DISSENTING OPINION OF JUDGE KŪRIS, JOINED BY JUDGES SAJ Ó, TSOTSORIA AND VEHABOVI Ć

1. I could not vote for a finding of no violation of Article 6 § 1 of the Convention (point 2 of the operative part of the judgment) for reasons largely corresponding to those expounded in Judge Pinto de Albuquerque ’ s dissenting opinion. I would like to emphasise the importance of a more nuanced approach to the difference between the Court ’ s straightforward “orders” to reopen the proceedings, actually issued to the domestic judicial authorities, and its less assertive suggestions that such reopening might be the (most) appropriate or even the only form of redress of the Convention violation (see, e.g., §§ 2, 8, 18 and 57 of Judge Pinto de Albuquerque ’ s opinion), which, not amounting to “orders” in the proper sense of the word, only indirectly compel the domestic judicial authorities to reopen the proceedings in order to meet, at last, the requirements of the Convention. Nevertheless, this difference in our approaches as to the Court ’ s “dictating” and “engineering” is not really relevant to the present case. Even if not all Court ’ s “recommendations” (abundant and diverse as they are) to reopen the proceedings or apply other individual measures may be read as direct “orders”, I agree with the overall thrust of Judge Pinto de Albuquerque ’ s reasoning as to how this particular case had to be decided.

There are, however, some points which I want to underscore, or in some cases to complement the considerations of my distinguished colleague. I address these points in this additional dissenting opinion, working on the basis of the majority finding (and, in the end, I allowed myself to be convinced) that Article 46 does not preclude the applicant ’ s complaint from examination under Article 6.

2. The language used by the Court throughout its case-law “recommending” that respondent States, after the Court has found a violation of Article 6, conduct a retrial or to reopen proceedings has often been too tentative and therefore somewhat uneven, confusing and inconsistent with the substance of the message it wished to convey to the States concerned. [163] The Court ’ s stance which that language reveals, or sometimes effectively conceals, may also be seen as confusing, at least in some cases.

This judgment had made the situation not less, but perhaps even more , confusing .

3. However, this general inconsistency (which is not so overwhelming, so this quality should not be exaggerated) of the “recommendations” in question is immaterial to the present case. That is because the Court ’ s stance on the reopening of proceedings examined in the judgment of 5 July 2011 is unambiguous , or rather was unambiguous until the present judgment was adopted. It would not be easy, if in fact possible, to discern anything in paragraph 41 of the Court ’ s judgment of 5 July 2011 which would have permitted the Portuguese Supreme Court to refrain from reopening the applicant ’ s case.

4. Should the Court have stated more explicitly in 2011 that the proceedings in the applicant ’ s case had to be reopened? With hindsight, one might think so. Such explicitness would have saved it from the major embarrassment which the present judgment entails.

5. At all events, even in the absence of such explicitness, the message which is contained in the last sentence of paragraph 41 of the Court ’ s judgment of 5 July 2011 was very clear. Very, very clear. The Court stated that “the applicant was not given a hearing by the [Oporto] Court of Appeal” (my emphasis).

In other words, the Court then concluded that what was given to the applicant by the Oporto Court of Appeal was not a hearing , because a hearing requires, as a minimum, that a person accused of a criminal activity be heard .

The applicant was not heard . The judicial procedure in question was anything but a hearing .

6. This fundamental finding, plain as it is, could not and should not be overshadowed by considerations as to the “particular circumstances of the individual case” (see paragraphs 20, 93 and 94 of the judgment).

Regrettably, it was.

7. This message also could not and should not be camouflaged – but, alas, was so camouflaged – by the Court ’ s admission of “satisfaction” that the Supreme Court of the respondent State, Portugal, displayed no arbitrariness in the treatment of the applicant ’ s case, because, in the majority ’ s opinion, it did not “distort or misrepresent the judgment delivered by the Court” (see paragraph 96 of the judgment).

As a matter of fact, it did .

8. There is no doubt that the Portuguese Supreme Court was right to conclude from the Court ’ s case-law, in its entirety, that a retrial or reopening of proceedings may not always be indispensable. The Court itself confirmed such a reading of its case-law by acknowledging, in the present judgment, that “a retrial or reopening of the proceedings, if requested, represented ‘ in principle an appropriate way of redressing the violation ’ ” and that “the State[s are granted] an extensive margin of manoeuvre in that sphere” (see paragraphs 92 and 93 of the judgment). However, the Supreme Court misread, not the Court ’ s case-law in its entirety , but the judgment of 5 July 2011 , particularly the last sentence of paragraph 41 (in the context of a more general representation of “recommendations” contained in other sentences of that paragraph, where the Court referred to and cited its earlier case ‑ law), concluding that a retrial or reopening of proceedings was unnecessary, not in general, but in the applicant ’ s case .

9. In terms of the science of logic, this is the fallacy of inference by induction . Inductive inferences, unlike deductive ones, are never certain: they are – at best – only probable and have to be supported by additional evidence or arguments.

Coming to the issue under consideration, a retrial or reopening of proceedings, in general, may indeed not be necessary in each and every case.

