PARTLY DISSENTING OPINION OF JUDGES KJØLBRO AND KOSKELO

1. We have voted against the finding of a violation of Article 6 § 1 in the present case because, in our firm view, the requirement of legal certainty under that provision has not been breached. Instead, we consider that the majority have erred in their interpretation of the principle of res iudicata by giving it an excessively wide scope. Such an interpretation risks entailing wide-ranging disruptive implications for the domestic legal systems throughout the Convention space. Instead of protecting legal certainty, the approach taken will therefore, paradoxically, provoke a great deal of legal uncertainty.

2. What is at issue in the present case is the extent of the substantive res iudicata effect attaching to a final judgment falling under the civil limb of Article 6 § 1 (l’étendue de l’autorité de la chose jugée ; matérielle Rechtskraft ), namely the scope of the binding effect of such a final judgment in subsequent litigation between the same parties. More specifically, the gist of the problem concerns the question whether, or to what extent, the two sets of proceedings concerned issues which were “the same”, such as to create a binding effect from the final findings in the first set of proceedings over the subsequent proceedings.

3. It is well-known that this subject-matter is one of considerable complexity, and one where the governing rules and doctrines in the various domestic legal orders may not be identical in all respects. That state of affairs calls in itself for a degree of care and caution with regard to the Court’s approach in interpreting Article 6 § 1.

4. In the present case, however, the majority not only fail to exercise such care and caution but disregard the fundamental limits of the principle of res iudicata as set out in the Court’s existing case-law. This is a matter of great concern.

5. In Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, 12 January 2006), the Court stated that the principle according to which a final judgment is a res judicata and resolves the dispute between the parties with final effect is a fundamental element of the right to a fair trial guaranteed by Article 6 in civil matters (§ 63). It also noted that in all legal systems the res judicata effects of judgments have limitations ad personam and as to material scope (§ 66). It is, however, essential to note that in its case-law, the Court has in this regard expressly referred to the “ same circumstances which were crucial for deciding the dispute ” (see Brletić v. Croatia , no. 42009/10, § 47, 16 January 2014, and Esertas v. Lithuania , no. 50208/06, § 23, 31 May 2012); “ les mêmes circonstances factuelles qui étaient déterminantes pour leurs issues ” (see Siegle v. Romania, no. 23456/04, § 36, 16 April). This is crucial because the res judicata concerns, and is limited to, the specific legal issue that has been resolved, i.e. the legal consequence that has been determined by a final judgment. It is to be noted that in Kehaya and Others , the legal issue in the two sets of proceedings was indeed the same, namely the question of ownership of certain immovable property. In Brletic , the legal issue in both sets of proceedings concerned the same monetary obligation. In Esertas , the issue concerned the (continued) existence of a contract between the parties. In Siegle , the key issue determining the outcome of the case was whether an offence had been committed by the driver of a vehicle. Although the above case-law is cited, and ostensibly relied on, in the present judgment, in reality the majority extend the scope of the res judicata effect, as a Convention standard, far beyond the existing case-law.

6. In the present case, the essence of the position taken by the majority is based on the idea that “the Supreme Administrative Court re-examined the factual circumstances which had already been established by a final court decision” (see paragraph 78 of the judgment). In this context, the majority also state that the two sets of proceedings were not only between the same parties but concerned “the same legal relations” and the “same set of facts, specifically the circumstances surrounding the applicant’s suspension” from her work as clinical researcher. Thus, the majority considers that the two sets of proceedings had “essentially the same material scope”.

7. We find such loosely formulated starting points fundamentally problematic, especially because it is obvious that a given “legal relation” may give rise to a variety of distinct legal issues and disputes, and even the “same set of facts”, or the “circumstances surrounding” a given factual event, may raise legal issues that are different in terms of the applicable substantive norms, and thus also separate and distinct with regard to the application of the principle of res judicata . Furthermore, the assessment of such different legal issues may depend on different factual conditions, which accordingly makes such issues subject to a separate or at least a differentiated assessment of the facts and related evidence. All these basic matters, however, are overlooked by the majority.

8. Indeed, the res judicata principle has nothing to do with the position that different legal consequences arising from a given situation may depend on different factual conditions. There is nothing unusual or abnormal in that. Accordingly, different legal consequences may be subject to distinct legal conditions, which not only justify but even require distinct factual assessments. To suggest that this is contrary to the res judicata principle as applicable under the Convention is, in our view, not only wrong but entirely unreasonable. Such an interpretation of the res judicata principle as a Convention standard would have unforeseen consequences and cause wide-ranging disruption in the established legal and procedural systems throughout Europe. We can see no justification for such an approach.

9. In the present case, the two sets of proceedings concerned different legal issues, namely the different consequences of an allegedly unlawful administrative act – annulment of the suspension on the one hand, and the State’s liability in damages for pecuniary or non-pecuniary losses on the other. The legal conditions to which each of these issues is subject, and the factual assessments on which they depend, are matters of domestic law. Accordingly, they must be settled at the domestic level. In the second set of proceedings, concerning the issue of the State’s liability in damages, the Supreme Administrative Court carefully explained in its judgment that the annulment of the suspension did not mean that the measure was unlawful ab initio , and that the conditions for the State’s liability in tort were therefore not satisfied.

10. There is nothing unusual in such a position as a matter of domestic law. In any event, the res judicata principle is not an instrument by which the Court could or should intervene to resolve and overrule such determinations in matters of domestic law. This is so even if it appears that, on this particular point, there is a conflict of interpretation between the Supreme Administrative Court and the Constitutional Court. That issue of substantive national law remains one for the domestic authorities to settle.

11. In the light of the above considerations, we discern no valid grounds for holding, as the majority does, that the Supreme Administrative Court in the present circumstances acted in breach of the principle of legal certainty inherent in Article 6 § 1. As already mentioned, we consider that, on the contrary, the misguided interpretation of the principle of res judicata as adopted by the majority is liable to create a great deal of wholly unwarranted legal uncertainty within the entire Convention space.