DISSENTING OPINION OF JUDGE BO Å NJAK

1. I unfortunately cannot agree with the majority that there has been no violation of the Article 6 § 1 of the Convention in the present case.

2 . In my opinion, the majority correctly considers that Article 46 of the Convention does not preclude the examination by the Court of the applicant ’ s complaint under Article 6 of the Convention. Although possibly related to the issue of execution of the Court ’ s judgment delivered on 5 July 2011 on the applicant ’ s first application, the present complaint focuses on the approach taken by the Supreme Court of Portugal (hereinafter “the Supreme Court”) when examining the applicant ’ s request for a reopening of criminal proceedings. Equally, I consider that the majority is right in its conclusions regarding the applicability of Article 6 § 1 of the Convention. Apart from the reasons given in this respect in the judgment of the Court, I believe that in the present case, the examination of the request for a reopening of criminal proceedings cannot be entirely separated from the assessment of the law and facts applicable to the initial determination of a criminal charge against the applicant. In this context, the Supreme Court was expected to re-evaluate the findings of fact and the application of the relevant law in the initial criminal proceedings in the light of the Court ’ s judgment. The Supreme Court considered that the applicant ’ s conviction was not irreconcilable with the judgment of the Court and that no serious doubts could be raised regarding the applicant ’ s condemnation. Therefore, I find no obstacles regarding the applicability of Article 6 § 1 of the Convention in the present case.

3 . When assessing the approach of the Supreme Court in examining the applicant ’ s request for a reopening of criminal proceedings, the majority finds this approach to be compatible with Article 6 § 1 of the Convention. I cannot share that view.

4 . The Supreme Court did not provide any substantive reasoning as to why, in its view, the applicant ’ s conviction was not irreconcilable with the judgment of the Court. This is in itself hardly compatible with the requirements of Article 6 § 1 of the Convention. Moreover, the Supreme Court relied on a reading of the Court ’ s judgment of 5 July 2011 which is manifestly inconsistent with its real meaning. While the Court indicated that it could not “speculate as to what the outcome of the proceedings before the (Oporto) Court of Appeal would have been if it had examined the applicant at a public hearing”, the Supreme Court interpreted this indication as meaning that the Court ’ s judgment could not raise any doubts regarding the applicant ’ s conviction.

5 . This interpretation is all the more unacceptable in the light of the main arguments advanced by the Court in its judgment. The Court in fact noted that the Court of Appeal was called on to examine several questions relating to facts as well as to the applicant ’ s personal characteristics, and in particular the issue of her asserted diminished capacity, which in turn could have had a decisive influence on the determination of the sanction. In the Court ’ s view, this question could not be resolved without direct examination of the applicant ’ s testimony (see paragraphs 33 and 34 of the judgment). In line with those arguments, it is clear that the violation in question could only be entirely set aside by reopening the proceedings before the Court of Appeal, which had to include a hearing of the applicant.

6 . In his dissenting opinion, Judge Pinto de Albuquerque, joined by several other dissenters, analyses the Court ’ s case-law to conclude, inter alia , that the Court holds the power to order a reopening of criminal proceedings in a particular case if a violation of Article 6 of the Convention is found. Be that as it may, it should be seen as undisputed that national authorities may not resort to a manifestly incorrect reading of the law, let alone of fundamental sources of human rights law such as this Court ’ s judgments. Since in the present case the Supreme Court did just that, the violation of Article 6 § 1 of the Convention is evident.

[1] Regarding the nature of the requisite measures to execute judgments finding a violation of the Convention and the European Court’s current practice in that sphere, see Alastair Mowbray , An Examination of the European Court of Human Rights; Indication of Remedial Measures , Human Rights Law Review, not yet published.

[2] This interpretation is in complete conformity with the Explanatory Report to Protocol no. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the supervisory system of the Convention, 13 May 2004, Strasbourg, pp. 18 and 19.

[3] As stated in the Sixth Annual Rapport of the Committee of Ministers 2012, entitled “ Supervision of the execution of judgments and decisions of the European Court of Human Rights ” , Council of Europe, April 2013, which mentions “ increased interaction between the European Court and the Committee of Ministers ” (p. 28), and the statement by Judge Linos-Alexandre Sicilianos e ntitled “ The role of the Court in the implementation of its judgments, powers and limits ” in the framework of the “ Dialogue between Judges, European Court of Human Rights, Council of Europe, 2014 ” , pointing out that “[ o ] ver the past decade the Court has … delivered some 150 judgments referring to Article 46 of the Convention and concerning the execution process ” (p. 19).

[4] Re. the VgT (no. 2) and Emre (no. 2) judgments cited above, see Maya Hertig Randall /Xavier-Baptiste Ruedin , “ Judicial activism and Implementation of the Judgments of the European Court of Human Rights ” , Revue trimestrielle des droits de l’homme 2010, no. 82, pp. 421-443; Maya Hertig Randall , Commentary on the Emre (no. 2) judgment of 11 October 2011 of the European Court of Human Rights, Pratique juridique actuelle 2012, no. 4, pp. 567-573, respectively.

[5] See the concurring opinion of Judge Keller on the Sidabras and Others v. Lituanie judgment (23 June 2015, nos. 50421/08 and 56213/08).

[6] In this opinion, these words are used interchangeably.

[7] See Moreira Ferreira v. Portugal , no. 19808/08, 5 July 2011.

