PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE EICKE

Preliminary issue – abuse of process

1. I agree that the Government ’ s inadmissibility ple a on account of an alleged violation by the a pplicants of the rules of confidentiality of the friendly settlement negotiations must be dismissed on the basis of Article 37 § 1 (c) ( paragraph 16 in Čapský and Jeschkeová and paragraph 23 in Heldenburg ). However, as is clear from the forceful case advanced in the c oncurring o pinion of Judge Spano, the question of the correct legal basis for considering the Government ’ s inadmissibility ple a is clearly important and controversial and it may, therefore, be helpful to set out in more detail why I consider that the judgments are right to base their conclusion on Article 37 § 1 (c) and not Article 35 § 3 (a).

2. This is even more so as, as far as I am aware, this Court has not yet had to consider this issue in the context of cases such as the present where the alleged “abuse”/breach of the Rules of Court is said to have taken place after this Court has handed down its merits judgment (which, in these cases, had become final) in the context of proceedings under Article 41 of the Convention. This absence of guidance is underlined by the fact that:

( a) the Government, in its pleadings, invited the Court to “declare inadmissible for an abuse of the applicant s ’ right of petition within the meaning of Article 35 § 3 (a) in fine of the Convention” (see e.g. Additional Observations in Čapský and Jeschkeová of 25 May 2015, § 9); and

( b) the judgment, in support of its conclusion, cites extensively (and exclusively) from this Court ’ s case-law on the concept of “abuse of the right of application” under Article 35 § 3 (a).

3. It seems to me, however, that the particular circumstances of this case are all important to the choice of appropriate legal base.

4. In so far as relevant , Articles 35 § 3 (a) provides:

“ The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is ... an abuse of the right of individual application. ... ” (my emphasis)

5. “Individual applications submitted under Article 34” are, of course:

“ ... applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ”

6. Taking these provisions as one ’ s starting point, it is, in my view, clear that, in a situation such as the present where the Court is only concerned with the (deferred) application of Article 4 1 of the Convention, Article 35 § 3 (a) can no longer be the applicable/relevant Convention basis for dealing with allegations of an “abuse” of process /breach of the Rules of Court. This is, in my view, not affected by the fact that Article 35 § 4 mandates the Court to “reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings” (my emphasis). After all:

( a) the Article 34 “application” has, in fact, invariably already been declared admissible (in fact, in the merits judgment relevant to these cases ( R & L, s.r.o. and Others v. the Czech Republic , nos. 37926/05, 25784/09, 36002/09, 44410/09 and 65 546/09) the Court spent some 35 paragraphs o n the issue of admissibility (paragraphs 60 - 95), including the issue of an alleged abuse of the rig ht of application by Mr and Mrs Heldenburg): see mutatis mutandis Pisano v. Italy (striking out) [GC], no. 36732/97, § 35, 24 October 2002;

( b) the “claim[ ... ]to be the victim of a violation” has already been judged to have been well founded; hence the final merits judgment triggering the obligations under Articles 41 (to provide just satisfaction/reparation for the violation found) and Article 46; and

( c) it is clear from the opening words of Article 41 (“[i]f the Court finds that there has been a violation of the Convention”) and the overall structure of the Convention that the claim for just satisfaction, by definition, cannot be characterised as a separate “application under Article 34”.

7. That said (and not having had submissions on the issue), it also seems to me to be clear that:

( a) nevertheless, this Court must retain the ability (and the necessary sanctions) to deal with clear cases of an abuse of process/breach of the Rules of Court even at this separate stage of the proceedings; and

( b) the apparent mechanism provided by the Convention is to be found in Article 37 § 1 (c):

“ The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. ”

8. In applying this provision, in absence of any specific guidance from this Court, I would accept that the existing case law in relation to the “abuse of the right of application” under Article 35 § 3 (a), as summarised in Čapský and Jeschkeová and Heldenburg , must be capable of being applied mutatis mutandis and with equal force to the question whether an alleged “abuse”/breach of the Rules of the Court is such as to warrant the proceedings being struck out under Article 37 § 1 (c). Once a clear “abuse”/breach of the Rules of Court has been established, Article 37 provides the Court with a discretion whether or not to exercise its power to strike out the application. The exercise of this discretion is, of course, delimited by the overarching proviso in Article 37 § 1, last sentence, that:

“ However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. ”

9. In the present case, essentially for the reasons set out in the s epara te opinion of Judge Koskelo in paragraph 13 of her s eparate o pinion in Čapský and Jeschkeová but not without some hesitation, I accept that, while there has been a clear breach of Rule 62 § 2 second sentence of the Rules of Court, in the circumstances of these cases the Court is justified in exercising its discretion under Article 37 § 1 (c) so as to continue examination of the a pplicants ’ claims for just s atisfaction and to dismiss the r espondent Gover nment ’ s preliminary objection.

