DISSENTING OPINION OF JUDGE BRIEDE

( Translation )

1. I regret that I am unable to subscribe to the findings and the reasoning of the majority in this case. It is my firm conviction that, given the steps taken by the Latvian authorities in 2005 to regularise the applicant ’ s stay, the latter can no longer claim to be a “victim” of the alleged violation of Article 8 of the Convention. I shall set out below the reasons why I have reached this conclusion.

2. Let me first make two preliminary remarks. Firstly, to my mind, the case as it stood at the time of adoption of the judgment bears a close resemblance to the case of Sisojeva and Others v. Latvia (no. 60654/00, judgment of 16 June 2005), in which Judge Vajić and I expressed a joint dissenting opinion. I will therefore refer to that opinion, while adding some further comments.

3. Secondly, although in the instant case – unlike Sisojeva – this issue does not appear to be central, I should like nonetheless to reiterate that Article 8 of the Convention cannot be construed as guaranteeing as such the right to a particular type of residence permit. Where the domestic legislation provides for several different types, the Court must analyse the legal and practical implications of issuing a particular permit. If it allows the holder to reside within the territory of the host country and to exercise freely there the rights secured by Article 8 § 1 of the Convention, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision (see, mutatis mutandis , Mehemi v. France (no. 2) , no. 53470/99, § 55, ECHR 2003 - IV). I n such cases, the Court is not competent to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone.

4. Accordingly , I should like to move on directly to the main issue at stake in this case, namely the definition of the status of “victim” within the meaning of Article 34 of the Convention . Admittedly, in dismissing the Government ’ s preliminary objection, the majority was simply following well-established case-law; however, in my view, that case-law is erroneous.

5. In paragraphs 43-44 of the judgment, for instance, the majority states:

“ 43. ... Furthermore , in relation to Article 34, the Court has always held that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a ‘ victim ’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the alleged breach of the Convention ...

44. W here the person concerned complains in particular of his or her deportation or illegal status within the country, the minimum steps required are, firstly, the setting ‑ aside of the deportation order and, secondly, the issuing or recognition of a residence permit .. . However, it is also necessary to ascertain in each case whether these measures are sufficient to fully remedy the complaint in question. ”

6. Furthermore, in its recent decision in the case of Fjodorova and Others v. Latvia (no. 69405/01, 6 April 2006), the Court held:

“ The Court reiterates that an applicant who has obtained adequate redress at domestic level for the alleged violations of the Convention may no longer claim the status of ‘ victim ’ .. . That rule applies even if the applicant obtains satisfaction after the proceedings before the Court have commenced, in accordance with the subsidiary nature of the Convention system of safeguards. As a general rule, where the applicant complains of his deportation and, consequently, of his irregular status within the country, the quashing of the deportation order against him and the granting of a residence permit are sufficient for him no longer to be able to claim to be a ‘ victim ’ ... ”

7. The Court ’ s usual approach can thus be summarised as follows:

(1) as a general rule , in order for the applicant to lose his or her status as “victim”, the Government must meet both of the following conditions: (a) it must acknowledge the existence of a violation of the Convention and (b) it must afford redress for it;

(2) in some specific cases , providing effective redress for the complaint is sufficient to deprive the applicant of his or her “victim” status. Cases concerning deportation and extradition therefore constitute a special category, one in which regularisation of the applicant ’ s stay is in principle sufficient, without the respondent Government needing also to “acknowledge” the existence of a violation.

8. Leaving aside the somewhat inconsistent nature of this approach (as is clear in the Fjodorova decision, the first of these conditions is not always mentioned, with the result that it is not easy to discern where and when acknowledgement is actually a requirement), I should like to recall the background to it . The rule referred to above appears for the first time in Eckle v. Germany (judgment of 15 July 1982, Series A no. 51, pp. 30 ‑ 31, §§ 66-67):

“ 66. ... [M] itigation of sentence and discontinuance of prosecution granted on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim ... ; they are to be taken into consideration solely for the purpose of assessing the extent of the damage he has allegedly suffered ...

The Court does not exclude that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention ... In such circumstances, to duplicate the domestic process with proceedings before the Commission and the Court would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention ...

67. ... Accordingly, it has to be ascertained whether, as the Government submitted, the German courts held that Article 6 par. 1 had been breached and, if so, whether they granted redress . ”

9. Allow me to remind you that, in the Eckle case, the applicant was complaining of the length of criminal proceedings against him. However, the above-mentioned formula – “first acknowledge , then afford redress ” – appeared so effective that the Court began to use it in all kinds of cases examined by it. For example: detention of a person pending his deportation ( Amuur v. France , judgment of 25 June 1996, Reports 1996 ‑ III, § 36); freedom of expression ( Dalban v. Romania [GC], no. 28114/95, § 44 , ECHR 1999 ‑ VI ); right to a fair hearing before the Conseil d ’ Etat ( Chevrol v. France , no. 49636/99, § 36 , ECHR 2003 ‑ III ); right to peaceful enjoyment of one ’ s possessions ( Brumărescu v. Romania [GC], no. 28342/95, § 50 , ECHR 1999 ‑ VII ); electoral rights ( Ždanoka v. Latvia [GC] , no. 58278/00, § 69 , ECHR 2006- ... ), and so forth.

