FOURTH SECTION
CASE OF
AVDIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
(Applications nos.
28357/11, 31549/11 and 39295/11)
JUDGMENT
STRASBOURG
19 November 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Avdić and Others v. Bosnia and Herzegovina,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele,
President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 22 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in three applications
(nos. 28357/11, 31549/11 and 39295/11) against Bosnia and Herzegovina
lodged with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by three citizens of
Bosnia and Herzegovina, Mr Sulejman Avdić, Mr Vlado Adamović
and Mr Drago Kovačević (“the applicants”), on 6 April, 10 May
and 20 May 2011, respectively.
Mr Avdić was represented by
Ms S. Nikolić and Mr V. Nikolić, lawyers practising in Sarajevo. Mr
Adamović was represented by Mr N. Grzić, a lawyer also practising in
Sarajevo. Mr Kovačević, who was granted legal aid, was represented by
Mr G. Marić, a lawyer practising in Banja Luka. The Government of Bosnia
and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms
Z. Ibrahimović.
The applicants alleged, in particular, that they
had been denied access to court.
On 11 September 2012 the applications were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are citizens of Bosnia and
Herzegovina. They were born in 1949, 1959 and 1962, respectively, and live in
Sarajevo (Mr Avdić and Mr Adamović) and in
Banja Luka (Mr Kovačević).
A. The facts concerning Mr Avdić
On 10 April 2006 the Court
of Bosnia and Herzegovina (“the State Court”) rejected a claim lodged by the applicant in a labour dispute
against the fiscal administration. On 27 February and 1 October 2007 that
judgment was confirmed by a trial chamber of the State Court and an appeals
chamber of the State Court, respectively.
. On
27 November 2007 the applicant lodged a constitutional appeal.
. On
9 July 2010 the Constitutional Court of Bosnia and Herzegovina (“the
Constitutional Court”), in a formation of eight
judges, rejected the applicant’s appeal as a majority of five judges could not
agree on any of the proposals. The court’s reasoning included all the views
expressed at the session on the issues raised in the case. By virtue of Article
VI § 4 of the Constitution (see paragraph 17 below), the decision was final.
B. The facts concerning Mr Adamović
. On
14 January 2008 the first instance disciplinary panel of the High Judicial and
Prosecutorial Council removed the applicant from the post of State Court judge
for causing damage to the reputation of the judiciary.
. On
16 April, 29 May and 27 November 2008 that decision was confirmed by the second instance disciplinary panel, the High Judicial and Prosecutorial Council and the State Court,
respectively. On 8 July 2009 an appeals chamber of the State Court rejected an
appeal on points of law lodged by the applicant.
On 2 October 2009 the applicant lodged a constitutional
appeal.
On 25 September 2010 the Constitutional Court,
in a formation of eight judges, rejected the applicant’s appeal as a majority
of five judges could not agree on any of the proposals. The court’s reasoning
included all the views expressed at the session on the issues raised in the
case. By virtue of Article VI § 4 of the Constitution, the decision was final.
C. The facts concerning Mr
Kovačević
. After
an unsuccessful attempt to resolve his employment-law claim before the
administrative commission set up under the employment legislation, on 30
October 2003 the applicant initiated proceedings against his former employer
seeking reinstatement and payment of outstanding salaries, together with all
work-related benefits.
. On
20 October 2006, following remittal, the Bosanska Krupa Municipal Court
partially acceded to his claim. On 17 April 2007 and 14 July 2008 that
judgment was upheld by the Bihać Cantonal Court and
the Supreme Court of the Federation of Bosnia and Herzegovina,
respectively.
On 9 September 2008 the applicant lodged a
constitutional appeal complaining about the length and the outcome of the
impugned proceedings as well as alleged discrimination.
. On
21 January 2011 the Constitutional Court, in a formation of seven
judges, found that the applicant’s right to a hearing within a reasonable time
had been violated, but rejected the rest of his appeal as a majority of five
judges could not agree on any of the proposals. The court’s reasoning as
regards the rejected part of the appeal contained all the views expressed at
the session on the issues raised. By virtue of Article VI § 4 of the
Constitution, that decision was final.
II. RELEVANT
DOMESTIC LAW
The Constitution of Bosnia and
Herzegovina (Annex 4 to the General Framework Agreement for Peace in Bosnia and
Herzegovina) entered into force on 14 December 1995. The Constitutional Court
was set up pursuant to Article VI of the Constitution, which, in so far as
relevant, reads as follows:
“1. Composition
The Constitutional Court shall have nine members.
