Lexploria

CONCURRING OPINION OF JUDGE MARTENS,

APPROVED BY JUDGES FOIGHEL AND PEKKANEN

1. I share the opinion of my colleagues as to the

applicability of Article 6 para. 1 (art. 6-1), but I do not agree with

their reasoning. More specifically, I think that the Court should have

put aside as immaterial the Government's argument that the (second)

action brought by the applicant (on 8 April 1982) was not "arguable"

(by which the Government evidently meant that it was clear beforehand

that it had no chances of success whatsoever).

2. It is true that this argument seems to find support in

the case-law of the Court in so far as it has been held repeatedly(1)

- and has indeed been reiterated in the present judgment - that

Article 6 (art. 6):

[only](2) extends to "contestations" (disputes) over

(civil) "rights and obligations" which can be said, at

least on arguable grounds(3), to be recognised under

domestic law".

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(1) See, amongst other judgments cited below: the Lithgow and Others

v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70,

para. 192, the W. v. the United Kingdom judgment of 8 July 1987, Series

A no 121, p. 32, para. 73, the Pudas v. Sweden judgment of

27 October 1987, Series A no 125-A, p. 13, para. 30, and the H.

v. Belgium judgment of 30 November 1987, Series A no 127-B, p. 31,

para. 40.

(2) Beginning with the Neves e Silva v. Portugal judgment of 27 April

1989 (see p. 61, note 4, below [our footnote (25)]) the word "only" has

been dropped, which makes the formula rather ambiguous; I take it,

however, that the formula still is to be understood in a restrictive

sense.

(3) Emphasis added.

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However, making the applicability of Article 6

(art. 6) conditional on whether or not the applicant's claim as to his

(civil)(4) rights and obligations is "arguable" is justified - if at

all - only where the complaint to the Convention institutions concerns

lack of access to a tribunal fulfilling the conditions of paragraph 1

of this provision. Where the applicant protests that the national

court which has adjudicated on his claim lacked independence, was not

impartial, denied him a public hearing, did not decide within a

reasonable time or otherwise disregarded principles of a fair hearing,

there is no room for the "arguability" test.

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(4) The Court itself usually puts the word "civil" between brackets;

I would merely add that in this opinion I am only concerned with the

arguability of "rights and obligations" as such; whether or not those

rights and obligations are "civil" within the meaning of Article 6

(art. 6) is, also in my opinion, decisive both in cases where the right

of access to a court is at stake and in cases where other violations

of Article 6 para. 1 (art. 6-1) are alleged; that point, however, does

not enter into the present discussion.

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3.1 Before presenting my arguments for this opinion I will

try to ascertain the meaning of the "arguability" test: what does the

Court mean exactly when it requires that there must be a dispute over

"rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law?

To answer this question, an inquiry into the genesis

of the formula is, if not indispensable, at any rate rewarding.

3.2.1 In the context of Article 6 (art. 6) the "arguability" test

emerged firstly in paragraph 55 of the Ashingdane v. the United Kingdom

judgment of 28 May 1985(5) with regard to a complaint about lack of

access to a court. In that paragraph the Court referred to

paragraph 44 of its Le Compte, Van Leuven and De Meyere v. Belgium

judgment of 23 June 1981(6) and to paragraph 81 of its Sporrong and

Lönnroth v. Sweden judgment of 23 September 1982(7). However, neither

of these judgments used the formula introduced in paragraph 55 of the

Ashingdane judgment, according to which the "right to a court" "may be

relied on by anyone who considers on arguable grounds(8) that an

interference with his (civil) rights is unlawful". What the Court

actually said in the first of these judgments will be quoted in

paragraph 3.2.2 below. What the Court in its Sporrong and Lönnroth

judgment actually found to be decisive for holding Article 6 (art. 6)

to be applicable was that there existed a difference of view between

the applicants and the authorities as to the lawfulness of certain

measures affecting the applicants' property rights and that this

difference was of a serious nature(9).

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(5) Series A no. 93, p. 24.

(6) Series A no. 43, p. 20.

(7) Series A no. 52, p. 30.

(8) Emphasis added.

(9) See also the Benthem v. the Netherlands judgment of 23 October

1985, Series A no. 97, p. 15, para. 32, sub-paragraph (c) and the Van

Marle and Others v. the Netherlands judgment of 26 June 1986, Series

A no. 101, p. 11, para. 32, sub-paragraph (b).

