PARTLY DISSENTING OPINION OF JUDGE PETTITI, APPROVED BY JUDGES LOPES ROCHA AND RUIZ-JARABO COLOMER

(Translation)

I voted with the majority for the applicability of Article 6 (art. 6) as regards the length of the proceedings, but for different reasons. Where the procedure in question is an interlocutory procedure or a preliminary question procedure which under the national rules on jurisdiction goes up to the Constitutional Court, it is my opinion that the proceedings in such a Constitutional Court contribute to the overall length and that therefore the period of stagnation can be examined from the point of view of Article 6 (art. 6) concerning the reasonable length of proceedings.

The position is completely different in regard to the applicability of Article 6 (art. 6) for all the rules of fair trial - public and adversarial proceedings, equality of arms etc. - at the stage of Constitutional Court proceedings. The question cannot be examined without first defining the nature and function of a Constitutional Court , the proceedings, the parties and civil rights and obligations.

To define a Constitutional Court or a Supreme Court it is necessary to identify its functions, which may vary from State to State. Where a Constitutional Court or a Supreme Court has the task of trying a Head of State or ministers, it is performing a judicial function in the traditional sense. Some such courts have jurisdiction to hear electoral disputes under a different procedure.

Where the task of the Constitutional Court or Supreme Court is to examine the compatibility of a law with the Constitution, it is acting as a supreme constitutional organ, whose role is to ensure the respect of the separation of powers and to safeguard fundamental values, constitutional rights being regarded as equivalent in part to fundamental rights. This role closely resembles that of the European Court , which must ensure respect of human rights and the compatibility of national decisions with the requirements of the Convention. At present the applicants in the system of the European Convention on Human Rights are still not parties to the proceedings before the European Court . In addition, the latter ’ s rulings do not take effect " erga omnes ".

The nature of a Constitutional Court is by definition "political" in the highest sense of the term. It is therefore a " sui generis " court which is not equivalent to an ordinary or traditional court, before which opposing parties appear and whose function is to resolve a dispute between the latter.

Some Constitutional Courts are confined almost exclusively to resolving disputes between the political authorities or to settling disputes deriving from the operation of political powers and the organisation of those powers, or verifying that Parliament respects its powers as delimited by the Constitution and ensuring that domestic elections are lawfully conducted (see J. Robert, General Report, Conference of European Constitutional Courts, 1993, and M. Fromont , Justice constitutionelle en Europe).

The constitutional review may be purely abstract, concern a general rule, be initiated by a political authority and lead to an annulment or declaration of nullity " erga omnes ". The concrete review allowed under certain constitutions always concerns the constitutionality of a rule of law, but may be instigated at the request of a judge or on the initiative of an individual. However, this relates solely to referral to the Constitutional Court and does not concern the access of an individual to the constitutional proceedings.

The very diversity of the systems adopted by those of the member States who have set up a Constitutional Court or a Constitutional Council serves to emphasise how closely these questions are linked to the historical and political traditions of each State. Some Courts rule in abstracto , others, in abstracto and in concreto , without however according individuals the status of party.

Professor Jacques Robert ’ s general report in May 1993 to the Conference of European Constitutional Courts set out in detail these different features (in particular for Germany, Spain, Belgium and Italy).

In that same report attention was drawn to the differences of approach as regards the Constitution and the case-law concerning the incorporation or lack thereof of the European Convention, with the rank of superior law or inferior law - which, in my view, underlined the care which is necessary in interpreting the Convention from the point of view of inter-State relations. Regard may be had in this respect to the differences between the procedures under the European Convention for State applications and individual applications, the specific machinery of Article 177 for twelve of the States of the Council of Europe and the special status of the Treaty of European Union. The recognised principle is that the authority with power to draft and amend the Constitution is supreme (see Conseil constitutionnel , 2 September 1992 ).

In so far as constitutional rights correspond to fundamental rights, a question may also arise under the European Convention in this context.

If a law, even one which has been found to be constitutional at national level, is contrary to the Convention, the Convention ’ s machinery may be used, but without interference in the constitutional procedure.

If a law which is theoretically contrary to the Convention has not been found to be constitutional, it is clearly not necessary for the Convention institutions to review the operation of the Constitutional Court . Certain constitutional rights are not included in the fundamental rights guaranteed under the European Convention on Human Rights.

It is therefore necessary to draw essential distinctions in approaching the problem from the point of view of Article 6 (art. 6) of the Convention. Even in the Community system under the Treaty of Rome, the political question of the control by parliaments of the constitutionality of Community directives remains unanswered in 1993; yet certain of these directives may have an effect on fundamental rights. There is a risk that the decision in the Ruiz-Mateos case may have to some extent a more profound effect than a judgment following a State application. Yet it is accepted in the system of the European Convention on Human Rights itself that an application of the latter kind is governed by special rules.

