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You are here: BAILII >> Databases >> European Court of Human Rights >> RUIZ-MATEOS v. SPAIN - 12952/87 [1993] ECHR 27 (23 June 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/27.html Cite as: 16 EHRR 505, (1993) 16 EHRR 505, [1993] ECHR 27

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In the case of Ruiz-Mateos v. Spain*,

The European Court of Human Rights, taking its decision in

plenary session pursuant to Rule 51 of the Rules of Court and composed

of the following judges:

Mr R. Bernhardt, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr J. De Meyer,

Mr N. Valticos,

Mr S.K. Martens,

Mrs E. Palm,

Mr I. Foighel,

Mr R. Pekkanen,

Mr A.N. Loizou,

Mr F. Bigi,

Sir John Freeland,

Mr A.B. Baka,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

Mr D. Gotchev, judges,

Mr D. Ruiz-Jarabo Colomer, ad hoc judge,

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

Registrar,

Having deliberated in private on 29 January and 27 May 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Note by the Registrar

* The case is numbered 2/1992/347/420. 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.

_______________

PROCEDURE

1. The case was referred to the Court first by the Government of

the Kingdom of Spain ("the Government") and then by the European

Commission of Human Rights ("the Commission") on 20 and

21 February 1992, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the European

Convention for the Protection of Human Rights and Fundamental Freedoms

("the Convention"). It originated in an application (no. 12952/87)

against Spain lodged with the Commission under Article 25 (art. 25) by

six Spanish nationals, Mr José María, Mr Zoilo, Mr Rafael, Mr Isidoro,

Mr Alfonso and Mrs María Dolores Ruiz-Mateos, on 5 May 1987.

The Government's application referred to Article 48 (art. 48);

the Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Spain recognised the compulsory

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

application and 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 applicants stated that

they wished to take part in the proceedings and designated the lawyers

who would represent them (Rule 30). The President of the Court gave

the lawyers leave to use the Spanish language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr J. M. Morenilla, the elected judge of Spanish nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 27 February 1992, in

the presence of the Registrar, the President drew by lot the names of

the other seven members, namely Mr F. Gölcüklü, Mr C. Russo,

Mr N. Valticos, Mrs E. Palm, Mr R. Pekkanen, Mr F. Bigi and

Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21

para. 4) (art. 43).

By a letter of 26 February to the President, Mr Morenilla had

stated that he wished to withdraw pursuant to Rule 24 para. 2, because

he had represented the Government before the Commission as Agent. On

6 April the Government notified the Registrar of the appointment of

Mr Rafael de Mendizábal Allende, judge at the Supreme Court, as ad hoc

judge (Article 43 of the Convention and Rule 23) (art. 43).

On 20 October the Registrar received a letter from the latter

stating that he wished to withdraw "for [a] special reason"

(Rule 24 para. 3), following his appointment to the Constitutional

Court. On 20 November the Government appointed a new ad hoc judge,

Mr Dámaso Ruiz-Jarabo Colomer, a judge who is on secondment as head of

the private office of the President of the General Council of the

Judiciary.

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

(Rule 21 para. 5) and had, in the meantime, through the Registrar,

consulted the Agent of the Government, the Delegate of the Commission

and the applicants on the organisation of the proceedings (Rules 37

para. 1 and 38). Pursuant to the President's orders and directives,

the Registrar received the Government's memorial on 6 July 1992 and the

applicants' memorial on 7 July. On 8 September the Secretary to the

Commission informed him that the Delegate would submit oral

observations.

5. On 10 April and 30 June 1992 respectively the President had

authorised, under Rule 37 para. 2, the Government of the Federal

Republic of Germany and the Government of the Portuguese Republic to

submit written observations on the applicability of Article 6 para. 1

(art. 6-1) of the Convention to constitutional courts. These

observations reached the registry on 10 June and 27 August.

6. On 23 November 1992, the date initially fixed for the hearing

- which had had to be postponed because of Mr de Mendizábal Allende's

withdrawal -, the Chamber decided under Rule 51 to relinquish

jurisdiction forthwith in favour of the plenary Court.

7. On 27 November 1992 the President directed that the oral

proceedings should open on 27 January 1993. The hearing took place in

public in the Human Rights Building, Strasbourg, on the appointed day.

Mr R. Bernhardt, the Vice-President of the Court, had replaced

Mr Ryssdal as President, the latter being unable to take part in the

further consideration of the case (Rule 9). The Court had held a

preparatory meeting before the hearing.

There appeared before the Court:

(a) for the Government (whose Agent had been authorised by the

President to use the Spanish language - Rule 27 para. 2)

Mr J. Borrego Borrego, Head of the Legal Department

for Human Rights, Ministry of Justice, Agent,

Mr J.L. Fuertes Suárez, Ministry of Justice, Counsel;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicants

Mr M. García Montes, abogado,

Mr S. Sánchez Pardo, abogado,

Mr F. Ruhlmann, avocat, Counsel.

The Court heard addresses by Mr Borrego Borrego for the

Government, by Mr Pellonpää for the Commission and by Mr García Montes,

Mr Sánchez Pardo and Mr Ruhlmann for the applicants, as well as their

replies to its questions. The lawyers for the applicants and the

Government's representatives produced various documents.

AS TO THE FACTS

8. Mr José María Ruiz-Mateos, a businessman,

Mr Zoilo Ruiz-Mateos, Mr Rafael Ruiz-Mateos, Mr Isidoro Ruiz-Mateos,

Mr Alfonso Ruiz-Mateos and Mrs María Dolores Ruiz-Mateos are brothers

and sister. They are all of Spanish nationality. In 1983 they held

100% of the shares in RUMASA S.A., the parent company of the RUMASA

group, which comprised several hundred undertakings. RUMASA S.A.'s

holding in these undertakings varied from one to the other.

I. The particular circumstances of the case

A. The expropriation of the RUMASA group

9. By a legislative decree of 23 February 1983 the Government

ordered the expropriation in the public interest of all the shares in

the companies comprising the RUMASA group, including those of the

parent company (Article 1). The State, which was the beneficiary of

this measure, was to take immediate possession of the expropriated

property through the intermediary of the Directorate General for

National Assets (Article 2).

The legislative decree was confirmed on 2 March 1983 by the

Chamber of Deputies. It gave rise to an appeal to the Constitutional

Court (recurso de inconstitucionalidad, Article 161 para. 1 (a) of the

Constitution, see paragraph 26 below), as a group of deputies contested

its constitutional validity. The Constitutional Court dismissed the

deputies' appeal by a judgment of 2 December 1983, adopted with the

President's casting vote; in a dissenting opinion, six members of the

court expressed the view that the expropriation procedure followed was

contrary to the Constitution.

10. In the meantime Law no. 7/1983 of 29 June 1983, published a

day later in the Official State Gazette (Boletín Oficial del Estado),

had replaced the legislative decree. Articles 1 and 2 thereof ordered

the immediate expropriation and transfer of possession of the companies

concerned in similar terms to those of the legislative decree (see

paragraph 9 above). The aim of these measures was to protect the

public interest because, in order to finance the group's companies, its

banks had taken risks considered to be disproportionate in relation to

their solvency, thereby jeopardising "the stability of the banking

system and the interests of the depositors, employees and third

parties".

B. The action for the restitution of the expropriated property

1. The proceedings at first instance

11. Between the publication of the legislative decree and that of

Law no. 7/1983, Mr José María Ruiz-Mateos had, on 8 April 1983, both

on his own behalf and on that of the other applicants and RUMASA S.A.,

instituted summary proceedings for the restitution of the expropriated

property (interdicto de recobrar). On 11 April the Madrid

First-Instance Court (juzgado de primera instancia) no. 18 - composed

of a single judge - declared the application inadmissible on procedural

grounds. The first applicant had failed to adduce evidence

establishing that he had been divested of the assets as alleged and

showing that prior to the impugned measure the assets in question had

been in his possession.

12. On 9 May 1983 Mr José María Ruiz-Mateos lodged a further

application concerning 50% of the RUMASA S.A. shares. The other five

applicants followed suit on 27 May with regard to the remaining shares,

each claiming 10%. The two cases were allotted respectively to Madrid

First-Instance Courts nos. 18, which reopened the file, and 21.

13. The Counsel for the State (Abogado del Estado), representing

the Government, obtained, on 4 and 5 July respectively, a stay of three

months in each of the two sets of proceedings to enable him to consult

his superiors. The applicants' appeals against those decisions were

dismissed on 16 and 18 July.

On 21 September the Counsel for the State applied for the

joinder of the two sets of proceedings. Court no. 18 acceded to this

request on 22 November, having received the consent of

Mr José María Ruiz-Mateos on 18 November. On 27 March 1984 Court

no. 21 ordered that the file of the proceedings before it be

transmitted to Court no. 18, the other five applicants having given

their agreement on 23 March. Court no. 18 received the file on 9 May.

