1 Filtering Applications, Number of Judgments ...

Filtering Applications, Number of Judgments Delivered and Judicial Discourse by Supreme Courts: Some Thoughts Based on the French Example

Andrea Pinna

1. Is it possible to compare the judicial discourse of different Supreme Courts without taking into account the typology of cases on which they have to decide? One of the main functional differences between Supreme Courts is in the amount of cases that can be brought to these Courts and determined by them, and this is the issue that will be discussed in this article. 2. After a rapid overview, one notices that Supreme Courts that make use of less sophisticated and developed argumentation techniques are the ones that have to decide a larger number of cases. The volume of judgments to deliver is not the only factor that influences the nature of the judgments; historical,1 cultural and institutional factors can also play a role.2 However, caseload is probably one of the most important ones, since it leads to shorter rulings and, as a consequence, less explanation. Therefore one could suggest that the comparison of Supreme Courts’ discourse has to take this element into account. In answering this research question, the article will strongly focus on the French system and compare it with the situation of the US Supreme Court. 3. The comparison made by Mitchel Lasser mainly focuses on what I wish to address as ‘argumentative legitimacy’, i.e., the type of discourse used by a 1

Texier has considered that one of the factors of the brevity of judgments by the French Cour

de cassation and Conseil d’Etat is historical – the prohibition during Middle Ages upon the king’s counselors giving reasons for their decisions: P. Texier, ‘Jalons pour une histoire de la motivation des sentences’, in La motivation, Travaux de l’association Henri Capitant (Paris, L.G.D.J. 2000) p. 5. 2

For the institutional argument, see Mitchel Lasser, ‘Les récentes modifications du processus

de décision à la Cour de cassation. Le regard bienveillant, mais inquiet, d’un comparatiste nord-américain’, Rev.trim.dr. civ. (2006) p. 691.

1 Electronic copy available at: http://ssrn.com/abstract=1319281

Supreme Court. In these respects, French and US Supreme Courts have an opposite approach to the argumentation of a judgment, even if its motivation is a legal requirement in these countries.3 While the official discourse in France is still very dogmatic and uses legal arguments only to ground the arrêt, in the US and even in other European countries, it is customary to convince of the pertinence of the solution held by referring to non-legal arguments. These local differences in approaching the argumentation of a judgment are taken into account by the European Court of Human Rights (ECtHR) in giving effect to its control of the motivation of a judgment.4 4. This does not mean that arguments other than the purely legal are absent from the French legal judicial procedure, but they are not presented as the motivation for a judgment because legal scholars still tend to consider that a case based on such considerations is a case decided ‘en opportunité’ which does not correspond with the mission of the French Cour de cassation. In this respect, the criticism addressed by twentieth-century scholars to judges, which expressly refers to such considerations, is probably still current. Such criticism was expressed concerning Magnaud, the ‘bon juge’, who was known not only for taking into account equitable arguments, but also and especially for expressing them in the reasons for the judgments of his court. The most often quoted is the Ménard case, in which Magnaud refused to find guilty a mother who had stolen bread to feed her child with the following justification: ‘Attendu que la faim est susceptible d’enlever à tout être humain son libre arbitre et d’amoindrir en lui dans une grande mesure la notion du bien et du 3

In France, Art. 455 Nouveau Code de procédure civile; Art. 485 Code de procédure pénale.

This is a general requirement, cf. the ECtHR, judgment of 9 December 1994, Hiro Balani and Ruiz Torija v. Spain, 19 EHRR 553. 4

Hiro Balani and Ruiz Torija v. Spain, n. 4. at § 27: ‘The Court reiterates that Article 6 para. 1

obliges the courts to give reasons for their judgments… The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case.’

2 Electronic copy available at: http://ssrn.com/abstract=1319281

mal.’ Gény and Ripert strongly criticized this judicial discourse.5 This difference in conceiving the judicial discourse will be addressed in Part 1. on ‘argumentative legitimacy.’ 5. Mitchel Lasser hardly discusses the impact of the functional differences between the French and the US Supreme Courts on judicial legitimacy. By this, I do not mean the ‘institutional legitimacy’, i.e., the constitutional source of judicial power and the place of the judiciary in the trias politica. I do not even mean the way judges are selected and educated, but mainly the number of cases a Supreme Court is asked to decide on. If the number of applications to access their justice is comparable, the number of judgments delivered differs considerably, and this all depends on the different approach in selecting and filtering the applications. 6. This article aims to assess the relevance of the volume of cases decided every year by a Supreme Court for the legitimacy and transparence of its judicial deliberations. Correspondingly, it aims to determine whether the filtering of appeals reduces the legitimacy of a Supreme Court. It certainly diminishes the authority of the Court in terms of determination of the line of the case law, which is also left to the competition of lower courts. It probably also reduces its legitimacy, since litigants and ‘justiciables’ tend to listen to the opinion of other courts. This will be discussed in Part 2,

on ‘functional

legitimacy,’ which aims to assess the quality of the use of the power that has been conferred on Supreme Courts.6 7. It remains that filtering appeals is often a necessity because of the engorgement of Supreme Courts and the legitimate expectation of litigants to 5

