13 Audi et alteram partem·, a limit to judicial activity

Daan Asser

In 1966 Peter Stein, at that time Professor of Jurisprudence at the University of Aberdeen, published his excellent book Regulae Iuris, subtitled From Juristic Rules to Legal Maxims.

The principle audi et alteram partem, which, in the Common law, is regarded as one of the rules of natural justice,¹ is not only self-evident but also - and perhaps for that very reason - valid for all time, as John Kelly showed some years ago.²

Therefore, the fact that we can hardly find any text in the Corpus Iuris Civilis which explicitly refers to it³ should not lead us to the conclusion that the Romans did not recognise this principle.⁴ There is much evidence in sources outside the Corpus Iuris confirming that such a principle was held by philosophers and jurists, as Kelly has convincingly shown. In

¹      The other rule is nemo iudex in causa sua. See H. H. Marshall, Natural Justice (London, 1959), 5,17-20 (a historical survey), and 53ff.; J. A. Jolowicz, ‘Fundamental Guarantees in Civil Litigation: England’, in Μ.

^{color=black face="Times New Roman">2}       J. Μ. Kelly, ‘Audi alteram partem’ (1964) 9 Natural Law Forum 103. See also Μ. Uhlhom in Handwörterbuch zum deutschen Rechtsgeschichte, vol. IV (London, 1990), s.v. Rechtli­ches Gehör.

³       Kelly, ‘Audi alteram partem', 105-6. See, however, D.48.17.1 pr. regarding criminal law.

⁴        See Μ. Kaser, Das römische Zivilprozessrecht (Munich, 1966), 9 and 275, where he says that in formulary proceedings one adhered strictly to certain principles of procedure ‘die die Römer vielleicht nur deshalb nicht formuliert haben, weil sie sie als Voraussetzungen einer sachgemässen Rechtspflege für selbtsverständlich hielten. Hierzu zählt etwa der Grundsatz des “beiderseitigen Gehörs", demzufolge beiden Teilen angemessene Gelegen­heit zur Äusserung geboten werden muss.’ addition I would submit that in the classical civil procedure the import­ance of litis contestano, which could only be achieved by both parties, and the severe consequences of the defendant’s remaining indefensus,^[438] may have meant that normally a judgment would not have been given without the defendant having been given the opportunity to put forward his defence.

Furthermore, the Roman procedure, both classical and post-classical or Justinianic, was basically oral in nature, which meant that the judge would actually hear both parties. This would have guaranteed that both parties could fully give their views of the case. The nature of the Roman civil procedure may therefore have given little cause for concern in respect of the idea of audi et alteram partem.

There cannot be any doubt that the principle was also recognised throughout later ages, both in England^[440] and on the continent.^[441] So an ancient German saying goes: eines Mannes Rede ist keines Mannes Rede, man soll sie billig hören Bede (‘the word of only one man [i.e. a party] is no word at all; one should rightly hear them both’).^[442] And in an old manual on procedural law written by the Flemish author Philips Wieland,^{[443] [444] [445]} completed in 1519 and dealing with the procedural law of the courts of Flanders and the Supreme Court of the Low Countries at Malines, one may find several references to the right of the parties to be heard.

The same can be said of the later continental codes of civil procedure; the French Nouveau code de procédure civile is very explicit on this point,¹¹ as we shall see below, certainly as a result of the influence of Henri Motulsky, who was a real champion of the droit de la defense}²

In our modern western societies litigants are no longer the Crown’s subjects who humbly and patiently accept the wisdom of the sovereign’s courts.

This means that any party involved in a lawsuit should eventually have the feeling that he has had sufficient opportunity to bring forward all the facts and arguments necessary to convince the court of his view, and the court should have attained the conviction that it has been provided with all the elements necessary to reach a decision that would be satisfactory from a professional point of view.

It is for these reasons that the court has the obligation to hear all parties concerned, at least those who wish to be heard. They should have full opportunity to defend their interests in the case which, consequently, might be affected by the judgment that will be rendered. Only by respecting this right of all parties will the court be able to render an objective judgment, the result of carefully establishing the facts and weighing the rights and obligations as well as the interests at stake.

