JOINT CONCURRING OPINION OF JUDGE S SPIELMANN AND JEBENS

1. We agree in all respects with the Court ’ s conclusions as to t he violations of Article 6 as identified in points 2, 3, 4 and 5 of the operative part of the judgment.

2. We would, however, have liked the reasoning set out in paragraph 103 of the judgment, on account of its importance, to have been included in the operative provisions as well, for reasons which have already been explained to a certain extent in the joint concurring opinion of Judges Spielmann and Malinverni in Vladimir Romanov v. Russia (no. 41461/02, judgment of 24 July 2008 ) as well as the concurring opinion of Judge Spielmann in Polufakin and Chernyshev v. Russia ( no. 30997/02, judgment of 25 September 2008 ) and most importantly in the concurring opinion of Judges Rozakis , Spielmann , Ziemele and Lazarova Trajovska in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008- ... ), and which are now repeated here.

3. Firstly, since the Court has jurisdiction to interpret and apply the Convention, it also has jurisdiction to assess “the form and quantum of reparation to be made” (See J. Crawford, The International Law Commission ’ s Articles on State Responsibility. Introduction, Text and Commentaries , Cambridge University Press, 2002, p. 211). Indeed, the Court reiterates in paragraph 103 of the judgment that when a person has been convicted in breach of the procedural safeguards afforded by Article 6, he should, as far as possible, be put in the position in which he would have been had the requirements of that Article not been disregarded (the principle of restitutio in integrum ).

4. The principle of restitutio in integrum has its origin in the judgment of 13 September 1928 of the Permanent Court of International Justice in the case concerning the F actory at Chorzów ( ( claim for indemnity) (merits) Series A, n o. 17, p. 47) :

“The essential principle is ... that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed . ”

5. In Papamichalopoulos and Others v. Greece ( (Article 50), 31 October 1995 , § 34, Series A no. 330 ‑ B ) the Court held as follows:

“The Court points out that by Article 53 of the Convention the High Contracting Parties undertook to abide by the decision of the Court in any case to which they were parties; furthermore, Article 54 provides that the

judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.

The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum , it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.”

6. This principle , namely that restitutio in integrum is considered to be the primary remedy for effecting reparation for breaches of international law , has been constantly reaffirmed in international case-law and practice, and is enshrined in Article 35 of the Draft Articles on State responsibility adopted by the International Law Commission in 2001 .

7. Article 35 of the Draft Articles reads as follows:

“A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”

8. There is no reason not to apply this principle to make reparation for international wrongful acts in the field of human rights (see Loukis G. Loucaides , “Reparation for Violations of Human Rights under the European Convention and Restitutio in integrum ”, in [2008] European Human Rights Law Review , pp. 182-192; see also A. Orakhelashvili , “The European Convention on Human Rights and International Public Order”, in (2002-2003) 5 Cambridge Yearbook of European Legal Studies , p. 237 at p. 260).

9 . The reason why we wish to stress this point is that it must not be overlooked that the damages which the Court orders to be paid to victims of a violation of the Convention are, according to the terms and the spirit of Article 41, of a subsidiary nature. This is in line with the subsidiary character attributed to compensation for damage in international law. Article 36 of the Draft Articles on State responsibility provides:

“ 1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. ... ”

It is therefore right that, w herever possible, the Court should seek to restore the status quo ante for the victim .

10. In the present case, the fairness of the criminal proceedings under examination had been irretrievably prejudiced, notably by the absence of a lawyer at the time the applicant was questioned by the police.

11. The applicant ’ s statement obtained in such circumstances constituted “the fruit of the poisonous tree” which, however, was admitted in the proceedings and which contaminated them as a whole .

This was further aggravated by the confrontation between the applicant ’ s lawyer and the bench.

12. G iven that the multiple violations of Article 6 of the Convention irretrievably affected his defence rights , and as the Court indicated in paragraph 103 of the judgment, the best means of redressing the violations found would be the reopening of the proceedings and the commencement of a new trial at which all the guarantees of a fair trial would be observed, provided, of course, that the applicant requests this option.

13. In Cyprus , there is no legislative provision setting out the procedure for reopening of domestic proceedings which are found to be unfair by the European Court of Human Rights, unlike the situation in other Council of Europe Member States [1] .

1 4. That should not , however , be an obstacle to the inclusion by the Court of appropriate directions in the operative part of the judgment. As the Court has held in Papamichalopoulos and Others v. Greece , if national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate ( see Papamichalopoulos and Others , cited above , § 34; s ee also Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).

15. We would also like to add that the Court has already included directions of this nature in the operative provisions of judgments. For example, in Claes and Others v. Belgium (nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in point 5 (a) of the operative provisions of its judgment :

“unless it grants a request by [the] applicants for a retrial or for the proceedings to be reopened, the respondent State is to pay [sums in respect of non-pecuniary damage and costs and expenses] , within three months from the date on which the applicant in question indicates that he does not wish to submit such a request or it appears that he does not intend to do so, or from the date on which such a request is refused” .

Similarly, in Lungoci v. Romania (no. 62710/00, 26 January 2006) the Court held in point 3 (a) of the operative provisions of its judgment :

“the respondent State is to ensure that, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the proceedings are reopened if the applicant so desires, and at the same time is to pay her EUR 5,000 ... in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into Romanian lei at the rate applicable at the date of settlement . ”

16. It is common knowledge that , while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court reached a finding of a violation , or not, of the Convention, and is of decisive importance on that account for the interpretation of the Convention, it is the operative provisions that are binding on the parties for the purposes of Article 46 § 1 of the Convention.

17 . By virtue of Article 46 § 2 of the Convention, supervision of the execution of the Court ’ s judgments is the responsibility of the Committee of Ministers. That does not mean, however, that the Court should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers ’ task in discharging these functions.

18 . To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also indicate to the State concerned in the operative provisions, if the circumstances of the case so require, the measures it considers most appropriate in order to secure redress for the violation.