PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

I very much regret that I am unable to share the opinion of the majority of my colleagues as regards paragraph 58 and point 5 of the operative provisions of the judgment.

I well understand and approve paragraphs 55 and 56 because in the present case it can be said that paragraph 1 of Article 6 (art. 6-1) of the Convention absorbs that Article ’ s paragraphs 2 and 3 (art. 6-2, art. 6-3). We are, in fact, faced with what is known as "apparent concurrence" ( Scheinkonkurrenz or Gesetzeskonkurrenz ); the finding of a breach of the requirements of paragraph 1 (art. 6-1) therefore dispenses the Court from also examining the present case in the light of paragraphs 2 and 3 (art. 6-2, art. 6-3).

The same does not apply to Article 1 of Protocol No. 1 (P1-1): Article 6 (art. 6) of the Convention calls for a fair trial, attended by all the guarantees which are required in the matter by the Convention, whereas Article 1 of Protocol No. 1 (P1-1) concerns protection of the right of property.

The same fact or situation may give rise to violation of both interests without the one absorbing the other. Here we are faced with a "notional concurrence" ( Idealkonkurrenz or Tateinheit ). In my opinion, the Court should accordingly also examine and deliberate on the case with reference to Article 1 of Protocol No. 1 (P1-1). It would thus conclude either that there has been breach of Article 6 § 1 (art. 6-1) of the Convention and of

Article 1 of the Protocol (P1-1) (the Court has already held that facts may constitute a violation of several Articles of the Convention, for example in the Golder case); or that there has been no breach of Article 1 (P1-1), a result which would correspond to my own opinion (the Court has already found violation of one Article and no violation of another, for example, in the Ringeisen case); or even that Article 1 (P1-1) is not applicable to Mr. Deweer ’ s complaints (the Court adopted this solution for Article 8 of the Convention and Article 1 of the Protocol in the Marckx case) (art. 8, P1-1).