PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

I shared the Court ' s opinion in finding a violation of Article 6 §1 and Article 13 of the Convention, but I am not able to follow the majority of the Court, which decided that “the respondent State must through appropriate legal measures and administrative practices secure the right to a trial within a reasonable time” ( point 5 of the operative provisions of the judgment). My dissent does not concern the existence in Slovenia , as in a number of other States which are members of the Council of Europe, of a systemic proble m as explained in paragraphs 91 to 93 of the judgment. The issue is an extremely serious one, because the rule of law is called into question.

This case could have led the Court to recognise , as in Bottazzi v. Italy ( [GC], no. 34884/97, § 22 , ECHR 1999 ‑ V ) , a “practice that is incompatible with the Con vention”. However , in my opinion it was not an appropriate case in which to adopt a Broniowski -type judg ment ( Broniowski v. Poland [GC], no. 31443/96, ECHR 2004 ‑ V ).

First of all, in my view it is of major importance that, when a Chamber feels that a Broniowski -type judgment might be appropriate, the case be referred to the Grand Chamber. There can be no doubt that the consistency of the Court case-law in this kind of judgment is of particular importance. Furthermore, the relinquishment of jurisdiction in favour of the Grand Chamber is the best way to allow the respondent Government to fully discuss the “systemic problem” and the possible solutions it calls for.

On the merits, the reasoning of the judgment seems to me to create a degree of confusion between the need to prevent and to avoid violations of the right to a trial within a reasonable time and the need to secure at national level an effective redress for such violations. But point 5 of the operative provisions of the judgment does not concern the necessity of modifying the national system with a view to introducing an effective remedy for violations of the said right. Had this been the case, I would probably have no cause to dissent, as on this point all the conditions for a Broniowski -type judgment appear to be present in the Slovenian legal system (see paragraphs 41-70 of the judgment).

Point 5, however, relates directly to the right to a trial within a reasonable time and indicates to the Government that it must introduce “appropriate legal measures and administrative practices [to] secure the right to a trial within a reasonable time”.

In my view, such an indication to the Government fall s outside the scope of a judgment of this Court (and probably of any court). It appears to me to be too general. It implies the need to identify the requested measures and, in so doing , to examine whether the laws concerning procedures must be changed (and if so how ), to evaluate whether the number of judges and administrative personnel and their level of qualification are commensurate with th e task, to increase and modernis e the resources made available to the judiciary, to adjust the national yearly budget accordingly, and to tackle the issue of the number of lawyers, their level of qualification and their role in dealing with civil disputes. When there is a “systemic problem” underlying the incapacity of a State to provide trials within a reasonable time, all these questions must be taken into consideration. In addition a particular system might labour under other specific difficulties. In conclusion, in point 5 of the operative provisions of this judgment, the Court is requesting the Government to change the national system in law and in practice. Nothing more, nothing less.

I do not think that this can be regarded as a judgment of a court. It is not an order that can be executed as judicial orders usually are. The timing and monitoring of the quality and suitability of the “execution” measures that the Government should introduce can only be guessed at. In my view it is up to the Committee of Ministers to identify, request, suggest, secure and monitor the measures which appear to be necessary.

I find an argument that corroborates my position in the long-standing difficulties the Committee of Ministers faces in obtaining a reform of the Italian system (legal and practical) with a view to ensuring that judicial procedures are concluded within a reasonable time (see the Committee of Ministers ' resolutions on the subject, starting with Resolution ResDH (97)336 of 11 July 1997). Would a judgment like the present one add anything to the work of the Committee of Ministers? Would it make it easier and more effective? My answer is obviously not, and for that ve ry reason this kind of judgment could ultimately run a real risk of undermining the authority of the Court.