ITEMID: 001-78943
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF AUGUSTO v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Domestic and Convention proceedings (global)
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1936 and lives in Vouziers.
5. By a decision of 17 May 1996 the occupational counselling and redeployment board (“the COTOREP”) gave the applicant a 50 to 79% disability rating and issued her with a card certifying that she found it difficult to remain in a standing position.
6. On 6 August 1996, the regional health insurance fund (“the CRAM”) for the North-East region rejected the applicant’s request for a retirement pension as of 1 June 1996 on the basis of her incapacity to work, on the ground that she was not at least 50% disabled.
7. On 13 December 1996 the disability claims tribunal upheld the CRAM’s decision.
8. The applicant appealed to the national tribunal for claims relating to disability and level of insurance coverage for accidents at work (“the CNITAAT”), submitting a number of medical certificates attesting to her state of health and relying on the COTOREP’s decision of 17 May 1996.
9. In a decision of 24 November 1997, the CNITAAT upheld the decision of the disability claims tribunal, stating the following reasons:
“The rate of disability comprised between 50% and 79% acknowledged for the purposes of issuing the card certifying that it is “difficult to remain in a standing position” is not calculated using the same assessment criteria as the rate applicable in the present case, so this ground of appeal cannot be upheld;
The accredited doctor of the national tribunal for claims relating to disability and level of insurance coverage for accidents at work observes the following:
‘The subject shows signs of preexisting injuries: fracture of the 4th sacral vertebra in 1965, fracture of the left kneecap that was pinned and wired in 1990, fracture of the lower right tibia in 1994.
No after-effects in the region of the sacrum are mentioned. The left knee is slightly limited in flexion and shows mild gonarthrosis, and there is lateral calcification of the patella. No after-effects in the left ankle are reported.
There is arthrosis of the whole spinal column, with degenerative discopathy at L5S1. It is mild arthrosis, not unusual at the subject’s age, with only a slight loss of flexibility of the different segments of the spine. Episodic onsets of sciatica and cervicobrachial neuralgia are reported in the case history. There are no signs of herniated lumbar disk .
There is calcifying periarthritis of the left shoulder, but it does not restrict movement. The same applies to the arthrosis at the base of the right thumb.’
He concludes that:
‘On 1 June 1996 the subject was in a fit state to carry on working without seriously jeopardising her health and, considering her physical and mental fitness for work, did not suffer from a permanent incapacity to work of at least 50%’;
In the light of the above medical opinion, the documents in the file and the criteria laid down in Articles L. 351-7 and R. 35121 of the Social Security Code, the national tribunal for claims relating to disability and level of insurance coverage for accidents at work decides to uphold the impugned decision ...”
10. The applicant lodged a notice of appeal on points of law on 27 May 1998. In further pleadings her lawyer filed with the Court of Cassation on 23 October 1998, she invoked, inter alia, a violation of “the requirements of the rights of the defence” and of “equality of arms in a fair trial within the meaning of Article 6” of the Convention, in that the report by the CNITAAT’s accredited doctor, drawn up solely on the basis of documents, had not been made available to her or to the doctor she had appointed to submit observations.
11. By a judgment of 2 March 2000 the Employment and Welfare Division of the Court of Cassation dismissed the applicant’s appeal in the following terms:
“... on the one hand, the accredited doctor instructed, under the terms of Article R. 14328 of the Social Security Code then in force, to carry out a preliminary review of the case, simply gives an opinion to the national disability tribunal without submitting an expert report for adversarial discussion by the parties;
Without laying itself open to the objection raised in the ground of appeal, the national disability tribunal, in the light of the findings of its accredited doctor and having analysed the different evidence adduced, considered, as it was within its exclusive jurisdiction to do, that Ms Augusto’s disability rate – the COTOREP evaluation of which was not binding on it – was less than 50%, and that the applicant was therefore not entitled to a retirement pension on the ground of incapacity to work;
For these reasons,
the appeal ... is dismissed.”
12. The rules governing the powers, organisation and operation of social security courts and procedure before them are laid down in the Social Security Code. Alongside the general social security claims department there is a “technical claims” department which deals with claims concerning the existence or seriousness of a disability, the rate of permanent disability in the event of an occupational accident or disease and the incapacity to work taken into account by the old-age insurance scheme. Such claims are submitted in the first instance to the disability claims tribunal, and appeals are heard by the CNITAAT, whose decisions are in turn subject to appeal on points of law.
13. Articles L. 143-3, R. 143-15, R. 143-16, R. 143-30 and R. 143-32 of the Social Security Code stipulate that the CNITAAT is composed of sections, each with five members, as follows:
- one president, who is a practising or honorary administrative or ordinary court judge and is appointed for an indefinite period by joint decision of the Minister of Justice and the Minister responsible for Social Security or Agriculture (depending on the nature of the case being considered);
- two members who are practising or honorary administrative or ordinary court judges or A-grade civil servants from the Ministry responsible for Social Security or for Agriculture, appointed by joint decision of the Minister of Justice and the Minister responsible for Social Security or Agriculture;
- two non-presiding judges (assesseurs), one a salaried employee and one an employer or self-employed person, appointed for five years from a list drawn up by the Minister responsible for Social Security or Agriculture, from candidates nominated by the most representative trade organisations concerned.