14. On 21 March 1984 the first applicant had requested Court

no. 18 to refer to the Constitutional Court a question on the

conformity of Articles 1 and 2 of Law no. 7/1983 (see paragraph 10

above) with Articles 14, 24 and 33 of the Constitution (cuestión de

inconstitucionalidad, see paragraphs 25, 26 and 27 below). The court

held hearings on 18 June and 17 September 1984. On 19 September the

judge invited the parties to submit observations on this matter within

ten days (Article 35 of Institutional Law no. 2/1979 on the

Constitutional Court, "Institutional Law no. 2/1979", see paragraph 27

below). On 29 September the Counsel for the State replied that the

question was not material to summary proceedings for the examination

of an action to recover possession. On 1 October the Attorney

General's department also expressed its opposition to the motion. On

the same date in support of their claims the applicants submitted two

memorials, respectively eighty-five and thirty-seven pages long.

15. By a decision (auto) of 5 October 1984 Court no. 18 referred

to the Constitutional Court the question of the conformity of the

above-mentioned articles of Law no. 7/1983 with Article 24 para. 1 of

the Constitution inasmuch as it had not been open to the applicants

either to invoke in the courts their right of property in respect of

the assets expropriated by legislative action or to challenge the

necessity of seizing them. In the opinion of the first-instance court,

the decision on the merits of the dispute depended on the validity of

the provisions in issue.

16. The Constitutional Court found the question admissible on

17 October 1984; it then gave notice of the question to the Chamber of

Deputies, the Senate, the Government and the Attorney General (Fiscal

General del Estado), who were each entitled to file observations within

the same fifteen-day period (Article 37 para. 2 of Institutional Law

no. 2/1979, see paragraph 27 below).

The Constitutional Court received the observations of the

Attorney General's department and of the Counsel for the State on 5 and

6 November respectively; on 12 November the Speaker of the Chamber of

Deputies indicated that the Chamber did not intend to submit

observations.

17. On 27 January 1986 Mr José María Ruiz-Mateos complained of the

delay in the proceedings; he relied in this connection on

Article 24 para. 2 of the Constitution (see paragraph 25 below) and

Article 6 para. 1 of the Convention (art. 6-1). The Constitutional

Court joined the application (recurso de queja) to the file on

30 January, but did not pursue the matter because the applicant lacked

locus standi.

On 7 February he again applied to the Constitutional Court,

alleging that the decision of 30 January infringed Article 24 of the

Constitution. He also maintained that he had locus standi in respect

of the constitutional proceedings by virtue of his status as a party

in the main proceedings. On 21 February the Constitutional Court

confirmed its earlier decision.

18. Following the election to the Constitutional Court of six new

members, on 26 March 1986 Mr José María Ruiz-Mateos challenged two of

these judges for lack of impartiality. He claimed that one of them was

well-known to be a friend of the Prime Minister and the other had

already been involved in the case as adviser to the Minister of Justice

and had, among other things, participated in preparing the speech to

Parliament on the expropriation of RUMASA.

On 10 April the Constitutional Court dismissed the challenge

on the ground that the applicant lacked locus standi.

19. By a judgment of 19 December 1986, it held that Articles 1 and

2 of Law no. 7/1983 were compatible with Article 24 of the

Constitution. It found that legislative expropriation - even by means

of a special statute concerning a specific case - was not contrary to

the Constitution. Although this admittedly meant that the persons

concerned suffered restrictions on the judicial protection of their

rights, as they could not challenge in the courts the necessity of the

seizure of their assets, it was always open to them to contest the

measure in the administrative courts and to ask those courts to refer

a question to the Constitutional Court on the constitutional conformity

of such action. In addition an appeal (amparo), founded on the right

to equality before the law, lay against the final decision of the

administrative courts. Finally, the law in issue had in no way

deprived the persons concerned of their right to appropriate

compensation, a right which they could assert before the Provincial

Expropriation Board (jurado provincial d'expropiación) - the competent

administrative body -, and then in the administrative courts.

Two judges expressed the view, in a dissenting opinion, that

the expropriation procedure used had deprived the applicants of their

right of access to the courts.

20. This judgment was communicated to Court no. 18 on

22 December 1986. The following day that court dismissed the action

for restitution.

2. The appeal proceedings

21. On 27 December 1986 the applicants appealed to the Audiencia

provincial of Madrid, which declared the appeal admissible on

5 February 1987.

The examination of the appeal began on 26 June 1988. The

court communicated the file to each of the parties in turn, each party

having ten days to study it. The hearing was initially set down for

21 October, but was adjourned at the request of the applicants' lawyer,

who was unable to attend. As soon as the hearing opened on

28 November, the applicants sought a stay of the proceedings until the

European Commission and Court of Human Rights had had an opportunity

to rule on their application to Strasbourg. In the alternative, they

requested the Audiencia provincial to refer to the Constitutional Court

a new question concerning the compatibility of Articles 1 and 2 of Law

no. 7/1983 with Articles 14 and 33 para. 3 of the Constitution (see

paragraph 25 below).

The court ordered an adjournment so as to allow the applicants

to submit documents in support of their first request. On

19 December 1988 they supplied a translation of the correspondence from

the Secretariat of the Commission. After a further hearing on

13 February 1989, the court refused to stay the proceedings. On

7 July 1989 it overruled the applicants' objection to this decision.

22. On 14 February 1989 it had invited the parties and the

Attorney General's department to give their views on whether the

above-mentioned question as to constitutional conformity should be

submitted to the Constitutional Court (Article 35 para. 2 of

Institutional Law no. 2/1979, see paragraphs 21 above and 27 below).

After having received their comments, the Audiencia provincial referred

the question to the Constitutional Court on 9 July 1989.

The latter court declared it admissible on 31 October 1989,

then communicated it to the institutions of the State listed in

Article 37 para. 2 of Institutional Law no. 2/1979 (see paragraph 27

below). The Speaker of the Chamber of Deputies replied on 17 November

that the Chamber did not intend to submit observations; on the same day

and the following day respectively, Counsel for the State and the

Attorney General's department filed their submissions.

23. By a judgment of 15 January 1991 the Constitutional Court

found the contested articles of Law no. 7/1983 to be compatible with

Articles 14 and 33 para. 3 of the Constitution. Two judges expressed

a dissenting opinion.

24. The Audiencia provincial was notified of this on

25 January 1991 and set down a hearing for 22 February. On that

occasion the applicants made a further application for the proceedings

to be stayed. The court dismissed their appeal by a judgment of

25 February.

On 6 March the applicants lodged an application for the

interpretation of that judgment; their application was dismissed on

11 March 1991.

II. The applicable domestic law

1. The Constitution

25. The relevant Articles of the 1978 Constitution are worded as

follows:

Article 14

"Spaniards shall be equal before the law and may not be

discriminated against in any way on account of birth, race,

sex, religion, opinion or any other condition or personal or

social circumstance."

Article 24

"1. Every person has the right to obtain the effective

protection of the judges and the courts in the exercise of

his legitimate rights and interests, and in no case may he be

denied that protection.

2. Likewise, all persons have the right of access to the

ordinary courts as predetermined by law; to the defence and

assistance of a lawyer; to be informed of the charges brought

against them; to a public trial without undue delays and with

full guarantees; to the use of evidence pertinent to their

defence; not to make self-incriminating statements; not to

declare themselves guilty; and to the presumption of

innocence.

..."

Article 33

"1. Private property rights ... are recognised.

2. ...

3. No-one may be deprived of his property and rights,

except on justified grounds of public interest against proper

compensation and in accordance with the provisions of the

law."

26. The jurisdiction of the Constitutional Court is defined as

follows:

Article 161 para. 1

"The Constitutional Court has jurisdiction over the whole

of Spanish territory and is competent to hear:

(a) appeals against alleged unconstitutionality of laws and

regulations having the force of law ...;

(b) individual appeals for protection (recurso de amparo)

against violation of the rights and liberties referred to in

Article 53 para. 2 of the Constitution, in the circumstances

and manner laid down by law;

(c) conflicts of jurisdiction between the State and the

Autonomous Communities or between the Autonomous Communities

themselves.

..."

Only the rights guaranteed under Articles 14 to 29 of the

Constitution may be the subject of an amparo appeal, which is not

therefore available in respect of the right to property secured under

Article 33.

Article 163

"If a judicial body considers, in the course of

proceedings, that a regulation with the status of law which

is applicable in those proceedings and upon the validity of

which the judgment depends may be contrary to the

Constitution, it may bring the matter before the

Constitutional Court in the circumstances, manner and subject

to the consequences to be laid down by law; such consequences

shall in no case be suspensive."

Article 164

"1. The judgments of the Constitutional Court shall be

published in the Official State Gazette, together with any

dissenting opinions. They have the force of res judicata

with effect from the day following their publication, and no

appeal may be brought against them. Those which declare the

unconstitutionality of a law or of a rule with the force of

law, and all those which do not merely recognise an

individual right, shall be fully binding on all persons.

2. Unless the judgment rules otherwise, that part of the

law not affected by unconstitutionality shall remain in

force."

2. Institutional Law no. 2/1979 on the Constitutional Court

27. Chapter III of the Institutional Law on the Constitutional

Court is entitled "On questions of constitutionality submitted by

judges and courts" and is worded as follows:

Article 35

"1. When a judge or court, ex proprio motu or at the

request of a party, decides that a provision having the

status of law which applies in the case in issue and on the

validity of which his or its decision depends might be

contrary to the Constitution, he or it shall refer the matter

to the Constitutional Court, in accordance with the

provisions of the present law.

