PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the finding in the judgment that Article 6 § 1 of the Convention is not applicable in the present case. The majority based their finding on Pellegrin v. France (no. 28541/95, §§ 65-67, ECHR 1999-VIII), which established the rule that “employment disputes between the authorities and public servants whose duties typify the specific activities of the public service, in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State, are not ‘ civil ’ and are excluded from the scope of Article 6 § 1 of the Convention” (see paragraph 16 of the judgment).

As I understand it the philosophy behind this rule is that disputes involving questions of public authority or relating to the general interests of the State as governed by public law and government policies should not be the subject of judicial disputes. The Court however proceeded to state in the present case that on the basis of the same case-law, Article 6 § 1 of the Convention is also not applicable “to the dispute between the applicant and his command and the ensuing enforcement proceedings, which must be regarded as an integral part of the ‘ trial ’ for the purposes of Article 6” (see paragraph 19 of the judgment). That is exactly where my approach differs from that of the majority.

The “ensuing enforcement proceedings” concern the execution of the judgment. The relevant judicial proceedings ended with a judgment debt, which legally amounts to a separate autonomous legal act which by itself creates rights or duties and whose execution is unrelated to the legal or other principles and considerations involved and applied by the court in adopting the initial judgment. Indeed, the execution of a judgment is governed by different legal principles and considerations.

Therefore, the grounds which were given by the majority and which amount to the raison d ’ être of the Pellegrin jurisprudence do not apply in this case. A judgment may of course be considered procedurally to be part of a trial but that does not, in my opinion, mean that its execution is governed, or even influenced, by the principles which led to its adoption. Seeing that the principles which lead to the conclusion that a certain judicial dispute is not to be regarded as “civil” do not extend to the separate autonomous act of the enforcement of the judgment, I cannot see why such enforcement must necessarily be regarded itself as not “civil” purely because it concerns a judgment delivered following the dispute in question.

What creates the requirement for the execution of the judgment is simply the separate obligation resulting directly and exclusively from the judgment itself (as with any other judgment), regardless of the preceding judicial examination or even the reasons on which it was based.

In other words, here we are simply concerned with the enforcement of a right to collect a judgment debt by virtue of a judgment delivered by a

competent court that had acquired the force of res judicata . This situation in my opinion is unaffected by the Pellegrin case and falls within the concept of the “determination of a civil right” for the purposes of Article 6 § 1 of the Convention. It is useful to point out here that the Pellegrin rule amounts to a jurisprudential restriction of the principle of access to a court and must therefore be interpreted narrowly.

CONCURRING OPINION OF JUDGE TULKENS

(Translation)

I voted for the non-applicability of Article 6 in this case solely in deference to the Grand Chamber judgment Martinie c. France of 12 April 2006 .