38
GÄFGEN v. GERMANY JUDGMENT
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3. Everyone charged with a criminal offence has the following minimum rights:
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(c) to defend himself in person or through legal assistance of his own choosing ...”
A. Scope of the case before the Grand Chamber
134. The Court notes that before the Grand Chamber, the applicant also
repeated his complaint under Article 6 that he had been deliberately refused
contact with his defence counsel on 1 October 2002 until all the evidence
against him had been secured. According to its case-law, the “case” referred
to the Grand Chamber is the application as it has been declared admissible
by the Chamber (see, inter alia, K. and T. v. Finland [GC], no. 25702/94,
§ 141, ECHR 2001-VII; Göç v. Turkey [GC], no. 36590/97, § 36, ECHR
2002-V; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 66,
ECHR 2004-XI). As the Chamber, in its decision on admissibility of
10 April 2007, found that the applicant had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention in respect of the
complaint concerning consultation of his defence counsel, the Grand
Chamber has no jurisdiction to examine it.
B. The Government’s preliminary objection
135. The Government objected that the applicant had failed to exhaust
domestic remedies as required by Article 35 § 1 of the Convention in
respect of his remaining complaint under Article 6. He had not properly
raised before the domestic courts his complaints about the failure to
discontinue the criminal proceedings against him and the failure to exclude
the use in those proceedings of items of evidence obtained as a result of the
prohibited methods of investigation.
1. The Chamber judgment
136. The Chamber did not consider it necessary to rule on the
Government’s preliminary objection, which it had joined to the merits of the
complaint under Article 6, as it found that there had been no violation of
Article 6 (see paragraph 86 of the Chamber judgment).
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