DISSENTING OPINION OF JUDGE BAKA

I maintain the view expressed in the dissenting opinion in the Melin case that "in criminal matters, the State must ensure that the accused is officially informed of the essential and decisive steps and elements also in cassation procedures, and it cannot put the burden in this respect entirely on the accused or convicted person". In the present case, however, I am unable to share the opinion of the majority that there has been a violation of Article 6 of the Convention (art. 6).

This case is clea rly distinguishable from Melin . In the Melin case the judgment which the applicant sought to have challenged before the Court of Cassat ion had not been served at all. Without it Mr Melin , who was not represented by a lawyer, was not in a position to prepare his memorial setting o ut the grounds for his appeal. That was my main reason for dissenting from the majority of the Chamber in that case.

In the instant case, on the other hand, Mr Vacher was assisted by a lawyer dur ing the whole legal procedure. His lawyer should have been aware o f the procedural requirements. A lawyer cannot legitimately plead ignorance of such important rules.

Furthermore, French law, as far as the time-limit for filing pleadings in support of an appeal to the Court of Cassation is concerned, formerly made a clear distinction between parties who were represented by a certain limited number of lawyers having the exclusive right to plead before that court and those who were not so assisted. The first category of appellants had a time-limit for filing pleadings, while no precise time-limit was set for those who were not assisted by this special body of lawyers.

However, although the former French rules gave certain appellants some procedural advantage, this could not justify complete inactivity on the part of the appellants. In the present case, Mr Vacher did not show the necessary diligence during the appeal procedure, even though the period available to him for filing a pleading was significantly longer than for appellants with legal representatives qualified to represent them before the Court of Cassation. If Mr Vacher was aware of the average time taken by the Court of Cassation to hear an appeal, as suggested by the majority (see paragraph 27 of the judgment), he would - with a little diligence - also have known the starting-point of the prescribed ten-day period after which the court could rule on the appeal or at least how to find out when the appeal would be heard.

Accordingly, I find no violation in the present case.

[1] The cas e is numbered 64/1995/570/656. 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] R ules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-VI), but a copy of the Commission's report is obtainable from the registry.