CONCURRING OPINION OF JUDGE ZIEMELE

I agree with the reasoning and conclusions of the Chamber as concerns the violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. I do, however, have some observations to make as concerns the argument raised by the Government and the corresponding reasoning of the Court with respect to Article 2 of Protocol No. 7 (paragraphs 30, 35 and 39).

The case concerns the leave-to-appeal system for minor offences in the Netherlands . The appeal is available in a limited category of cases as defined by Article 410a of the Code of Criminal Procedure. The appeal is not automatic since the article says that: “[...] the appeal lodged shall only be heard and examined if, in the considered opinion of the President, this is required in the interests of the proper administration of justice ...” On 27 July 2010 the Human Rights Committee, a treaty-monitoring body of the International Covenant on Civil and Political Rights (ICCPR), adopted Views on an individual complaint brought against the Netherlands in which among other things it stated: “The Committee further notes that, according to the State party, the President of the Court of Appeal denied the leave with the motivation that a hearing of the appeal was not in the interests of the proper administration of justice ... . The Committee considers this motivation inadequate and insufficient to satisfy the con ditions of Article 14 paragraph 5.”

In the case before the Court leave to appeal was refused based on facts about which the single-judge chamber of the Court of Appeal did not have full information (paragraph 47). Refusal of leave to appeal under such circumstances was seen by the Court to be contrary to fair trial guarantees in the national legal system, which recognises a possibility of appeal, albeit limited. The inadequacy of the case file in the applicant ' s case gave the Chamber a chance to look at the leave to appeal from the angle of Article 6, even though Article 6 as such does not require the States Parties to provide for appeals in civil and criminal cases. This obligation only emerges in criminal cases under Article 2 of Protocol No. 7, although exceptions are permitted.

The Chamber states that it cannot examine the leave-to-appeal system from the point of view of Protocol No. 7 or subject it to the same scrutiny as the HRC precisely because the Netherlands has not ratified Protocol No. 7 (paragraph 35). I agree with the Chamber that there may be differences in obligations under different treaties the Netherlands has ratified and depending on whether the case is brought to the Human Rights Committee or the European Court of Human Rights (paragraph 39).

My problem goes back to another case in which the Grand Chamber, when asked to explain the rules of interpretation of the Convention in the light of other rules of international law, arrived at the following conclusions: “The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. [...] In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law...” ( Demir and Baykara v. Turkey [GC], no. 34503/97, § § 85-86 , 12 November 2008 ). It may well be that the Demir and Baykara case represents an example of unfortunate drafting and that nothing further beyond the scope of Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties should be read into it. However, if we were to follow the literal meaning of what the Grand Chamber said, it might suggest that in our case, even though the Netherlands has not ratified Protocol No. 7, since it does provide for a leave-to-appeal system of sorts the Chamber should have assessed whether the leave-to-appeal system as such complied with Article 6. After all, the applicant did complain that the domestic law governing this procedure was contrary to the Convention (paragraphs 26-27).

I believe that the outcome in this case, which differs on the facts from the case examined by the HRC, might not have been any different had we examined the same facts, as the Court ' s case-law has accepted that leave-to-appeal proceedings may comply with Article 6 requirements (paragraph 37), and the Chamber actually takes a somewhat more substantive look at the Netherlands system (paragraphs 36-37). The problem is really in the wording used by the Chamber in the instant case and the Grand Chamber in the Demir and Baykara case concerning the role of non-ratified treaties. I would like to think that what the Grand Chamber meant when it referred to non-ratified treaties was those treaties that some States may not have ratified but that could still indicate the emergence of a universal or regional customary norm. Where the customary rule turns out to be different from the Convention provision, at least in its original form and intent, that rule may indeed affect the subsequent reading of the Convention provision (see M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, 2009, p. 433). Should not the Chamber have tried to assess whether there might be a regional custom as concerns procedural guarantees for the leave to appeal in minor offences cases, and whether any effect might be discerned in relation to the scope of Article 6, especially since the Netherlands provides for the possibility of the leave to appeal and in that sense the difference between the obligations under Article 6 of the Convention and Article 14 of the ICCPR is reduced?