CONCURRING OPINION OF JUDGE SPANO

1. In paragraph 16 of the judgment, the Court states that in cases where it is alleged that a breach of the confidentiality of friendly settlement proceedings has occurred it must examine whether it is no longer justified to continue the examination of the application pursuant to Article 37 § 1 (c) of the Convention, in other words whether to strike out the application. However, the reasoning then correctly proceeds in paragraph 17 by recalling the Court ’ s case-law that an “intentional breach of the rule of confidentiality may, in certain circumstances, constitute an abuse of the right of application resulting in declaring the application inadmissible pursuant to Article 35 § 3 of the Convention”. The Court then concludes on the facts, again correctly in my view, that the applicant s ’ behaviour does not amount to an abuse of the right of application (see paragraph 23 of the judgment).

2. I write separately to highlight that in my view the reference in paragraph 16 of the judgment to the Court ’ s need to examine an allegation of a breach of confidentiality of friendly settlement proceedings, through the lens of the strike-out provision of Article 37 § 1 (c) of the Convention, is misplaced. The use of this reference in the reasoning also brings a lack of clarity to the Court ’ s subsequent examination of the Government ’ s preliminary objection, which is correctly based on the abuse of process provision of Article 35 § 3 (a) of the Convention. The reasoning thus in fact begs the question: which provision is the correct legal basis for the Court ’ s decision to dismiss the Government ’ s objection?

3. It seems to me that, notwithstanding the reference to Article 37 § 1 (c) in paragraph 16 of the judgment, the majority at the end of the day dismiss the Government ’ s claim on the basis of Article 35 § 3 (a) of the Convention. Let me explain further why I consider that to be the correct approach and thus also why I respectfully disagree with the view of my colleagues Judges Koskelo and Eicke, as expressed in their separate opi nions, that Article 37 § 1 (c) is the appropriate vehicle in these kinds of cases.

4. The rule of confidentiality of friendly settlement proceedings enshrined in Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court is formu ­ lated in absolute terms. The consequences of a breach of confidentiality are however left open in the terms of these provisions. The question then arises as to the applicable legal standard under the Convention and the Rules of Court when such a breach has occurred.

5. It goes without saying that the rule of confidentiality of friendly settlement proceedings must have some teeth, as it is an important safeguard in preserving the interests elaborated by the Court in paragraph 18 of the judgment; namely, those of protecting both parties and the Court from any attempt to exert political or any other kind of pressure, of facilitating a friendly settlement, and, not least, of protecting the Court and its own impartiality by ensuring that should the friendly-settlement negotiations fail, their content will not prejudice the outcome of the contentious proceedings. In other words, the prohibition on the disclosure of friendly settlement details is a rule of a procedural nature, designed to ensure the proper administration of justice in the context of proceedings before the Court.

6. However, dismissing an application due to a breach of confidentiality of friendly settlement proceedings has drastic consequences for the applicant. His application is rejected and he loses the opportunity to have his claim of a human rights violation decided on the merits or, as here, his Article 41 claim for just satisfaction, if it is reserved following a principal judgment finding a violation of the Convention. The balance between these two competing interests requires in my view a legal standard which is both transparent and rigorous in its application, focusing in particular on whether the alleged breach of confidentiality is intentional or excusable, applying mutatis mutandis the approach taken by the Grand Chamber in the case of Gross v. Switzerland ([GC], no. 67810/10, ECHR 2014). It is exactly that standard which the abuse of process provision of Article 35 § 3 (a) of the Convention provides and which has until now been the basis on which the Court has examined claims of the kind dealt with in the present case (see the references to case-law in paragraph 17 of the judgment). The vagueness and malleability of the strike-out provision of Article 37 § 1 (c) militate against applying that provision to situations where the Court is confronted with a request by a respondent Government to dismiss an application due to a breach of a procedural rule.

7. Finally, I consider it necessary to make a few remarks on some of the views expressed by my colleagues Judges Koskelo and Eicke in their partly concurring, partly dissenting opinions.

8. First, I would note that I agree with the views expressed by Judge Koskelo in her opinion (see paragraphs 9-10) where she makes a distinction between the two distinct aspects of the general principle of confidentiality that is set out in Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, namely, an “external” aspect that entails a prohibition of disclosure to third parties, including the media, and an “internal” aspect concerned with preserving the objectivity of the Court. However, I disagree that these two distinct elements of the rule on confidentiality would be better examined under the strike-out provision of Article 37 § 1 (c). Whether the breach relates to the external or internal aspects of the rule will rather have a bearing on the contextual application of the abuse of process rule under Article 35 § 3 (a) where intentionality may be more readily ascertainable in one situation than in the other.

9. Second, Judge Eicke takes the view that the Article 37 § 1 (c) strike-out route is the appropriate one to take when the alleged breach of procedural rules is made following the delivery of a judgment on the merits, as the use of the abuse of process rule is inapposite in such situations (see paragraphs 1-8 of his opinion). I would, however, respectfully argue that Article 35 § 3 (a) remains the appropriate Convention basis for reviewing allegations of a breach of absolute procedural rules, of the kind set out in Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, even where a principal judgment on the merits has been delivered and the Court has reserved the Article 41 claim for just satisfaction. The use of Article 35 § 3 (a) of the Convention is not precluded by a decision to declare a complaint admissible, as elements disclosing an abuse of process may be discovered at a later stage in the proceedings. As the decision on admissibility is now invariably taken at the same time as the decision on the merits (see Article 29 § 1 of the Convention), the issue usually does not arise, but can certainly be relevant if the Article 41 claim is reserved, as indeed it was in the present case. If the relevant abuse of process conditions are met, I can see no reason why it should be considered legally problematic to apply Article 35 § 3 (a) to a preliminary objection issue akin to that in the present case. It goes without saying that the principal judgment remains untouched, as it is only the resolution of the Article 41 claim that was reserved by the Court.