14. Article R. 143-25 stipulates that upon receipt of the notice of appeal the secretary of the tribunal shall invite the parties to present their written observations, in memorial form, within twenty days, together, where applicable, with those of the doctor they have appointed to assist or represent them. The secretary is also responsible for transmitting the documents to the parties, or to the doctors appointed by them if the documents contain medical information. The parties may then submit further observations in reply within twenty days.
15. The section president appoints a rapporteur for each case from among the members of the section or possibly from a list of people drawn up by order of the Minister responsible for Social Security or Agriculture, as appropriate. Rapporteurs who are not members of the section do not vote (Article R. 143-27).
16. The CNITAAT must have any file submitted to it on appeal examined initially by an accredited doctor, chosen from a list drawn up by order of the Minister responsible for Social Security or Agriculture. It may also consult qualified experts as and when deemed necessary. If it does this, the experts’ reports are communicated to each party, or to the doctors appointed by them if they are medical reports (Articles R. 143-28 and R. 143-29).
17. By virtue of Article R. 143-19 the ministers responsible for Social Security or Agriculture or their representatives “may present written or oral observations” to the court.
18. Under Article R. 143-29 the CNITAAT “shall rule solely on the basis of documents”. No provision of the Social Security Code provides for the communication to the insured party of the report by the rapporteur or the opinion of the qualified doctor, who are appointed by the court under the above-mentioned Articles R. 143-27 and R. 14328.
19. The CNITAAT delivers its judgment at a public hearing (Article R. 14333).
20. The Employment and Welfare Division of the Court of Cassation has ruled that the procedure before the CNITAAT did not infringe the rights of the defence in that it ruled on the basis of documents without informing the parties of the accredited doctor’s opinion (Cass. soc. 10 October 1996, D. 1996, IR 256) and, in eight judgments delivered on the same day in 1998, that the procedure was in conformity with the requirements of Article 6 § 1 of the Convention in respect of both the right to an independent and impartial tribunal – with reference to the composition of the CNITAAT – and the adversarial principle – with regard to medical documents on which it had based its decision and which were not communicated to the parties (Cass. soc. 28 May 1998, Bull. no. 290; RJS 1998, no. 921; JCP E 1998, pan. p. 1123, obs. F. Taquet). The Court of Cassation has also decided that ground relating to the lack of a public hearing before the CNITAAT could not be upheld where it had been invoked before it for the first time as a ground of appeal and the insured party had not requested a public hearing in the pleadings before the CNITAAT (Cass. soc. 15 May 1997, RJS 1997, no. 754).
21. In a judgment of 17 December 1998 (RJS 1999, no. 436), the Employment and Welfare Division of the Court of Cassation found that the disability claims tribunal was not an independant and impartial tribunal within the meaning of Article 6 § 1 of the Convention, as it was chaired by a civil servant answering to a hierarchy linked to the health insurance fund, which was a party to the claim.
22. In his submissions in that case, for the attention of the Court of Cassation, the Advocate-General P. LyonCaen stated, inter alia (see Liaisons sociales, 1999, jurisp. no. 637):
“This is not the first time [Article 6 § 1 of the Convention] has been invoked before you in respect of the social security’s technical claims departments. Hitherto, however, you have considered the complaints unfounded, particularly with regard to the national tribunal for claims relating to disability and level of insurance coverage for accidents at work ...”
23. In its 1998 annual report (p. 19, section on suggestions for legislative or regulatory amendments), published in April 1999, the Court of Cassation expressed doubts as to the compatibility of the procedure before the CNITAAT with the guarantees of the right to a fair trial enshrined in Article 6 § 1 of the Convention, in respect of:
- the composition of the tribunal, whose members include civil servants who are part of a hierarchy, in violation of the right to an independant and impartial tribunal;
- the fact that it rules solely on the basis of documents, in violation of the principle of the public character of proceedings;
- the prior examination of the file by an accredited doctor, which circumvents the adversarial principle if the opinion is not communicated to the parties. In this connection the Court of Cassation considered that even if the accredited doctor did not have expert status, the communication of his opinion to a doctor the interested party has been invited to designate should be envisaged.
24. In five judgments on 22 December 2000 (Bull. no. 12; RJS 2001, no. 366), the Court of Cassation, sitting as a full court, departed from its case-law and found the procedure applicable before the CNITAAT incompatible with Article 6 § 1 of the Convention on the three points singled out by the Court of Cassation in its above-mentioned report.
25. In his submissions on four of these cases, for the attention of the Court of Cassation, Advocate-General P. LyonCaen explained, inter alia:
“It is evident not only that the civil servants who sit on the CNITAAT enjoy no specific guarantee as to their freedom of decision in the discharge of their judicial duties, but that the minister in charge of the administrative entity to which they belong has control over the Social Security through a directorate of his ministry and the regional directors of health and social affairs, who themselves, on behalf of the State and under the authority of the regional Prefect, have control over the primary social security funds and the areas they cover.
However, the decisions challenged before the CNITAAT are decisions of the social security funds, and these funds are more often than not also parties to the proceedings. ...