The principle of audi et alteram partem - in French le droit de la défense and in German the right to rechtliches Gehor'³ - to be taken in the broad sense, as I have just explained, has two aspects.

sa marque et conserverà sa mémoire.’ The new code became operative in 1975. See also J. Héron, Droit judiciaire privé (1991), 182, no. 247.

¹³       This right is guaranteed by art. 103 of the German Grundgesetz. the conduct of the case to the effect that the audi et alteram partem principle would be violated, for instance because the court feels that there is no need to hear one of the parties any further on a specific point, although that party should have been given the opportunity to express a view on it. Bias need not be caused by any specific interest of the judge in the outcome of the dispute, but may very well be the result of his coming to premature conclusions.

On the other hand the litigants have a right to equal and effective access to the court. They should be considered by the court as participants in the machinery of the legal procedure, hence as equals before the court, entitled to equal treatment by the court and to equal procedural rights and equally bounded by procedural obligations. They should be guaran­teed equality of arms, Waffengleichheit, as the Germans call it. It will be remembered that art. 14 of the International Convention on Civil and Political Rights of 1966 guarantees equality before the court.

To English members of the legal profession all this may seem unquestionable.

On the continent, however, the principle of audi et alteram partem, taken in the wide sense of the right to defend one’s interests in court, is much more liable to be neglected. In countries like France, Germany and the Netherlands, the court has a much more active role in the conduct of the proceedings. The character of the civil procedure in those countries may, it is true, not be as inquisitorial as is often thought in the world of the Common law - continental judges are not inquisitors. One may perhaps even maintain that the ordinary civil procedure is basically adversarial in so far as the parties have the ultimate control over the procedure and decide which questions are to be answered by the court. But given the more - and in some countries like France very - active role of the court especially with regard to fact-finding, the continental court should be especially aware of its obligation to hear both sides. This is the more so in those kinds of procedure that are basically of an ‘inquisitorial’ (as opposed to ‘adversarial’) character, such as proceedings with regard to certain matters of family law, in which the court may even of its own motion bring forward facts and evidence.^[447]

The problem is, I submit, that when a judge is, or feels, free to conduct proceedings in order to discover the facts necessary to the decision - in other words, to find the ‘truth’ - he runs the risk of descending ‘into the arena and is liable to have his vision clouded by the dust of the conflict’.^[448] ‘If he goes beyond this he drops the mantle of ajudge and assumes the role of an advocate.’^[449] This may be an overstatement, and that other rule of natural justice, namely that no man may be a judge in his own case (nemo iudex in causa sua^[450]) does not, strictly speaking, apply to such a situation, because the judge has no particular interest of his own in the outcome of the suit, but there is some truth in it. We all know that first impressions may play a decisive role in the formation of our ideas of how things are or should be. Hence the judge, pursuing what he thinks might be the ‘truth’, could become interested only in facts or arguments which would fit in with his own ideas, losing his professional readiness to listen to such arguments and to consider such facts when they are put forward by one of the parties. Thus a judge would create his own ‘truth’, so to speak. By doing so, even though he acts without malice and because he thinks that he is acting purely for the benefit of justice, he leaves far behind his duty to decide the case as presented to him by the parties. In fact this judge has already decided the case and is only collecting facts and arguments to ground his decision.

These observations are not entirely academic. Apart from the more ‘inquisitorial’ forms of civil procedure that we have mentioned before, certain continental systems,^[451] unlike the English system,^[452] do not know orality and ‘immediacy’ as fundamental features in ordinary civil pro­ceedings.²¹ The fact-finding stage, which is fully controlled by the court itself, or rather by one of its members on its behalf,²² is separated from the debates by an interlocutory judgment of the court.²³ This may involve the danger that the court, by developing in its interlocutory judgment a certain line of thought even before all the relevant facts have been proved and established, neglects the principle of audi et alteram partem, with the result I have indicated above. However, I would like to stress that the high degree of professionalism of the judges in many continental countries will minimise this danger.

Now when a court, and I am speaking of continental courts especially, is in search of the ‘truth’, whatever ‘truth’ it may envisage, it is so because it wishes to deliver a judgment which is in accordance not only with the law but also with such a wide concept as ‘justice’ - something which is, I would say, the result of a combination of law in the broadest sense, professional experience, judicial intuition and ordinary common sense. Since law and justice concern the society as a whole, the court will, rightly, I think, intend to try the case on a realistic basis. A trial should not be a mockery. Imaginary cases should not be heard.²⁴ This may be regarded as a matter of public interest. Perhaps the continental courts have in this respect a stronger tradition of being inquisitive, literally speaking, than the English courts. But apart from the fact that the tradition is, as it is, not contrary to audi et alteram partem, the idea that

²¹       It should be pointed out that criminal proceedings on the continent are similar to the

English system.