[8] See paragraph 48 of the judgment.

[9] For an early example, Marckx v. Belgium , 13 June 1979, § 58, Series A no. 31.

[10] For some early examples of full reparation see Neumeister v. Austria (Article 50), no. 1936/63 , §§ 40- 41, 7 Ma y 1974, and for partial reparation see Van Mechelen and Others v. The Netherlands (Article 50), nos. 21363/93, 21364/93, 21427/93, § 16, 30 October 1997.

[11] See Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, §§ 11-12. The Court chose the wider concept of restitutio in integrum , which requires the hypothetical inquiry into what the situation would have been if the wrongful act had not been committed. The less demanding concept of restitution, which aims at the establishment of the situation that existed prior to the occurrence of the wrongful act, was rejected (see the commentary on Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (DARSIWA), paragraph 2). It should be added that the commentary of Article 36 of the DARSIWA, paragraph 19, states that “the decisions of human rights bodies on compensation draw on principles of reparation under general international law.” Hence, the DARSIWA doctrine on reparation and especially of its Articles 34-37 must be taken into consideration in the interpretation of the Convention.

[12] See Lyons and Others v. the United Kingdom ( dec. ) , no. 15227/03, ECHR 2003-IX.

[13] See Scozzari and Giunta v. Italy [GC] , nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, and Christine Goodwin v. the United Kingdom [GC] , no. 28957/95, § 120, ECHR 2002-VI.

[14] See Papamichalopoulos v. Greece (Article 50) , no. 14556/89, § 38, 31 October 1995. The operative part replicated the obligation included in the reasoning . Failing such restitution, the respondent State was ordered to pay a certain amount to the applicant. See also Ramadhi and Others v. Albania , no. 38222/02, § 102, 13 November 2007.

[15] See Brumarescu v. Romania (Article 41) , no. 28342/95, § 22, 23 January 2001 ; Hirschhorn v. Romania , no. 29294/02 , § 114, 26 July 2007 ; and Katz v. Romania , no. 29739/03, § 42, 20 January 2009. In all these cases the operative part replicated the obligation included in the reasoning of the judgment under Article 41. Failing such restitution, the respondent State was ordered to pay a certain amount to the applicant.

[16] See Assanidze v. Georgia [GC] , no. 71503/01, § 203, ECHR 2004-II. The language used was imperative (“must secure…at the earliest possible date”) and the obligation imposed under Article 41 was repeated in point 14 (a) of the operative part of the judgment. See also Ilaşcu v. Moldova and Russia (GC) , no. 48787/99, § 490, ECHR 2004-VII, and point 22 of the operative part of the judgment ; Fatullayev v. Azerbaijan , no. 40984/07, § 177, 22 April 2010, and point 6 of the operative part ; and Del Rio Prada v. Spain [GC] , no. 42750/09, § 138, ECHR 2013, and point 3 of the operative part. In the latter two cases, the order was imposed under Article 46.

[17] See Maestri v. Italy , no. 39748/98, § 47, 17 February 2004. In spite of the language used (“ it is for the respondent State to take appropriate measures to redress the effects of any past or future damage to the applicant's career”), no reference was made in the operative part to the obligation imposed in the reasoning of the judgment under Article 41.

[18] See Aleksanyan v. Russia , no. 46468/06, § 239, 22 December 2008. The language used was imperative (“must replace”) and the obligation imposed in the reasoning section under Article 46 was included in point 9 of the operative part of the judgment.

[19] See Scoppola v. Italy (no. 2) (GC) , no. 10249/03, § 154, 17 September 2009. The language used was imperative (“is responsible for ensuring that”) and the obligation imposed under Article 46 was repeated in point 6 (a) of the operative part of the judgment.

[20] See Abuyeva and Others v. Russia , no. 27065/05 , § 243, 2 December 2010. In spite of the language used (“it considers it inevitable that … must be determined”), the operative part of the judgment did not refer to the obligation imposed in the reasoning of the judgment under Article 46. See also Benzer and Others v. Turkey , no. 23502/06, § 219, 12 November 2013.

[21] See Nihayet Arıcı and Others v. Turkey , 24604/04 and 16855/05, § 176, 23 October 2012. The language was imperative (“ doit mettre en oeuvre… dans les plus brefs délais ”), but the operative part of the judgment did not refer to the obligation imposed in the reasoning of the judgment under Article 41.

[22] See Hirsi Jamaa and Others v. Italy (GC) , no. 27765/09, § 211, ECHR 2012-II. In spite of the language used (“ must take” ), the operative part of the judgment did not refer to the obligation imposed in the reasoning of the judgment under Article 46.

[23] See Oleksandr Volkov v. Ukraine , no. 21722/11, § 208, ECHR 2013-I. The language used was imperative (“shall secure … at the earliest possible date”) and the obligation imposed in the reasoning of the judgment under Articles 41 and 46 was repeated in point 9 of the operative part. Yet the Court did not follow this case-law in Kulykov and Others v. Ukraine , nos. 5114/09 and 17 others, § 148, 19 January 2017.

[24] See Gençel v. Turkey , no. 53431/99, § 27, 23 October 2003.

[25] See Somogyi v. Italy , no. 67972/01, § 86, ECHR 2004-IV .

[26] See Öcalan v. Turkey [GC] , no. 46221/99, § 210 in fine, ECHR 2005 ‑ IV.

