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You are here: BAILII >> Databases >> European Court of Human Rights >> SALERNO v. ITALY - 11955/86 [1992] ECHR 64 (12 October 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/64.html
Cite as: [1992] ECHR 64
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In the case of Salerno v. Italy*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr R. Macdonald,
Mr C. Russo,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 29 May and 22 September 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 83/1991/336/409. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 December 1991, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 11955/86) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national,
Mr Vincenzo Salerno, on 18 January 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Italy recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr C. Russo,
the elected judge of Italian nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 24 January 1992, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr R. Macdonald,
Mr R. Bernhardt, Mr S.K. Martens, Mr I. Foighel and Mr R. Pekkanen
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Italian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the organisation of the
procedure (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
22 April. In a letter of 4 May the Government indicated that they
would be referring to the observations they had filed in the
proceedings before the Commission. The Delegate of the Commission made
no comments.
5. On 20 May the Commission produced the file on the proceedings
before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the decision of the President, who had given
the applicant leave to use the Italian language (Rule 27 para. 3), the
hearing took place in public in the Human Rights Building, Strasbourg,
on 25 May 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, on secondment to the
Diplomatic Legal Service, Ministry
of Foreign Affairs, Co-Agent,
Mr G. Manzo, magistrato, on secondment to the
Ministry of Justice, Counsel;
(b) for the Commission
Mr A.S. Gözübüyük, Delegate;
(c) for the applicant
Mr M. de Stefano, avvocato, Counsel,
Mr V. Mazzarelli, avvocato, Adviser.
The Court heard addresses by them as well as replies to
questions put by the Court and by one of its members.
7. At the deliberations on 22 September 1992 Mr Ryssdal and
Mr Pettiti, who were unable to take part in the further consideration
of the case, were replaced by the Court's Vice-President, Mr Bernhardt,
who sat as President of the Chamber, and Mr A.N. Loizou, substitute
judge, respectively; Mr Bernhardt in his turn was replaced as a member
of the Chamber by Mrs E. Palm, also a substitute judge (Rule 21
paras 3 (b) and 5, Rule 22 para. 1 and Rule 24 para. 1).
AS TO THE FACTS
8. Mr Vincenzo Salerno lives in Rome. Pursuant to
Article 31 para. 1 (art. 31-1) of the Convention, the Commission
established the following facts (paragraphs 15-24 of its report):
"15. In June 1973 the applicant brought proceedings against
the notaries' pension fund (Cassa Nazionale di Notariato)
before the Rome magistrate's court (pretore). He said he had
worked as an auxiliary notary (notaio coadiutore) for nineteen
years and had paid into the notaries' pension fund
contributions equal to 20% of the fees he had earned, half of
which, he maintained, had legally been his.
16. He accordingly sought recognition of his right to join
the fund and to draw the pension payable to its members.
17. Dismissal of his application became final with a Court
of Cassation judgment of 6 June 1980. The accompanying
statement of reasons said that an auxiliary notary worked for
the notary and, under the relevant provisions, had no
entitlement to the fees which he earned on the notary's
behalf. Contributions paid out of such fees entitled only the
notary, who paid them into the notaries' pension fund through
the auxiliary notary.
18. On 8 April 1982 the applicant instituted further
proceedings in the Rome magistrate's court to have the
notaries' pension fund repay old-age pension contributions he
had paid into it from fees he had earned as an auxiliary
notary, half of which, he contended, had legally been his. At
the same time he instituted proceedings against the Minister
of Justice.
19. On 25 October 1982, through the chairman of its
governing board, the pension fund opposed the applicant's
claim, arguing inter alia that it was barred by the Court of
Cassation judgment of 6 June 1980. The Minister of Justice
argued that there was no cause of action against him.
20. The hearing in the magistrate's court was held on
4 March 1983. On 12 May 1983 the court dismissed the
applicant's claim. On the one hand, it found that there was
no cause of action against the Minister of Justice. On the
other, it noted that the applicant's case rested on the
allegation of entitlement to half the fees earned by his work
as an auxiliary notary.