2. Judges or courts shall not refer such a question until

the case is ready to be tried and they must do so within the

time-limits laid down for ruling on the case. They must

specify which law or provision having the status of law is

alleged to be unconstitutional and which article of the

Constitution is considered to have been breached. They must

also state the precise reasons why the outcome of the

proceedings depends on the validity of the contested

provision. Before taking a final decision on whether to

refer the question to the Constitutional Court, the judge or

court must first hear the views of the parties to the

proceedings and the Attorney General's department in order to

give them the opportunity, within a single and non-extendable

ten-day time-limit, to submit any observations they may wish

to make concerning the pertinence of the question. The judge

shall then announce his decision, without taking any further

steps, within three days. No appeal shall lie against this

decision. However, the question as to constitutionality may

be raised again in subsequent proceedings until the judgment

has become final."

Article 36

"A question as to constitutionality referred to the

Constitutional Court by a judge or court must be accompanied

by a certified copy of the main file and, in so far as there

are any, the observations provided for in the preceding

article."

Article 37

"1. On receipt of the file the Constitutional Court shall

follow the procedure laid down in paragraph 2 of the present

article. However, the Court may declare the question

inadmissible, in a decision stating its reasons, after

hearing only the Attorney General, when the procedural

requirements are not satisfied or when the question is

manifestly ill-founded.

2. The Constitutional Court shall give notice of the

question to the Chamber of Deputies and the Senate via their

respective Speakers, to the Attorney General and via the

Ministry of Justice to the Government. If the question

raises an issue concerning a law or another provision having

the status of law adopted by an Autonomous Community, notice

thereof shall also be given to its legislative and executive

authorities. All these authorities may appear before the

court and submit observations on the question referred within

a single and non-extendable fifteen-day time-limit. When

this time-limit has expired, the court shall give judgment

within fifteen days, except when it considers a longer

period, which may not exceed thirty days, to be necessary, in

which case it must state the reasons for its decision."

PROCEEDINGS BEFORE THE COMMISSION

28. The applicants lodged their application with the Commission

on 5 May 1987. They alleged in the first place that their case had not

been given a fair hearing conducted within a reasonable time by an

impartial tribunal (Article 6 para. 1 of the Convention) (art. 6-1).

They claimed in addition that they had been deprived of their right of

access to the courts to challenge the public interest justification for

the expropriation and the necessity of the immediate transfer of their

property (Articles 6 para. 1 and 13 of the Convention) (art. 6-1,

art. 13). Finally, they complained of discrimination in relation to

other Spanish citizens in that the latter were subject to the ordinary

law on expropriations and could therefore institute proceedings in the

administrative courts (Article 14 read in conjunction with Articles 6

para. 1 and 13) (art. 14+6-1, art. 14+13).

29. On 6 November 1990 the Commission declared the first complaint

admissible and the remainder of the application (no. 12952/87)

inadmissible. In its report of 14 January 1992 (made under Article 31)

(art. 31), the Commission expressed the opinion that there had been a

violation of Article 6 para. 1 (art. 6-1) inasmuch as (a) the

applicants had not been given a fair hearing (thirteen votes to two)

and (b) the relevant proceedings had not been conducted within a

reasonable time (eleven votes to four). The full text of the

Commission's opinion and of the three separate opinions 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 262 of Series A

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

report is available from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA 1 (art. 6-1) OF THE

CONVENTION

30. In the applicants' submission, their actions for the

restitution of their assets were not heard within a reasonable time as

required under Article 6 para. 1 (art. 6-1) of the Convention. In

addition, the proceedings conducted in the Constitutional Court failed

to comply with the principle of equality of arms, inherent in the right

to a fair trial as guaranteed under the same provision, according to

which:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing within a

reasonable time by [a] ... tribunal ..."

The Government contested this view, whereas the Commission

subscribed to it.

A. Preliminary observations

31. The Government contended that the applicants' complaint was

directed solely at the first set of proceedings in the Constitutional

Court, to which Article 6 para. 1 (art. 6-1) did not apply; in

particular, as regards compliance with the "reasonable time"

requirement their initial application had cited only those proceedings.

It should, however, be noted that, when they lodged their

application with the Commission on 5 May 1987, the Audiencia provincial

of Madrid had only recently, three months earlier, declared admissible

their appeal from the judgment of 23 December 1986 (see paragraph 21

above); they could not therefore at that stage complain of the ensuing

delays, but they have done so since. In accordance with its

established case-law (see, among many other authorities, the Ringeisen

v. Austria judgment of 16 July 1971, Series A no. 13, p. 38, para. 93,

and pp. 40-41, para. 98, and the Capuano v. Italy judgment of

27 July 1987, Series A no. 119, p. 11, para. 22), the Court will

therefore examine all the proceedings in issue.

32. The applicability of Article 6 para. 1 (art. 6-1) to the

applicants' civil actions for the restitution of their assets is not

open to dispute. The Government maintained, however, that the

proceedings in the Constitutional Court should not be taken into

account in ruling on the question of "reasonable time". They also

claimed that the complaint as to the fairness of the latter proceedings

fell outside the scope of the aforementioned provision.

The issue of the applicability of Article 6 para. 1 (art. 6-1)

does not arise in precisely the same terms on both points.

B. Compliance with the "reasonable time" requirement

1. Period to be taken into consideration

33. The period to be taken into consideration began on

27 May 1983, when Zoilo, Rafael, Isidoro, Alfonso and María Dolores

Ruiz-Mateos brought their action in respect of half the capital of

RUMASA, thereby supplementing the action brought by

José María Ruiz-Mateos on 9 May 1983 in respect of the other half (see

paragraph 12 above). It ended on 25 February 1991, the date of the

judgment of the Audiencia provincial (see paragraph 24 above).

Notwithstanding the applicants' arguments to the contrary, the Court

does not regard their application of 6 March 1991 for the

interpretation of the judgment as relevant, because it had no bearing

on the outcome of the dispute.

34. In the Government's view, two lapses of time should be

deducted from the above period, one of more than twenty-six months at

first instance (5 October 1984 - 19 December 1986) and another of

eighteen months on appeal (9 July 1989 - 15 January 1991), when the

civil courts had to wait for the Constitutional Court's decision on the

questions which they had referred to it. The Government contended that

the proceedings in the Constitutional Court could not be regarded as

a stage in the civil proceedings. The task of the Constitutional Court

was not to rule on a specific case, but to "refine", from an objective

point of view, domestic law by annulling rules that were contrary to

the Constitution.

35. According to the Court's well-established case-law,

proceedings in a Constitutional Court are to be taken into account for

calculating the relevant period where the result of such proceedings

is capable of affecting the outcome of the dispute before the ordinary

courts (see, inter alia, the Deumeland v. Germany judgment of

29 May 1986, Series A no. 100, p. 26, para. 77, the Poiss v. Austria

judgment of 23 April 1987, Series A no. 117, p. 103, para. 52, and the

Bock v. Germany judgment of 29 March 1989, Series A no. 150, p. 18,

para. 37). The Court sees no grounds for departing from this line of

authority so as to revert to the approach adopted in the Buchholz v.

Germany judgment of 6 May 1981 (Series A no. 42, p. 15, para. 48), as

it was urged to do by the respondent Government and by the German and

Portuguese Governments (see paragraph 5 above).

36. It is true that the constitutional proceedings in this case

took place in mid-course of the main action and not, as in the

above-mentioned cases, after its conclusion. However, in the Court's

view this circumstance, on which the Government laid particular stress,

on the contrary provides an additional reason for taking them into

account in the calculation of the period to be considered, especially

where they concern a preliminary issue (see the Giancarlo Lombardo

v. Italy judgment of 26 November 1992, Series A no. 249-C, p. 43,

para. 18).

The Government also invoked the "political nature" of the

Constitutional Court, which was not part of the judiciary. The

argument is not convincing: the Court has on more than one occasion had

regard to interlocutory proceedings conducted before political

institutions or administrative bodies or agencies (see, inter alia, the

Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56,

p. 21, para. 63, and the Martins Moreira v. Portugal judgment of

26 October 1988, Series A no. 143, pp. 19-21, paras. 55-60). What is

in issue in every case is the responsibility of the State (see the Foti

and Others judgment, cited above, ibid.)

37. In the present case the competent civil courts had considered

it necessary to refer to the Constitutional Court, at the plaintiffs'

request, the question of the conformity of Articles 1 and 2 of

Law no. 7/1983 with the Constitution (see paragraphs 15 and 22 above).

In order to do so, they had not only to establish the applicability of

the contested provisions, but also to show that their decision to refer

the matter was relevant, in other words to specify to what extent the

outcome of the proceedings before them depended on the validity of the

rules in issue (Article 35 para. 2 of Institutional Law no. 2/1979 -

see paragraph 27 above).

For its part, the Constitutional Court found the two questions

admissible, being satisfied that they fulfilled the formal conditions

laid down by the relevant law (see paragraphs 16 and 22 above).

