CYIL vol. 15 (2024)

PETR KONŮPKA votes to three. The dissenting judges criticized the majority’s approach in very strong terms; they described it as ultra vires. The matter was taken up for reconsideration before the Grand Chamber. It held that a complaint is comprised of two interrelated aspects – factual allegations and legal arguments. The applicant must allege that a particular act or omission gave rise to a particular violation of Convention rights. It is not sufficient that the violation of rights is evident from the circumstances of the case or the applicant’s submissions. The applicant must formulate their complaint in fact and in law in such a way that there is no doubt as to what in their opinion constitutes a violation of a particular right set forth in the Convention; the Court cannot and must not replace them in this respect. In the present case, since the applicant did not formulate his complaint that the Disciplinary Chamber of the Supreme Administrative Court could not be regarded as a tribunal within the meaning of Article 6 of the Convention and he was thus denied access to a court until after the Court’s questions had been put to the parties and, therefore, after the expiry of the six-month time-limit for lodging an application, the Grand Chamber of the Court declared the complaint as lodged out of time. In FU QUAN, s.r.o., the situation was similar at its core. The applicant sought compensation against the state for the loss of value of the goods seized during criminal proceedings against both of its managing directors. It identified the decision to take the directors into custody as the reason for the damage. The Court of First Instance dismissed the action on the grounds that an action for compensation for damage caused by an unlawful decision may be brought only by a person who was a party to the proceedings in which the decision was taken. The applicant company argued before the higher courts that that interpretation of the law was too formalistic, since the company was also subject to detention in a figurative sense when both of its managing directors were in detention. Since the courts had not found in its favour, the applicant company raised the same objection before the Court. In response to the Government’s observations, however, the applicant changed its argument and argued that it was in fact too formalistic for the Czech courts not to have treated its action as an action against an irregular official conduct. A Chamber of the Court agreed with the applicant and found that there had been a violation of its right of access to a court. However, the Grand Chamber of the Court held, as in Grosam, that a complaint consists of a combination of factual allegations and legal arguments. The Strasbourg Court can only rule on a complaint which has been raised, including legal arguments, before the national courts. That was not the case in the present application. The Grand Chamber, therefore, declared the complaint inadmissible. The two Grand Chamber judgments thus do not bring anything new to the development of the case-law regarding the merits of the cases at issue – the parameters of disciplinary proceedings against enforcement officers or the seizure of assets in criminal proceedings. They are, however, significant in that they define more precisely what constitutes a complaint on which the Court is empowered to rule and emphasise that a complaint must be raised before the national courts and then subsequently before the Court in substantially the same way. Those conclusions are of a general nature and apply in relation to applications alleging a violation of any right enshrined in the Convention. That is the message and significance of both judgments to anyone who wishes to approach the Court.

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