DISSENTING OPINION OF JUDGE BONELLO

1. By the present judgment, the majority quashed the judgment delivered on 25 October 2005 in favour of the applicant, on discovering that the applicant had died before the case was decided and that no one had informed the Court of this fact.

2. This Court has repeatedly had to deal with exactly similar circumstances. Not once in its history did it react the way it did in the present case.

3. Precisely the same situation arose, to mention only some instances, in all the cases listed hereunder – the Court came to know, well after the judgment had been delivered, that the applicant had passed away in the course of the proceedings (see Viola v. Italy (revision), no. 44416/98, 7 November 2002, Carolla v. Italy (revision), no. 51127/99, 28 November 2002, Frattini and Others v. Italy (revision), no. 52924/99, 26 November 2002, Ragas v. Italy (revision), no. 44524/98, 17 December 2002, D ’ Ammassa and Frezza v. Italy (revision), no. 44513/98, 9 January 2003, Armando Grasso v. Italy (revision), no. 48411/99, 29 April 2003, Guerrera and Fusco v. Italy (revision), no. 40601/98, 31 July 2003, Perhirin and 29 Others v. France (revision), no. 44081/98, 8 April 2003, Lutz v. France (revision) , no. 49531/99, 25 November 2003, Santoni v. France (revision), no. 49580/99, 1 June 2004).

4. In all these cases the Court was not made aware of the applicant ’ s death at the time it delivered judgment. One of the parties – in Frattini and Others , Perhirin and 29 Others and Santoni it was the Government itself – that brought the applicant ’ s death to the Court ’ s notice after delivery of the judgment. The Court, thoroughly matter-of-factly, revised its decision, ordering the sum accorded as just satisfaction to be paid to the surviving family. No more, no less. None of these judgments considered dying during a court case as an abuse that cannot be left unpunished.

5. I am unable to see why the inveterate, and eminently reasonable, case-law of the Court was stood on its head in the present case. The applicant ’ s family were denied what had been routinely allowed in every other similar case, whether the Court had been informed of the applicant ’ s death by the applicant ’ s family, or by the Government.

6. The consideration that a judgment given when the applicant has already passed away should have no existence or effect was, in my view rightly, disregarded in each and every one of the cases quoted above. In the case of Karner v. Austria , in which the applicant died prior to the judgment and his family expressly refused to pursue the application , the Court went one step further. The Government requested that the application should be struck off “since the applicant had died and there were no heirs who wished to pursue the application”. The Court, well aware that the case no longer had any applicant at all, rejected the Government ’ s plea and proceeded to

deliver judgment in the interest of human rights, ordering the respondent state to pay costs and expenses “to the applicant ’ s estate.”( no. 40016/98, ECHR 2003 ‑ IX ). Yes, the interests of human rights were there considered of some relevance.

7. There is not one shred of evidence in the present case that the heirs of the deceased applicant have lost interest in the proceedings. On the contrary, the records show that after judgment was delivered, the relatives of the deceased had applied to the Government to receive the payment ordered by the Court. That hardly indicates that the applicant ’ s family had renounced the effects of the judgment or their claims under it.

8. I see no reason why the Court should have taken as graven in stone the Government ’ s wholly unsupported – and highly implausible – inference that the applicant ’ s family rejected monies due to the applicant and to them, without requiring the slightest verification from the heirs themselves. Why bother with audi alteram partem once you can settle for the Government ’ s ipse dixit ?

9. I deem it an extremely fateful step that a court should make its own res judicata vanish . I deem it more serious still that so fateful a step was taken in the present case without the least effort having been made to inform the relatives of the deceased of the request for revision made by the Government. The Court knows full well that the lawyer of the deceased had denounced her brief. The applicant ’ s heirs (and the applicant ’ s lawyer too) have been deprived of their expectations, unaware of their fate and oblivious of the cordial goings-on between the Court and the Government behind their backs. If there is a rule somewhere by which those who stand to lose everythi ng from the annulment of a judg ment should be left in the dark until that fait is well and truly accompli , there must have been some flaw in my school curriculum.

10. I distance my name from all this.