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3.2.2 The meaning of the latter formula can only be understood in the

light of the Court's originally rather broad wording of the right of

access to a court implied in Article 6 para. 1 (art. 6-1). In its

Golder v. the United Kingdom judgment of 21 February 1975(10) the Court

said that Article 6 para. 1 (art. 6-1):

"secures to everyone the right to have any claim(11)

relating to his civil rights and obligations brought

before a court";

and in its above-mentioned Le Compte, Van Leuven and De Meyere judgment

it inferred therefrom that Article 6 (art. 6):

"may be relied on by anyone who considers(12) that an

interference with the exercise of one of his (civil)

rights is unlawful".

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(10) Series A no. 18, p. 18, para. 36.

(11) Emphasis added.

(12) Emphasis added.

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The latter wording had evidently been borrowed from

paragraph 64 of the Klass and Others v. Germany judgment

6 September 1978(13) where the Court used similarly broad terms when

it held that Article 13 (art. 13):

"requires that where an individual considers

himself(14) to have been prejudiced by a measure

allegedly in breach of the Convention, he should have

a remedy"

and concluded that Article 13 (art. 13) thus guarantees an "effective

remedy before a national authority"

"to everyone who claims(15) that his rights and

freedoms under the Convention have been violated".

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(13) Series A no. 28, p. 29, para. 64.

(14) Emphasis added.

(15) In italics in the judgment.

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3.2.3 In this older case-law both "rights of access" had thus been

made conditional on the mere subjective views of the individual

concerned. Apparently the Court felt that this went a little too far

and that there was a need for some restriction allowing for a certain

measure of control by the Convention institutions. In its Sporrong and

Lönnroth judgment it formulated this restriction - in the context of

the right of access to a court under Article 6 (art. 6) - by requiring

that the dispute must be "genuine and of a serious nature". In its

Silver and Others v. the United Kingdom judgment of 25 March 1983(16)

it had - in the context of the right of access to a national authority

under Article 13 (art. 13) - introduced a differently worded test

reformulating its above-quoted Klass decision by saying that

"where an individual has an arguable claim(17) to be

a victim of a violation of the rights set forth in the

Convention, he should have a remedy before a national

authority".

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(16) Series A no. 61, p. 42, para. 113.

(17) Emphasis added.

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In its above-mentioned Ashingdane judgment the Court evidently

came to the conclusion that the latter test served the same purpose as

the former and therefore adopted it also with regard to the right of

access to a court under Article 6 (art. 6), thus bringing both rights

of access in line as far as the said restriction is concerned.

This then led to the adoption - in paragraph 81 of the

James and Others v. the United Kingdom judgment of 21 February

1986(18) - of the formula quoted in paragraph 2 above. Although that

formula was then adopted in the context of a complaint about lack of

access to a court, its wording is such that it appears to be a general

prerequisite for the applicability of Article 6 (art. 6). Hinc

lacrimae.

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(18) Series A no 98, p. 46.

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3.3 The analysis of the formula's genesis in paragraph 3.2

makes it clear that it serves only a rather limited purpose. It seems

reasonable to suppose that its introduction was connected with the

"victim" requirement of Article 25 (art. 25). In principle it does not

suffice for an individual applicant to allege that in a particular

member State it is impossible to bring claims of a certain type before

the courts; the lack of access complained of must actually have been

detrimental to him. Apparently the Court considered that the latter

requirement was only met when the claim which allegedly could not be

brought before a court (or before a national authority) had at least

some verifiable basis in fact as well as in law.

Accordingly, the "arguability" test has nothing to do

with the chances of success of the applicant's action had it been

possible for him to bring it before a national court. It is not for

the European Court to express an opinion on those chances(19). The

Convention institutions need only be satisfied that the claim is

"arguable" in the sense that it finds support in demonstrable facts and

is not clearly excluded by national law. The James and Others judgment

seeks to justify the latter part of this restriction by claiming that

neither Article 6 (art. 6) nor Article 13 (art. 13) requires that there

be a national court with competence to invalidate or override national

law(20).

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(19) See the Baraona v. Portugal judgment of 8 July 1987, Series A

no. 122, p. 17, para. 40 in fine.

(20) Series A no 98, p. 46, para. 81, and p. 47, para. 85.

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3.4 Even thus narrowly construed, the formula is open to

the criticism levelled at it by Judge Lagergren in his separate opinion

in the Ashingdane judgment. In substance Judge Lagergren argued that,

whereas - in order to guarantee equality of rights under the

Convention - the terms "rights" and "obligations" in Article 6

para. 1 (art. 6-1) should be taken to have an autonomous meaning, it

cannot be accepted that the right of access to a court depends on

whether, in a certain factual situation, national law does or does not

permit the bringing of an action for interference with a "right" or

non-fulfilment of an "obligation". This criticism has since then been

subscribed to by many other judges(21). In the present case it is,

however, not necessary for me to take a stand as to whether I also

subscribe to it. I only draw attention to that criticism in order to

make it clear that already in the context of a complaint about lack of

access to a court the "arguability" test is questionable.

