CONCURRING OPINION OF JUDGE CABRAL BARRETO JOINED BY JUDGES RESS AND BÃŽRSAN

(Translation)

I share the majority’s view that the Grand Chamber is entitled to examine the present case as a whole in relation to both applicants, but I have difficulty agreeing with the entire reasoning.

In my opinion, the significant factor is that Mr Mazăre endorsed and accepted the referral request made on his behalf by Mr Cumpănă.

However, if the majority are suggesting in paragraph 68 of the judgment that where there are several applicants, referral of the case entitles the Grand Chamber to examine all aspects of the application considered by the Chamber (see paragraph 66), I am unable to agree.

In my opinion, a distinction should be drawn between cases in which there is only one applicant and cases in which there are more than one.

Where there is only one applicant, referral to the Grand Chamber at the request of the parties – the State or the applicant – entails an examination of the application as a whole, even if the request concerns only certain aspects or complaints (see K. and T. v. Finland [GC], no. 25702/94, ECHR 2001 ‑ VII).

Where there are several applicants and the request for referral to the Grand Chamber is made by one of them, I consider that the Grand Chamber cannot examine the complaints of another applicant against his or her will unless the subject matter of the case is indivisibly linked to all the applicants (who must have been joined as colitigants in the same proceedings).

It would seem difficult to maintain that all applicants are in such a position of indivisibility and that their interests cannot be considered separately.

Even in the event of a single act by the authorities which gives rise to violations of the Convention for several people, it is legally possible, and even desirable, to treat the applicants’ complaints differently and individually.

In such circumstances, the Court has always allowed cases to be settled in respect of one of the applicants; for example, there is nothing to prevent one of the applicants reaching a friendly settlement with the State, thereby terminating his or her application, while the proceedings are pursued with a view to considering the other applicants’ complaints.

If I have interpreted paragraph 67 of the judgment correctly, the majority consider that under Article 37 § 1 of the Convention the Grand Chamber may examine the complaints of an applicant who has not requested it to intervene.

In my view, such an interpretation is very far-reaching. The possibility of continuing the examination is in fact subject to the condition that the

application has been struck out of the list for one of the reasons set out in the first paragraph of Article 37.

Once the Chamber has delivered its judgment, which is accepted by the State, the Grand Chamber must confine itself to examining the application by the applicant who has requested the referral of the case.

For the other applicants, the Chamber judgment will become final in accordance with Article 44 § 2.

Admittedly, the Chamber and Grand Chamber judgments may differ, with the result that different legal solutions are applied to the same situation.

However, that can also occur in other circumstances, for example where certain applicants reach a friendly settlement while others eventually obtain a finding that there has been no violation.

The solution which I advocate, in spite of the risk of differences between the Chamber and Grand Chamber decisions, is the only one that ensures observance of the principles governing proceedings before the Court, such as those of equality of arms and adversarial procedure.

It is hard to see how the Grand Chamber can determine the “case” of a person who has not applied to be a party to the proceedings before it without infringing the principles that must be observed in each case.