DISSENTING OPINION OF JU D GE BORREGO BORREGO

I regret to say that although I am a judge I am not an expert in accounting.

In assessing whether or not the length of a set of proceedings it is required to examine is reasonable, the Court routinely makes use of arithmetic. Hence, it must add up the years, months and even days which elapsed (albeit without having to deduct public holidays). Then, depending on the case, it must perform further additions and subtractions and even work out percentages. What is more, the length of time which is deemed to be reasonable is gradually becoming shorter. Although it is not possible to indicate a length of time which might be taken as a model, it is fair to say that, at present, the cut-off point for what is considered reasonable is in the region of five years. In my view, we are coming close to saying, as in May 68, “Let ’ s be realistic and demand the impossible”.

After some hesitation, I have come to the following conclusion as regards the length of proceedings: a violation of Article 6 can occur when two circumstances combine. First, a reasonable time means a normal length of time. Hence, the length of proceedings is not reasonable if it is abnormal, that is to say, out of the ordinary. We must make a distinction between the achievable and the utopian. Second, whatever happens, the proceedings before the Court must be shorter than the proceedings complained of.

In the case in question, while the length of the domestic proceedings under consideration was less than three years, the proceedings before the Court took longer than three years. Furthermore, once the applicant had requested (two years after lodging his appeal) that a decision be given within a short time, he received a positive response from the domestic courts (see paragraphs 11 to 16). In my opinion, having regard to the circumstances of the case, there was no violation of the applicant ’ s right to have his case heard within a reasonable time.

I should like to draw attention to another aspect, which also concerns accounting. The majority of the Court assessed the amount payable for non ‑ pecuniary damage in respect of the violation at EUR 1,000. However, and this needs to be stressed, in order to award the applicant EUR 1,000 (an amount below that awarded three years ago by the domestic courts at first instance, which the applicant regarded as inadequate – see paragraphs 18 to 21), the Court set costs and expenses at EUR 2,500, not including taxes. If to that we add the corresponding costs for the Court, the result is, purely and simply, that thousands of euros are being spent in order for the applicant to receive in the end a mere one thousand euros.

This case is a good example of what is happening today with the right to a fair hearing, both in this Court and in the higher courts of European countries. We are witnessing a truly extraordinary upsurge in cases concerning Article 6, both in numerical terms and in terms of the attention paid to them by the courts. For example, in 2005, four out of every five judgments delivered by the Court related, wholly or in part, to Article 6. In addition, 25% of the total number of judgments delivered co ncerned length of proceedings. Consequently, the right to a fair hearing, the only human right which is instrumental in nature, has become the predominant human right. Have the “rights of man and of the citizen” now become the “rights of legal practitioners” (lawyers, prosecutors and judges)?

Of course, human rights cannot be reduced to mere figures based on a cost-benefit analysis. However, in my view, we must not lose sight of the fact that protecting the rights “of man and of the citizen” requires money, a commodity which is inevitably in short supply. If we wish to continue to protect those rights, I believe that we must devote our attention to the issues of genuine importance to human beings and citizens.

Lord Woolf ’ s Review of the Working Methods of the European Court of Human Rights is, in my view, a truly important piece of work. In it, Lord Woolf writes that Protocol 14 is “far from being a fix-all solution”. He is right. However, I should like to express two ideas regarding this point. First, even though some are still looking for the “magic wand”, there is no panacea for all these problems. Second, experience shows that moderate, sensible reforms have always achieved more than radical change.

A Spanish poet, Antonio Machado, once wrote: “There is no path. We forge the path by walking.” The Court cannot grind to a halt or become submerged while it awaits a cure-all solution or a miracle. It can and, as I see it, must continue to forge a path, and the Protocol 14 reforms will be a tremendous asset in this respect.

The case before us would be an obvious candidate for inclusion under the future Article 35 §3 (b) of the Convention, once Protocol 14 has entered into force .