PARTLY DISSENTING OPINION OF Mr S. TRECHSEL

JOINED BY MM M. NOWICKI AND A. ARABADJIEV

I regret that I cannot follow the majority in their finding that it is not necessary to examine the complaints of the applicant under Article 13 of the Convention. Quite to the contrary, I am of the opinion that there has been a violation of that Article.

It is true that the applicant had the possibility to apply to the Constitutional Court. His appeal was even successful, at least on paper. However, by the end of the day the judgement of the Constitutional Court proved to be powerless. In the terms of Article 13: The applicant had at his disposal a remedy and he could complain of the violation of his fundamental right. Yet, the remedy was not “effective”.

The Commission itself seems to have been of this opinion. I see a certain contradiction in the fact that, on the one hand, the applicant continued to be regarded as a “victim” within the meaning of former Article 25 of the Convention, while, on the other hand, it implies that the appeal to the Constitutional Court was an effective remedy. In para. 43 it says expressly: “The applicant could not obtain redress despite the Constitutional Court’s finding that his rights under Article 81 (1) of the Constitution had been violated”.

My opinion does not, of course, amount to passing a general judgement on the value of the constitutional appeal in Slovak law. Nor does it mean that the Constitutional Court ought generally to have the power to overrule any decision of Parliament, including legislation. Finally, it is not the task of the Convention organs to state in which way the High Contracting Parties should act in order to fulfil their obligations under the Convention.

The only thing I am saying is that, in the present case, the applicant did not enjoy the right to an effective remedy before a national authority as guaranteed by Article 13 of the Convention. I therefore find a violation of the Convention on this issue, too.

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