JOINT DISSENTING OPINION OF JUDGES MARUSTE, GARLICKI AND MIJOVIĆ

The Court has held that the application is admissible in respect of the civil proceedings concerning the estate located in Katowice . We wish to indicate our disagreement with this finding.

The proceedings in question related to the applicant ' s request for reopening of civil proceedings which had been terminated in 1965. While the Court did not dispute that, in principle, Article 6 of the Convention does not apply to such proceedings, it noted that the government, in their observations, had not challenged the competence of the Court in this case. In the light of this fact, and in reliance on its judgments in Prince Hans-Adam II of Liechtenstein v. Germany (§ 40) and Fortum Corporation v. Finland (§ 36 ‑ 40), the Court decided the case on the merits.

We find it difficult to accept such an approach. First of all, the competence ratione materiae of this Court is delineated in the text of the Convention and the parties do not have the power to extend or to modify it by their declarations. It is true that the Government expressly declared that the case was admissible. But this only demonstrates that the Government, erroneously, chose not to follow the established case-law under which reopening proceedings remain outside the scope of Article 6. Such a declaration, which was rather generous towards the applicant, could not, however, modify the jurisdiction of the Court. The existence of jurisdiction constitutes an objective fact and if it does not have competence ratione materiae the Court is unable to continue its examination of the case.

Furthermore, we are not sure whether this case was really governed by the judgments cited by the majority. The Prince Hans-Adam II of Liechtenstein v. Germany judgment was related to very particular, truly unique, set of facts and it would be difficult to transpose its findings to “regular” reopening cases. The Fortum Corporation v. Finland judgment involved both the civil and criminal heads of Article 6 (see § 40) and that was one of the reasons why the Court confirmed that it had jurisdiction. No special circumstances of this kind were present in the applicant ' s case. Therefore, in our opinion, the outcome of this case should follow the Court ' s conclusion in the case of Nylund v. Finland ( dec.), no. 27110/95, ECHR 1999-VI where the Court noted that “The parties have agreed that Article 6 of the Convention is applicable to the present case. However, the Court, which has to examine, ex officio , its competence ratione materiae , is unable to reach the same conclusion”.

Finally, the approach of the majority that the competence of the Court depends on declarations by the respondent Governments seems hardly compatible with the principle of equality. Those applicants lucky enough not to have the Court ' s jurisdiction challenged by the Government, would have their cases heard and decided on the merits. Others, when confronted with a more careful position of the Government, would see their applications dismissed as inadmissible. In effect, access to the Court would depend on discretionary (not to say – arbitrary) positions taken by the respondent parties.

It is true that the reopening proceedings in the applicant ' s case lasted much too long. This may be regrettable, but it cannot modify the scope of the jurisdiction of this Court.