JOINT CONCURRING OPINION OF JUDGES YUDKIVSKA AND LEMMENS

1. We wholeheartedly concur with the conclusion that Article 6 § 1 has been violated.

On this point, the judgment constitutes an important step forward in the protection offered by the Convention to applicants who have successfully complained of a violation of their fundamental rights, and who subsequently attempt to obtain a reopening of the domestic proceedings.

2. We nevertheless would like to indicate that, in so far as the judgment examines the applicability of Article 6 § 1 to the proceedings before the Supreme Court, we would have preferred a somewhat broader reasoning.

In our opinion, it is sufficient to note that the proceedings concerned the judicial review of the decisions of the domestic courts, including the original decision of the Supreme Court of 22 August 200 2 , following the finding by our Court that the proceedings before the Supreme Court had been unfair. We attach much importance to the fact that the exceptional appeal brought by the applicant can be viewed as a prolongation of the original proceedings, akin to a cassation procedure (see paragraph 53 of the judgment).

By contrast, we do not think that it is necessary to take account of the way in which the Supreme Court actually carried out its functions in the exceptional - appeal proceedings (see paragraph 54 of the judgment). The applicability of Article 6 § 1 should not depend on the outcome of the proceedings, in particular not on the fact that the cassation court may have examined to some extent the merits of the original claim.

3. We would also like to stress that the principles of res j udicata and legal certainty referred to in paragraph 57 of the judgment cannot be unduly upset in cases like the present one, since the possibility of reopening terminated proceedings is at the outset provided for by national law.

In this respect we reiterate that the Convention must be interpreted as guaranteeing rights which are practical and effective. Stressing, as a matter of principle, the inalterability of domestic decisions found by this Court to be in breach of the Convention could mean depriving the Court ’ s judgments of much of their real effect, thus rendering the Strasbourg remedy illusory.

4. We take the opportunity to observe that we would generally be in favour of a much broader approach towards the applicability of Article 6 § 1 in civil proceedings.

We should ask ourselves whether Article 6 § 1 does not apply to all judicial proceedings concerning legally protected rights or interests, regardless of the extent to which they are held to be decisive for the determination of any (civil) rights and obligations. To hold so would avoid the lengthy examination of whether or not specific proceedings, having regard to their specific features, fall within the scope of Article 6 § 1.

CONCURRING OPINION OF JUDGE WOJTYCZEK

(Translation)

1. In the present case I voted with the majority in finding a violation of Article 6 § 1 of the Convention. However, I have some doubts as to the reasoning of the judgment and in particular the considerations regarding the applicability of Article 6 to proceedings examining extraordinary appeals against judicial decisions.

2. The question whether and to what extent Article 6 applies to proceedings examining extraordinary appeals against judicial decisions or individual administrative decisions is a very difficult one, in view of the considerable complexity of procedural law and its diversity in Europe. In addition to the substantive difficulties there are linguistic issues, which are particularly acute in this legal sphere since many of the legal terms used in Contracting Parties ’ legislation have no equivalent in the official languages of the Court.

I note that in its previous case-law the Court has accepted the applicability of Article 6 to “cassation appeals” in judicial proceedings in certain States, even where such an appeal is regarded as an extraordinary remedy under national law. On the other hand, the Court has deemed Article 6 to be inapplicable, in principle, to proceedings examining a request for “the reopening of judicial proceedings” (see the judgments cited in paragraph 44 of the present judgment). At the same time, the Court held in several cases that Article 6 was applicable to other extraordinary remedies provided for in certain States (see, in particular, the judgments in Melis v. Greece , no. 30604/07 , § 19, 22 July 2010; San Leonard Band Club v. Malta , no. 77562/01, ECHR 2004-IX; Maresti v. Croatia , no. 55759/07, 25 June 2009; and J.S. and A.S. v. Poland , no. 40732/98, 24 May 2005).

Various arguments were advanced in those judgments to justify the applicability of Article 6. In San Leonard Band Club , concerning a request for a new criminal trial, the Court emphasised three factors: (1) a request for a retrial was the only means in Maltese law of challenging a decision that had been upheld on appeal; (2) the request in the case in question had been founded on the allegedly erroneous application of the law; and (3) if the statutory conditions were met, the request triggered a fresh trial without there being any discretion to decide whether it was appropriate.

In Melis , which concerned an application to reopen proceedings, the Court stressed the “decisive factor ... that, in the present case, an application to reopen the proceedings was the only legal remedy by which the applicant could have the appeal judgment in civil proceedings set aside and have his ownership rights restored” ( cited above, § 19).

