CONCURRING OPINION OF JUDGE DE GAETANO

1. Although I agree that in this case there was a violation of Article 6 § 1 as regards all three applicants, there is an issue which, I believe, has not been adequately addressed in the principal judgment.

2 . The present case does bear some similarity to Marini v. Albania (no. 3728/02, 18 December 2007). Both judgments deal with the interaction between on the one hand provisions of the Constitution in so far as they refer to the working and the decision making process of the constitutional court and, on the other, provisions of other legislation also relating to the functioning of the said court. In Marini , the “other legislation” (namely the Constitutional Court (Organisation and Operation) Act of 10 February 2000) clearly provided that decisions of the Constitutional Court were to be taken by a majority of the judges present for the deliberations, and that abstentions were not allowed (see paragraph 71 of the judgment in that case). Although this “other legislation” made provision in the event of a tied vote, the Court noted that in the case before it there could in reality have been no tied vote since the Albanian Constitutional Court had sat in a seven-judge formation (see paragraph 119 of that judgment). In that case the domestic court had, somehow, failed to decide, when it could and should have done so one way or the other.

3 . In the instant case the situation is rather different and, with all due respect, far more bizarre. The Constitutional Court (of Bosnia and Herzegovina) is composed of nine members (paragraph 17). According to the Constitution, a majority of all the members of the court, i.e. 5, shall constitute a quorum ( ibid. ). The Constitution is silent on how decisions are to be taken, and in particular on whether decisions of the Constitutional Court are to be taken by simple or by qualified majority . The Constitution also provides that the Constitutional Court shall adopt its own rules of court.

4 . A fundamental principle of both constitutional and administrative law is that, in the absence of an express provision to do so, subsidiary legislation (whether delegated to an authority of the executive branch of government or, as in this case, to an authority of the judicial branch) should never go against the parent legislation, whether directly or indirectly. In providing for a quorum of five judges, the Constitution clearly intended to establish the minimum number of judges for the Constitutional Court to function and to get on with its business. There is no suggestion in the Constitution that applicants should face more or less difficulties in the determination of their applications by that court depending on the number of judges hearing a particular application. The rules of court, which were adopted by the Constitutional Court itself and which are therefore, by their very nature, subsidiary legislation, while providing that the plenary court should take decisions by a majority of all its members, introduced a qualified majority in the case of any formation other than the full nine. In other words, the smaller the composition of the Constitutional Court (five, six, seven or eight members), the more difficult it would be for an applicant to have the case resolved in his favour. No provision was made in the said rules in the event of a tie when the formation was an even one. Moreover, as if this were not enough, when the qualified majority was not attained, the rules provided that “it shall be considered that the decision is taken to reject [the appeal]” (see paragraph 18). In other words, the appeal is “deemed to have been” rejected even though, in reality, there was no actual determination on the merits (paragraph 36). It was thus sufficient for a judge to fail to turn up for deliberations because of, say, illness, for the procedural hurdle to be put in place. Considering that a reduced composition could also be due to the failure of one or more of the selecting bodies to do their duty, the element of prejudice to applicants before the Constitutional Court through the application of Rule 40(3) assumes the cloak of sheer arbitrariness.

5 . To my mind it is not a court ’ s function – and particularly a constitutional court ’ s function – to place procedural obstacles, not provided for by primary legislation (which itself must be compliant with Article 6) which render more difficult, if not indeed impossible, the determination of a civil right or obligation. For these reasons I voted for a violation.