MALONE v. THE UNITED KINGDOM JUGDMENT
PARTIALLY DISSENTING OPINION OF JUDGES MATSCHER AND PINHEIRO
FARINHA
37
PARTIALLY DISSENTING OPINION OF JUDGES
MATSCHER AND PINHEIRO FARINHA
(Translation)
We recognise that Article 13 (art. 13) constitutes one of the most obscure
clauses in the Convention and that its application raises extremely difficult
and complicated problems of interpretation. This is probably the reason
why, for approximately two decades, the Convention institutions avoided
analysing this provision, for the most part advancing barely convincing
reasons.
It is only in the last few years that the Court, aware of its function of
interpreting and ensuring the application of all the Articles of the
Convention whenever called on to do so by the parties or the Commission
has also embarked upon the interpretation of Article 13 (art. 13). We refer in
particular to the judgments in the cases of Klass and Others (Series A no.
28, paras. 61 et seq.), Sporrong and Lönnroth (Series A no. 52, para. 88),
Silver and Others (Series A no. 61, paras. 109 et seq.) and, most recently,
Campbell and Fell (Series A no. 80, paras. 124 et seq.), where the Court has
laid the foundation for a coherent interpretation of this provision.
Having regard to this welcome development, we cannot, to our regret,
concur with the opinion of the majority of the Court who felt able to forego
examining the allegation of a breach of Article 13 (art. 13). In so doing, the
majority, without offering the slightest justification, have departed from the
line taken inter alia in the Silver and Others judgment, which was concerned
with legal issues very similar to those forming the object of the present case.
Indeed, applying the approach followed in the Silver and Others
judgment, the Court ought in the present case, and to the same extent, to
have arrived at a finding of a violation of Article 13 (art. 13).