JOINT DISSENTING OPINION OF JUDGES LORENZEN AND MARUSTE

In t he present case the majority voted for finding a v iolation of Article 6 § 1. For the following reasons we are not able to share the opinion of the majority.

The requirement that a tribunal must be “established by law” is one of several requirements in the Convention and its Protocols that acts of national authorities shall have a sufficient basis in domestic law, cf. for example Article 5 § 1 (“in accordance with a procedure prescribed by law” and “lawful” arrest or detention), Article 8 § 2 (“in accordance with the law”), Articles 9 § 2, 10 § 2 and 11 § 2 (“prescribed by law”), Article 2 §§ 2 and 4 of Protocol No. 4 (“in accordance with law”) and Article 4 § 1 of Protocol No. 7 (“ in accordance with the law and penal procedure of that State”).

The wording “ established by law” seems clearly to indicate that the scope of this requirement is more limited than a requirement that a tribunal shall act “in accordance with the law” or in a manner “prescribed by law”. A literal interpretation of that expression leads in our opinion to the result that what is required is a legal basis for the existence and organisation of a tribunal, including a determination of what matters come within the jurisdiction of that court. The term cannot be understood in the sense that a tribunal in order to be considered “established by law” must also comply with all national requirements concerning the carrying out its functions. Had this been the intention, there would have b een no reasons to draft Article 6 § 1 differently in this respect from other Articles.

In the case-law of the Convention organs Article 6 § 1 has been applied in accordance with this interpretation. Thus in Zand v. Austria (cited in paragraph 23) the Commission observed that the clause envisages “the whole organizational set-up of the courts, including not only the matters coming within the jurisdiction of a certain category of courts, but also the establishment of the individual courts and the determination of their local jurisdiction” and held that its “object and purpose” requires that the “judicial organisation” cannot depend on the Executive. This interpretation was confirmed by the Court in Coëme and others v. Belgium (cited in paragraph 23). The Court has also found that a court is not established by law where the rules governing the composition of a court have not been respected (as, for example, in Posokhov v. Russia , no. 63486/00 , ECHR 2003 ‑ IV , judgment of 4 March 2003, and Fedotova v. Russia , no. 73225/01 , 13 April 2006 ). However , there is no case-law finding that where a court has jurisdiction to hear a case and is lawfully composed, the mere fact that it has not complied with domestic law concerning the exercise of its judicial functions violates the said requirement. It may lead to other violations of Article 6, such as the right to access to court or the right to a

fair trial, but cannot justify the conclusion that the court was not “established by law”. To hold otherwise would in reality imply that the Court would have to act as a fourth instance in respect of any alleged violation of national procedural rules, which it has constantly held is not its function (see, for example, Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). Accordingly we cannot agree with the majority that the term “established by law” also covers “compliance by the tribunal with the particular rules that govern it” (cf. paragraph 24).

In the present case it is undisputed that the Supreme Court had jurisdiction to hear the case in a cassation review and that it was lawfully composed. Under the Code of Commercial Procedure it could either dismiss an appeal or quash a ruling of the Higher Commercial Court, and in the latter case either remit the case for further consideration by the first instance court or the Higher Commercial Court or nullify the proceedings. However, as the Supreme Court agreed with the decision of the first instance court upheld by an appeal court, it did – in accordance with a practice developed in its case-law – not remit the case for further consideration by another court, but upheld the decision of the first instance court. Even assuming that this practice could not be considered “lawful” under domestic law as found by the majority, we are not able to agree that it deprived the Supreme Court of being “a tribunal established by law”. Accordingly there has in our opinion been no violation of that requirement in Article 6 § 1 of the Convention.

DISSENTING OPINION OF JUDGE JAEGER

I fully agree with the dissenting opinion of Judges Lorenzen and Maruste. The majority oversteps the limits set out in the Convention in examining national procedural law with the scrutiny of a fourth instance court and setting aside a well established jurisprudence of the competent national Supreme Court.

While the Court ’ s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed the rights and freedoms protected by the Convention (see among many other authorities Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 45 and Streletz, Kessler and Krenz v. Germany [GC], no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001- II ). Nothing in the present case leads to the conclusion that infringements of that kind are occasioned by the Supreme Court in applying Article 111-18 of the Code of Commercial Procedure.

Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis, Kopp v. Switzerland , judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 541, § 59).

Turning to the present case in my view the Supreme Court interpreted and applied Article 111-18 of the Code of Commercial Procedure in a logical and convincing way. If a Cassation Court is given the competence ( i ) to quash judgments and to remit the case to the first instance court or to the Higher Commercial Court (under Article 111-18(2)), and in addition (ii) to leave a resolution or ruling unchanged (under Article 111-18(1)), it would need strong arguments to find this court lacking competence to uphold a lawful judgment of the first instance court . None are to be seen in this respect. After quashing the resolution of the Higher Commercial Court the decisions of the lower courts were valid again. As the Supreme Court found them to be in accordance with the relevant law there was no reason to quash them, too. Without quashing them there was no need for a remittal because the case was already decided. Any further remittal would be pointless. Thus I cannot agree on the majority ’ s finding of an unlawful extension of competences.

[1] . Words in brackets show amendments of 15 May 2003 , introduced by the Law on the Introduction of Changes and Amendments to the Code of Commercial Procedure of Ukraine.