CONCURRING OPINION OF JUDGE ZIEMELE

I voted with the majority in favour of striking the application out of the list of cases in view of the friendly settlement reached by the parties (see Article 37 § 1). Nevertheless, the hesitations of Judges Zagrebelsky and Jaeger in their separate opinions are important. They raise the questions of the basis and the scope of the Court ' s competence as concerns the assessment of general measures “aimed at resolving the underlying general defect in the ... legal order” (see Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 37, ECHR 2005-IX) of the respondent State, in particular for the purposes of the friendly settlement in such circumstances as those presented by the Hutten- Czapska case.

As to the basis of the Court ' s competence, the arguments that have been used so far by the Court in explaining its approach in so-called pilot judgment cases may be summed up as follows.

First of all, the Court explains that the notion of “respect for human rights” requires it to examine cases from the point of view of “relevant general measures” (ibid., § 36). Secondly, in the Broniowski case the Court, by reference to the Committee of Ministers ' Resolution (Res(2004)3) of 12 May 2004 and Recommendation ( Rec (2004)6) of the same day, pointed out that under Article 46 it could indicate the type of measure that the respondent State might take to put an end to the systemic situation (see Broniowski v. Poland [GC], no. 31443/96, §§ 189-194, ECHR 2004-V). Thirdly, through the development of the relevant case-law the Court has already created a legal basis for the assessment of cases disclosing a systemic problem.

In my view the development of the so-called pilot-judgment procedure is also linked to the notion of inherent powers of an international court. The international courts, including the European Court of Human Rights, have resorted to these powers on a regular basis. Indeed, the Court can resort to its inherent powers to make the assessment of general measures part of a friendly settlement, especially where respect for human rights so requires. Furthermore, it should not be overlooked that important elements of State consent are present allowing the Court to take this direction, not least because the invitation to the Court to identify an underlying systemic problem and its source passed through the procedure adopted in the Committee of Ministers for important matters (see Article 15 (b) and Article 20 (a) of the Statute of the Council of Europe).

As to the scope of the Court ' s competence, the fact that the Court has the jurisdiction to develop procedures, especially where States have invited it to do so, does not answer the question about the scope and the limits of the exercise of such a power. In this connection, the question that the International Court of Justice has faced is pertinent: “... The real question is

not one of power, but whether the exercise of power in a given case is consonant with due administration of justice” [3] .

In Hutten- Czapska , as evidenced by the list of measures and interests to be taken into consideration (see paragraph 247 of the judgment on the merits), the structural problem is truly a large-scale one and requires the adoption and carrying out of complex measures of a legislative and administrative character with an economic and social content. Such cases raise legal and practical difficulties that the Committee of Ministers is much better equipped to monitor than the Court, especially as to the implementation of complex, long-term measures. A friendly settlement with an individual applicant where general measures are also being assessed thus constitutes a tricky matter for the Court. In my view the Court has to be very careful and it has to base its reasoning on the compliance of such an approach with the underlying principle of individual justice in the European Convention system, with the principle of due administration of justice (potentially affected persons might well be better served if and when the State implements the general measures) and with the natural limits of the action of a judicial body regarding a non-exhaustive list of suggestions it may have made following the finding of a general defect in the lega l system of a respondent State.

[1] 1. The provision as applicable on the date of the adoption of the principal judgment read: “An increase whereby rent or other charges for the use of the dwelling would exceed 3% of the reconstruction value of the dwelling within 1 year, may take place only in justified cases. At the tenant’s written request, the landlord shall, within 7 days, give reasons for the increase and its calculation in writing.” (see Hutten- Czapska , cited above, § 125).

[2] 1. The date of entry into force of the Constitutional Court ’s judgment of 19 April 2005 (see Hutten- Czapska , cited above, §§ 136-141).

[3] . J oint Dissenting Opinion of Judges Onyeama , Dillard, Jimenez de Arechaga and Sir Humphrey Waldock , Nuclear Tests Case ( Australia v. France ), ICJ Reports 1974, para . 23.