[27] This clause is also known as the Oçalan-Sejdovic clause since it was confirmed and further developed in Sejdovic v. Italy [GC] , no. 56581/00, § 86, ECHR 2006 ‑ II. See also Abbasov v. Azerbaijan , no. 24271/05, § 42, 17 January 2008, and Laska and Lika v. Albania , nos. 12315/04 and 17605/04, § 76, 20 April 2010 .

[28] In spite of the Grand Chamber ’s intervention in Öçalan v. Turkey and two years later in Sejdovic v. Italy , the practice of the Court remained uncertain as it is evidenced by the fact that several chambers retained the former Gençel clause, as it will be shown below.  To aggravate this uncertainty, the Grand Chamber went back again to the Gençel clause under Article 41 of the Convention in Salduz v. Turkey (GC) , no. 36391/02 , § 72, 27 November 2008, and in Sakhnovskiy v. Russia [GC] , no. 21272/03, § 112, 2 November 2010, it used the Gençel clause, but wrongly cited the Oçalan precedent.

[29] See Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC] , no. 32772/02, § 90, ECHR 2009.

[30] See also Wasserman v. Russia (no. 2) , no. 21071/05, § 37, 10 April, 2008, and Ivanţoc and Others v. Moldova and Russia , no. 23687/05, §§ 86 and 95-96, 15 November 2011.

[31] Following a finding of a breach of the right of access to court, the Oçalan-Sejdovic clause was used in Perlala v. Greece , no. 17721/04, § 36, 22 February 2007, but the Gençel-Somogyi clause was used in Kostadin Mihaylov v. Bulgaria , no. 17868/07, § 60, 27 March 2008, and in Demerdžieva and Others v. the former Yugoslav Republic of Macedonia , no. 19315/06, § 34, 10 June 2010. In a case with the same subject matter where the annulation of the trial had been requested, the Court did not order the retrial ( see De la Fuente Ariza v. Spain , no. 3321/04, § 31, 8 November 2007).

[32] The Gençel-Somogyi formula was used mutatis mutandis in Claes and Others v. Belgium , nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, § 53, 2 June 2005, Lungoci v. Romania , no. 62710/00, 26 January 2006, and Ilatovskiy v. Russia , no. 6945/04 , § 49, 9 September 2009 (wrongly cites the Oçalan case).

[33] Other than the Turkish State Security Court cases, the Oçalan-Sejdovic clause appeared in cases referring to the conviction of a civilian by a military jurisdiction following the leading case Ergin v. Turkey (no. 6) , no. 47533/99, E CH R 2006, § 61. But in some other cases, referring to the same subject matter, the Court did not apply the retrial clause ( see Karatepe v. Turkey , no. 41551/98, § 37, 31 July 2007, Hûseyin Simsek v. Turkey , no. 68881/01, § 83, 20 Ma y 2008). In these cases, the applicant had benefitted from conditional release before the adoption of the Court’s judgment. Nonetheless, release of the applicant cannot be considered a ground for not applying the retrial clause, because the Court has also applied the retrial clause in cases where the imprisonment sentence had being suspended ( see Kenar v. Turkey , no. 67215/01, § 50, 13 December 2007, and Zekeriya Sezer v. Turkey , no. 63306/00, § 32, 29 November 2007).

[34] Following a finding of a breach of the right to participate in the trial, the Gençel-Somogyi clause was used in R.R. v. Italy , no. 42191/02, § 76, 9 June 2005, but later abandoned in favour of the Oçalan-Sejdovic clause in Hu v. Italy , no. 5941/04, § 71, 28 November 2006, Csikos v. Hungary , no. 37251/04, § 26, 5 December 2006, Kollcaku v. Italy , no. 25701/03, § 81, 8 February 2007, Pititto v. Italy , no. 19321/03, § 79, 12 June 2007, Kunov v. Bulgaria , no. 24379/02, § 59, 23 May 2008, and Georghe Gaga v. Romania , no. 1562/02, § 68, 25 March 2008. In a case with the same subject matter the Court did not apply the retrial clause at all ( Da Luz Domingues Ferreira v. Belgium , no. 50049/99, 24 Ma y 2007).

[35] Following a finding of a breach of the right to question witnesses, the Oçalan clause was used in Bracci v. Italy , no. 36822/02, § 75, 13 October 2005, Vaturi v. France , no. 75699/01, § 63, 13 April 2006, Zentar v. France , no. 17902/02 , § 35, 13 April 2006, Balšán v. the Czech Republic , no. 1993/02, § 40, 18 July 2006 (wrongly cites the Somogyi case), Reiner and Others v. Romania , no. 1505/02, § 93, 27 September 2007 (wrongly cites the Gençel case), but the Gençel clause was used in Majadallah v. Italy , no. 62094/00, § 49, 19 October 2006, Popov v. Russia , no. 26853/04, § 263, 13 July 2006 (wrongly cites the Oçalan case), Sakhnovskiy v. Russia [GC] , no. 21272/03, § 112, 2 November 2010 (wrongly cites the Oçalan case), and Duško Ivanovski v. the F ormer Yugoslav Republic of Macedonia , no. 10718/05, § 64, 24 April 2014.

[36] See Spinu v. Romania , no. 32030/02, § 82, 29 April 2008.