It may – again in general – even be “exceptional”, to quote Recommendation No. R (2000) 2 of 19 January 2000 (see paragraph 32 of the judgment).

That, however, does not mean that it is also unnecessary in a case where no hearing took place at all .

10. This fallacy, banal as it is, is less visible in the reasoning of the Portuguese Supreme Court, because the latter explicitly dealt with the Court ’ s case-law in its entirety only incidentally. The Supreme Court was preoccupied, first and foremost, with the application of Portuguese domestic law pertaining to (non-)retrial or (non-)reopening of proceedings, rather than with the overall assessment or detailed analysis of the Court ’ s case-law more or less magisterially “recommending” a retrial or reopening of proceedings. [164]

But this fallacy is straightforward, palpable, even glaringly exposed in the present judgment of the Grand Chamber. To wit, having admitted that “a retrial or reopening of the proceedings, if requested, represented “ in principle an appropriate way of redressing the violation ” ” and that “the State[s are granted] an extensive margin of manoeuvre in that sphere” (see paragraphs 92 and 93 of the judgment), the majority proceed to conclude that, “ [a] ccordingly , the reopening of proceedings did not appear to be the only way to execute the Court ’ s judgment of July 2011 ” (see paragraph 94; my emphasis).

“Accordingly”?!

This is induction par excellence – in its most perverse and flaw-ridden manifestation.

11. The majority gives great prominence to the words “however” and “in principle”, uttered in paragraph 41 of the Court ’ s judgment of 5 July 2011 (see paragraph 92 of the judgment).

This proves little, if anything at all, and not only because these words, unlike the last sentence of the said paragraph, which indeed pertains to the situation under examination, migrated – as is typical of the Court ’ s case-law – to that judgment from the Court ’ s earlier case-law, and have not been “adapted” to the circumstances of the applicant ’ s case.

It would hardly be possible to disagree with the majority that “the use of the expression ‘ in principle ’ narrows the scope of the recommendation, suggesting that in some situations a retrial or the reopening of proceedings might not be an appropriate solution” ( ibid .). But does the majority prove in any way that this recommendation was not to be followed, precisely, in the applicant ’ s situation ?

Most regrettably, no.

12. It is most distressing to discover such pronounced logical (would “illogical” be a better term?) fallacies in the explicit reasoning of the Grand Chamber. But the readership is compelled to read what has been written, even if what has been written runs counter to the laws of logic. Now these illogicalities are carved in the stone of the law of the Convention, as interpreted and applied by the Court.

13. Article 6 § 1 explicitly speaks of a “fair and public hearing”, which is the essence of the right to a fair trial.

A hearing , no less.

Would it still be football if there were no ball on the field?

Would it still be a swimming competition if there were no water in the pool?

For a trial to be “fair” (or “unfair”), first of all, there must be an actual hearing of the accused .

A zero, a vacuum, a nonentity, a nothingness , something that has never taken place, never existed and continues not to exist cannot be “fair” or “unfair”.

In its judgment of 5 July 2011, the Court itself stated that there was no hearing at all in the applicant ’ s case. So, there is nothing left which could be “fair”.

And nothing to comply with Article 6 § 1 – not only in its procedural limb (to which the Portuguese Supreme Court limited its misrepresentation and misinterpretation of the Court ’ s judgment of 5 July 2011), but also, and first and foremost (!), in its substantive limb.

14. Has anything changed in this respect since 5 July 2011 – in law or in reality?

Not really. There was no hearing then , and no hearing took place after that date – in the same criminal case.

Six years ago, the fact of not holding a hearing in a criminal case was considered, by the Court, unanimously, to have been contrary to Article 6 § 1. Today, however, the continuous absence of a hearing in the same criminal case is considered not to be contrary to Article 6 § 1.

15. The Portuguese Supreme Court and the majority of the Grand Chamber simply (?!) overlooked the fact that “the applicant was not given a hearing ” in the criminal case against her. If – as the majority so uncritically accept – the respondent State, Portugal, did indeed enjoy, not only in general, but also in this particular applicant ’ s case , an “extensive margin of manoeuvre” in “redressing the violation” found by the Court ’ s judgment of 5 July 2011, it would have been highly felicitous for the majority to have mentioned examples of one or two possible “manoeuvres” from their “extensive” spectrum that would not amount to “not giving a hearing to the applicant”, especially after having stated that a reopening of proceedings – presumably in such a way that the accused person is heard – would have been only “the most desirable option” ( ibid .).

No such examples are to be found in the judgment.

No wonder.

It is not found in the judgment because, as a matter of principle, it cannot be worded in any satisfactory way.

And it cannot be worded in any satisfactory way because the redress for “not giving a hearing” can only be giving a hearing (at last!) to a person to whom it was denied.

16. So what was so “satisfactory”, for the majority, in the Portuguese Supreme Court ’ s treatment of the case? What was it , given that the reasons for such a treatment were based on cold-shouldering the Court ’ s explicit finding that the applicant was denied a hearing in her criminal case – which cold-shouldering effectively amounts to a misreading of the Court ’ s judgment of 5 July 2011?