The fact that these civil servants are appointed for unlimited periods and that their judicial activities may be terminated at any time makes their situation more precarious and adds concern about their independence to the doubts about their impartiality.
... As regards the other categories of members of the CNITAAT, their appointment by the Minister responsible for Social Security or the fact that the minister draws up the list from which they are chosen, even if the trade organisations do make proposals – leaving the possibility for the minister to make choices – , the fact that they are all appointed for an unlimited period, which means that the minister can remove them at any time, including judges, who are therefore not irremovable, with the exception of those representing employees and employers, who are appointed for five years but whose term of office the minister may or may not renew, and the lack of guarantees in the discharge of their judicial duties are all factors that undermine the independence and impartiality of this tribunal.
... What clearly applies to the composition of the CNITAAT also applies to how it operates and could also be raised of the tribunal’s own motion.
Thus does the national court actually operate with the compulsory assistance, in every case, of an “accredited doctor” and a rapporteur, who is generally not a member of the tribunal: however, not only are these collaborators remunerated on a case-by-case basis, from the budget of the Ministry in charge of Social Security, but they are chosen from lists drawn up by the same ministry, and most of the rapporteurs are active or retired members of the ministry’s staff, or active or former employees of the social security funds ...
Furthermore, Article R. 143-19 of the Social Security Code provides for the minister responsible for Social Security – whose powers over this court are to all appearances already great – to be able to submit written or oral observations to the CNITAAT. This provision – which he does not seem to have made use of in any of the cases before you – is clearly an infringement of equality of arms, and therefore of the right to a fair trial and Article 6.1. In particular, this possibility of presenting oral observations means that the minister must be informed of the hearing and familiar with the accredited doctor’s opinion and the report, two “privileges” denied to the other parties ...”
26. In the meantime, and subsequently, decrees nos. 99-449 and 2003614 of 2 June 1999 and 3 July 2003 and Law no. 2002-73 of 17 January 2002 were enacted to reform the procedure applicable before the disability claims tribunal and the CNITAAT (legal and regulatory part of the Social Security Code). Concerning the CNITAAT, the relevant provisions are the following:
27. Article L. 143-3 stipulates that it shall henceforth be composed of: a president, who is a judge in the court of appeal of the jurisdiction in which the tribunal’s seat is located, appointed for three years in the same way as court of appeal judges are appointed; section presidents, who are judges in the same court of appeal, appointed for three years by order of the president, and judges (assesseurs) representing salaried workers on the one hand and employers or self-employed people on the other, appointed for renewable three-year periods by decree of the Minister of Justice from a list drawn up by the President of the Court of Cassation on the proposal of the most representative trade organisations concerned.
28. Each section whall be composed of its president and two assesseurs (Article L. 1436). The withdrawal of an assesseur may be requested if he or she has had prior dealings with the case as an adviser or if there is a relationship of subordination between the assesseur or his or her spouse and one of the parties and his or her spouse (Article L. 1438).
29. By virtue of Article R. 143-25 the procedure for communicating memorials and documents remains unchanged and is the responsibility of the secretariat of the tribunal (see old rules, above). Henceforth the parties may also present new medical evidence in reply.
30. The role of the accredited doctor has disappeared, as has that of the rapporteur. Articles R. 14327 and R. 14328 provide henceforth for the president of the section in charge of the case to be able to appoint one or more medical consultants or experts, in an advisory capacity, “to examine the medical file submitted to the [tribunal]”. A copy of the “consultant’s or expert’s report” is then addressed to each party or the doctor appointed by him or her if it is a medical report, who then has twenty days to file written observations.
31. In the same letter the section president informs the parties of the close of the investigation and the date of the hearing, which is public. At the hearing the parties or their representatives may present oral observations once the section president has presented his report (Article R. 14326).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85426
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BORISOV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicants are five individuals and the Roma Church in Bulgaria (“the applicant organisation”), an organisation founded by them.
The five individual applicants, Mr Boris Petkov Borisov, Mr Georgi Alexandrov Kirilov, Ms Iskra Borisova Mladenova, Mr Tassi Tsenov Tassev and Mr Petko Borisov Traikov are Bulgarian nationals who lived at the relevant time in the city of Lom.
The applicant organisation was founded in 1999.
All applicants were represented before the Court by Ms R. Nehrizova and Ms N. Stefanova, lawyers practising in Sofia. The respondent Government were represented by their Agent Ms M. Karadjova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
One of the applicants, Mr Borisov used to be a religious minister in the Baptist Church in Lom until August 1996, when he was dismissed.
Thereafter, Mr Borisov started organising religious meetings in a house in Lom where the individual applicants and other persons prayed and discussed religious matters.
It appears that the house in question belonged to the Baptist Church in Lom. It was built by their followers who had donated money and worked on the site.
Mr Borisov, however, claimed that the house belonged to him.
According to the applicants, in 1997 and 1998 police officers allegedly visited the prayer house at least three times and told the participants that religious activities without registration as a religious community were not allowed. Each time the participants were allegedly ordered to leave.
The applicants never submitted complaints in respect of those alleged events.