[37] See Miraux v. France , no. 73529/01, § 42, 26 September 2006, and Drassich v. Italy , no. 25575/04, § 46, 11 December 2007.

[38] See Mattei v. France , no. 34043/02, § 51, 19 December 2006.

[39] See Ünel v. Turkey , no. 35686/02, § 55, 27 Ma y 2008. Other than the refusal of questioning of certain witnesses, the applicant complained of lack of access to certain items of evidence, like an audio record of his detention.

[40] The Oçalan-Sejdovic clause was used in Sannino v.Italy , no. 30961/03, § 70, 27 April 2006, Kemal Kahraman and Ali Kahraman v. Turkey , no. 42104/02, § 44, 26 April 2017, and Sacettin Yildiz v. Turkey , no. 38419/02, § 55, 5 June 2007, but the Gençel-Somogyi clause was used in Salduz v. Turkey (GC) , no. 36391/02 , § 72, 27 November 2008, and Shulepov v. Russia , no. 15435/03, § 46, 26 June 2008.

[41] See Malininas v. Lithuania , no. 10071/04, § 43, 1 July 2008.

[42] See Huseyn and Others v. Azerbaijan , nos. 35485/05, 45553/05, 35680/05 and 36085/05, 4§ 213 and 262, 26 July 2011.

[43] See Abuyeva and Others , cited above.

[44] See Dragotoniu and Militaru-Pidhorni v. Romania , no. 77193/01 and 77196/01, § 55, 24 Ma y 2007, which also refers to Article 408 of the criminal procedure code.

[45] See Yanakiev v. Bulgaria , no. 40476/98, § 90, 10 August 2006, Paulik v. Slovakia , no. 10699/05, § 72, 10 October 2006, Mehmet et Suna Yigit v. Turkey , No. 52658/99, § 47, 17 July 2007, CF Mrebeti v. Georgia , no. 38736/04, § 61, 31 July 2007, Paykar Yev Haghtanak v. Armenia , no. 21638/03, § 58, 20 December 2007, Cudak v. Lithuania (GC) , no. 15869/02, § 79, 23 March 2010 , Kostadin Mihailov v. Bulgaria , no. 17868/07, § 60, 27 March 2008, Vusic v. Croatia , no. 48101/07, § 58, 1 July 2010, Bulfracht Ltd v. Croatia , no. 53261/08, § 46, 21 June 2011, and Vojtěchová v. Slovakia , no. 59102/08, §§ 27 and 48, 25 September 2012.

[46] Freitag v. Germany , no. No. 71440/01, § 61, 19 July 2007. The case cites Sejdovic , cited above, § 119, and Monnat v. Switzerland , no. 73604/01, § 84, ECHR 2006, in which the Court had refused to lift a ban on the sale of the report in issue which had been found in breach of A rticle 10 of the Convention.

[47] See Yanakiev v. Bulgaria , no. 40476/98, § 90, 10 August 2006 ; Lesjak v. Croatia , no. 25904/06, § 54, 18 February 2010 ; Putter v. Bulgaria , no. 38780/02 , § 62, 2 December 2010 ; and Kardoš v. Croatia , no. 25782/11, § 67, 26 April 2016.

[48] See Vojtěchová v. Slovakia , no. 59102/08, §§ 27 and 48, 25 September 2012 ; Harabin v. Slovakia , no. 58688/11, §§ 60 and 178, 20 November 2012 ; and Zachar and Čierny v. Slovakia , nos. 29376/12 and 29384/12, § 85, 21 July 2015 .

[49] See, f or example, Hu , cited above, § 71, or Sacettin Yildiz , cited above, § 55, and Flueraş v. Romania , no. no 17520/04, 9 April 2013 (wrongly cites the Gençel case).

[50] See, f or example, Karelin , cited above, § 97, Scoppola , cited above, § 154, and Oleksandr Volkov , cited above, § 206.

[51] See Lungoci v. Romania , no. 62710/00, 26 January 2006. The same occurred in Ajdarić v. Croatia , no. 20883/09, 13 December 2011.

[52] See Maksimov v. Azerbaijan , no. 38228/05, 8 October 2009, and Claes and Others , cited above.

[53] See Gladysheva v. Russia , no. 7097/10, § 106, 6 December 2011, and Anna Popova v. Russia , no. 59391/12, § 48, 4 October 2016 .

[54] See Ponyayeva and Others v. Russia , no. 63508/11, § 66, 17 November 2016 ; Alentseva v. Russia , no. 31788/06, § 86, 17 November 2016 ; and Pchelintseva and others v. Russia , no. 47724/07, § 110, 17 November 2016.

[55] See Gluhaković v. Croatia , no. 21188/09, § 89, 12 April 2011, Plotnikovy v. Russia , no. 43883/02, § 33, 24 February 2005, and Makarova and others v. Russia , no. 7023/03, § 37, 24 February 2005. Yet in the exact similar situation in OOO Rusatommet v. Russia , no. 61651/00, § 33, 14 June 2005, the Court refrained from doing the same.

[56] See Laska and Lika v. Albania , nos. 12315/04 and 17605/04, § 76, 20 April 2010. Confronted with a similar systemic problem in Karelin v. Russia , no. 926/08, 20 September 2016, the Court did not follow the same approach.