²²        In this respect the continental systems differ fundamentally from the English pre-trial machinery, in which the master gives directions and makes orders as to the preparation for trial but ‘has no direct role or function to play in connection with the trial itself’; see Jacob, English Civil Justice, 112-13.

²³        This judgment should not be compared with an interlocutory order in the English pre-trial phase, by which the court often decides on the burden of proof, on what facts have to be proved, and by which it orders the measures concerning the taking of evidence such as the hearing of witnesses or experts. The interlocutory judgment may already contain judgments as to questions of fact and of law. In France the taking of evidence may also be introduced by a simple court order (art. 151 of the Nouveau code de procedure civile). Although such an order does not prejudge the main issue, the choice by the court of the way by which evidence should be taken (le choix de la mesure d’instruction), may, however, already reflect the ideas the court has with regard to the merits of the case. In this sense see H. Solus and R. Perrot, Droit judiciaireprive, vol. Ill (Paris, 1991), no. 738.

²⁴        Sometimes serious issues may underlie such actions. Some years ago people opposing Nato’s deployment of cruise missiles in Holland, which had been approved by the Dutch Government and Parliament, started various civil actions on the basis of invented facts in order to get a judgment by which the Government’s policy would be declared unconsti­tutional. These claims, based on a most ingenious contrivance, were of course recognised to be false, and were for that reason dismissed. The Dutch Hoge Raad, assessing the true cause of action, assumed that the claimant did not intend to have a genuine dispute with his opponent determined, but only to elicit a judgment from the court on the constitution­ality of the deployment of cruise missiles. See HR 27 June 1986. Nederlandse Juris- prudentie, 1987, no. 354.

civil justice is, or at least should be, concerned with ‘real’ cases is undoubtedly also held in England, much as the proceedings are different.^[453]

In this respect it is important to remember that it is generally accepted that the parties have the right to determine the issue at stake, that is to say the facts that are in dispute and those that are not. The court should not base its decision upon facts which have not been alleged by the parties or one of them and which cannot be found in any document produced by them.^[454] However, this does not always mean that the court may only make use of facts to which the parties have expressly made reference.

This is the case in France, where art. 7 of the new Code of Civil Procedure allows the court to take into consideration facts which the parties have not particularly referred to in support of their claim or defence. It may occur, for instance, that facts can be found in documents or by examining witnesses,^[455] without the parties having especially referred to that fact, although the court regards it as relevant or perhaps even decisive. In the English system of pleading this will not happen frequently, since it is the parties who, by pleading the material facts, decide which facts may be considered as such and which may not.

Now when a court finds such facts, the question arises whether it should confront the parties explicitly with such material, before basing a decision on it. This may be illustrated by the following example. A plaintiff claims payment of a commission of 10 per cent for bringing about a certain transaction. That claim is denied by the defendant, who alleges that there had been no transaction of that kind or any other transaction which could give ground for the claim. The court rules that there is evidence in the written contract, produced by the plaintiff, that the parties had agreed on a percentage of 7 per cent for the kind of transaction at issue. Since the defendant had neither admitted nor denied the alleged 10 per cent, the court felt free to sustain the claim to a maximum of 7 per cent, assuming that the plaintiff had made a mistake.

The question is whether the court was allowed to do so without previously confronting the parties with that fact and giving them an opportunity to give their views on it. The danger of a court following this line is that it might happen to be that the parties had actually agreed on 10 per cent and that the document was wrong or outdated by a later agreement. It is in fact a question of audi et alteram partem: the parties have the right to give their views on such facts as the court finds essen­tial.^[456] Similar situations arise where the court bases its judgment upon knowledge of its own. It may have acquired certain knowledge or tech­nical know-how from similar cases in the past or particular knowledge with regard to the parties from earlier proceedings concerning them. In situations like this courts should be careful not to use such knowledge too readily without first hearing the parties on that particular point.

