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ANNEN v. GERMANY - JUDGMENT
A. Admissibility
1. The parties’ submissions
33. The Government argued that the applicant, when lodging his
complaint under Article 10 of the Convention, had simply referred to the
statements he had made in his constitutional complaint to the Federal
Constitutional Court, without submitting any further arguments under the
Convention. Therefore, the application had not been sufficiently
substantiated.
34. Moreover, the Government contended that the applicant had failed to
lodge an appeal with the Federal Court of Justice against the Court of
Appeal’s decision not to grant leave to appeal. They also pointed out that
the Federal Constitutional Court had refused to admit the applicant’s
complaint for adjudication for being inadmissible. Thus, he had failed to
exhaust domestic remedies.
35. The applicant contested this view, outlining in particular that his
submissions regarding the alleged violation had been clear and precise in
themselves.
2. The Court’s assessment
36. While the Court is not persuaded that a mere reference to the
submissions before a domestic supreme jurisdiction represents sufficient
substantiation of a complaint under the Convention, it notes that the
applicant indicated the factual basis of the complaint as well as the nature of
the alleged violation of the Convention. The Court is therefore satisfied that
the applicant fulfilled the requirements to introduce a sufficiently
substantiated complaint (compare, mutatis mutandis, Allan v. the United
Kingdom (dec.), no. 48539/99, 28 August 2001 and Božinovski v. the former
Yugoslav Republic of Macedonia (dec.), no. 68368/01, 1 February 2005).
37. With regard to the applicant’s failure to lodge an appeal on points of
law with the Federal Court of Justice, the Court notes that this appeal is one
of the remedies which should, in principle, be exhausted in order to comply
with Article 35 § 1 of the Convention. However, in the present case, by
decision of 12 February 2008, the five judges of the Federal Court of Justice
who were also competent to adjudicate the applicant’s case, refused to grant
the applicant legal aid to lodge an appeal against the Court of Appeal’s
decision not to grant leave to appeal, arguing that his appeal had no
reasonable prospects of success. The Court notes that appeals to the Federal
Court of Justice, before which the applicant is obliged to be represented by a
lawyer specially admitted to that court, can succeed only on points of law. In
the light of the reasons given by the Federal Court of Justice for refusing to
grant the applicant legal aid, it considers that the applicant cannot be blamed
for having failed to exhaust domestic remedies by not continuing with the