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TOLSTOY MILOSLAVSKY v. the UNITED KINGDOMDISSENTING OPINION of MM. Weitzel, Busuttil, Gözübüyük,

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Document date: December 6, 1993

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TOLSTOY MILOSLAVSKY v. the UNITED KINGDOMDISSENTING OPINION of MM. Weitzel, Busuttil, Gözübüyük,

Doc ref: • ECHR ID:

Document date: December 6, 1993

Cited paragraphs only

DISSENTING OPINION of MM. Weitzel, Busuttil, Gözübüyük,

Reffi and Cabral Barreto

We are unable to agree with the Commission's conclusion

concerning Article 6 of the Convention (para. 44 of the Report).

Article 6 guarantees the right of access to court, and that

includes access to appeal courts, although the criteria will not be

identical to the criteria for access to courts of first instance.

Limitations on access to court may be permitted provided that they

pursue a legititimate aim and are proportionate to the pursuit of that

aim.

In this case the aim of the restriction was not the effective

administration of justice as such, but a desire to avoid the risk to

Lord Aldington that he would not be able to recoup his costs if Count

Tolstoy's appeal was unsuccessful.

We accept that it will often be appropriate for a successful

litigant to be awarded his costs involved in pursuing or defending a

claim. However, the sum required by way of security in the present

case (£124,900) was so enormous that, even if it may be permissible to

require a litigant to compensate his opponent for his reasonably

incurred costs after the event, it is not for the State to put such a

substantial barrier in the way of an appeal before the event.

Moreover, we note that Count Tolstoy was refused an extension

of the extremely short period allotted for finding security.

We find that the denial of access to the Court of Appeal in the

present case bore no relationship of proportionality to the aim which

was being pursued.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

18 December 1990 Introduction of the application

Registration of the application

Examination of Admissibility

20 February 1992 Commission's partial decision and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

2 June 1992 Government's observations

6 October 1992 Applicant's observations in reply

8 February 1993 Commission's deliberations and

decision to hold an oral hearing

12 May 1993 Oral hearing on admissibility and

merits, Commission's deliberations

and decision to declare remainder of

the application admissible

Examination of the merits

17 May 1993 Decision on admissibility transmitted

to the parties

16 October 1993 Commission's consideration of the

state of proceedings

30 November 1993 Commission's deliberations on the

merits and final votes.

6 December 1993 Adoption of the Report

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