CONCURRING OPINION OF JUDGE PINHEIRO FARINHA (ARTICLE 13 OF THE CONVENTION) (art. 13)

(Translation)

1. I agree with the majority as regards the findings of the judgment. I also accept the reasoning contained in the judgment, except for paragraph 85.

2. The Convention sets forth a collective guarantee of certain rights, for example in Article 13 (art. 13) which provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." (my emphasis)

The violation of the rights conferred by the Convention may be caused by the law itself and the acts complained of may be in accordance with the domestic law, in other words not be due to an improper application of the law. In this case (and I see no reason to make an exception for the acts of the legislature), there must be a national authority and it must have jurisdiction to deal with the violation.

The Court itself has already adopted this position in the case of Silver and Others, the case of Abdulaziz , Cabales and Balkandali and the case of Campbell and Fell.

3. In the instant case, since "the Court has found [the contested] legislation ... to be compatible with the substantive provisions of the Convention and its Protocols," what I have just said does not prevent me from concluding that, for the reasons stated in paragraph 86 of the judgment, "the facts of the present case therefore disclose no violation of Article 13 (art. 13) of the Convention".

CONCURRING OPINION OF JUDGES PETTITI AND RUSSO (ARTICLE 13 OF THE CONVENTION) (art. 13)

(Translation)

We recognise the difficulty of construing Article 13 (art. 13); indeed this difficulty explains the differences of opinion within the Court. Nevertheless, we continue to prefer the Court ’ s traditional doctrine on the interpretation of Article 13 (art. 13) (see especially the Silver and Others judgment, the Campbell and Fell judgment, and the Abdulaziz , Cabales and Balkandali judgment). If the Court had cause to change its doctrine on this point (which we do not consider necessary), more detailed reasons should have been given than those adopted in the present judgment.

[*]  Note by the Registrar: The case is numbered 3/1984/75 /119. 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.