Fr. Gény, Science et technique en droit privé, vol. 2 (1954) nos. 196 ff, at no. 200: ‘Sous

l’influence dissolvante de son flottant humanitarisme le président Magnaud aboutit à une sorte d’impressionnisme anarchique dans l’application du droit positif’; G. Ripert, Les forces créatrices du droit (Paris, LGDJ 1955), no. 4: ‘Le bon juge serait-il donc celui qui statuerait à sa guise en s’inspirant de l’équité et sans se soucier du droit établi? Il s’en est trouvé en France qui eut son heure de notoriété. On en fit un homme politique, ce qui permit de faire cesser le scandale. Il est depuis longtemps oublié et il n’a pas fait de disciples.’ 6

Cf. the definition of ‘légitimité fonctionnnelle’ given by G. Canivet, ‘Légitimité du juge’, in L.

Cadiet, ed., Le dictionnaire de la justice (Paris, PUF 2004 ), which included argumentative methods in the functional legitimacy of the judge.

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obtain a determination of their claim within a reasonable time, which is often seen as a human right. Filtering is seen as a way of combining well explained judgments with relatively rapid justice. The whole issue is then to retain a proper method of discrimination between admissible claims and claims that a Supreme Court refuses to adjudicate. A comparative overview shows that there are different reasons to ground a refusal to adjudicate a claim, ranging from the most subjective to the most objective ones. In Part 3, I will try to determine which jeopardizes the legitimacy of a Supreme Court the least. 8. At the end of the day, one can notice that the argumentative legitimacy is probably not the only one that has to be considered. The point of this article is to try to underline that there is another kind of legitimacy that matters, the one that can be addressed to as ‘functional legitimacy.’ By this expression I mean that the access for citizens to a Supreme Court is one of the key elements of its legitimacy. The more claims are filtered, the less the court has legitimacy in this respect.

1. Argumentative legitimacy 9. Certainly the US is one of the legal systems where the Supreme Court has a high level of ‘argumentative legitimacy’ compared with countries like France, as Mitchel Lasser has shown.7 This applies especially when the external and public discourse of Supreme Courts is compared. A French case is based on a straightforward syllogism that limits totally the possibility of showing which policy issues have been discussed by the judges and what motivated them to rule in the way they did, besides purely legal arguments. Luhmann has however considered that the syllogism is an efficient method of conferring legitimacy on a judgment, since its logical basis should convince the parties of the necessity of the solution held, even if, in reality, matters are much more uncertain.8 7

Mitchel de S.-O.-L’E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial

Transparency and Legitimacy (Oxford, Oxford University Press 2004). 8

N. Luhman, La légitimation par la procédure (Presses de l’Université de Laval 2001, first

published 1969).

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10. It shall not be neglected that there is also an internal discourse of the French Cour de cassation in which policy and socio-economic issues that the claim raises are generally discussed.9 This internal discourse is enclosed in the rapport du conseiller and conclusions de l’avocat général, which serve for the Court as a basis for its deliberation. Of course, the arguments that convince the judges to decide in a particular way are not necessarily the ones that can be found in these internal documents, and it is even frequently the case that the conclusions de l’avocat général are not followed by the Court. However, as a general rule they are. 11. The problem is that, on principle, this internal discourse is made to remain confidential and is not published, which means that it cannot serve, in general, as a surrogate to the lacking arguments of a Cour de cassation case. Practice has however shown that, for the most important cases, the rapport and the conclusions are often published to make the judicial decision process more transparent and the interpretation of the case easier. It is not certain, however, in practice, that this really helps.10 12. As a general rule this internal discourse remains unpublished, which reduces the argumentative legitimacy of French Supreme Court cases compared with those of other countries such as the US, the UK and Common Law countries in general. Lasser has also recently considered that the 9

