DISSENTIN G OPINION OF JUDGE LOPES ROCHA

(Translation)

I regret that I do not agree with the majority as r egards the merits of the case.

Like Judge Pettiti , I believe that in the instant case there is nothing to show that the remark attributed to the juror in question could have thrown any doubt on the impartiality of the Assize Court as a whole; even supposing that the remark was actually made, it did not suffice to call the court ’ s impartiality reasonably in question.

Such a remark, taken out of a context whose details and particular circumstances are unknown, might only have been a "joke". It does not necessarily demonstrate bias capable of influencing the vote of the person who made it at the stage of the collegiate court ’ s decision.

As Judge Thór Vilhjálmsson points out in his dissenting opinion, the complaint is of such triviality in the light of all the facts of the case that it cannot reasonably be convincing as to the existence of a breach of the right to an im partial tribunal.

This is why, in my view, there has not been a breach of Article 6 (art. 6) of the Convention.

DISSENTING O PINION OF JUDGE MIFSUD BONNICI

1.   In considering the procedural possibilities open to the applicant after his advocate was informed about the words allegedly heard by Mrs M., I formed the opinion that the application should fail because the domestic procedural remedies had not been exhausted before recourse was had to the Convention organs.

2.   The jury of nine and two supplementary jurors had been empanelled and the Assize Court had already begun to hear witnesses. According to the rules in the French Code of Criminal Procedure, at that stage, it was not possible to challenge a juror.  The applicant therefore correctly requested the court to take formal note of the incident reported by Mrs M.  The court did not accept the request to investigate the allegation but nevertheless ordered that the advocate ’ s written submissions and Mrs M. ’ s statement should form part of the record of the tr ial.

3.   At this stage of the trial the applicant could have considered the provisions of Article 662 of the Code of Criminal Procedure (paragraph 23 of the judgment) enabling him to apply to the Court of Cassation to move the case to another trial court on the ground of reasonable suspicion of bias.  This was possible because of the Assize Court ’ s decision to include in the record of the trial Mrs M. ’ s statement and the written submissions of the defence.  The order of the Assize Court , in fact, could have no other practical purpose but this, taking into account the terms of the domesti c rules of criminal procedure.

4.   It is of course true that the jurisprudence of the Court of Cassation was in the sense that such a request will not be granted unless the suspicion of bias covers the whole composition of the court and not only one of its members, but I consider that the Court of Cassation should have been put in a position to review its jurisprudence in the matter against the background of the Convention rules which now have to be taken into account by the French courts. The doctrine of precedent is not p art of the French legal order.

5.   It may be objected that this expects too much from the applicant.  However, I am of the opinion that this is the spirit of Article 26 (art. 26) of the Convention, which stipulates that all possible domestic remedies have to be exhausted before recourse is had to the Convention ’ s judicial organs.  Every Contracting State has to be given all possible opportunities "of preventing or putting right the violations alleged" as stated in Cardot v. France judgment of 19 March 1991 (Series A no. 200, p. 19, para . 36), which was preceded by the dictum in De Wilde, Ooms and Versyp v. Belgium (judgment of 18 November 1970, Series A no. 12, p. 29, para . 50) "to put matters right through their own legal system".  Given the rigidity of the rules of the French Code of Criminal Procedure, I am of the opinion that the application of Article 26 (art. 26) was more impellent than ever, in a matter such as the one under consideration, which, potentially, can be taken to be of not infrequent occurrence in criminal trials before assize courts in France . My view of the matter is strengthened by the further consideration that the Assize Court could have easily replaced one juror by a supplementary one unless it felt that it could not do this within the ambit of the Code of Criminal Procedure unless directly or indirectly, by implication, it had a direction by, or through, a decision of the Court of Cassation.

6.   Taking all this into consideration, I could not proceed further into the case as it appears to me to be disproportionate to consider, even if one were to concede that one out of nine jurors sitting with three judges in the trial nurtured a generic racial prejudice, that this should lead to the conclusion that the trial was not "fair" because the court was not "impartial".  The circumstance, in my opinion, when considered against the background of the proceedings taken as a whole (see Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para . 68), does not justify a holding of a violation of Article 6 para . 1 (art. 6-1) of the Convention.

[1] The case is numbered 4/1995/510/593.  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 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), but a copy of the Commission's report is obtainable from the registry