SEPARATE OPINION OF JUDGE ROZAKIS, JOINED BY JUDGE RESS

I fully agree with the decision of the Grand Chamber to strike this application out of the list of cases as a result of the fact that the witness Mr B. was examined during the retrial of the applicant in the extraordinary proceedings that were opened at the latter's request. The only point on which I differ from the majority of the Court concerns the ground on which they have relied to come to the aforementioned conclusion: they have considered that the striking out of the case should be based on sub-paragraph (b) of paragraph 1 of Article 37 (“the matter has been resolved”), while I believe that the correct approach to this case is to strike it out of the list by applying the following sub-paragraph, (c), which allows an application to be struck out “for any other reason established by the Court...”.

My preference for the latter ground for striking out the application is founded on the following considerations: sub-paragraph (b) of paragraph 1 seems to me to constitute what one can call a de jure ground for striking out an application. Indeed, it refers to a situation in which an application can be struck out because the matter has been resolved. The French text is more eloquent and precise and conveys better the real meaning of this sub-paragraph: instead of referring to a “matter”, it speaks of a “ litige ” (which may be translated as “litigation” or “dispute”). In other words, the relevant sub-paragraph requires that an application may be struck out of the list of cases only if the dispute (or litigation) has previously been resolved. It goes without saying that the reference to a “matter” or to a “ litige ” concerns a dispute between a person and a State Party to the Convention over an alleged violation of a rule (or rules) of the Convention by that State.

The question which, therefore, must be answered is where a matter (a “ litige ”) is deemed to have been resolved, allowing, as a consequence, the application to be struck out. The case-law of the Strasbourg institutions has established solid principles – with only a few exceptions – according to which a dispute over an alleged violation of the Convention may be considered to have been resolved within the domestic order of a State Party in accordance with the requirements of the Convention: taking as a point of departure the way in which the Strasbourg institutions have dealt with a violation of the Convention, the case-law makes clear that there are two requirements which must be fulfilled in the event of a violation of the Convention by a State Party if a pending matter is to be resolved in a satisfactory manner: the acknowledgment of a violation, and the payment of compensation for any damage resulting from the violation.

In the circumstances of this case the solution given is a de facto solution: the failure to examine the witness B., which was at the root of the applicant's complaint, was remedied by the extraordinary proceedings instituted by him. Yet the domestic court, although it indirectly admitted the deficiencies of the previous proceedings by examining the witness, and in the end acquitted the applicant, never acknowledged that there had been a violation of the Convention by the courts that had previously dealt with the case, and did not consider compensating the applicant for the damage (pecuniary and non-pecuniary) that he might have suffered because of the previous courts' omission.

Under these circumstances, I readily accept that it is difficult for the Court to continue the examination of the case, but I consider that the ground for rejecting a further examination of the case is not sub-paragraph (b), with its rigid requirements, but sub-paragraph (c), which offers a wider and more versatile ground for striking an application out of the list of cases.

[1] . Rule 44 § 4 as of 1 October 2002