But in its judgment of 6 June 1980 the Court of
Cassation had already ruled that he had not had any
entitlement to those fees and that the contributions had been
paid for the benefit of the notary himself, who alone had any
legal relationship with the notaries' pension fund.
21. On 21 July 1983 the applicant appealed against the
judgment. The Rome District Court heard the case on
14 November 1984 and dismissed the appeal. The judgment was
filed with the registry on 22 January 1985.
22. On 10 April 1985 the applicant appealed to the Court
of Cassation, challenging in particular the lower courts'
finding that his claim failed because the judgment of
6 June 1980 had become final. On 26 October 1985 he applied
to have his case examined. On 12 June 1986 the appeal was
dismissed. The judgment was filed with the Court of Cassation
registry on 1 April 1987.
23. The judgment noted that the applicant's claim was
based on the allegation of entitlement to half the fees earned
by his work as an auxiliary notary and consequently to half
the contributions paid in respect of those fees. It further
noted that it had disallowed that claim in its judgment of
6 June 1980, which on that issue had become final (giudicato
esterno). The applicant could therefore not make the claim
again.
24. It likewise dismissed his application for a reference
to the Court of Justice of the European Communities for a
preliminary ruling. That application, which had also been
made unsuccessfully at the previous appeal stage, argued that
the regulations on notaries' pay and notaries' old-age
insurance were in breach of Community rules on free movement
of services. The Court of Cassation stated that it could not
see how the regulations could possibly interfere with free
movement of services within the Community."
PROCEEDINGS BEFORE THE COMMISSION
9. The applicant applied to the Commission on 18 January 1986.
Relying on Article 6 para. 1 (art. 6-1) of the Convention, he
complained that the proceedings he had brought on 8 April 1982 had
taken too long and that the courts that had heard the case had not been
impartial.
10. On 5 March 1990 the Commission declared the second complaint
inadmissible but found the application (no. 11955/86) to be admissible
in respect of the first complaint. In its report of 5 September 1991
(made under Article 31) (art. 31), the Commission expressed the
opinion, by sixteen votes to four, that there had been a breach of
Article 6 para. 1 (art. 6-1). The full text of the Commission's
opinion and of the dissenting opinion contained in the report is
reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 245-D of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
11. At the hearing the Government asked the Court to hold that
there had been no violation of the Convention in the case.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
12. Mr Salerno complained of the length of time taken to try the
second action he brought before the competent courts. He relied on
Article 6 para. 1 (art. 6-1) of the Convention, whereby
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
A. Applicability of Article 6 para. 1 (art. 6-1)
13. The applicant and the Commission considered this provision to
be applicable in the instant case, whereas the Government maintained
the opposite.
14. Article 6 para. 1 (art. 6-1) extends to "contestations"
(disputes) over (civil) "rights" which can be said, at least on
arguable grounds, to be recognised under domestic law, irrespective of
whether they are also protected under the Convention (see, as the most
recent authority, the Editions Périscope v. France judgment of
26 March 1992, Series A no. 234-B, p. 64, para. 35).
15. The Government submitted that the action brought on
8 April 1982 was not arguable: the Court of Cassation in its judgment
of 6 June 1980, in which it had dismissed Mr Salerno's application for
membership of the notaries' pension fund, had already by implication
answered in the negative the question of whether there was any right
to repayment of contributions paid to that fund.
16. Like the applicant and the Commission, the Court notes that
this was a disputed issue, on which only the competent courts could
rule.
Moreover, the first action, which was finally disposed of by
the Court of Cassation's judgment referred to above, was brought to
secure recognition of a right to old-age benefits, whereas the second
action, which ended on 1 April 1987, was for repayment of contributions
to the pension fund in question. Above all, the courts to which the
fresh application was made in 1982 acknowledged that the applicant's
arguments were sufficiently tenable, since they held the action to be
admissible.