On 27 April 1998 Mr Borisov was allegedly taken by police officers from his brother’s home and detained “for a week”. He was allegedly questioned about his religious beliefs and activities and warned against conducting religious services without registration.
It appears that on an unspecified date the Baptist Church in Lom took possession of the disputed house. According to the applicants, this happened with the assistance of the police.
In 2004, Mr Borisov wrote a complaint to the prosecuting authorities about a number of different events, including property disputes and his application for welfare payments, and also stated that in 1998 he had been detained unlawfully. By decisions of 10 May and 12 July 2004 the relevant prosecutors refused to open criminal proceedings noting that some of his complaints concerned civil law disputes and that after verification his allegation that he had been detained in 1998 had proved groundless.
At a meeting on 3 May 1999 the individual applicants and 30 other individuals, residents of Lom, founded the applicant organisation, the Roma Church in Bulgaria. They approved its statute and elected its governing council. Mr Borisov was elected its President.
In accordance with the applicant organisation’s Statute, it would engage in Bible studies, prayers and charity.
On 3 June 1999 the applicant organisation applied to the Council of Ministers for registration as a religious denomination under the Religious Denominations Act.
As no reply was received, on 13 July 1999 an appeal was filed with the Supreme Administrative Court against the tacit refusal of the Council of Ministers.
On 21 September 1999 the Council of Ministers replied to the application for registration by letter. It stated, inter alia, that the applicant organisation’s submissions did not provide sufficient information about the religion it practiced and thus did not permit a conclusion that the applicant organisation had the characteristic features of a distinct religious denomination. The letter, which was apparently made on a model form used in similar circumstances, stated that the applicant organisation should rectify the deficiencies in its application.
In the proceedings before the Supreme Administrative Court the parties made written submissions. The Council of Ministers stated, inter alia, that the applicant organisation had been invited to submit additional information and explain the features that characterised it as a distinct religious denomination. The applicant organisation had not replied.
By decision of 3 December 1999 the Supreme Administrative Court rejected the appeal as inadmissible. It found that the registration proceedings were pending before the Council of Ministers which had invited the applicant organisation to rectify its application. The applicant organisation had not replied. Therefore, there had not been a tacit refusal and the appeal was premature.
Upon the applicant organisation’s appeal, on 26 January 2000 a five-member chamber of the Supreme Administrative Court upheld the decision of 3 December 1999.
The applicant organisation never replied to the Council of Minister’s letter of 21 September 1999.
In 2001 Mr Borisov was officially registered as the local leader of another religious organisation, the Evangelic Pentecostal Church in Kriva Bara, the region of Montana.
There is no provision of Bulgarian law requiring a religious group organising public religious activities to register as a legal person. Nonetheless, at the relevant time, the police often disrupted religious meetings of unregistered groups. In administrative practice, the view according to which religious activities were not allowed without registration was widespread (see the facts in Khristiansko sdruzhenie Svideteli na Jehova v. Bulgaria, no. 28626/98, Commission’s decision of 3 July 1997 and Lotter and Lotter v. Bulgaria (dec.), no. 39015/97, 6 February 2003 and Al-Nashif v. Bulgaria, no. 50963/99, §§ 29 and 59-61, 20 June 2002).
In its judgment no. 3270 of 14 May 2001 in case no. 2174/2000, the Supreme Administrative Court observed that the relevant law did not impose an obligation for a religious group to register and that the view that registration was a necessary pre-condition for religious gatherings was contra legem.
The Religious Denominations Act 2003, which superseded earlier legislation, does not require registration as a pre-condition for public religious gatherings.
At the relevant time and until 1 January 2003, a religious group wishing to obtain registration as a legal person could register at the local regional court as an association under section 133a of the Persons and Family Act, with the authorisation of the Council of Ministers. At the relevant time several dozen religious groups belonging to various religions were registered as associations.
Separately, religious denominations were subject to registration in accordance with the Religious Denominations Act 1949, as in force at the relevant time and until 1 January 2003. The Bulgarian Orthodox Church, the Muslim community, the Jewish community, the Catholic Church, several protestant churches and other religions were registered as religious denominations in Bulgaria.
On 1 January 2003 the Religious Denominations Act 2003 entered into force. It introduced changes in the registration procedure for religious denominations. It also repealed section 133a of the Persons and Family Act.
In accordance with section 70 § 3 of the Ministry of the Interior Act 1997 and Article 152a of the Code of Criminal Procedure as in force at the relevant time, every detained person has the right to appeal to a court against his detention.
A person claiming that his property has been unlawfully taken away from him may bring a rei vindicatio action or an action for possession under the Property Act.
It is open to alleged victims of unlawful police actions to submit complaints to the prosecution authorities and to bring civil proceedings under the State Responsibility for Damage Act 1988.


ITEMID: 001-118332
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KURKOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial;Trial within a reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1960 and lives in Gdańsk.
6. The applicant was a member of the management board of the Mostostal Gdańsk joint-stock company (“the company”), manufacturing ships and other industrial steel constructions.
7. On 28 November 2002 the Gdańsk District Prosecutor (Prokuratur Rejonowy) opened a criminal investigation into allegations that the company’s management board had intentionally acted to the detriment of the enterprise (celowe działanie na szkodę spółki).
