CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

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

2 . While I agree in all respects with the reasoning that led the Court to find a violation of Article 1 of Protocol No. 1, I have more difficulty in following the approach by which it found a violation of Article 6.

3 . The Court essentially reached its finding of a violation of Article 6 on the ground that the applicant had not had access to a court , as this Article implicitly requires: “Thus, in the Court ' s view, the judgment of the Koprivnica Municipal Court of 8 June 2004 to declare the enforcement of the above-mentioned Montenegro court ' s judgment inadmissible may be regarded as imposing a restriction on his right of access to a court” (see paragraph 62 of the judgment). Very logically, the Court goes on to ask the question “whether the applicant ' s right of access to a court was unduly restricted by that decision” (ibid.).

4 . I wonder whether this is the right approach.

5 . After all, “on 16 October 2001 the app licant instituted non- contentious proceedings before the Koprivnica Municipal Court seeking that the ... foreign judgment be recognised in Croatia” and “on 20 November 2001 the Municipal Court accepted the applicant ' s request and issued a decision recognising the Montenegro court ' s judgment” (see paragraphs 7 and 8).

6 . This suggests to me that the applicant did indeed have access to a court. The proceedings, instituted on 16 October 2001 with the application to the Koprivnica Municipal Court, ended on 8 June 2004, when the same court declared the applicant ' s request inadmissible. Throughout that time, the various courts did not remain inactive. Thus, when the applicant applied on 4 March 2002 for rectification of the decision because it incorrectly stated that the case number of the recognised judgment was P-437/97 instead of P-437/87, the Koprivnica Municipal Court issued a decision rectifying the error, which was served on the applicant ' s representatives two days later (see paragraphs 9 and 10).

7 . In more general terms, can the right of access to a court be said to have been infringed simply by the fact that, with the passing of time, an action becomes time-barred? I am not sure.

8 . I would also note that the competent courts bear a significant share of the responsibility for the fact that the action could not be pursued because it was time-barred.

9 . Firstly, they displayed excessive formalism . The Koprivnica Municipal Court itself rightly corrected the clerical error concerning the case number (see paragraph 10 of the judgment ). Unfortunately, on an appeal by the judgment debtors, the appellate court – in my view, incorrectly – quashed the writ of execution of 6 February 2002 on account of the typing error in the case number. While acknowledging that the discrepancy might have been caused by a clerical error, it nevertheless quashed the writ of execution, giving precedence to the principle of strict formal legality (see paragraph 14).

10 . The case was therefore remitted to the first-instance court, which required the applicant to have the case number amended in accordance with the appellate court ' s demand . With the passing of time as further appeals were lodged, the applicant ' s action became time-barred. On 28 September 2004 the Koprivnic a County Court dismissed an appeal by the applicant.

11 . Can it reasonably be maintained in these circumstances that the applicant did not have access to a court?

12 . Besides being guilty of e xce ssive formalism , the competent judicial authorities also incorrectly interpreted and applied the relevant provisions of domestic law. In interpreting the relevant provisions, the domestic courts held that lodging a request for recognition of a foreign court judgment did not constitute an act by a creditor which could interrupt the running of the statutory limitation period within the meaning of section 388 of the Obligations Act because it was neither directed against the debtor nor aimed at determining, securing or enforcing the claim. Accordingly, no interruption of the limitation period had occurred when the applicant had submitted his request for recognition of a foreign judgment.

13 . Without a doubt, the domestic courts ' interpretation to the effect that the institution of the proceedings for recognition of a foreign judgment by the applicant did not interrupt the running of the ten-year statutory limitation period was unforeseeable. An interpretation more favourable to the applicant, and to the very notion of a fair trial, would have been to hold that instituting proceedings for recognition of a foreign judgment would interrupt the running of the statutory limitation period. As the judgment indeed notes in relation to Article 1 of Protocol No. 1, it is untenable to hold the view that instituting proceedings for the recognition of a foreign judgment does not interrupt the running of a statutory limitation period (see paragraph 55).

14 . In short, I consider that the domestic courts interpreted the relevant provisions of the Obligations Act very incorrectly and applied them in a manner bordering on arbitrary.