In Maresti , concerning a request for extraordinary review of a criminal judgment, the applicability of Article 6 was justified primarily by the argument that the remedy in question was similar to a cassation appeal in civil proceedings. The Court further stressed that, in lodging the request, the applicant had relied on the fact that criminal prosecution in his case was barred by law.

It is also interesting to note that the above-cited judgment in J.S. and A.S. v. Poland found Article 6 to be applicable to one of the extraordinary remedies provided for by Polish administrative procedure, in this instance an application for an individual administrative decision characterised by particularly serious flaws to be declared null and void. This remedy enables applicants to obtain a review of the lawfulness of a final individual administrative decision even a number of years after it has been given. Hence, individuals who lodge an application for a declaration of nullity in respect of a final individual administrative decision given a number of years previously, and relating to civil rights or obligations within the meaning of the Convention, are entitled to a hearing within a reasonable time by an independent and impartial tribunal which must determine their claims on the merits. In support of its finding that Article 6 was applicable , the Court pointed out that the applicants in the case in question had not sought the reopening of the administrative proceedings, but merely a finding that a past administrative decision was null and void.

3. Without entering into a comparative analysis of procedural law, we can note briefly that, in many legal systems, “cassation appeals” are subject to very strict time-limits and concern points of law, whereas “requests for the reopening of proceedings” may be lodged many years later and are founded in particular on new facts, new evidence or certain serious procedural defects. We can therefore observe, in a very intuitive manner, that the examination of a cassation appeal constitutes in a sense a “natural prolongation” of the original proceedings, focusing at that stage on issues concerning the interpretation of the applicable law and prolonging for the parties the state of uncertainty as to the outcome of the proceedings. The reopening of proceedings appears to be more exceptional and may occur a very long time after a final judicial decision was handed down in the original proceedings.

On the other hand, it is important to stress that a cassation appeal, in many legal systems, primarily serves the public interest. It is a means of establishing the correct interpretation of the law and harmonising the case - law of the lower courts. Persons wishing to lodge an appeal of this kind must demonstrate the public interest in having it examined. By contrast, a request to reopen proceedings is very often not subject to any such condition. It may therefore serve to protect subjective rights without it being necessary to demonstrate that there is a public interest in having it examined. Moreover, injustices remedied by means of the reopening of proceedings and linked to factual errors are often much more glaring than the often unavoidable hesitations in interpreting the law which are overcome by means of a cassation appeal. Furthermore, cassation appeals are often subject to a preliminary filtering procedure enabling their admissibility to be assessed before they are examined on the merits.

The Court has held in various judgments that the examination of a request for proceedings to be reopened is not in itself a procedure leading to the determination of the parties ’ rights or obligations or of a criminal charge. A fresh determination of the parties ’ rights and obligations takes place only once the decision to reopen the proceedings has been taken. I note, for my part, that in some countries a cassation appeal has a number of similarities in this regard. During the first stage, the competent court examines the admissibility of the appeal. During the second stage, it rules on the merits, possibly setting aside the impugned judgment. During the third stage, where applicable, another court will determine afresh the parties ’ rights and obligations.

Against this background, can we really draw a distinction between the two types of extraordinary remedies for the purposes of the applicability of Article 6? One may doubt it. In any event, a convincing reply in the affirmative would require an in-depth survey of procedural law in the various States. An analysis of the Court ’ s judgments and decisions leads to the conclusion that the case-law has not established precise criteria by which to decide which extraordinary remedies come within the ambit of Article 6 of the Convention. Furthermore, in my view, the approach taken in the above-cited J.S. and A.S. v. Poland judgment is difficult to reconcile with the Court ’ s case-law concerning remedies enabling review of decisions handed down in the various types of proceedings. The case-law surveyed discloses a very high degree of uncertainty for litigants and for the Contracting Parties to the Convention.

4. The Bochan v. Ukraine (no. 2) judgment presented a good opportunity to clarify the Court ’ s case-law concerning the applicability of Article 6 to extraordinary appeals in judicial proceedings, at least in civil cases.

The majority sta tes as follows in paragraph 50:

“In sum, while Article 6 § 1 is not normally applicable to extraordinary appeals seeking the reopening of terminated judicial proceedings, the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned may be such as to bring the proceedings on that kind of appeal within the ambit of Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants.”

In analysing the appeal in question, the Court emphasises the similarities with a “cassation appeal” and the fact that the appeal may be regarded as a prolongation of the original proceedings, before analysing the review conducted by the Ukrainian Supreme Court in the case in question. I regret the fact that the reasoning of the judgment does not offer more specific general criteria for deciding which factors as regards the nature, scope and particular features of a given set of proceedings are decisive in order for Article 6 to apply.