[57] This case is different from Klaus and Iouri Kiladzé v. Georgia , no. 7975/06, §§ 85 and 90, 2 February 2010, which established compensation as an alternative to the adoption of general measures. In Ãœrper and Others v. Turkey , nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 et 54637/07, § 52, 20 October 2009, and Gözel and Öser v. Turkey , nos. 43453/04 and 31098/05, § 76, 6 July 2010, the Court ordered the introduction of legislative, ie , general measures, in addition to compensation.

[58] See M.S.S. v. Belgium and Greece [GC] , no. 30696/09, § 402, ECHR 2011.

[59] This w as the Court ’s position even when it used to distinguish the decision on the merits and the decision on just satisfaction ( see Barberà , Messegué and Jabardo v. Spain judgment of 13 June 1994, Series A no. 285-C, p. 56, para. 15, and Schuler - Zgraggen v. Switzerland (Article 50) , no. 14518/89, §§ 14 and 15, 31 January 1995) . At p resent, just satisfaction has been accorded even when a retrial clause has been included in the operative part of the judgment ( see Lungoci , cited above).

[60] See Bocos -Cuesta v. the Netherlands , no. 54789/00, § 82, 10 November 2005 ; Kaste and Mathisen v. Norway , no. nos. 18885/04 and 21166/04, § 61, 9 November 2006 ; Vusic v. Croatia , no. 48101/07, § 58, 1 July 2010 ; and Bulfracht Ltd v. Croatia , no. 53261/08, § 47, 21 June 2011.

[61] See Caes and Others , cited above.

[62] See Taxquet v. Belgium (GC) , no. 926/05, § 107, 16 November 2010 ; Delespesse v. Belgium , no. 12949/05, § 44, 27 March 2008 ; Nikolitsas v. Greece , no 63117/09, § 47, 3 July 2014 ; and Mitrov v. v. the former Yugoslav Republic of Macedonia, no. 25703/11, § 64, 2 June 2016.

[63] See Dvorski v. Croatia (GC) , no. 25703/11, § 117, 20 October 2015.

[64] See paragraph 53 of the judgment.

[65] See paragraph 28 of the judgment.

[66] The logical and ontological link between restitutio in integrum and reopening of criminal proceedings was already established in Piersack v. Belgium (Article 50), cited above, § 11. It is noteworthy that in this case reopening led to a sentence identical to that originally imposed. Nonetheless, the Court found that the second domestic proceedings “brought about a result as close to restitutio in integrum as was possible in the nature of things”, since the new trial before the assize court was attended by all the guarantees laid down by the Convention.

[67] In this sense, see Article 34 of DARSIWA and the respective Commentary, paragraph 2.

[68] In this precise sense , see the commentary to Article 35 of the DARSIWA, paragraph 3.

[69] See the Explanatory Report to the Recommendation.

[70] See paragraph 16 of the judgment.

[71] See paragraph 17 of the judgment.

[72] For the purposes of this opinion , I have consulted all legislations of the m ember States of the Council of Europe and double-checked the information with the “Compilation of written contributions on the provision in the domestic legal order for re-examination or reopening of cases following judgments of the Court” of 31 March 2016 (DH-GDR(2015)002REV), prepared by the Steering Committee for Human Rights (CDDH) and Committee of Experts on the Reform of the Court (DH-GDR), as well as the materials available before the Grand Chamber.

[73] Having been introduced by Law no. 16/2014, of 27 July 2014, these provisions have not been applied to date.

[74] Remarkably, in its judgment of 1 August 2007 the Austrian Supreme Court expanded its power to reopen criminal proceedings. In this case, the Supreme Court applies the admissibility criteria of Articles 34 and 35 of the Convention analogously.

[75] See among others the Belgium Court of Cassation decision P.08.05 F, 9 April 2008.

[76] In addition, lower levels of government in Bosnia and Herzegovina also provide for the right to reopening where the European Court of Human Rights found a violation of human rights and where the domestic court judgment was based on that violation (Criminal Procedure Code of the Federation of BiH , Article 343 § 1 ( f); Criminal Procedure Code of the Republika Srpska , Article 342 § 1 ( đ); Criminal Procedure Code of Brčko District, Article 327 § 1 ( f). Following the Court’s judgment in Maktouf and Damjanovic , the respective criminal proceedings were reopened.

[77] See the Croatian Constitutional Court decision no. U-III -3304/2011 of 23 January 2013, which set out the criteria for the assessment of a request for reopening of the proceedings on the basis of a finding of a violation of the Convention by the Court.

[78] In the Czech Republic, the reopening of proceedings after the judgment of the Court is available in cases in which the Constitutional Court has given its decision. Under s ection 119 of the Act on the Constitutional Court (no. 182/1993), the applicant can request a reopen ing of the proceedings before the Constitutional Court if the Court considered that his or her rights have been violated. On the domestic case-law see Compilation, cited above, p. 15.

[79] There have been no requests to the Supreme Court under this law thus far. The law was enacted for complying with the Court’s judgments in two instances ( see Kyprianou v. Cyprus and Panovitz v. Cyprus ).

[80] On the domestic case-law see Compilation, cited above, p. 67.

[81] On the domestic case-law see Compilation, cited above, pp. 37-42.

[82] See the reopening of proceedings following the leading case Taktakishvili v. Georgia ( dec. ) , no. 46055/06, 16 October 2012, and Sulkan Molashvili v. Georgia ( dec. ) , no. 39726/04, 30 September 2014.