15 . My conclusion is therefore that there has been a violation of Article 6 in this case, not because the applicant was deprived of his right of access to a court , but because, both by displaying excessive formalism and by interpreting the relevant statutory provisions arbitrarily , the competent judicial authorities deprived the applicant of the right to a fair hearing .

16 . In paragraph 84 the judgment states that “given the nature of the applicant ' s complaints and the reasons for which it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto, the Court considers that in the present case the most appropriate way of redress would be to reopen the proceedings complained of in due course”.

17 . For reasons I have explained on many occasions, either alone or together with other judges, in particular Judge Spielmann, [3] I would very much have liked this principle, on account of its importance, to have been reflected in the operative part of the judgment.

[1] (no. 18648/04), published in Clunet (Journal de droit international), 2009, p. 193, commentary by Fabien Marchadier; and Revue critique de droit international privé , 2008, p. 830, commentary by Patrick Kinsch.

[2] It should be noted that the Pellegrini v. Italy judgment (no. 30882/96, ECHR 2001 ‑ VIII) concerned the opposite situation (restrictions imposed by the Convention on the possibility of granting authority, in accordance with domestic law, to execute foreign judgments that do not meet the European standard of a fair trial). Legal experts have commented as follows on the McDonald decision cited above:

“ [ The d ecision] takes an innovative approach … on this point , by making it possible henceforth to attach the right to recognition or execution of foreign judgments direct ly to the right to a fair hearing . Thus , the respect due for foreign judgments as such, independently of any substantive rights that may be involved, is deemed a sufficient basis for the right to their international exe cution ” (Patrick Kinsch, R evue critique de droit international privé , 2008, p. 839) (translation).

or :

“ The Cour t accept s – for the first time ( the question had been expressly left open by the Sylvester v. Austria (n o. 2) judgment of 9 October 2003, n o. 54640/00) – that a refusal to recognise a foreign judgment can be regarded as constituting interference with the right to a fair hearing” (ibid., pp. 838-39) (translation).

or :

“ … A rticle 6 of the Convention concern s all stages of the trial, including execution of the judgment. And in that regard, no distinction should be made according to the origin of the judg ment ” (Fabien Marchadier, Clunet , 2009 , p. 196) (translation) .

This question has occupied the minds of legal specialists for some time ( see Fabien Marchadier, Les objectifs généraux du droit international privé à l ’ épreuve de la Convention européenne des droits de l ’ homme , Bru ssels , Bruylant, 2007, n os. 272 et seq ., in particular n o. 275 ( concerning the obligation to recognise foreign judgments de plano ); Patrick Kinsch, “ The Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments – A Survey of the Cases Decided by the European Human Rights Institutions ”, in T. Einhorn and K. Siehr, eds., Intercontinental Cooperation Through Private International Law – Essays in Memory of Peter E. Nygh , The Hague, 2004, pp. 197-228; Patrick Kinsch, Droits de l ’ homme, droits fondamentaux et droit international privé , Recueils de cours de l ’ Académie de Droit International de la Haye, vol. 318 (2005), in particular p. 94: “ Le refus de la reconnaissance d ’ un jugement étranger en tant qu ’ ingérence dans des droits garantis ” ; and Fabien Marchadier, “ La protection européenne des situations constituées à l ’ étranger ” , Dalloz , 2007, p. 2700).

[3] See my joint concurring opinions with Judge Spielmann appended to the following judgments: Vladimir Romanov v. Russia ( no. 41461/02 , 24 July 2008); Ilatovskiy v. Russia ( no. 6945/04 , 9 July 2009); Fakiridou and Schina v. Greece ( no. 6789/06 , 14 November 2008); Lesjak v. Croatia ( no. 25904/06 , 18 February 2010) ; and Prežec v. Croatia ( no. 48185/07 , 15 October 2009). See also my concurring opinion joined by Judges Casadevall, Cabral Barreto, Zagrebelsky and Popović in the case of Cudak v. Lithuania ([GC], no. 15869/02, 23 March 2010 ) , as well as the concurring opinion of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska in Salduz v. Turkey ( [ GC ] , no. 36391/02 , ECHR 2008 -... ).