The uncertainty as to the precise scope of application of Article 6 appears to be reflected in the reasoning. For instance, in paragraph 44 in fine the Court summarises in the following terms the established case-law co ncerning extraordinary appeals:

“ T his is because, in so far as the matter is covered by the principle of res j udicata of a final judgment in national proceedings, it cannot in principle be maintained that a subsequent extraordinary application or appeal seeking revision of that judgment gives rise to an arguable claim as to the existence of a right recognised under national law or that the outcome of the proceedings i n which it is decided whether or not to reconsider the same case is decisive for the ‘ determination of ... civil rights or obligations or of any criminal charge ’ ” .

I note that this argument, used to explain why Article 6 does not apply to requests for proceedings to be reopened, weighs equally in favour of the inapplicability of Article 6 to cassation appeals in legal systems where such appeals are directed against judicial decisions considered to be final and enforceable in domestic law.

Furthermore, in paragraph 47, the majority notes that the Court has also found Article 6 to be applicable to proceedings deemed to be similar to ordinary appeal proceedings. At the same time, in paragraph 48, which supposedly illustrates this argument, it notes that the San Leonard Band Club judgment stressed that a “request for a new trial” in Maltese law was similar to an appeal on points of law before a court of cassation. However, an ordinary appeal and a cassation appeal are two very different remedies.

5. Article 6 of the Convention requires disputes concerning civil rights and obligations to be determined within a reasonable time by an independent and impartial tribunal established by law. The wording of this provision does not exclude its application to extraordinary appeals against judicial decisions which have determined the parties ’ civil rights and obligations with final effect (within the meaning of domestic law). Furthermore, Article 6 is designed to ensure the effective protection of persons involved in civil and criminal proceedings against procedural injustice. The teleological argument therefore weighs in favour of the broadest possible application of this provision to the various ordinary and extraordinary appeals. In these circumstances it would appear more convincing to regard Article 6 as being applicable – at least in principle – to all extraordinary remedies in judicial proceedings. However, if its scope is to remain limited to certain types of extraordinary remedies, it is essential to define these on the basis of precise criteria.

It should be stressed that these conclusions concern judicial proceedings. The applicability of Article 6 to extraordinary remedies in administrative proceedings is a different issue which would require separate examination.

6. The present case also concerns the very delicate issue of the effects of judgments of the Court finding a violation of the Convention in civil proceedings or arising from a judicial decision in a civil case. Judicial decisions in civil cases very often serve to determine disputes between parties with opposing interests. When one of the parties challenges before the Court the compatibility with the Convention of the procedure applied or the decision given, the outcome of the proceedings before the Court affects the rights and interests of the other parties. Although the Court examines the vertical relationship (that is, the relationship between the applicant and the State) and rules on violations of the Convention attributed to the State authorities, the judgment finding a violation of the applicant ’ s rights on account of civil proceedings or of a judicial decision in a civil case will have a bearing on the protection afforded to the rights of the other parties to the proceedings and necessarily has a horizontal dimension, that is, pertaining to relations between private parties. The continuing extension by the case ‑ law of the scope of application of Convention rights to relationships between private ‑ law parties (in German , Drittwirkung ) heightens this tendency.

This influence of the Court ’ s judgments would be even more profound if the finding of a violation of the Convention in civil proceedings or arising from a judicial decision in a civil case were to lead to the reopening of those proceedings. The reasoning of the judgment in the present case quite rightly notes the absence of consensus between the High Contracting Parties in this sphere (see paragraph 57). It also notes, very pertinently, the possible implications of reconsideration of the applicant ’ s case “for the principles of res j udicata and legal certainty in the terminated civil litigation and for the legitimate interests of third parties” (paragraph 72). However, the reasoning of the decision appears to express a certain preference for ensuring that possibilities exist to reopen civil proceedings in order to facilitate execution of the Court ’ s judgments (paragraph 58). Personally, I would have preferred to include some qualifications in the Court ’ s reasoning.