The nature and function of the Constitutional Court means that each sovereign State determines the rules governing referral thereto. In the various national systems, the rules governing such referral are very diverse: head of State, speakers of the parliamentary assembly (with or without quota), various levels of courts, individuals through the intermediary of courts.

Several member States of the Council of Europe do not have a Constitutional Court , and this is not contrary to the Convention. Each State is sovereign in its decision whether or not to have a Constitutional Court ; each State is sovereign in determining the rules governing referral to such an organ. Those responsible for drafting the European Convention and the State signatories thereto never considered giving up sovereignty in these areas. Constitutional review is a review of "constitutional lawfulness". That being so, in the systems which allow, as in Spain, individuals, through the intermediary of courts, to raise an objection as to constitutionality, does this right of indirect referral confer on such individuals the status of "parties" to the proceedings?

Does the procedure in the Constitutional Court give to this stage in the proceedings the character of proceedings falling within the ambit of Article 6 (art. 6)?

These are the basic issues which arise in the Ruiz-Mateos case.

In my view the majority of the Court was influenced by the fact that the law adopted concerning the Ruiz-Mateos group had the effect of an indirect expropriation without fair compensation, but the European Court was not called upon to examine this question because Spain had not at the time ratified Protocol No. 1 (P1) to the Convention.

The majority of the Court would also appear to have been guided by the fact that the law was directed at a limited category of persons. The judgment uses the curious expression "a restricted circle of persons" (see paragraph 63), which has no precise legal meaning.

This gives rise to an entirely different question. May a State adopt specific legislation, "made to measure", directed at a limited category of persons?

This type of legislation exists in all the member States of the Council of Europe, in particular in matters relating to tax. It is not contrary to the Convention. Even if the European Court wished to express an opinion in passing on the nature and scope of such laws, it ought at least to have done so on the basis of precise legal definitions.

Under what conditions does a law become specific or "made to measure"?

In such cases, what are the criteria, the quotas? Can such laws be contrary to the Constitution and on the basis of what criteria? In such circumstances, do all the persons concerned thereby become parties to the constitutional proceedings?

It is my opinion that all this area falls outside the jurisdiction of the European Court and the field of application of the European Convention itself.

The Constitutional Court ’ s decision takes effect on the whole of the national territory. If it declares the law invalid, the latter can no longer be relied upon against the persons concerned. If it finds the law to be valid, the law will be binding on all those to whom it is addressed.

That is why, inter alia, it cannot be suggested that all the addressees of the law should be able to have access to the files in the Constitutional Court, even if referral thereto may be initiated in certain States by an application from individuals, where the application is allowed by a national court which refers the question of constitutionality to the Constitutional Court.

But in the confrontation between the law and the Constitution before the Constitutional Court , only the legislature or the political organ which has referred the matter or the court which has raised the question may be permitted to examine the file before the Constitutional Court .

To seek to confer the status of parties on individuals, where a court refers a question of constitutionality, would have the effect of altering the constitutional power of a sovereign State to determine the rules governing the referral of matters to the Constitutional Court .

If the applicant, where his request that a question be referred is allowed, acquires the right of access to the memorials and evidence in the constitutional proceedings, he becomes, to a certain extent, a party to those proceedings; in other words, he is accorded rights which are almost identical to those conferred on the authorities with the right to refer to the Constitutional Court: speakers of parliament, members of parliament, " Defensor del Pueblo", who are entitled to make known their position.

The fact that the Counsel for the State, filing a memorial in the Constitutional Court, is the same or belongs to the same corps as the one who intervened in the Ruiz-Mateos trial, is not material, because their intervention does not arise in the same institutional or constitutional framework. There again, in my view, the majority has reasoned as if there was a dispute between parties concerning civil rights and obligations, in other words, within the meaning of the European Court ’ s case-law, on private rights, the denial of which could have decisive consequences on the position of the person concerned.

The constitutional procedure is an encounter between a law and the Constitution, a debate between the legislature and the institution responsible for reviewing constitutionality with the aim of protecting the fundamental constitutional rights.

The decision in the Ruiz-Mateos case may have the indirect effect of compelling a State to change its constitutional system or the procedure relating thereto, which, I consider, would not be in conformity with the European Convention. It may be possible to relativise to the maximum extent the interpretation of the judgment, but, in my view, that would have called for a different reasoning.

