SEPARATE OPINION OF JUDGE DE MEYER

While concurring in the practical result of this judgment, I have to express some reservations.

I. In my view one cannot require that a grievance must be "arguable" in order to deserve the existence of a remedy as mentioned in Article 13 (art. 13) of the Convention [1] .

In principle, such a remedy must be available to everyone who believes, for whatever reason, that any of his fundamental rights have been violated [2] . The question whether the complaint is, or is not, arguable has then to be considered by the "authority" concerned, and later on, if need be, by the Commission and by ourselves.

In practice, however, the question whether an "effective remedy before a national authority" does or does not exist, has, in my opinion, only to be considered by us if we find that the right which is alleged to be violated was, indeed, " violated" [3] .

The non-existence of such remedy is, then, an aggravating circumstance of that violation.

One may feel that the very wording of Article 13 (art. 13) in some way expresses that idea, since it refers to rights which "are violated" and not, as Article 24 (art. 24), to an "alleged breach" of the Convention nor, as Article 25 (art. 25), to a person, organisation or group "claiming to be a victim of a violation" of his, her or its rights.

If we decide that the right concerned was not violated, the non-existence of a remedy as mentioned in Article 13 (art. 13) has no fu rther practical significance [4] .

II. As I said already in a separate opinion concerning the case of W v. the United Kingdom [5] , I am not convinced that "the Commission ’ s decision declaring an application admissible determines the scope of the ca se brought before the Court" [6] .

I feel that we have to take each case referred to us as a whole, with all the questions of fact and of law arising in it.

In the present case however it appears to me that, except for the complaint concerning the stopping of the letter written by Mr. Boyle t o Mr. McDougall in July 1981 [7] , the petitions of the applicants were, as far as the rights defined in Article 8 (art. 8) of the Convention are concerned, ill-founded, perhaps not "manifestly", as decided by the Commission [8] , but anyway ill-founded.

According to the reasoning developed above, in section I of this opinion, there was therefore, to the same extent, no further need to consider them in the context of Article 13 (art. 13).

In respect of the complaint concerning the stopping of the letter just referred to, I agree that suffic ient remedies were available [9] . By the way, since that complaint was not brought before the Scottish courts [10] , one may feel that it should have been declared inadmissible under Article 26 (art. 26) of the Convention.

[*]  Note by the Registrar: The case is numbered 19/1986/117/165-166. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] Paragraph 52 of the judgment.

[2] See the judgment of 6 Sept ember 1978 in the case of Klass and Others, Series A no. 28, p. 29, § 64.

[3] To that extent, I disagree with what was said in the Klass and Others judgment, at paragraph 65.

[4] Of course, in an earlier stage of the proceedings, it has some importance for the application of Article 26 (art. 26), since one can hardly conceive how a non-existing remedy should be "exhausted".

[5] Series A no. 121, p. 42.

[6] Paragraph 54 of the judgment in the present case.

[7] Paragraph 15 of the judgment.

[8] Paragraphs 44 and 45 of the judgment.

[9] Paragraphs 66 and 67 of this judgment.

[10] Paragraph 40 of the judgment.