CONCURRING OPINION OF JUDGE CABRAL BARRETO JOINED BY JUDGE POPOVIĆ

(Translation)

I agree with the majority on all the operative provisions of the judgment.

However, as regards the reasoning, I am unable to endorse the findings in paragraph 66, “ even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law”, and in paragraph 67, “ Article 11 of the ILC ’ s [ International Law Commission ’ s ] 1991 Draft Articles, on which the 2004 United Nations Convention was based, applies to the respondent State under customary international law”.

In my opinion, a State can never be bound by the provisions of an international treaty that it has not ratified; ratification is necessary for those provisions to become binding.

It is the customary international law that is binding, whether or not it has been codified.

I find that paragraphs 66 and 67 should have been worded so as to reflect this idea and thus to avoid any ambiguity.

CONCURRING OPINION OF JUDGE MALINVERNI JOINED BY JUDGES CASADEVALL, CABRAL BARRETO, ZAGREBELSKY AND POPOVIĆ

(Translation )

1. In paragraph 79 the judgment states that “where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation”.

2. I regret that this principle is not reflected in the operative part of the judgment, which simply states that the respondent State is to pay the applicant 10,000 euros in respect of pecuniary and non-pecuniary damage [1] .

3. It is important to emphasise this point, because it must not be overlooked that the amounts which the Court orders to be paid to victims of a violation of the Convention are, according to the terms and the spirit of Article 41, of a subsidiary nature [2] . Wherever possible, the Court should seek to restore the status quo ante . What the Court states in paragraph 79 is, in my view, of the utmost importance. It reiterates the fundamental principle that the best way to redress a violation of Article 6 is to reopen the proceedings, whenever that is possible and if the applicant so wishes.

4. Moreover, it is common knowledge that while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court found a violation or no violation of the Convention, and is thus of decisive importance for the interpretation of the Convention , it is the operative provisions that are binding on the parties f or the pur poses of Article 46 § 1 of the Convention . It is therefore a matter of some significance, from a legal standpoint, for certain considerations of the Court to be stated again in the operative part of the judgment [3] .

5. Furthermore, under Article 46 § 2 of the Convention, supervision of the execution of the Court ’ s judgments is the responsibility of the Committee of Ministers. That does not mean, however, that the Court should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers ’ task in discharging these functions. To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also, in the operative provisions, indicate to the State concerned the measures it considers the most appropriate to redress the violation.

6. An award of compensation is not always an appropriate way to redress the damage caused to the victim. In the present case, the origin of the dispute lies in the fact that the applicant complained to the Equal Opportunities Ombudsman about sexual harassment by one of her male colleagues, who was a member of the e mbassy ’ s diplomatic staff. Following an inquiry, the Ombudsman reported that the applicant was indeed a victim of sexual harassment (see paragraph 13 of the judgment ) . She fell ill because of the tension she was experiencing at work and was on sick leave for about two months, after which she was dismissed for being absent from work (see paragraphs 14 and 15). It was then that the applicant brought a claim of unlawful dismissal before the courts, but did not, however, request reinstatement to her post at the e mbassy (see paragraph 16). As noted in the judgment “ it should not be overlooked that the applicant ’ s dismissal and the ensuing proceedings arose originally from acts of sexual harassment ” (see paragraph 72).

7. It may be inferred from the foregoing that whil e the applicant admittedly claimed compensation (see paragraph 16), she was above all seeking a court decision to the effect that her dismissal had been unlawful (see paragraph 41). She probably still has an interest in obtaining such a decision. In these circumstances, I am of the opinion that only the reopening of the proceedings would enable the applicant to obtain full satisfaction.

8. In the present case, as Lithuanian law provides for the possibility of having domestic proceedings reopened following a finding of a violation by the Court, this form of redress is, in my view, preferable to an award of compensation to the victim. For this reason, it would have been desirable to include an operative provision covering the applicant ’ s right to seek the reopening (or rather, in this case, the opening) of domestic proceedings.

[1] . See the concurring opinion of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska appended to the judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008 ).

[2] . See my joint concurring opinions with Judge Spielmann appended to the judgments in Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008) , and Ilatovskiy v. Russia ( no. 6945/04 , 9 July 2009 ).

[3] . See my joint concurring opinions with Judge Spielmann appended to the judgments in Fakiridou and Schina v. Gr ee ce ( no. 6789/06, 14 November 2008 ) , Lesjak v. Croatia ( no. 25904/06 , 18 February 2010 ) , and Prežec v. Croatia ( no. 48185/07 , 15 October 2009 ).