SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

While concurring in the result, I very much regret that I cannot agree with certain parts of the supporting reasoning in the judgment.

The reasons set forth in paragraphs 34 and 37 amply suffice to establish that "the instant case involved the ‘ determination ’ of a ‘civil right’" [1] .

It was pointless to repeat, in paragraphs 30, 31 and 35, a number of general considerations already expressed in previous judgments, the more so as some of these considerations are seriously open to dispute.

In particular, paragraph 30 once again contains the assertion that Article 6 § 1 (art. 6-1) of the Convention 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".

As shown recently in the cases of W, B, R and 0 v. the United Kingdom [2] , this unfortunate assertion, which was refuted beforehand by Judge Lagergren in the Ashingdane case [3] , is contested by at least six members of the Court. It was not repeated in the judgment on the Baraona case [4] . Neither should it have been repeated in the present case.

Furthermore, the statements reproduced in paragraph 31 put too much weight on the word "contestations" (disputes), which appears only in the French text of Article 6 § 1 (art. 6-1) of the Convention and which has no equivalent in the English text. The latter refers, more generally, to the determination of rights and obligations and not only to decisions to be taken on "contestations" concerning rights and obligations.

Excessive reliance on the notion of "contestations" may entail too narrow an interpretation and application of the principles which those who drafted the provisions concerned were attempting to define.

Similarly, the requirement that the "contestation" must be "genuine and of a serious nature" may likewise have too restrictive an effect.

If reference is to be made to previous judgments, what should not be forgotten above all is the statement made by the Court in 1968 in its judgment on the Wemhoff case : "given that [the Convention] is a law-making treaty, it is ... necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligation s undertaken by the Parties" [5] .

[*]  Note by the Registrar: The case is numbered 12/1986/110/158.  The s econd 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 29 in fine of the judgment.

[2] Judgments of 8 July 1987, Series A no. 120, p. 32, and no. 121, pp. 39, 83 and 129.

[3] Judgment of 28 May 1985 , Series A no. 93, p. 27.

[4] Judgment of 8 July 1987 , Series A no. 122.

[5] Judgment of 27 June 1968 , Series A no. 7, p. 23, § 8.