CONCURRING OPINION BY JUDGE KOSKELO

Introduction

1. I fully subscribe to the conclusions reached on the merits of the present complaints (points 4 and 5 of the operative provisions, together with points 6 and 7 on just satisfaction). The respective violations of Article 6 § 1 and 6 § 3(c) are clear in the light of settled case-law.

2. The main issue in this case lies elsewhere, namely in the approach taken to reopening of the underlying domestic proceedings as redress for those violations. This subject matter raises many complex questions in the Convention system. The present case highlights some aspects of the problem, in particular the question of the relationship between unilateral declarations and the possibility of reopening at the domestic level.

3. I have voted in favour of rejecting the Government ’ s request to strike out the applications from its list (point 2 of the operative provisions), but I have done so with reluctance and without being able to fully share the reasoning set out in the Court ’ s decision.

4. As stated in paragraph 86 of the present decision, striking out the application from the Court ’ s list by virtue of the Government ’ s unilateral declarations does not provide the same certain access to a procedure allowing for the possibility of reopening domestic criminal proceedings as would a judgment finding a violation of the Convention. Therefore, in line with some previous case-law, it is concluded that a decision to strike out the applications from the list cannot be justified.

5. This position is a reflection of the more general approach to reopening as redress for violations of the Convention, which in my view is problematic and would require broader reconsideration. I would therefore like to briefly explain my reservations.

Background

6. The current approach to reopening is the result of a combination of factors at different levels of the Convention system. Firstly, the Recommendation adopted by the Committee of Ministers in 2000 [CM/R 2000(2)] was prompted by, and focused on, situations where “the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and c annot be rectified except by re ‑ examination or reopening”. The scope of the Recommendation is, however, not formally limited accordingly.

7. Secondly, many, perhaps most, States Parties have proceeded to implement the Recommendation by introducing domestic provisions which make reopening available following the finding by the Court of a violation of an applicant ’ s rights under the Convention. While there are variations in the scope of such provisions (regarding, for instance, the extent to which they cover criminal proceedings only or also civil proceedings), they typically appear to refer broadly to findings of violations of the Convention by the Court, and not limited to the more narrow scenario cited above.

8. Thirdly, the Court, in the context of violations of Article 6, has adopted statements according to which, in cases where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation ( Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 50, 11 July 2017). In this context, the Court has acknowledged that it doesn ’ t have the power to make any order for reopening and, furthermore, that the specific remedial measures, if any, required of a respondent State in order for it to discharge its obligations under the Convention must depend on the particular circumstances of the individual case ( ibidem ). Accordingly, the Court has recognised that a finding by the Court of a violation of Article 6 of the Convention does not automatically require the reopening of the domestic criminal proceedings. Nevertheless, it has held that this is, in principle, an appropriate, and often the most appropriate, way of putting an end to the violation and affording redress for its effects ( ibidem , § 52).

Some general remarks

9. The above elements – the Recommendation, various domestic provisions adopted in its wake, and the Court ’ s own remarks – have contributed to a situation where the role of reopening as a form of redress for violations of the Convention risks becoming quite problematic. This is so because certain essential aspects appear not to have been taken sufficiently into account. In the following, I will focus my remarks particularly on reopening in the context of criminal proceedings, as such proceedings are in issue in the present case.

10. Firstly , it is important to bear in mind that the reopening of proceedings which have been concluded by a final judgment involves a conflict between two fundamental principles recognised both under the Convention and domestic constitutions. The ultimate purpose of reopening as a legal institution is to ensure substantive justice. On the other hand, reopening entails an exception to legal certainty, which in turn is the ultimate purpose of the finality of judgments that have acquired the status of res iudicata . Both principles involved in this conflict, i.e. effective respect for the individual ’ s human rights and respect for legal certainty, underpin the Convention as well as domestic constitutions. Reopening cannot therefore be regarded as a form of redress without taking into account the other side of the coin.

11. Secondly , this point is essential because domestic proceedings frequently involve, and concern, more than one private party whose rights are at stake, and the competent courts are not only discharging human rights obligations owed to one single individual, but obligations owed by the State authorities to each party respectively. Although proceedings before the Court only deal with the rights of a given applicant, this feature does not justify disregard for the fact that the underlying domestic proceedings consist of a more complex exercise aimed at satisfying multiple requirements arising from all the rights involved.

12. This consideration is important also with regard to reopening as a form of redress for breached of the Convention violations. The reopening of proceedings already concluded by a final judgment will often have negative repercussions on other private parties than the individual in whose interest such reopening is granted. This is frequently the case also in the context of criminal proceedings, as many jurisdictions permit the victim ’ s compensation claims to be examined and adjudicated upon in the context of the criminal proceedings conducted against the accused – an arrangement which offers significant benefits to the victim and is therefore frequently relied upon. In those situations, the finding of guilt is the basis for the criminal conviction and the associated penal sanctions as well as for the award of compensation to the victim. Thus, criminal proceedings often comprise, at the same time, both a criminal and a civil limb. Such proceedings are not only concerned with the “vertical” relationship between the State and the accused but, at the same time, also with the “horizontal” relationship between the accused and the alleged crime victim.