(a) Four members shall be selected by the House of Representatives
of the Federation, and two members by the Assembly of the Republika Srpska. The
remaining three members shall be selected by the President of the European
Court of Human Rights after consultation with the Presidency.
...
2. Procedures
(a) A majority of all members of the Court shall constitute a
quorum.
(b) The Court shall adopt its own rules of court by a majority
of all members. It shall hold public proceedings and shall issue reasons for
its decisions, which shall be published.
3. Jurisdiction
The Constitutional Court shall
uphold this Constitution.
...
b) The Constitutional Court shall also have appellate
jurisdiction over issues under this Constitution arising out of a judgment of
any other court in Bosnia and Herzegovina.
...
4. Decisions
Decisions of the Constitutional Court shall be final and
binding.”
Rule 40(2) of the Rules of the
Constitutional Court (Official Gazette of Bosnia and
Herzegovina nos. 60/05, 76/05, 64/08 and 51/09) provides that the plenary
court shall take decisions by a majority of all its members. A judge may not
abstain from voting (Rule 41).
Rule 40(3), which was introduced on 30 May 2009, reads as
follows:
"Exceptionally, when less than a total number of nine
judges participate in a decision-making procedure at the plenary session for
the reasons referred to in Rule 93(1) [exemption of a judge] or Rule 99(6)
[temporary suspension from office pending the outcome of criminal proceedings]
of these Rules, as well as in the event that all of the judges have not been
appointed or there is an incapacity of one of the judges to exercise his/her
office due to illness for a longer period, unless a minimum of five judges vote
identically on a draft decision on an appeal it shall be considered that the
decision is taken to reject it.
The reasoning of that decision shall contain all the views
presented at the session on the issues raised in the appeal.”
THE LAW
I. JOINDER OF THE APPLICATIONS
Given their common factual and legal background,
the Court decides that these three applications should be joined, pursuant to Rule
42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants complained that the rejection of their
constitutional appeals because the Constitutional Court could not reach a
majority denied them access to court contrary to Article 6 § 1 of the
Convention. That Article, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law.”
A. Admissibility
1. The
parties’ submissions
In the first place, the Government argued that
Mr Avdić and Mr Adamović had submitted their applications outside the
six-month time-limit laid down in Article 35 § 1 of the
Convention. The Constitutional Court’s decisions were delivered to those
applicants on 11 November 2010, whereas, the Court’s
stamp on the application forms indicates that these were received by the Court
on 6 July and 18 May 2011, respectively. In the Government’s view, the latter
dates should be taken as the dates on which the present applications were lodged.
The Government further submitted that the applications were manifestly
ill-founded: all applicants had exercised their right of access to court by
appealing to the Constitutional Court, which had given reasoned and final decisions
in accordance with its procedure.
The applicants disagreed.
2. The
Court’s assessment
. As
regards the Government’s argument that the dates on which Mr Avdić’s
and Mr Adamović’s applications were lodged should be
those on which the Court received those applications, the Court reiterates
that, in accordance with Rule 47 § 5 of the Rules of Court, the date of lodging
of an application is as a general rule considered to be the date of the first
communication from the applicant setting out, even summarily, the object of the
application. The date of lodging is accordingly the date on which the first
letter was written by the applicant or, where there is an undue delay between
this date and the date on which the letter was posted, the Court may decide
that the date of posting shall be considered to be the date of lodging (see Arslan
v. Turkey (dec.), no. 36747/02, ECHR
2002-X (extracts); Calleja v. Malta (dec.), no. 75274/01, 18 March 2004;
Gaspari v. Slovenia, no. 21055/03, § 35, 21 July 2009; and Andrushko v. Russia,
no. 4260/04, § 32, 14 October 2010).
. The
Court also notes that when submitting their applications to the Court,
applicants are expected to take reasonable steps to inform themselves, inter
alia, about the time-limit provided for in Article 35 § 1 of the Convention
and act accordingly to comply with that time-limit (see Sabri Güneş v.
Turkey [GC], no. 27396/06, § 61, 29 June
2012). However, applicants cannot be held responsible for any delays that may
affect their correspondence with the Court in transit: to hold otherwise would
mean unjustifiably shortening the six-month period set forth in Article 35 § 1
of the Convention and adversely affecting the right of individual petition.
. In the
present case, the Court observes that Mr Avdić clearly
recounted the circumstances of his case and formulated the relevant complaints in
his letter of 6 April 2011, which was dispatched the same day, as is clear from
the postmark. The application form dated 6 July 2011, referred to by the Government,
merely reproduced his original submissions. Against this background, the Court finds that the date of lodging of
his application was 6 April 2011 (see, for a similar conclusion in a comparable
situation, Ismailova v. Russia (dec.), no 37614/02, 31 August 2006).
