DISSENTING OPINION OF JUDGE SERGHIDES

1. One of the main procedural irregularities complained of by the applicant (see paragraph 31 of the judgment) was the lack of access to a court as a result of section 27(2) of the Courts of Justice Law 1960 (Law 14/1960), as amended, and the Supreme Court’s inability to decide on the merits of his appeal and to overrule his conviction (see paragraph 34 of the judgment). In view of the applicant’s complaints, a question concerning the right of access to a court was, inter alia, communicated to the parties.

2. The majority in the Chamber turned their attention to the issue of the absence of sufficient reasoning, or rather the lack of a reasoned judgment, and did not genuinely address the issue of access to a court, simply considering that section 27(2) of Law 14/1960 was not per se contrary to Article 6 of the Convention (see paragraph 43 of the judgment). I respectfully disagree with the judgment (point 2 of its operative part) that there has been no violation of Article 6 § 1. In this connection, I consider that the main issue raised in this case is whether the dismissal of the applicant’s appeal as a result of a tie vote was in breach of his right of access to a court and therefore in breach of his right to a fair trial under Article 6 of the Convention, for the reasons I will explain below. In forming this opinion, I took into account the parties’ observations regarding the issue of access to a court, including the Court’s existing case-law on the matter (see paragraph 6 of this opinion).

3. In Maresti v. Croatia (no. 55759/07, § 33, 25 June 2009), the Court reiterated that Article 6 of the Convention did not compel the Contracting States to set up courts of appeal or of cassation, but where such courts did exist, the guarantees of Article 6 had to be complied with, for instance in that it secured to litigants an effective right of access to the courts.

4. According to the principle of effectiveness [1] , which applies to every Convention provision including Article 6, the right of access to a court must be “practical and effective”, not theoretical and illusory. The effectiveness of access to a court presupposes that an individual has a clear and concrete opportunity to challenge an act constituting an interference with his or rights [2] . Equally, the right of access to a court includes not only the right to institute proceedings, but also the right to obtain a determination of the dispute by a court [3] .

5. In my humble view, there has been a violation of Article 6 since the applicant did not have access to a court owing to the tie vote reached by the Supreme Court, sitting as an appeal court. In my opinion there has been no final determination of the applicant’s criminal rights. That was, firstly, due to the automatic mechanism of section 27(2) of Law 14/1960 which, as a result of the tie vote, did not allow the Supreme Court to reach a final determination on the merits of the case; and, secondly, due to the fact that the Supreme Court allowed itself to be composed of an even number of judges. Consequently, the applicant’s right of access to a court was curtailed to such an extent as to impair its very essence.

6. The proposed view is consonant with and is supported by the established case-law of the Court. In Marini v. Albania (no. 3738/02, § 122, 18 December 2007) , the Court held:

“The Constitutional Court’s failure to reach a majority on the proposals before it left the applicant without any final determination on his case and accordingly restricted the essence of his right to access to a court. On that account there has been a breach of Article 6 § 1 of the Convention.”

Similarly, in Avdić and Others v. Bosnia and Herzegovina (nos. 28357/11, 31549/11, 39295/11), the Court, “see[ing] no reason to depart from its line of reasoning in the Marini case”, found that there had been a violation of Article 6 § 1 of the Convention” (§ 39). As the Court observed, the Constitutional Court, failing to reach a majority, declined to determine the applicants’ civil rights and obligations (§ 37). As the Court also held in Avdić , referring to Marini , “[w]hen there is no real ‘determination’ of civil rights and obligations, the right of access to court remains illusory” (ibid., emphasis added).

7. The ratio decidendi of the present case and the above two cases are in effect the same, namely, that if there is no real determination of rights (whether criminal or civil or constitutional) by the domestic courts due to a rule preventing them from determining the rights in question, this amounts to having no access to a court and therefore to a violation of Article 6. It is immaterial, in my view, whether this rule is in nature an evidential rule (e.g. regulating the result of a tie vote), as in the present case, or a procedural rule (e.g. regulating failure to reach the required majority), as in the other two cases. The important common issue in all three cases is that due to the existence of such a rule and the consequential lack of real determination of the rights concerned, the right of access to a court is not practical and effective, but has become theoretical and illusory. To my mind, a real determination of the applicant’s rights cannot be the dismissal of his appeal and the non-reversal of the first instance court’s decision on the basis of a tie vote and the automatic mechanism and operation of an evidential rule. Furthermore, it would be futile and also dissuasive for an applicant in general to make an appeal against a decision sentencing him or her to prison and be burdened with all the necessary legal and other costs of doing so, if the appeal court were not really to determine the merits of his appeal and instead to dismiss it with costs, due to an evidential formality.

8. Having decided that the applicant did not have access to a court in the present case, I conclude that there has been violation of Article 6 § 1 of the Convention, and I therefore respectfully disagree with point 2 of the operative part of the judgment finding that there has been no violation of that provision.

9. Regarding the complaint of no reasoned judgment, I consider it to be ratione materiae inadmissible by virtue of Article 35 §§ 3(a) and 4 of the Convention. That is so since access to a court is a sine qua non requirement for the guarantee of a reasoned judgment, and a finding of a violation of Article 6 for lack of access to a court renders the guarantee of a reasoned judgment immediately and automatically devoid of object and existence. Similarly, in my partly dissenting opinion in Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, 1 December 2020), having found that there had been a violation of Article 6, given that there was “no tribunal established by law”, I proposed, by employing the principle of effectiveness, that the complaints concerning the “independence” and “impartiality” guarantees of Article 6 should be regarded as automatically inadmissible ratione materiae , as opposed to the mere finding in the judgment that there was no need to examine those complaints.

10. Turning now to the applicant’s complaints that there has been a violation of: (a) his right to an effective remedy under Article 13 of the Convention, and (b) his right of appeal in criminal cases under Article 2 of Protocol No. 7 to the Convention, following the case-law of the Court, I consider that they raise no separate issues. According to the case-law, Article 6 § 1 is a lex specialis in relation to the provisions of Article 13 and Article 2 of Protocol No. 7, the latter two being absorbed by the former [4] . I therefore disagree with point 1 of the operative part of the judgment, finding these complaints inadmissible rather than considering them as not raising separate issues.

11. Regarding now the applicant’s complaint that his right to be presumed innocent under Article 6 § 2 of the Convention had been breached, I consider it manifestly ill-founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention and, in this regard, I agree with point 1 of the operative part of the judgment. In my view, the applicant mistakenly considered that he had to prove his innocence on appeal. This is so because the presumption of innocence had continued to apply up to the end of appeal proceedings against the conviction (in the present case, until 19 December 2014 when the applicant’s appeal was dismissed by the Supreme Court) [5] .

12. I would award the applicant legal costs and an amount for non-pecuniary damage; however, being in the minority, I do not see any need to specify the amounts I would award.