DISSENTING OPINION OF JUDGE ZUPANČIČ

In decisional terms I follow the nuanced approach of Judge Loucaides ' s dissent ing opinion in which he, on balance, opts for the procedural perspective.

In conceptual terms, however, I find it difficult to accept that the issue should depend on the somewhat fictional distinction between what is “procedural” and what is “substantive”. However, this artificial separation of “procedural” and “substantive” has been maintained and further built upon by our own case-law. Article 6 and its precedential progeny such as “access to a court” derive from an unconscious, or at any rate unstated, underlying premise.

The premise is that the procedure is a mere ancillary and adjective means, a transmission belt, to bring about the substantive rights.

At its inception it perhaps made political sense that an international instrument such as the European Convention on Human Rights should attempt to limit its effect to what was seen as a mere procedural means. The establishment of a substantive right would then, at least seemingly, remain in the sovereign domain of the domestic law. With time, however, this imagined tectonic boundary between what is substantive and what is “merely” procedural has developed into a seismic fault line. It generates hard cases, as the split in the vote demonstrates, which make bad law. In a case, moreover, where the executive is given the discretion to interfere with ac cess to a court, we face a checks and balances (separation of powers) issue typically to be resolved by a domestic constitutional judicial body.

It is ironic that we should, particularly in British cases, build on the distinction between what is procedural and what is substantive. While the Continental legal systems have, for historical reasons, traditionally maintained the strictness of the distinction, it is precisely the common-law system which has always considered the right and the remedy to be interdependent [1] . Is the remedy something “substantive”? Or is it “procedural”? Is the legal fiction “the Crown can do no wrong” – and the consequent blocking of action (immunity) – merely procedural? Or has the substantive right of the plaintiff simply been denied? As we move from one British case to another the dilemma appears in cameo .

It is becoming clear that we need to resort back to common sense. Despite the slender majority ' s vote to the contrary, it is easy to maintain that any immunity from any suit is a procedural block. On the other hand, we are aware that both the intent and the effect of such an immunity is to deny one of the most logically compelling substantive claims in law.

What then is a right? Is it not true that a “right” – including a “human right” – becomes something legally relevant, paradoxically, only when it is alleged to have been denied? Philosophers and politicians may have the luxury of being able to speak of rights deontologically and in abstracto . In law, however, it is the adversary procedural context which makes the substantive rights come out in the open, that is to say, exist. The right appears on the legal horizon when an infringed interest of a legal subject is procedurally asserted and the remedy actively pursued. A non-vindicated right is mere hypothetical abstraction.

Human relations in society may be saturated with all kinds of potential rights. Nevertheless, in most cases they remain unasserted either because they are not violated in the first place or because the aggrieved person omits to pursue them procedurally. Moreover, a right without a remedy is a simple recommendation (“natural obligation”). It follows that a right is doubly dependent on its concomitant remedy. If the remedy does not exist a right is not a right; if the remedy is not procedurally pursued the right will not be vindicated. The right and its remedy are not only interdependent. They are consubstantial.

To speak of rights as if they existed apart from their procedural context is to separate artificially – say for pedagogical, theoretical or nomotechnical reasons –what in practical terms is inseparable. A substantive right is not a mirror image of its procedural remedy.

A substantive right is its remedy.

It is ironic that so often common sense and common law should come into direct collision. It is doubly ironic that the majority should speak of avoiding mere appearances and sticking to realities (see paragraph 121 of the present judgment) when the distinction the judgment is built upon is pure legal fiction. We may have muddled through another case but the underlying false premise remains. The dilemma is certain to come back.

The way to address this dilemma is, obviously, to cease subscribing to the false premise. It is difficult to address this in the abstract. However, at le ast in cases in which the fault line is potentially decisive, where it collides with justice an d common sense, since we are a c ourt of h uman r ights, we should opt for an autonomous meaning of “substantive due process”. Intellectual honesty demands no less.

[1] 1. See, for a more extensive explanation, B. Zupančič, “ Adjudication and the Rule of Law ” , European Journal of Law Reform, vol. 5 (2003), pp. 23-125.