DISSENTING OPINION OF JUDGE BERNHARDT

I am unable to follow the majority in this case. What seems to be a case of minor importance concerns in reality a fundamental problem: the extent of the international control of decisions of national courts.

On the one hand, every person has the fundamental right to have fair court proceedings including the right to submit arguments and to get an answer to his or her submissions. On the other hand, national courts must enjoy considerable flexibility in selecting the arguments and reasons essential for the decision of the cases before them. An international court should criticise national courts only if it is more or less obvious that the national court has not taken cognisance of essential arguments. Were it otherwise, the international court would have itself to conduct a detailed investigation of national law in order to find out whether an argument put forward by a party had been answered adequately or not.

It is true that the Court in the present judgment (paragraph 30) tries to avoid such an investigation of national law, while stressing that the decision of the appeal court does not even mention the question of limitation. But this implies either that every argument invoked by one party must be expressly answered in the judgment of the national court or that this is at least necessary if arguments are important - but who decides whether a defence submission or an argument is important?

Here the Spanish Constitutional Court , which has a far greater knowledge of Spanish law than most international institutions, has given a plausible explanation for the fact that the Audiencia Provincial did not expressly discuss the applicant ’ s submission that the action was time-barred (see paragraph 12 of the judgment).

[*]  The case is numbered 39/1993/434/513.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 303-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.