DISSENTING OPINION OF JUDGE PELLONPÄÄ

(Translation)

I regret that I do not share the majority of the Chamber's opinion that there has been a violation of Article 6 § 1.

I note, like the majority (see paragraph 33 of the judgment) that “it is in the first place for the national authorities, and notably the courts, to interpret domestic law and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness” (see the Tejedor García v. Spain judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2796, § 31).

The Supreme Court held that the one-year limitation period for seeking compensation before the administrative courts began to run on 4 July 1987 , that being the date when the Supreme Court quashed the ministerial order in issue. The applicants' appeals against that interpretation of Spanish law were dismissed by the Constitutional Court, which held that the applicants could be presumed to have been aware in sufficient time of the judgment of 4 July 1987 owing to their direct interest and the fact that the National Society of Chemists had intervened and would have informed its members of it.

The question is whether that interpretation by the two senior national courts was arbitrary and/or constituted a hindrance to the applicants' right of access to a remedy guaranteed by Article 6.

In that connection, I consider that such an interpretation could be qualified as arbitrary if, for example, the applicable national rules stated that the starting-point was the date of service of the decision on the individual concerned. That is not the case here. Under section 40(3) of the Law on the Legal Regime governing the Administration of the State (as worded at the material time) “the right to make a claim shall lapse one year after the event giving rise to the claim for compensation”. Article 1971 of the Civil Code refers to the “date the judgment or decision becomes final”. Although the provision relied on by the dissenting judges in the Constitutional Court – Article 1969 of the Civil Code – could support the minority's position, I do not consider the other interpretation as being so unreasonable as could be termed from the outset arbitrary and contrary to Article 6.

The remaining issue is whether that interpretation nonetheless prevented the applicants from bringing the claim concerned. The fact that the minority of the Constitutional Court 's interpretation is the one “best suited to facilitate the right of access to a trial”, to adopt the expression used by State Counsel (see paragraph 19 of the judgment), is nonetheless not decisive. For a finding of a violation of Article 6 to be made out, the verdict of the Supreme Court, accepted by the majority of the Constitutional Court, must instead have impaired the “very essence” of the right of access (see the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997,

Reports 1997-VIII, p. 2955, § 33). In other words, the issue is whether, as in the case of Pérez de Rada Cavanilles v. Spain (judgment of 28 October 1998 , Reports 1998-VIII, pp. 3256-57, § 49), it was the particularly strict application by the domestic courts of a “procedural rule” that deprived the applicants of the “right of access to a court”. It will be recalled that in that case the applicant had three days to make an application in circumstances in which it was virtually impossible for her to comply. The Court rightly held that there had been a violation of Article 6.

In the instant case, the applicants said that the date of 5 November 1987 (or, at the very least, 7 July 1987 ) should have been considered the starting-point for the one-year limitation period for lodging their claims. I note that even from 5 November 1987 the applicants had approximately eight months in which to lodge their claims within a year from the judgment of 4 July 1987 . The applicants' claims were dated before 4 July 1988 , but reached the authorities afterwards. The claims – dated between 27 April and 27 June 1988 – referred to the judgment adopted on 4 July 1987 without any reference to any other date such as the date of publication of the ministerial order in the Official Gazette (5 November 1987). Although those circumstances do not prove that the applicants foresaw how the authorities and the Supreme Court would interpret the rules, I consider it not unreasonable (having regard also to the wording of section 40(3) cited above, which the applicants rely on in their complaints) to assume that they could have foreseen the possibility of their being interpreted in that way. In any event, the interpretation of the national courts did not prevent the vast majority of the chemists concerned from lodging their claims within one year from 4 July 1987, judging from the information provided by the Government (and not contested by the applicants) that almost 16,000 chemists did so within the period. Although I do not know why thousands of other chemists lodged their claims before the applicants, that information nevertheless tends to confirm that there was no violation of the very substance of the right guaranteed by Article 6 § 1 – as interpreted by the Court in its case-law – of all chemists concerned, including the applicants. Consequently, I conclude that there has been no violation of that Article.

[1] . Nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98.

[2] . Note by the Registry . The texts of the Court’s decisions are obtainable from the Registry.