Mitchel Lasser, ‘Autoportraits judiciaires: le discours interne et externe de la Cour de

cassation’. Les Cahiers de l’IHEJ, Languages et Justice, no. 2 (1994) p. 28. 10

A recent example of this is Cass. A.P. 6 October 2006, Bull. A.P. no. 9, where the issue

settled was to determine whether a breach of contract could lead to tortious liability towards third parties who suffered from the breach. The Supreme Court answered positively to this question following the conclusions of the Advocate-General, Gariazzo, published in JCP (2006), II, 10181. However, a large amount of doctrinal work has been published on the case to explain its solution and its legal and practical consequences, which did not appear in the conclusions of the Advocate-General, see, e.g., G. Viney, note, D. 2006, p. 2825; M. Billiau, note, JCP 2006, II, p. 10181; P. Jourdain obs. Rev.trim.dr. civ. (2007) p. 123; and the special dossier published in RDC 2007-2, pp. 537-632, with the opinions of D. Mazeaud, P. Ancel, Ph. Delebecque, P.-Y. Gautier, C. Grimaldi, Ph. Jacques, J.-L. Sourioux, Ph. Stoffel-Munck, G. Wicker, R. Wintgen, B. Moore and C. Popineau-Dehaullon. Why were such extensive commentaries necessary if not because of the obscurity of the conclusions of the AdvocateGeneral?

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publication of this internal discourse would not be a good solution, because while it could increase the official argumentation of an individual judgment, it would limit the quality of the case law.11 Taking as an example the European Court of Justice discourse, Lasser is of the opinion that the publicity of the rapport or of the conclusions will reduce the willingness of judges to discuss the essential issues at stake.12 13. We can also add that trying to make the external discourse of the Cour de cassation more transparent with extended explanation of the reasons that influenced the decision, not just the purely legal ones, would be impracticable. Indeed, compared to other Supreme Courts, the French Cour de cassation deals with a huge amount of cases each year,13 and accepts all applications as long as they raise a legal issue on the appeal ruling and not merely a question on the facts.14 Probably, it is technically impossible to combine the fact of deciding on so many cases and an extensive and transparent explanation of the reasoning of each case. 14. There are indeed examples of Courts having tried to combine such judicial external discourse with a high rate of acceptance of cases. Such is the case for the ECtHR and this has certainly been a failure. The ECtHR has tried to combine a very elaborate argumentation technique with wide access to its justice and a generous policy on acceptance of cases. However, practice has shown that this was impracticable and the ECtHR is nowadays unable to decide with sufficient speed the huge volume of appeals that have been lodged.15 While there are to my knowledge no statistics on the average number of days within which a judgment is delivered, one can clearly notice that it is probably around three years, if the number of cases lodged does not 11

Lasser, n. 3.

12

Ibid.

13

In 2006, 22461 arrêts were delivered, source: Cour de cassation, Rapport annuel 2006, La

Documentation française 2007. 14

On the use of the distinction between legal and factual issue as an instrument for filtering

appeals, see below. 15

ECHR, Survey of Activities 2006, which shows that in 2006 the Court delivered 1560

judgments and declared inadmissible 28,160 claims, but 50,500 new claims were lodged which makes a total of 89,900 cases pending.

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further increase.16 Such a time lapse is certainly excessive compared with the approximately 450 days for the French Cour de cassation, and taking into account that inadmissibility declarations are certainly given faster by the ECtHR than determinations of cases that lead to a formal written opinion. This is a paradox for a Court that applies a treaty where one of the main fundamental rights protected is that ‘everyone is entitled to a fair and public hearing within a reasonable time.’17 The solution to this situation could be to further filter the claims, by refusing to rule on certain violations of human rights. This is exactly what Protocol 14 aimed at, before it was stopped by Russia. 15. The limited argumentative legitimacy of the French Cour de cassation compared to other Supreme Courts rulings is probably not a problem since it is customary to comment extensively cases of the Supreme Court, in which French legal scholars try to explain the judgment also according to not purely legal considerations. Legal doctrine acts as a surrogate to the limited argumentation that is found in a case and at the same time stimulates a dialogue with the judges. Such a dialogue is often considered to be beneficial for the improvement of the quality of the Cour de cassation case law.18 16. Moreover, and above all it seems to me that a very generous acceptance of appeals can be beneficial for the legitimacy of a Supreme Court, compared with a court that accepts to rule only on a very few cases per year.

2. Functional legitimacy

16

See the contributions of Garlicki, Gerards and Van Emmerik & Barkhuysen in this volume.

17

Article 6§1 of the European Convention on Human Rights (emphasis added).

18

Literature on the role of legal doctrine in the formation of positive law is abundant, see, e.g.,

Ph. Jestaz and Ch. Jamin, ‘Doctrine et jurisprudence: cent ans après’, Rev.trim.dr. civ. (2002) p. 1; H. Batiffol, ‘La responsabilité de la doctrine dans la création du droit’, RRJ droit prospectif (1981) p.175; C. Atias, ‘La mission de la doctrine universitaire en droit privé’, JCP (1980), I, 2999.

