JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, RANZONI AND BOÅ NJAK

To our regret, we cannot share the majority’s reasoning and conclusion under Article 6 concerning the fairness of the proceedings in the applicant’s case.

First, we find that the majority failed to address properly the Government’s plea of non-exhaustion of domestic remedies. In paragraph 69, after finding that Article 6 had been violated, they merely stated that the non-exhaustion objection was “consequently” dismissed. However, an inadmissibility plea cannot be rejected because a violation has been found on the merits; otherwise, the subsidiarity principle is ignored and the whole logic of Article 35 is subverted. The Court may deal with the matter only after all domestic remedies have been exhausted.

Some explanation of this approach can be found in paragraph 63. According to the majority, the proceedings in question went beyond mere litigation between private individuals, thus engaging the State’s responsibility with respect to Article 6 § 1 of the Convention; therefore, presumably, the State should act proprio motu and the applicant did not have to seek damages during the criminal proceedings or lodge a separate civil claim as the Government argued.

Regrettably, we do not agree with this interpretation of States’ positive obligations under Article 6. It is true that the Contracting Parties should ensure effective protection of children and other vulnerable persons against ill-treatment (see O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts)). However, this positive obligation under Article 3 of the Convention cannot, in our view, be extended to Article 6, which provides for minimum procedural guarantees in the determination of civil rights and obligations or of any criminal charge against a person. For example, a State has an obligation to provide a vulnerable victim of torture with free legal assistance in order to ensure his or her effective participation in the relevant domestic proceedings, but this is an obligation under Article 3 of the Convention and not under Article 6 (see Savitskyy v. Ukraine , no. 38773/05, § 119, 26 July 2012).

It should be noted at the outset that the applicability of Article 6 in the present case is doubtful, given that the applicant never submitted any civil claim in the proceedings in question (compare Hamer v. France , 7 August 1996, §§ 68-79, Reports of Judgments and Decisions 1996 ‑ III). Furthermore, the State’s positive obligations to protect a minor, including the requirement to offer compensation for abuse, were sufficiently addressed in the Court’s findings under Article 3 of the Convention (see, in particular, paragraph 47 of the judgment). Article 6 and the fair trial requirements are of a different nature. The scope of the concept of fairness of the proceedings should not be broadened to include a requirement to award compensation proprio motu , not even to the most vulnerable party to the proceedings.

The majority then proceeded to conclude that “the Court of Appeal’s reasoning had no legal foundation”, because “[i]n the light of the unequivocal wording of the obligation enshrined in Article 17 of the CCP, the Court of Appeal should have examined on the merits the right to compensation, deciding whether or not the applicant was entitled to an award.”

In so finding the majority overstepped the limits set out in the Convention for the purposes of examining national procedural law, acting as a “fourth instance” court in circumstances where the domestic courts cannot be found to have acted in an arbitrary manner.

Article 17 of the CCP required the court to ask the person concerned, through his or her legal representative, “to explain the situation concerning the pecuniary and non-pecuniary damage”. It also provided that the court had to “ examine on its own initiative the matter of compensation ... even without a formal request for compensation from the victim” (see paragraph 24 of the judgment).

According to the Government, the applicant’s mother, as his legal representative, clearly stated during the proceedings that “she [did] not request moral damage” from the defendant (see paragraph 60 of the judgment). This was not disproved by the applicant. It thus cannot be said that the domestic judicial authorities ignored the above-mentioned requirement set out in Article 17 to ask the person concerned to state his or her position on the damage. This provision further obliged the court to examine the matter of compensation, but it did not say that it must award compensation. Given the above position of the applicant’s representative, it cannot be said that there was no legal foundation for the Court of Appeal’s decision not to award compensation, and that decision does not appear to be arbitrary.

Thus, the present case cannot be compared to two cases referred to in the present judgment, namely Anđelković v. Serbia (no. 1401/08, 9 April 2013) , where the court’s explicit reasoning on the subject-matter of the case “was based on what appears to be an abstract assertion quite outside of any reasonable judicial discretion”, or to Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, ECHR 2015) , where the Supreme Court of Ukraine deliberately misinterpreted this Court’s judgment.

Whilst the Court of Appeal remained silent on the issue of compensation, this omission does not amount, in our view, to a denial of justice as the majority concluded.