SEPARATE OPINION OF JUDGE DE MEYER

( Translation )

I. The revision procedure

According to Rule 60 § 3 of Rules of Court B, a request for revision submitted by a “private party” must be considered “by a Screening Panel composed as provided in Rule 59 § 3”, and this Screening Panel must decide whether the request is “admissible under paragraph 1” of Rule 60. However, whereas Rule 59 § 3 expressly confirms that Screening Panel decisions rejecting requests for interpretation must be unanimous, like those rejecting applications referring a case to the Court, Rule 60 does not make that provision in connection with requests for revision.

I do not believe that this warrants the conclusion that, in order to reject such requests, unanimity is not required.

Protocol No. 9, which is the basis for the existence of the Court’s Screening Panels, conferred on an individual applicant, according to the explanatory report of the committee of experts which drafted it, “an unrestricted right to refer his case to the Court” [3] . It conferred that right subject only to the requirement of prior consideration by a Screening Panel, which can decide that a case is not to be considered only by a unanimous vote. It is understandable that it should not be possible to reach such a decision, which prevents the exercise of a right conferred on individual applicants “without qualification” [4] , by a simple majority of a committee composed of only three judges, one of whom is the judge elected in respect of the respondent State.

According to the same report, once an individual applicant has seized the Court, he must be “placed on an equal footing with the State concerned in so far as the procedure before the Court is concerned” [5] . The same principle must obviously apply when a case is referred to the Court by the Commission or a State.

The aim of Protocol No. 9, again according to its explanatory report, was to enable individual applicants “to exploit fully the control machinery provided for enforcing [their rights]” [6] and to afford them a stronger guarantee of both “equality of arms” and “the right of access to a tribunal” [7] .

It is therefore sufficiently surprising in itself that Rules of Court B likewise require the intervention of a Screening Panel when an individual applicant requests interpretation or revision of the judgment concerning his case.

All the more reason why, in my opinion, it cannot be accepted that two judges should be able to refuse to consider his request for revision, whereas it takes at least five votes to refuse to consider requests for revision from a State or the Commission. To me that seems incompatible with the very spirit of the Screening Panel system, as established with regard to the Commission by Protocol No. 8, and with regard to the Court by Protocol No. 9.

Just like the Convention itself, our rules of procedure must be interpreted and applied in the way which is most favourable to the men and women whose rights it is our duty to protect.

That is why I consider that unanimity of the Screening Panel is required just as much in connection with a request for revision as in connection with an application referring a case to the Court or a request for interpretation.

II. Admissibility of the request

I now turn to the reasons why, in my opinion, the Screening Panel could not, in the present case, reject the request for revision.

Admittedly, the facts relied on in the request were not unknown to the applicant before delivery of the judgment of 25 April 1996.

Nevertheless, they were relied on in order to refute allegations which were made by the respondent Government only a very short time before the Court’s hearing and which the Court took into consideration [8] , despite the objections of the applicant’s lawyer [9] , the warning of the Delegate of the Commission about the need for caution [10] and the contrary opinion of Judges Martens and Matscher [11] , without even allowing the parties to adduce evidence on the question [12] .

These allegations, which contradicted the facts found by the Commission, concerned situations going back a number of years and were not put forward by the Government until their memorial of 12 September 1995, whereas they had been aware of the application since autumn 1992 [13] .

It cannot be inferred from the words “According to the Government” at the start of the second paragraph of paragraph 15 of the judgment [14] that the Court did not regard the allegations in question as established facts. Nor can it be asserted that the Court did not have regard to them in reaching its conclusions on the merits of the case. If that were so, what would be the meaning of paragraph 51 of the judgment, in which the Court refers to the “additional information concerning the terms and conditions of employment adduced by the Government before it” and in which it states: “The Court is not prevented from taking them into account” [15] ?

It is all the more astonishing that the Court was able to say, in paragraph 53 of the judgment: “… the applicant has not substantiated his submission to the effect that the terms of employment which he offered were more favourable than those required under a collective agreement” [16] , when, firstly, the Commission had already found in paragraph 79 of its report that that had been established and, secondly, the applicant had been refused the right to submit additional observations on this subject which he had not been asked to make.

The statement by the six people who had worked in Mr Gustafsson’s restaurant in summer 1986, produced by him in support of his request for revision, had already been sent to the Court before the judgment was delivered [17] , but the President refused to add it to the file.

That fact, which might “by its nature” have had “a decisive influence”, thus remained “unknown” to the Court, within the meaning of Rule 60 of Rules of Court B. Accordingly, it cannot now be denied that it is a new fact.

The Court should therefore now restore the balance which was broken by taking into account the Government’s last-minute allegations and give itself the opportunity to reconsider the case on the basis of a more complete file.

Concurring opinion of Judge Palm

I am of the opinion that the Screening Panel ought to have decided the question of admissibility with reference to the merits as laid down in Rule 60 § 1 of Rules of Court B. Furthermore, I find that an analysis of the provisions in the Convention and the structure of Rules of Court B lead to the conclusion that the Court’s decisions are taken with a majority vote when there is no explicit provision for any other voting procedure. It follows that the Screening Panel’s decision to admit or to reject a request for revision by a private party should be taken by a majority vote. This conclusion is also supported by the fact that a request for revision submitted by a Contracting State or the Commission is decided by a majority vote and I can see no justification for placing an individual party in a more favourable position than a Government or the Commission when such a request is made.

[1] Notes by the Registrar

. The case is numbered 18/1995/524/610. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[3] 1. Explanatory report, § 21.

[4] 2. Ibid., loc. cit.

[5] 3. Ibid., § 31.

[6] 4. Ibid., § 12.

[7] 5. Ibid., § 13.

[8] 1. Judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 655, § 51.

[9] 2. See his letters of 19, 23 and 25 October 1995.

[10] 3. Verbatim record of the hearing on 22 November 1995, p. 8.

[11] 4. See paragraph 2 of their dissenting opinion, Reports 1996-II, p. 668.

[12] 5. See paragraph 6 of the judgment, ibid., p. 642.

[13] 6. See paragraph 6 of the Commission’s report.

[14] 1. Reports 1996-II, p. 645.

[15] 2. Ibid., p. 655.

[16] 3. Ibid., p. 656.

[17] 4. This statement, which forms Appendix 4 of the request for revision, was sent by Mr Ravnsborg on 17 October 1996 and had already been transmitted by him to the Court on 6 December 1995, two weeks after the hearing on 22 November 1995.