CONCURRING OPINION OF JUDGE TURKOVIĆ

The central issue in the present case is the possibility of reopening the domestic proceedings following a decision by the Court to strike out the case after accepting the Government ’ s unilateral declaration.

In the present case the Court has followed the approach confirmed in the cases of Dridi v. Germany (no. 35778/11, §§ 21-26, 26 July 2018), Hakimi v. Belgium (no. 665/08, §§ 21 and 29, 29 June 2010) and Kessler v. Switzerland (no. 10577/04, §§ 16, 18 and 24, 26 July 2007), and has rejected the unilateral declaration and the request for the case to be struck out, as submitted by the Government, because it has found that, if a case were to be disposed of in that manner, the right to apply for reopening of domestic proceedings has not been made available in domestic law with a sufficient degree of certainty (see paragraphs 84-85 of the judgment).

I do agree with the Court ’ s conclusion; however, I would like to make a number of remarks.

First, the national law and practice, in accordance with Recommendations (2002)2 and (2004)6, should effectively guarantee restitutio in integrum in the event of violations of the Convention. This obligation reflects the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation that existed before the wrongful act was committed, provided that restitution is not “materially impossible” and “does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation” (Article 35 of the Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts; this has been confirmed in Savriddin Dzhurayev v. Russia , no. 71386/10, § 248, 25 April 2013). Reopening the proceedings remains an effective way, and sometimes the only way, to achieve that end [1] .

The majority of States Parties have indeed introduced in their legal system the possibility of reopening domestic proceedings following a judgment of the European Court of Human Rights in which a violation has been found. Some have extended that possibility to unilateral declarations [2] . The Brussels Declaration (adopted by the Committee of Ministers at the High-Level Conference “The implementation of the European Convention on Human Rights, our shared responsibility”, Brussels (Belgium), 26 ‑ 27 March 2015) encourages State Parties to give priority to alternatives to litigation such as unilateral declarations. To do so effectively it is important for States Parties to extend the possibility of reopening to unilateral declarations as well.

Secondly, i n unilateral declarations, the acknowledgment of a violation is given by the Government Agent, who is representing a State and is authorised by that State to bind it by his or her statement in respect of matters falling within his or her purview (see the International Law Commission ’ s Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations with commentary, 2006). The States should always fulfil the obligations they undertake, regardless of the format of the Court ’ s decision. Accordingly, the possibility of reopening the domestic proceedings should also exist where the Court strikes out the case after accepting the Government ’ s unilateral declaration acknowledging a violation of the Convention (see Article 26 of the Vienna Convention).

Thirdly, unilateral declarations, in principle, provide sufficient elements for the domestic authorities to assess whether reopening is warranted in the particular case [3] , having regard to:

(1) the level of scrutiny exercised by the Court before accepting a unilateral declaration (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003 ‑ VI; Jeronovičs, [GC], no. 44898/10, §§ 64 71, 5 July 2016; and Article 37 § 1 in fine of the Convention), as well as after accepting it (see Article 37 § 2 of the Convention and the possibility for the Court to restore an application to its list of cases);

(2) the fact that in unilateral declarations the Government express an unreserved and unequivocal acknowledgment of a violation of the Convention (see paragraph 74 of the judgment and the binding effect of a unilateral declaration); and

(3) the fact that the issues raised in the case in question are usually based on the Court ’ s well-established case-law.

In the present case the Government Agent proposed unilateral declarations following a domestic procedure of consultation and approval by the Government. The issues raised in the case are based on the Court ’ s well-established case-law (see, as cited in the judgment, Zahirović v. Croatia , no. 58590/11, §§ 44-50 and 58-64, 25 April 2013; Lonić v. Croatia , no. 8067/12, §§ 83-86 and 90-102, 4 December 2014; and Arps v. Croatia , no. 23444/12, §§ 24-29, 25 October 2016) and the origin of violations found in similar cases has alre ady been removed (see paragraph 67, 68 and 87 of the judgment). Accordingly, the Supreme Court would have sufficient elements to decide whether or not to grant the reopening on the basis of a decision by the Court to accept a unilateral declaration by the Government.

Fourthly, in a situation where the right to apply for reopening of domestic proceedings on the basis of the Court ’ s decision accepting the Government ’ s unilateral declaration has not been made available in domestic law with a sufficient degree of certainty, there are two ways in which the Court could react, both being perfectly in accordance with the principle of subsidiarity. The Court could, as it has done in the present case, refuse the unilateral declaration and by a judgment find a violation of the Convention. But the Court could also accept the unilateral declaration. The applicant would then have the possibility of seeking the reopening on the basis of the strike-out decision and test the response by the domestic authorities [4] . Should they be denied such opportunity on the grounds of there being a strike-out decision and not a final judgment of the Court, their applications could be restored to the list in accordance with Article 37 § 2 of the Convention. Both approaches have their advantages and disadvantages.

In the present case the Court has chosen the first option, which is, so to speak, the one that is more friendly to the applicants, because it is clear that on the basis of the Court ’ s judgment they could ask for the reopening of criminal proceedings. By taking this approach the Court has avoided putting the burden of clarifying the provision of domestic law on the applicants. However, the Court has thereby, in principle, removed the possibility from the domestic courts of clarifying the domestic law, because the applicants have no incentive to test their possible response in such cases. Thus, in principle, the State Party, if it wishes to allow the possibility of seeking reopening of domestic proceedings also in the event of a decision by the Court to accept the Government ’ s unilateral declaration, and not only in the event of a judgment finding a violation of the Convention, it could do so primarily by changing its legislation, which is often a longer and more cumbersome way of clarifying the law.

In the present case there were good grounds for the Court to choose the second option. In particular, in decision no. Gr1 74/18-2 of 14 February 2018, the Croatian Supreme Court examined a request lodged under section 428a of the Civil Procedure Act for the reopening of civil proceedings on the basis of the Court ’ s decision accepting a unilateral declaration by the Government and striking the corresponding application out of the list of cases. It is noteworthy that the Supreme Court did not refuse to reopen the case because the request was based on the Court ’ s strike-out decision and not on a judgment finding a violation of the Convention; its refusal was based on other grounds. This signals that the Supreme Court might be willing to consider, under the current law, the reopening of the criminal proceedings following a strike-out decision based on a unilateral declaration by the Government.

Be that as it may, this judgment clearly demonstrates the need for the States to grant the possibility of reopening proceedings following a strike-out decision based on a unilateral declaration by the Government. In this respect, it is open to the State, should it so wish, to make a legislative change which would explicitly provide for the possibility of reopening in cases where the Court has accepted a unilateral declaration (for criminal proceedings, see for example Şevket Yilmaz and Others v. Turkey (dec.) , no. 73403/10, § 15, 30 April, 2019) [5] . It is also possible that domestic courts will develop case-law which reads the relevant domestic provisions as allowing for such a possibility (see for example Sroka v. Poland (dec.) , no. 42801/07, 6 March, 2012).