Since, furthermore, the claimed right was undoubtedly a civil
one, Article 6 para. 1 (art. 6-1) applied in the instant case.
B. Compliance with Article 6 para. 1 (art. 6-1)
17. It remains to be ascertained whether or not a "reasonable time"
was exceeded.
The applicant and the Commission said it had been; the
Government maintained it had not been.
18. The period to be considered began on 8 April 1982, with the
institution of proceedings against the notaries' pension fund in the
Rome magistrate's court, and ended on 1 April 1987, when the Court of
Cassation's judgment was filed. It therefore lasted for nearly five
years.
19. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment.
20. The Government relied on the excess workload of the courts that
dealt with the case.
The applicant maintained that the case was not complex and that
the relevant authorities had not complied with the time-limits provided
for in the Code of Civil Procedure.
21. Like the Commission, the Court notes several periods of
inactivity: the Rome District Court waited sixteen months before
hearing Mr Salerno's appeal; while in the Court of Cassation the
hearing took place fourteen months after the appeal was lodged, and the
judgment was filed in the registry about ten months after it was
adopted.
Nevertheless, having regard to the fact that the case came
before three different courts, the delays that occurred do not appear
substantial enough for the total length of the proceedings to have
exceeded an acceptable limit in the circumstances of the present case.
22. There has accordingly been no breach of Article 6 para. 1
(art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) applies in the instant
case;
2. Holds that there has been no breach of it.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 12 October 1992.
Signed: For the President
Alphonse SPIELMANN
Substitute Judge
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the concurring
opinion of Mr Martens, approved by Mr Foighel and Mr Pekkanen, is
annexed to this judgment.
Initialled: A. S.
Initialled: M.-A. E.
CONCURRING OPINION OF JUDGE MARTENS,
APPROVED BY JUDGES FOIGHEL AND PEKKANEN
1. I share the opinion of my colleagues as to the
applicability of Article 6 para. 1 (art. 6-1), but I do not agree with
their reasoning. More specifically, I think that the Court should have
put aside as immaterial the Government's argument that the (second)
action brought by the applicant (on 8 April 1982) was not "arguable"
(by which the Government evidently meant that it was clear beforehand
that it had no chances of success whatsoever).
2. It is true that this argument seems to find support in
the case-law of the Court in so far as it has been held repeatedly(1)
- and has indeed been reiterated in the present judgment - that
Article 6 (art. 6):
[only](2) extends to "contestations" (disputes) over
(civil) "rights and obligations" which can be said, at
least on arguable grounds(3), to be recognised under
domestic law".
_______________
(1) See, amongst other judgments cited below: the Lithgow and Others
v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70,
para. 192, the W. v. the United Kingdom judgment of 8 July 1987, Series
A no 121, p. 32, para. 73, the Pudas v. Sweden judgment of
27 October 1987, Series A no 125-A, p. 13, para. 30, and the H.
v. Belgium judgment of 30 November 1987, Series A no 127-B, p. 31,
para. 40.
(2) Beginning with the Neves e Silva v. Portugal judgment of 27 April
1989 (see p. 61, note 4, below [our footnote (25)]) the word "only" has
been dropped, which makes the formula rather ambiguous; I take it,
however, that the formula still is to be understood in a restrictive
sense.
(3) Emphasis added.
_______________
However, making the applicability of Article 6
(art. 6) conditional on whether or not the applicant's claim as to his
(civil)(4) rights and obligations is "arguable" is justified - if at
all - only where the complaint to the Convention institutions concerns
lack of access to a tribunal fulfilling the conditions of paragraph 1
of this provision. Where the applicant protests that the national
court which has adjudicated on his claim lacked independence, was not
impartial, denied him a public hearing, did not decide within a
reasonable time or otherwise disregarded principles of a fair hearing,
there is no room for the "arguability" test.