. As regards the second applicant, Mr Adamović,
the Court observes that his first letter to the Court contained
the Court’s official application form where he described the circumstances of
his case and the relevant complaints. The application form was dated 9 May 2011
and, as is clear from the postmark, it was dispatched the next day. The Court therefore
accepts 10 May 2011 as the date of lodging of this application.
. The
Government’s first objection in both cases must accordingly be dismissed.
As regards the second objection, the Court concludes that the complaint of the three applicants
raises issues of fact and law under the Convention, the determination of which
requires an examination of the merits. It finds no other grounds for declaring the
applications inadmissible. They must therefore be declared admissible.
B. Merits
1. The
parties’ submissions
The applicants maintained that the limitation of
their right of access to a court through the application of Rule 40(3) of the
Rules of the Constitutional Court had been disproportionate. They had appealed
to the Constitutional Court asking it to examine whether the lower domestic
bodies had complied with the Convention in examining their respective claims.
By rendering decisions pursuant to Rule 40(3), the Constitutional Court had effectively
denied them that possibility as their appeals had been considered as rejected.
It was disproportionate to shift onto them the burden of the court’s failure to
function properly and, indeed in such a situation, it would have been fairer to
consider their appeals accepted. By applying the impugned rule, the
Constitutional Court did not ensure equal access by all appellants: some appeals
would be decided at a plenary session of nine judges while others would be automatically
rejected as a result of the application of the said rule. The Constitutional
Court could have chosen other methods for overcoming its difficulties which would
not have been detrimental for the appellants.
The Government submitted that
the applicants had had access to all the competent administrative and judicial
bodies concerning their respective claims and that they had used all available
domestic remedies. They had, therefore, exercised their right of access to a
court in its very essence. The Government pointed out, in this regard, that the
Constitutional Court was not a court of fourth instance. The Government further
submitted that this Court should take into account the specific nature of the
constitutional proceedings and the manner in which the applicants’ respective
claims had been examined by the competent administrative and judicial bodies
prior to the institution of the constitutional proceedings. The limitation of access
to the Constitutional Court was proportionate and served a legitimate purpose. The
increased number of cases in 2009 had necessitated a change in the rules so as
to allow the prompt resolution of cases and normal functioning of the court
without delays in the event of the absence of a judge (owing to illness,
exemption and so on). To illustrate the point, the Government noted that on 1 January
2011 there had been 8,243 cases pending before the Constitutional Court and
that, during the same year, 5,076 new cases had been registered.
The Government further argued that the Constitutional
Court decisions given under Rule 40(3) had the same
effect as those adopted by majority. They were also considered final by virtue
of Article VI § 4 of the Constitution. This distinguished the present
case from Marini v. Albania (no. 3738/02, 18 December 2007). Furthermore, the impugned decisions contained all the legal reasoning
presented at the session and were not arbitrary. In order to reduce the number
of non-majority decisions to a minimum, Rule 41 of the Rules of the
Constitutional Court provided that a judge could not abstain from voting.
2. The
Court’s assessment
The Court reiterates that Article 6 § 1 secures
to everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way it embodies the
“right to a court”, of which the right of access, that is the right to
institute proceedings before courts in civil matters, constitutes one aspect
(see Golder v. the United Kingdom, judgment of 21 February 1975,
Series A no. 18, pp. 17-18, §§ 35-36). This right extends only to disputes
(“contestations”) over “civil rights and obligations” which can be said,
at least on arguable grounds, to be recognised under domestic law (see, among
other authorities, James and Others v. the United Kingdom, judgment of
21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and
Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no.
172, pp. 16-17, § 36).
Furthermore, the “right to a court” is not absolute. It is subject to
limitations permitted, in particular, where the conditions of admissibility of
an appeal are concerned, since by its very nature it calls for regulation by
the State, which enjoys a certain margin of appreciation in this regard (see, Ashingdane v.
the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp.
24-25, § 57). However, these limitations must not restrict or reduce a
person’s access in such a way or to such an extent that the very essence of the
right is impaired. Lastly, such limitations will not be compatible with Article
6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be achieved (see Levages Prestations Services v. France, judgment of
23 October 1996, Reports of Judgments and Decisions 1996-V, p.
1543, § 40).
33. As regards the applicability of Article 6 to the present case, the Court notes that
the impugned domestic proceedings concerned the determination of the applicants’
“civil rights and obligations” within the meaning of that Article (in
particular, as regards the second applicant, see Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II).