As the questions referred concerned a preliminary issue, the

civil courts, in order to be able to give judgment, had to await the

decisions of the Constitutional Court, which were decisive for the

ruling in the main action.

The period to be taken into consideration therefore includes

the two sets of constitutional proceedings; this being so, it lasted

nearly seven years and nine months.

2. Reasonableness of the relevant period

38. 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.

(a) Complexity of the case

39. According to the applicants, the procedure for the examination

of questions of constitutionality is extremely simple because it does

not involve a hearing or the taking of evidence.

40. The Government replied that simplicity of procedure should not

be confused with the simplicity of the case. In fact this case was an

extremely complex one, not only because of the volume of the file

- approximately three thousand pages -, but also because of the serious

nature of the legal issues involved.

41. The Court considers that although the main civil action was

not complex at the outset, it subsequently gave rise to constitutional

questions which were undeniably difficult.

As the Commission correctly pointed out, however, the

procedure for resolving such questions did not involve steps liable to

lead to prolongations. The Constitutional Court had only to seek the

observations of the institutions of the State listed in

Article 37 para. 2 of Institutional Law no. 2/1979, observations

which were subject to a single and non-extendable fifteen-day

time-limit (see paragraph 27 above). In this instance the

Constitutional Court received the memorials of the Attorney General's

department and the Counsel for the State on 5 and 6 November 1984 for

the first question, and on 17 and 18 November 1989 for the second

question (see paragraphs 16 and 22 above).

(b) Applicants' conduct

42. According to the Government, the length of the civil

proceedings is explained to a large extent by the conduct of the

applicants themselves. To bring an action for restitution, which was

normally available to recover goods unlawfully obtained, in respect of

an expropriation effected by legislative action was an abuse of

process. The applicants had in reality only sought to precipitate an

early referral of the matter to the Constitutional Court by the

competent civil courts. By requesting the latter to submit questions

of constitutionality, they had considerably slowed down the proceedings

because the question of whether such a step was appropriate in the

context of summary proceedings was problematical and required careful

examination.

43. The Court is not persuaded by this argument. According to the

applicants, the expropriation in issue was equivalent to unlawfully

depriving them of their property because Articles 1 and 2 of Law

no. 7/1983 were contrary to the Constitution. If the Constitutional

Court had reached a similar conclusion, it would have declared the

provisions in question void, which would have deprived the impugned

measure of any legal basis. This was moreover also how the civil

courts and the Constitutional Court perceived the situation, as is

shown by the fact that they accepted the questions as admissible. In

addition, the applicants could not themselves file an amparo appeal

based on an interference with a right of property (see paragraph 26

above); it cannot be held against them that they had recourse to the

only means available to them under Spanish law of defending their

interests.

Furthermore, Mr José María Ruiz-Mateos protested at the

protracted nature of the proceedings in the Constitutional Court, but

to no avail because, in that court's opinion, he lacked locus standi

(see paragraph 17 above).

44. It is nevertheless true that the appeal hearing set down for

21 October 1988 was adjourned to 28 November at the applicants'

request; on that date they asked the Madrid Audiencia provincial to

stay the proceedings pending the decision of the European Commission

of Human Rights, with which they had recently lodged an application.

This interlocutory phase of the proceedings was not concluded until

7 July 1989, when their appeal against the refusal to stay the

proceedings was dismissed (see paragraph 21 above). It delayed the

decision in the appeal proceedings by a total of over eight months.

(c) Conduct of the competent authorities

45. The applicants held the competent authorities responsible for

the time taken to hear their action. Their complaint was in particular

directed against the Constitutional Court. In their view, that court

was aware of the urgency of the case and was already familiar with the

issues to which it gave rise, as it had dealt with them in examining

the appeal lodged by a number of members of Parliament against the

legislative decree of 23 February 1983 (see paragraph 9 above).

46. In the Government's submission, on the other hand, the civil

courts displayed the maximum dispatch possible. The Government

considered further that the constitutional proceedings had not been of

unreasonable length; these proceedings had given rise to issues that

were both complex and new, because in its judgment of 2 December 1983

the Constitutional Court had ruled only on the method of expropriation

chosen - the legislative decree - and not on the merits of the measure

(see paragraph 9 above).

47. The Court notes at the outset that at first instance there

were no notable interruptions, except to resolve the preliminary issue.

On appeal there were, however, two periods of inactivity. The

Audiencia provincial declared the appeal admissible on 5 February 1987,

but did not begin consideration of it until 26 June 1988 (see

paragraph 21 above), in other words sixteen months and three weeks

later. No step was taken in the proceedings during that period.

48. The Government stressed that the workload of the Madrid

Audiencia provincial had increased after 1985 as a result of the

restructuring of the Spanish judicial system by the Institutional Law

on the Judiciary. On 10 June 1988 the public authorities had, however,

taken remedial action by creating additional posts.

This argument is not convincing in that the measures

introduced were too late to have any effect in the present case (see,

inter alia, the Unión Alimentaria Sanders S.A. v. Spain judgment of

7 July 1989, Series A no. 157, pp. 15-16, para. 41).

49. The delay in question results essentially from the time taken

to examine the two questions of constitutionality. After the Attorney

General's department and the Counsel for the State had filed their

observations, the case remained dormant for more than twenty-five

months as regards the first question and for nearly fourteen months as

regards the second (6 November 1984 - 19 December 1986 and

18 November 1989 - 15 January 1991, see paragraphs 16, 19, 22 and 23

above).

Yet, pursuant to Article 37 para. 2 of Institutional Law

no. 2/1979, the Constitutional Court ought to have given its decision

within fifteen days of receiving the memorials, with the possibility

of extending that period to thirty days (see paragraph 27 above). The

shortness of these time-limits shows the importance attached by the

Spanish legislature to the speedy hearing of a preliminary question of

this nature.

50. The Government emphasised the specific character of the

structure and operation of the Constitutional Court. It comprises only

twelve members; it is independent of the three State powers and

competent to review their decisions. Under Articles 161 and 163 of the

Constitution, it enjoys very wide jurisdiction (see paragraph 26

above). The institutions of the State, the organs of the Autonomous

Communities, the ordinary courts and individuals may all apply to it.

Since its creation, it has, according to the Government, had a backlog

of business, a problem which is difficult to overcome in view of the

limited number of its members.

51. While attaching weight to the special features of

constitutional proceedings, the Court cannot help but consider that in

this instance those proceedings were too long. There was a connection

between the two questions, notwithstanding the difference in content;

in particular the Constitutional Court had already settled the issue

of relevance during its examination of the first question, so that it

did not need to do so in studying the second.

52. Nor should it be forgotten that what was at stake in this

case, not only for the applicants but also for Spanish society in

general, was considerable, in view of its vast social and economic

implications. The large number of persons concerned - employees,

shareholders and third parties - and the amount of capital involved

militated in favour of a prompt resolution of the dispute.

53. In the light of all of the circumstances of the case, the

Court finds that the proceedings exceeded a reasonable time within the

meaning of Article 6 para. 1 (art. 6-1), which has therefore been

violated on this point.

C. Right to a fair trial

54. The applicants' complaint under the fair trial principle is

directed solely at the proceedings in the Constitutional Court (see

paragraph 30 above), but given that those proceedings were preliminary

in nature, it is necessary to take account of the context in which they

arose, namely an action for the restitution of expropriated assets.

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

55. The Government denied that Article 6 para. 1 (art. 6-1) was

applicable, pleading that the right in issue was not a "civil right".

In support of this contention, they cited the specific nature of the

Constitutional Court's task and the features peculiar to questions of

constitutionality. The Constitutional Court's role was to ensure that

the legislature, the executive and the judiciary respected the

Constitution and not to rule on the rights and interests of

individuals. This specificity of its functions appeared even more

clearly in relation to proceedings of the type under review. Such

proceedings were instituted by the ordinary courts and were intended

to eliminate from the domestic legal system provisions contrary to the

Constitution. In this instance, there were no "parties" because

Institutional Law no. 2/1979 provided that only the representatives of

the State authorities and the Attorney General need be heard (see

paragraph 27 above). In addition, the judgment was notified solely to

the court which referred the question.

56. In their observations of 10 June and 27 August 1992 (see

paragraph 5 above), the German and Portuguese Governments drew

attention to the fact that the decision in the Ruiz-Mateos case would

be of great significance to those other member States of the Council

of Europe which have a constitutional court. The German Government,

citing the above-mentioned Buchholz judgment, maintained that

Article 6 para. 1 (art. 6-1) did not apply to proceedings conducted

before such courts. That had been the Federal Republic's understanding

when it had ratified the Convention. They supported the respondent

Government's argument, giving a broad outline of the rules in force in

Germany, which are moreover similar to the Spanish provisions. The

Portuguese Government took the view that, by reason of their nature,

structure and jurisdiction, constitutional courts fell outside the

ambit of Article 6 para. 1 (art. 6-1).

57. The Court is not called upon to give an abstract ruling on the

applicability of Article 6 para. 1 (art. 6-1) to constitutional courts

in general or to the constitutional courts of Germany and Portugal or

even of Spain. It must, however, determine whether any rights

guaranteed to the applicants under that provision were affected in the

present case.