8. On 4 December 2004 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody on reasonable suspicion that he had committed a series of offences related to the running of the company. The court also considered that keeping the applicant in detention was justified by the severity of the penalty which could be imposed if he were convicted and the risk that he might attempt to obstruct the proceedings, especially since the applicant’s and his co-accused’s testimonies had been contradictory. That decision was upheld by the Gdańsk Regional Court (Sąd Okręgowy) on 10 January 2005.
9. The applicant’s detention was subsequently extended by decisions of the Gdańsk District Court of 2 March, 1 June and 26 August 2005, which were upheld by the Gdańsk Regional Court on 30 March, 27 June and 19 September 2005 respectively. In their decisions, the domestic courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences, the complexity of the case which involved many individuals and the risk that the applicant would obstruct the proceedings, for example, by inducing witnesses to give false testimony. The domestic courts considered the latter argument particularly relevant in light of the fact that the penalty which the applicant faced was severe. In addition, the domestic courts invoked the difficulties in obtaining evidence, including from abroad, and the need to examine several hundred witnesses and many accounting, tax and auditing experts. On 1 June 2005 the case file already consisted of one hundred volumes.
10. The applicant’s pre-trial detention was further extended by decisions of the Gdańsk Regional Court of 22 December 2005, 23 May and 28 September 2006, which were upheld by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 24 January and 13 June 2006 and a further decision of an unspecified date.
11. On 31 August 2005 and 2 February 2006 two motions for the applicant’s release were rejected.
12. In the meantime, on 18 August 2005 the prosecutor lodged a bill of indictment with the Gdansk District Court against the applicant and eleven other co-accused. The applicant was charged with eleven offences including appropriation of the company’s assets, causing damage to the company and acting to the detriment of the company’s creditors. The prosecutor requested to hear evidence from 30 witnesses and to have read out the testimonies of 552 other witnesses.
13. On 31 August 2005 the District Court requested the Gdansk Court of Appeal to transfer the case to the Gdansk Regional Court due to its complicated nature. On 6 September 2005 the case was remitted to the Gdańsk Regional Court.
14. The first hearing took place on 27 June 2006.
15. The applicant’s detention pending trial was further extended by the first-instance court on 28 September 2006.
16. On 26 October 2006 the Gdańsk Regional Court decided to lift the preventive measure and to release the applicant. The court considered that continuing the applicant’s detention was no longer necessary because two of the co-accused, who had initially been detained, had already made their statements and seven of the other co-accused had remained at liberty throughout the proceedings. For these reasons there was no need to keep the applicant in pre-trial detention.
17. It would appear that the criminal proceedings against the applicant are still pending.
18. On 7 December 2005 the applicant complained of the unreasonable length of the criminal proceedings against him to the Minister of Justice and to the President of the Gdańsk Regional Court.
19. By letters of 18 January and 14 February 2006 the respective authorities rejected the applicant’s complaint as ill-founded. The authorities considered that in the light of the complexity of the case the impugned proceedings had not been lengthy.
20. The applicant did not lodge a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time.
21. The applicant was detained in Gdańsk Remand Centre from 4 December 2004 until 26 October 2006. During this time he was held in six different cells. The size of those cells varied between 6.74 m² and 17 m². The space per person ranged between 2.1 m² and 3.6 m².
22. Between 29 August and 1 September 2005 the applicant was detained in cell number 10, which measured 17 m² and was shared by eight detainees, including the applicant (2.1 m² per person).
23. Between 12 and 15 September 2005, the applicant was held in cell number 18, which measured 5.52 m² and was shared by two detainees, including the applicant (2.6 m² per person).
24. The cells were equipped with separate toilets.
25. The applicant stressed that the conditions of detention in the two person cell were inhuman. He submitted that in each cell there had been a bunk bed (200 cm x 100 cm). However the surface of the toilet had been included in the total surface and constituted part of the 3 m² per person. The design of the cells made it impossible for two prisoners to move around freely.
26. The applicant also claimed that the food served to all detainees was of poor quality and insufficient quantity. He had to buy additional food and despite that he had lost 20 kg during his detention.
27. The Government argued that the applicant had had access to clean sanitary facilities, running water and bathing facilities. The food served to him complied with the relevant standards of the Ministry of Justice. The applicant was afforded a one-hour walk per day. He could have his own television set or he could watch television in the prison’s social room.
28. The list of visits supplied by the Government shows that between 29 December 2004 and 6 July 2006 the applicant received 86 visits, of which 53 were meetings with his defence counsel and 1 meeting with a notary. The remaining 32 visits involved the applicant’s family (wife, daughter and mother). They lasted from 40 (on one occasion) to 120 minutes but on most occasions were 90 minutes long.
29. On 13 March 2006, the authorities rejected the applicant’s request to have an additional visit from his relatives. That decision did not contain any reasoning.
30. On three occasions (27 September 2005, 2 November 2005 and 11 January 2006) the applicant’s contacts with his family were restricted and he was separated from the visitors by a Perspex partition.
