DISSE NTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority in favour of finding that there had been no breach of the Convention, contrary to the reasoning adopted by the majority of the Chamber.  The majority consider that the Assize Court ’ s refusal to take formal note of Mrs M. ’ s written statement was such as to put in doubt, at least to Mr Remli ’ s mind, the court ’ s impartiality within the meaning of Article 6 (art. 6) of the Convention.

As the basis for reaching this conclusion the Chamber takes the text of Mrs M. ’ s statement, worded as follows:

"I, the undersigned Mrs [M.], declare on my honour that I witnessed the following facts:

I was at the door of the court at about 1 p.m., next to a group of people.  From their conversation, I chanced to overhear that they were members of the jury drawn by lot in the Merdji [ and] Remli against Pahon case.

One of them then let slip the following remark : ‘ What ’ s more, I ’ m a racist. ’

I do not know that person ’ s name, but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge ’ s left.

Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital, but being at the court ’ s disposal if it proves essential to call me as a witness, I have drawn up this statement to be used for th e appropriate legal purposes."

It also takes into account the Assize Court ’ s judgment, wh ich gave the following reasons:

"...

According to the handwritten statement of a Mrs [M.] of 13 April 1989, one of the members of the jury in the present case said ‘ What ’ s more, I ’ m a racist ’ at the do or of the court at about 1 p.m.

According to this statement and the written submissions, these words were spoken before the beginning of the first hearing in the instant case and not in the presen ce of the judges of the Court.

The Court is thus not able to take formal note of events alleged to have occurred out of its presence.

..."

Admittedly, the Chamber indicates in paragraph 47 that it is not ruling on the evidential value of the statement, but it accepts it as to date and content, at the risk of contradicting itself.  In so doing, the Chamber admits, at least by implication, that the alleged remark was made on 12 April 1989 and thus called for a response from the Assize Court .  But the text of the statement cannot be glossed or interpreted. Taken as it stands, it means that the remark was heard on the 13th. On the 12th it was physically impossible for Mrs M., at the door of the lawcourts before the hearing, to know that the person overheard was one of the jurors in the Remli case, since the drawing of lots did not take place until after 1 p.m. on the 12th.

Counsel for Mr Remli stated in his submissions that the remark had been made on the 12th, which is clearly a mistake.  On the 12th, moreover, it would have been possible to challenge the juror when the lots were drawn, as was done in the case of other jurors. On the 1 3th it was no longer possible. That being so, refusal to make an entry in the record was reasonable. At all events, on the 13th the defence had other means available to them for clearing up the difficulty, namely asking the presiding judge to exercise his discretion to order that Mrs M. should be heard, or else applying for evidence to be taken. If even those applications had been refused, the defence could have acted on those refusals accordingly, but for tactical reasons they decided otherwise. The Chamber (see paragraph 48) criticises the Assize Court for not having made any check. In so doing, it runs the risk of substituting it own assessment of the facts for that of the national court, especially as the nature and bearing of the "hypothetical" remark have not been made explicit in the judgment.  At all events, the impossibility of remedying such a situation is, in the Chamber ’ s view, the basis of the ruling that there has been a violation.  This seems to me to be open to criticism.

To support such reasoning, the Chamber would have had, in my view, firstly to rule on the failure to request a hearing to apply for evidence to be taken and secondly, and above all, to rule on the possibility which remained open to the defence of applying to the Criminal Division of the Court of Cassation for trial by another court on the ground of reasonable suspicion of bias.

This procedural step was looked at by the Chamber in the context of the objection as to non-exhaustion of domestic remedies in respect of its non- suspensive effect, but was not dealt with in the context of the appropriate remedy for counteracting, if necessary, any risk of non-impartiality or even o f an appearance of partiality.

Admittedly, an application for transfer on the ground of reasonable suspicion of bias would not have had a suspensive effect. Admittedly, if it had been allowed by the Criminal Division of the Court of Cassation, the resulting decision would have been directed at the whole court , not only the impugned juror.

But for the purposes of Article 6 (art. 6) of the Convention the remedy for any lack of impartiality may result from an application directed against the court as a whole and not exclusively from one directed against a single judge or juror.

At all events, the Chamber was under an obligation to rule on this point and on the possible outcome of lodging an application for trial by another court on the ground of reasonable suspicion of bias.  Furthermore, in the instant case, there was nothing in the domestic proceedings to establish that the remark, if it was made, would have been decisive for the court as a whole and for the jury ’ s vote (see paragraph 44 of the judgment).

The doctrine of appearances in relation to Article 6 (art. 6) of the Convention must not be taken to extremes.  In the instant case the Chamber seems to me to have deviated from the Court ’ s traditional line in not taking account of domestic remedies which make it possible to deal at least at last instance with any risks that the rule of impartiali ty has not been complied with.