_______________
(4) The Court itself usually puts the word "civil" between brackets;
I would merely add that in this opinion I am only concerned with the
arguability of "rights and obligations" as such; whether or not those
rights and obligations are "civil" within the meaning of Article 6
(art. 6) is, also in my opinion, decisive both in cases where the right
of access to a court is at stake and in cases where other violations
of Article 6 para. 1 (art. 6-1) are alleged; that point, however, does
not enter into the present discussion.
_______________
3.1 Before presenting my arguments for this opinion I will
try to ascertain the meaning of the "arguability" test: what does the
Court mean exactly when it requires that there must be a dispute over
"rights and obligations" which can be said, at least on arguable
grounds, to be recognised under domestic law?
To answer this question, an inquiry into the genesis
of the formula is, if not indispensable, at any rate rewarding.
3.2.1 In the context of Article 6 (art. 6) the "arguability" test
emerged firstly in paragraph 55 of the Ashingdane v. the United Kingdom
judgment of 28 May 1985(5) with regard to a complaint about lack of
access to a court. In that paragraph the Court referred to
paragraph 44 of its Le Compte, Van Leuven and De Meyere v. Belgium
judgment of 23 June 1981(6) and to paragraph 81 of its Sporrong and
Lönnroth v. Sweden judgment of 23 September 1982(7). However, neither
of these judgments used the formula introduced in paragraph 55 of the
Ashingdane judgment, according to which the "right to a court" "may be
relied on by anyone who considers on arguable grounds(8) that an
interference with his (civil) rights is unlawful". What the Court
actually said in the first of these judgments will be quoted in
paragraph 3.2.2 below. What the Court in its Sporrong and Lönnroth
judgment actually found to be decisive for holding Article 6 (art. 6)
to be applicable was that there existed a difference of view between
the applicants and the authorities as to the lawfulness of certain
measures affecting the applicants' property rights and that this
difference was of a serious nature(9).
_______________
(5) Series A no. 93, p. 24.
(6) Series A no. 43, p. 20.
(7) Series A no. 52, p. 30.
(8) Emphasis added.
(9) See also the Benthem v. the Netherlands judgment of 23 October
1985, Series A no. 97, p. 15, para. 32, sub-paragraph (c) and the Van
Marle and Others v. the Netherlands judgment of 26 June 1986, Series
A no. 101, p. 11, para. 32, sub-paragraph (b).
_______________
3.2.2 The meaning of the latter formula can only be understood in the
light of the Court's originally rather broad wording of the right of
access to a court implied in Article 6 para. 1 (art. 6-1). In its
Golder v. the United Kingdom judgment of 21 February 1975(10) the Court
said that Article 6 para. 1 (art. 6-1):
"secures to everyone the right to have any claim(11)
relating to his civil rights and obligations brought
before a court";
and in its above-mentioned Le Compte, Van Leuven and De Meyere judgment
it inferred therefrom that Article 6 (art. 6):
"may be relied on by anyone who considers(12) that an
interference with the exercise of one of his (civil)
rights is unlawful".
_______________
(10) Series A no. 18, p. 18, para. 36.
(11) Emphasis added.
(12) Emphasis added.
_______________
The latter wording had evidently been borrowed from
paragraph 64 of the Klass and Others v. Germany judgment
6 September 1978(13) where the Court used similarly broad terms when
it held that Article 13 (art. 13):
"requires that where an individual considers
himself(14) to have been prejudiced by a measure
allegedly in breach of the Convention, he should have
a remedy"
and concluded that Article 13 (art. 13) thus guarantees an "effective
remedy before a national authority"
"to everyone who claims(15) that his rights and
freedoms under the Convention have been violated".
_______________
(13) Series A no. 28, p. 29, para. 64.
(14) Emphasis added.
(15) In italics in the judgment.