31. The applicant, without specifying any details, submitted that, during his pre-trial detention, his correspondence with his family had been monitored and withheld by the authorities.
32. He also submitted that his wife and children had been allowed to visit him in the remand centre only once a month. Most of the applicant’s requests to meet more often with his family had been rejected by the authorities. The applicant’s family members’ visits were short and without the possibility of direct contact. On several occasions he had had no direct contact with his family because he had been separated from them by a Perspex partition and they could communicate with him only by internal phone.
33. Lastly, he denied receiving a visit from a certain E.P. on 6 July 2006.
34. The Government submitted that between 29 December 2004 and 5 October 2006 most of the family visits took place at a table (przy stoliku) in the presence of a guard. Out of the thirty-two visits of the applicant’s wife, mother and youngest child, direct contact was granted on twenty-nine occasions.
35. The Government submitted that in addition to the visits listed above, the applicant received a visit from E.P. on 6 July 2006.
36. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006).
37. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08 (dec), §§ 25-54, 12 October 2010).
38. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remained, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 onehour long visit per month.
39. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”.
40. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room.
41. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison.
42. A closed visit takes place in a special room. A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone.
43. The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws (Dziennik Ustaw).
44. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor’s decision to refuse a family visit to those in pre-trial detention.
45. On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010.
46. The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time, (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; and Ratajczyk v. Poland, no. 11215/02 (dec.), ECHR 2005VIII; and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005-V.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-110702
LANGUAGEISOCODE: ENG
RESPONDENT: DEU;GRC
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF SETA v. GREECE AND GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Greece)
JUDGES: Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos
TEXT: 4. The applicant was born in 1942 and lives in Besian.
5. On 14 June 2002 he was arrested by the Greek authorities at the Greek-Albanian borders under the charge of drug trafficking, as 25 kg of heroin were found in the car he was driving.
6. The same day, the Ioannina First Instance Prosecutor, prosecuted the applicant for illegal drug trafficking and ordered his detention on remand (order no. 25/2002).
7. The applicant alleges that his arrest was a set-up by a German national with whom he had disagreements in Germany - where the applicant had allegedly lived for an unspecified period of time - and that the drugs were put in the car without his knowledge.
8. On 20 May 2003 the Ioannina First Instance Criminal Court convicted the applicant and sentenced him to twenty years of imprisonment (judgment no. 81/2003).
9. On an unspecified date the applicant lodged an appeal against the first instance court’s decision.
10. On 5 June 2007 the Ioannina Court of Appeal upheld the first judgment (judgment no. 58/2007).
11. On 8 September 2007 the applicant lodged an appeal on points of law with the Court of Cassation challenging the abovementioned decision. In the grounds of appeal no complaint was raised by the applicant regarding the interpretation service at the moment he was arrested and afterwards during the proceedings.
12. The hearing, which was originally set for 12 March 2008, was subsequently adjourned to 19 November 2008. As it transpires from the case file, the latter proceedings are still pending before the Court of Cassation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58049
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF PHILIS v. GREECE (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos
TEXT: 7. Mr Philis, a Greek citizen born in 1937, lives in Athens, where, at the material time, he was working as an engineer.
In 1987 Mr Philis had already filed a different application that led the Court to find that the applicant’s right of access to a court had been violated (judgment of 27 August 1991, Series A no. 209).
8. On 14 April 1986, during proceedings he had brought against officials of the Autonomous Organisation for Labour Housing (Aftonomos Organismos Ergatikis Katikias - "the AOEK"), the applicant sent the Indictment Division of the Athens Court of Appeal (Symvoulio Efeton) a pleading in which he argued that the procedure followed by the relevant authorities in connection with the various legal proceedings he had brought left no doubt that there was bias in favour of the AOEK’s officials, and that the delays in the proceedings were plainly intended to ensure that the limitation period for the offences would run out.
9. On 25 April 1986 the public prosecutor at the Athens Court of Appeal (Isageleas Efeton) forwarded the pleading to the public prosecutor at the Athens Criminal Court (Isageleas Plimmeliodikon) and recommended that the applicant should be charged with insulting the judiciary. On 30 April 1986 the prosecutor at the Criminal Court ordered a preliminary investigation (see paragraph 23 below).
10. On 9 October 1986 Mr Philis appeared before the investigating judge. He denied the charges and informed the judge that he intended to file a pleading by 15 October 1986. In the pleading, which he filed on 14 October 1986, he applied for several witnesses to be heard. Four witnesses were examined between 10 November and 20 November 1986. On 20 January 1987 the investigating judge sent the file to the prosecutor.
11. On 20 March 1987 the prosecutor asked the investigating judge to complete the file by ordering the applicant to send him a number of court decisions mentioned in the pleading of 14 October 1986. On 11 June 1987 Mr Philis submitted those decisions, together with another pleading. On 12 June 1987 the investigating judge forwarded these to the prosecutor.
12. On 5 October 1987 the prosecutor charged the applicant with insulting the judiciary and set the case down for trial on 12 October 1988 by the Athens Criminal Court sitting with three judges (Trimeles Plimmeliodikio). On 13 September 1988 the applicant was summoned to appear before that court on 12 October 1988. On 22 September 1988 he made an application under Article 322 of the Code of Criminal Procedure to be examined by an indictment division, but this was refused by the prosecutor at the Court of Appeal on 30 September 1988.
