PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

The Court ' s conclusion that Article 6 is applicable implies an expectation that the proceedings in question should be of a judicial nature and should afford the guarantees required by this provision at least to a certain minimum level. I voted with the majority in finding that Article 6 is applicable to the determination of the applicant ' s civil rights within criminal proceedings, but I was among the minority in finding that the absence of sufficient reasoning constituted a violation of that provision.

I share the concerns of Judge Casadevall about the effect of the majority ' s conclusion that there was no violation of Article 6 on the development of the Court ' s findings in similar cases. I also concur with the view of Judge Malinverni that the absence of requisite content and form from a decision which puts an end to judicial proceedings may be seen as arbitrary and may shake public confidence in justice.

In the present case the respondent Government argued that the applicant ' s request to a prosecutor may not be seen, in principle, as a remedy in respect of her complaints. I agree with this view. Indeed, the fact that the determination of the applicant ' s civil right to compensation is left to the discretion of a body which is not bound by procedural rules or requirements and which, furthermore, has no appellate jurisdiction, but acts as an intermediary between the applicant and the court, does not appear to be consonant with the institutional and procedural guarantees that are inherent in the judicial determination of a civil right. Having voted that Article 6 was applicable in these circumstances, I fail to see how proceedings of a non-remedial nature could meet the higher standards required by Article 6 as a matter of principle. I regard the length of these proceedings and the absence of minimum reasoning for their outcome as logical aspects of their non-judicial nature.

[1] In its Anagnostopoulos judgment (§ 32) the Court found as follows : “When 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”.

[2] Rather curiously, the Markoulaki judgment was delivered a few weeks after the Gorou (no. 2 ) Chamber judgment.