CEDH · CASELAW;CLIN;ENG — 20 mars 2009

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 117 March 2009 Gorou v. Greece (no. 2) [GC] - 12686/03 Judgment 20.3.2009 [GC] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Dispute Request to public prosecutor at Court of Cassation to lodge appeal on points of law attesting to genuine “dispute” over civil right: article 6 applicable Fair hearing Summary rejection of request to appeal to the Court of Cassation: no violation Facts : The applicant, a civil servant in the Ministry of National Education, filed a criminal complaint for perjury and defamation against her superior, S.M., with an application to join the proceedings as a civil party, but without claiming compensation. Before the criminal court, the applicant reiterated her civil-party application, claiming 1,000 drachmas (about 3 euros). On the same day, the criminal court acquitted S.M. of the charges against him. The applicant requested the public prosecutor at the Court of Cassation to lodge an appeal on points of law against the criminal court’s judgment, under Article 506 § 2 of the Code of Criminal Procedure. The public prosecutor at the Court of Cassation returned the applicant’s letter with the following handwritten comment marked on the request: “There are no legal or well-founded grounds of appeal to the Court of Cassation”. Law (a) Complaint concerning the lack of reasoning for the decision by which the public prosecutor at the Court of Cassation refused the request to appeal on points of law: (i) Preliminary objections – As to the civil nature of the proceedings, the applicant had joined the criminal proceedings for perjury and defamation as a civil party, claiming about three euros. Article 6   §   1 was therefore applicable, first of all because the proceedings complained of affected the applicant’s right to enjoy a “good reputation”. Moreover, the proceedings had an economic aspect, on account of the sum – however symbolic – of about three euros which the applicant claimed in joining them as a civil party. Conclusion : preliminary objection dismissed (unanimously). As to the characterisation of the request to the public prosecutor, this was a special case as the applicant argued that the right to appeal on points of law through the public prosecutor at the Court of Cassation derived not from the law but from an established judicial practice: that of recognising the possibility for a civil party to request the public prosecutor at the Court of Cassation, who was accustomed to replying, albeit in a summary manner, to such requests, to appeal on points of law. It was therefore more appropriate to examine the real impact of the applicant’s request and to ascertain whether the initiative in question was an integral part of the civil-party application procedure and whether it was thus directly related to the initial “dispute”. The Court considered that it would be more faithful to the reality of the domestic legal order to take into consideration the practice in question and to accept that the applicant’s request to the public prosecutor was a logical part of her challenge to the judgment in which her claim for compensation as a civil party had been rejected. In addition, the Court observed that if the public prosecutor at the Court of Cassation had lodged an appeal on points of law, the applicant’s request would have been inextricably linked to the subsequent proceedings. It would therefore be artificial, in these circumstances, to deny that the applicant’s request to the public prosecutor arose from a real “dispute”, since the request formed an integral part of the whole of the proceedings that the applicant had joined as a civil party with a view to obtaining compensation. Consequently, the applicant’s request to the public prosecutor at the Court of Cassation had related to a “dispute over a civil right” for the purposes of Article   6 § 1. Conclusion : preliminary objection dismissed (eleven votes to six). (ii) Merits – The Court noted that, when an acquittal had been decided, under domestic law the civil party was not, in principle, entitled to appeal directly on points of law or to seek redress from the public prosecutor at the Court of Cassation. The Court had nevertheless acknowledged that the existence of an established judicial practice could not be disregarded in this case. The public prosecutor was accustomed to replying, albeit in a summary manner, to such requests from the civil party to appeal on points of law.   Moreover, it was noted that, under Article 506 of the Code of Criminal Procedure, a “positive” decision by a public prosecutor was not addressed to the civil party but gave rise to the prosecutor’s own appeal on points of law. Similarly, a “negative” decision meant that the public prosecutor declined to lodge an appeal on points of law himself. Lastly, contrary to the applicant’s assertions, no particular obligation to give reasons arose from the relevant domestic law. To sum up, the handwritten note placed on the applicant’s request simply gave information about the discretionary decision taken by the public prosecutor. Seen from that perspective, and having regard to the existing judicial practice, the public prosecutor did not have a duty to justify his response but only to give a response to the civil party. To demand more detailed reasoning would place on the public prosecutor at the Court of Cassation an additional burden that was not imposed by the nature of the civil party’s request for him to appeal on points of law against an acquittal. So, by indicating that “[t]here [were] no legal or well-founded grounds of appeal to the Court of Cassation”, the public prosecutor had given sufficient reasons for his decision to reject the request. Conclusion : no violation (thirteen votes to four). (b) Complaint concerning the length of the proceedings: Like the Chamber, and for the same reasons, the Grand Chamber considered that there had been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings as a whole. Conclusion : violation (unanimously). Article 41 – EUR 4,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes