PARTLY CONCURRING OPINION OF JUDGE ZUPANČIČ

I.

In cases where procedural errors contaminate the legal credibility of conviction, there persists the problem of “just compensation”. In a separate opinion in the judgments of Cable and Others v. the United Kingdom and Hood v. the United Kingdom ([GC], nos. 24436/94 et seq., 18 February 1999, unreported, and [GC], no. 27267/95, ECHR 1999-I), I outlined the absurdity of the artificial separation of procedural injustice from its substantive result. According to Convention, these are not “mere” procedural errors relevant only in so far as they affect the truth-finding function of a particular criminal process and the veracity of the resulting conviction. These are among the gravest substantive human-rights violations in their own right. Originally, the framers of the Convention anticipated that these procedural errors would be among the few situations in which the judgment of the European Court of Human Rights would be directly enforceable so as to overrule the decision of the national judiciary. We are speaking here of substantive due process.

In internal law there exist two main possible remedies to correct procedural human-rights violations, depending on who commits the violations and at what stage of the criminal procedure. These two remedies are (1) the exclusionary rule and (2) the retrial of the whole case. The exclusionary rule remedy, an alter ego of the privilege against self-incrimination, applies mostly in the focused pre-trial phase situations where the violation has been committed by police. The remedy of trial de novo applies in situations where the first-instance court, rather than police, has committed what in continental law is sometimes called “an absolutely essential procedural error”. These errors often overlap with the procedural human-rights violations.

In the context of Article 41, the question arises whether our pecuniary “just satisfaction” is not an entirely inadequate remedy for procedural human-rights violations if, as a consequence of these violations, the person who has not been afforded a fair criminal trial continues to sit in prison.

Pecuniary just satisfaction is logical only if we set out from the premise that gravely tainted criminal procedures may nevertheless yield substantively just convictions. If this were the premise, however, I doubt the framers of the Convention would have considered the procedural violations per se as grave human-rights violations to which they dedicated a substantial portion of the Convention. Since a large proportion of our own case-law deals with essential procedural requirements of fair trial established in Articles 5, 6, etc., I doubt this would make sense if we started from the premise that the procedure, fair or not, is merely a means to a substantively correct conviction and that in the last analysis what matters is only whether the conviction is a “true positive”. Epistemologically speaking, the credibility of conviction and acquittal, in any event, cannot be

tested except through a flawless procedure. It follows ineluctably that the only adequate remedy is the retrial of the case.

The majority maintains it is not willing to speculate, should the procedure be renewed and corrected, about the alternative outcome of the case. But the majority is then implicitly speculating to the effect that the corrected procedure would have yielded the same result (conviction). In Cable and Others and Hood , cited above, we considered the mere finding of a violation to be a sufficient remedy, which at least is consistent with the agnostic position taken vis-à-vis the (in)justice of the ultimate conviction.

I maintain, however, that a criminal procedure tainted with grave human-rights violations a priori cannot yield a substantively acceptable conviction. To maintain otherwise is to subscribe to the classical inquisitorial standpoint that the end justifies the means.

If proof of this be needed in international law, we may refer to the United Nations Convention against Torture (“the CAT”). The CAT maintains categorically that all evidence directly and indirectly obtained by torture must be prevented from reaching the eyes or ears of those who decide the criminal case (judge or jury). The CAT requires the exclusion of such evidence despite the fact that confessions and other evidence extracted by torture may reinforce the truth-finding function of criminal procedure: confessio regina probationum . If exclusion is violated the procedure must be reopened ab initio and subsequently the exclusion of tainted evidence strictly maintained. A fortiori , where the procedural error, such as the refusal to examine witnesses, fatally detracts from the truth-finding function of criminal procedure, there should be a trial de novo .

In Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII), we have taken a step forward in resolving this problem. We made a strong recommendation in the direction of restitutio in integrum pro futuro 1 . Admittedly, Scozzari and Giunta was a non-final family law situation, whereas here we are faced with the finality of a criminal conviction. Nevertheless, I advocated a similar recommendation in this case. Many High Contracting Parties to the Convention have already adopted a provision in their domestic procedural law according to which an otherwise final criminal or private-law judgment becomes subject to a new trial should the Court find a violation of the Convention.

Thus, I find it unacceptable – in a situation where the defendant was not permitted to have the witnesses examined and cross-examined – then to award 15,000,000 Italian lire as “just compensation” for non-pecuniary damage, purportedly on account of his “loss of real [namely, procedural] opportunities” 2 .

II.