34. The Court reiterates that Article 6 of the Convention does not compel the Contracting
States to set up courts of appeal or of cassation. Nevertheless, a State which
does institute such courts is required to ensure that persons amenable to the
law shall enjoy before these courts the fundamental guarantees contained in
Article 6 (see, among other authorities, Delcourt v. Belgium, judgment
of 17 January 1970, Series A no. 11, p. 14, § 25). These guarantees
include the right to have a final determination on a matter submitted to a
court including, in the applicants’ case, a decision on the admissibility
and/or merits of their constitutional complaints.
The Court observes that Rule 40(3) of the Rules of the Constitutional Court
provides that, when fewer than nine judges participate in a plenary session, it
is considered that the appeal is rejected unless a minimum of five judges vote
identically on the proposal under discussion. Such a decision must contain all
the views expressed at the plenary session on the issues raised in the case and
is final by virtue of Article VI § 4 of the Constitution.
The Court recalls that in Marini v. Albania
(cited above, §§ 121-22), in which the applicant’s constitutional appeal had
been dismissed as a result of the Constitutional Court’s failure to reach a
majority on the issues before it, the Court found that that situation had left
the applicant without any final determination of his case and, accordingly, restricted
the very essence of his right of access to a court.
The Court rejects the Government’s suggestion
that the present case should be distinguished from Marini. Although the
impugned decisions were final, they did not involve a final “determination” of
the applicants’ civil rights and obligations. While the Constitutional Court took
formal decisions on the applicants’ appeals, it effectively declined to decide
on their admissibility and/or merits. The impugned decisions contained reasons both
for and against the finding of a violation and the only reason why the
applicants’ appeals were rejected was the court’s failure to reach a majority
on any of the issues which would determine the applicants’ civil rights and
obligations. In other words, there was no majority for either accepting or
rejecting their appeals. When there is no real “determination” of civil rights
and obligations, the right of access to court remains illusory (see Marini,
cited above, § 122).
The Court notes the burden of work faced by the
Constitutional Court (see paragraph 30 above). It also notes that it is for the
Constitutional Court to set up its own rules of procedure. However, the
Government did not indicate in their submissions that there had been any
attempt at finding alternative solutions. Moreover, the Court notes that Article
VI § 2 of the Constitution provides that a majority of all members of the court
shall constitute a quorum which is required only for the adoption of the rules of
the court (see paragraph 17 above).
In view of the above, the Court sees no reason
to depart from its line of reasoning in the Marini case. There has
accordingly been a violation of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The Court has examined the other complaints
submitted by the applicants under Article 14, Article 1 of Protocol No. 1 and
Article 2 of Protocol No. 7. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the applications is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
Mr Avdić claimed
37,642.35 euros (EUR) in respect of pecuniary damage (lost earnings and
other work-related benefits with statutory interest) and EUR 5,000 in respect
of non-pecuniary damage.
. Mr
Adamović requested reinstatement to his post of judge at the State Court
and claimed an unspecified amount (for lost earnings and other work-related
benefits with statutory interest) in respect of pecuniary damage. He also claimed
EUR 10,000 in respect of non-pecuniary damage.
. Mr
Kovačević claimed EUR 113,712 in respect of pecuniary damage
(lost earnings) and EUR 20,000 in respect of non-pecuniary damage.
The Government considered the amounts claimed
excessive and unjustified.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged. It therefore
rejects these claims. On the other hand, the Court
considers that the applicants certainly suffered some non-pecuniary damage. Making
its assessment on an equitable basis, as required by Article 41 of the
Convention, it awards each applicant EUR 3,600 in respect of non-pecuniary
damage.
B. Costs and expenses
Mr Avdić claimed approximately
EUR 1,500 for costs and expenses incurred before the domestic courts and
EUR 1,278.23 for those incurred before this Court.
Mr Adamović did not claim any costs and expenses
In addition of the legal aid granted (see
paragraph 2 above), Mr Kovačević sought EUR 4,000 for costs and expenses incurred before the domestic
courts and an additional EUR 2,000 for those incurred before the Court.
The Government considered the amounts claimed
excessive and unjustified.
As regards the domestic costs and expenses, the Court
recalls that it will uphold such claims only in so far as they relate to the
violations it has found. There is no evidence that the first and third applicants
incurred any costs and expenses before the domestic authorities in seeking redress
in connection with the violations of the Convention found in the present case.
Accordingly, the Court rejects these claims.
