SEPARATE OPINION OF JUDGES ZAGREBELSKY, HAJIYEV, JAEGER, BJÖRGVINSSON, VILLIGER AND BERRO-LEF È VRE

(Translation)

We voted with the majority in favour of finding that there had not been a violation of Article 6 as regards the complaint about a lack of reasoning in the reply of the public prosecutor at the Court of Cassation to the applicant ' s request for an appeal on points of law. We are of the view, however, that there was no “dispute” over a civil right, as required for the purposes of Article 6 § 1, and that this Article should not therefore have been found applicable in the circumstances. We wish to clarify our views on that particular question.

It is clear from the relevant legislation that the quashing of a judgment can be sought by a civil party only in a limited number of situations, which evidently do not include that of the present case. In particular, under Article 505 § 1 of the Code of Criminal Procedure, a civil party is entitled to appeal on points of law against a conviction only in respect of that part of the judgment in which he or she is awarded damages or is recognised as being entitled to compensation, or in which his or her claims have been dismissed as being without legal basis. Under Article 506 of that Code, the quashing of an acquittal may be sought by the complainant only if he or she has been ordered to pay costs.

To be sure, the relevant legislation is supplemented by judicial practice: the public prosecutor takes into account requests from civil parties and is accustomed to replying in a summary manner to their letters asking him to appeal on points of law.

We are nevertheless of the view that the majority should not have found Article 6 applicable simply on the basis of this practice, however established it may be, that runs counter to the provisions of legislation. If indeed such a practice, whereby the public prosecutor at the Court of Cassation responds to the civil party ' s request in the event of an acquittal, were to be regarded as creating a remedy available to the civil party, that would be incompatible with the clear and precise applicable law recognising the civil party ' s right to appeal on points of law only in the situation provided for in Article 506 of the Code of Criminal Procedure, which is not relevant to the present case.

Consequently, the applicant ' s request to the public prosecutor cannot be regarded as a “remedy” but rather as a means of inviting or urging him to lodge his own appeal on points of law.

It is not appropriate for an international court to infer , from the limited practice of answering letters, the much broader effects of a legal action, especially where the law enumerates an exclusive list of situations in which such legal action is available.

For the foregoing reasons we consider that the complaint concerning the lack of reasoning in the public prosecutor ' s reply to the applicant was incompatible ratione materiae with the provisions of the Convention.