So far we have discussed the question to what extent the principle of audi et alteram partem sets a limit to the court’s activities in the field of finding facts and the ‘truth’. Another field where the principle should play a role is in what is traditionally regarded as the territory where the court has an exclusive competence: the field of the law. lus curia novit, ‘The court knows the law’, is a well-known maxim which shows that it is the court’s duty to ‘find’ the law applicable to the facts presented by the parties: da mihi factum; tibi dabo ius - ‘Give me the facts and I shall give you the law’ - is another famous maxim that says virtually the same.^[457] Or, as art. 12 of the French Nouveau code deprocédure civile provided, ‘le juge tranche le litige conformément aux régles de droit qui lui sont applic- ables’.^[458] Of course the parties will ‘help’ the court in finding the law. They are in no way excluded from presenting and discussing questions of law.title="">^[459] For how can they ever be sure that the court really knows the law? But in the end it is the court that will make clear what the law is: ‘le juge doit rester maitre de la règie de droit’.^[460]

Now one may ask whether this ius curia novit principle would allow the judge to base his judgment upon rules of law which the parties did not consider relevant and which, consequently, they did not discuss. Should they not be given the opportunity to do so before judgment is rendered on the basis of such rules of law? The question has significance in view of the principle of audi et alteram partem, especially since anyone who is familiar with the practice of law would admit that in many cases questions of fact cannot be separated neatly from questions of law, even, as I would say, in the English system of pleadings, where the pleader must know the applic­able law before being able to discern which facts are material and which are not.³³ There cannot be any doubt that all proceedings are, in the end, concerned with the law, because the plaintiff does not start proceedings to obtain a verdict on the facts only, but to get a decision in respect of what he pretends to be entitled to according to the law. So the plaintiff, or rather counsel, will mould the mass, or sometimes chaos, of facts into a coherent body consisting of legally relevant facts which should enable him to win his case. This view is expressed clearly by the French authors Solus and Perrot in their manual on civil procedure:³⁴

Lorsqu’un demandeur (ou mème un défendeur) formule une pretention, il n’invo- que pas seulement une masse de faits neutres: s’il saisit un juge, c’est pour lui demander, à partir des faits qu’il lui expose, la reconnaissance d’un droit dont il se prétend titulaire, en fonction précisément de la règie de droit ou d’un principe juridique qui lui paraìt devoir justifier sa pretention: autrement, comment pourrait-il se découvrir un droit digne d’une protection judiciaire? Et inversement, la selection des faits par le demandeur est souvent commandée par les presupposes de la règie de droit qu’il estime, à tort ou à raison, devoir s’appliquer au cas d’espèce; de telle sorte que le demandeur (ou le défendeur), en formulant ses prétentions, est inévitablement conduit à privilégier certains faits de préférence à d’autres, selon la règie de droit retenue par lui pour construire son argu­mentation.³⁵

Therefore a judge should always realise that the facts presented by the plaintiff are relevant to the outcome envisaged by that party. The same applies to the facts which were put forward by the defendant. This sets a limit to the principle of ius curia novit and should restrain the court from choosing, ex officio, too readily a legal basis for sustaining or dismissing

³³        See Odgers, 135: ‘The pleader must apply his knowledge of the law, and his common sense, to the facts stated in his instructions, and decide for himself which he must plead and which he may safely omit.’

³⁴        Droit judiciaire privé, 3.68-9.

³⁵        To this they add in a note (p. 69 n. 1) the following observation: ‘Les avocats savent bien qui, dans la masse des faits que leurs clients déversent en vrac, doivent sélectionner ceux qui leur paraissent “concluants” ou “relevants”. En fonction de quoi peuvent-ils opérer ce choix, si ce n’est par référence à une règie de droit sur laquelle ils envisagent de fonder la pretention de leur client?’ See also 94-7, no. 92. the claim which had not been envisaged by the parties. Such problems may occur, for instance, in cases of an international character, in which the parties may have impliedly based themselves on the law of one country, whereas the court finds that the facts, as qualified by the court, lead to the application of the law of another country or the provisions of a certain treaty. This may cause embarrassment on the side of the unsuccess­ful party, or even of both parties, since they might have wished to adapt their pleadings to that law if they had known that the court would think of applying it. Perhaps the court overlooked the fact that both parties, before starting proceedings, had agreed upon regarding the application of that treaty to be excluded, which is why they did not discuss it.