17. The answer from the majority is bewildering. They are satisfied that “the Supreme Court ’ s reading of the Court ’ s 2011 judgment..., viewed as a whole , [was not] the result of a manifest factual or legal error leading to a ‘ denial of justice ’ ” (see paragraph 97 of the judgment; my emphasis).

To put it bluntly, henceforth, proceedings leading to a person ’ s conviction may be justified from Article 6 perspective “as a whole” even when that “whole” does not encompass a hearing . A conviction without a hearing is acceptable from the perspective of the Convention! For the Court, holding no hearing in a criminal case but nevertheless convicting a person is not a denial of justice !

What then does constitute such a denial?

To continue, justice in a criminal case now can be done without a hearing.

A rhetorical question: what would be the value of such “justice”?

18. For the applicant in the instant case this judgment means the following: ( i ) she was not granted a hearing in her criminal case; (ii) the Court found this to be not in line with the Convention (iii) then she was repeatedly denied such a hearing; (iv) the Court found that now this denial of a hearing was in line with the Convention.

19. It seems that the majority of the Grand Chamber is of the opinion that that hearing, which was never granted to the applicant, was not necessary anyway . So the applicant ’ s conviction stands, despite having been adopted outside the hearing procedure. The Portuguese Supreme Court found that her “conviction [was] not incompatible with the European Court ’ s binding decision, and no serious doubts [arose] as to its validity” (see paragraph 26 of the judgment), and the “European Court” upheld this fundamentally erroneous assessment, even though, previously, the same Court had found that that conviction of the applicant was adopted outside the hearing procedure.

Does this not amount to an effective – although indirect and implicit – overruling of the Chamber judgment of 5 July 2011 – many years later? A virtual overruling, in which something which was earlier considered to have been a fundamental, essential substantive defect in the judicial process under examination has been downgraded to a minor, insignificant procedural error.

20. The Portuguese Supreme Court erred in holding that “[t]he European Court ... precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence actually imposed” (see paragraph 26 of the judgment).

But it did raise doubts – and serious ones! – both then and now, although those doubts could be dispelled by granting the applicant a hearing. (I myself would have been ready to accept that that they had been dispelled if the applicant had been heard in her criminal case.) However, these doubts have been dispelled not one jot by this judgment, which, by the way, was adopted by a slim majority of only one vote (9 votes to 8, whereby one of the judges who actually voted for the operative part of the judgment of 5 July 2011 is with the majority and two are with the minority).

21. What is more, not only has this judgment not at all clarified the Court ’ s case-law pertaining to a retrial or the reopening of proceedings after a finding by the Court of a violation of Article 6, but also it has produced new doubts . Below I shall name but a few of those doubts (one pertains to the applicant ’ s conviction, one is of a hypothetical nature, and one is of a more general character).

22. With regard to the applicant ’ s situation, there is a doubt as to the legitimacy (as a category in its widest non-legalistic sense, juxtaposed and at times even opposed to formal legality) of her conviction without a hearing, indeed in the context of an explicit denial of a hearing. Can this conviction be regarded as meeting the standards of Article 6 § 1 with its emphasis on “hearing”?

The Court has found that it can. Nevertheless, one may, and probably should, ask: how legitimate is this finding in the eyes not (only) of the law but (also) of fundamental justice, for the fulfilment of which law it is (or should be) merely a means to an end rather than an end in itself?

23. The hypothetical doubt is as follows: if the same applicant ever finds herself in a situation similar to the one dealt with by the Matosinhos District Court and the Oporto Court of Appeal, can they again dispense with a hearing and convict her?

I am afraid that the Court has held that they can. Or, rather, they could not prior to the adoption of this judgment, but now they can.

24. However, the present judgment also raises a more general question of principle, that is to say, a disturbing question as to the spectrum, or variety, of “manoeuvres” which member States are allowed to entertain in convicting persons without holding a hearing [165] and still to be “covered” by the “margin of manoeuvre” so generously granted to them by the Court? How wide is this spectrum? How many other “non-hearing” situations might potentially fall within this gamut and thus be considered not to have occasioned a denial of justice?

25. In this context, the caveat set out in paragraph 99 of the judgment serves little practical purpose and gives little comfort to those who are still waiting for the Strasbourg Court to do justice in the cases which it decides. In that paragraph, the Court reiterates, for the umpteenth time in its case ‑ law, the “importance of ensuring that domestic procedures are in place whereby a case may be re-examined in the light of a finding that Article 6 of the Convention has been violated” and that “such procedures may be regarded as an important aspect of the execution of its judgments and their availability demonstrates a Contracting State ’ s commitment to the Convention and to the Court ’ s case-law” (my emphasis). Since not only the “putting in place” of the said procedures, but also the ( mis )interpretation of the meaning of the Court ’ s “recommendations” fully depends on the will of the authorities of the Contracting States, even where that will is not to reopen the proceedings , and the Court tends to limit its role to merely approving this will, this caveat is but an edentate, pussycat-like reminder of what the Convention was meant for but what it sometimes – as in the instant case – fails to accomplish.