58. The applicants conceded that constitutional proceedings did

not in general deal with disputes over civil rights and obligations.

However, they stressed the special features of Law no. 7/1983 on the

expropriation of RUMASA S.A., of which they were the shareholders.

Despite its status as a formal law, it was a concrete and specific

measure aimed at a group of companies listed in its annex (see

paragraph 10 above). The applicants emphasised that they could not

contest the expropriation in the civil courts unless the law was

declared invalid; yet such a ruling could only be made by the

Constitutional Court, following referral of the matter to it by Madrid

Court no. 18 or the Audiencia provincial.

59. The Court observes that there was indeed a close link between

the subject-matter of the two types of proceedings. The annulment, by

the Constitutional Court, of the contested provisions would have led

the civil courts to allow the claims of the Ruiz-Mateos family (see

paragraphs 15-16, 20, 22-24, 27 and 37 above). In the present case,

the civil and the constitutional proceedings even appeared so

interrelated that to deal with them separately would be artificial and

would considerably weaken the protection afforded in respect of the

applicants' rights. The Court notes that by raising questions of

constitutionality, the applicants were using the sole - and indirect -

means available to them of complaining of an interference with their

right of property: an amparo appeal does not lie in connection with

Article 33 of the Spanish Constitution (see paragraph 26 above).

60. Accordingly, Article 6 para. 1 (art. 6-1) applied to the

contested proceedings.

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

61. The Ruiz-Mateos family alleged a violation of the principle

of equality of arms. The Counsel for the State, their opponent in the

civil proceedings, was able to submit to the Constitutional Court

written observations on the lawfulness of Law no. 7/1983, whereas they

were not allowed to do so because they were held to lack locus standi;

they were even refused the possibility of challenging two judges, whose

impartiality appeared to them to be open to doubt (paragraph 18 above).

The Commission agreed in substance with this view.

62. In the opinion of the Government, however, the Counsel for the

State at the Constitutional Court could not be regarded as the

applicants' opponent because it was necessary to distinguish between

the executive as a branch of State authority and the administrative arm

of government. It was the latter, and more specifically the

Directorate General for National Assets, in whose possession the RUMASA

S.A. shares had been since the expropriation, which was the plaintiffs'

opponent in the restitution action (see paragraphs 9 and 13 above).

On the other hand, neither it nor the Ruiz-Mateos family were parties

to the preliminary proceedings in question. The applicants moreover

knew this full well and would never have raised the issue in a Spanish

court. It was true that the executive and the administrative

authorities were represented by officials from the same civil service

corps, but the officials in question were acting on behalf of different

branches of government.

63. The Court will examine the complaint in the light of the whole

of paragraph 1 of Article 6 (art. 6-1) because the principle of

equality of arms is only one feature of the wider concept of a fair

trial, which also includes the fundamental right that proceedings

should be adversarial (see, among other authorities, mutatis mutandis,

the Brandstetter v. Austria judgment of 28 August 1991, Series A

no. 211, p. 27, para. 66).

The right to an adversarial trial means the opportunity for

the parties to have knowledge of and comment on the observations filed

or evidence adduced by the other party (see, mutatis mutandis, the same

judgment, p. 27, para. 67). Admittedly proceedings before a

constitutional court have their own characteristics which take account

of the specific nature of the legal rules to be applied and the

implications of the constitutional decision for the legal system in

force. They are also intended to enable a single body to adjudicate

on a large number of cases relating to very different subjects.

Nevertheless, it may happen that, as here, they deal with a law which

directly concerns a restricted circle of persons. If in such a case

the question whether that law is compatible with the Constitution is

referred to the Constitutional Court within the context of proceedings

on a civil right to which persons belonging to that circle are a party,

those persons must as a rule be guaranteed free access to the

observations of the other participants in these proceedings and a

genuine opportunity to comment on those observations.

64. The Court sees no reason to depart from this rule in the

present case. It cannot accept the distinction drawn by the

Government. In view of the closeness of the link noted above (see

paragraph 59 above), it would be artificial to dissociate the role of

the executive - on whose authority the decision to expropriate was

taken - from that of the Directorate General for National Assets - the

beneficiary of the measure -, and even more so to purport to identify

a real difference between their respective interests.

65. In November 1984 and November 1989 the Counsel for the State

filed with the Constitutional Court, by virtue of Article 37 para. 2

of Institutional Law no. 2/1979 (see paragraph 27 above), observations

affirming the constitutional validity of Law no. 7/1983 (see

paragraphs 16 and 22 above). The applicants were not given an

opportunity to reply thereto, although it would clearly have been in

their interests to be able to do so before the final decision.

66. According to the Government, the Constitutional Court was able

to examine the applicants' arguments by referring to the very

voluminous memorials which the latter had submitted in the civil courts

pursuant to Article 35 para. 2 of Institutional Law no. 2/1979 (see

paragraphs 14 and 22 above) inasmuch as the full files of the

proceedings in those courts had been transmitted to it.

67. The Court does not find this argument convincing.

In the first place, Article 35 para. 2 fixes for the parties

- in this instance the applicants and the Counsel for the State - and

for the Attorney General's department a single time-limit for putting

forward their views on the appropriateness of submitting a preliminary

question. Whereas the applicants' written submissions also raised

substantive issues, those of the Counsel for the State, which were very

short, dealt only with procedural questions. In any event, even if the

latter had also given his opinion on the merits, the applicants would

not have been able to challenge it in the civil courts or in the

Constitutional Court. On the other hand, the Counsel for the State had

advance knowledge of their arguments and was able to comment on them

in the last instance before the Constitutional Court.

68. There has accordingly been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

69. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict with

the obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

The Ruiz-Mateos family sought two thousand billion

(2,000,000,000,000) pesetas for the damage allegedly deriving from the

violation of their right to a fair trial, three hundred billion of

which were claimed in respect of deterioration of their commercial

reputation and loss of customers; they did not seek the reimbursement

of costs.

70. The violations found in this case relate to the failure to

conduct proceedings within a "reasonable time" and the non-adversarial

nature of the proceedings in the Constitutional Court (see paragraphs

53 and 68 above). There is nothing to suggest that, in the absence of

these violations, the Constitutional Court would have declared the

impugned law void and the European Court cannot speculate as to the

conclusion which the national court would have reached (see, as the

most recent authority, the de Geouffre de la Pradelle v. France

judgment of 16 December 1992, Series A no. 253-B, p. 44, para. 39).

Consequently, as was argued by the Government and the Commission, no

causal connection between the alleged damage and the violations found

has been established.

FOR THESE REASONS, THE COURT

1. Holds by twenty-two votes to two that there has been a

violation of Article 6 para. 1 (art. 6-1) as regards the

length of the proceedings;

2. Holds by eighteen votes to six that there has been a

violation of that provision as regards the fairness of the

proceedings conducted in this case in the Constitutional

Court;

3. Dismisses unanimously the applicants' claims for just

satisfaction.

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

hearing in the Human Rights Building, Strasbourg, on 23 June 1993.

Signed: Rudolf BERNHARDT

President

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 following

separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Bernhardt;

(b) dissenting opinion of Mr Thór Vilhjálmsson;

(c) concurring opinion of Mr Gölcüklü, approved by Mr Walsh;

(d) partly concurring, partly dissenting opinion of

Mr Matscher;

(e) partly dissenting opinion of Mr Pettiti, approved by

Mr Lopes Rocha and Mr Ruiz-Jarabo Colomer;

(f) concurring opinion of Mr De Meyer;

(g) partly dissenting opinion of Mr Baka.

Initialled: R. B.

Initialled: M.-A. E.

PARTLY DISSENTING OPINION OF JUDGE BERNHARDT

1. I agree with the majority of my colleagues that Article 6

para. 1 (art. 6-1) of the Convention has been violated as far as the

length of the proceedings is concerned. If the final decision in a

civil action before an ordinary court is dependent on an interim

procedure in the Constitutional Court, the length of this interim

procedure cannot be deducted from the total length of the proceedings;

the case itself must be settled in a reasonable time.

2. Different considerations apply in respect of the fairness or

the so-called adversarial character of the proceedings as far as the

interim procedure before the Constitutional Court is concerned.

I admit that the circumstances in the present case may appear

unsatisfactory: the parties in the proceedings before the Spanish civil

courts were the applicants on the one side and the State on the other

side. When the question of the compatibility of the nationalisation

law with the Constitution was referred to the Constitutional Court,

only the State was entitled to submit further observations, the

applicants were not permitted to do the same and to comment on the

arguments of the Government. Even if this inequality is mitigated by

the fact that the main arguments of the applicants had already been

developed during the proceedings before the civil courts, and the files

containing these arguments were available to the Constitutional Court,

the impression remains that the "parties" did not have the same

chances.

But the question remains whether Article 6 (art. 6) of the

Convention is applicable also to the proceedings in the Constitutional

Court. These proceedings concern exclusively the legal question of the

compatibility of the law in question with the constitution, and they

are not designed to determine civil rights; Article 6 (art. 6) of the

Convention is therefore not applicable. The distinction seemingly

drawn in paragraph 63 of the judgment between "a law which directly

concerns a restricted circle of persons" and other more general legal

provisions is in my view neither practicable nor suitable for the great

variety of modern legislation.

