PARTLY DISSENTING OPINION OF JUDGE BERNHARDT

1. I agree with the majority of my colleagues that Article 6 para. 1 (art. 6-1) of the Convention has been violated as far as the length of the proceedings is concerned. If the final decision in a civil action before an ordinary court is dependent on an interim procedure in the Constitutional Court , the length of this interim procedure cannot be deducted from the total length of the proceedings; the case itself must be settled in a reasonable time.

2. Different considerations apply in respect of the fairness or the so-called adversarial character of the proceedings as far as the interim procedure before the Constitutional Court is concerned.

I admit that the circumstances in the present case may appear unsatisfactory: the parties in the proceedings before the Spanish civil courts were the applicants on the one side and the State on the other side. When the question of the compatibility of the nationalisation law with the Constitution was referred to the Constitutional Court , only the State was entitled to submit further observations, the applicants were not permitted to do the same and to comment on the arguments of the Government. Even if this inequality is mitigated by the fact that the main arguments of the applicants had already been developed during the proceedings before the civil courts, and the files containing these arguments were available to the Constitutional Court , the impression remains that the "parties" did not have the same chances.

But the question remains whether Article 6 (art. 6) of the Convention is applicable also to the proceedings in the Constitutional Court . These proceedings concern exclusively the legal question of the compatibility of the law in question with the constitution, and they are not designed to determine civil rights; Article 6 (art. 6) of the Convention is therefore not applicable. The distinction seemingly drawn in paragraph 63 of the judgment between "a law which directly concerns a restricted circle of persons" and other more general legal provisions is in my view neither practicable nor suitable for the great variety of modern legislation.

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

European states apply different methods in order to ensure the compatibility of legislation with their constitutions. Some of the methods used are outside the court system of the state concerned and give individual citizens no possibility to intervene. Some states have chosen a method according to which draft legislation is scrutinised at a certain stage of its preparation either before or after presentation to parliament. In other countries constitutional review is entrusted to courts or court-like institutions of various types. In some countries there seems to be no constitutional review. In others the practical possibilities of such a review may be limited.

Under the Spanish system a constitutional court has been set up which has procedural rules enabling individuals to submit their views indirectly through the ordinary courts. This is set out in detail in the judgment in this case.

In my opinion, our Court cannot demand that access to the Constitutional Court in Spain be regulated in a specific way as is required by the majority of our Court. Given the nature of its role and competence, proceedings before the Spanish court do not, in my opinion, fall within the field delimited by the wording of Article 6 (art. 6) of the Convention.

CONCURRING OPINION OF JUDGE GÖLCÜKLÜ, APPROVED BY JUDGE WALSH

(Translation)

Although I agree with the conclusions in paragraphs 53 and 68 of the judgment, I consider it necessary to clarify my position on the applicability of Article 6 para. 1 (art. 6-1).

In the first place, there is in my view no doubt that the Spanish Constitutional Court must be regarded as a "tribunal" within the meaning of Article 6 (art. 6) of the Convention, despite its specific nature, its structure and its jurisdiction (see paragraph 56 of the judgment). It must in principle respect the requirements of that provision, even though its jurisdiction ratione materiae may mean that it is permissible in certain circumstances for limitations to be placed on, or exceptions allowed to, the rights guaranteed under Article 6 para. 1 (art. 6-1).

To reach this conclusion I start, as in paragraph 60 of the judgment, from the idea that Article 6 (art. 6) is indeed applicable in this instance and that it is so on the basis of the Court ’ s well-established case-law.

In the first place, I consider, like the Commission, that the proceedings before the Constitutional Court concerned a "right" within the meaning of Article 6 para. 1 (art. 6-1). There was a dispute (contestation) over the very existence of a right which could be said, on arguable grounds, to be recognised under domestic law (see, as the most recent authority, the Kraska v. Switzerland judgment of 19 April 1993 , Series A no. 254-B, p. 48, para. 24). Moreover, the Spanish courts acknowledged this, because they expressed doubts on the constitutionality of Law no. 7/1983 and observed that if the Constitutional Court found the legislation in question to be incompatible with the Constitution, the applicants ’ claims would have to be allowed. The Constitutional Court ruled the questions referred by those courts admissible. The applicants could therefore reasonably claim to have been deprived of the enjoyment of their shares in circumstances contrary to the law (see, mutatis mutandis, the Lithgow and Others v. the United Kingdom judgment of 8 July 1986 , Series A no. 102, p. 70, para. 192).

As to the question whether the right in issue was a "civil" right, the relevant criterion is in my view that which the Court applied in paragraph 35 of the judgment in order to determine the period to be taken into consideration as regards compliance with the "reasonable time" requirement, namely the potentially decisive influence of the Constitutional Court ’ s decision on the outcome of the civil proceedings (see the Bock v. Germany judgment of 29 March 1989, Series A no. 150, p. 18, para. 37). Indeed, according to the Court ’ s case-law, this criterion applies to each of the aspects of the right protected by Article 6 para. 1 (art. 6-1) (see the Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 39, para. 94, and the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, p. 17, paras . 34-35).

This line of authority received support very recently from the Kraska v. Switzerland judgment of 19 April 1993 , concerning the right to a fair trial. The Court reiterated in that decision that "proceedings come within the scope of [Article 6 para. 1] (art. 6-1), even if they are conducted before a constitutional court, where their outcome is decisive for civil rights and obligations" (Series A no. 254-B, pp. 48-49, para. 26). The circumstances referred to in paragraph 59 of the judgment lead me to the view that that was the case in this instance.

I therefore conclude, with the majority of the Court, that Article 6 para. 1 (art. 6-1) was applicable in the present case and that, for the reasons indicated by the Court in paragraphs 61 to 68 of the judgment, that provision has been breached.