The Germans consider such an Überraschungsentscheidung, a decision by surprise, to be contrary to the right of rechtliches Gehör, the principle of audi et alteram partem, as laid down in art. 103 of the Grundgesetz and particularly in §278, section III of the Zivilprozessordnung,^[461] which allows the judge to base his judgment on any point of law which has obviously been overlooked or regarded as irrelevant by a party, only when he has given the opportunity to comment upon that point. Besides that, the court should, in order to avoid surprises and in accordance with §139 of the Zivilprozessordnung, discuss with the parties the points which are raised by the court of its own motion in order to enable the parties to give their view.

Art. 16 of the new French Code of Civil Procedure explicitly forbids the judge to found a decision on a legal basis which the parties did not bring forward. Speaking of the judge, it provides:

Il ne peut fonder sa decision sur les moyens de droit qu’il a releves d’office sans avoir au prealable invite les parties ä presenter leurs observations.

I shall not go into the difficult question of the exact meaning of ‘moyens de droit’.^[462] One may roughly describe it as a rule of law, applicable to the facts that have been assessed as instrumental to the outcome of the suit. Here too the reason is that there should be no decision by surprise.^[463] The parties should have the opportunity to give their view and to defend their interests as far as they are touched by the new finding.

The principle of ius curia novit and the limits set to it by the principle of audi et alteram partem lead us to a more delicate question relating to the continental institution of cassation.

This kind of review, which originates from France and which we find in Belgium, the Netherlands and some other countries, is concerned with questions of law only. The duty of a Court of Cassation is to review findings of law, not of fact. It is the ultimate check whether the lower court (the iudex facti, as it is sometimes called) indeed knew the law and applied it in the way he should. It goes without saying that also in the proceedings before the Court of Cassation the audi et alteram partem principle applies. However, since the court does not review the case as such but only the findings of law by the lower court (in most cases a court of appeal), the court has a far more independent position towards the parties concerned. The Court of Cassation in those countries where it exists is assisted by legal officers who are not members of the court but who are attached to the court: the procureur general and his assistants, the advocates general. These officers give an opinion (submissions or ‘conclu­sions’) on the case to the court after argument has been closed.

Recently a case regarding the audi et alteram partem principle and the advice of those officers was decided by the European Court of Human Rights in Strasburg. On 30 October 1991 it rendered a quite remarkable judgment^[464] concerning the way the proceedings before the Belgian Court of Cassation are conducted. It raises the question whether a party has the right to answer to the observations on the merits of the case made by the advocate general attached to the court.

Mr Borgers, a Belgian lawyer, politician and former substitute district judge, had been charged with a criminal offence. He was tried and found guilty by the Antwerp Court of Appeal. He appealed successfully to the Court of Cassation, which quashed the decision and remitted the case to the Ghent Court of Appeal (the Court of Cassation cannot decide the case itself). After being convicted once more Borgers again appealed to the Court of Cassation, which now dismissed the appeal.

Both times the Court of Cassation, at the hearing, had heard the submissions (‘conclusions’) of the advocate general of the Court of Cassation, who had also participated in the deliberations of the court, as allowed by art. 1109 of the Belgian Judicial Code.^[465]

Borgers subsequently went to the Court of Human Rights at Strasburg. Alleging a violation of art. 6 §1 of the Convention, according to which, ‘in the determination of... any criminal charge against him, everyone is en­titled to a fair... hearing... by an... impartial tribunal’, he complained:^[466] In the first place that, at the [second] hearing... in the Court of Cassation... he had been unable to reply to the submissions of the avocat general or to address the court last; secondly he objected to the fact that the avocat general had participated in the deliberations which took place immediately after the hearing. He argued that as... the ministere public formed a single unit for institutional and disci­plinary purposes, the official in question could indeed have been seen as his opponent. That official’s presence at the deliberations had served only to aggra­vate the breach of the principle of equality of arms which had already occurred at the stage of argument.

