CASE OF AVDIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

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

FINAL

19/02/2014

This judgment has become final under 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

1. 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.

2. 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.

3. The applicants alleged, in particular, that they had been denied access to court.

4. 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

5. 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

6. 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.

7. On 27 November 2007 the applicant lodged a constitutional appeal.

8. 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

9. 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.

10. 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.

11. On 2 October 2009 the applicant lodged a constitutional appeal.

12. 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

13. 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.

14. 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.

15. 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.

16. 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

17. 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.”

18. 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

19. 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

20. 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

21. 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.

22. The applicants disagreed.

2. The Court’s assessment

23. 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).

24. 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.

25. 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).

26. 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.

27. The Government’s first objection in both cases must accordingly be dismissed.

28. 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

29. 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.

30. 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

31. 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).

32. 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.

35. 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.

36. 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.

37. 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).

38. 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).

39. 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

40. 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

41. 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

42. 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.

43. 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.

44. Mr Kovačević claimed EUR 113,712 in respect of pecuniary damage (lost earnings) and EUR 20,000 in respect of non-pecuniary damage.

45. The Government considered the amounts claimed excessive and unjustified.

46. 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

47. 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.

48. Mr Adamović did not claim any costs and expenses

49. 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.

50. The Government considered the amounts claimed excessive and unjustified.

51. 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.

52. 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.

53. 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

54. 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-PassosIneta Ziemele
RegistrarPresident

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.

5. 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.

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