10. I do not dispute the fact that, in some cases, application of this formula was justified. What concerns me is that, by dint of excessive recourse to this principle, the Court has ultimately lost sight of its exceptional nature. In other words, it has , little by little, made into a general rule something which ought not to be , while at the same time turning the general principle into an exception.

11. It should be borne in mind that, in the Eckle case, the Court was faced with an exceptional situation, in which the applicant was complaining of the length of two sets of criminal proceedings which had lasted approximately seventeen and ten years respectively (see Eckle , cited above, § 79). As the Court observed at the very beginning of its reasoning, “s uch a delay is undoubtedly inordinate and is, as a general rule, to be regarded as exceeding the ‘ reasonable time ’ referred to in Article 6 § 1 ” (ibid., § 80); this, then, was a case in which it was clear from the outset that a violation would be found . There are certainly many other cases of this type – relating, for instance, to allegations of torture or ill-treatment – in which the finding of a serious violation of the Convention is more or less a foregone conclusion (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, ECHR 1999 ‑ V ). In such cases it is not unreasonable to assert that, in view of the nature and seriousness of the alleged violations, the Government should first acknowledge that the person ’ s fundamental rights were violated. However, I would stress that this category of cases is still the exception and represents a minority ; the present case certainly does not fall into this category.

12. Of course, some might counter this argument by saying that the Court arrived at the reasoning in question as a result of its dynamic and changing interpretation of the Convention. Nevertheless, a s I see it, the interpretation of legal rules, no matter how dynamic it is, must not produce an absurd or illogical outcome; the formula in question, however, leads us to precisely such a logical dead-end. It is clear that the status of “victim” within the meaning of Article 34 of the Convention ( locus standi ) is quite separate from the issue of whether or not the rights conferred by the Convention have been violated. That being the case, how can the Court require the State to acknowledge the existence of a violation of the Convention if it is not yet sure of it itself ?

13. In my opinion, the present case offered an excellent opportunity to remedy this situation; unfortunately, the majority has not taken that opportunity . Be that as it may, I remain convinced that, as a general rule , the domestic authorities deprive the applicant of his or her victim status when they effectively bring to an end the situation complained of and afford adequate redress . Only in exceptional cases (a category to which this case does not belong) do the seriousness and flagrant nature of the alleged violation require that the State first acknowledge that there has been a violation.

14. One last point: I should like to register my disagreement with paragraph 47 (and also paragraph 48) of the judgment. In dismissing the Government ’ s preliminary objection, the majority referred to the decision in Aristimuño Mendizabal v. France ( no. 51431/99, 21 June 200 5 ; see also the judgment of 17 January 2006). In my view, the Aristimuño Mendizabal case is fundamentally different from the present case. Mrs Aristimuño Mendizabal complained of a situation of uncertainty created by the fact that, despite the existence of Community legislation entitling her to reside in France permanently , she had been obliged to seek temporary regularisation of her stay every three months over a fourteen-year period. Hence, I see no resemblance, however remote , to the situation of Mrs Shevanova, and I do not believe that the case cited above can serve as a precedent in the instant case.

15. In the light of the above I would have take n the view , unlike the majority , that, given the measures proposed to the applicant in order to regularise her stay, she could no longer claim to be a “ victim ” of a violation of Article 8 of the Convention. For that reason I would have concluded that the matter giving rise to the present case ha d been resolved and that the application should be struck out of the Court ’ s list of cases in accordance with Article 37 § 1 (b) of the Convention. Such a solution would also have been fair from the applicant ’ s point of view since, had the Court struck out the application, it would have been able to reimburse her costs and expenses under Rule 44 § 3 of the Rules of Court (see Pisano v. Italy [GC] (striking out), no. 36732/97, § § 51 ‑ 56, 24 October 2002 ). That is why I voted with the majority on the question of just satisfaction, while specifying that my agreement related only to the amount of one thousand euros awarded by the Court for costs and expenses.

[1] See also the arguments set out in F. Sudre et al , Les grands arr êts de la Cour européenne des Droits de l’Homme , 3rd edition, Paris, PUF, Coll. Thémis Droit, 2003, p. 474.

[2] See also F. Sudre, Droit européen et international des droits de l’homme , 7th edition, Paris, PUF, Coll. Droit fondamental, 2005, p. 429.