CONCURRING OPINION OF JUDGE LOPES ROCHA

(Translation)

I concur in the finding that there has been a breach of Article 6 para . 1 (art. 6-1) of the Convention, but I cannot agree with all of the reasons set out in paragraphs 31 and 32 of the judgment.

As is clear from paragraph 14, the opinion of the Deputy Attorney-General, which the plaintiff was unaware of, did not adduce any new argument in support of dismissing the appeal. It did no more than point out that the plaintiff ’ s arguments had already been considered in the Court of Appeal ’ s judgment, which was sufficient in itself as regards the reasons given for it, and that any further consideration was therefore unnecessary.

The fact, on its own, that it was impossible for the applicant to have knowledge of the content of the Deputy Attorney-General ’ s opinion before judgment was delivered and to reply to it does not suffice for it to be found that there has been a breach of Article 6 para . 1 (art. 6-1) as is held in paragraph 31.

The finding of a breach should, rather, be based on all the circumstances of the case.

What must be assessed from the point of view of a breach of the right to a fair hearing is the fact that the member of the Attorney-General ’ s department attended the Supreme Court ’ s private sitting without the plaintiff ’ s being able to be present, which afforded him an additional opportunity to bolster his opinion in private without fear of contradiction.

Admittedly the member of the Attorney-General ’ s department was not a "party" in the technical meaning of the term in procedural law.  But his intervention in support of the Court of Appeal ’ s decision, combined with the fact of his presence at the Supreme Court ’ s sitting, even if he had no kind of say, whether advisory or any other, must amount to a procedural disadvantage for the plaintiff.  The latter found himself in the position of having to argue simultaneously against the opposing side and a public entity, both united in denying the right that he was seeking to claim in the Supreme Court; that situation reflected a manifest inequality and thus infringed the right to a fair hearing, seeing that in law fairness is a concept which takes account of the spirit of the law rather than the letter of it.  Furthermore, the concepts of fairness and equality are equipollent.

In short, the situation of inequality was incompatible with the requirements of fair proceedings within the meaning of Article 6 para . 1 (art. 6-1) of the Convention.

[1] The case is numbered 21/1994/468/549.  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.