13. In this context, it is worth noting that the Explanatory Memorandum relating to the Recommendation mentioned above does mention that reopening or re-examination could pose problems for third parties, in particular when these have acquired rights in good faith (paragraph 15 of the Memorandum). This problem, however, is downplayed by stating that it already exists in the application of the ordinary domestic rules for re ‑ examination of cases or reopening of the proceedings. The suggestion offered is that the solutions applied in these cases ought to be applicable, at least mutatis mutandis , also to cases where re-examination or reopening was ordered in order to give effect to judgments of the Court. What remains overlooked in those remarks is that the “solution” in those ordinary domestic rules primarily consists of two main elements, namely that the grounds for reopening are limited to exceptional and narrowly framed situations, and that their application is subject to specific, relatively short time-limits. By contrast, the possibility for reopening on the grounds of a finding by the Court of a violation of the Convention entails that no such limitations are in place: the grounds for reopening become very broad and imprecise, and the time-frames become indefinite and very much extended because of the long duration of the proceedings before the Court.

14. Thirdly , it should not be overlooked that the responsibility for violations of the Convention is that of the State. It should not be open for the State to settle its own responsibilities at the expense of, or to the detriment of, private parties who are not to blame for the State ’ s failure to fulfil its obligations under the Convention.

15. In this context, it should also be acknowledged that with the lapse of time, the underlying purpose of reopening – to ensure substantive justice – will in reality often be lost. It is to be noted that we are not now contemplating situations where reopening is based on the emergence of some new facts or evidence. Instead, we are dealing with situations where there has been an “original” violation of Convention requirements in the domestic proceedings. If such proceedings are undone by way of reopening after many years, the available evidence in a re-trial will often no longer enable a correct establishment of facts to the requisite standard of proof, whereby the chances of achieving substantive justice are undermined. Instead, the result may well be that one injustice is replaced by another, possibly a more serious one. In the context of criminal proceedings, for instance, a violation of the procedural rights of the accused may then result in a violation of the substantive rights of the victim, especially as a procedural deficiency in the original trial does not necessarily entail that the outcome was flawed.

16. The element of time and its aggravating effects on the problems arising from the reopening of domestic proceedings appears to be another aspect which has not received adequate consideration in the Recommendation referred to above. This may be explained by the fact that the Recommendation was adopted in the year 2000, when the “New Court” was in its early days, and before the emergence of the subsequent crisis with the Court ’ s case-load and the ensuing (very) long processing times of many complaints. Nowadays, however, the current realities should not remain ignored.

17. With this brief overview I would like to draw attention to the fact that the approach to reopening as a form of redress for Convention violations should not disregard the fact that there are many problems involved in this matter, some of which have been referred to above. Clearly, there are situations where reopening will be the appropriate form of redress. But there are many situations where especially the repercussions on the position of other parties concerned by the underlying domestic proceedings may render this form of redress highly problematic, not least because of the long lapses of time involved. A very careful and differentiated approach is required. These difficulties should be better reflected in the recommended standards, in the relevant domestic provisions and practices, as well as in the manner in which the Court addresses these issues. There appears to be a need for some rethinking at all levels. The guiding principle should be to ensure appropriate redress in a manner whereby the State fulfils its responsibilities without causing adverse effects on third parties. Even in purely vertical situations, there may be circumstances where, for instance, the long lapses of time may render reopening suboptimal, or outright pointless, as a form of redress. One can imagine better alternatives.

The present case

18. As stated in paragraph 83 of the judgment , the present case concerns situations where violations of the Convention (Article 6) have been acknowledged by the Government and where the aim pursued by each of the applicants in their individual applications was the reopening of the criminal proceedings against them. As can be seen from the description of the facts, the complaints arise from a mixed variety of penal proceedings. For example, some concern very serious crimes against another individual (such as attempted murder), whereas some appear to concern “vertical” situations such as economic crime or more trivial acts (such as damage caused to public property more than a decade ago and sanctioned by a reprimand). Most indictments date back nearly or more than a decade, and the underlying facts obviously lie even further back in time.

19. It is neither appropriate nor possible on the basis of the available information to make any further comments as to whether reopening would indeed, in the light of all the relevant circumstances, be the most appropriate form of redress in the specific situations. Suffice it to say that as matters stand, the domestic law appears to grant broad access to such a remedy. There is of course a difference between the possibility to seek reopening and the right to obtain such reopening under the relevant domestic norms.

20. The question for the Court in the present case is whether it would be acceptable that the manner in which the applicants ’ complaints are disposed of by the Court might, in and of itself, have a bearing on their legal situation with regard to reopening at the domestic level. Despite my concerns and reservations about treating this type of measure as a standard remedy, the responses depend on the national law, and the problems must remain a matter for the domestic level to resolve. For this reason, and in the light of the Court ’ s existing case-law (see Dridi v. Germany , cited in paragraph 83 of the present decision), I have voted for rejecting the Government ’ s request to strike the applications out of the list.