[83] There is no legal presumption of a causal connection between a violation of basic procedural rights guaranteed by the Convention and a final judgment (see the Federal Constitutional Court decision of 12 January 2000). For example, in the Gäfgen case, the Higher Regional Court of Frankfurt rejected the reopening of the proceedings, because, in its view, the violation of the Convention in course of investigation proceedings had no impact on the final conviction by the contested judgment, since the domestic conviction had been based on the confession of the accused during the trial (Frankfurt Higher Regional Court, decision of 29 June 2012).

[84] On domestic case-law , see the Greek Supreme Court judgments no s . 159/2005, 2214/2005 , 1566/2010 and 1613/2010.

[85] S ee, for example, the Supreme Court judgments of reopening of domestic proceedings in Vajnai v. Hungary, Fratanolo v. Hungary and Magyar v. Hungary cases.

[86] On the domestic case-law see Compilation, cited above, pp. 55-56.

[87] On the domestic case-law see Compilation, cited above, p. 60.

[88] See for example the judgment of the Court of Cassation of 9 June 2016 (n° 26/16 pén ., n° 3742).

[89] On the domestic case-law see Compilation, cited above, p. 64.

[90] See for example the Supreme Court judgment of 7 September 2016 following the Kristiansen v. Norway judgment.

[91] See the Polish Supreme Court interpretative resolution of 26 June 2014 and other case-law in Compilation, cited above, pp. 71-72.

[92] On the domestic case-law see Compilation, cited above, pp. 80-82.

[93] As amended by the L aw of 24 February 2000 , n o . 20 , and subsequently by the L aw of 27 June 2003 , n o . 89. There has been only one case where reopening was ordered, following the Tierce v. San Marino judgment.

[94] See for example the successful reopening following the Zachar and ÄŒierny judgment (CM/ ResDH ( 2016)294).

[95] On the domestic case-law see Compilation, cited above, p. 107, and especially the Constitutional Court leading judgment no. 245/1991, 16 December 1991, following the Barberà , Messegué and Jabardo v. Spain judgment. See also the Supreme Court non-jurisdictional agreement of 21 October 2014 and its judgments no. 145/2015, 12 March 2015, following the Almenara Alvarez v. Spain judgment.

[96] On the domestic case-law see Compilation, cited above, p. 116, and especially the Swiss Federal Court judgment no. 6S.362/2006 of 3 November 2006.

[97] See for example Oçalan v. Turkey ( dec. ) , no. 5980/07, 6 July 2010, and Erdemli v. Turkey ( dec. ) , no. 33412/03, 5 February 2004.

[98] See for example Yaremenko v. Ukraine (no. 2) , no. 66338/09, 30 April 2015, and the reopening procedure following the Zhyzitskyy v. Ukraine judgment.

[99] See Article 456 of the Code of Criminal Procedure of the Republic of Azerbaijan.  The Government have discretion in requesting reopening, the Plenum of the Supreme Court being obliged to reopen a case within three month after it receives the relevant copy of the final judgment of the Court. The victim of the human rights violation has no right to request reopening.

[100]   On the domestic case-law see Compilation, cited above, pp. 86-87. The Plenum of the Supreme Court, in its ruling N o. 21 of 27 June 2013, underlined that, when considering whether it is necessary to re-examine a judgment, the causal link between the established violation of the Convention and the continuous adverse consequences suffered by the applicant should be taken into account. I n its decision of 6 December 2013, the Constitutional Court of Russia emphasi s ed that “a court of general jurisdiction cannot refuse to reopen a judicial decision, which has become final, as a procedural stage due to a judgment of the European Court of Human Rights.” More recently, the Constitutional Court of Russia decision of 14 January 2016 dictated that “If [the Court] has found a violation of the Convention, in particular, because a final criminal judgment was unfair as a result of a substantial judge’s mistake that affects the essence of the judgment, and thus this judgment should be re-examined, the President of the Supreme Court is under obligation to lodge a correspondent application [for re-examination].” The victim of the human rights violation has no right to request reopening.

[101] In Albania, the Constitutional Court has recogni s ed, on the basis of the interpretation of Articles 10 and 450 of the Code of Criminal Procedure, the power of the Supreme Court to order re-examination of final decisions which are based on the Court’s findings. On the domestic case-law see Compilation, cited above, pp. 3-4.

[102] Under section 977 (1), of the Danish Administration of Justice Act a convicted person can request a reopening of criminal proceedings if special circumstances strongly indicate that evidence has not been rightly judged. In fact, the Jersild judgment of the Court led to the reopening of proceedings by virtue of being considered a “special circumstance” (see Resolution DH (95) 212)). The practice has been restrictive, since reopening in these circumstances was ordered only in another case.

[103] Chapter 31, section 1, sub - section 1, sub-paragraph 4, and section 8 and section 8 ( a ) of the Finish Code of Judicial Procedure. The Supreme Court practice has been varied, but the leading decision of the Supreme Court of 24 May 2012 referred to Recommendation 2000 (2) (see Compilation, cited above, pp. 27-29).

[104] Reopening can be requested if there have been material defects in the proceedings that have affected the outcome of the case. The criteria for reopening criminal proceedings are governed by the Act on Criminal Procedure ( s ections 211 and 215), namely new evidence has come into light that would have been considered to have great importance for the outcome of the case if they would have been available before the final judgment was delivered. For example, domestic proceedings were reopened following the Arnarsson v. Iceland judgment.