The Commission shared this opinion in substance and declared the complaints admissible, finding a violation of art. 6 §1 of the Convention and inviting the court to reconsider the view taken in its judgment in the Delcourt case of 17 January 1970.⁴²

Although the case is mainly of importance to those continental jurisdic­tions which have a system similar to the Belgian, it might be of some interest to the English judiciary as well, since the decision of the Strasburg court might, as ad hoc Judge Storme pointed out in his dissenting opinion in the Borgers decision,⁴³ also affect the position of a high judicial officer such as the English Lord Chancellor, who unites in himself executive, legislative and judicial powers.

For a better understanding of the decision we should make some remarks on the Belgian judiciary. Although the procureur general as well as the advocates general of the Court of Cassation of Belgium formally belong to the ministere public, a body answerable to the Minister of Justice and in charge of the prosecution of criminal offences and the execution of criminal judgments,⁴⁴ they have no prosecuting authority (except in those rare cases such as proceedings against ministers in which the decision falls to the Court of Cassation). Their task is to advise the court, not the Minister of Justice, who has no influence whatsoever on the proceedings before the Supreme Court. They do not receive any instruc­tions from the Minister of Justice as to how to carry out their duties, which is, as the European Court has recognised,⁴⁵ to be the independent and impartial adjunct to and adviser of the court both in civil and in criminal cases. By doing so they might be regarded as ‘extraordinary members’ of the Court of Cassation, as Judge Martens describes them in his dissenting opinion in the Borgers case,⁴⁶ or as amici curiae, as ad hoc Judge Storme in his dissenting opinion prefers to call them.

In fact one may compare the procureur general and his advocates general with the advocates general of the Court of the European Commu-

⁴²        Publ. Series A, no. 11.           ⁴³ See that opinion, no. 11.

⁴⁴        See arts. 400 and 414 of the Belgian Judicial Code, cited in the decision of the European Court, §18.

⁴⁵        Cf. the decisions in the Delcourt case (§§32-8) and the Borgers case (§§16 and 24).

⁴⁶        See §2.4. The same applies to the Dutch procureur generaal at the Hoge Raad and his advocates general; the position of the same officials in France is comparable. nities,⁴⁷ whose impartiality and independence have never been ques­tioned. There cannot be any doubt about the position of the procureur general's department: together with the Court of Cassation it in fact makes up one body, which may be regarded as the Supreme Court.

The European Court in its decision in the Borgers case indeed did not impugn the position of the procureur general's department as such. For it declared the findings in the Delcourt judgment on the question of the independence and impartiality of the Court of Cassation and its procureur general's department entirely valid. Yet the court agreed, though not unanimously,⁴⁸ with the Commission that art. 6 §1 of the Convention had been violated. It ruled that it was ‘necessary to consider whether the proceedings⁴⁹ before the Court of Cassation also respected the rights of the defence and the principle of the equality of arms, which’, according to the court, ‘are features of the wider concept of a fair trial’ and have ‘undergone a considerable evolution in the court’s case-law, notably in respect of the importance attached to appearances and to the increased sensitivity of the public⁵⁰ to the fair administration of justice’. Then, after having confirmed that no one questions the objectivity with which the procureur general’s department discharges its function, the court con­tinues (§26):

Nevertheless the opinion of the procureur generals department cannot be regarded as neutral from the point of view of the parties to the cassation proceedings. By recommending that an accused’s appeal be allowed or dismissed, the official of the procureur general s department becomes objectively speaking his ally or his opponent. In the latter event, Article 6 §1 requires that the rights of the defence and the principle of the equality of arms be respected.

After having pointed out (in §27) that Mr Borgers could not reply to the unfavourable submissions of the advocate general, being prevented there­from by art. 1107 of the Judicial Code, which prohibits even the lodging of written notes following the intervention of the advocate general,⁵¹ the court considers that it cannot see the justification for such restrictions on the rights of the defence.

Once the avocat general had made submissions unfavourable to the applicant, the latter had a clear interest in being able to submit his observations on them before argument was closed. The fact that the Court of Cassation’s jurisdiction is confined to questions of law makes no difference in this respect.

⁴⁷        See arts. 165 and 166 of the EEC Treaty.

⁴⁸        See the dissenting opinions of Judges Cremona, Thor Vilhjalmsson, Martens and Storme.

⁴⁹        My italics. ⁵⁰ My italics.

