SEPARATE OPINION OF JUDGES ZUPAN Č I Č AND BORREGO BORREGO

We regret that the Grand Chamber has not declared this application inadmissible and that the First Section ’ s decision of 14 February 2006 has not been revised in accordance with Article 35 § 2 ( b) of the Convention.

In our opinion, this application is inadmissible and the Grand Chamber could and should have declared it inadmissible.

1. The Grand Chamber could have declar ed the application inadmissible

Article 35 § 4 of the Convention provides that the Court “shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings”.

Under that provision, an application was declared inadmissible after having been admitted by the Chamber ( see Hob b s , Rich ard, Walsh and Geen v. United Kingdom , nos. 63684/00, 63475/00, 63484/00 and 63468/00, 14 November 2006). In Mihailescu v. Romania ((dec), no. 32913/96, 22 June 2004) the Chamber also reviewed a previous admissibility decision even though the Government had not raised a plea of inadmissibility at the proper stage of the proceedings.

The Grand Chamber has previously declared that it may reconsider the admissibility decision of the Chamber in case of referral to the Grand Chamber under Article 43 of the Convention, whether the Government raise a plea of inadmissibility at the proper stage of the proceedings ( see Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III) or not ( see Blečić v. Croatia [GC], no. 59532/00 , § 65 , ECHR 2006- III ).

According to the judgment in Blečić , the Grand Chamber may reconsider of its own motion the questions concerning its own domain even if the Government have not raised a plea of inadmissibility. Obviously, international litispendence is a matter to which the Court must have regard .

It should be borne in mind that, in the present case, the Third Section decided, with regard to the question of international litispendence, to “adjour[n] this question for a future examination together with the substance of the applicants ’ complaints” (decision of 26 October 2004). The case was subsequently transferred to the First Section, which decided on 14 February 2006 that “the Government ’ s request to the Court to declare the application inadmissible under Article 35 § 2 ( b) of t he Convention must be rejected” .

2. The Grand Chamber should have declared the application inadmissible

As to the scope of the case before the domestic courts, there was a single cas e: “t he applicants ’ complaints regarding full exemption from the KRL subject had been adjudicated in a single case together with identical claims from four other sets of parents. Before the Supreme Court and the lower courts, all the plaintiffs had been represented by the same lawyer ... and had all made identical claims. [ The lawyer ] had made one simple presentation on behalf of all parties, and no attemp ts had been made to individualis e the cases of the different parties. Accordingly, the claims had been adjudicated as one by the domestic courts, which had passed single judgements in which all the petitioners ’ claims had been dealt with as a whole” (decision of 14 February 2006).

Once the case had been examined by the domestic authorities, it was submitted to the European Court of Human Rights on 15 February 2000. One month and ten days later, the case was submitted to the Human Rights Committee in Geneva . “The complaints made to the respective institutions concerned substantially the same matters ... The essential parts of their complaints were the same, word for word” (decision of 14 February 2006).

In short: seven families, all together in a united group, and a single set of domestic proceedings which resulted in a single judgment by the Supreme Court. Nevertheless, despite having submitted a joint application before the domestic courts, three of these families lodged a petition before the European Court of Human Rights and the four others did the same before the Human Rights Committee in Geneva .

The Human Rights Committee admitted the petition in November 2004 as “the authors have demonstrated that they are individuals distinct from those of the three sets of parents that filed a complaint with the ECHR”.

As to the European Court of Human Rights, in February 2006 it decided that, “ [ n ] otwithstanding the common features between the application lodged under the Convention in Strasbourg and the communication filed under the U nited N ations Covenant in Geneva”, there was no personal identity between the two groups of families and therefore rejected the Government ’ s request to declare the application inadmissible.

Article 35 § 2 ( b) of the Convention and Article 5 § 2 ( a) of the Optional Protocol of the U nited N ations Covenant share the same purpose, which is to prevent two different international organs from providing different or even contradictory interpretations concerning “the same matter”.

In Cereceda Martin and Others v. Spain (no. 16358/90 , Commission decision of 12 October 1992, Decisions and Reports 73 ) the European Commission of Human Rights declared the application inadmissible on the gro und that “ [ w ] hile it is true that formally the 23 individual applicants before the Commission are not the complainants who appeared before the organs of the ILO , ... the parties were substantially the same ” .

International bodies examine domestic decisions given in domestic proceedings in which any of the parties (claimants or defendants) can be an individual or a group of individuals.

Both the Human Rights Committee (without a prior decision of the European Court ) and the European Court of Human Rights (aware of the Human Rights Committee ’ s decision) came to the conclusion that the key issue was not whether there had been a single set of domestic proceedings, or whether the single judgment had been examined by two different international bodies, or whether the facts submitted before the two organs were identical. No. What really mattered was the fact that, as the applicants were a group of individuals, some of them had opted to petition the Human Rights Committee and some of them had submitted an application to the European Court of Human Rights. To put it briefly, different applicants of the same party had addressed different international bodies.

International litispendence exists if the case concerns “the same matter”, “the same judgment”, “the same comp laint”, “ the same party” and the like. In this case, according to the interpretation given by the majority, international litispendence ceases to exist when different individuals of the original group of applicants decide to separate in two groups to submit the same matter before different international organs.

Nevertheless, the risk of contradictory decisions, in which international litispendence has its origin, does exist. This is an example of what the Convention and the Optional Protocol tried to avoid. Unfortunately, their subsequent interpretation by the competent international organs has deprived them of their original sense.

The Court ’ s judgment, adopted by nine votes to eight, may lead us to think that the exception of litispendence has been buried, even if – as contradictory as it may seem – in the present case it shows signs of being in good health. This is a pity.