[105] In Ireland, any applicant who has obtained a finding of a violation of Article 6 falls within the provisions of section 2 of the Criminal Procedure Act 1993, which allows a convicted person who alleges a new or newly-discovered fact shows that there has been a miscarriage of justice to apply to the Court of Criminal Appeal for an order quashing his or her conviction. In fact, following the Court judgment in Quinn v. Ireland , the High Court quashed the conviction on that basis. This is the sole such example.

[106] In its judgment no. 113 of 4 April 2011, the Italian Constitutional Court established that Article 630 of the Code of Criminal Procedure was illegitimate, insofar as it did not include, among the cases of revision of a judgment or of a decree, the reopening of the criminal proceedings subsequent to a finding of a violation of the Convention by a final judgment of the Court. But before this judgment, the Supreme Court had already admitted the re-examination or reopening of criminal proceedings following Court judgments, namely on the basis of Article 670 of the Code of Criminal Procedure. See as examples the Court of Cassation judgments no. 2800/2006, in the Dorigo case, and no. 4463/2011, in the Labita case, the former before the Constitutional Court intervention and the latter after it.

[107] The Swedish Supreme Court has found, in its judgment of 13 July 2013, that reopening could be granted in certain situations based on Article 13 of the Convention and Swedish procedural law. This could be the case in situations where re-opening is considered a substantially more adequate measure of just satisfaction than other available measures, provided that the violation in question is of a serious nature.

[108] Under section 13 of the Criminal Appeal Act 1995, the Criminal Cases Review Commission will refer the case to the Court of Appeal when Commission considers “that there is a real possibility that the conviction would not be upheld were the reference to be made”. After the Salduz ruling, the criteria for a reference by the Scottish Criminal Cases Review Commission were changed (section 194 C (2) of the Criminal Procedure (Scotland) Act 1995 as amended).

[109] Nevertheless, in its 2008 report the CDDH also included Malta, Ireland and the United Kingdom among the m ember States where the reopening of criminal proceedings was possible ( CDDH( 2008)008 Add. I, § 8).

[110] In the past, under the previous Code of Criminal Procedure, there have been only two cases of reopening of criminal proceedings following the Court’s judgments in Stanimirovic v. Serbia and Hajnal v. Serbia .

[111] See Article 408 of the Armenian Code of Criminal Procedure.

[112] See Article 416 of the Slovenian Code of Criminal Procedure. There was no practice of reopening criminal proceedings following a Court judgment until recently (Compilation, cited above, p. 96), but see the Slovenian Constitutional Court decision no. U-I-223/09, Up-140/02 of 14 April 2001, on reopening of civil proceedings.

[113] Committee of Experts on the reform of the Court (DH-GDR): Overview of the exchange of views held at the 8th meeting of DH-GDR on the provision in the domestic legal order for re-examination or reopening of cases following judgments of the Court, p. 4, para. 8. After the judgment Steck-Risch and others v. Liechtenstein , no. 63151/00, the applicants asked for a reopening of the national proceedings. The domestic courts refused to grant that, which led to Steck-Risch v. Liechtenstein (No. 2) . This application was declared inadmissible.

[114]    See the Supreme Court’s interpretation of Article 449 § 1 g) in its leading judgment of 27 May 2009.

[115] As a circumstance which should be taken into account when considering whether it is necessary to re-examine a judgment, according to ruling no. 21 of 27 June 2013 of the Plenum of the Russian Supreme Court.

[116] One of the possible grounds for reopening according to Swedish case-law is that the measure is necessary to discontinue a deprivation of liberty that amounts to a violation of the individual’s rights. See decision of the Supreme Court of 13 July 2013.

[117] See the Supreme Court’s leading judgment of 27 May 2009.

[118] Reopening following the judgment Xheraj v. Albania, 29 July 2008.

[119] Reopening following the judgment Fraumens v. France, 10 January 2013.

[120] Reopening following the judgments Popovici v. Moldova, 27 November 2007, and Almenara Alvarez v. Spain, 25 October 2011.

[121] Reopening following the judgment Taal v. Estonia , 22 November 2005.

[122] Reopening following the judgment Lalas v. Lithuania, 1 March 2011.

[123] Reopening following the judgment A.P., M.P. and T.P. v. Switzerland, 29 August 1997.

[124] Lichtenstein has no possibility of reopen ing criminal proceedings on the basis of a Court judgment , and Azerbaijan and Russia have such a possibility, but no individual right on the part of the victim s of human rights violation to a reopening of proceedings .

[125] See, inter alia , Zawadzki v. Poland ( dec. ) , no. 34158/96, 6 July 1999, and Sablon v. Belgium , no. 36445/97, § 86, 10 April 2001.

[126] See Bochan v. Ukraine (no. 2) [GC] , no. 22251/08, § 50, 5 February 2015.

[127] See Yaremenko v. Ukraine (no. 2) , cited above.

[128] See paragraph 65 of the judgment.

[129] See paragraph 72 of the judgment.

[130] This is in line with the position of the Committee of Ministers Resolution DH (2004) 31 in the case Sadak , Zana, Dogan and Dicle v. Turkey , according to which States have to guarantee the principle of the presumption of innocence and the principles concerning provisional detention during the reopening procedure. In other words, Article 5 and 6 of the Convention apply after the decision to reopen a criminal procedure.