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17. In this paragraph, I will discuss the issue of ‘functional legitimacy.’ I want to demonstrate that a Supreme Court that does not filter applications by litigants has a surplus of legitimacy over a Court that sets conditions, especially if discretionality is involved, to the admissibility of a claim. The less the access to the justice of a Supreme Court is filtered, the more such a court has legitimacy and this regardless of the argumentative discourse that it is used. 18. There are several reasons for this. First of all, in doing that a Court has full control over the contentieux. It is of course a question of domination in the judicial hierarchy. A Supreme Court is a jurisdiction that is placed on top of the judicial structure in one country, at least in some legal matters. This position gives it the right to overrule a lower court’s decision. If a Court is conferred with such a power, its broad use provides a stronger authority and gives rise to respect by lower courts. It is clear that in legal systems, such as France, where a Supreme Court fully exercises its power to control lower courts, its case law is much more important than the one of lower courts. 19. This is not an argumentative legitimacy, but rather a functional one. In France, case law of lower courts is considered less important because, for most of the issues raised by everyday litigation, there is an opinion of the Cour de cassation, which leads to the consideration that a contrary opinion of a lower court is most of the time not relevant and will eventually be quashed. At the end of the day, this leads to a phenomenon well known in France and termed ‘loi d’imitation’,19 i.e., the fact that lower courts will follow the opinion earlier expressed by the Cour de cassation. The practical consequence of this is that first instance or appeal cases are almost never quoted in legal arguments and nobody feels the real need to report them.20 Lower court cases become helpful only in matters where the Cour de cassation refuses to decide, such as the techniques of measuring damages. In my doctoral thesis

19

F. Terré, Introduction générale au droit, 7th edn (Paris. Dalloz 2006), no. 361.

20

There are initiatives to report appeal cases in ad hoc databases, such as Juris-data, but

their use is still limited on matters where the Cour de cassation rules.

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on the issue, I have quoted a large number of appeal cases that have served as surrogates to the absence of Supreme Court case law.21 20. Contrastingly, in jurisdictions such as the United States, the importance of lower courts judgments is much greater, because the Supreme Court has refused to admit an appeal or has not yet given its opinion on the issue at stake. Such a situation is likely to be more frequent considering the limited number of yearly adjudications – around 100 for the US Supreme Court. In other words, lower court judges have less independence from the Supreme Court in France than judges in Common Law countries have from their Supreme Courts, and competition between them cannot exist. Courts of appeal in France can of course resist the line of case law set by the Cour de cassation with the hope that the line will change, but as long as the ‘loi de continuité’ does apply22, their judgments will be overruled. 21. Domination over lower courts is only one of the instruments of functional legitimacy. Another consequence can be noticed as regards the litigants. Higher regard is given to the case law of a Supreme Court simply because it gives answers to a larger amount of legal issues. Astonishingly, the fact that a country like France is a country of statutory law does not seem to detract from this, because the need for interpretation and gap-filling of written legal norms is very important. 22. Moreover the power related to the highest place in the judicial hierarchy is conferred on Supreme Courts with a particular goal: the unification of the law within a settled territory.23 This also gives exclusive control over the evolution and the adaptation of the law. A Supreme Court that refuses to take a position on a legal question, unifying the application and the interpretation of the law, abdicates an essential part of its attributions. It is a statistical issue: the more judgments are delivered, the more a Supreme Court 21

See A. Pinna, ‘La mesure du préjudice contractuel’, thesis , Université de Paris II, LGDJ

2007, with references to about 200 appeal cases. 22

Definition of the ‘loi de continuité’ is given by F. Terré, n. 20, who explains that what the

Cour de cassation has decided in the past, will be decided in the future, even if there is no obligation to do so. 23

Such is the case in France, Terré, n. 20, no. 148.

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has the chance to decide on a higher diversity of legal issues and practical situations and, eventually, it contributes to the construction of civil law. 23. This certainly increases the authority of a Supreme Court, but it also confers legitimacy. The more the same court expresses itself on the same topic, the more it appears that the issue at stake has been discussed. There is also a temporal factor that matters: an opinion that has been delivered several years ago, regardless of its authority that depends on other elements24, can have less legitimacy than the very same opinion expressed today. Because a legal opinion necessarily takes into account the needs of a society at the particular moment when it is delivered, the evolution of society’s needs can give rise to the suspicion that an old opinion is no longer in line with the needs of society today. 24. When the Supreme Court does extensively admit applications, the judgments delivered tend be less extensively explained, but the aggregation of several decisions on similar issues leads to the construction of a coherent system. This phenomenon appears clearly in matters where the positive law has been essentially created by the judicial power. A good example of this is the general French law principle of strict liability of the guardian of a thing (‘responsabilité générale du fait des choses’) discovered by the Cour de cassation in application of Article 1384 §1 of the French Civil Code. If the principle of this type of tortious liability has to be found in cases that date back to 189625 and 1930,26 the entire regime has been progressively established by a huge number of cases that had to deal with several legal issues enlightening the application of the general principle. A single case would not have been sufficient because all practical consequences of it were simply unforeseeable. Only a sequence of judgments delivered on the matter of custodian’s liability over the decades could have given birth to such a coherent and complete system. 24

E.g., the existence of a formal rule of precedent.