_______________
3.2.3 In this older case-law both "rights of access" had thus been
made conditional on the mere subjective views of the individual
concerned. Apparently the Court felt that this went a little too far
and that there was a need for some restriction allowing for a certain
measure of control by the Convention institutions. In its Sporrong and
Lönnroth judgment it formulated this restriction - in the context of
the right of access to a court under Article 6 (art. 6) - by requiring
that the dispute must be "genuine and of a serious nature". In its
Silver and Others v. the United Kingdom judgment of 25 March 1983(16)
it had - in the context of the right of access to a national authority
under Article 13 (art. 13) - introduced a differently worded test
reformulating its above-quoted Klass decision by saying that
"where an individual has an arguable claim(17) to be
a victim of a violation of the rights set forth in the
Convention, he should have a remedy before a national
authority".
_______________
(16) Series A no. 61, p. 42, para. 113.
(17) Emphasis added.
_______________
In its above-mentioned Ashingdane judgment the Court evidently
came to the conclusion that the latter test served the same purpose as
the former and therefore adopted it also with regard to the right of
access to a court under Article 6 (art. 6), thus bringing both rights
of access in line as far as the said restriction is concerned.
This then led to the adoption - in paragraph 81 of the
James and Others v. the United Kingdom judgment of 21 February
1986(18) - of the formula quoted in paragraph 2 above. Although that
formula was then adopted in the context of a complaint about lack of
access to a court, its wording is such that it appears to be a general
prerequisite for the applicability of Article 6 (art. 6). Hinc
lacrimae.
_______________
(18) Series A no 98, p. 46.
_______________
3.3 The analysis of the formula's genesis in paragraph 3.2
makes it clear that it serves only a rather limited purpose. It seems
reasonable to suppose that its introduction was connected with the
"victim" requirement of Article 25 (art. 25). In principle it does not
suffice for an individual applicant to allege that in a particular
member State it is impossible to bring claims of a certain type before
the courts; the lack of access complained of must actually have been
detrimental to him. Apparently the Court considered that the latter
requirement was only met when the claim which allegedly could not be
brought before a court (or before a national authority) had at least
some verifiable basis in fact as well as in law.
Accordingly, the "arguability" test has nothing to do
with the chances of success of the applicant's action had it been
possible for him to bring it before a national court. It is not for
the European Court to express an opinion on those chances(19). The
Convention institutions need only be satisfied that the claim is
"arguable" in the sense that it finds support in demonstrable facts and
is not clearly excluded by national law. The James and Others judgment
seeks to justify the latter part of this restriction by claiming that
neither Article 6 (art. 6) nor Article 13 (art. 13) requires that there
be a national court with competence to invalidate or override national
law(20).
_______________
(19) See the Baraona v. Portugal judgment of 8 July 1987, Series A
no. 122, p. 17, para. 40 in fine.
(20) Series A no 98, p. 46, para. 81, and p. 47, para. 85.
_______________
3.4 Even thus narrowly construed, the formula is open to
the criticism levelled at it by Judge Lagergren in his separate opinion
in the Ashingdane judgment. In substance Judge Lagergren argued that,
whereas - in order to guarantee equality of rights under the
Convention - the terms "rights" and "obligations" in Article 6
para. 1 (art. 6-1) should be taken to have an autonomous meaning, it
cannot be accepted that the right of access to a court depends on
whether, in a certain factual situation, national law does or does not
permit the bringing of an action for interference with a "right" or
non-fulfilment of an "obligation". This criticism has since then been
subscribed to by many other judges(21). In the present case it is,
however, not necessary for me to take a stand as to whether I also
subscribe to it. I only draw attention to that criticism in order to
make it clear that already in the context of a complaint about lack of
access to a court the "arguability" test is questionable.
_______________
(21) See, among others: the joint separate opinion of Judges Lagergren,
Pinheiro Farinha, Pettiti, Macdonald, De Meyer and Valticos in the case
of W. v. the United Kingdom, Series A no. 121, p. 39, and the separate
opinion of Judge De Meyer in the case of H. v. Belgium, Series A
no. 127-B, p. 48.
