JOINT CONCURRING OPINION OF JUDGES TULKENS AND SPIELMANN

( Translation )

1. In paragraph 27 of the judgment, the Court , ruling on an equitable basis in accordance with Art icle 41 of the Convention, rightly awards for non-pecuniary damage the entire amount claimed by the applicant listed under no. 67 ( namely EUR 6 , 895 ) and EUR 7 , 000 to each of the other applicants, plus any tax that may be chargeable. This decision represents an individualis ation of the non-pecuniary damage where multiple applicants express the same complaint , as, for example in the instant case, a violation of every person ' s right to have his or her case heard within a reasonable time .

2. Admittedly, in the Kozyris and Others v . Gr ee ce and Charmantas and Others v . Gr ee ce judgments of 10 February 2005, the Court awarded a specific sum for non-pecuniary damage to the a pplicants jointly , but without providing an explanation. In awarding joint compensation, the Court implicitly tr eated the one hundred and fifty- one applicants in the first case and the sixty-nine applicants in the second as though they were part of a group, and each group was awarded a global, non-individualised sum in compensation , in spite of the fact that each applicant could claim separate and personal non-pecuniary damage.

3. Since then the Court has developed its case-law and abandoned this “all-inclusive” approach ; it now awards each applicant an individualised amount correspond ing to those which it awards to individual applicants in similar cases. This case-law, which consists in compensating each applicant individually for the damage he or she has sustained, is fully consistent with the philosophy underl ying the Convention , which perceives just satisfaction as redress for a violation found in respect of an individual applicant. Under the Convention system as it currently stands, it is each applicant, taken individually, who has sustained the non-pecuniary damage, irrespective of whether his or her application was lodged with the Court singly or jointly with others.

4. Generally speaking, the situation could be different if the Court were to recognise clearly, where th is question genuinely arises, that is, in respect of A rticle 34 of the Convention, collective applications ( which covers, at least partially, the concept of “ class action ” ). However, this is not (yet) the case. In reality, the Court ' s case-law r emains fix ed in the sense that A rticle 34 of the Convention requires that applicants must be able to claim to be “victims” of the alleged violation, which supposes a sufficiently direct link between the applicant and the damage which he or she considers to have been sustained.

5. Whil st we believe that it would certainly be desirable in future for the Court to be able to recognise, in certain cases, a right to take action as a group , this is in order to increase protection of the rights and freedoms guaranteed by the Convention , rather than to restrict it [1] . It would be paradoxical to accept collective applications in respect of just satisfaction ( for the purpose of limit ing it ) while refus ing them in respect of the criteria governing the admissibility of applications.

6. In the instant case, the applicants each lodged an application on an individual basis. This cannot be reclassified as a “collective” application purely for the purpose of A rticle 41. The fact that several or even multiple a pplicants have lodged an application cannot be used to deprive them of the advantage of individual and individualised just satisfaction . This is the price to be paid for “ individual due process ” [2] .

PARTLY DISSENTING OPINION OF JUDGES LOUCAIDES , ROZAKIS AND JEBENS

We agree with the majority that there has been a violation of Article 6 § 1 with respect to the length of the proceedings. However, we are un able to accept the amounts awarded to the applicants in respect of non-pecuniary damage.

The applicants - ­ 91 persons in total - are all doctors who were employed at the material time in the same public hospital. They participated together in administrative proceedings against the hospital in connection with the calculation of their overtime wages. The applicants ' claim and the proceedings before the courts were thus of a truly collective nature.

In our opinion, excessively lengthy proceedings will normally affect individual litigants in different way s when they participate in a “ class action ” , as in the present case, and when they appear alone. This is so both with regard to the general concerns and worries and the increased procedural costs in the second case . In our opinion , therefore, it is not reasonable to apply the criteria for calculating non-pecuniary damage in lengthy proceedings where only one or a few persons are parties to proceedings which involve a large number of persons collectively ( “ jugement collectif ” ), as in the present case.

Applying different standards depending on the effects of lengthy proceedings on the litigants can, of course, create problems when it comes to how and where to draw the line between a typical individual party and a p arty who is participating in a “ class action ” . This, however, is a problem that must be dealt with by the Court if or when it arises. It should not be accepted as a valid argument for failure to differentiate between litigants who are affected differently, or in order to avoid placing excessive compensation burdens upon the States.

In our view, only a moderate sum should be granted to each of the 91 applicants in this case as compensation for non-pecuniary damage. This wou ld be in harmony with the Court ' s recent case law – see, for example Kozyris and others v. Greece and Charmantas and O thers v. Greece , both judgments of 10 February 2005.

List of applicants

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[1] . Olivier De Schutter , Fonction de juger et droits fondamentaux . Transformation du contrôle juridictionnel dans les ordres juridiques américain et européens , Bru ssels , Bruylant , 1999, pp. 1059 et s eq .

[2] . To borrow the expression used by Mauro Cappelletti and Bryant Garth , “ Finding an Appropriate Compromise: A Comparative Study of Individualistic Models and Group Rights in Civil Procedure ” , 2 Civil Justice Quarterly (1983), pp. 111 et s eq ., p. 113.