25

Cass. Civ. 16 June 1896, Teffaine, D.P. 1897, 1, 433, conclusions L. Sarrut; annotation R.

Saleilles. 26

Cass. CR, 13 February 1930, Jand’heur, D.P. 1930, 1, 57, rapport Le Marc’handour,

conclusions Matter; annotation G. Ripert.

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25. The synthesis of such a series of cases is one of the tasks of legal doctrine,27 which also explains the socio-economic reasons for the trend of the line of case law on a specific topic. Legal doctrine then expresses the internal discourse of the Cour de cassation and an important sequence of cases is of great help for discovering it. 26. As a conclusion of this part, it seems that everything is a matter of equilibrium. The example of the ECtHR has shown that it is difficult to combine argumentative and functional legitimacy. It is therefore necessary to choose between fewer judgments delivered with more explicit reasoning, as a first alternative, and more judgments, but with less explanation, as a second alternative. 27. The ECtHR took the first option with the drafting of Protocol 14, which aims at increasing its filtering features by introducing a new admissibility requirement.28 Observers might think that the wrong option has been chosen and that a wider access to the ECtHR would have been preferable, even in exchange for a reduction of the explanation of the judgments delivered because, at the end of the day, the role of a court such as the ECtHR is to protect individuals against violation of their fundamental rights. What is the legitimacy of a court that, as a principle, refuses to protect some violations of human rights when its main mission is to do so? This addresses the question of knowing the impact of filtering cases on the functional legitimacy of a Supreme Court. It appears that much depends on the grounds of the inadmissibility of a claim.

3. Functional legitimacy and filtering claims 28. In this part, I will address the impact of filtering cases on the legitimacy of a Supreme Court. There are different methods of filtering cases and these 27

Cf. F. Terré, n. 20, no. 190, according to whom the function consists in ‘making order’ in

the positive law. 28

Professor J.H. Gerards’s contribution in this volume also argues that the caseload has led

the ECHR recently to modify its judicial discourse, see ‘Judicial Deliberations in the European Court of Human Rights’, § 2.6.

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have a different impact on the legitimacy of a Supreme Court. They can fall within two main categories of admissibility conditions: objective and subjective discriminations between claims. 29. The subjective method of filtering claims is to be found especially in Common law countries. Such is the case for the US Supreme Court, where cases cannot generally be taken on appeal as a matter of right and where a party who wants the Supreme Court to review a decision of a federal or state court is required to file a petition for a writ of certiorari. Whether the court grants the petition or not is matter of discretion, 29 and only if it is granted will the case be examined by the Court, which will lead to a written opinion on the legal issues raised. Rule 10 of the Supreme Court of the United States Rules indicates the reasons in which the Supreme Court could grant a petition for a writ of certiorari and indicates that, on principle, it would be refused in case of ‘misapplication of a properly stated rule of law.’ In other words, the function of the US Supreme Court does not, as a rule, consist in guaranteeing a uniform application of the law over the territory of its jurisdiction. 30. If in Common law countries the discrimination is mainly subjective, in France, the legal system that has been mainly discussed in this article, the discrimination is on principle made objectively: the French Supreme Court hears all cases that are presented before it, but only as regards legal issues, refusing to discuss mere factual questions.30 However, the distinction between issues of law and issues of fact has only an appearance of objectivity, since it has been blurred in practice by policy considerations which has led several scholars to assert that it is not a clear distinction anymore.31 Practice has indeed shown that the Cour de cassation often characterizes an issue as a factual one, although it can be considered as a legal one, solely in order to declare the claim inadmissible. Several examples of this situation can be found.

29

See Rule 10 of the Rules of the Supreme Court of the United States, 17 July 2007: ‘Review

on a writ of certiorari is not a matter of right, but a matter of judicial discretion’. 30

Article L.411-2 Code de l’organisation judiciaire.

31

See in Belgium, F. Rigaux, La nature du contrôle de la Cour de cassation (1966).

