CONCURRING OPINION OF MR M.A. NOWICKI JOINED BY

MM J.-C. SOYER, MS G.H. THUNE, MM C. ROZAKIS, E. ALKEMA

AND M. VILA AMIGÓ

I concur with the majority of the Commission considering that Article 13 also applies in principle to violations of the Convention committed by courts. I fully share the reasoning leading to this conclusion expressed in paragraph 98 of the Commission’s report.

The majority of the Commission found in this case that there had been no violation of Article 6 para. 1 of the Convention; the applicant had, though, an “arguable claim under that Article that permitted examination of the case from the angle of Article 13. The Commission stated that the latter Article had been violated through the absence in the Polish legal system of any effective remedies to challenge the excessive duration of the proceedings.

As I see it, a violation of Article 13 should also be found in the case of violation of Article 6. Admittedly, in its Pizzetti judgment, the Court, having found a violation of Article 6 did not consider it necessary also to examine the case under Article 13; in my opinion, however, this view requires reconsideration.

Such conclusion is only permissible in the case of claims under Article 6 in connection with which that Article offers stronger guarantees compared to Article 13, and should therefore be applied first and foremost.  In that situation, it is absolutely sufficient to state a violation of Article 6, and the examination of claims under Article 13 is not necessary. The situation is different, though, if a claim under Article 13 concerns the absence of a remedy against an alleged violation of precisely Article 6, as is the case here, due to the length of proceedings. It would be outright illogical and inconsistent with the purpose of that Article to decide that there is no need to consider Article 13 in such circumstances. This situation is by no means different from all the remaining cases of application of Article 13, which – as we know – does not operate independently and has always to be related to a claim of violation of another substantive provision of the Convention or its Protocols, including Article 6 para. 1. In such circumstances, in my view, the Convention organs are also required to pronounce themselves explicitly on a possible violation of Article 13.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.