DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGE RUSSO

(Translation)

I have not voted with the majority in favour of finding a vi olation of Article 6 (art. 6). The analysis which led them to their decision seems to me to be contrary to the Court ’ s case-law and to introduce a difference in the appraisal of the procedural systems of the member States.

The European Court has accepted that in proceedings at a third level of jurisdiction strict time-limits for bringing appeals and lodging pleadings could be imposed by the codes. It did not require a public hearing where the written procedure was adversarial or where the possibility of adversarial process was available to the parties. The European Court has accepted, as indeed it is obliged to by the Convention, the legalism and formalism which have been the essence of the codes of procedure in Continental-law countries since the beginnings of Romano-Germanic law, and under the subsequent influence of Jhering . In those systems, time-limits are necessarily laid down for bringing appeals and for lodging pleadings.

The requirement laid down by Article 6 (art. 6) is that those time-limits should be known. In the present case they were set out in the Code, and clarified in the standard case-law.

In comparison with court systems in which there is a third level of jurisdiction, the purpose of the French system of appeals on points of law is to have judgments set aside where the courts below have erred in law, but not to have the facts of the case retried (Article 591 of the Code of Criminal Procedure).

Admittedly, there was some ambiguity in the provisions of the Code of Criminal Procedure. In criminal proceedings the legislature had sought to give an advantage to appellants on points of law who were not represented by a member of the Conseil d ’ Etat and Court of Cassation Bar (exemption from the requirement that they be represe nted by a member of that Bar). In practice, appellants in criminal proceedings were allowed to file pleadings in support of their appeals on points of law up to the date of the hearing, in other words beyond the expiry of the time-limits laid down by Articles 584 and 585 of the Code of Criminal Procedure, whereas an appellant represented by a member of the Conseil d ’ Etat and Court of Cassation Bar must file his pleadings within the t ime set by the reporting judge. The time ‑ limit for appealing on points of law is specified and the time-limit for filing a pleading follows from those provisions.

However, an appellant who is not represented by a member of the Conseil d ’ Etat and Court of Cassation Bar does not receive notice of the hearing from the registry and thus remains unaware of the hearing date. On this point the former legislation was open to criticism in that such appellants were unassisted. The Code had not made express provision for cases where the appellant was a practising lawyer or was represented by a member of the ordinary Bar. That is why the European Court held that there had been no violation of Article 6 (art. 6) in the Melin judgment, Mr Melin having previously been a lawyer and having worked in the chambers of a member of the Conseil d ’ Et at and Court of Cassation Bar. In Mr Vacher ’ s case, the applicant had been assisted by a lawyer who had represented him and had prepared the pleading.

In this case the Court should, in my opinion, have adopted the same reasoning as in the Melin judgment, even though that judgment also dealt with other complaints made by Mr Melin under Article 6 (art. 6) (see paragraph 26 of the Vacher judgment).

Because of that assistance, Mr Vacher was in a better position to take all appropria te steps to file his pleading. The member of the ordinary Bar was not entitled to rely on the fact that judgments of the Court of Cassation are often delivered three months after the appeal in c riminal proceedings. He could not have been unaware that judgments may b e given within a month or two. Yet the pleading was not filed until 14 August 1991, that is to say seventy days after the appeal was lodged (28 May), the Court of Cassation having delivered judgment on 6 August 1991.

The reasoning of the European Court should, in my opinion, have taken into account the difference between the situation of an unrepresented appellant and that of an appellant advised by a legal practitioner.

Admittedly, the practice of not giving notice of the hearing date to an appellant not assisted by a member of the Conseil d ’ Etat and Court of Cassation Bar may be regretted. But that fact was not sufficient in the present case, and in the circumstances referred to above, either to entail a finding of a violation of Article 6 (art. 6) or for adopting a different conclusion from the one reached in the Melin case.

The argument as to foreseeability and legal certainty turns upon whether or not the party is advised by a lawyer.

Familiarity with the time-limits is one of the elementary requisites of practice at the Conseil d ’ Etat and Court of Cassation Bar, whose members have a monopoly.

Where a party forgoes the assistance of a member of the Court of Cassation Bar and retains a member of the ordinary Bar instead, that lawyer is able to find out what the relevant time-limits are.

The European Court cannot, therefore, reason by speculating on the litigant ’ s ignorance, for that would be to affirm a dangerous principle, namely that not being assisted by a lawyer would make it possible subsequently to rely on the unforeseeability of the rule; what an invitation that wo uld be to dishonest litigants! Either the procedural system is clear to professional advisers and complies with Article 6 (art. 6), or the system of time-limits is "unascertainable" even by practitioners. Only in the latter case can the eventuality of a violation of Article 6 (art. 6) arise.

The second reason for this dissenting opinion relates to the consequences fo r legal theory. The Court would be creating the risk of having different procedural requirements for:

( i ) the appeal systems of States which make appeals – whether on facts and law or on points of law only - subject to judicial leave or even do not allow an appeal on points of law after an initial ordinary appeal or provide an imprecisely defined remedy of "judicial review"; and

(ii) systems in which appeals - whether on facts and law or on points of law only - can be brought freely, subject only to compliance with formal requirements and time-limits.

The former would be less vulnerable to review by the Court, whereas the latter would always be vulnerable in the eyes of legal writers who challenge the formalistic procedural machinery of Continental law. To my mind, there is nothing in the European Convention on Human Rights to authorise such a divergence in the interpretation of Article 6 (art. 6).

In my view, the Chamber is wrong to say in paragraph 28 of the judgment that putting the onus on convicted appellants to find out when an allotted period of time expires is not compatible with the "diligence" requi red of the Contracting States. In the French system the point at which the time allowed for filing an appeal on points of law starts to run is clearly set out. Thereafter, it is for the convicted appellant to find out the details of procedure, the main provisions of which are already contained in the procedural code.

Such difficulties have ceased to arise since the Law of 24 August 1993, which supplements Article 585-1 by providing a time-limit of one month after the date of the appeal on points of law for a pleading to be filed. However, that progress could not form the basis for finding a violation as States, in the spirit of the Convention, can always improve their national systems even beyond the r equirements of the Convention. As Jhering stated, procedural formalism is a safeguard for the citizen.