PARTLY DISSENTING OPINION OF MR S. TRECHSEL

While I am in agreement with the conclusions of the Commission on Articles 6 and 14 of the Convention, I have come to a different conclusion as regards Article 13. Contrary to my friend Mr. Nowicki , however, I accept that the applicant had an “arguable claim”. However, I still adhere to the earlier case-law, established many years ago, according to which there is no room for any consideration under that guarantee when Article 6 is at issue.

I accept that a simple reading of the text of the Convention does not support this view. However, if one carries literal interpretation ad absurdum , one must also come to the conclusion that there ought to be an “effective remedy before a national authority” for persons who complain of a violation of Article 13.

Article 6 guarantees access to a court and all that this implies, including the right to speedy trial, to have a judgment within a reasonable time. In fact, excessive length of proceedings does amount to a denial of justice. Access to a court, in substance, cannot be limited to the right to seize a court but must include the right to have that court function properly within a reasonable time.

The Court has dealt a number of times with the relationship between Articles 6 and 13. In some cases, after finding a violation of Article 6, it limited itself to stating that it “does not consider it necessary also to examine the case under Article 13” (Eur. Court HR, Pizzetti v. Italy judgment of 26 February 1993, Series A no. 257-C, p. 37, para.21). In other judgments , the Court was more precise; it gave the following grounds: “The requirements of that Article are less strict than those of Article 6 and are in this instance absorbed by them” (Eur. Court HR, De Geouffre de la Pradelle v. France judgment of 16 December 1992, Series A no. 253-B, p. 43, para.37).

This argument is, in my view, quite convincing. In fact, Article 13 requires a “national authority” to decide whether a Convention right has been violated and to provide a remedy. However, a “tribunal” within the meaning of Article 6 para.1 could only be “supervised” by another court. In effect, Article 13 would then mean nothing less than a right to appeal, even in civil cases and after a second or even third instance - and delays are frequent in appeal proceedings.

For these reasons I remain convinced that, whenever Article 6 is at issue, there is no room for the application  of Article 13, whatever the particular aspect of the right of access to a court and to fair proceedings.

(Or. English)