JOINT DISSENTING OPINION OF JUDGES BERNHARDT, LOIZOU AND BAKA

We do not share the opinion of the majority of the Court that there has been no violation of Article 6 (art. 6) of the Convention. If the parties in a law-suit have, under national law, the right to further develop their arguments on the merits of a case during the oral hearing before the court of appeal, a fair trial requires that they have really been able to do so.

In the present case, there are strong and clear indications that the lawyers of the applicant did not orally plead on the merits before the Aix-en-Provence Court of Appeal, for the sole reason that the President of the competent chamber had indicated that they would have at a later stage an opportunity to do so. They did not, however, have such an opportunity. The Government have not been able to show that the evidence submitted in this respect by the applicant does not correspond to the real event.

For these reasons, we find that the applicant did not have a fair hearing as required by Article 6 (art. 6) of the Convention.

[*]  The case is numbered 25/1992/370/444.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 261-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.