JOINT DISSENTING OPINION OF JUDGES KALAYDJIEVA AND DE GAETANO

1. Although we voted in favour of declaring the application admissible – the line of demarcation between inadmissibility on the facts and non-violation often being a very thin one – we regret that we cannot share the view of the majority on the merits in this case.

2. The applicants are not complaining that their right of access to a court has been breached; their complaint under Article 6 § 1 is limited to the fact that the final judgment rendered (by the High Court) was based on a law which was no longer in force on the date of the delivery of that judgment (it was still in force at the time of their dismissal).

3. What, from the case file, appears to have happened is that the High Court in Podgorica , when it convened on 26 April 2006 to discuss the employer ’ s appeal, was not aware that eight days previously the Official Gazette had carried the Constitutional Court ’ s decision of 28 February 2006 which had declared the Labour Amendments Act 2004 unconstitutional (because that act had not been adopted by Parliament with the required majority of votes). The Supreme Court could not entertain the applicants ’ appeal on points of law since the value of their separate claims did not exceed EUR 5,000, each being only EUR 150.

4. The Court has repeatedly stated that Article 6 provides only a procedural, and not a substantive, guarantee; a mere claim that a national court has made an error of fact or of law will not suffice for a violation of Article 6, since this article is not meant to guarantee that the outcome of the proceedings is fair, but only that the procedure leading to that outcome is such. Thousands of applications are declared inadmissible ratione materiae each year – at single judge, committee or Chamber level – by application of this basic principle. The classic formulation of this principle remains that enunciated in García Ruiz v. Spain (21 January 1991), §28: “ ... it is not [the function of the Court] to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.”

5. It is true that some cases suggest that there may be a violation of Article 6 if a decision is arbitrary or manifestly unreasonable (see, for instance, Camilleri v. Malta dec . 16 March 2000; Blücher c. République Tchèque 11 janvier 2005 § 56-57). All these cases are very fact-specific and do not easily lend themselves to the formulation of a general principle or rule which can be said to have made any serious inroad into the doctrine of quatrième instance . This is even more so with regard to the two cases cited in the majority judgment at § 32. In De Moor the Court, in §§ 55 and 56, vacillates between the domestic tribunal ’ s reasoning not being a “legally valid one” and the proceedings not having been held in public. Indeed, the majority decision i n the instant case relies on part of § 55 by the exegetic formula of mutatis mutandis . Likewise in Dulaurans , although one senses that the bottom line is that the French domestic courts did not provide adequate reasons for their judgments, there is also a wavering between lack of proper reasoning and conflicting conclusions of fact.

6. In the instant case the facts are simple – the High Court in Podgorica was unaware of the publication mentioned in § 1, supra . This appears to have been simply an oversight, an error. Furthermore, we are not convinced that a decision of the Constitutional Court declaring a provision unconstitutional necessarily and automatically makes this provision inapplicable to the circumstances of the case before the national courts. This would normally depend on the procedural or substantive nature of the said provision as well as on the period to which its applicability must be assessed. However this assessment falls within the competence of the national courts. In our view the present case file discloses no arbitrariness or manifest unreasonableness, such as flying in the face of established case-law or absurd conclusions of law or fact (which would fall to be regarded as violating the implicit requirement of Article 6 § 1 to give reasons for decisions). We see no difference between the wrong application of a law and what happened in this case.