MARCKX v. BELGIUM JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 36 DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE I. The issue of applicability in general 1. I am obliged to call this a "dissenting" opinion because, although I have voted with the majority of the Court on a number of points1, I disagree with it on all those that are fundamental to the main issues involved, and on which the Court has found in favour of the applicants’ claims - these being also the points on which the others for the most part depend. 2. Leaving aside the question of the status of each of the applicants as an alleged "victim" within the meaning of Article 25 (art. 25) of the European Convention on Human Rights - a question which I discuss in the postscript to the present opinion - the chief of the fundamental issues involved by the case is that of the applicability or scope of Article 8 (art. 8) of the Convention - of its applicability or relevance in any way at all to the particular complaints made by or on behalf of the applicants. Another principal issue is that of the applicability of Article 1 of Protocol No. 1 to the Convention (P1-1). These two issues automatically involve the question of the applicability of Article 14 (art. 14) of the Convention to which I shall come. As regards the claims made under other provisions, viz Articles 3, 12 and 50 (art. 3, art. 12, art. 50), either these also depend on the same, or similar, fundamental issues, or else they would not be worth pursuing in isolation - and in any case the Court has found against the applicants’ claims put forward under these three Articles (art. 3, art. 12, art. 50) - a finding in which I concurred. 3. The question of the applicability of a legal provision - it should hardly be necessary to say so - is quite distinct juridically from that of whether there has been a breach of that provision in any particular instance. Issues of applicability or scope are therefore strictly preliminary ones. A provision (rule, section, clause, article, etc) is applicable in any given case, at least prima facie, if it relates to the class, category, order, type or kind of subjectmatter to which the claim or complaint itself, as made in that case, relates, and/or is concerned with the facts, events or circumstances involved in such case. If it does not - if it deals with something different or not so comprised - then clearly it is irrelevant to the claim or complaint, and the question of a possible breach of the Convention does not arise. There cannot, in the given case, be a breach of a provision that has no application in that case - i.e. viz. (referring to the concluding, operational and vote-recording paragraph of the Court's judgment), on points 8, 9, 11 and 16, in respect of which the Court's finding was unanimous in rejection of the applicants' claims; and also on point 17, in respect of which there was a majority in favour of such rejection. 1