SEPARATE OPINION OF JUDGES MATSCHER AND PINHEIRO FARINHA

(Translation)

Like our colleagues, we find that the friendly settlement concluded between the Austrian Government and the applicant meets the conditions which, under Rule 48 paras. 2 and 4 of the Rules of Court, must be satisfied before a case can be struck out of the list.

Apart from the equitable nature of the settlement, we see the essence of these conditions as being that it must be ensured that, by reason of the undertakings entered into by the Government within the framework of the settlement, the situations underlying the application in question will not recur or, in other words, that the causes of the situation complained of are eliminated. In such circumstances, the friendly settlement is based on respect for human rights as guaranteed by the Convention (see Article 28 (b) of the Convention) (art. 28-b).

The Chamber unanimously found that these conditions were satisfied in the present case. Having regard to the Court ’ s responsibilities under Article 19 (art. 19) of the Convention, the Chamber was thus entitled to decide to strike the case out of the list.

On the other hand - and this is where we differ from the approach of the majority of the Chamber -, there is no room in a judgment striking a case out of the list for the inclusion of any observations on what the Court ’ s opinion might have been if it had had to determine the merits of the case, or on the opinion it had expressed in similar cases, the existence of any established case-law of the Court on the issue in question being a matter that is totally irrelevant for a decision to strike out.

[*]  Note by the Registrar: The case is numbered 11/1984/83/130.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.