DISSENTING OPINION OF JUDGE KJØLBRO

1 . Although I have some sympathy for the Court ’ s finding of a violation of Article 6 § 1 of the Convention for lack of access to a court, I regretfully cannot follow the reasoning of my colleagues who, in my mind, are interpreting Article 6 § 1 in such a way that they are creating a right that is not recognised under domestic law.

2 . The present case raises the question whether the applicant ’ s dispute with the hunting association over his expulsion as a member concerned a right that, at least on arguable grounds, was recognised under domestic law (see paragraph 51 of the judgment). In this context, it is important to repeat and underline that the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 88, ECHR 2016 (extracts), and Baka v. Hungary [GC], no. 20261/12, § 101, ECHR 2016).

3 . In bringing his case before the domestic courts, the applicant sought to have the decision of the general meeting to expel him as a member of the hunting association declared unlawful and to be reinstated as a member of the association (see paragraph 13 of the judgment). In other words, he was challenging his expulsion as a member of the association.

4 . The domestic courts, first the County Court and subsequently the Supreme Court, ruled against the applicant, finding that the case did not fall within the jurisdiction of the courts. In doing so, they were interpreting and applying domestic legislation. They explicitly ruled that the applicant could not challenge the general meeting ’ s final decision to expel him as a member on the basis of section 26(1) of the Associations Act. Neither could he challenge the lawfulness of the decision on the basis of the provisions of the Administrative Disputes Act, which in this case would be section 66 of the Act (see paragraphs 14 and 16 of the judgment).

5 . In other words, the domestic courts clearly stated that the applicant could not, on the basis of domestic law, challenge the lawfulness of the decision adopted by the general meeting to expel him as a member of the association. This interpretation of domestic law, more specifically of section 26(1) of the Associations Act (and also of section 66 of the Administrative Disputes Act), seems to be fully in accordance with settled case-law of the Constitutional Court and the Supreme Court at the time when the applicant was expelled in 2012, and the Court does not seem to suggest otherwise in its judgment.

6 . In my view, the domestic courts ’ interpretation of domestic law is to be understood as a substantive limitation concerning the right invoked by the applicant before the domestic courts, and not merely as a procedural limitation on the right to institute court proceedings concerning a right recognised in domestic legislation (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, §§ 118-119, ECHR 2005 ‑ X, and Markovic and Others v. Italy [GC], no. 1398/03, § 94, ECHR 2006 ‑ XIV). In other words, according to domestic law as interpreted by domestic courts, a decision of a general meeting of a hunting association to expel a member cannot be challenged before the domestic courts.

7 . The arguments of the Court for finding Article 6 § 1 of the Convention applicable (see paragraphs 52-56 of the judgment) are, in my view, not sufficient to reach the conclusion that there was a dispute over a right that was recognised, at least on arguable grounds, under domestic law.

8 . First, the Court relies on the wording of section 26(1) of the Associations Act according to which members of an association are entitled to bring disputes before courts “with a view to protecting [their] rights as stipulated in the statute [of the association]” (see paragraph 52 of the judgment). However, as already mentioned, the domestic courts had consistently interpreted section 26(1) of the Associations Act as not granting a member of a hunting association a right to challenge the lawfulness of a decision of the general meeting to expel the person as a member of that association. In deciding whether the dispute concerned a right that was recognised under domestic legislation, the Court should not rely on the wording of section 26(1) of the Associations Act alone, but should rely on the provision as interpreted by the domestic courts.

9 . Secondly, the Court refers to the fact that freedom of association is recognised under the Croatian Constitution (see paragraph 54 of the judgment) thereby arguing that the dispute concerned a dispute over a right recognised under domestic law. However, the fact that freedom of association is recognised under domestic law is not the same as saying that domestic law grants a right to challenge a decision of a private association to expel a member from the association, a question which the domestic courts have consistently answered in the negative.

10 . Thirdly, the Court refers to freedom of association having a civil aspect (and not only a political aspect), and that membership of a hunting association falls under the civil limb of Article 6 § 1 of the Convention (see paragraph 55 of the judgment). However, the judgment cited in support of the Court ’ s reasoning ( APEH Ãœldözötteinek Szövetsége and Others v. Hungary , no. 32367/96, §§ 30-36, ECHR 2000 ‑ X) is clearly distinguishable from the present case, as that case concerned a complaint about lack of registration of an association, a right that was clearly recognised under domestic law in Hungary.

11 . Finally, the Court refers to Sakellaropoulos v. Greece (dec.), no. 38110/08, 6 January 2011 (see paragraph 56 of the judgment). In my view, that judgment is also distinguishable from the present case as it concerned a civil dispute over the right to membership of an association, a right that was recognised under domestic law.

12 . Therefore, by finding Article 6 § 1 of the Convention applicable to the applicant ’ s dispute with the hunting association, the Court is, in my view, creating a right that is not recognised under domestic law, that is a right to challenge the lawfulness of a final decision of the general meeting to expel him as a member of a hunting association. For that reason, I voted against finding Article 6 § 1 of the Convention applicable under its civil limb, and as a consequence I also voted against finding a violation of that provision.

13 . I would like to draw attention to another aspect of the case. The Court has found a violation of Article 6 § 1 of the Convention on the ground that the applicant was denied access to a court, that is he was unable to have his dispute with the hunting association decided by domestic courts. The question therefore arises what the applicant, according to the Court ’ s finding in this judgment, was entitled to challenge before the domestic courts. In my view, it cannot be the expulsion decision as such, since domestic law – as interpreted by domestic courts – clearly does not give a member a right to contest the lawfulness of a decision to expel him or her as a member of the association. In other words, what the applicant has a right to challenge before domestic courts as a consequence of the Court ’ s interpretation of Article 6 § 1 of the Convention must be whether the procedure followed in adopting the expulsion order was in conformity with the hunting association ’ s statute.

14 . In my view, granting the applicant such limited access to the courts, where the courts ’ jurisdiction does not include the lawfulness of the expulsion decision as such, will not do the applicant much good, as the domestic courts in the applicant ’ s case, that is the County Court and the Supreme Court, have already emphasised the fact that the general meeting ’ s decision was final (see paragraphs 14 and 16 of the judgment). This reasoning seems to indicate that the body competent to adopt a final decision on the exclusion of the applicant as a member of the hunting association was the general meeting. In other words, even if the procedure followed – as alleged by the applicant – was not in accordance with the statute of the hunting association (see paragraph 13 of the judgment), the exclusion was finally decided by the competent body, that is the general meeting of the association. Therefore, should the applicant seek a reopening of the domestic proceedings or institute new civil proceedings as a consequence of the Court ’ s judgment, he will not, irrespective of the Court ’ s finding of a violation of Article 6 § 1 of the Convention in the present case, be entitled to challenge the lawfulness of the expulsion decision as such.

15 . As already mentioned, I have some sympathy for the Court ’ s finding of a violation of Article 6 § 1 of the Convention, as there do not seem to be any strong arguments for not granting a member of an association a right to challenge the lawfulness of a final decision to expel him or her as a member of that association, even before an authority with some kind of limited jurisdiction; but if no such right exists under domestic legislation, not even on arguable grounds, I fail to see how Article 6 § 1 of the Convention can be applicable. That being said, expelling a member from a private association without procedural guarantees, including judicial scrutiny, may raise an issue under Article 11 of the Convention, a provision that has not been invoked by the applicant nor assessed by the Court in its judgment.