CONCURRING OPINION OF JUDGES BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, MATSCHER AND SPIELMANN (ARTICLE 13 OF THE CONVENTION) (art. 13)

(Translation)

We know that Article 13 (art. 13) is one of the most ambiguous Articles in the Convention and that the Court ’ s doctrine with regard to its application is not yet firmly established. Nevertheless, in its previous decisions the Court has endeavoured to define the scope of this Article (art. 13) (see the Klass and Others judgment, paras . 63 et seq., the Silver and Others judgment, para. 113, and the Sporrong and Lönnroth judgment, para. 88).

One of the most difficult problems raised by its interpretation concerns the perpetrators of the alleged violation of a substantive provision of the Convention, against whom Article 13 (art. 13) guarantees a remedy before a national authority. The provision in question does not contain any limitation in this respect. According to a literal reading of the wording, such a remedy ought to exist even when the alleged violation results from the operation of a statute, which is tantamount to saying that under Article 13 (art. 13) it should be possible for the private individual in question to institute proceedings before a national authority even against national legislation thought to be incompatible with the Convention. This opinion has been expressed in several recent judgments of the Court (see the Silver and Others judgment, paras . 118 and 119, the Campbell and Fell judgment , para. 127, and the Abdulaziz , Cabales and Balkandali judgment, para. 93).

Yet it seems fairly improbable that those drafting the Convention intended the scope of Article 13 (art. 13) to extend to this point as, when the Convention was ratified, only a few Contracting States made legislative provision for private individuals to test the constitutionality of a statute (or its compatibility with the Convention), and this is still the position. It therefore seems that the judgment is right in holding (in paragraph 85) that Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention. However, an observation of this kind, which amounts to a restrictive construction (in French: " réduction terminologique ") of Article 13 (art. 13), ought not to be limited to a mere assertion, without providing at least an indication of the justifying reasons, especially as the contrary principle, which is consonant with the letter of Article 13 (art. 13), has been propounded in some earlier judgments.

A brief separate opinion is not the place to remedy this omission. We will therefore restrict ourselves to outlining the main reasons, which ought to be explained in greater detail in a future judgment, when the occasion arises.

1. As we have already pointed out, the existing legislation in most of the Contracting States supports a restrictive interpretation of the scope of Article 13 (art. 13).

2. From the wording of Article 13 (art. 13) itself, when it refers to violations committed by persons acting in an official capacity, it is also permissible to infer that this provision has primarily in mind possible violations of the Convention committed by entities belonging to the executive or the judiciary.

It was reasoning along these lines which allowed us to agree with the judgment also in respect of the finding under Article 13 (art. 13).

To conclude, we would stress that we are not at all convinced by the argument that it would be inconsistent with the sovereignty of Parliament if its Acts were subject to review by another national authority, since, on the one hand, as a matter of international law, there is no longer any doubt as to the State ’ s responsibility even for Acts passed by its legislature, and, on the other hand, the legislation of a number of States provides for judicial control of Acts of Parliament by a constitutional court.