CONCURRING OPINION OF JUDGE COSTA

(Translation)

Not without some hesitation, I have found a violation of the Convention in this case.

Besides being novel, the issue before the Court was, to tell the truth, a delicate one.

The capacity of natural persons raises, as one would expect, issues of legal classification, but also questions of fact. Under French law as it currently stands, there exist persons whose capacity is in principle not in doubt, others whose incapacity is indisputable (unemancipated minors, adults under guardianship orders) and still others, such as persons under supervision, who come within a sort of intermediate regime. As regards the latter, the eminent legal writer, Carbonnier, spoke of semi-incapacity or, equally aptly, of semi-capacity. Since, in addition, the protective regimes are civil in nature and have no direct bearing on criminal procedure, one may have serious reservations about the need to provide an accused in criminal proceedings with assistance or representation on the basis of what I will venture to call his or her degree of incapacity.

For example, the law and judicial practice on minors are clear. Article 13 of the Ordinance of 2 February 1945 on Delinquent Children imposes an obligation on youth courts to hear the parents or guardians of juvenile defendants, and the Criminal Division of the Court of Cassation is strict in ensuring compliance with that statutory requirement.

In contrast, the statute book is silent about supervisors and there is no case-law on the subject. So far as I am aware, the nullity laid down by Article 510-2 of the Civil Code, cited in paragraph 29 of the judgment, does not extend to criminal proceedings. Indeed, the Government see the division of civil and criminal proceedings into “watertight compartments” as an argument in their favour (see paragraphs 44-45 of the judgment).

However, it seems to me that that is precisely where the real issue lies. Speaking generally, even though an adult under supervision can be presumed to be “less incapable” than a minor and is able to conduct some of his civil affairs, why, once a judge has appointed a supervisor for him, is the supervisor not informed of procedural steps of such potential importance as a summons to appear before a criminal court or service of a judgment, which starts time running for the purposes of appeal? That is not very logical.

In the present case, admittedly, there is room for genuine doubt about the degree of the applicant ' s incapacity, as there was, to say the least, a substantial change between the degree of impairment noted in the

psychiatric report of 16 September 1994 , on the basis of which the guardianship judge made the supervision order, and the psychiatric report of 22 September 1996 , which was requested by another guardianship judge shortly before the applicant ' s son was discharged from his duties as a supervisor. Nor can I believe that the applicant was, as he claimed before the Court, unable without assistance “to be informed in a language which he understands” (see paragraph 40 of the judgment) (besides, this linguistic requirement under Article 6 § 3 (a) of the Convention seems to me to be of marginal relevance in the instant case, as the applicant is French; but it is of little matter). However, it is one thing to understand the accusation, quite another to know how to react with regard to such matters as attending appointments, appearing at the hearing, obtaining assistance from a lawyer, and, if appropriate, appealing in time against conviction and sentence to a term of imprisonment...

As to the role of the supervisor, the case file shows that he was undoubtedly partly to blame (see paragraphs 27-28 of the judgment). However, it is speculative to suggest, as the Government do (see paragraph 48 of the judgment), that if the supervisor had been aware of the summons to appear “[t]here was nothing to support the affirmation that [he] would have managed to convince his father to appear at the hearing and subsequently to appeal”. It was for the national authorities to make it possible for the son to offer effective assistance to his father (an easy enough task for them in practice). By omitting to do so, they have in my opinion furnished the applicant with an irrefutable argument for criticising the fairness of the procedure that was followed.

I have therefore voted in the end in favour of finding a violation of Article 6 and it is my hope that the problem of the effects of legal protective regimes in criminal proceedings will be reconsidered. The Strasbourg Court is sometimes a catalyst for reform in the States that are parties to the Convention. The judgment in this case seems to me at the very least to have disclosed the existence of a problem.