Each party to civil proceedings is entitled to a stable final decision, delivered within a reasonable time. A final decision, even one that is defective from the standpoint of the Convention, creates legitimate expectations as to its stability, in particular if the opposing party acted in good faith in a situation where the violations of the Convention were not obvious in the light of the Court ’ s existing case-law. The need to secure the stability of final judicial decisions determining cases involving private parties and the legitimate interests of all the parties to the proceedings constitutes a strong argument against the reopening of civil proceedings following a judgment by the Court finding a violation of the Convention. The reopening of such proceedings may even result in a breach of the other parties ’ rights protected by the Convention. Nevertheless, it cannot be ruled out that in some situations a final decision by a domestic civil court will create an injustice in relations between private parties which is so glaring that it can only be remedied by setting aside or amending the decision given. Generally speaking, however, in the types of situation considered here, just satisfaction will most often consist in compensation by the State.

7. The question of the effects of the Court ’ s judgments is intrinsically linked to the question of the procedure before the Court. All procedural rules must be suited to the purpose and object of the proceedings and must ensure effective protection of the legitimate interests of all the parties concerned. Moreover, they must guarantee the undisputed procedural legitimacy of the decisions given.

Procedural justice requires in particular that all the persons concerned by the outcome of the proceedings are guaranteed the right to be heard. As Seneca observed in Medea : “ Qui statuit aliquid parte inaudita altera , aequum licet statuerit , haud aequus fuit ” . The more far-reaching the effects of the Court ’ s judgments , the more vital it is to ensure that all the persons concerned have the right to be heard. Developments in case-law and practice regarding the effects and execution of the Court ’ s judgments may call for adjustments to be made to the applicable procedural rules.

8. In examining applications alleging human rights violations in civil proceedings or arising from judicial decisions in civil cases determining disputes between individuals or legal persons governed by private law, the rights of the party opposing the applicant party must never be overlooked. That is because the Court ’ s finding of a violation of the Convention on account of a judicial decision in a civil case may have practical and legal consequences for the other parties to the civil proceedings and for the implementation of their rights. This problem is particularly acute in the case of applications against States whose legal systems (like that in Ukraine) allow the reopening of civil proceedings following a judgment of the Court.

It should be noted here that, in its judgment in Ruiz- Mateos v. Spain (23 June 1993, Series A no. 262), the Court examined the right of the persons concerned to be heard in constitutional review proceedings. The issue had arisen in the context of the relationship between the civil proceedings and the constitutional review proceedings. In that case a Spanish court, in the course of a civil dispute, had referred a preliminary question to the Constitutional Court as to the constitutionality of the legislation applicable in the case. The Court found a violation of the Convention on the ground that, in the proceedings for concrete review of the legislation before the Constitutional Court, the Spanish authorities had not secured to one of the parties to the civil proceedings the right to submit observations on the opposing party ’ s position regarding the issue of the constitutionality of a statute ( ibid., § 67).

9. It is undeniable that the procedure whereby the Court examines individual applications has many specific features distinguishing it from procedures before the various domestic supreme courts. While a judgment of the Court may be important as regards implementation of the rights of other parties to the domestic proceedings, it does not establish rights or obligations for them with direct effect in the Contracting Parties. However, given that in the types of situation considered third parties are often affected by the outcome of the proceedings before the Court, the approach taken in the above-cited judgment in Ruiz- Mateos in the context of the relationship between civil proceedings and proceedings to review legislation also holds true in the context of the relationship between domestic civil proceedings and proceedings before the European Court of Human Rights.

The Convention does not guarantee the other parties to domestic proceedings who are concerned by the impugned judicial decision the right to be heard by the Court. It is true that under Article 36 § 2 of the Convention, as supplemented by Rule 44 § 3 of the Rules of Court, the President of the Chamber may, in the interests of the proper administration of justice, authorise or invite any person concerned who is not the applicant to submit written comments or, in exceptional circumstances, to take part in the hearing. The Court sometimes makes use of this possibility, in particular in cases dealing with family law. The approach adopted strikes me as inadequate, as the option, left to the discretion of the President of the Chamber, of hearing the views of a person who is concerned does not equate to a guarantee of the right to be heard. It is not always used where the rights of third parties are concerned.

When sitting in cases dealing with violations of the Convention in civil proceedings or arising from a judicial decision in a civil case, I invariably wonder whether the other parties concerned should not be granted the right to submit observations to the Court. Is it right to give a decision without hearing the other parties concerned? Ensuring that they have the right to be heard would not only give greater effect to the principles of procedural justice, but in many cases would also afford greater insight into the issues under examination.

Given the case-law developments referred to above, the rules applicable to the procedure for the examination of applications by the Court do not confer a sufficient degree of procedural legitimacy on the decisions given. Against that background, it is time to rethink the procedure before the Court in order better to adapt it to the requirements of procedural justice.

[1] . Rectified on 11 March 2015: the text was “3 February 2006”.