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31. The first one concerns the concept of fault in divorce proceedings which is defined by Article 242 of the French Civil Code. This is considered as a factual issue, whereas this provision sets the legal conditions to be fulfilled in order to characterize the fault required to deliver a divorce judgment.32 The Cour de cassation refuses to effect scrutiny on appeal judgments that characterized the fault as defined by this Article.33 Noting that there is, in this example, a voluntary refusal of the Supreme Court to control the application of the law by lower court, it is interesting to compare this position with the acceptance of controlling the definition and the application by lower courts of the requirement of fault that leads to liability in tort provided by Article 1382 of the French Civil Code.34 A second example of this attitude concerns the measure of damages in contract and tort which is considered to be a factual issue leading the Supreme Court generally to refuse to control the technique applied by lower courts to assess the amount of damages awarded that has in principle to be done following Article 1149 of the Civil Code.35 32. In these examples, the distinction between fact and law is used by the Cour de cassation to limit the possibility of appealing against a lower court ruling in order to limit the caseload and therefore to reduce the risk of an ‘engorgement’ of the Supreme Court. In doing this, the filtering method 32

‘Le divorce peut être demandé par l'un des époux lorsque des faits constitutifs d'une

violation grave ou renouvelée des devoirs et obligations du mariage sont imputables à son conjoint et rendent intolérable le maintien de la vie commune’. 33

In the past it was required that appeal courts indicate that the cumulative conditions posed

were fulfilled. Recently, this formalistic requirement has been further eroded: Cass. Civ. II, 30 November 2000, Bull. civ. II, no. 157, Personnes et famille, January 2001, 14, annotation P. Guerder ; JCP (2001), II, 10499, annotation T. Garé; Defr. (2001), 509, annotation J. Massip; Rev.trim.dr. civ. (2001) p. 114, observations J. Hauser: ‘en retenant, par motifs adoptés, que les faits imputés à l’épouse constituaient des causes de divorce au sens de l’article 242 du Code civil, ce dont il résultait que la double condition exigée par ce texte était constatée, la cour d’appel a, par une motivation suffisante, justifié sa décision’. 34

Line of the case law started by Cass. Civ. II, 16 July 1953, JCP 1953, II, 7792, annotation

R. Rodière, stressing that the qualification by lower courts is a matter of law and not a merely factual one. 35

See the case law quoted by G. Viney, P. Jourdain, Les effets de la responsabilité, 2 nd edn,

(LGDJ 2001) no. 62.

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becomes subjective and this has an important impact on the functional legitimacy of the Supreme Court. Indeed under efficiency considerations the French Supreme Court declines to give guidance to lower courts, leading to higher legal uncertainty (no uniform interpretation of the rules) and by consequence accepting injustice in some fields of the law (no uniform application of some statutory French law provisions). In doing this, the Supreme Court violates its essential mission, which is to grant that the law is applied equally on every part of the French territory. This certainly reduces the ‘functional legitimacy’ of the French Supreme Court. 33. On a more general level, filtering appeals by Supreme Courts in order to limit the number of appeals and better decide on the claims adjudicated is arguably not necessary. Sometimes it is necessary to filter claims as the ECtHR example has shown. It is indeed at some stages better to reduce the access to the Supreme Court in order to allow it to function efficiently. There are, however, different ways of combining the efficacy and the access to the necessities of justice and it is important to find the method that jeopardizes least the legitimacy of the Supreme Court. 34. Following the ECtHR example, Protocol 14 to the European Convention on Human Rights, which will enter into force if Russia agrees to ratify it,36 introduces a new admissibility criterion, in addition to the existing conditions, i.e., the exhaustion of domestic remedies and the six-month timelimit, which were purely objective. Under the new Protocol 14, the Court could declare inadmissible applications when the applicant has not suffered a ‘significant disadvantage.’37 It seems to be a paradox for the ECtHR to reject cases without examining them on their merits, whereas this could be seen as violation of one of the fundamental rights protected by the Convention. However, exceptions are provided by the Protocol in order to prevent such criticism when the ‘respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.’ It is probable that the exception will in 36

Observers are of the opinion that this is very unlikely to happen.

37

Article 12 Protocol 14, introducing a § 3 to Article 35 of the Convention.

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practice become the principle, since an examination of the application on the merits will often be necessary. But at the end of the day all will depend also on the interpretation of this very obscure condition, for matters of alleged human rights violations, of ‘significant disadvantage’. 35. A better technique to reduce the caseload would consist in treating similar violations of the Convention in a single judgment. This direction has been taken by the Court with the technique of ‘pilot judgments’.38 But it seems difficult to go further and allow the ECtHR discretionary powers as to the admissibility of application before it. Such a possibility was discussed in the report of the Group of Wise Persons submitted in May 2006 that had to look beyond Protocol 14,39 and was rejected because it was considered ‘totally alien to the philosophy of the European human rights protection system.’ Indeed, the right to individual application and the access to justice that it underlines is a fundamental feature of the functional legitimacy of the ECtHR. The legitimacy issue is entirely at stake here and there seem to be no satisfactory filtering methods to solve the problem. Finally, the ECtHR is a ‘victim of its success’ and the only way to deal with it probably is to increase its manpower in order to deal with a higher number of cases, which can be combined with shorter judgments delivered that, as we have seen, seems to jeopardize the legitimacy of a Supreme Court the least. 36. If it is probably better to filter applications according to objective criteria rather than merely discretionary and therefore political ones, it seems that, if the alternative exists, it is more satisfactory to have recourse to less detailed judgments but to give access to the highest number of litigants to the justice of the Supreme Courts. My impression is that the wide access to the Cour de cassation gives this court a great deal of legitimacy and no real change in the bifurcated discourse is required. Indeed, such legitimacy is most at risk from a legally and practically bad judgment. Indeed it is the solution that mainly counts and much less its external motivation. It is clear that not only for the 38

