JOINT CONCURRING OPINION OF JUDGES VILLIGER, NUSSBERGER AND DE GAETANO

While we have voted with the majority in finding a violation of Article 4 of Protocol No. 7 in line with the judgment in Nykänen v. Finland (no. 11828/11, 20 May 2014 ), we think it is worth mentioning our disagreement with the majority ’ s approach to the retroactive application of the Court ’ s case-law after it has undergone a fundamental change.

Legal change and flexibility are essential for a modern human rights protection system. Thus the Convention has always been considered as a living instrument taking up and responding to changes in European societies. At the same time it cannot be ignored that a radical change in the Court ’ s case-law – as in the present case – upsets legal certainty and, more specifically, the interaction between the national courts and the Court. It is disruptive for national courts following the Court ’ s case-law faithfully to find themselves – without any warning – accused of a breach of the Convention.

It is therefore necessary to find a good balance between change and flexibility on the one hand and legal certainty on the other hand.

In the Marckx v. Belgium judgment (13 June 1979, Series A no. 31) the Court gave a subtle answer to the problem and decided to apply the new interpretation of the Convention only to the case that was brought before it, but at the same time to limit further retroactive application. Thus the date of the judgment reversing the existing case-law is the watershed between the old and the new interpretation of the Convention:

“... reliance has to be placed on two general principles of law which were recently recalled by the Court of Justice of the European Communities: ‘ the practical consequences of any judicial decision must be carefully taken into account ’ , but ‘ it would be impossible to go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from such a judicial decision ’ (8 April 1976, Defrenne v. Sabena, Reports 1976, p. 480). ... Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation” (see Marckx , cited above, § 58). [1] ”

In the present case the Swedish courts followed this approach and took the date of adoption of the judgment in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009), reversing the previous case-law ( Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004), as the starting-point for the change in the Swedish case-law. They thus took the erga omnes effect of the Court ’ s rulings seriously while at the same time setting a clear time-frame.

On this basis the Swedish Government argued that there had been no violation of Article 4 Protocol No. 7 “as the criminal proceedings had been finalised a month before the Sergey Zolotukhin judgment ... and thus at a time when the Court ’ s case-law indicated that the Swedish system was in conformity with this provision” (see paragraph 50 of the judgment).

The majority of the Chamber, however, rejected this approach based on very general assumptions directly contradicting Marckx :

“Generally, if events in the past are to be judged according to jurisprudence prevailing at the time when the events occurred, virtually no change in case-law would be possible. While the Court acknowledges that, at the time of the criminal proceedings against the applicant, there had been an earlier decision relating to double proceedings in Swedish tax matters which concluded that a complaint concerning similar circumstances was manifestly ill-founded ( Rosenquist , cited above), the present case must nevertheless be determined with regard to the case-law existing at the time of the Court ’ s examination” (see paragraph 50 of the judgment). ”

In our view this general statement is contradicted by the regulation on the ex nunc effects of Constitutional Court judgments alluded to in the Marckx judgment. [2] A much more differentiated approach is necessary.

The only direct answer given by the Convention itself is the six-month rule, which naturally limits the retroactive effects of new case-law in time.

Furthermore, there is a long-standing position on the part of the Court concerning cases in which the applicants have already lodged a complaint with the Court at the time of the reversal of the case-law. As they are in exactly the same situation as the successful applicant they should be treated in the same way (see, for example , Dovguchits v. Russia , no. 2999/03, § 24, 7 June 2007; Redka v. Ukraine , no. 17788/02, § 25, 21 June 2007; Rizhamadze v. Georgia , no. 2745/03, § 27, 31 July 2007; Ştefanescu v. Romania , no. 9555/03, § 20, 11 October 2007; and Vanjak v. Croatia , no. 29889/04, § 32, 14 January 2010).

The open question concerns applications – such as the present one – lodged after the reversal of the case-law when the national courts ’ judgments based on the previous approach have already acquired res judicata . In those cases there are clearly conflicting interests: on the one hand the trust of the national courts in the reliability and persistence of the Court ’ s case-law, and on the other hand the applicants ’ trust in the application of the new case-law.

In this context it is necessary to be aware of the fact that every change in the case-law will inevitably bring about situations of inequality as “new” applications are treated differently from “old” ones. This inequality cannot be avoided wherever the dividing line is drawn.

Therefore we would argue that it is perfectly legitimate for national courts to apply the Court ’ s new approach only ex nunc , unless there are compelling reasons to decide otherwise (which would have to be clearly indicated by the Court in its judgment revising the case-law). This is all the more true when the national courts agree to change their own case-law because of the erga omnes effects of the Court ’ s judgments. [3]

National courts are required to implement the Court ’ s judgments, but not to anticipate changes in the case-law.

In the present case, however, the proceedings continued after the date of the Zolotukhin judgment (cited above), so that the national courts did have a chance to implement the new approach.

Nevertheless, we think that the scope of the retroactive effect of the Court ’ s judgments deserves heightened attention [4] and should be dealt with very carefully in order not to undermine the national courts ’ trust in the validity of the Court ’ s authoritative findings.

[1] A similar approach has also been adopted by the Court concerning changes of case-law at the national level. Thus the Court stated, in a case concerning a new interpretation of the passing of an automatic sentence of life imprisonment, that it was “not persuaded that the clarification and interpretation of section 2 by the Court of Appeal rendered previous sentencing exercises unlawful retrospectively” ( Partington v. the United Kingdom (dec.), no. 58853/00, 26 June 2003).

[2] Compare the systematic analysis of the different solutions to the problem of retroactivity of new case-law: Francoise Tulkens, Sébastien Van Drooghenbroeck, The shadow of Marckx. For a renewed debate on the temporal effects of judgments of the European Court of Human Rights . The authors distinguish between “absolute retrospectivity”, “qualified or indeed ordinary retrospectivity”, “limited or selective prospectivity”, and “absolute prospectivtiy”.

[3] In this respect Sweden’s approach went further than the one taken, for instance, by France when implementing the Mazurek judgment ( no. 34406/97, ECHR 2000 ‑ II) and by Germany when implementing the Brauer judgment (no. 3545/04, 28 May 2009). France and Germany changed their approach not on the basis of the erga omnes effects of the Court’s judgments, but only when the Court found their respective legislation to be incompatible with the Convention.

[4] Tulkens and Van Drooghenbroeck convincingly show relevant inconsistencies in the Court’s rulings on the retroactive application of changed case-law.