JOINT CONCURRING OPINION OF JUDGES RAIMONDI AND SICILIANOS

(Translation)

1. We unreservedly share all the decisions taken by the Court ’ s Grand Chamber in this important case. We nevertheless feel the need to append a short concurring opinion to the judgment as a result of our hesitations concerning the Court ’ s reasoning in dismissing the Government ’ s preliminary objection that the first applicant lacke d victim status (see paragraphs 77-83 of the judgment).

2. In their observations before the Grand Chamber, the Government had argued that the first applicant, as he had been acquitted on all the charges and had received compensation following a subsequent rehabilitation procedure, could no longer claim to be a victim of the violations which he alleged, under Article 3, on account of his placement in a metal cage in the courtroom, and under Article 6, on account of the length of the proceedings against him (see paragraphs 50-52).

3. It is quite clear, however, that neither the compensation for pecuniary damage awarded to the first applicant by the Regional Court (see paragraph 51), nor that awarded to the s ame applicant in respect of non ‑ pecuniary damage by Madagan Town Court in a decision upheld by the Regional Court (see paragraph 52), imply any recognition of the violation by the Russian Federation of Articles 3 and 6 § 1 (length of proceedings) which the Court was called upon to examine.

4. Consequently, the criteria laid down in the Court ’ s case-law for it to recognise a loss of victim status, namely, that the national authorities must have acknowledged, and then afforded sufficient redress for, the breach of the Convention (see Eckle v. Germany , 15 July 1982 , § 66 , Series A no. 51 ), are not satisfied in the present case. The objection was thus ill-founded.

5. The Court has in fact preferred to dismiss the objection on the basis that it was out of time, thus relying on Rule 55 of the Rules of Court, whereby any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be.

6. In particular, the Court noted that in the present case the Government had failed to include this preliminary objection in their observations prior to the Chamber ’ s ruling on the admissibility of the application. They had submitted their observations on this question on 18 February 2009. Moreover, the rehabilitation procedure had ended on 30 March 2010 (see paragraph 52). There had been nothing to prevent the Government, in the light of the outcome of that procedure, from raising their plea of inadmissibility before the Chamber, which had ruled on the admissibility and merits of the application on 11 December 2012, over two years and eight months later.

7. The Court found that, in the absence of any exceptional circumstances that could have dispensed the Government from raising this objection in a timely manner, they were estopped from arguing at that stage that the first applicant lacked victim status. Three authorities are cited in th is context ( Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II ; Prokopovich v. Russia , no. 58255/00, § 29, ECHR 2004-XI; and Andrejeva v. Latvia [GC], no. 55707/00, § 49, ECHR 2009).

8. In citing those three judgments, the Grand Chamber appears to place the analysis of the question of the possible loss of victim status on the same plane as the analysis of another ground of inadmissibility – a failure to exhaust domestic remedies. Two of the three judgments cited, namely Sejdovic and Prokopovitch , concern the latter question, whereas Andrejeva does concern the question of the possible loss of victim status.

9. Th e se two grounds of inadmissibility do not follow the same rule as regards the Court ’ s power to act of its own motion.

10. With regard to victim status, there is no d oubt that, notwithstanding Rule 55, the Court may at any time raise that question of its own motion, regardless of whether the respondent Government have filed such an objection (see Micallef v. Malta [GC], no. 17056/06, § 36, ECHR 2009; Konstantin Markin v. Russia [GC], no. 30078/06, § 79, ECHR 2012; and M.A. v. Cyprus , no. 41872/10, § 115, ECHR 2013), because it is a question of ordre public which relates to the Court ’ s jurisdiction.

11. By contrast, with regard to a failure to exhaust domestic remedies, the Court ’ s power to act of its own motion is more limited. If the respondent Government are late in making such a plea of inadmissibility, the Court will examine this question only if there are special circumstances capable of dispensing them from raising this objection in a timely manner (see Assanidze v. Georgia [GC], no. 71503/01, § 126 , ECHR 2004 ‑ II ).

12. These are the reasons why we would have preferred the Court to dismiss the objection as to victim status for being ill-founded , or at least to differentiate in its reasoning the situation at hand from that of an alleged failure to exhaust domestic remedies.