ECtHR judgment of 22 June 2004, Broniowski v. Poland, 40 EHRR 21 (2005).

39

Interim Report of the Group of Wise Persons to the Committee of Ministers, 10 May 2006,

CM(2006)88. On this group and its recommendations, A. Mowbray, ‘Beyond Protocol 14’, 6 H.R. L. Rev. (2006) p. 578.

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winning party, the solution in itself – the result of the case – is most of the time sufficient to convince and make people adhere to it. A wrong solution, even if extensively and intelligently motivated and explained. would never convince the litigants or the general reader. 37. I wish to take three examples to illustrate this. The first is the French Cour de cassation in the Perruche case.40 It has been said that this case has tarnished the image of the French Supreme Court due to its decision that, in a ‘wrongful birth’ claim, the child is entitled to compensation for its loss, which corresponds to the fact of being born!41 The interpretation of the case led to important disagreement in the literature.42 While some authors were of the opinion that the case was wrongly decided from an ethical point of view and also from a legal one, i.e., the lack of a causal link between the medical malpractice and the damage suffered, other authors took the exact opposite opinion. What can be said about this case is not much besides the fact that the Cour de cassation had to decide on a very sensitive and controversial 40

Cass. A.P. 17 November 2000, Bull. A.P. no. 9.

41

See the title of Prof. G. Viney’s article: ‘Brèves remarques à propos d’un arrêt qui affecte

l’image de la justice dans l’opinion’, JCP (2001), I, 286 42

Among the huge number of doctrinal works and commentaries of this case, see F. Terré,

‘Le prix de la vie’, JCP 2000, 2267; C. Labrousse-Riou and B. Mathieu, ‘La vie humaine peutelle être un préjudice?’ Dalloz 2000, no. 44.; G. Mémeteau, ‘L’action de vie dommageable’, JCP 2000, I.279; JCP 2000.II.10438, report P. Sargos, concl. J. Sainte-Rose, note F. Chabas; M. Gobert, ‘La Cour de cassation méritait-elle le pilori?’ Petites Affiches 8 December 2000, p. 4; G. Viney, ‘Brèves remarques à propos d’un arrêt qui affecte l’image de la justice dans l’opinion’, JCP 2001, I.286; C. Radé, ‘Être ou ne pas être? Telle n’est pas la question! Resp.civ.assur. (2001) p. 4; P. Murat, ‘L’affaire Perruche: où l’humanisme cède à l’utilitarisme’, Droit de la famille (2001), comm. 11; J.-L. Aubert, ‘Indemnisation d’une existence handicapée qui, selon le choix de la mère, n’aurait pas dû être’, D. 2001, 489; L. Aynès, ‘Préjudice de l’enfant handicapé: la plainte de Job devant la Cour de cassation’, D. 2001, 492; D. Mazeaud, ‘Naissance, handicap et lien de causalité’, Dalloz 2000, no. 44; D. Mazeaud, ‘Réflexions sur un malentendu’, D. 2001, 352 P.-Y. Gautier, ‘Les distances du juge’ à propos d’un débat éthique sur la responsabilité civile’, JCP 2001, I.287; F. Dreifuss-Netter, ‘Observations hétérodoxes sur la question du préjudice de l’enfant victime d’un handicap congénital non décelé pendant la grossesse’, 46 Médecine et Droit (2001) p. 2; Y. LambertFaivre, ‘La réparation de l’accident médical: obligation de sécurité, oui, aléa thérapeutique, non’, Dalloz 2001, 570.

