PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

A. Introductory remarks

To my regret I am unable either to accept fully the reasoning of the judgment concerning the first limb of the case (although I approve the conclusion, namely the finding of a violation of Article 6 para. 1 (art. 6-1) from the point of view of "reasonable time"), or to subscribe to the Court ’ s reasoning and conclusion regarding the second limb, concerning the principle of "fair trial".

In order to clarify my position, I should like to make the following comments:

1. The case originated in an expropriation carried out under a law, which moreover is flawed by reason of its being a law made for a specific occasion ( Massnahmegesetz - law dealing with a special individual case), thus depriving the applicants of any normal legal means of contesting the expropriation. However, as Spain had not ratified Protocol No. 1 (P1) at the material time, the applicants cannot rely on the protection which, under the Convention, Article 1 of that Protocol (P1-1) afforded them; accordingly they cannot invoke Article 13 (art. 13) of the Convention either.

2. In order to precipitate a review of the expropriation law in the Constitutional Court, they instituted what amounted to proceedings to recover possession ( interdicto de recobrar ), which as regards the substance (the restitution of the property) was from the outset bound to fail, since an action for restitution ( rei vindicatio ) could not succeed unless the expropriation law was declared void as unconstitutional.

Nevertheless the proceedings to recover possession, as such, may at a stretch be regarded as covered by Article 6 (art. 6) of the Convention (what is debatable in my view is whether the "right" invoked by the applicants was in fact arguable).

3. While I deplore the clearly unsatisfactory legal position in the case before us, it is not for the Convention organs to "allow" the applicants ’ claims by having recourse to Article 6 (art. 6) in order to remedy the situation under domestic law, which is undoubtedly deficient from the point of view of the general principles of law, but not contrary to the Convention, for the reasons explained under no. 1.

B. Compliance with the reasonable time requirement

As the possession proceedings were covered by Article 6 para. 1 (art. 6-1) of the Convention (see paragraph 2 in fine above) they must satisfy the requirements of expedition laid down therein.

As regards the period to be taken into consideration, the two sets of interlocutory proceedings in the Constitutional Court must be taken into account, even though Article 6 para. 1 (art. 6-1) is not directly applicable to such proceedings. They are taken into account solely from a factual point of view as interlocutory proceedings which resulted in the suspension of the main proceedings (the possession action). In this context it is in principle immaterial whether the proceedings are preliminary proceedings or merely interlocutory proceedings before any other judicial, administrative or disciplinary body of the State in question (see the Lechner and Hess v. Austria judgment, Series A no. 118, p. 16, para. 39, last sub-paragraph, and pp. 19 et seq., paras . 52 et seq.), as the latter also incur international responsibility in respect of the length of such interlocutory proceedings (the situation would be different for interlocutory proceedings which fall outside the control of the State in question, for example preliminary proceedings in the Court of Justice of the European Communities under Article 177 of the EEC Treaty).

From this point of view, I consider the Court ’ s reasoning superfluous in so far as it lays too much stress on the preliminary nature of the constitutional proceedings in issue (see paragraph 37 of the judgment). The justification for taking those proceedings into account for the overall assessment of the duration of the main proceedings derives simply from the fact that they were interlocutory proceedings which resulted in the interruption of the main proceedings.

On the other hand, interlocutory proceedings necessarily increase the complexity of the main proceedings and therefore constitute a factor which must be taken into consideration when determining the overall length of the main proceedings.

Even if allowance is made for that factor, the main proceedings as a whole exceeded a reasonable time within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.

C. The right to a fair trial

Article 6 para. 1 (art. 6-1) provides for a right to a fair trial in so far as the object of the proceedings in question is a decision on a contestation (dispute) over a civil right or obligation (or in the determination of any criminal charge).

This "fair trial" guarantee applies equally for preliminary interlocutory proceedings in so far as the object of such proceedings is also a matter covered by Article 6 (art. 6), the mere fact that they are preliminary (or "decisive") for proceedings subject to Article 6 para. 1 (art. 6-1) being immaterial in this respect.

To give an example: in divorce proceedings involving foreign elements, the nationality of the spouses is a preliminary issue inasmuch as the substantive law applicable in the case depends on this issue and the decision taken thereon by the competent administrative authority binds the courts; nevertheless, the procedure concerning nationality is not covered by Article 6 (art. 6). It would be possible to give innumerable examples of proceedings which are in one way or another preliminary to the decision on a dispute over a civil right, but that does not mean that the interlocutory proceedings in question are covered by Article 6 para. 1 (art. 6-1).

The present case provides another example. The outcome of the constitutional proceedings determines a preliminary issue for the civil dispute. However, the subject of the constitutional proceedings is not a dispute over a civil right, but the review of the constitutionality of a law; the fact that in this instance the law subject to constitutional review was a law adopted to deal with a special individual case makes no difference in this connection. Moreover, parliamentary proceedings to amend the law in question would likewise be "preliminary" for a civil dispute, but no one would seek to apply the procedural guarantees of Article 6 (art. 6) to them.

If the question is approached solely on the basis of well-defined legal classifications, the conclusion must be that recommended in this dissenting opinion, namely the non-applicability of Article 6 para. 1 (art. 6-1) to the constitutional proceedings in the present case.

The Court reached a different conclusion by making vague references to equally vague and uncertain notions ("close link", between the subject-matter of the two types of proceedings, "so interrelated", at paragraph 59), indeed even more vague than those it had developed in other circumstances, such as the Ringeisen rule, whose use in the present case confirms its fallacious nature, to which I have drawn attention on other occasions (separate opinion in the König v. Germany case, Series A no. 27, pp. 46 et seq., and Le Compte , Van Leuven and De Meyere v. Belgium case, Series A no. 43, pp. 35 et seq.). In any event, they are not sufficient to constitute solid and convincing reasons for the applicability of Article 6 para. 1 (art. 6-1) to a given procedure.

D. Consequences of the approach adopted by the Court

As in other cases the "policy" of extending excessively (in other words beyond its natural and typical scope) the applicability of Article 6 para. 1 (art. 6-1) results inevitably in the limitation of the substance of the procedural guarantees contained therein in a way which is scarcely compatible with the aim of the provision (see my separate opinion in the Le Compte , Van Leuven and De Meyere case, cited above, pp. 37 et seq.).

I observe this phenomenon in this case too. Even if due regard is had to the particular features and the specificity of constitutional proceedings (paragraph 63 of the judgment), it may be asked whether the substance of the procedural guarantees secured under Article 6 para. 1 (art. 6-1) is still protected (this could already be seen in the Commission ’ s decision on the admissibility of 6 November 1990 , paragraph 4 of the "Law" part).