[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SALERNO v. ITALY - 11955/86 [1992] ECHR 64 (12 October 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/64.html Cite as: [1992] ECHR 64

[New search] [Contents list] [Help]

In the case of Salerno v. Italy*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Bernhardt, President,

Mr F. Matscher,

Mr R. Macdonald,

Mr C. Russo,

Mr S.K. Martens,

Mrs E. Palm,

Mr I. Foighel,

Mr R. Pekkanen,

Mr A.N. Loizou,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,

Deputy Registrar,

Having deliberated in private on 29 May and 22 September 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 83/1991/336/409. 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.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 December 1991, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 11955/86) against the Italian Republic lodged with the

Commission under Article 25 (art. 25) by an Italian national,

Mr Vincenzo Salerno, on 18 January 1986.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Italy recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Mr C. Russo,

the elected judge of Italian nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 3 (b)). On 24 January 1992, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr R. Macdonald,

Mr R. Bernhardt, Mr S.K. Martens, Mr I. Foighel and Mr R. Pekkanen

(Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Italian Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the organisation of the

procedure (Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the applicant's memorial on

22 April. In a letter of 4 May the Government indicated that they

would be referring to the observations they had filed in the

proceedings before the Commission. The Delegate of the Commission made

no comments.

5. On 20 May the Commission produced the file on the proceedings

before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the decision of the President, who had given

the applicant leave to use the Italian language (Rule 27 para. 3), the

hearing took place in public in the Human Rights Building, Strasbourg,

on 25 May 1992. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, on secondment to the

Diplomatic Legal Service, Ministry

of Foreign Affairs, Co-Agent,

Mr G. Manzo, magistrato, on secondment to the

Ministry of Justice, Counsel;

(b) for the Commission

Mr A.S. Gözübüyük, Delegate;

(c) for the applicant

Mr M. de Stefano, avvocato, Counsel,

Mr V. Mazzarelli, avvocato, Adviser.

The Court heard addresses by them as well as replies to

questions put by the Court and by one of its members.

7. At the deliberations on 22 September 1992 Mr Ryssdal and

Mr Pettiti, who were unable to take part in the further consideration

of the case, were replaced by the Court's Vice-President, Mr Bernhardt,

who sat as President of the Chamber, and Mr A.N. Loizou, substitute

judge, respectively; Mr Bernhardt in his turn was replaced as a member

of the Chamber by Mrs E. Palm, also a substitute judge (Rule 21

paras 3 (b) and 5, Rule 22 para. 1 and Rule 24 para. 1).

AS TO THE FACTS

8. Mr Vincenzo Salerno lives in Rome. Pursuant to

Article 31 para. 1 (art. 31-1) of the Convention, the Commission

established the following facts (paragraphs 15-24 of its report):

"15. In June 1973 the applicant brought proceedings against

the notaries' pension fund (Cassa Nazionale di Notariato)

before the Rome magistrate's court (pretore). He said he had

worked as an auxiliary notary (notaio coadiutore) for nineteen

years and had paid into the notaries' pension fund

contributions equal to 20% of the fees he had earned, half of

which, he maintained, had legally been his.

16. He accordingly sought recognition of his right to join

the fund and to draw the pension payable to its members.

17. Dismissal of his application became final with a Court

of Cassation judgment of 6 June 1980. The accompanying

statement of reasons said that an auxiliary notary worked for

the notary and, under the relevant provisions, had no

entitlement to the fees which he earned on the notary's

behalf. Contributions paid out of such fees entitled only the

notary, who paid them into the notaries' pension fund through

the auxiliary notary.

18. On 8 April 1982 the applicant instituted further

proceedings in the Rome magistrate's court to have the

notaries' pension fund repay old-age pension contributions he

had paid into it from fees he had earned as an auxiliary

notary, half of which, he contended, had legally been his. At

the same time he instituted proceedings against the Minister

of Justice.

19. On 25 October 1982, through the chairman of its

governing board, the pension fund opposed the applicant's

claim, arguing inter alia that it was barred by the Court of

Cassation judgment of 6 June 1980. The Minister of Justice

argued that there was no cause of action against him.

20. The hearing in the magistrate's court was held on

4 March 1983. On 12 May 1983 the court dismissed the

applicant's claim. On the one hand, it found that there was

no cause of action against the Minister of Justice. On the

other, it noted that the applicant's case rested on the

allegation of entitlement to half the fees earned by his work

as an auxiliary notary.

But in its judgment of 6 June 1980 the Court of

Cassation had already ruled that he had not had any

entitlement to those fees and that the contributions had been

paid for the benefit of the notary himself, who alone had any

legal relationship with the notaries' pension fund.

21. On 21 July 1983 the applicant appealed against the

judgment. The Rome District Court heard the case on

14 November 1984 and dismissed the appeal. The judgment was

filed with the registry on 22 January 1985.

22. On 10 April 1985 the applicant appealed to the Court

of Cassation, challenging in particular the lower courts'

finding that his claim failed because the judgment of

6 June 1980 had become final. On 26 October 1985 he applied

to have his case examined. On 12 June 1986 the appeal was

dismissed. The judgment was filed with the Court of Cassation

registry on 1 April 1987.

