SEPARATE OPINION OF JUDGE SERGHIDES

1. The case concerns the revision of the applicant’s criminal conviction after the Court’s finding of a violation of Article 6 § 1 of the Convention in its judgment of 20 March 2012. The present judgment (paragraph 39) finds that the Supreme Court, when making its own interpretation as to the scope of the meaning of the Court’s findings in the said judgment, went beyond the national authorities’ margin of appreciation and distorted the conclusions of the Court’s judgment. Consequently, as the present judgment goes on to hold, the impugned proceedings fell short of the requirement of a “fair trial” under Article 6 § 1 of the Convention, and there has accordingly been a violation of that provision (paragraph 40).

Violation of Article 46 § 1 of the Convention

2. I subscribed to the present judgment in finding that there had been a violation of Article 6 § 1 of the Convention, and I, therefore, voted in favour of points 1 and 2 of its operative part; my disagreement, however, concerned the omission of the judgment in failing to make an express or direct finding of a violation of Article 46 § 1 of the Convention and the corresponding failure to hold in the operative part that there had been a violation of that provision as well. Due to this additional violation, I would award a higher amount in respect of non-pecuniary damage.

3. In my view, the power of the Court to find a violation of Article 46 § 1 of the Convention is based on Article 32 § 1 of the Convention, which provides for the jurisdiction of the Court to interpret and apply the Convention, expressly including Article 46, as well as on the latter provision, and on the Court’s inherent power. In Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], no. 32772/02, § 66, 30 June 2009) the Court, based on Article 32 of the Convention, rejected the Government’s submission that the case should be declared inadmissible ratione materiae on the ground that, by virtue of Article 46 of the Convention, execution of the Court’s judgments fell solely within the jurisdiction of the Committee of Ministers.

4. This jurisdiction of the Court in no way undermines but, on the contrary, enhances the role of the Committee of Ministers in supervising the execution of the Court’s judgments under Article 46 § 2 of the Convention. It would be odd for the Court to have the power to find a violation of Article 46 § 1 in impeaching proceedings under paragraphs 4 and 5 of the same Article, when the issue is referred to the Court by the Committee of Ministers, and not to be able to do so in any other appropriate case, such as the present one. Similarly, it would be odd for the Court to have the power to rule on questions of interpretation of its judgments when the issue is referred to it by the Committee of Ministers under Article 46 § 3, but to be precluded from doing so in any other appropriate case. And, of course, the Court, in the present case, was not precluded from finding unanimously that there had been a misinterpretation of the Court’s ruling of 20 March 2012 by the Supreme Court; hence, there would be no justification for similarly omitting to find a violation of Article 46 § 1. The above powers of the Court enable it to be involved in the implementation of its own judgments, as do its powers to deliver pilot judgments or to request the adoption of general and/or individual measures.

The importance of finding a violation of Article 46 § 1 and the principle of effectiveness

5. The principle of effectiveness as a norm of international law, enshrined at the outset in the impugned provision of Article 6 of the Convention, subsequently incorporated in the Court’s judgment of 20 March 2012 and finally transmitted to the execution mechanism, by Article 46 § 1, requiring Spain to abide by the final judgment of the Court, would be an empty shell without the proper implementation of this judgment. However, the Committee of Ministers closed the examination of the case (see paragraph 17 of the judgment) while the Supreme Court misinterpreted the said judgment and therefore, to a great extent, failed to implement it (see paragraphs 11, 22, 35, 38-39).

6. To conclude, without a finding that there has been a violation of Article 46 § 1, the principle of effectiveness as a norm of international law would not be satisfied and its entire “journey” from Article 6 to the delivery of the judgment, and finally to the judgment’s implementation stage, would be futile.