JOINT DISSENTING OPINION OF JUDGE S POPOVIĆ AND PINTO DE ALBUQUERQUE

We respectfully disagree with the ruling of the majority in this case for the following reasons.

The applicants complain of an alleged violation of Art icle 6 § 1 of the Convention. It is the ir access to a court which is at stake.

The applicants brought an action against a private person at the domestic level , stating the amount of their claim in the national currency valid at that time . A redenomination of the national currency occurred while the proceedings were pending before the domestic courts of law. The applicants did not reformulate their claim in the new currency. The first - instance court delivered two judgments, after remittal, reaffirming the value of the applicants ’ claim in the new currency. The District C ourt, in a judgment on appeal, did the same. In each of the three judgments the amount stated by the courts of law was above the threshold required for lodg ing a second appeal with the Supreme Court, which the applicants eventually did.

The Supreme Court rejected the applicants ’ second appeal on the grounds that the threshold requirement had not been fulfilled. The Supreme Court ’ s reasoning was based on two arguments: (a) the applicants had never stated their claim in the new currency, and (b) there had been no separate ruling by the lower courts on the amount of the claim.

(a) Although it is true that the applicants never stated the amount of their claim in the newly denominated currency , it is obvious from the case file that there was no need for them to do so. The reason is crystal clear: the decisions taken by the lower courts of their own motion concerning the amount of the claim in the new currency made it unnecessary for the applicants to raise this issue. The lower courts gave three judgments on the applicants ’ case and in each one the amount awarded was stated, corresponding to the applicants ’ claim. The amounts were always above the threshold required for lodging a second appeal with the Supreme Court.

(b) Although it is true that there was no separate ruling by the lower courts concerning the amount of the claim, there were no grounds for requiring such a ruling , for several reasons.

( 1) The amount of the claim was clearly and repeatedly stated in the lower courts ’ judgments, meaning that these courts gave this issue due and proper consideration.

( 2) There is no provision whatsoever in domestic law requiring a separate ruling on the amount of the claim in a lawsuit when there has been a redenomination of the currency. At the same time the respondent Government failed to provide any case-law which might serve to justify such a requirement. It is therefore obvious that the condition imposed on the applicants for lodging a second appeal was by no means foreseeable.

( 3) In the Supreme Court ’ s view it was up to the lower courts to give a separate ruling. The applicants cannot be blamed for an omission on the part of the domestic courts.

The situation we have described above warrants consideration from the standpoint of our Court ’ s case-law. The Court cannot replace the domestic authorities in the assessment of the facts and the application of national law. However, it must be vigilant in ensuring the standards of protection of human rights guaranteed by the Convention and must ascertain whether they have been met in a particular case.

In the case of Garcia Manibardo v. Spain ( no. 38695/97, § 45 , ECHR 2000 ‑ II ) the Court articulated the principle that a disproportionate hindrance of the right of access to a court is in breach of Art icle 6 of the Convention. The hindrance faced by the applicants in the present case was disproportionate first and foremost because of its lack of foreseeability . In the absence of a specific legal provision and relevant case-law it was not foreseeable that the Supreme Court would require the lower courts to give a separate ruling on the issue.

In substance, the appropriate ruling on the amount of the claim in the new currency was provided by the lower courts ’ judgments, but the Supreme Court insisted on requiring a formal and separate ruling. This requirement was even less foreseeable since it did not apply to other cases before the Supreme Court.

Moreover, the separate ruling required by the Supreme Court lay outside the scope of the applicants ’ action, which clearly makes the hindrance of their right disproportionate.

It is a firm rule in our Court ’ s jurisprudence that access to a court must not be denied by a formalistic application of domestic law. The Court held in Brualla Gomez De La Torre v. Spain ( 19 December 1997, § 32 , Reports of Judgments and Decisions 1997 ‑ VIII ) that although it was not for the Court “to express a view on the appropriateness of the domestic courts ’ choice of policy” it was indeed the Court ’ s task to determine “whether the consequences of that choice [were] in conformity with the Convention”. In several other cases the Court concluded that whenever the domestic courts appl ied a certain admissibility requirement in too formalistic a way, this would amount to a disproportiona te restriction of the right of access to a court ( see Stone Court Shipping Company , S.A. v. Spain , no. 55524/00, § § 36-43 , 28 October 2003 ; Bulena v. the Czech Republic , no. 57567/00, § 35 , 20 April 2004 ; Kadlec and Others v. the Czech Republic , no. 49478/99, § § 26-30 , 25 May 2004 ; and Boulougouras v. Greece , no. 66294/01, § § 26-27 , 27 May 2004 ). On another occasion the Commission also stated that the rejection of a petition for review ( cassation ) violate d the right of access if that rejection was the result of an omission on the part of the domestic courts ( see Dimova v. Bulgaria , no. 31806/96, Commission ’ s report of 21 October 1998). The formalistic requirement of a separate ruling on the value of the claim, which had already been provided by the lower courts ’ judgments, deprived the applicants in the present case of the right to lodge a second appeal with the Supreme Court. That is what in our opinion constitutes a violation of Art icle 6 in this case.

We therefore take the view that the very essence of the applicants ’ right to a court was impaired.