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

European states apply different methods in order to ensure the

compatibility of legislation with their constitutions. Some of the

methods used are outside the court system of the state concerned and

give individual citizens no possibility to intervene. Some states have

chosen a method according to which draft legislation is scrutinised at

a certain stage of its preparation either before or after presentation

to parliament. In other countries constitutional review is entrusted

to courts or court-like institutions of various types. In some

countries there seems to be no constitutional review. In others the

practical possibilities of such a review may be limited.

Under the Spanish system a constitutional court has been set

up which has procedural rules enabling individuals to submit their

views indirectly through the ordinary courts. This is set out in

detail in the judgment in this case.

In my opinion, our Court cannot demand that access to the

Constitutional Court in Spain be regulated in a specific way as is

required by the majority of our Court. Given the nature of its role

and competence, proceedings before the Spanish court do not, in my

opinion, fall within the field delimited by the wording of Article 6

(art. 6) of the Convention.

CONCURRING OPINION OF JUDGE GÖLCÜKLÜ, APPROVED BY JUDGE WALSH

(Translation)

Although I agree with the conclusions in paragraphs 53 and 68

of the judgment, I consider it necessary to clarify my position on the

applicability of Article 6 para. 1 (art. 6-1).

In the first place, there is in my view no doubt that the

Spanish Constitutional Court must be regarded as a "tribunal" within

the meaning of Article 6 (art. 6) of the Convention, despite its

specific nature, its structure and its jurisdiction (see paragraph 56

of the judgment). It must in principle respect the requirements of

that provision, even though its jurisdiction ratione materiae may mean

that it is permissible in certain circumstances for limitations to be

placed on, or exceptions allowed to, the rights guaranteed under

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

To reach this conclusion I start, as in paragraph 60 of the

judgment, from the idea that Article 6 (art. 6) is indeed applicable

in this instance and that it is so on the basis of the Court's

well-established case-law.

In the first place, I consider, like the Commission, that the

proceedings before the Constitutional Court concerned a "right" within

the meaning of Article 6 para. 1 (art. 6-1). There was a dispute

(contestation) over the very existence of a right which could be said,

on arguable grounds, to be recognised under domestic law (see, as the

most recent authority, the Kraska v. Switzerland judgment of

19 April 1993, Series A no. 254-B, p. 48, para. 24). Moreover, the

Spanish courts acknowledged this, because they expressed doubts on the

constitutionality of Law no. 7/1983 and observed that if the

Constitutional Court found the legislation in question to be

incompatible with the Constitution, the applicants' claims would have

to be allowed. The Constitutional Court ruled the questions referred

by those courts admissible. The applicants could therefore reasonably

claim to have been deprived of the enjoyment of their shares in

circumstances contrary to the law (see, mutatis mutandis, the Lithgow

and Others v. the United Kingdom judgment of 8 July 1986, Series A

no. 102, p. 70, para. 192).

As to the question whether the right in issue was a "civil"

right, the relevant criterion is in my view that which the Court

applied in paragraph 35 of the judgment in order to determine the

period to be taken into consideration as regards compliance with the

"reasonable time" requirement, namely the potentially decisive

influence of the Constitutional Court's decision on the outcome of the

civil proceedings (see the Bock v. Germany judgment of 29 March 1989,

Series A no. 150, p. 18, para. 37). Indeed, according to the Court's

case-law, this criterion applies to each of the aspects of the right

protected by Article 6 para. 1 (art. 6-1) (see the Ringeisen v. Austria

judgment of 16 July 1971, Series A no. 13, p. 39, para. 94, and the

Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117,

p. 17, paras. 34-35).

This line of authority received support very recently from the

Kraska v. Switzerland judgment of 19 April 1993, concerning the right

to a fair trial. The Court reiterated in that decision that

"proceedings come within the scope of [Article 6 para. 1] (art. 6-1),

even if they are conducted before a constitutional court, where their

outcome is decisive for civil rights and obligations" (Series A

no. 254-B, pp. 48-49, para. 26). The circumstances referred to in

paragraph 59 of the judgment lead me to the view that that was the case

in this instance.

I therefore conclude, with the majority of the Court, that

Article 6 para. 1 (art. 6-1) was applicable in the present case and

that, for the reasons indicated by the Court in paragraphs 61 to 68 of

the judgment, that provision has been breached.

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

A. Introductory remarks

To my regret I am unable either to accept fully the reasoning

of the judgment concerning the first limb of the case (although I

approve the conclusion, namely the finding of a violation of

Article 6 para. 1 (art. 6-1) from the point of view of "reasonable

time"), or to subscribe to the Court's reasoning and conclusion

regarding the second limb, concerning the principle of "fair trial".

In order to clarify my position, I should like to make the

following comments:

1. The case originated in an expropriation carried out under a

law, which moreover is flawed by reason of its being a law made for a

specific occasion (Massnahmegesetz - law dealing with a special

individual case), thus depriving the applicants of any normal legal

means of contesting the expropriation. However, as Spain had not

ratified Protocol No. 1 (P1) at the material time, the applicants

cannot rely on the protection which, under the Convention, Article 1

of that Protocol (P1-1) afforded them; accordingly they cannot invoke

Article 13 (art. 13) of the Convention either.

2. In order to precipitate a review of the expropriation law in

the Constitutional Court, they instituted what amounted to proceedings

to recover possession (interdicto de recobrar), which as regards the

substance (the restitution of the property) was from the outset bound

to fail, since an action for restitution (rei vindicatio) could not

succeed unless the expropriation law was declared void as

unconstitutional.

Nevertheless the proceedings to recover possession, as such,

may at a stretch be regarded as covered by Article 6 (art. 6) of the

Convention (what is debatable in my view is whether the "right" invoked

by the applicants was in fact arguable).

3. While I deplore the clearly unsatisfactory legal position in

the case before us, it is not for the Convention organs to "allow" the

applicants' claims by having recourse to Article 6 (art. 6) in order

to remedy the situation under domestic law, which is undoubtedly

deficient from the point of view of the general principles of law, but

not contrary to the Convention, for the reasons explained under no. 1.

B. Compliance with the reasonable time requirement

As the possession proceedings were covered by Article 6

para. 1 (art. 6-1) of the Convention (see paragraph 2 in fine above)

they must satisfy the requirements of expedition laid down therein.

As regards the period to be taken into consideration, the two

sets of interlocutory proceedings in the Constitutional Court must be

taken into account, even though Article 6 para. 1 (art. 6-1) is not

directly applicable to such proceedings. They are taken into account

solely from a factual point of view as interlocutory proceedings which

resulted in the suspension of the main proceedings (the possession

action). In this context it is in principle immaterial whether the

proceedings are preliminary proceedings or merely interlocutory

proceedings before any other judicial, administrative or disciplinary

body of the State in question (see the Lechner and Hess v. Austria

judgment, Series A no. 118, p. 16, para. 39, last sub-paragraph, and

pp. 19 et seq., paras. 52 et seq.), as the latter also incur

international responsibility in respect of the length of such

interlocutory proceedings (the situation would be different for

interlocutory proceedings which fall outside the control of the State

in question, for example preliminary proceedings in the Court of

Justice of the European Communities under Article 177 of the EEC

Treaty).

From this point of view, I consider the Court's reasoning

superfluous in so far as it lays too much stress on the preliminary

nature of the constitutional proceedings in issue (see paragraph 37 of

the judgment). The justification for taking those proceedings into

account for the overall assessment of the duration of the main

proceedings derives simply from the fact that they were interlocutory

proceedings which resulted in the interruption of the main proceedings.

On the other hand, interlocutory proceedings necessarily

increase the complexity of the main proceedings and therefore

constitute a factor which must be taken into consideration when

determining the overall length of the main proceedings.

Even if allowance is made for that factor, the main

proceedings as a whole exceeded a reasonable time within the meaning

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

C. The right to a fair trial

Article 6 para. 1 (art. 6-1) provides for a right to a fair

trial in so far as the object of the proceedings in question is a

decision on a contestation (dispute) over a civil right or obligation

(or in the determination of any criminal charge).

This "fair trial" guarantee applies equally for preliminary

interlocutory proceedings in so far as the object of such proceedings

is also a matter covered by Article 6 (art. 6), the mere fact that they

are preliminary (or "decisive") for proceedings subject to Article 6

para. 1 (art. 6-1) being immaterial in this respect.

To give an example: in divorce proceedings involving foreign

elements, the nationality of the spouses is a preliminary issue

inasmuch as the substantive law applicable in the case depends on this

issue and the decision taken thereon by the competent administrative

authority binds the courts; nevertheless, the procedure concerning

nationality is not covered by Article 6 (art. 6). It would be possible

to give innumerable examples of proceedings which are in one way or

another preliminary to the decision on a dispute over a civil right,

but that does not mean that the interlocutory proceedings in question

are covered by Article 6 para. 1 (art. 6-1).

