JOINT DISSENTING OPINION OF JUDGES TULKENS AND LOUCAIDES

(Translation)

We are unable to agree with the majority that “the ... refusal to grant the applicant legal aid to appeal to the Court of Cassation did not infringe the very essence of her right of access to a court” (see paragraph 27 of the judgment).

1. Article 6 § 1 guarantees to litigants an effective right of access to the courts. Admittedly, as the Court said in 1979, the States have a free choice of the means to be used towards this end and are not compelled to provide for the assistance of a lawyer unless such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure (see Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26). That was the position in the present case. The applicant complained under Article 6 § 1 that the Legal Aid Office of the Court of Cassation and subsequently the President of that court had refused her application for legal aid, despite acknowledging that she satisfied the means test, on the ground that “no arguable ground of appeal [could] be made out”.

2. In its judgment of 19 September 2000 in Gnahoré v. France (no. 40031/98, § 41 in fine , ECHR 2000-IX) the Court, referring to Aerts v. Belgium (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V), in which it had found a violation of Article 6 § 1 of the Convention, noted that “ there is no doubt that the fact that Mr Aerts was required to have legal representation [by a member of the Conseil d'Etat and Court of Cassation Bar] was decisive” . Indeed, the Court explained that the reason for this was that litigants in cases concerning educative assistance measures were exempted from the requirement of representation by a member of the Conseil d'Etat and Court of Cassation Bar and that the refusal of legal aid did not ipso facto prevent them from pursuing their appeal ( Gnahoré , cited above, § 39). However, in the instant case, it is common ground that the applicant was required to be represented by a member of the Conseil d'Etat and Court of Cassation Bar and could not therefore conduct her appeal without the assistance of a specialised lawyer. The Court's finding that there has been no violation of Article 6 of the Convention therefore quite clearly marks a departure from its previous case-law. We find it surprising that a Chamber should thus decline to follow two previous decisions ( Airey and Aerts ), as such a major change to the case-law is within the sole province of the Grand Chamber.

3. The Court observes that the lack of an “arguable ground of appeal on points of law” is a ground for refusing legal aid under section 7(3) of Law no. 91-647 of 10 July 1991 and considers that that provision was “intended to meet the legitimate concern that public money should only be made available to applicants for legal aid whose appeals to the Court of Cassation have a reasonable prospect of success” (see paragraph 23 of the judgment). It is not for the Court, whose task is to ensure compliance with the rights guaranteed by the Convention and their implementation, to determine the inherent validity or not of choices made by the national legislatures and in a number of decisions concerning, notably, length-of-proceedings cases it has declined to take the budgetary implications of a finding a violation into account.

4. When the Court, adopting the Commission's case-law, states: “a legal aid system can only operate if machinery is in place to enable a selection to be made of those cases qualifying for it” (see paragraph 23 of the judgment), it is not immediately apparent that such a scheme may result in inequality between litigants. However, that is clearly the position in the present case, since only the least well-off litigants, those who have to apply for legal aid, are subjected to a prior scrutiny of the merits of their ground of appeal to the Court of Cassation. Unless there is an “objective and reasonable justification” for it, such difference in treatment may amount to discrimination. No system may impair the essence of the right of a particular class of litigant to a court, as guaranteed by Article 6 of the Convention, and the existence of safeguards, even substantive ones, against abuse of the system intended, as the present judgment notes, to afford protection from arbitrariness, will not suffice to compensate for any such impairment (see paragraph 26 of the judgment).

Although one of the objectives of restricting legal aid is to help filter appeals to the Court of Cassation, it is our view that that system is no longer necessary, as section 27 of Institutional Law no. 2001-539 of 25 June 2001, amending Article L.131-6 of the Judicature Code, which applies indiscriminately to all litigants, enables a three-member committee of the Court of Cassation to declare appeals on points of law inadmissible or, in cases where there is an arguable ground of appeal, unfounded.

5. Far from being neutral, the reason given for refusing legal aid, namely “the lack of an arguable ground of appeal on points of law”, necessarily has an adverse affect on the prospects of success of an appeal to the Court of Cassation. Even though not of direct relevance to the present case, it is worth observing that where, as in Gnahoré , appellants are permitted to pursue their proceedings in the Court of Cassation despite being refused legal aid, the court will necessarily have a “preconception” of the merits of the grounds of appeal, putting such appellants at a disadvantage in comparison to appellants who have not applied for legal aid. In addition, even in cases in which parties are permitted to pursue proceedings before the Court of Cassation without representation by a specialised lawyer, the real prospects of their being able to do so on equal terms needs to be put into its proper perspective for, as the President of the French Court of Cassation has observed: “Statistically, the prospects of success of an appeal to the Court of Cassation are far higher if the appellant is assisted by such an officer of the court.” [G. C anivet , “The system of justice and fair trials”, Juris-classeur périodique , Study, I 361, no. 46, 14 November 2001 , p. 2089]

6. One of the arguments raised by the Government ultimately amounts to consigning litigants to a vicious circle. The Government state that the letters sent by the applicant to the Legal Aid Office showed that she had at no stage set out her reasons for appealing to the Court of Cassation or, a fortiori , any ground of appeal on points of law, despite the fact that Article 33 of the decree of 1991 required applicants for legal aid to set out “the purpose of the application and a brief summary of the reasons”. The Government concluded: “Quite obviously, the authorities responsible for examining the application for legal aid were obliged in the absence of any indication of the ground of appeal on points of law to rule that there were no arguable grounds of appeal” (see paragraph 18 of the judgment). Unless one considers the drafting of an arguable ground of appeal on points of law to be within the grasp of all litigants, quod non , it seems perverse to suggest that the applicant, who was unassisted by counsel, was to blame for her inability to formulate an arguable ground of appeal to the Court of Cassation. It is precisely the technical and highly specialised nature of proceedings in the Court of Cassation that justifies, in our view, requiring appellants to seek the assistance of members of the Conseil d'Etat and Court of Cassation Bar.

These, in essence, are the reasons why we are unable to share the opinion of the majority and consider that there has been a violation of Article 6 § 1 of the Convention in the present case. We believe that the time has now come for the Court to make a fuller commitment, pursuing the liberal line it first took in 1979 in Airey , to securing full and complete access to the law, and therefore to justice, for society's least well-off members.