13. On 12 October 1988 the Athens Criminal Court convicted Mr Philis and sentenced him to five months’ imprisonment, a penalty which was converted into a fine of 400 drachmas per day. The applicant immediately appealed, thereby causing execution of his sentence to be stayed (see paragraph 24 below).
14. On 5 November 1990 the Athens Court of Appeal adjourned the case, but on 25 October 1991 it allowed the appeal and quashed Mr Philis’s conviction.
15. The Court of Appeal’s judgment and the record of the hearing were finalised (katharographi) on 19 November 1991 and served on the applicant on 28 November 1991. On 9 December 1991 the applicant applied to the Court of Appeal to have them rectified and supplemented. On 15 April 1992 the court ruled that the application was inadmissible on the ground that it had not been made within twenty days of delivery of the judgment on 25 October 1991.
16. Under Articles 473 and 506 of the Code of Criminal Procedure, the prosecutor had a right of appeal on points of law against the Court of Appeal’s judgment, to be exercised within ten days of the finalisation of that judgment. He did not, however, avail himself of that right, with the result that the Court of Appeal’s judgment became final on 29 November 1991.
17. On 2 August 1982 the AOEK complained to the Greek Chamber of Technology (Techniko Epimelitirio Ellados - "the TEE") of the various proceedings brought by Mr Philis against the AOEK and some of its engineers. The chairman of the TEE’s disciplinary board then initiated disciplinary proceedings against the applicant for improper conduct. On 14 November 1983 the charges were drawn and a rapporteur appointed. On 9 March 1984 the disciplinary board decided to adjourn the case as the chairman of the AOEK, who had been called to give evidence, had not appeared. On 20 November 1984 the disciplinary board suspended the applicant from practising his profession for ten months.
18. Mr Philis was notified of that decision on 7 June 1985. On 21 June 1985 he appealed to the TEE’s Supreme Disciplinary Council within the prescribed two weeks, thereby causing his suspension to be stayed (see paragraph 28 below). On 14 April and 18 May 1992 he wrote to the TEE requesting it to inform him of the outcome of his appeal. On 22 May 1992 the TEE replied that the case was being considered by one of the members of the Supreme Disciplinary Council acting as rapporteur and that a hearing would be held when he had submitted his report.
19. By a letter of 17 February 1993 the applicant was invited to attend the Supreme Disciplinary Council hearing on 10 March 1993. On 5 March 1993 he challenged all the Council’s members and asked for the guarantees in Article 6 of the Convention (art. 6) to be respected at the hearing.
20. On 10 March 1993 the Supreme Disciplinary Council rejected that request. It allowed the appeal, however, and completely exonerated the applicant.
21. On 2 April 1993 Mr Philis sought rectification of the decision of 10 March 1993. On 26 April 1993 the Supreme Disciplinary Council answered the points raised by the applicant in his request but did not rectify its decision.
22. Under Article 36 of the Code of Criminal Procedure, criminal proceedings may be initiated of the authorities’ own motion following a report, a complaint or any other information indicating that an offence may have been committed.
23. The public prosecutor is then required to order a preliminary investigation or to commit the accused for trial directly, where this is possible. If the complaint or report in question is without foundation, the public prosecutor takes no further action (Article 43).
24. Where an appeal is lodged in accordance with the law and within the prescribed time-limit, execution of the judgment against which it has been brought is stayed (Articles 471 and 497).
25. Under Article 370, criminal proceedings end when the accused has been found guilty or innocent.
26. Disciplinary proceedings in the Greek Chamber of Technology are governed by the presidential decree of 27 November and 14 December 1926, as amended by Article 1 of Legislative Decree no. 783/1970, and by Law no. 1486/1984.
27. Article 28 of the above-mentioned presidential decree provides that, at first instance, disciplinary offences by members of the TEE come under the jurisdiction of disciplinary boards.
28. Under Article 32 para. 1, an appeal lies against disciplinary board decisions. Appeals must be lodged with the Supreme Disciplinary Council within two weeks of notification of the decision in question. The appeal has a suspensive effect.
29. Article 34 provides that disciplinary proceedings are separate from other proceedings and are not stayed on account of criminal proceedings. However, in exceptional circumstances, a disciplinary board may stay disciplinary proceedings until criminal proceedings have ended, while remaining free to give a decision that differs from the criminal court’s judgment. Where there is a conviction in criminal proceedings, disciplinary proceedings that have led to an acquittal or a reprimand will be reopened.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68105
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: EMESA SUGAR N.V. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Emesa Sugar N.V., is a public limited company, having its registered seat in Oranjestad (Aruba). It is represented before the Court by Mr G. van der Wal and Mr P. Kreijger, who are both lawyers practising in Brussels. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The European Commission is represented by Messrs G. Marenco and C. Ladenburger, and Mrs S. Fries.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company's activities include the operation of a sugar factory on Aruba and the export of sugar to the European Communities (EC). Since Aruba produces no sugar, the sugar is bought from cane sugar refineries in Trinidad and Tobago. After purchase, the sugar is transported to Aruba, where it is cleaned, milled and packed.