Admittedly, in the Spanish system, no amparo appeal lies in relation to Article 33 of the Constitution, but the European Convention on Human Rights does not require such an appeal in the judicial systems of the member States.

In any event, an amparo appeal did lie in respect of Article 24 of the Constitution; it would have made it possible to raise the question of fair trial on which the Constitutional Court could have ruled.

The Ruiz-Mateos group did not avail itself of this remedy.

It is true that the lower courts agreed to refer the questions of constitutionality to the Constitutional Court . If they had refused to do so (Article 37 of the Institutional Law), it would not have been possible to rely on the European Convention and Article 6 (art. 6). The fact that they agreed to refer the questions does not mean that they recognised that the Ruiz-Mateos applicants had the status of "parties" in the Constitutional Court .

Once the matter has been referred to that court, irrespective of the method of referral, the confrontation between the law and the Constitution becomes the subject of the proceedings.

Inevitably, the Constitutional Court ’ s decision on the validity of the law has consequences for all persons to whom the law is addressed. This cannot confer on individuals the right to become "parties".

Thus, by way of comparison, the challenge to the constitutionality of the Maastricht Treaty in the German Constitutional Court does not confer on all German citizens the right to intervene in the Constitutional Court or the right to have access to the latter ’ s files.

From the point of view of Article 6 (art. 6) of the Convention, the proceedings in the Constitutional Court of confrontation between law and Constitution are not "proceedings" within the implicit meaning of the Convention (paragraph 63 of the judgment). In any event, they did not concern in this case civil rights and obligations. The case was not about personal rights contested by another party, but the conformity of the law in question with the Constitution, regardless of any effects that law might have on the persons to which it was addressed. Any law, even if it is in conformity with the Constitution, gives rise to positive or negative effects on the interests of individuals, but that does not mean that such effects can give rise to disputes concerning civil rights and obligations.

The precedents cited by the majority in the judgment are not in my view relevant, because they dealt with problems different from those arising in the Ruiz-Mateos case or did not concern a Constitutional Court ruling on the nature of the law.

In the Ruiz-Mateos case, the outcome of the constitutional proceedings was of a preliminary nature but the proceedings did not concern civil rights.

The application of Article 6 (art. 6) to constitutional proceedings raises major problems. It is my opinion that Article 6 (art. 6) was conceived as applying to criminal trials and to proceedings between parties before a court. To extend to the constitutional courts the rules of fair trial, such as the principle of adversarial process, equality of arms, the requirement that hearings be public, would have very negative consequences on the constitutional balance of States and would deform the rule of referral to transform it into a right of access to files in a State and political dispute.

This view finds support in other authorities. Study of legal dictionaries and other works shows that the terms "instance" and "parties" have a limited scope. This is how the words "instance" and "parties", as used in the previous case-law of the European Court , may be defined:

"Instance" :

- procès où il y a demande et défense (Littré), procédure judiciaire ayant pour objet de saisir le tribunal d ’ une contestation (Larousse XIXe siècle), procédure entre tel et tel (Dict. Académie)

- mise en oeuvre du droit qu ’ on a ou prétend avoir (Grande encyclopédie)

- lien pour les parties (D. Capitant)

"Partie" :

- qui plaide contre quelqu ’ un (Littré)

- personne qui plaide contre quelqu ’ un soit comme demandeur, soit comme défendeur (Larousse XIXe siècle)

- partie litigante (D. Capitant ).

Under these definitions, it cannot be accepted that applicants such as the Ruiz-Mateos family, who have requested the referral of a question of constitutionality, should become parties to the proceedings or acquire a right of access to the file.

When the European Court previously expressed a view on the question of Constitutional Courts, it was in the context of the examination of the interpretation by such courts of provisions of the European Convention, and in cases in which the national decisions might violate the Convention.

The Ruiz-Mateos case did not concern the examination of a Spanish law which would in theory have been contrary to Protocol No. 1 (P1) if Spain had ratified it, but a domestic confrontation between a law and the Constitution.

Accordingly, I take the view that Article 6 (art. 6) was not applicable as regards the fairness of the proceedings in connection with access to the file. In any event there was no violation of Article 6 (art. 6) on this point.

The general problem of the applicability of Article 6 (art. 6) to constitutional proceedings remains unanswered. The interpretation may vary according to the systems and according to the aspect of fair trial in question, if necessary taken separately from the other elements thereof.

The future work of the Conference of European Constitutional Courts, in co-operation with the European Court of Human Rights and the Court of Justice of the Communities, will provide useful indications for additional reflection, enriched by the experience of the Constitutional Courts of new member States.