JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS AND KALAYDJIEVA

While we are in agreement with the reasoning and the conclusions reached by the majority in the judgment, regretfully we have to contest a statement made by the Court in its judgment which is reflected particularly in paragraph 83 and deals with the “new approach” to be followed regarding the compatibility ratione materiae of interim measures of protection with Article 6 of the Convention.

In determining the question whether proceedings concerning interim measures of protection fall within the ambit of the protection of Article 6, in its civil limb, the Court rightly concludes that “[n]ot all interim measures determine civil rights and obligations”, and hence the guarantees of Article 6 are not applied indiscriminately to all cases where interim measures are at stake. Paragraph 83 of the judgment states that certain conditions must be fulfilled before the Court will decide that the rights and obligations in question attract the protection afforded by Article 6.

We fully agree with the finding of the Court, as stated in paragraph 85 of the judgment:

“... the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.”

Yet that general and well-considered position seems to be contradicted by the position of the Court enunciated in paragraph 84 of the judgment, which precedes the general statement in paragraph 85, and provides:

“[In order for Article 6 to be applicable in a case concerning an interim measure], the right at stake in both the main and injunction proceedings should be ‘civil’ within the autonomous meaning of that notion under Article 6 of the Convention ...”

That means, in other words, that if proceedings concerning interim measures refer to a matter which is clearly civil , but the main proceedings concern issues which, by themselves, are not civil – even according to the broad, autonomous interpretation that the Court has given to the concept of “civil” – these interim proceedings are not covered by the protection of Article 6 of the Convention.

Is this restrictive approach, taken at a time when a change is being made to the case-law on the matter, the correct approach?

To our mind, it is not, particularly if one takes into account that despite the generous and extensive interpretation given to the concept of “civil rights and obligations”, as a result of which proceedings not considered by the internal orders of the Contracting States as “civil” today enjoy the guarantees of the Convention, there are still certain categories of proceedings that are entirely excluded from that protection according to our present case-law. Why, by imposing this undesirable condition, do we have to exclude from the protection of Article 6 – sometimes, as the Court has concluded, definitively – interim-measures proceedings which by their nature determine “civil rights and obligations”? What is the ratio of such a condition, and what real interest does it serve?

Our position is clear: if it is established that an interim measure effectively determines a civil right and obligation, then the measure should fall under the protection of Article 6, irrespective of the nature of the main proceedings. Since we accept that interim measures can determine such rights and obligations – sometimes with grave repercussions on the person who is affected by them – the existence of an independent and impartial tribunal, together with the guarantees of Article 6, should accompany the administration of justice.