DISSENTING OPINION OF JUDGE PEJCHAL

I disagree with the majority ’ s finding of a violation of the applicant ’ s right to a fair trial within “a reasonable time”. I am of the opinion that the term “reasonable time” is not the same as “a time without delay”. However, I have observed that the case - law of the Court has recently been more inclined to define the meaning of “reasonable time” in terms of “a short time”.

The essential case-law reiterates that the reasonableness of the length of proceedings must be assessed “in the light of the circumstances of the case”. The Court ’ s assessment cannot be of a sweeping character. The examination of individual cases by the Court must be oriented not only to wards the applicant but also to wards the High Contracting Party.

Traditions, culture and the standard of living vary from one member State of the Council of Europe to another. Some citizens of “ Europe ” prefer an agreement, a mediation, to a dispute before a court of law. To have litigation opened before the national court can, for some citizens of some countries, be dishonouring, whereas in other countries it can sometimes be considered a victory.

With the benefit of my long-lasting practice I can say from personal experience that a longer trial can afford a better position to all parties to a lawsuit. Sometimes an expeditious judgment can be worse for the parties than a reasonable agreement between the litigants after lengthy proceedings.

After all, as Seneca said: “ Quod ratio non quit, saepe sanavit mora ” (time often heals what reason cannot). In this saying Seneca very appropriately defined the natural rule of a spontaneous order of free citizens. In this respect, the purpose of the Convention is, above all, the protection of fundamental freedoms. The protection of human rights is the key to protecting such freedom. Without freedom the protection of human rights would merely be illusory . A life lived in the spontaneous order is a life lived in freedom.

Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms brought a very important and new perspective on this issue.

The Explanatory Report to Protocol No. 14, amending the control system of the Convention , sets out a new admissibility criterion, its paragraph 80 reading as follows:

“The main element contained in the new criterion is the question whether the applicant has suffered a significant disadvantage. These terms are open to interpretation (this is the additional element of flexibility introduced); the same is true of many other terms used in the Convention, including some other admissibility criteria. Like those other terms, they are legal terms capable of, and requiring, interpretation establishing objective criteria through the gradual development of the case-law of the Court.”

It follows from this paragraph that there are two important elements:

1. The main element – “a significant disadvantage suffered”.

2. The additional element – “its openness to interpretation”.

Why is the question whether a significant disadvantage has been suffered by the applicant laid down as the main element of the new admissibility criterion? Because this element has to form an integral part of all consideration by the Court of a violation of any Article of the Convention. And why is this element open to interpretation? It is a matter of fact that any consideration by the Court implies interpretation of the Convention.

Nonetheless, every international treaty must be interpreted within the limits of international law. Any consideration of the Court is also bound by international law. The general rule of interpretation of international treaties is provided for in the Vienna Convention on the Law of Treaties, in Article 31 § 1 thereof, which reads as follows: “ A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

A judgment of the Court is an individual decision on an alleged violation of the Convention which incorporates an individual decision as to a significant disadvantage which the applicant has suffered. Accordingly, I consider that the assessment of the present case lacks an examination of the relationship between a potential significant disadvantage for the applicant and the length of the trial.

The sweeping conclusion of the Court and its interpretation of the Convention to the effect that “a reasonable time” means exclusively “a short time” (which I believe is contrary to the Vienna Convention on the Law of Treaties) may be dangerous as regards the implementation of the Court ’ s case-law at national level. Such interpretation of the Convention might institute a practice of national courts whereby the quality of decisions would lose out to the speed and quantity of decisions, without the national courts being interested in the real needs of the parties to the lawsuit. Furthermore, this sweeping kind of decision-making on the part of the Court is not quite in line with its subsidiary role.

Absent a detailed consideration of what, in fact, transpired at national level and in the light of such facts as can be ascertained from the judgment, I cannot agree that there has been any violation of the Convention.

[1] Rectified on 5 July 2013 : “ from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention , ” has been inserted.