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matter. If the decision had been delivered with extensive reasons, it would not have changed much in practice because there is no unanimity possible on what could be a good answer to this legal problem.43 38. The second example concerns another Cour de cassation case on the a priori less controversial issue of the right for the owner of a good or of immovable property to prohibit the reproduction and the commercialization of its image by third parties. The Court initially ruled that the holder of proprietary rights on a thing also has a monopoly on its image.44 Legal doctrine unanimously criticized the decision especially on practical grounds: the consequent impossibility of making the iconography market work and the inevitable clash between such a newly created monopoly and the monopoly of the copyright holder on artistic works. Everybody understands that the argumentation of the case could in no way convince the observers and finally the Cour de cassation abandoned this interpretation in subsequent judgments.45 This example shows how much the solution alone matters, independently of its motivation. Its consequences also address the question of how a Supreme Court that admits and corrects its mistakes can have more legitimacy than one that is bound by its precedents.

43

See, the introduction of the article of B. Markesinis, ‘Réflexion d’un comparatiste anglais

sur et à partir de l’arrêt Perruche’, Rev.trim.dr.civ. (2001) p. 77: ‘En soi, toutes les décisions judiciaires importantes ont trait à des questions qui sont essentiellement politiques, économiques, ou morales, ou encore les trois à la fois. En raison de leur nature même, la plupart de ces questions peuvent recevoir des réponses et des solutions différentes. Il n'y a pas d'unanimité possible sur ce qui est la réponse juste, si du moins les problèmes fondamentaux peuvent recevoir une réponse juste. Si les conceptions sont divergentes parmi le public, les juridictions ne parviennent jamais à les réconcilier, ni à imposer leur propre solution.’ 44

Cass. Civ. I, 10 March 1999, Bull. Civ. I, no. 87; D. 1999, 319 conclusions Sainte-Rose;

annotation Agostini; JCP 1999, II, 10078, annotation P.-Y. Gautier; Defr. 1999, 897 annotation C. Caron; Rev.trim.dr.civ. (1999) p. 859, observations F. Zenati. 45

Essentially, Cass. A.P. 7 May 2004, Bull. A.P. no. 10; D. 2004, 1545, annotation Bruguière

and annotation Dreyer; JCP 2004, II, 10085, annotation C. Caron: ‘Le propriétaire d'une chose ne dispose pas d'un droit exclusif sur l'image de celle-ci’.

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39. The third example is the famous ECtHR case on sadomasochism.46 In this case, the ECtHR has ruled that sadomasochism is an essentially private matter and that there is a criminal excuse as long as the persons taking part to this activity give their consent to receive physical harm.47 As soon as the consent is withdrawn, however, the physical harm can be characterized as a criminal offence in application of the local criminal law. As long as there is consent, criminal law cannot be enforced even the consent of the victim does not constitute, as a general criminal law principle, an exoneration. What particularly strikes the reader is the very detailed and logical motivation of the judgment delivered by the ECtHR. However, no good argumentation can convince the reader that sadomasochism is a human right!48 40. As a concluding remark, I am of the opinion that the way a case is motivated by a Supreme Court is only one element of its legitimacy. Another element, of at least the same importance, is the number of judgments delivered by a Supreme Court. The process of filtering applications, especially on a discretionary basis, may mean that litigants find that their case, which they necessarily consider as important, is not taken into account. From a more general perspective, the external image of a Supreme Court is not made only by a convincing and extensive motivation of the case, what I referred to as ‘argumentative legitimacy’, but also by the raw number of cases decided each year. To describe this phenomenon, I used the expression ‘functional legitimacy’ since it is inherent to the function of a Supreme Court to grant that 46

ECHR, 17 February 2005, K.A. and A.D. v. Belgium.

47

Ibid., at §§ 84-85 ‘Il en résulte que le droit pénal ne peut, en principe, intervenir dans le

domaine des pratiques sexuelles consenties qui relèvent du libre arbitre des individus. Il faut dès lors qu’il existe des « raisons particulièrement graves » pour que soit justifiée, aux fins de l’article 8 § 2 de la Convention, une ingérence des pouvoirs publics dans le domaine de la sexualité. En l’espèce, en raison de la nature des faits incriminés, l’ingérence que constituent les condamnations prononcées n’apparaît pas disproportionnée. Si une personne peut revendiquer le droit d’exercer des pratiques sexuelles le plus librement possible, une limite qui doit trouver application est celle du respect de la volonté de la « victime » de ces pratiques, dont le propre droit au libre choix quant aux modalités d’exercice de sa sexualité doit aussi être garanti. Ceci implique que les pratiques se déroulent dans des conditions qui permettent un tel respect, ce qui ne fut pas le cas.’ 48

M. Fabre-Magnan, ‘Le sadisme n’est pas un droit de l’homme’, D. 2005, 2973.

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the law is uniformly applied and interpreted in the territory under its jurisdiction. By filtering appeals, especially on a discretionary basis, the Court fails to fulfil one of its natural tasks. Increasing the access to its justice, even if this implies less well explained judgments, can be beneficial since what mainly matters is the solution of a lawsuit, rather than they way such solution is motivated. October 2007

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