PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

I voted with the majority on all points except the question of just satisfaction. I find the statement that it is “impossible [for the Court] to speculate as to the outcome of the court-martial proceedings” (paragraph 86 of the judgment) wholly unsatisfactory, the more so since the Court’s own case-law, going back to the Colozza v. Italy judgment of 12 February 1985, Series A no. 89, does not offer any substantive explanation for this doctrine.

The question turns on the interpretation of Article 41 of the Convention, that is to say on the meaning of the words “... if the internal law of the High Contracting Party concerned allows only partial reparation to be made ...”. In these cases the domestic law of the respondent State ought to provide for a retrial.

It cannot be logically maintained that a conviction and sentence in a criminal case are legitimate if the criminal procedure in question violates the essential precepts of a fair trial, due process and so on. The legitimacy of a substantive judgment depends on the legitimacy of the procedure by which it was arrived at. To hold otherwise – that is, to separate the procedure entirely from its substantive outcome (conviction and sentence) – would reduce the meaning and import of the procedure to an ancillary status. This would mean, as it used to mean in the purely inquisitorial procedure, considering the procedure a mere “adjective” to the “substantive” importance of the case.

That, however, is no longer a tenable position. If it were, a fair trial would not be as central to the meaning of Article 6 of the Convention as it is, neither would the exclusionary rule figure as an essential procedural sanction in most national jurisdictions as well as in some international instruments such as the United Nations Convention against Torture (Article 15).

To say in the instant cases that it is “impossible to speculate as to the [substantive] outcome” of the case, in other words to say that the Court does not know what would have happened if the precepts of a fair trial had in fact been respected, is itself a speculation. It is a speculation that the case would have been decided identically – that the defendant would have been convicted – even if the trial had in fact been fair.

The Court is therefore faced with a dilemma. It is forced to speculate whether it accepts the final substantive outcome of the case or not.

The words in Article 41 “... if the internal law of the High Contracting Party concerned allows only partial reparation to be made ...” ought, therefore, to be implemented so as to require the respondent State to permit retrial of the cases.

Some of the Contracting States’ jurisdictions do in fact have appropriate provisions in their codes of criminal procedure. Those provisions afford a legal basis for convicted persons in situations similar to those of the applicant in the instant case to request retrials. Such convicted persons thus acquire standing to lodge a special appeal where the European Court of Human Rights has held that the national criminal proceedings in which they were convicted did not satisfy a particular procedural requirement of the Convention. Only in such circumstances, I think, is the purpose of Article 41 fully achieved.

In situations such as the one we are faced with here, however – in which no special post-conviction remedy is provided in the national legislation – the Court ought to take a less defeatist approach. Our judgment should at least imply that the national legislation ought to provide for retrial of cases in which the proceedings have been found not to comply with essential procedural requirements. That, I think, is the purpose of the Article 41 words referring to the reparation allowed by internal law.

[1] Notes by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[3]

[1] 1. Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[1] 1. Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.