CONCURRING OPINION OF JUDGE SPIELMANN

(Translation)

I.

1. Like all my colleagues, I voted in favour of finding a violation of Article 1 of Protocol No. 1 and of Article 6 of the Convention.

2. However, like Judge Malinverni I have difficulty in following the reasoning that led the Court to find a violation of Article 6 of the Convention . While I too consider that there has been a violation of Article 6 in this case , this is not because the applicant ' s right of access to a court was infringed , but because, both by displaying excessive formalism and by interpreting the relevant statutory provisions arbitrarily , the judicial authorities deprived him of the fair hearing to which he was entitled (see paragraph 15 of the concurring opinion of Judge Malinverni).

3. In paragraph 61 of the judgment the Court rightly considers the matter from the standpoint of ex e cution of judicial decisions by citing the Hornsby v. Greece judgment ( 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II). It should be recalled that in Hornsby the Court held as follow s :

“ 40. The Court reiterates that, according to its established case-law, Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the ' right to a court ' , of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 20, § 59). However, that right would be illusory if a Contracting State ' s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention (see, mutatis mutandis , the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 16-18, §§ 34-36). Execution of a judgment given by any court must therefore be regarded as an integral part of the ' trial ' for the purposes of Article 6; moreover, the Court has already accepted this principle in cases concerning the length of proceedings (see, most recently, the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-84, §§ 20-24, and pp. 1410-11, §§ 16-20 respectively.”

4. The execution of a decision follows on from the trial, unlike the issue of access to a court, which precedes the trial.

5. T he Court re ce ntly extended the principle set forth in the Hornsby judgment to the execution of foreign decisions. In its McDonald v. France decision of 29 April 2008 [1] it held as follows :

“ The Court acknowledges that the refusal to grant authority to execute the judgments of the American court constituted interference with the applicant ' s right to a fair hearing.” [2] (translation)

6. In the present case the applicant was denied the fair hearing to which he was entitled. However, the problem arose at the final stage of the proceedings, taken as a whole. In my view, the question arising was therefore not one of access to a court .

II.

7. Like my colleague Judge Malinverni, I would very much have liked the principle of the reopening of proceedings , on account of its importance, to have been reflected in the operative part of the judgment ( see paragraph 17 of Jud ge Malinverni ' s concurring opinion and the references cited ).