general principle which was applied in the applicants' cases that, in my opinion, rendered their appeal to the Court of Cassation unfair, contrary to the provisions of Article 6 of the Convention. The principle prevented the Court of Cassation from exercising, in accordance with the above ordinance, its discretionary power of deciding on the basis of the specific relevant facts of each case whether applicants should or should not be heard by the court. The applicants were thus deprived of a benefit that should normally be enjoyed by every litigant.

I am not advocating a right for the appellants to be heard in person by the Court of Cassation. I simply support the view that the Court of Cassation should have exercised its discretion and decided on the facts whether the applicants should have been heard (possibly subject to conditions) or not. I can see the potential practical problems of hearing submissions on legal matters from litigants who are not legally qualified. But, on the other hand, I cannot exclude it being useful in a specific case for the court to hear a litigant in person, especially in relation to a legal question that may be interwoven with the factual aspects of the case or in respect of new arguments formulated in terms of logic or justice and presented orally to the court with its permission for the first time by the lawyers of the other parties in an effort to clarify or further explain their written observations.

In this respect I repeat the principle set out in paragraph 51 of the judgment in this case on the basis of which it was rightly found that the failure to provide the applicants with the tenor of the advocate-general's submissions amounted to a breach of the obligation to provide a fair hearing: the “right to adversarial proceedings ... means in principle the opportunity for the parties to a criminal or a civil trial to have knowledge of and comment on all evidence adduced or observations presented, even by an independent member of the national legal service, with a view to influencing the court's decision” (see J.J. v. the Netherlands , judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 613, § 43).

The fact that the applicants were unrepresented cannot in my opinion justify their being deprived of a possibility of being heard by the Court of Cassation, given the fact that they were, in any event, entitled to participate without legal representation in the proceedings, which themselves related to legal issues, and were also entitled to present to the court legal observations signed by them in respect of the same proceedings (see paragraph 24 of the judgment), including observations in reply to the legal observations of the advocate-general (see the judgment in the present case).

PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

(Translation)

I agree with the Court's decision that the rule that appellants who are not represented by a member of the Conseil d'Etat and Court of Cassation Bar are not allowed to make oral representations at hearings before the Criminal Division of the French Court of Cassation does not violate Article 6 of the Convention.

However, I have also ultimately come to the conclusion that the advocate-general's failure to communicate the tenor of his submissions does not infringe Article 6 either, even though the applicant was thus denied an opportunity to lodge a note to the court in deliberations.

In my opinion, the same line of reasoning could have been used to dismiss both complaints of a violation of the Convention if the Court had adopted a different approach.

The French system allows appeals to the Court of Cassation to be made both with the assistance of a lawyer, or by the accused in person. The system would indisputably be compatible with Article 6 § 3 (c) even if it permitted only the first of those procedures to be used. What is therefore at issue here is a summary procedure that may be used as an alternative to the procedure with legal representation which, for its part, is wholly compatible with Article 6 of the Convention.

The procedure for appeals brought by an accused in person appears to be deficient in so far as the rules requiring adversarial process and the accused's participation at the hearing are concerned. That, however, does not in my opinion justify holding that there has been a violation of the Convention provided that the accused's choice of the procedure without legal representation (which offers fewer guarantees under Article 6 of the Convention) is free and informed.

Freedom of choice, which is ensured by the availability of legal aid, is not at issue in the present case (see paragraph 46 of the judgment). However, one could take the view that the advocate-general must communicate the tenor of his submissions to enable the choice to be made in full knowledge of the facts (see paragraph 51 of the judgment). In practice, and in this I agree with the dissenting opinion of Judge Costa, I consider that communication of that information would add virtually nothing to the accused's knowledge of the case that would assist him or her when acting in person or, to return to my argument, in making an entirely free and informed choice.

To my mind, it is necessary to reassert here that even if a simplified procedure does not offer all the guarantees required by Article 6 it will not necessarily be contrary to the Convention if another form of procedure is available under the system to the appellant that is fully compatible with the requirements of a fair trial and the appellant is able to make a free and informed choice between the two. Otherwise, were it necessary for every alternative procedure to comply with all the requirements of Article 6, such simplified forms of procedure as the Italian summary judgment ( giudizio abbreviato ) or, a fortiori , the procedure on a guilty plea would have to be regarded as being contrary to the Convention. As a result, procedures that are essential for the administration of justice could no longer be used. However, the Court has previously found the choice of the summary judgment procedure in Italy to be compatible with Article 6 of the Convention (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000) and the Commission reached a like conclusion with regard to the procedure on a guilty plea (see X v. the United Kingdom , no. 5076/71, Commission decision of 23 March 1972, and R.O. v. the United Kingdom , no. 23094/93, Commission decision of 11 May 1994, unreported).

For these reasons, I conclude that there has been no violation in respect of either complaint.