CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES ROZAKIS AND MALINVERNI

1. It was with the grea test hesitation that I voted for a non-violation of Article 6 § 1 of the Convention. I did so out of a sense of discipline and respect for the Court ' s case-law, accepting that the requirement to pay fees to civil courts in connection with claims they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention (see Kreuz v. Poland , no. 28249/95, § 60 , ECHR 2001 ‑ VI ). I am personally of a different opinion. As a matter of principle, access to courts should be free of charge because the administration of justice is a public service.

2. The Court has adopted a more lenient approach in the past. Indeed, it transpires from the Court ' s case-law that “the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant ' s ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed his right of access and had ' a ... hearing by [a] tribunal ' ” (see Kreuz , cited above, § 60, with further references).

3. In the r ecent Grand Chamber judgment Perdigão v. Portugal [GC], no. 24768/06 , 16 November 2010 , the Court found a vio lation of Article 1 of Protocol No. 1 concerning disproportionate court fees. The Court characterised the fees imposed in that case as an excessive burden which upset the fair balance which must be struck between the general interest of the community and the fundamental rights of the individual (see Perdigão , cited above, § 78 ).

4. The present case has similarities with Perdigão , ibid., notwithstanding the fact that the applicant only brought complaints under Article 6 § 1 and 13 of the Convention.

5. The applicant, who was a practising lawyer at the time, actually paid the court fees at issue (see paragraph 20 of the judgment). However, his argument was not that he was unable to do so but that the fees were disproportionate to the quota he could expect to receive (paragraph 57). In the applicant ' s assertion the fixing of the court fees in relation to the amount of the claims he sought to have admitted to the insolvency proceedings had in itself been excessive (ibid.). This was all the more true, in his submission, as not only the court fee for introducing an action under section 110 of the Insolvency Act but also the court fees for the further conduct of the proceedings, and the lawyers ' fees, would be calculated on the basis of that amount in dispute. He argued that, instead, they should have been fixed in relation to the quota likely to be obtained (paragraph 58).

6. As the Court noted in paragraph 58 of the judgment, when dealing with the applicant ' s argument the domestic courts mainly referred to the Supreme Court ' s established case-law, according to which there was no scope for making an estimate of the value in dispute where a pecuniary claim was at stake, as was the case with an action under section 110 of the Insolvency Act. The question whether the claim was recoverable was not considered to be material. In particular, the Supreme Court had found in that connection that there was no difference between proceedings under section 110 of the Insolvency Act and other civil proceedings.

7. It is true that States enjoy a margin of appreciation when establishing and applying any system regulating access to court, including the system for the imposition of court fees. However, it is for the Court to make a final decision as to the observance of the Convention requirements (see the case ‑ law cited in paragraph 48 of the judgment).

8. I would like to stress the importance of securing to a person “effective” access to a court. The courts observed that the applicant ' s claim was of a pecuniary nature and that it was thus justified to take the amount of the claims asserted as the amount in dispute, which served as the basis for calculation of the court fees. They did not address in any detail the applicant ' s argument that linking the court fees to the amount in dispute was disproportionate in the particular context of insolvency proceedings, as he was not seeking payment of the sum at issue through the action under section 110 of the Insolvency Act but was merely seeking admission to the insolvency proceedings.

9. The Government pointed out that a successful action under section 110 of the Insolvency Act would not only entitle the claimant to participate in the insolvency proceedings but would also provide him with an enforceable claim valid for thirty years. However, I doubt the practical usefulness of such entitlement in the circumstances of the present case, where the debtor was a limited liability company. Finally, regarding the Government ' s argument that the courts could order the trustee in bankruptcy or the liquidator to bear the costs of the proceedings in the event of a vexatious refusal of the claim, in accordance with section 112 of the Insolvency Act, I would like to emphasise that this occurs only in exceptional cases; as a general rule, the costs of the proceedings are met from the estate (see paragraph 26 of the judgment).

10. Turning to the phase of the proceedings in which the court fees were imposed, I note that the fees were due at the initial stage of the proceedings. The Government stressed that the activity of the courts was not dependent on the payment of court fees. However, I note that the court fees became due following the Administrative Court ' s decision of 17 March 2005. Had the applicant failed to pay the fees, enforcement measures would have been taken against him.

11. In so far as the Government argued that the applicant had had a number of possibilities at his disposal in order to obtain full or partial exemption from or a reduction in the court fees, but had failed to make use of any of these, I would like to make the following observations.

12. As regards the possibility of requesting legal aid under Article 63 § 1 of the Code of Civil Procedure, which may include provisional exemption from court fees (paragraph 63 of the judgment), I note that legal aid is to be granted only if the party is unable to meet the costs of the proceedings. However, the applicant, although asserting that the court fees were excessive, did not claim that he was actually unable to pay them. Indeed, he paid the court fees in their entirety (see paragraph 20). In addition, the applicant pointed out that exemption from court fees was only provisional and could be revoked if the party ' s financial situation changed.

13. Turning to the possibilities under section 9 §§ 1 and 2 of the Judicial Collection Act, namely full or partial exemption from the payment of court fees or respite from court fees in cases where the collection of the fee would cause particular hardship to the person concerned (paragraph 64 of the judgment), I observe that the Government merely referred to the text of the law. They did not refer to any specific decision showing that a person in the applicant ' s situation could benefit from exemption or respite from court fees. In contrast, the applicant referred to the case-law of the Administrative Court , which only accepted in cases of default of payment that the collection of court fees would cause special hardship. As the applicant had actually been able to pay the fees, I fail to see how the measures foreseen in section 9 §§ 1 and 2 of the Judicial Collection Act could have provided effective relief in his case.

14. I would like further to observe that, although the imposition of the very substantial court fees did not prevent the applicant from pursuing his claim, it cannot be overlooked that their substantial amount deprived the proceedings to a large extent of their practical usefulness for the applicant. In that connection I reiterate that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Kreuz , cited above, § 57, and Airey v. Ireland , 9 October 1979 , Series A no. 32 , § 24).