PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. I voted with the majority in finding a violation of Article 6 § 1 on account of the length of the proceedings. However, I do not share their view as regards the fairness of the proceedings in connection with the public prosecutor ' s unreasoned rejection of the applicant ' s request that he appeal on points of law (by means of a mere handwritten note stating “There are no legal or well-founded grounds of appeal to the Court of Cassation”). The reasons for my disagreement are as follows.

2. The Court has observed on a number of occasions that “[w]hen the domestic legal order provides an individual with a remedy, such as a criminal complaint with an application to join the proceedings as a civil party, the State has a duty to ensure that the person using it enjoys the fundamental guarantees of Article 6” (see Anagnostopoulos v. Greece , no. 54589/00, § 32, 3 April 2003). In the present case, the right to appeal on points of law derived not from legislation but from an established and undisputed judicial practice (see paragraph 30 of the judgment) . F urthermore, the applicant ' s request to the public prosecutor at the Court of Cassation “was made in the same context and pursued the same aim as her previous application to be joined to the proceedings as a civil party” (see paragraph 34 of the judgment).

3. Accordingly, since the Court found that the applicant ' s request concerned the “determination of ... civil rights” and that the said Article was therefore applicable, I find it difficult to accept, on the basis of the same considerations and the same logic, that the public prosecutor ' s reasoning – in rejecting that request – was in fact sufficient.

4. Starting from the principle that Article 6 § 1 of the Convention obliges courts to give reasons for their decisions (see, among other authorities, Van de Hurk v. the Netherlands , 19 April 1994, § 61, Series A no. 288), the Court has previously developed unambiguous case-law about the practice whereby Greek public prosecutors reject requests from individuals for appeals on points of law by means of terse, and therefore completely unreasoned, handwritten notes. Without claiming to be exhaustive, I would cite three recent cases – Alija v. Greece , no. 73717/01, 7 April 2005 , Gorou v. Greece (no. 4) , no. 9747/04, 11 January 2007 and Markoulaki v. Greece (no. 1) , no. 44858/04, 26 July 2007 – which raise exactly the same question as in the present case and where the Court found that there had been a violation of Article 6 § 1 in respect of the fairness of the proceedings.

5. The judgment in the case referred to the Grand Chamber , which concern ed the same applicant , Mrs Gorou, as the second of the three judgments cited above, but this time finding that there had been no violation, is dated 14 June 2007 and was thus delivered between the last two of those judgments , after Gorou (no. 4) and before Markoulaki (no. 1) . Incomprehensibly, the Chamber thus changed tack in June (perhaps accidentally?), only to revert to its previous course in July.

6. In addressing the question whether the public prosecutor at the Court of Cassation had to give reasons in replying to requests for an appeal on points of law, the Court ' s three above-mentioned judgments answered in the affirmative and found that there had been a violation of Article 6 § 1, explaining that this obligation derived from Article 139 of the Greek Code of Criminal Procedure and that “the reply to the applicant ' s request was not left to the public prosecutor ' s discretion” (see Alija , cited above, § 22, and Gorou (no. 4) , cited above, § 22) or that “ the public prosecutors in question were supposed to have given reasons in their replies to the applicant ' s requests, even though the use of the remedies in question fell within their discretion” (see Markoulaki (no. 1) , cited above, § 23).

7. Now the Grand Chamber has answered this question in the negative and has not found a violation, in accordance – it states – with Articles 138 and 139 of the Code of Criminal Procedure (the same Articles of the same Code), after observing that “the response of the public prosecutor at the Court of Cassation to the applicant ' s request was not issued in the form of an ' order ' ” (see paragraph 40 of the judgment).

8. The Grand Chamber decided to endorse the Chamber ' s departure from case-law. In the absence of explanation, I fail to understand what reason, serious question or legal interest there is to justify this step backwards by the Court. It is clear that the Court, in its previous judgments, could have adopted a different approach to the issue – perhaps a less demanding or less formalistic one – but once it has decided to extend individuals ' rights in a particular aspect of the right to a fair hearing, it should not – unless there has been a manifest mistake – reverse its decision. Acquired rights in the cause of human rights are at least as precious as acquired rights in other branches of the law and therefore the principle of non-regression must prevail.

9. In this connection I am reminded of the “standstill” technique . Also known as the “ratchet mechanism”, preventing a cogwheel from turning back once it has moved forward, the principle has been developed , particularly in legal opinion, in connection mainly with acquired social rights. It is the principle whereby the legislature is supposed not to pass laws that would have the effect of lowering a level of social protection already achieved.