A careful examination of the travaux préparatoires for what is today Article 41 (former Article 50) reveals the original intentions of the founding fathers of the Convention. The original version of the Article presented on 5 September 1949 by P.-H. Teitgen read as follows:

“The verdict of the [European] Court [of Human Rights] shall order the State concerned: (1) to annul, suspend or amend the incriminating decision ; (2) to make reparation for damage caused; (3) to require the appropriate penal, administrative or civil sanctions to be applied to the person or persons responsible . ” 3 (emphasis added)

This wording was later modified by the Committee of Experts for Human Rights composed of government representatives. The Italian delegate T. Perassi , a member of the Permanent Court of Arbitration, proposed an amendment resulting in the present version of Article 41 4 .

The provision was inspired by the 1921 German-Swiss Treaty on Arbitration and Conciliation (Article 10) and the Geneva General Act for the Pacific Settlement of International Disputes of 1928 (Article 32). Of course, these provisions were meant to deal with specific inter-State situations in which the State party to an arbitration agreement was unable to change its internal law but was willing to pay an equitable satisfaction of another kind. The basis for the arbitrage was extra-judicial compensation for the damage suffered by an individual caused to him by an alien State.

The reference to “ the internal law of the ... Party [which] allows only partial reparation to be made ” makes sense in inter-State disputes in which the State was politically willing to compensate for the restitution to the aggrieved individual, but was unable to do so due to specific provisions of its internal, usually constitutional, law. The intent of the provision, therefore, was to by-pass the internal legal impediments and to transpose the compensation question to the inter-State diplomatic protection level. This is also why, as we shall see, the language is difficult to interpret in the context of the Convention. To the best of my knowledge, the sentence “ the internal law of the ... Party [which] allows only partial reparation to be made ” has never been fully interpreted by the Court.

In the context of the Convention this phrase, imported from an inter-State arbitration agreement, has two possible meanings. It either has to be put on a Procrustean bed in order to derive any sense from it, in so far as it simply reiterates that the internal law must be proven to be incapable of dealing with the human-rights violation in question. Since the domestic remedies have to be exhausted before the case reaches the Court, the provision, as a formal precondition for awarding just satisfaction, would seem redundant.

The question may also be reversed. The Convention is not an arbitration agreement. Many procedural violations of human rights cannot be compensated for by pecuniary “just satisfaction”. The fears concerning the infringement of national sovereignty which hung over the Committee of Experts for Human Rights in 1949 are clearly out of date today. That the underlying situation has radically changed can easily be proven by the fact that so many States have sua sponte relinquished this aspect of national sovereignty and have, by adopting specific legislation, subjected the final judgments of their criminal and private law courts to a trial de novo 5 . In such retrials the Court’s finding of a violation is taken to be a legal novum factum . The implication is, of course, that the findings of this Court should exert their direct binding force upon the first-instance national courts retrying the cases. Clearly, nothing less will do if justice in a case such as this one is to be done.

Consequently, the second, more reasonable, interpretation of the phrase “ if the internal law of the High Contracting Party concerned allows only partial reparation to be made ” should in my opinion be as follows. Before the Court awards pecuniary just satisfaction, this critical phrase logically ( argumento a contrario ) presupposes that the High Contracting Party’s legal system will have done everything in its power to correct the violation in question. Since the domestic remedies have been exhausted through the hierarchy of legal appeals before the case has reached the Court, this in most cases implies that the “ the internal law of the High Contracting Party concerned ” did not “ allow ... [for any] ... reparation to be made ”.

This, however, does not logically imply that the internal legal system cannot react and correct the violation after it has been established by the Court. In this particular case, for example, under Article 632 § 1 b) of the Italian Code of Criminal Procedure the “ procuratore generale presso la corte di appello ” is empowered to request the retrial of the case and the court of appeal is empowered to grant the retrial. Logically then, the “reparation to be made” need not be “partial” only, it can be full.

Of course, there is the problem of timing. Before the case reached the Court the internal legal system did not register the violation of the Convention. The domestic legal system, however, is often capable of repairing the damage later , once the violation is notified to it by the Court. The Court, therefore, when handing down its judgment, should not a priori assume that the domestic legal system is incapable of full restitutio in integrum 6 .

At a minimum, the Court ought to explore the ( im )possibility for the internal legal system to allow for full restitutio in integrum – because this impossibility of full restitutio in integrum is a strict legal precondition for the Court’s awarding of pecuniary just satisfaction. The pecuniary just satisfaction, that is clear, is an ultimum remedium .