The present case provides another example. The outcome of the

constitutional proceedings determines a preliminary issue for the

civil dispute. However, the subject of the constitutional proceedings

is not a dispute over a civil right, but the review of

the constitutionality of a law; the fact that in this instance the law

subject to constitutional review was a law adopted to deal with a

special individual case makes no difference in this connection.

Moreover, parliamentary proceedings to amend the law in question would

likewise be "preliminary" for a civil dispute, but no one would seek

to apply the procedural guarantees of Article 6 (art. 6) to them.

If the question is approached solely on the basis of

well-defined legal classifications, the conclusion must be that

recommended in this dissenting opinion, namely the non-applicability

of Article 6 para. 1 (art. 6-1) to the constitutional proceedings in

the present case.

The Court reached a different conclusion by making vague

references to equally vague and uncertain notions ("close link",

between the subject-matter of the two types of proceedings, "so

interrelated", at paragraph 59), indeed even more vague than those it

had developed in other circumstances, such as the Ringeisen rule, whose

use in the present case confirms its fallacious nature, to which I have

drawn attention on other occasions (separate opinion in the König v.

Germany case, Series A no. 27, pp. 46 et seq., and Le Compte,

Van Leuven and De Meyere v. Belgium case, Series A no. 43, pp. 35

et seq.). In any event, they are not sufficient to constitute solid

and convincing reasons for the applicability of Article 6 para. 1

(art. 6-1) to a given procedure.

D. Consequences of the approach adopted by the Court

As in other cases the "policy" of extending excessively (in

other words beyond its natural and typical scope) the applicability of

Article 6 para. 1 (art. 6-1) results inevitably in the limitation of

the substance of the procedural guarantees contained therein in a way

which is scarcely compatible with the aim of the provision (see my

separate opinion in the Le Compte, Van Leuven and De Meyere case, cited

above, pp. 37 et seq.).

I observe this phenomenon in this case too. Even if due

regard is had to the particular features and the specificity of

constitutional proceedings (paragraph 63 of the judgment), it may be

asked whether the substance of the procedural guarantees secured under

Article 6 para. 1 (art. 6-1) is still protected (this could already be

seen in the Commission's decision on the admissibility of

6 November 1990, paragraph 4 of the "Law" part).

PARTLY DISSENTING OPINION OF JUDGE PETTITI, APPROVED BY

JUDGES LOPES ROCHA AND RUIZ-JARABO COLOMER

(Translation)

I voted with the majority for the applicability of Article 6

(art. 6) as regards the length of the proceedings, but for different

reasons. Where the procedure in question is an interlocutory procedure

or a preliminary question procedure which under the national rules on

jurisdiction goes up to the Constitutional Court, it is my opinion that

the proceedings in such a Constitutional Court contribute to the

overall length and that therefore the period of stagnation can be

examined from the point of view of Article 6 (art. 6) concerning the

reasonable length of proceedings.

The position is completely different in regard to the

applicability of Article 6 (art. 6) for all the rules of fair trial

- public and adversarial proceedings, equality of arms etc. - at the

stage of Constitutional Court proceedings. The question cannot be

examined without first defining the nature and function of a

Constitutional Court, the proceedings, the parties and civil rights and

obligations.

To define a Constitutional Court or a Supreme Court it is

necessary to identify its functions, which may vary from State to

State. Where a Constitutional Court or a Supreme Court has the task

of trying a Head of State or ministers, it is performing a judicial

function in the traditional sense. Some such courts have jurisdiction

to hear electoral disputes under a different procedure.

Where the task of the Constitutional Court or Supreme Court

is to examine the compatibility of a law with the Constitution, it is

acting as a supreme constitutional organ, whose role is to ensure the

respect of the separation of powers and to safeguard fundamental

values, constitutional rights being regarded as equivalent in part to

fundamental rights. This role closely resembles that of the European

Court, which must ensure respect of human rights and the compatibility

of national decisions with the requirements of the Convention. At

present the applicants in the system of the European Convention on

Human Rights are still not parties to the proceedings before the

European Court. In addition, the latter's rulings do not take effect

"erga omnes".

The nature of a Constitutional Court is by definition

"political" in the highest sense of the term. It is therefore a "sui

generis" court which is not equivalent to an ordinary or traditional

court, before which opposing parties appear and whose function is to

resolve a dispute between the latter.

Some Constitutional Courts are confined almost exclusively to

resolving disputes between the political authorities or to settling

disputes deriving from the operation of political powers and the

organisation of those powers, or verifying that Parliament respects its

powers as delimited by the Constitution and ensuring that domestic

elections are lawfully conducted (see J. Robert, General Report,

Conference of European Constitutional Courts, 1993, and M. Fromont,

Justice constitutionelle en Europe).

The constitutional review may be purely abstract, concern a

general rule, be initiated by a political authority and lead to an

annulment or declaration of nullity "erga omnes". The concrete review

allowed under certain constitutions always concerns the

constitutionality of a rule of law, but may be instigated at the

request of a judge or on the initiative of an individual. However,

this relates solely to referral to the Constitutional Court and does

not concern the access of an individual to the constitutional

proceedings.

The very diversity of the systems adopted by those of the

member States who have set up a Constitutional Court or a

Constitutional Council serves to emphasise how closely these questions

are linked to the historical and political traditions of each State.

Some Courts rule in abstracto, others, in abstracto and in concreto,

without however according individuals the status of party.

Professor Jacques Robert's general report in May 1993 to the

Conference of European Constitutional Courts set out in detail these

different features (in particular for Germany, Spain, Belgium and

Italy).

In that same report attention was drawn to the differences of

approach as regards the Constitution and the case-law concerning the

incorporation or lack thereof of the European Convention, with the rank

of superior law or inferior law - which, in my view, underlined the

care which is necessary in interpreting the Convention from the point

of view of inter-State relations. Regard may be had in this respect

to the differences between the procedures under the European Convention

for State applications and individual applications, the specific

machinery of Article 177 for twelve of the States of the Council of

Europe and the special status of the Treaty of European Union. The

recognised principle is that the authority with power to draft and

amend the Constitution is supreme (see Conseil constitutionnel,

2 September 1992).

In so far as constitutional rights correspond to fundamental

rights, a question may also arise under the European Convention in this

context.

If a law, even one which has been found to be constitutional

at national level, is contrary to the Convention, the Convention's

machinery may be used, but without interference in the constitutional

procedure.

If a law which is theoretically contrary to the Convention has

not been found to be constitutional, it is clearly not necessary for

the Convention institutions to review the operation of the

Constitutional Court. Certain constitutional rights are not included

in the fundamental rights guaranteed under the European Convention on

Human Rights.

It is therefore necessary to draw essential distinctions in

approaching the problem from the point of view of Article 6 (art. 6)

of the Convention. Even in the Community system under the Treaty of

Rome, the political question of the control by parliaments of the

constitutionality of Community directives remains unanswered in 1993;

yet certain of these directives may have an effect on fundamental

rights. There is a risk that the decision in the Ruiz-Mateos case may

have to some extent a more profound effect than a judgment following

a State application. Yet it is accepted in the system of the European

Convention on Human Rights itself that an application of the latter

kind is governed by special rules.

The nature and function of the Constitutional Court means that

each sovereign State determines the rules governing referral thereto.

In the various national systems, the rules governing such referral are

very diverse: head of State, speakers of the parliamentary assembly

(with or without quota), various levels of courts, individuals through

the intermediary of courts.

Several member States of the Council of Europe do not have a

Constitutional Court, and this is not contrary to the Convention. Each

State is sovereign in its decision whether or not to have a

Constitutional Court; each State is sovereign in determining the rules

governing referral to such an organ. Those responsible for drafting

the European Convention and the State signatories thereto never

considered giving up sovereignty in these areas. Constitutional review

is a review of "constitutional lawfulness". That being so, in the

systems which allow, as in Spain, individuals, through the intermediary

of courts, to raise an objection as to constitutionality, does this

right of indirect referral confer on such individuals the status of

"parties" to the proceedings?

Does the procedure in the Constitutional Court give to this

stage in the proceedings the character of proceedings falling within

the ambit of Article 6 (art. 6)?

These are the basic issues which arise in the Ruiz-Mateos

case.

In my view the majority of the Court was influenced by the

fact that the law adopted concerning the Ruiz-Mateos group had the

effect of an indirect expropriation without fair compensation, but the

European Court was not called upon to examine this question because

Spain had not at the time ratified Protocol No. 1 (P1) to the

Convention.

The majority of the Court would also appear to have been

guided by the fact that the law was directed at a limited category of

persons. The judgment uses the curious expression "a restricted circle

of persons" (see paragraph 63), which has no precise legal meaning.

This gives rise to an entirely different question. May a

State adopt specific legislation, "made to measure", directed at a

limited category of persons?

This type of legislation exists in all the member States of

the Council of Europe, in particular in matters relating to tax. It

is not contrary to the Convention. Even if the European Court wished

to express an opinion in passing on the nature and scope of such laws,

it ought at least to have done so on the basis of precise legal

definitions.

Under what conditions does a law become specific or "made to

measure"?

In such cases, what are the criteria, the quotas? Can such

laws be contrary to the Constitution and on the basis of what criteria?

In such circumstances, do all the persons concerned thereby become

parties to the constitutional proceedings?

