PARTLY DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES VAJIĆ AND KOVLER

(Translation)

1. I do not share the view of the majority that there has been no violation of Article 6 § 1 of the Convention as regards the reasoning of the decision of State Counsel at the Court of Cassation.

2. It must be recalled that the applicant brought proceedings for defamation and that the Criminal Court, in judgment no. 74941/2001 of 26 September 2001, considered that the offending remarks had been truthful and that the accused had had no intention of defaming or insulting the applicant. She then requested State Counsel at the Court of Cassation to lodge an appeal on points of law against that judgment. She alleged, among other things, that it had not been sufficiently reasoned. State Counsel at the Court of Cassation dismissed the applicant ’ s request. He endorsed the application itself with the handwritten comment: “there is no legal or well-founded ground of appeal to the Court of Cassation”.

3. The question that the applicant wished to refer to the adjudication of the Court of Cassation was a purely legal one: namely, whether the judgment had been sufficiently reasoned.

4. Under Greek law, the exercise of the right of appeal to the Court of Cassation depends on the discretion of State Counsel at that court. He thus acts as a filtering mechanism for access to the Court of Cassation.

5. It follows from Article 139 of the Code of Criminal Procedure (see paragraph 11 of the judgment) that State Counsel was supposed to have given reasons in his response to the applicant ’ s request .

6. In the present instance , State Counsel at the Court of Cassation dismissed the applicant ’ s request without giving a properly reasoned decision. The dismissal was expressed in a few words written on the actual application. The words “there is no legal or well-founded ground of appeal to the Court of Cassation” mean quite simply that “ the applicant ’ s case is devoid of merit ”.

7. According to the Court ’ s settled case-law, Article 6 § 1 of the Convention obliges courts to give reasons for their decisions (see Van de Hurk v. the Netherlands , judgment of 19 April 1994, Series A no. 288, p. 20 , § 61) and judicial decisions must sufficiently indicate the reasons on which they are based (see García Ruiz v. Spain [GC], no. 30544/96, § 26 , ECHR 1999 ‑ I ). The extent of that obligation may vary according to the nature of the decision and must be considered in the light of the circumstances of each case (see Ruiz Torija v. Spain , judgment of 9 December 1994, Series A no. 303 ‑ A , p. 12 , § 29 ; Hiro Balani v. Spain , judgment of 9 December 1994, Series A no. 303 ‑ B , pp. 29-30, § 27; and Higgins and Others v. France , judgment of 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I, p. 60 , § 42).

8. It is true that, in the present case, the complaint submitted by the applicant under Article 6 § 1 of the Convention did not concern the lack of reasoning in a decision emanating from a court. It is also true that State Counsel is not bound, as regards the reasoning of decisions within his remit, by the same obligations as those of judges.

9. However, the Court has already had occasion to criticise the practice whereby State Counsel in Greece have dismissed , by laconic handwritten notes, requests submitted to them by litigants (see, mutatis mutandis , Gorou v. Greece (no. 4) , no. 9747/04, 11 January 2007 ).

In the case of Gorou v. Greece (no. 4) , cited above, the Court found as follows:

“22. ... The Court notes that State Counsel essentially represents the interests of society in criminal proceedings (see Kampanis v. Greece , judgment of 13 July 1995, Series A no. 318 ‑ B, p. 48 , § 56). Moreover, it is clear from Article 24 of the Code on Judicial Organisation and the Status of Judicial Organs (see paragraph 13 above) that State Counsel enjoys guarantees of independence from both the executive and the parties to the dispute. In addition, as far as the present case is concerned, the response to the applicant ’ s request did not depend on the discretion of State Counsel at the Court of Cassation. On the contrary, in accordance with Article 139 of the Code of Criminal Pro cedure (see paragraph 14 above) he was supposed to give reasons in his response .”

10. I therefore consider that the lack of specific reasoning to substantiate the finding that the applicant ’ s request did not contain any legal or well-founded ground of appeal was capable of rendering State Counsel ’ s decision arbitrary , having regard in particular to its decisive nature for the applicant ’ s right to appeal to the Court of Cassation.

11. Accordingly, I am of the opinion that there has been a violation of Article 6 § 1 of the Convention under this head.