CONCURRING OPINION OF JUDGE SPANO

I fully agree with the Court ’ s resolution of this case. I only write separately to observe that for the reasons expressed in my concurring opinions in the cases of Čapský and Jeschková v. the Czech Republic , ( nos. 25784/09 and 36002/09 , 9 February 2017 (not final)), and Heldenburg v. the Czech Republic , (no. 65546/09 , 9 February 2017 (not final)), the Court should have examined the Government ’ s preliminary objection, as to the alleged abuse by the applicant of the right of individual application, solely on the basis of Article 35 § 3 (a) of the Convention.

CONCURRING OPINION OF JUDGE KOSKELO

I agree with the majority as regards the outcome of this case. As regards the reasoning given for the dismissal of the Government ’ s preliminary objection, however, I do not fully share the opinion of the majority.

Firstly, as explained in my separate opinion in the recent cases of Čapský and Jeschkeová v. the Czech Republic , nos. 25784/09 and 36002/09 and Heldenburg v. the Czech Republic , 65546/09, I consider that it would be more appropriate to have recourse to Article 37 § 1 (c) as the legal basis for addressing situations where there has been a breach of Rule 62 § 2 of the Rules of Court.

Similarly to the judgments in those cases, the majority in paragraph 15 of the present judgment do first refer to Article 37 § 1 (c), suggesting that this is the legal basis for considering the Government ’ s preliminary objection in the light of the applicant ’ s conduct. Subsequently, however, the reasoning turns toward addressing the situation from the point of view of whether or not the applicant ’ s conduct amounts to an abuse of the right of application. In paragraph 22 the majority make the determination that this was not the case. Again, the approach taken appears unclear and rather confusing in regard to the question of what legal basis should guide the Court when faced with a breach of Rule 62 § 2.

Secondly, as regards the substantive reasons for dismissing the Government ’ s preliminary objection, I am uneasy with the considerations expressed by the majority in paragraph 24 of the judgment. It must remain clear that the express Rules of Court are to be observed in all cases, even those where the circumstances underlying the complaint reveal a serious problem at the domestic level. In this regard, I find the considerations expressed in the first sentence of paragraph 24 – although correct as such – too wide and general and therefore not sufficient in themselves. For me the important additional consideration is that in this particular case, I find that it would be excessively harsh on the applicant if her compensation claims were to be struck out on account of a breach that clearly appears to have resulted from a failure on the part of her lawyer to abide by the relevant Rules rather than from any instruction stemming from the applicant herself to disregard those Rules. Although it is an important and established principle that any mistakes or omissions made by the lawyer engaged by the applicants are imputable to the applicants themselves, who must bear the negative consequences of what their lawyer does or fails to do in handling the case, in the present situation it would be a disproportionate consequence if the applicant were precluded from having her compensation claims examined, taking into account that the Court has already found a violation of her Convention rights and that efforts to reach a friendly settlement have failed. In the belief that the applicant herself has acted in good faith and cannot be faulted for the breach that has occurred, I conclude that in the circumstances of the present case it is justified to continue examining her remaining claims.

CONCURRING OPINION OF JUDGE EICKE

1. I also agree with the majority on the outcome of this case. However, like Judge Koskelo, I also consider that the reasoning in paragraphs 21 to 24 of the judgment is capable of creating unnecessary ambiguity about the basis on which the Government ’ s preliminary objection concerning the alleged “abuse of the right of individual application” falls to be considered in this case.

2. In my Partly Concurring and Partly Dissenting Opinions in Čapský and Jeschkeová v. the Czech Republic , nos. 25784/09 and 36002/09, 9 February 2017, and Heldenburg v. the Czech Republic , no. 65546/09, 9 February 2017, I sought to explain why, in my view, in cases where, following a substantive judgment, the Court is only concerned with just satisfaction under Article 41 of the Convention, Article 37 § 1 (c) provides the only legal basis on which the Court can impose a sanction in cases in which there has been a serious breach of the Rules of Court. I do not intend to repeat paragraphs 1-9 of those separate Opinions.

3. The particular Rule of Court in issue in this case, as in th ose two cases, is Rule 62 § 2. It is important to underline the importance and absolute nature of this Rule and the requirement of confidentiality in the context of friendly settlement negotiations it imposes alluded to in paragraph 17 of the judgment. Any party breaching this Rule should expect the Court to take a strict approach to its enforcement and should be aware of the consequences this is likely to have for the (continued examination) of the application.

4. Applying Article 37 § 1 (c) to the breach of Rule 62 § 2 in the present case, I agree that, as the judgment records at paragraph 19, the circumstances of this case “justify the conclusion that the conduct of the applicant ’ s lawyer failed to respect the rule of confidentiality” and, therefore, amounted to a clear breach of Rule 62 § 2. It is important in this context that, as the judgment records at paragraph 18, it was common ground that the applicant ’ s lawyer arose out of “his own initiative”.

5. The only remaining question, therefore, is whether this Court, in the exercise of its discretion should conclude that, despite this clear breach of the Rules of Court, it remains “justified to continue the examination of the application” as provided for in Article 37 § 1 (c).

6. As I indicated in paragraph 10 of my separate Opinions in Čapský and Heldenburg , I accept that, in absence of specific guidance on the application of Article 37 § 1 (c ) in cases such as the present, t he existing case law on the concept of “abuse of the right of application” under Article 35 § 3 (a) may be capable of being applied mutatis mutandis and/or of providing guidance on the correct approach to the imposition of an appropriate sanction for a clear breach of the Rules of Court under Article 37 § 1 (c). However, in so far as paragraphs 21 and 22 of the judgment may be read as applying that case law directly (through the prism of Article 35 § 3 (a)), I respectfully disagree. The test to be applied is that identified in paragraph 5 above and not, as it appears to be suggested in paragraph 22 of the judgment, whether “the conduct of the applicant ’ s lawyer constituted an abuse of the applicant ’ s right of individual petition”.

7. In the relation to the exercise of the discretion left to the Court under Article 37 § 1 (c) I share the unease, expressed with the final paragraph of Judge Koskelo ’ s Concurring Opinion in the present case, with the reason given by the majority in paragraph 24 of the judgment and agree with the additional consideration she identifies for exercising the Court ’ s discretion, in the context of the specific circumstances of this case, in favour of the a pplicant.