It is my opinion that all this area falls outside the

jurisdiction of the European Court and the field of application of the

European Convention itself.

The Constitutional Court's decision takes effect on the whole

of the national territory. If it declares the law invalid, the latter

can no longer be relied upon against the persons concerned. If it

finds the law to be valid, the law will be binding on all those to whom

it is addressed.

That is why, inter alia, it cannot be suggested that all the

addressees of the law should be able to have access to the files in the

Constitutional Court, even if referral thereto may be initiated in

certain States by an application from individuals, where the

application is allowed by a national court which refers the question

of constitutionality to the Constitutional Court.

But in the confrontation between the law and the Constitution

before the Constitutional Court, only the legislature or the political

organ which has referred the matter or the court which has raised the

question may be permitted to examine the file before the Constitutional

Court.

To seek to confer the status of parties on individuals, where

a court refers a question of constitutionality, would have the effect

of altering the constitutional power of a sovereign State to determine

the rules governing the referral of matters to the Constitutional

Court.

If the applicant, where his request that a question be

referred is allowed, acquires the right of access to the memorials and

evidence in the constitutional proceedings, he becomes, to a certain

extent, a party to those proceedings; in other words, he is accorded

rights which are almost identical to those conferred on the authorities

with the right to refer to the Constitutional Court: speakers of

parliament, members of parliament, "Defensor del Pueblo", who are

entitled to make known their position.

The fact that the Counsel for the State, filing a memorial in

the Constitutional Court, is the same or belongs to the same corps as

the one who intervened in the Ruiz-Mateos trial, is not material,

because their intervention does not arise in the same institutional or

constitutional framework. There again, in my view, the majority has

reasoned as if there was a dispute between parties concerning civil

rights and obligations, in other words, within the meaning of the

European Court's case-law, on private rights, the denial of which could

have decisive consequences on the position of the person concerned.

The constitutional procedure is an encounter between a law and

the Constitution, a debate between the legislature and the institution

responsible for reviewing constitutionality with the aim of protecting

the fundamental constitutional rights.

The decision in the Ruiz-Mateos case may have the indirect

effect of compelling a State to change its constitutional system or the

procedure relating thereto, which, I consider, would not be in

conformity with the European Convention. It may be possible to

relativise to the maximum extent the interpretation of the judgment,

but, in my view, that would have called for a different reasoning.

Admittedly, in the Spanish system, no amparo appeal lies in

relation to Article 33 of the Constitution, but the European Convention

on Human Rights does not require such an appeal in the judicial systems

of the member States.

In any event, an amparo appeal did lie in respect of

Article 24 of the Constitution; it would have made it possible to raise

the question of fair trial on which the Constitutional Court could have

ruled.

The Ruiz-Mateos group did not avail itself of this remedy.

It is true that the lower courts agreed to refer the questions

of constitutionality to the Constitutional Court. If they had refused

to do so (Article 37 of the Institutional Law), it would not have been

possible to rely on the European Convention and Article 6 (art. 6).

The fact that they agreed to refer the questions does not mean that

they recognised that the Ruiz-Mateos applicants had the status of

"parties" in the Constitutional Court.

Once the matter has been referred to that court, irrespective

of the method of referral, the confrontation between the law and the

Constitution becomes the subject of the proceedings.

Inevitably, the Constitutional Court's decision on the

validity of the law has consequences for all persons to whom the law

is addressed. This cannot confer on individuals the right to become

"parties".

Thus, by way of comparison, the challenge to the

constitutionality of the Maastricht Treaty in the German Constitutional

Court does not confer on all German citizens the right to intervene in

the Constitutional Court or the right to have access to the latter's

files.

From the point of view of Article 6 (art. 6) of the

Convention, the proceedings in the Constitutional Court of

confrontation between law and Constitution are not "proceedings" within

the implicit meaning of the Convention (paragraph 63 of the judgment).

In any event, they did not concern in this case civil rights and

obligations. The case was not about personal rights contested by

another party, but the conformity of the law in question with the

Constitution, regardless of any effects that law might have on the

persons to which it was addressed. Any law, even if it is in

conformity with the Constitution, gives rise to positive or negative

effects on the interests of individuals, but that does not mean that

such effects can give rise to disputes concerning civil rights and

obligations.

The precedents cited by the majority in the judgment are not

in my view relevant, because they dealt with problems different from

those arising in the Ruiz-Mateos case or did not concern a

Constitutional Court ruling on the nature of the law.

In the Ruiz-Mateos case, the outcome of the constitutional

proceedings was of a preliminary nature but the proceedings did not

concern civil rights.

The application of Article 6 (art. 6) to constitutional

proceedings raises major problems. It is my opinion that Article 6

(art. 6) was conceived as applying to criminal trials and to

proceedings between parties before a court. To extend to the

constitutional courts the rules of fair trial, such as the principle

of adversarial process, equality of arms, the requirement that hearings

be public, would have very negative consequences on the constitutional

balance of States and would deform the rule of referral to transform

it into a right of access to files in a State and political dispute.

This view finds support in other authorities. Study of legal

dictionaries and other works shows that the terms "instance" and

"parties" have a limited scope. This is how the words "instance" and

"parties", as used in the previous case-law of the European Court, may

be defined:

"Instance" : - procès où il y a demande et défense (Littré),

procédure judiciaire ayant pour objet de saisir le

tribunal d'une contestation (Larousse XIXe siècle),

procédure entre tel et tel (Dict. Académie)

- mise en oeuvre du droit qu'on a ou prétend avoir

(Grande encyclopédie)

- lien pour les parties (D. Capitant)

"Partie" : - qui plaide contre quelqu'un (Littré)

- personne qui plaide contre quelqu'un soit comme

demandeur, soit comme défendeur (Larousse XIXe

siècle)

- partie litigante (D. Capitant).

Under these definitions, it cannot be accepted that applicants

such as the Ruiz-Mateos family, who have requested the referral of a

question of constitutionality, should become parties to the proceedings

or acquire a right of access to the file.

When the European Court previously expressed a view on the

question of Constitutional Courts, it was in the context of the

examination of the interpretation by such courts of provisions of the

European Convention, and in cases in which the national decisions might

violate the Convention.

The Ruiz-Mateos case did not concern the examination of a

Spanish law which would in theory have been contrary to Protocol No. 1

(P1) if Spain had ratified it, but a domestic confrontation between a

law and the Constitution.

Accordingly, I take the view that Article 6 (art. 6) was not

applicable as regards the fairness of the proceedings in connection

with access to the file. In any event there was no violation of

Article 6 (art. 6) on this point.

The general problem of the applicability of Article 6

(art. 6) to constitutional proceedings remains unanswered. The

interpretation may vary according to the systems and according to the

aspect of fair trial in question, if necessary taken separately from

the other elements thereof.

The future work of the Conference of European Constitutional

Courts, in co-operation with the European Court of Human Rights and the

Court of Justice of the Communities, will provide useful indications

for additional reflection, enriched by the experience of the

Constitutional Courts of new member States.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

Any question concerning the determination of a right must be

able to be examined and decided in accordance with the principles laid

down in Article 6 para. 1 (art. 6-1) of the Convention. This is what

any person who has a legitimate interest in the solution of such a

question is entitled to require.

In the present case the applicants, as persons whose property

had been expropriated, could undoubtedly claim to have such an interest

in regard to the expropriation.

They were therefore entitled to have the case relating to the

expropriation heard in compliance with the above-mentioned principles,

both in the Constitutional Court, whose rulings were decisive in the

matter, and in the other courts before which the case came.

This was so in particular with regard to the length of the

proceedings and their fairness.

In these two respects the applicants' fundamental rights were

violated. Firstly, a reasonable time was exceeded*. Secondly, the

applicants were not authorised to submit their observations to the

Constitutional Court, whereas the Counsel for the State and the

Attorney General's department were allowed to lodge theirs**.

_______________

* See paragraphs 38 to 53 of the judgment.

** See paragraphs 16 to 18, 22, 65 and 67 of the judgment.

_______________

PARTLY DISSENTING OPINION OF JUDGE BAKA

I fully subscribe to the view of the majority that there has

been a breach as far as the fairness of the procedure is concerned in

the present case. I also consider that because of the very special

circumstances of the expropriation, Article 6 para. 1 (art. 6-1) is

applicable to these Constitutional Court proceedings, which have a

direct effect on the outcome of the civil proceedings.

On the other hand I have a different opinion concerning the

length of the proceedings. In the present case, I have come to the

conclusion that the matter was relatively complex, its political

background having necessarily contributed to the prolongation of the

procedure.

I believe that the examination of constitutionality - which

could legitimately be regarded here as a part of the civil proceedings

- has to be assessed in the light of the special characteristics

inherent in these kinds of constitutional court procedures. The

particular features of such a system, such as the court's unique

organisational framework, its relatively small size, the breadth of its

jurisdiction and the possible political implications of its

constitutional decisions, make for a lengthier procedure. They

undoubtedly did so here.

I must also point out that the conduct of the applicants

significantly contributed to delaying the proceedings.

Accordingly in my view, there has been no violation of the

"reasonable time" requirement of the Convention.