PARTLY DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE SAJÓ

(Translation)

1. I voted with the majority in favour of finding Article 6 applicable in the present case. However, I am not able to follow the majority in their finding that there was no violation of that Article.

2. Indeed, I have never understood why the Chamber, departing from the Court ' s previous case-law (see Anagnostopoulos v. Greece , no. 54589/00, 3 April 2003 [1] ; 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 [2] ), held in its judgment of 14 June 2007 that there had not been a violation of Article 6.

3. That departure from case-law was all the more difficult to justify as the Court ' s earlier judgments had not been challenged by the respondent Government, at least not formally, for example by means of a request for referral to the Grand Chamber . It is also surprising in the sense that, as a rule, the Court departs from case-law in order to afford better protection to individuals. Here the opposite is true. Not only is the Court now of the opinion that there is no violation of Article 6 in this type of case, but a minority of judges (see the joint dissenting opinion) have even gone so far as to deny the applicability of the provision. The present judgment thus constitutes a step backwards in the protection of fundamental rights that I find both difficult to understand and regrettable.

4. In my opinion, the public prosecutor ' s refusal was insufficiently reasoned. The applicant had in fact requested him to appeal on points of law against the judgment of the Athens Criminal Court on the ground that it had not given sufficient reasons for its findings. The question that the applicant sought to submit to the adjudication of the Court of Cassation was thus an eminently legal one: namely, whether that judgment contained sufficient reasoning.

5. In Greece , appeals to the Court of Cassation are subject to the discretion of the public prosecutor at that court, by whom they are filtered. In the present case, the dismissal of the applicant ' s request was notified in a terse handwritten comment on her actual letter: “There are no legal or well-founded grounds of appeal to the Court of Cassation”. These few words fall below the requisite standard of reasoning under Article 6 in a number of respects.

6. First, although it is true that, under Greek law, appeals to the Court of Cassation are subject to the public prosecutor ' s discretion, it should nevertheless be pointed out that any authority which has such power is not thereby absolved from the duty of giving reasons for its decisions, as otherwise it could quite easily slide into arbitrariness.

7. In this perspective the public prosecutor ' s handwritten note is doubly deficient. In commenting that there were “no legal grounds of appeal to the Court of Cassation” the public prosecutor should at least have indicated the legal provisions to which he was referring. This is the least that could have been expected. And in stating that there were “no well-founded grounds of appeal to the Court of Cassation” he should have given, even if only in summary form, the reasons why the applicant ' s request was not well-founded.

8. Furthermore, according to the Court ' s established case-law on Article 6, judgments of courts and tribunals should adequately state the reasons on which they are based (see Van de Hurk v. the Netherlands , 19 April 1994, § 61, Series A no. 288, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I ). Admittedly, the extent of the reasoning may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain , 9 December 1994, § 29, Series A no. 303 ‑ A ; Hiro Balani v. Spain , 9 December 1994, § 27, Series A no. 303-B; and Higgins and Others v. France , 19 February 1998, § 42, Reports of Judgments and Decisions 1998 ‑ I ).

9. It is true that, when giving reasons for decisions, a public prosecutor is probably not bound by the same obligations as a judge. Nevertheless, in the present case the applicant was unable to ascertain the reasons for which she met with a refusal, even though her letter of request extended to six pages. This situation, in my opinion, is totally unsatisfactory.

10. I would observe lastly that, in terms of the form, the writing of a few words on the applicant ' s actual request showed a lack of respect towards her. A decision of such importance for the applicant should not only have been more detailed but, as to the form, should have been set out in a separate, typed document. The form of the public prosecutor ' s decision sits uneasily, in my opinion, with the seriousness that should be a hallmark of all judicial acts, and could even be regarded as capable of undermining the confidence that the public must have in the proper administration of justice.