As regards the claims for costs and expenses
incurred before this Court, according to the Court’s case-law, an applicant is
entitled to reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are reasonable
as to quantum. The Court requires itemised bills and invoices that are
sufficiently detailed to enable it to determine to what extent the above
requirements have been met. In the present case, the Court notes that Mr Avdić failed to submit evidence,
such as itemised bills and invoices, that those expenses had been actually incurred.
As regards Mr Kovačević, the Court notes
that he was paid legal aid in the amount of EUR 850 for costs and
expenses incurred before this Court. He failed to submit evidence about any
additional expenses he had. Accordingly, the Court
rejects their claims.
. Lastly,
since Mr Adamović did not claim costs and expenses,
there is no call to award him any sum on this account.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applicants’ complaint
concerning their access to a court admissible and the remainder of the applications
inadmissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 3,600
(three thousand six hundred euros) each, in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into convertible marks at the
rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 19 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Ineta
Ziemele
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge De Gaetano is
annexed to this judgment.
I.Z.
F.E.P.
CONCURRING OPINION OF JUDGE DE GAETANO
1. Although I agree
that in this case there was a violation of Article 6 § 1 as regards all three
applicants, there is an issue which, I believe, has not been adequately
addressed in the principal judgment.
2. The present case
does bear some similarity to Marini v. Albania (no. 3728/02, 18
December 2007). Both judgments deal with the interaction between on the one
hand provisions of the Constitution in so far as they refer to the working and
the decision making process of the constitutional court and, on the other,
provisions of other legislation also relating to the functioning of the said
court. In Marini, the “other legislation” (namely the Constitutional
Court (Organisation and Operation) Act of 10 February 2000) clearly provided
that decisions of the Constitutional Court were to be taken by a majority of
the judges present for the deliberations, and that abstentions were not allowed
(see paragraph 71 of the judgment in that case). Although this “other
legislation” made provision in the event of a tied vote, the Court noted that
in the case before it there could in reality have been no tied vote since the
Albanian Constitutional Court had sat in a seven-judge formation (see paragraph
119 of that judgment). In that case the domestic court had, somehow, failed to
decide, when it could and should have done so one way or the other.
3. In the instant case
the situation is rather different and, with all due respect, far more bizarre.
The Constitutional Court (of Bosnia and Herzegovina) is composed of nine
members (paragraph 17). According to the Constitution, a majority of all the
members of the court, i.e. 5, shall constitute a quorum (ibid.). The
Constitution is silent on how decisions are to be taken, and in particular on
whether decisions of the Constitutional Court are to be taken by simple or by
qualified majority. The Constitution also provides that the Constitutional
Court shall adopt its own rules of court.
4. A fundamental
principle of both constitutional and administrative law is that, in the absence
of an express provision to do so, subsidiary legislation (whether delegated to
an authority of the executive branch of government or, as in this case, to an
authority of the judicial branch) should never go against the parent
legislation, whether directly or indirectly. In providing for a quorum of five
judges, the Constitution clearly intended to establish the minimum number of
judges for the Constitutional Court to function and to get on with its
business. There is no suggestion in the Constitution that applicants should
face more or less difficulties in the determination of their applications by
that court depending on the number of judges hearing a particular application.
The rules of court, which were adopted by the Constitutional Court itself and
which are therefore, by their very nature, subsidiary legislation, while
providing that the plenary court should take decisions by a majority of
all its members, introduced a qualified majority in the case of any formation
other than the full nine. In other words, the smaller the composition of the
Constitutional Court (five, six, seven or eight members), the more difficult it
would be for an applicant to have the case resolved in his favour. No provision
was made in the said rules in the event of a tie when the formation was an even
one. Moreover, as if this were not enough, when the qualified majority was not
attained, the rules provided that “it shall be considered that the decision is
taken to reject [the appeal]” (see paragraph 18). In other words, the appeal is
“deemed to have been” rejected even though, in reality, there was no actual
determination on the merits (paragraph 36). It was thus sufficient for a judge to
fail to turn up for deliberations because of, say, illness, for the procedural
hurdle to be put in place. Considering that a reduced composition could also be
due to the failure of one or more of the selecting bodies to do their duty, the
element of prejudice to applicants before the Constitutional Court through the
application of Rule 40(3) assumes the cloak of sheer arbitrariness.
To my mind it is not a
court’s function - and particularly a constitutional court’s function - to
place procedural obstacles, not provided for by primary legislation (which
itself must be compliant with Article 6) which render more difficult, if not
indeed impossible, the determination of a civil right or obligation. For these
reasons I voted for a violation.