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(21) See, among others: the joint separate opinion of Judges Lagergren,

Pinheiro Farinha, Pettiti, Macdonald, De Meyer and Valticos in the case

of W. v. the United Kingdom, Series A no. 121, p. 39, and the separate

opinion of Judge De Meyer in the case of H. v. Belgium, Series A

no. 127-B, p. 48.

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4.1 This is, at the same time, the first argument for not

applying that test with regard to other complaints under Article 6

para. 1 (art. 6-1), such as indicated at the end of paragraph 2

(art. 6-2) above. In the context of a complaint about lack of access

the test, however open to criticism, may be indispensable in order to

enable the Convention institutions to control whether the applicant is

a victim (by ascertaining whether the claim which is the object of his

complaint has at least a minimum of reality and seriousness). Where

the applicant has in fact had access to a court which has decided on

the merits of his claim, such control is superfluous, with the result

that it is not necessary to resort to a test which is open to serious

criticism.

4.2 I have to admit, however, that the Court - undoubtedly

as a consequence of the general character of the formula introduced by

its James and Others judgment to which I have already drawn attention

(see paragraph 3.2.3 above) - has applied the "arguability" test

several times(22) in cases of the latter type: see paragraph 41 of its

Baraona judgment of 8 July 1987(23); paragraphs 40-43 of its H. v.

Belgium judgment of 30 November 1987(24); paragraph 37 of its Neves e

Silva judgment of 25 May 1989(25); and paragraph 38 of its Editions

Périscope v. France judgment of 26 March 1992(26).

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(22) It is worth wile to note, however, that where in cases of this

type the applicability of Article 6 para. 1 (art. 6-1) is contested,

the point is sometimes decided without any reference to arguability at

all; see, for instance, the HÃ¥kansson and Sturesson v. Sweden judgment

of 21 February 1990, Series A no. 171, p. 19, para. 60.

(23) See p. 60, note 1, above [our footnote (19)].

(24) Series A no. 127, pp. 31-32.

(25) Series A no. 153-A, p. 14.

(26) Series A no. 234-B, p. 65.

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It should, however, be noted that on every occasion the

Court concluded that the requirement was met and that the applicant had

an arguable case. Furthermore, it should be noted that in the latter

two judgments the Court stressed the marginal character of the test by

holding that "for the purposes of Article 6 para. 1 (art. 6-1) it is

enough to determine" whether the applicant's arguments "were

sufficiently tenable" and that in its judgment of 26 March 1992 it

indicated that the mere fact that the national courts have ruled on the

merits of the case suffices for holding that this requirement is

fulfilled, even where these courts have dismissed the applicant's

claim(27). This suggests that, in the context of complaints concerning

a violation of Article 6 (art. 6) by courts which have ruled on the

merits of the applicant's case, the "arguability" test has been

virtually abandoned.

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(27) In paragraph 41 of its aforementioned Baroana judgment (see

page 60, note 1 [our footnote (19)], above) the Court had already

thought fit to point out that the national court had given a

preliminary decision declaring the applicant's case admissible and the

State did not appeal.

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4.3 One must indeed query what useful purpose is served by

applying the "arguability" test - construed as indicated in paragraph

3.3 above - where the applicant has actually had access to a court

which has given judgment on the merits of his claim but, according to

the applicant, in doing so has violated the requirements of Article 6

para. 1 (art. 6-1) either because it did not offer the guarantees

required by that provision or because it disregarded principles of a

fair hearing. When the applicant has won his case but complains about

the length of the proceedings, could this Court still hold that he had

no arguable claim and therefore refuse to examine his complaint? And

when an applicant who has lost his case brings the same complaint, why

should the Court refuse to examine it on the mere ground that it was

to be expected that the national courts would reject the applicant's

claim as it was not "arguable"? Was the applicant in such cases

perhaps not a victim of a violation of the obligation to determine his

(civil) rights and obligations within a reasonable time?

In my opinion, there is a violation of Article 6

(art. 6) if the plaintiff is told that his claim does not find support

in the facts - or is excluded by the law - only after an unreasonable

time. Or if he is so told by a court which lacks the required

independence or impartiality. Such violations of general principles

of the proper administration of justice have nothing to do with the

quality of the claim brought before the courts. The hearing of

non-arguable claims should also be fair.

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CASE OF SALERNO v. ITALYCONCURRING OPINION OF JUDGE MARTENS,

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