CONCU RRING OPINION OF JUDGE GARLICKI

1. I am ready to accept the finding of no violation, but only because I think that the first applicant did not act in accordance with the requirement established in Article 110 § 2 of the Code of Criminal Procedure. This provision, as developed in the domestic practice (see paragraphs 40-41 of the judgment) allowed a refusal to make a statement only after a witness had informed the investigator about the reasons for such refusal. The domestic authorities, when examining the applicant ' s complaint about the fine, found that he had not indicated the reason for his refusal. Nor did the applicant, at any stage of the proceedings, challenge the compatibility of that requirement with the national Constitution or with the European Convention. This constitutes a sufficient ground not t o accept the applicant ' s claim.

2. It would, for me, be more difficult to go beyond that formal ground and – as the majority did – to assess the claim on its merits. I am not convinced that this case may be properly addressed by assuming that Article 6 § 1 of the Convention does not apply to fines imposed as a consequence of a refusal to testify based on self-incrimination grounds. The right not to incriminate oneself constitutes one of the basic guarantees for persons who feel that a criminal investigation comes too close to their own security. Even if a compulsion to testify does not lead to any criminal charge and/or conviction against the person affected, the fact that such person had been fined (i.e. punished) for the refusal cannot remain outside the area protected by the Convention. Our interpretation of the Convention should not leave any gaps in that area, particularly in respect of the investigation stage when a witness testifies before a prosecutor and not before an impartial court.

However, in the present case it would be impossible to address that aspect, since the applicant ' s claim under Article 6 § 1 was declared inadmissible by an earlier decision. We have no alternative but to respect that decision. At the same time, however, any examination of the merits of the case would produce a dead-end situation in which either the finality of inadmissibility decisions or the essence of the protection against self-incrimination is undermined. The formal approach, as proposed in this opinion, allows both of those difficulties to be avoided .

3. This may warrant an additional observation. The practice of our Court has always accepted the possibility of revisiting any decision declaring a case admissible – Article 35 § 4 of the Convention constitutes a sufficient basis for such interpretation. At the same time, it has been recognised that that principle does not work the other way round and that a decision declaring a case or claim inadmissible immediately becomes final. While, in most cases, that approach seems to be correct and can be justified by the need for an orderly procedure, its absolute nature may be open to doubt.

There may be situations (as the present case amply demonstrates) where a decision as to the inadmissibility of one of the claims may simply appear erroneous when the judgment concerning the remaining claims is prepared. The text of Article 35 § 4 of the Convention is clear only as to the principle of non-finality of admissibility decisions and says nothing about inadmissibility decisions. A conclusion that Article 35 § 4 establishes the principle of finality of inadmissibility decisions seems to be based on an argumentum a contrario . But such an argument is, methodologically, not always defendable in the field of human rights. Its application results here in a situation where admissibility decisions (that usually respond to the applicant ' s position) are less safe than inadmissibility decisions (that are usually more in line with the government ' s arguments). This result is hardly compatible with the gene ral logic of the Convention.

[1] SKK 20,000 was the equivalent of 465 euros at that time.