[131] See, inter alia, Mehemi v. France (no. 2) , no. 53470/99, § 43, ECHR 2003 ‑ IV, and Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC] , cited above, § 62.

[132] See Emre v. Switzerland (no. 2) , no. 5056/10, 11 October 2011.

[133] See Emre v. Switzerland , no. 42034/04, 22 Ma y 2008.

[134] See Emre v. Switzerland (no. 2) , cited above, § 75.

[135] See paragraph 70 of the judgment.

[136] See paragraph 60 (b) of the judgment.

[137] See paragraph 69 of the judgment.

[138] See paragraph 43 of the judgment.

[139] See paragraph 72 of the judgment.

[140] See for example, Supreme Court judgments of 17 June 2015, domestic proceedings no. 157/05.4JELSB-O.01, and of 26 March 2014, domestic proceedings no. 5918/06.4TDPRT.P1.

[141] See paragraph 72 of the judgment.

[142] The argumentation of the majority in paragraphs 69 and 72 is a textbook example of the “ slippery - slope ” line of argumentation. The majority initially interpret the Supreme Court’s task in accordance with Article 449 § 1 (g) of the Code of Criminal Procedure as “ordering” the re-examination, go on to admit that the Supreme Court decision “is likely to be decisive” for the new determination of the criminal charge and reach the conclusion that the Supreme Court “focused on the determination”.

[143] By so doing, the majority contradict the established case-law ( Jeronovics v. Latvia (GC) , no. 44898/10, § 120, ECHR 2016).

[144] See paragraphs 29 and 30 of the judgment.

[145] Commentary to Article 35 of DARSIWA, paragraph 8: “restitution is not impossible merely on grounds of legal or practical difficulties, even though the responsible State may have to make special efforts to overcome these. Under Article 32 (of DARSIWA) the wrong - doing State may not invoke the provisions of its national law as justification for failure to provide full reparation” . 

[146] Paragraph 90 of the judgment.

[147] In the assessment of the Court’s own case-law , the majority of the Grand Chamber do not distinguish between the right to a reopening in general and the right to a reopening following a Court’s finding of a Convention violation.

[148] See p aragraph 53 of the judgment.

[149] See p aragraph 53 of the judgment.

[150] See p aragraph 91 of the judgment.

[151] See paragraphs 53 and 91 of the judgment.

[152] See p aragraph 96 of the judgment.

[153] See p aragraph 93 of the judgment.

[154] See p aragraphs 95 and 98 of the judgment. It could be discussed here if the margin of appreciation is even applicable to the reopening of criminal proceedings, since this issue is regulated by a non- derogable provision (Article 3 Protocol 7 (3)). In a wholly contradictory manner , this lack of any discretion in interpreting Article 449 was actually acknowledged by the majority of the Grand Chamber (see paragraph 69 of the judgment).  

[155] See Moreira Ferreira , cited above, § 33.

[156] See Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2) , cited above, § 90.

[157] It should be noted in this connection that the Spanish Supreme Court, in its judgment no. 145/2015, cited above , took a very different, more human rights-friendly position in a similar set of circumstances by ordering a reopening of the domestic proceedings after a finding in Almenara Alvarez v. Spain of a violation of Article 6 of the Convention for the lack of a public hearing before the second - instance court which convicted the applicant. 

[158] See p aragraphs 16 and 17 of the judgment.

[159] The Government argued before the Court that reopening would in the instant case have no practical consequences, since the sentence had already been served and, for that reason, was extinguished. This argument cannot be upheld. Article 449 § 4 of the Code of criminal procedure specifically allows for reopening even if the sentence has already been served in full. The Government also informed the Committee of Ministers that they had approved a proposal for a reform of the Portuguese Code of criminal procedure in order to redress the type of shortcomings identified in Moreira Ferreira . In fact, that proposal was never presented to Parliament (see paragraph 22 of the judgment).

[160] See paragraphs 90 and 96 of the judgment.

[161] See p aragraph 98 of the judgment.

[162] See Benthem v. the Netherlands , no. 8848/80, § 40, 23 October 1985, where the Court stated that “ a power of decision is inherent in the very notion of ‘ tribunal ’ within the meaning of the Convention” .

[163] A s one see, inter alia , from the “ Compilation of written contributions on the provision in the domestic legal order for re-examination or reopening of cases following judgments of the Court” of 31 March 2016 , prepared by Steering Committee for Human Rights and Committee of Experts on the Reform of the Court , extensively cited in Judge Pinto de Albuquerque’s dissenting opinion .

[164] I do not wish to enter here into analysis of the Supreme Court’s interpretation of domestic legislative provisions and the Court’s assessment of that interpretation. Still, I must say, albeit incidentally, that I am sceptic al a bout the conclusion that these provisions indeed allowed for the non-reopening of proceedings. In my opinion, the provisions, taken together with the Court’s judgment of 5 July 2011 (especially paragraph 41 thereof) and Recommendation No. R (2000) 2 (as well as the explanatory memorandum thereto, with its strong emphasis on the principle of equality of arms; see paragraph 33 of the judgment), required the proceedings to be reopened .

[165] Or even without a court procedure at all, that is to say, by a legislative, i.e. political, act ? See, for example, the recent judgment in B é res and Others v. Hungary (nos. 59588/12 , 59632/12 and 59865/12 , 17 January 2017).