⁵¹       In the Netherlands, however, this is, within strict limitations set out by the Hoge Raad, allowed according to art. 238 of the Code of Civil Procedure and art. 440 of the Code of Criminal Procedure; see also the dissenting opinion of Judge Martens in the present case, n. 2.

As to the advocate general’s taking part in the deliberations of the court,⁵² the court ruled that by this ‘the inequality was increased even more’ (see §28). From the assistance of the advocate general to the Court of Cas­sation in chambers it could, according to the European Court, ‘reasonably be thought’⁵³ that the deliberations afforded the avocat general an additional opportunity to ‘promote, without fear of contradiction by the applicant, his submissions to the effect that the appeal should be dis­missed.’

Apart from the fact that the decision shows how far the Strasburg Court would wish to go involving itself in questions of the judicial organisation of member states - which constitutes a problem of its own which I cannot discuss here⁵⁴ - one observes that it is not the position as such of the members of the ministere public at the Court of Cassation which is the key to the court’s reasoning. It is not because one might confuse the advocate general with the public prosecutor and consequently regard him as the natural opponent of the defendant that the applicant is granted the right to reply to the former’s submissions. The reason is rather the advocate general’s opinion concerning the merits of the case, as laid down in his submissions. This makes him objectively speaking either an opponent or an ally of the applicant. It is the appearance and the general public’s sensitivity which apparently are the keywords. However, one may wonder why the court, in this respect, uses the phrase ‘objectively speak­ing’, since appearance and sensitivity are not matters of objectivity but rather of subjective, personal perception.

I think that if one takes the principle of audi et alteram partem seriously and understands it as a rule which guarantees the parties the right to defend their interests in court, the decision of the court raises some other questions, especially with regard to the limits of the principle.

The issue in cassation is a question of law. As we have seen, the interests of the parties in civil litigation are mainly concerned with questions of fact. It is the parties who have the right and the duty to allege the relevant facts in order to decide the case according to the rules of law. Where the court has the duty to inform the parties of points of law which the court finds relevant or even decisive but which had not been discussed by the parties, this is because those points of law may throw a different light on the facts at stake, or may even make it necessary for the parties to adapt their factual allegations.

⁵²        The Dutch procureur generaal and advocates general are not admitted to the deliber­ations.

⁵³        My italics.

^{size=1 color=black face="Times New Roman">54}        See the remarks made by Judge Martens in his dissenting opinion under IV, where he recommends ‘self-restraint’ of the Strasburg Court where national procedural provisions are at stake.

In the system of cassation there is no room for discussing questions of fact. Therefore the role of the parties is a limited one, even if we admit that the outcome of the cassation proceedings may be decisive as to the concrete issues of the case and even when we consider that the parties may have a broader interest in the judgment of the Court of Cassation because they have brought up a test-case. The argument in cassation is about what the law should be and how it should be applied to the facts assessed by the lower courts. Therefore I would submit that, contrary to the consider­ation of the European Court, the fact that the Court of Cassation’s jurisdiction is confined to questions of law indeed makes a great differ­ence with regard to the right of being heard in court.

Moreover, the view of the Strasburg Court that, by giving his indepen­dent and impartial opinion of the case, the advocate general is making himself, at least in the perception of the parties, either an opponent or an ally of the party whose standpoint in cassation he rejects or supports, is not conclusive. The judge deciding against one of the parties is not making himself an opponent or an ally of the party concerned. The advocate general has no interest whatsoever in the outcome of the case. It is the lawfulness and consistency of the decision in the lower court, and in a wider context the unity, consistency and further development of the law in general that are his concern.

One might ask whether the European Court, by following its line of thought, did not overstretch the meaning of‘fair trial’ and in particular of the ‘rights of the defence’, as guaranteed by art. 6 of the Convention. It may still^[467] seem, I admit, questionable to those who are brought up in the Common law tradition that the Supreme Court is advised by a special judicial officer, who is not a member of the court, on how to decide the appeal without the parties being given the opportunity to discuss the opinion of that officer. However, one should bear in mind that when the case is placed in the hands of the procureur general in order to give his opinion on it, argument has been closed. The problem created by the Strasburg decision is that the proceedings may start all over again if the parties are granted an a priori right to give their view on the submissions of the procureur general. It would probably not add much to all that had already been said. The principle of audi et alteram partem, fundamental though it may be, does not guarantee endless debate: there must also be some limit to it.