CONCURRING OPINION OF JUDGE BRATZA

The central issue in the present case concerns the use made in evidence against the applicant of a confession made during the course of police interrogation at a time when he had been denied access to a lawyer. The Grand Chamber has found that the restriction on such access irretrievably prejudiced the applicant ’ s rights of defence and that neither the legal assistance subsequently provided to the applicant nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred while the applicant was in police custody. The applicant ’ s rights under Article 6 § 3 (c) of the Convention , read in conjunction with Article 6 § 1, were accordingly violated on account of this lack of legal assistance. I am in full agreement with this conclusion.

In paragraph 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 requires that, as a rule, access to a lawyer should be provided “as from the first interrogation of a suspect by the police”. This principle is consistent with the Court ’ s earlier case-law and is clearly sufficient to enable the Court to reach a fi nding of a violation of Article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether , in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky , I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under Article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre-trial detention. It would be regrettable if the impression were to be left by the judgment that no issue could arise under Article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that Article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate Article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect.

JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN, ZIEMELE AND LAZAROVA TRAJKOVSKA

1. We agree in all respects with the Court ’ s conclusions as to the violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention.

2. We would, however, have liked the reasoning set out in paragraph 72 of the judgment, on account of its importance, to have been included in the operative provisions as well, for reasons which have already been explained to a certain extent in the joint concurring opinion of Judges Spielmann and Malinverni in Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008) , as well as the concurring opinion of Judge Spielmann in Polufakin and Chernyshev v. Russia (no. 30997/02, 25 September 2008), and are now repeated here.

3. Firstly, it is common knowledge that while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court reached a finding of a violation or no violation of the Convention, and is of decisive importance on that account for the interpretation of the Convention, it is the operative provisions that are binding on the parties for the purposes of Article 46 § 1 of the Convention.

4. And indeed, what the Court says in paragraph 72 of the judgment is in our view of the utmost importance. It reiterates that when a person has been convicted in breach of the procedural safeguards afforded by Article 6, he should, as far as possible, be put in the position in which he would have been had the requirements of that Article not been disregarded (the principle of restitutio in integrum ).

5. The principle of restitutio in integrum has its origin in the judgment of 13 September 1928 of the Permanent Court of International Justice (PCIJ) in the case concerning the Factory at Chorzów (claim for indemnity) (merits), where the Court held as follows:

“The essential principle is ... that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed . ” ( Collection of Judgments, Series A no. 17, p. 47)

6. This principle, namely that restitutio in integrum is considered to be the primary remedy for effecting reparation for breaches of international law , has been constantly reaffirmed by international case-law and practice, and is recalled in Article 35 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, which reads as follows:

“A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”

There is no reason not to apply this principle to make reparation for international ly wrongful acts in the field o f human rights ( s ee Loukis G. Loucaides , “Reparation for Violations of Human Rights under the European Convention and Restitutio in I ntegrum ”, [2008] European Human Rights Law Review , pp. 182 - 92).

In Papamichalopoulos and Others v. Greece ((Article 50), 31 October 1995, Series A no. 330 ‑ B) the Court held:

“34. The Court points out that by Article 53 of the Convention the High Contracting Parties undertook to abide by the decision of the Court in any case to which they were parties; furthermore, Article 54 provides that the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.

The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum , it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.”

7. In the present case, and given that the absence of a lawyer while the applicant was in police custody irretrievably affected his defence rights (see paragraph 62 of the judgment), the best means of achieving this is the reopening of the proceedings and the commencement of a new trial at which all the guarantees of a fair trial would be observed, provided, of course, that the applicant requests this option and it is available in the domestic law of the respondent State.

8. The reason why we wish to stress this point is that it must not be overlooked that the damages 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. This is in line with the subsidiary character attributed to compensation of damage s in international law. Article 36 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts states:

“1. The State responsible for an internationally wrongful act is under an obligation to compensate the damage caused thereby, insofar as such damage is not made good by restitution. ...”

It is therefore right that, wherever possible, the Court should seek to restore the status quo ante for the victim. However , the Court should also take into consideration that “Wiping out all the consequences of the wrongful act may ... require some or all forms of reparation to be provided, depending on the type and extent of the injury that has been caused” (s ee J. Crawford, The International Law Commission ’ s Articles on State Responsibility : Introduction, Text and Commentaries , Cambridge University Press, 2002, p. 211, (2)) and in view of the remedies available at the domestic level (Article 41).

9. Admittedly, States are not required by the Convention to introduce procedures in their domestic legal systems whereby judgments of their Supreme Courts constituting res judicata may be reviewed. However, they are strongly encouraged to do so, especially in criminal matters.

10. In Turkey, Article 311 § 1 (f) of the Turkish Code of Criminal Procedure provides that the reopening of domestic proceedings which are found to be unfair by the European Court of Human Rights can be requested within one year following the final decision of the European Court of Human Rights.

There is , however , a temporal limitation for the applicability of this provision. Article 311 § 2 states that the above-mentioned provision is not applicable to applications which were lodged with the European Court of Human Rights before 4 February 2003 and for those judgments which became final before 4 February 2003. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure it is the Court ’ s duty not only to suggest timidly that reopening is the most appropriate form of redress, as paragraph 72 of the judgment does, but also to urge the authorities to make use of that procedure, however unsatisfactory it may appear, or to adapt existing procedures, provided, of course, that the applicant so wishes. However, this is not legally possible unless such an exhortation appears in the operative provisions of the judgment.

11. Moreover, the Court has already included directions of this nature in the operative provisions of judgments. For example, in Claes and Others v. Belgium (nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in point 5 (a) of the operative provisions of its judgment that “unless it grants a request by [the] applicants for a retrial or for the proceedings to be reopened, the respondent State is to pay, within three months from the date on which the applicant in question indicates that he does not wish to submit such a request or it appears that he does not intend to do so, or from the date on which such a request is refused”, sums in respect of non-pecuniary damage and costs and expenses. Similarly, in Lungoci v. Romania (no. 62710/00, 26 January 2006) the Court held in point 3 (a) of the operative provisions of its judgment that “the respondent State is to ensure that, within six months from the date on which the judgment becomes f inal in accordance with Article 44 § 2 of the Convention, the proceedings are reopened if the applicant so desires, and at the same time is to pay her EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into Romanian lei at the rate applicable at the date of settlement”.

12. By virtue of 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. In fact, there is nothing in Article 41 or anywhere else in the Convention that would prevent the Court from assessing the issue of full reparation in accordance with the principles outlined above. Since the Court has jurisdiction to interpret and apply the Convention, it also has jurisdiction to assess “the form and quan tum of reparation to be made” (s ee J. Crawford, ibid., p. 201). As was explained by the PCIJ in the Factory at Chorzów case: “Reparation ... is the indispensable complement of a failure to apply a convention ...” (p. 21).

13. 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 indicate to the State concerned in the operative provisions, if the circumstances of the case so require, the measures it considers the most appropriate to redress the violation.