Rule 62 § 2 last sentence

10. I endor se what Judge Koskelo says in paragraphs 8- 11 of her s eparate o pinion in Čapský and Jeschkeová about the importance of (a) the distinction between the “two distinct elements of the general principle of confidentiality” and (b) the need to protect the “integrity of the Court in the contentious proceedings”.

11. In that context, I would add two comments:

( a) In the context of post-merits judgment consideration of the just satisfaction claim under Article 41 it is worth bearing in mind that, frequently if not invariably, at the very least the parties ’ initial submissions in relation to any claim for just satisfaction (which are most likely to form the starting point for any friendly settlement negotiations) will have been before the Court (in contentious proceedings) and, having been considered in detail and found “not ready for decision”, will be summarised in the merits judgment (see e.g. §§ 140-141 of R & L, s.r.o. ). As a consequence, they will be known to the Court (and, in the context of Rule 62 § 2, first sentence, will be capable of being known to the general public; especially if, as I understand is the case in the Czech Republic, as part of the execution of an adverse judgme nts of this Court under Article 46, such judgments are translated by the r espondent Government and published on a Government website); and

( b) The obligations under Rule 62 § 2 are, of course, addressed to “the p arties” and, therefore, apply both to the applicant and to the r espondent Government. Not having heard submissions on this, it would appear to me, therefore, that it might be relevant to the exercise of any discretion under Article 37 § 1 (c) on the basis of an alleged breach by an applicant of Rule 62 § 2 second sentence to consider whether and in how far the r espondent Government has itself acted in breach of that Rule and/or aggravated any breach committed by the applicant by, for example, quoting in extenso from the applicant ’ s correspondence or pleadings which are said to have been, by virtue of that very content, in breach of Rule 62 § 2, second sentence.

Rule 62 §2 first sentence

12. In paragraphs 29-31 of the judgment in Heldenburg , the a pplicant s ’ disclosure of the details of the friendly-settlement negotiations to the Ministry of Justice and/or the Constitutional Court is considered under Rule 62 § 2, first sentence, and, ultimately, found to be distinguishable from the decision in Hadrabová and Others v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007. I do not find the distinction drawn between these two cases particularly convincing but, in any event, consider (again, without having had submissions on it) that on this particular point of principle the decision in Hadrabová is wrongly decided.

13. In the admissibility decision in Hadrabová the application was found inadmissible under Article 35 § 3 (a) on the basis of a finding that it was:

“ ... clear that in their application for compensation [to the Ministry of Justice], the applicants explicitly referred to the Registry ’ s proposal prepared within the framework of friendly-settlement negotiations. It considers that this behaviour constitutes a breach of the above mentioned rule of confidentiality which must also be considered as an abuse of the right of application. ”

14. The obligation under the Convention to end the violation found and to provide just satisfaction (Article 41) to an applicant whose Convention rights have been violated is, of course, imposed on the “High Contracting Party” rather than any particular Government department or other state organ. It seems to me that, viewed from the position of this Court as an international court, the term “parties” in Article 39 § 1 of the Convention and Rule 39 § 2 of the Rules of Court (to whom the content of any friendly settlement negotiations is “confidential”) cannot be read, in relation to the r espondent Government, so as to be limited to the Agent to the exclusion of other relevant public authorities of the High Contracting Party. While there may be a division of responsibility as a matter of national law, this cannot, as a matter of public international law, be relied upon before this C ourt as against the applicant. As a consequence, disclosure (in confidence) of the content of friendly settlement negotiations to any relevant ministry, authority or domestic court, in the context of domestic attempts to secure the ending of the violation found and/or the payment of just satisfaction, cannot, in my view, constitute a breach of the otherwise strict confidentiality rules provided for under the Convention and the Rules of Court.

Just satisfaction

15. Like Judge Koskelo, and essentially for the reasons she gives in her s eparate o pinions, I also cannot agree with the majority as regards the determination of the amount of compensation for pecuniary damage to be awarded to these applicants.

16. I also agree with the quantum of damages she would have awarded. The difficulties in assessing the quantum of damages even in a case such as the present set out in her s eparate o pinion just serve to underline the difficult position this Court is left in by the absence of sufficiently focussed, detailed and realistic pleadings and evidence presented on behalf of the parties.

Annex

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Nationality

Represented by

25784/09

29/04/2009

Josef ČAPSKÝ

10/12/1939

Prague

Czech

Dit a KŘÁPKOVÁ

36002/09

23/06/2009

Miroslav a JESCHKEOVÁ

07/11/1947

Brno

Czech

Dit a KŘÁPKOVÁ