CONCURRING OPINION OF JUDGE DE MEYER

( Translation )

As to the – fairly obvious – applicability of Article 6 of the Convention to the applicant’s complaints, we needlessly repeat in this judgment funest and false forms of words which have already served only too often in the past to interpret the rights guaranteed in this Article narrowly.

Firstly, it was unnecessary to ask ourselves yet again whether it could be “said, at least on arguable grounds,” that the alleged right was “recognised under domestic law” and whether the proceedings were “directly decisive” for that right [4] . Anyone who believes, rightly or wrongly, that he is entitled to assert a right must be able to put his case before a court, even if only to be told that he is mistaken.

Secondly, it was unnecessary for us to set out once again – in order to show that it was indeed civil rights that were at stake – considerations based strictly on the financial and economic aspect of the applicant’s complaints [5] . Many rights whose civil nature is not disputed by anyone, for example in the sphere of civil and family status, cannot be assessed at all in monetary or economic terms.

In the instant case it would have sufficed to hold that a criminal complaint accompanied by a civil-party application in itself implies bringing against the person or persons against whom it is directed a civil action for damages, joined to the criminal proceedings it is designed to set in motion [6] . If the words are to have any meaning, even interpreted very narrowly, the manifest object and purpose of a civil action is to secure the “determination of … civil rights” [7] .

In any case, reparation, like the damage itself, does not necessarily have to be financial or economic. It may just as easily be purely non-pecuniary, like that represented by nominal damages, often claimed by civil parties, or like that which this Court awards to an applicant, as it has done in the instant case, by holding that its judgment in itself constitutes just satisfaction [8] .

PARTLY DISSENTING OPINION OF JUDGE PETTITI

( Translation )

I voted in favour of holding that there had been a violation of Article 6 as regards the part of the application relating to the applicant’s second complaint, alleging burglary.

I did not vote with the majority on the applicability of Article 6 or the violation they found of it as regards the part of the application concerning the first complaint.

I consider that the Chamber was wrong to accept that there had been a violation, and that it misunderstood domestic law on this point and has altered the interpretation of the European Convention and the Court’s case-law without even referring the case to a Grand Chamber.

The European Court’s decision in respect of the first complaint contains two manifest factual errors, in my opinion.

(1) The gendarmes referred to as having committed the offences in each complaint were not the same ones, so therefore no link was constituted.

(2) The Legal Aid Office’s final refusal in respect of the first complaint was not based on the inadmissibility ground for its initial refusal (on account of the proceedings pending in the Court of Cassation) but came after the appeal on points of law had been dismissed because the grounds of nullity relied on by Mr Aït-Mouhoub had been rejected.

The Legal Aid Office’s decision was thus based on the application’s being ill-founded (section 22 of the Law of 10 July 1991 on legal aid), a matter within domestic jurisdiction.

It is clearly apparent from a mere reading of Mr Aït-Mouhoub’s two complaints that there were fundamental, essential substantive differences between them, both as regards their legal nature and as regards the facts themselves. I cannot understand the majority’s reading of them. To say that there is a link between the two complaints such as to justify giving the same ruling on both seems to me to be an error, as the burglary (second complaint) has nothing in common with the forgeries alleged in the first complaint.

If the first complaint is analysed in detail, it will be seen that its aim is to call in question the finality of the Court of Cassation’s judgment, which is not within the jurisdiction of the European Court.

The Court did not even mention the blatant lies told by Mr Aït-Mouhoub, who tried to deceive the Convention institutions. It was for him to raise in the Court of Cassation the alleged nullities that he relied on and which he said he knew about and could provide evidence of at the time, but

he did not do so. The majority’s decision departs from the case-law on the Convention and the previous interpretation of it, since it results in recognition of an unlimited right to legal aid on the ground of financial hardship , however fanciful the application may be. The Convention, however, does not prohibit States from refusing legal aid where the application is manifestly ill-founded, a criterion adopted by the European Commission when ruling on admissibility.

