CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS AND CASADEVALL

(Translation)

As regards the applicant’s complaint that it was impossible to reply to the Government Commissioner’s submissions at the hearing, the Court observes: “Nor was it contested that the parties may reply to the Government Commissioner’s submissions by means of a memorandum for the deliberations, a practice which – and this is vital in the Court’s view – helps to ensure compliance with the adversarial principle” (see paragraph 76 of the judgment ).

Admittedly, we know that as things stand at present, the memorandum for the deliberations is intended mainly to afford an opportunity to raise any omissions on the part of the Government Commissioner and that it is not, as such, meant to guarantee compliance with the adversarial principle. While it therefore does not suffice on its own to guarantee compliance with that principle, the memorandum for the deliberations may, however, contribute to doing so; and no doubt it could so contribute even more if, without upsetting the fundamental balance proceedings in the Conseil d’Etat , the arrangements governing it were improved and the court were obliged to take it into account.

JOINT PARTLY DISSENTING OPINION OF JUDGES WILDHABER, COSTA, PASTOR RIDRUEJO, KŪRIS, BÎRSAN, BOTOUCHAROVA AND UGREKHELIDZE

(Translation)

1. The Court unanimously dismissed the applicant’s complaint that she had not received the Government Commissioner’s submissions in advance of the hearing, and was unable to reply to him at the end of it. But it was by a majority that it found a violation of Article 6 § 1 of the Convention on account of the fact that Government commissioners take part in the deliberations of the administrative courts of which they are members.

2. To our regret, we cannot concur in that conclusion of our colleagues or their analysis. In a subsidiary system of human-rights protection the Court should have left intact an institution that has been respected and acknowledged for over a century and a half and has succeeded in working for the rule of law and human rights, while preserving objective appearances.

3. The finding of a violation of the Convention rests on four main arguments, set out in paragraphs 79 to 86 of the judgment . Firstly, criticism is made of the fact that the Government Commissioner attends the deliberations but has no right to vote. Secondly, it is said that on account of that participation, the applicant did not enjoy procedural safeguards such as those which led the Court unanimously to dismiss the first complaint. Thirdly, it is said that the “doctrine” of appearances must come into play. Lastly, the Advocate General at the Court of Justice of the European Communities does not attend the deliberations.

4. We consider that all those reasons must be refuted.

5. In its first argument, set out in paragraph 79 of the judgment , the majority of the Court criticise the fact that the Government Commissioner participates in the deliberations without voting. That argument strikes us as being paradoxical. Would amending the rules to provide that the Government Commissioner votes on the draft judgment really be sufficient for his attendance at the deliberations to be given the Court’s blessing? Secondly, the last sentence of paragraph 79 adds that all judges must express their views in public – or none must. But that statement, which begs the question, is not based on any precedent of our Court and is not founded on any authoritative argument. It is an affirmation pure and simple, and is scarcely persuasive.

6. The second argument rests, in our view, on a false symmetry. We share the opinion of the majority of the Court that litigants in the administrative courts enjoy procedural safeguards since their lawyers can acquaint themselves before the hearing with the tenor of the submissions, can reply to them by means of a memorandum for the deliberations and are protected from the risk that the Commissioner may raise a ground not raised by the parties (see paragraph 76 of the judgment ). It was for that reason that the Court dismissed Mrs Kress’s first complaint. The majority of the Court infer that a litigant should enjoy similar safeguards in respect of the deliberations. Yes, but what does that mean? That the private party’s lawyer, or the representative of the administrative authority in dispute with that party, or both, should also attend the deliberations? They would be silent and passive, as the Government Commissioner is, and yet their presence would neutralise his own? Merely to imagine such possibilities is to demonstrate how unrealistic they are. We therefore consider that this argument is ingenious but contrived.

7. The Court’s third argument is based on the doctrine of appearances. According to that doctrine, justice must be seen to be done impartially (even though neither the applicant nor the Court itself has ever cast doubt on the independence or impartiality of the Commissioner or of similar institutions at supreme courts, as the judgment states in paragraphs 71, 79 and 82, and although the judgment states very clearly, in paragraph 73, “No breach of equality of arms has ... been made out”).

