CONCURRING OPINION OF JUDGE SPIELMANN

1. In the present case the Court has found a violation of Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention.

2. The Court concludes that the applicant ’ s defence rights have been restricted to an extent that is incompatible with the guarantees provided for by those provisions (paragraph 38).

3. My separate opinion concerns the conclusions the Court should have drawn under Article 41 of the Convention, notwithstanding the fact that no claim had been submitted by the applicant in this respect.

4. On 6 June 2000 the Apatity Town Court of the Murmansk Region convicted the applicant but on 1 November 2000 the Murmansk Regional Court, finding that the trial had been flawed, quashed the judgment and ordered a retrial. The Murmansk Court held that the trial court had breached Article 286 of the Code of Criminal Procedure by failing to take any measures to secure the attendance of witness S., whose testimony had had major importance for the determination of the charge against the applicant and whose whereabouts had been known to the court.

5. Even the Government conceded that the trial court had failed to comply with the directions of the appeal court given in the judgment of 1 November 2000 (see paragraph 25). The Court rightly observes in paragraph 35 of the judgment that the trial court ’ s failure to secure the attendance of S. was one of the reasons why the Regional Court quashed the judgment of 6 June 2000. Despite the clear indication of the appeal court, the trial court again failed to summon S. to its hearings. The Court concludes that the domestic courts displayed manifest negligence (see paragraph 36).

6. In these circumstances, the Court should have reiterated – as it has done in other cases – that when an applicant has been convicted despite an infringement of his rights under Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of the provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005 ‑ IV ; Popov v. Russia , no. 26853/04, § 264 , 13 July 2006 ; Vladimir Romanov v. Russia , no. 41461/02, § 118 , 24 July 2008 ; and Polufakin and Chernyshev v. Russia , no. 30997/02, § 219 , 25 September 2008 ).

7. On account of its importance, such reasoning should then have been included in the operative provisions as well, for reasons which I have already explained to a certain extent in other separate opinions (see for example, the joint concurring opinion I appended with Judge Malinverni to the Vladimir Romanov v. Russia judgment (no. 41461/02, 24 July 2008 ) as well as my concurring opinion in Polufakin and Chernyshev v. Russia ( no. 30997/02, 25 September 2008 ).