_______________
4.1 This is, at the same time, the first argument for not
applying that test with regard to other complaints under Article 6
para. 1 (art. 6-1), such as indicated at the end of paragraph 2
(art. 6-2) above. In the context of a complaint about lack of access
the test, however open to criticism, may be indispensable in order to
enable the Convention institutions to control whether the applicant is
a victim (by ascertaining whether the claim which is the object of his
complaint has at least a minimum of reality and seriousness). Where
the applicant has in fact had access to a court which has decided on
the merits of his claim, such control is superfluous, with the result
that it is not necessary to resort to a test which is open to serious
criticism.
4.2 I have to admit, however, that the Court - undoubtedly
as a consequence of the general character of the formula introduced by
its James and Others judgment to which I have already drawn attention
(see paragraph 3.2.3 above) - has applied the "arguability" test
several times(22) in cases of the latter type: see paragraph 41 of its
Baraona judgment of 8 July 1987(23); paragraphs 40-43 of its H. v.
Belgium judgment of 30 November 1987(24); paragraph 37 of its Neves e
Silva judgment of 25 May 1989(25); and paragraph 38 of its Editions
Périscope v. France judgment of 26 March 1992(26).
_______________
(22) It is worth wile to note, however, that where in cases of this
type the applicability of Article 6 para. 1 (art. 6-1) is contested,
the point is sometimes decided without any reference to arguability at
all; see, for instance, the Håkansson and Sturesson v. Sweden judgment
of 21 February 1990, Series A no. 171, p. 19, para. 60.
(23) See p. 60, note 1, above [our footnote (19)].
(24) Series A no. 127, pp. 31-32.
(25) Series A no. 153-A, p. 14.
(26) Series A no. 234-B, p. 65.
_______________
It should, however, be noted that on every occasion the
Court concluded that the requirement was met and that the applicant had
an arguable case. Furthermore, it should be noted that in the latter
two judgments the Court stressed the marginal character of the test by
holding that "for the purposes of Article 6 para. 1 (art. 6-1) it is
enough to determine" whether the applicant's arguments "were
sufficiently tenable" and that in its judgment of 26 March 1992 it
indicated that the mere fact that the national courts have ruled on the
merits of the case suffices for holding that this requirement is
fulfilled, even where these courts have dismissed the applicant's
claim(27). This suggests that, in the context of complaints concerning
a violation of Article 6 (art. 6) by courts which have ruled on the
merits of the applicant's case, the "arguability" test has been
virtually abandoned.
_______________
(27) In paragraph 41 of its aforementioned Baroana judgment (see
page 60, note 1 [our footnote (19)], above) the Court had already
thought fit to point out that the national court had given a
preliminary decision declaring the applicant's case admissible and the
State did not appeal.
_______________
4.3 One must indeed query what useful purpose is served by
applying the "arguability" test - construed as indicated in paragraph
3.3 above - where the applicant has actually had access to a court
which has given judgment on the merits of his claim but, according to
the applicant, in doing so has violated the requirements of Article 6
para. 1 (art. 6-1) either because it did not offer the guarantees
required by that provision or because it disregarded principles of a
fair hearing. When the applicant has won his case but complains about
the length of the proceedings, could this Court still hold that he had
no arguable claim and therefore refuse to examine his complaint? And
when an applicant who has lost his case brings the same complaint, why
should the Court refuse to examine it on the mere ground that it was
to be expected that the national courts would reject the applicant's
claim as it was not "arguable"? Was the applicant in such cases
perhaps not a victim of a violation of the obligation to determine his
(civil) rights and obligations within a reasonable time?
In my opinion, there is a violation of Article 6
(art. 6) if the plaintiff is told that his claim does not find support
in the facts - or is excluded by the law - only after an unreasonable
time. Or if he is so told by a court which lacks the required
independence or impartiality. Such violations of general principles
of the proper administration of justice have nothing to do with the
quality of the claim brought before the courts. The hearing of
non-arguable claims should also be fair.