On the other hand, Article 1 of the Convention obliges the State party to the Convention “ to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention ”. It would not be logical to assume that this obligation simply ceases to exist, perhaps because the pecuniary just satisfaction will have been paid, after the Court has found that the State had failed in its obligation to secure to the applicant an essential procedural right defined in Article 6 § 3 (b).

To maintain so would be to imply that there is a quid pro quo relationship between an essential procedural human right (and perhaps the freedom) of the applicant on the one hand and the payment of monies on the other hand. Despite the judgment in Delta , cited above, I find it difficult to accept such a reductive relationship between a human right and its remedy.

III.

Given the provisions of Article 1 of the Convention, there can be no doubt that the State party to the Convention is under a moral obligation to correct the violation of the human right found by this Court. Given the reference to the impossibility of full reparation in Article 41 (as a negative legal precondition for just satisfaction) the State party to the Convention is also under a legal obligation to explore fully the possibilities in its internal law in order to arrive at full restitutio in integrum .

To suggest that this legal obligation of restitutio in integrum no longer exists subsequent to the finding of a violation by this Court, whether or not just satisfaction had been awarded, would go against both Article 1 and Article 41. It would go against Article 1 which clearly implies that the States are bound to do everything possible to correct the violation. Since this is the whole purpose of the Convention, this holds true a fortiori after it went undetected by the internal legal system but has, consequently, been identified by the so-called Strasbourg machinery. It would go against Article 41 because it presupposes that full restitution would be made unless the internal law proves constitutionally incapable of granting it 7 .

To put this into perspective, let me emphasise that in some cases, such as those concerning violations of Article 1 of Protocol No. 1, the pecuniary compensation is the remedy par excellence . In some cases, the consequences of the violation of a particular human right, for example in cases concerning Articles 2 and 3, is truly irreversible and can only be, although always insufficiently, mitigated by pecuniary just satisfaction. In situations such as this one, however, deriving from an unfair trial of the applicant, full restitutio in integrum is eminently possible. It implies the full retrial of the whole case.

1. “The Court points out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia , that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see, mutatis mutandis , the Papamichalopoulos and Others v. Greece ( Article 50 ) judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34). Furthermore, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment. ” (emphasis added)

2. For an analogous case, see Delta v. France , judgment of 19 December 1990, Series A no. 191-A, pp. 17-18, § 43: “The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of all the guarantees of Article 6. Whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard Mr Delta as having suffered a loss of real opportunities (see, among other authorities and mutatis mutandis , the Goddi [v. Italy] judgment of 9 April 1984, Series A no. 76, pp. 13-14, §§ 35-36, and the Colozza [v. Italy] judgment of 12 February 1985, Series A no. 89, p. 17, § 38).” In Cable and Others v. the United Kingdom [GC], nos. 24436/94 et seq., 18 February 1999 , unreported, however, we considered the mere finding of a violation a sufficient moral satisfaction. The case-law, therefore, is inconsistent. In both cases the applicants continued to serve their sentences.

3. See the “Report of the Committee on Legal and Administrative Questions of the Consultative [now Parliamentary] Assembly”, report prepared by P.-H. Teitgen ; see the Council of Europe Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights , volume I, The Hague, Martinus Nijhoff , 1975, p. 212.

4. The original version of this text read as follows: “If the Court finds that a decision or a measure taken by a legal authority or of any authority of one of the High Contracting Parties, is completely or partially opposed to the obligations arising from the present Convention, and if the internal law of the said Party only allows for a partial reparation to be made for the consequences of this decision or measure , the decisions of the Court shall, if necessary accord just satisfaction to the injured party.” (emphasis added)

5. See Pradal and Corstens , Droit penal européen , Dalloz , 1999, p. 277, and notes 5, 6, 7 and 8.

6. The inadequate word “reparation”, coming as it does from an arbitration agreement, would stricto sensu mean pecuniary compensation for the damage incurred by the applicant. The Court, however, has implied that as a precondition to just satisfaction this word means restitutio in integrum. See Scozzari and Giunta , cited above.

7. In order to comply with this logic, the Court ought to split its procedure into two phases. In the first phase the Court would ascertain whether there has been a violation. In the second phase the burden should be on the State concerned to show that the internal law is incapable of full restitution. Only in this second phase could the Court award just satisfaction. But since such bifurcation of procedure is clearly not going to happen, it falls to the Committee of Ministers to abide by the above logic. Consequently, it would be very helpful if our judgments contained specific recommendations concerning possible ways and means of restitution, such as, for example, those the Court has handed down in Scozzari and Giunta , cited above.