JOINT CONCURRING OPINION OF JUDGES SPIELMANN, POWER-FORDE AND NUSSBERGER

(Translation)

1. Like the majority, we consider that Article 4 of Protocol No. 7 is not applicable in the present case. However, contrary to the view expressed by the majority, we are convinced that this outcome can be inferred directly from the text of Article 4 of Protocol No. 7. As we see it, that provision is not applicable because , quite simply, there was no final acquittal.

2. In so far as the text (which is clear) requires any interpretation, the Grand Chamber could have taken the opportunity to construe the meaning of the expression “ finally acquitted or convicted ”. In our view, the ruling granting the applicant an unconditional amnesty cannot be regarded as a final acquittal within the meaning of Article 4 of Protocol No. 7. We will set out below the reasoning which leads us to this conclusion.

3. We propose to begin by reiterating, in so far as necessary, firstly, the criteria to be satisfied in order for Article 4 of Protocol No. 7 to apply ( I ), and, secondly, the specific characteristics of amnesties (II). We will then proceed to apply the results of this methodological approach to the present case (III).

I. Criteria for application of Article 4 of Protocol No. 7

4. The criteria that must be satisfied in order for Article 4 of Protocol No. 7 to be applicable are (a) the existence of criminal proceedings concluded by a final decision ; ( b ) the existence of a second set of proceedings ; and (c) the existence of a final acquittal or conviction.

( a ) Proceedings concluded by a final decision

5. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see Franz Fischer v. Austria , no. 37950/97, § 22, 29 May 2001, and Gradinger v. Austria , 23 October 1995, § 53, Series A no. 328 ‑ C). According to the Explanatory Report on Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, “a decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. This approach is well established in the Court ’ s case-law (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 107, ECHR 2009).

( b ) Second set of proceedings

6. The ne bis in idem principle relates to the second set of proceedings, those which are instituted after a defendant has been finally convicted or acquitted. This position finds support in the Explanatory Report on Protocol No. 7, which, as regards Article 4, states that “[t]he principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned”.

( c ) Final acquittal or conviction

7. It is this last criterion which, in our view, is problematic. For Article 4 of Protocol No. 7 to apply, the defendant must first have been acquitted or convicted by a final ruling. For a ruling to be regarded as res judicata for the purposes of Article 4 of Protocol No. 7, it is not sufficient for it to be a final ruling which is not subject to appeal: it must constitute a final conviction or acquittal.

8. In accordance with the rule of international law stated in Article 31 of the Vienna Convention, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The protection afforded by Article 4 of Protocol No. 7 is thus limited to the extent that this provision prohibits a second prosecution or punishment only in the case of persons who have already been “finally acquitted or convicted” (in French: “ acquitté ou condamné par un jugement définitif ”). The deliberate choice of words implies that an assessment has been made of the circumstances of the case and that the guilt or innocence of the defendant has been established. An amnesty does not correspond to either of these situations.

II. Specific characteristics of amnesties

9. An amnesty consists in erasing from legal memory some aspect of criminal conduct by an offender. It may be granted by various means, not always taking the form of a judicial decision. Hence, such a measure does not necessarily presuppose the holding of a trial in the course of which evidence is produced for and against the accused and an assessment of his or her guilt is made. Defining the legal characteristics of amnesty, H. Donnadieu de Vabres wrote as follows:

“[T]he term amnesty implies the notion of something being forgotten ( ά μνηστί α , from α meaning ‘ without ’ , and μνάομ αι , meaning ‘ I remember ’ ). Amnesty is an act of sovereign authority whose purpose and outcome is to allow certain offences to be forgotten: it puts an end to past and future proceedings and to the convictions handed down in connection with those offences.

An amnesty can be applied in two sets of circumstances: either immediately after commission of the offence, in which case it terminates the proceedings, or following the person ’ s conviction, which is thereby erased” ( Traité de droit criminel et de législation pénale comparée , Third edition, Paris, Sirey , 1947, p. 550, no. 977).

10. The exact scope of amnesty, thus defined, allows a distinction to be made between those cases where the protection of Article 4 of Protocol No. 7 can be invoked and those that do not fall within the scope of that protection. Naturally, account must also be taken of the additional limits to this protection that are defined by paragraph 2 of Article 4 of Protocol No. 7. The thinking behind the Convention is in fact based on the protection of the rights of persons who have already been finally acquitted or convicted, and thus is without prejudice to the protection of rights guaranteed under the procedural aspect of Articles 2 and 3; legal certainty must also continue to be ensured. Of course it is important to stress that the Court ’ s consistent case-law requires, by implication, that there should be an effective official investigation capable of leading to the identification and punishment of those responsible when individuals have been killed or seriously ill ‑ treated in breach of the law as a result of the use of force (see Assenov and Others v. Bulgaria , 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice. But any reference to Articles 2 and 3 of the Convention appears to us to be unnecessary in the present case, given that it is clear from the text of Article 4 of Protocol No. 7 itself that the latter provision is not applicable. Moreover, the applicability of the procedural obligation stemming from Articles 2 and 3 of the Convention seems far from obvious to us in this case, in the light of the principles established in Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, ECHR 2013).

III. Application of the principles in the present case

11. In the present case, the ruling of 24 June 1997 terminated the criminal proceedings against the applicant on the basis of the General Amnesty Act. As to whether that ruling was final or not, it should be borne in mind that the applicant did not appeal and that the prosecutor did not have any right of appeal. The ruling, therefore, became final. This finding is in no way altered by the fact that the prosecution lodged a request for the protection of legality as this constituted an extraordinary remedy.

12. As regards the issue whether the ruling granting the applicant amnesty constituted a conviction, it is clear to us that this was not the case, given the absence of any decision by a domestic court finding the applicant guilty of the acts of which he stood accused.

13. As to whether it constituted an acquittal, reference should be made to the nature of the amnesty ruling, which did not presuppose any investigation into the accusations against the applicant and was not based on any factual findings of relevance to the determination of his guilt or innocence. The ruling contained no assessment as to whether the applicant should be held responsible for any crime, which would normally be a prerequisite for an acquittal.

14. In view of the foregoing, we conclude that the ruling granting amnesty to the applicant was neither a conviction nor an acquittal for the purposes of Article 4 of Protocol No. 7 to the Convention.

It is for that reason, and that reason alone, that we believe this provision to be inapplicable in the present case.