DISSENTING OPINION OF JUDGES LORENZEN AND JAEGER

In the present case the majority found a violation of Article 6 § 1 of the Convention because the applicant did not enjoy effective access to a court for the examination of his civil ‑ party claim. For the following reasons we disagree with this conclusion.

Even if the Convention under the Court ’ s constant case ‑ law grants a right to have a civil claim determined by a court (“access to court”) it does not grant a right to have it heard in any particular form, this being left to the national legislation to determine. There is thus no absolute right to have a civil claim for tort based on alleged criminal behaviour determined in criminal proceedings against the person who has caused the damage. However, where in accordance with domestic law a civil claim has been lodged in criminal proceedings, a violation of the right of access to court has been found if the proceedings have been conducted in a protracted way leading to the non ‑ examination of the claim because the criminal prosecution has become time ‑ barred (see, for example , the Anagnostopoulos judgment referred to in paragraph 48 of the judgment ).

We can agree with the majority that the criminal prosecution in the present case was conducted in a “slow manner” (paragraph 49 of the judgment ), in particular at the investigation stage. But the applicant himself contributed considerably to the lapse of time by bringing his allegations to the attention of the prosecuting authorities not earlier than one year and five months after the events (paragraph 8 of the judgment ), when he could only expect to succeed later on with a civil claim in case investigation and court proceedings would be terminated by a final judgmen t very speedily within the next one year and seven months. This was not the case.

The applicant was able to present his claim only during the first court hearing on 23 February 1999 after the indictment had been submitted on 15 May 1998 more than six years after the incident. However, the Convention does not grant a right to have criminal proceedings instituted, and accordingly Article 6 § 1 was not applicable in the present case until the claim effectively had been lodged. At that time the prosecution was time ‑ barred as the three years period had expired already in January 1995, (see paragraph 25 of the judgment ) . When lodging his claim the applicant, who was represented by counsel, must – or at least should – have been aware of this and that it was unlikely that the claim would be examined unless the charge was legally qualified as a more serious offence under the Criminal Code. This question is primarily for national courts to determine and as the majority has rightly stated there are no grounds for finding that they arbitrarily refused to qualify the charge in a different way.

In these circumstances we fail to see that the applicant, who before as well as after the termination of the criminal prosecution, could have lodged his claim against V.M. in civil proceedings, has been denied access to court in breach of Article 6 § 1 of the Convention.