23. The judgment noted that the applicant's claim was

based on the allegation of entitlement to half the fees earned

by his work as an auxiliary notary and consequently to half

the contributions paid in respect of those fees. It further

noted that it had disallowed that claim in its judgment of

6 June 1980, which on that issue had become final (giudicato

esterno). The applicant could therefore not make the claim

again.

24. It likewise dismissed his application for a reference

to the Court of Justice of the European Communities for a

preliminary ruling. That application, which had also been

made unsuccessfully at the previous appeal stage, argued that

the regulations on notaries' pay and notaries' old-age

insurance were in breach of Community rules on free movement

of services. The Court of Cassation stated that it could not

see how the regulations could possibly interfere with free

movement of services within the Community."

PROCEEDINGS BEFORE THE COMMISSION

9. The applicant applied to the Commission on 18 January 1986.

Relying on Article 6 para. 1 (art. 6-1) of the Convention, he

complained that the proceedings he had brought on 8 April 1982 had

taken too long and that the courts that had heard the case had not been

impartial.

10. On 5 March 1990 the Commission declared the second complaint

inadmissible but found the application (no. 11955/86) to be admissible

in respect of the first complaint. In its report of 5 September 1991

(made under Article 31) (art. 31), the Commission expressed the

opinion, by sixteen votes to four, that there had been a breach of

Article 6 para. 1 (art. 6-1). The full text of the Commission's

opinion and of the dissenting opinion contained in the report is

reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 245-D of Series

A of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

11. At the hearing the Government asked the Court to hold that

there had been no violation of the Convention in the case.

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

12. Mr Salerno complained of the length of time taken to try the

second action he brought before the competent courts. He relied on

Article 6 para. 1 (art. 6-1) of the Convention, whereby

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ..."

A. Applicability of Article 6 para. 1 (art. 6-1)

13. The applicant and the Commission considered this provision to

be applicable in the instant case, whereas the Government maintained

the opposite.

14. Article 6 para. 1 (art. 6-1) extends to "contestations"

(disputes) over (civil) "rights" which can be said, at least on

arguable grounds, to be recognised under domestic law, irrespective of

whether they are also protected under the Convention (see, as the most

recent authority, the Editions Périscope v. France judgment of

26 March 1992, Series A no. 234-B, p. 64, para. 35).

15. The Government submitted that the action brought on

8 April 1982 was not arguable: the Court of Cassation in its judgment

of 6 June 1980, in which it had dismissed Mr Salerno's application for

membership of the notaries' pension fund, had already by implication

answered in the negative the question of whether there was any right

to repayment of contributions paid to that fund.

16. Like the applicant and the Commission, the Court notes that

this was a disputed issue, on which only the competent courts could

rule.

Moreover, the first action, which was finally disposed of by

the Court of Cassation's judgment referred to above, was brought to

secure recognition of a right to old-age benefits, whereas the second

action, which ended on 1 April 1987, was for repayment of contributions

to the pension fund in question. Above all, the courts to which the

fresh application was made in 1982 acknowledged that the applicant's

arguments were sufficiently tenable, since they held the action to be

admissible.

Since, furthermore, the claimed right was undoubtedly a civil

one, Article 6 para. 1 (art. 6-1) applied in the instant case.

B. Compliance with Article 6 para. 1 (art. 6-1)

17. It remains to be ascertained whether or not a "reasonable time"

was exceeded.

The applicant and the Commission said it had been; the

Government maintained it had not been.

18. The period to be considered began on 8 April 1982, with the

institution of proceedings against the notaries' pension fund in the

Rome magistrate's court, and ended on 1 April 1987, when the Court of

Cassation's judgment was filed. It therefore lasted for nearly five

years.

19. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment.

20. The Government relied on the excess workload of the courts that

dealt with the case.

The applicant maintained that the case was not complex and that

the relevant authorities had not complied with the time-limits provided

for in the Code of Civil Procedure.

21. Like the Commission, the Court notes several periods of

inactivity: the Rome District Court waited sixteen months before

hearing Mr Salerno's appeal; while in the Court of Cassation the

hearing took place fourteen months after the appeal was lodged, and the

judgment was filed in the registry about ten months after it was

adopted.

Nevertheless, having regard to the fact that the case came

before three different courts, the delays that occurred do not appear

substantial enough for the total length of the proceedings to have

exceeded an acceptable limit in the circumstances of the present case.

22. There has accordingly been no breach of Article 6 para. 1

(art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 para. 1 (art. 6-1) applies in the instant

case;

2. Holds that there has been no breach of it.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 12 October 1992.

Signed: For the President

Alphonse SPIELMANN

Substitute Judge

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the concurring

opinion of Mr Martens, approved by Mr Foighel and Mr Pekkanen, is

annexed to this judgment.

Initialled: A. S.

Initialled: M.-A. E.

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".

_______________

(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.

_______________

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.

_______________

(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.

_______________

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).

_______________

(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).

_______________

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".

_______________

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

(11) Emphasis added.

(12) Emphasis added.

_______________

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".

_______________

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

(14) Emphasis added.

(15) In italics in the judgment.

_______________

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".

_______________

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

(17) Emphasis added.

_______________

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.

_______________

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

_______________

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).

_______________

(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.

_______________

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.

_______________

(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.

_______________

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).

_______________

(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 Håkansson 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.

_______________

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.

_______________

(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.

_______________

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.