8. Many authors and even eminent judges of this Court have written that the doctrine of appearances, which is in any case not accepted to the same extent in all the legal systems represented in the Council of Europe, has in the past been pushed much too far, whether vis-à-vis the Court of Cassation in Belgium or France, the Supreme Court in Portugal or the Supreme Court of the Netherlands. Despite those criticisms, the majority go further still. It is illogical that the same applicant, who in no way calls in question the subjective impartiality of a judge or his independence (see paragraph 78 of the judgment ), may justifiably “have a feeling of inequality” if she sees him “withdraw with the judges of the trial bench to attend the deliberations held in the privacy of chambers” (see paragraph 81 of the judgment ). It is not only illogical; it is open to criticism, since any informed litigant, and at all events any informed lawyer, knows that the participation in the deliberations of someone who has publicly expressed his “ opinio juris ” is not, by the mere fact of his presence, going to increase the impact of that opinion on the judges who have to deliberate and vote. To hold any differently would be to insult the latter and impute to them a lack of independence and impartiality.

9. Even supposing that the doctrine of appearances finds acceptance, does a European court, relying on it, in a system based on subsidiarity and respect for national courts, have to dent the reputation of an institution that has functioned to general satisfaction for a century and a half, that plays a vital role in a State based on the rule of law and that has done substantial work on behalf of justice and human rights (see on these points paragraphs 41, 46-47 and especially 69-71 of the judgment )?

10. And have the limits of “European supervision” in relation to characteristic national institutions – which are legitimate so long as they fulfil their Convention obligations to produce a specific result – not here been reached or overstepped? In our humble but firm opinion, our Court has already gone very far in this area in the past (since Borgers v. Belgium , judgment of 30 October 1991 (Series A no. 214-B), in fact, which represented a departure from doctrine previously established in Delcourt v. Belgium , judgment of 17 January 1970 (Series A no. 11)), and the majority of the Grand Chamber in this case go too far, despite the first point of the operative provisions.

11. It is true that the majority resort to a fourth and last argument: at the Luxembourg Court, which made the Emesa Sugar order, according to which the institution of Advocate General is not incompatible with Article 6 § 1, despite Vermeulen v. Belgium ( judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I, Commission decision, p. 246, §§ 53-54), the Advocate General does not attend the deliberations. This is said to confirm the majority’s approach (see paragraph 86 of the judgment ). The Advocate General at the Court of Justice of the European Communities was indeed “closely modelled” on the Government Commissioner at the French Conseil d’Etat . But it is inappropriate to attach any decisive importance to the difference. The mere fact that in its order in the Emesa Sugar case the Court of Justice held that the office of Advocate General, whose holder does not take part in the deliberations, was compatible with fundamental rights does not mean that our Court had to hold that the Commissioner’s presence at the deliberations of administrative courts breached Article 6 § 1 of the Convention. Secondly, this incidental difference, which goes back to the 1950s, is certainly not due to some sort of condemnation of the French system by the Luxembourg Court, any more than it is to the fear of any incompatibility with the Convention, to which the judgments of the Court of Justice of the European Communities have referred only since 1975. Lastly, while it is satisfactory that both courts have reached the same conclusion in respect of the complaint which our Court has dismissed, there would be no flagrant contradiction if they condemned neither the Advocate General nor the Government Commissioner, irrespective of whether the latter attended the deliberations or the former did not.

12. In sum, we see no decisive reason to condemn – even on a point that some will deem minor – a system that has proved its worth and whose results, judging by the yardstick of the Convention’s objectives, have on the whole been more than satisfactory. We would venture also to draw attention to the determining influence of several Government commissioners, members of the Conseil d’Etat , in regard to the incorporation of the European Convention on Human Rights into the French legal system, whether in the matter of the Convention’s primacy over French law, even that enacted subsequently, or in the matter of the case-law on Article 8 and the law on aliens, on Article 10, on Article 1 of Protocol No. 1 and even on Article 6 § 1, in issue in the instant case.

13. The present judgment admittedly makes a praiseworthy effort to be pragmatic and realistic in very clearly dismissing the first complaint in the application. It is regrettable that that effort was not more thoroughgoing, and it would be desirable, in our view, that the Court should review the whole of its case-law on proceedings in supreme courts in Europe, case-law which places too much emphasis on appearances, to the detriment of respectable national traditions and, ultimately, of litigants’ real interests.