The applicant company operates within the legal framework of the European Council Decision 91/482/EEC of 25 July 1991. This Council Decision is based on Part IV of the EC Treaty, relating to the association of overseas countries and territories with the EC. Aruba is one of these “overseas countries and territories” (“OCT”). Part IV of the EC Treaty provides the basis for the abolition of customs duties on goods originating from OCTs when imported into the EC. In accordance with Article 187 of the EC Treaty, the details of and the procedure for the association of the OCTs with the EC are set out in an Implementing Convention.
Since 1964, there have been several successive Implementing Conventions. The European Council Decision 91/482/EEC is the sixth Implementing Convention. The original version of the sixth Implementing Convention provided for the possibility of importing goods originating from the OCT to the EC free of customs duties or charges. Goods were considered to be of OCT origin not only when they were wholly obtained within the OCT concerned, but also if they were obtained from one of the ACP (Africa, Caribbean, Pacific) States or the EC and underwent work or processing in the OCT.
The sixth Implementing Convention was amended at mid-term by the European Council Decision 97/803/EEC of 24 November 1997. This amendment severely impeded the commercial operations of the applicant company, since it limited the levy free imports of sugar of ACP/OCT origin within the EC to 3,000 tonnes per year.
Following the adoption of the European Council Decision 97/803/EEC, the applicant company instituted summary injunction proceedings (kort geding) before the President of the Regional Court (arrondissementsrechtbank) of The Hague seeking an interim order prohibiting:
On 19 December 1997 the President of the Regional Court of The Hague declined jurisdiction to hear the applicant company's claims against the Netherlands State and the Central Board for Agricultural Products, as the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) was the competent judicial body for claims concerning import levies, agricultural levies and/or import licences. As to the applicant company's claim against the authorities of Aruba, the President decided to refer a number of questions to the Court of Justice of the European Communities (ECJ) for a preliminary ruling, within the meaning of (former) Article 177 of the EC Treaty, on the validity of Council Decision 97/803EC of 24 November 1994 and, pending the outcome of the proceedings before the ECJ, provisionally granted the interim measure sought by the applicant company against the authorities of Aruba.
A hearing was held before the ECJ on 16 March 1999 and, on 1 June 1999, the Advocate General to the ECJ presented his Opinion. Under Article 18 of the AC Statute of the ECJ and Article 59 of the Rules of Procedure of the ECJ, the submission of the Opinion of the Advocate General brought the oral proceedings before the ECJ to an end.
The applicant company's request of 11 June 1999 to be allowed to respond to the Opinion was rejected by the ECJ in an order of 4 February 2000. The ECJ held inter alia:
“2. The EC Statute of the Court of Justice and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to the Advocate General's Opinion.
3. However, Emesa relies on the case-law of the European Court of Human Rights concerning the scope of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter 'the Convention'), and in particular on the judgment of 20 February 1996 in Vermeulen v Belgium (Reports of Judgments and Decisions, 1996-I, p. 224).
...
8. As the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (see, in particular, Opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have cooperated or of which they are signatories. The Convention has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
9. Moreover, those principles have been incorporated in Article 6(2) of the Treaty on European Union, according to which 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'. According to Article 46(d) of the Treaty on European Union, the Court is to ensure that this provision is applied 'with regard to action of the institutions, in so far as [it] has jurisdiction under the Treaties establishing the European Communities and under [the] Treaty [on European Union]'.
10. It is also appropriate to recall the status and role of the Advocate General within the judicial system established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in the Court's Rules of Procedure.
11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.
12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.
13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that, in the interpretation and application of the Treaty, the law is observed.
14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which 'derives its authority from that of the Procureur Général's department [in the French version, "ministère public"]' (judgment in Vermeulen v Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.
15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court's judgment.
16. Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court's Advocates General.
17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure.
18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, with regard to the reopening of the oral procedure, the order of 22 January 1992 in Case C-163/90 Legros and Others, not published in the ECR, and the judgment of 16 July 1992 in Case C-163/90 Legros and Others [1992] ECR I-4625; the order of 9 December 1992 in Case C-2/91 Meng, not published in the ECR, and the judgment of 17 November 1993 in Case C-2/91 Meng [1993] ECR I-5751; the order of 13 December 1994 in Case C-312/93 Peterbroeck, not published in the ECR, and the judgment of 14 December 1995 in Case C-312/93 Peterbroeck [1995] ECR I-4599; the order of 23 September 1998 in Case C-262/96 Sürül, not published in the ECR, and the judgment of 4 May 1999 in Case C-262/96 Sürül [1999] ECR I-2685; and the order of 17 September 1998 in Case C-35/98 Verkooijen, not published in the ECR).
19. In the instant case, however, Emesa's application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.
20. Emesa's application for leave to submit written observations in response to the Advocate General's Opinion must therefore be dismissed.”
By a judgment of 8 February 2000, the ECJ gave the requested preliminary ruling in which it upheld the validity of Council Decision 97/803EC of 24 November 1994.
The summary injunction proceedings before the President of the Regional Court of The Hague were subsequently discontinued.