This was certainly the case in this instance as regards the first criminal complaint, when the Legal Aid Office, on the second occasion, after the decision on the appeal on points of law, rightly refused legal aid.

The majority did not appreciate that the French system was a mixed one, it being open to the judge to set security for costs or to decide to waive it, and to the Legal Aid Office to grant legal aid or to refuse it.

It is obvious that if the Legal Aid Office grants legal aid to someone who is destitute, the security set by the judge is paid by the State.

The majority’s decision appears to me to be all the more unsatisfactory as most member States of the Council Europe do not have a scheme for granting legal aid as accessible as France’s and those that do similarly refuse legal aid in “manifestly ill-founded” cases (see Commission decisions on other applications).

Furthermore, several member States do not afford individuals the possibility of setting a prosecution in motion and other member States do not provide for a criminal complaint together with a civil-party application.

Is there a two-tier Europe in the field of human rights when it comes to procedural requirements?

The first complaint, regarding the alleged “forgeries” of which the police officers were accused, obviously called in question the finality in domestic law of the Court of Cassation’s judgment, which is binding on the European Court unless the latter finds that the Court of Cassation committed a violation of the Convention.

Only a retrial at national level can call in question a matter that is res judicata , by means of the procedure provided in the national code. That procedure is, moreover, free.

If there had been a forgery , Mr Aït-Mouhoub or his lawyer should have raised the matter in the Assize Court or, at the latest in the Court of Cassation, with supporting documents, instituted the retrial procedure on the grounds provided for in the code, all of which are compatible with the Convention.

In the instant case the applicant never used those means and did not produce any document or so much as a scrap of evidence to support his a priori defamatory allegations. He used no means to this end in the Assize Court or in the Court of Cassation.

The applicant, who himself claimed to hold all the documentary and witness evidence at the time, did not produce any. He did not even set out the references, whereas all legal-aid offices in Europe require at least some brief indications.

Granting legal aid for the first complaint would have resulted in creating an additional ground on which a retrial can be granted in domestic law, and that has never been required by the Convention. Furthermore, the Convention has never conferred a right to automatic retrial after a conviction. Moreover, an allegation of forgery against civil servants cannot be relied on and used without even the slightest piece of credible evidence being adduced. There is no serious dispute within the meaning of the European Court’s case-law.

If the Court wished to interpret the Convention in such an extravagant way for the first time, through a Grand Chamber, it would first have to answer the following questions:

Under Article 6 of the European Convention:

Is the State obliged to grant legal aid in all cases?

Can it impose restrictions on such a grant?

Is it entitled to organise the arrangements for examining legal-aid applications and accepting them?

Can it refuse legal aid where an application is manifestly ill-founded?

Is it entitled to take no action on a complaint that is an abuse of process?

Must the State in all cases of serious criminal offences allow a private individual to set in motion a public prosecution, which is the privilege of the State (several member States do not even allow individuals to set in motion criminal proceedings by means of a complaint and civil-party application in cases similar to Mr Aït-Mouhoub’s)?

A prior comparative-law study would have been necessary in order to adopt such an exponential view. A comparative study would also have shown that in the average member State legal aid is non-existent in practice or derisory or is provided for to only a very limited extent, even if only for pressing budgetary reasons. It would have been instructive to have the statistics. Belgium and France are certainly among the States which grant legal aid and ensure access to the courts and to justice in a maximum number of cases, unlike some other member States. The finding by the Chamber that there has been a violation of Article 6 as regards the second criminal complaint containing the allegation of burglary was amply sufficient in terms of the European Convention’s requirements.

[1] Notes by the Registrar

. The case is numbered 103 / 1997 / 887 / 1099 . The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.

[4] 1. See paragraph 43 of the judgment.

[5] 2. See paragraphs 44, 45 and 47 of the judgment.

[6] 3. See Articles 2 and 85 of the Code of Criminal Procedure, quoted in paragraph 32 of the judgment.

[7] 4. See the English text of Article 6 § 1 of the Convention.

[8] 5. See point 3 of the operative provisions.