CONCURRING OPINION OF JUDGE MARTENS

1.   The applicants submitted that Article 6 para . 1 (art. 6-1) was violated because the defence of privilege amounted to a restriction on their right of access to court with respect to the statements in the Inspectors ’ report which were damaging to their reputation (paragraph 64 of the Court ’ s judgment).

2.   The Government denied the applicability of Article 6 para . 1 (art. 6-1) since in their opinion the applicants had no actionable claim to a civil right under English law (paragraph 66).

3.   The outcome of the Court ’ s reasoning in paragraphs 65-67 of its judgment is that the Court "proposes to proceed on the basis that Article 6 para . 1 (art. 6-1) is applicable to the facts of the case". I support that modus procedendi , although I find it difficult to subscribe to the reasoning which led to it.

4.   The starting-point for the Court ’ s reasoning is its doctrine that Article 6 (art. 6) "extends only to ‘ contestations ’ (disputes) over (civil) ‘ rights and obligations ’ which can be said, at least on arguable grounds, to be recognised under domestic law" (paragraph 65).

5.   In my concurring opinion in the case of Salerno v. Italy (judgment of 12 October 1992, Series A no. 245-D, pp. 57 et seq.), I examined the genesis of this doctrine. In paragraph 3.4 of that opinion I recalled that the doctrine had been fundamentally criticised on repeated occasions by several judges [1] , but I left open whether I too subscribed to that criticism. I came to the conclusion that in any event there was no room for the "arguable claim" test where the applicant has in fact had access to a court which has decided on the merits of his claim: a decision on a non-arguable claim should also meet the requirements of Article 6 para . 1 (art. 6-1).

6.   The present case demonstrates that also within the context of an access-to-court issue the "arguable claim" test is an unfortunate fea ture of the Court’s case-law [2] . It has obliged the Court to adopt a reasoning whose subtleness, to my mind, seems hardly convincing. Nor clear, for what does it mean to say that "Article 6 para . 1 (art. 6-1) may have a degree of applicability" and in what cases will this extraordinary phenomenon occur? When does the answer to the question whether a person has an actionable domestic claim depend not only on the substantive content of the relevant right as defined under national law but also on the existence of procedural bars?

7.   In my opinion the Court ’ s reasoning would have been simpler and more persuasive without all this meandering necessitated by its maintaining the "arguable claim" test: there could be no doubt as to the applicants ’ right to reputation having been damaged. Whether or not a right to reputation is enshrined in Article 8 (art. 8) of the Convention is immaterial, since such a right does exist, at least in principle, under all our national laws and it has not been contended that in this respect English law makes an exception by clearly and fully excluding such a right. Neither can there be doubt as to the right to reputation being a "civil" right within the autonomous meaning of that notion under Article 6 para . 1 (art. 6-1). It follows that under this provision, whenever a person ’ s reputation has been interfered with, he or she is in principle entitled to access to a court meeting its requirements. Consequently, the question whether under English law the defence of privilege constitutes a substantive limitation on the content of the right to reputation or a procedural barrier to access to court is immaterial. On this approach the Court could have gone into the essential question whether the contested limitation was justified under the conditions stated in its case-law (paragraph 68) almost immediately.

[*]  Note by the Registrar.  The case is numbered 28/1993/423/502.  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.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 294-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] See, inter alios , the separate opinion of Judge De Meyer in the case of H. v. Belgium (judgment of 30 November 1987, Series A no. 127-B, pp. 48 et seq.).

[2] I note incidentally that I also share Judge De Meyer's opinion as to the role of the requirement that there must be a "dispute" ("contestation"); from which it follows that I am not happy with paragraphs 56 et seq. either.