CONCURRING OPINION OF JUDGE EICKE

1 . Having had the opportunity to read in advance the Concurring Opinion of my colleague, Judge Koskelo, I very much agree with the concerns she expresses concerning the Court ’ s frequent use of a recommendation to reopen domestic proceedings as an aspect of its award of just satisfaction under Article 41 of the Convention both in light of (a) the almost inevitable tension and difficult balance to be struck between the concept of legal certainty, as a fundamental aspect of the rule of law and the need for substantive justice as well (b) the need to have regard for and respect the position and rights of any third parties involved.

2 . As Judge Koskelo rightly points out in her Concurring Opinion, the Court ’ s practice is frequently expressed as being based on or supported by Resolution R(2000)2 on the re-examination or reopening of certain cases at domestic level following judgements of the European Court of Human Rights , adopted by the Committee of Ministers of the Council of Europe on 19 January 2000. However, unlike her, it seems to me that the Court ’ s current practice, in fact, does not reflect a necessary and even less the only reading of that Recommendation. After all, as its preamble makes clear, the Recommendation seeks to do little more than give recognition to the fact that a finding of a breach of the Convention “may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum )”. This, of course, reflects the position on reparation under general international law and the duty on States to ensure restitution in integrum for an internationally wrongful act only insofar and to the extent that this is “not materially impossible”; an assessment in relation to which position of third parties may not only have to be taken into account but may be determinative (see Articles 31, 34 and 35 of the International Law Commission ’ s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts and the commentary thereto).

3 . Consequently, the difficult questions Judge Koskelo rightly identifies are (or should be) capable of being addressed ( inter alia by the Court itself) without having to wait for a broader consideration of the issue by the stakeholders in the Convention system and, even less, further clarification by the Committee of Ministers.

APPENDIX

No.

Application no.

Lodged on

Applicant

Year of birth

Place of residence

Nationality

Represented by

Complaint(s)

Damage claimed

Costs claimed for the domestic proceedings

Costs claimed for the proceedings

before the Court

22238/13

20/02/2013

Josip ROMIĆ

1960

Zagreb

Croatian

Ivan ROMIĆ

1958

Zagreb

Croatian

Višnja DRENŠKI LASAN

Višnja DRENŠKI LASAN

Submissions of the State Attorney ’ s Office not forwarded to the defence.

Submissions of the State Attorney ’ s Office not forwarded to the defence.

EUR 1,000 each

in respect of non-pecuniary damage

HRK 6,250 [6] each

HRK 13,000 [7]

jointly

30334/13

10/04/2013

Željko VLAŠKALIĆ

1955

Beli Manastir

Croatian

Artur FIÅ BAH

No opportunity to attend the session of the appeal panel.

Failed to submit a timely claim

Failed to submit a timely claim

Failed to submit a timely claim

38246/13

20/05/2013

Želimir RADONIĆ

1960

Zagreb

Croatian

Višnja DRENŠKI LASAN

Submissions of the State Attorney ’ s Office not forwarded to the defence.

No opportunity to attend the session of the appeal panel.

EUR 1,500

in respect of non-pecuniary damage

HRK 6,250

HRK 13,000

57701/13

04/09/2013

Zvonimir DUMANČIĆ

1961

Zagreb

Croatian

Višnja DRENŠKI LASAN

Submissions of the State Attorney ’ s Office not forwarded to the defence.

EUR 1,500

in respect of non-pecuniary damage

HRK 6,250

HRK 13,000

62634/14

11/09/2014

Željko SEVEREC

1959

Poreč

Croatian

Čedo PRODANOVIĆ

Submissions of the State Attorney ’ s Office not forwarded to the defence.

No opportunity to attend the session of the appeal panel.

EUR 45,000 in respect of pecuniary damage

and

EUR 200,000 in respect of non-pecuniary damage

HRK 37,627.96 [8]

None5172/15

12/01/2015

Josip TOPALOVIĆ

1981

Zagreb

Croatian

Višnja DRENŠKI LASAN

Submissions of the State Attorney ’ s Office not forwarded to the defence.

No opportunity to attend the session of the appeal panel.

EUR 1,500

in respect of non-pecuniary damage

HRK 6,250

HRK 13,000

17642/15

08/04/2015

Darko DOMAZET

1963

Banja Luka

National of Bosnia and Herzegovina

N/A

Submissions of the State Attorney ’ s Office not forwarded to the defence.

No opportunity to attend the session of the appeal panel.

EUR 5,865

in respect of pecuniary and non-pecuniary damage

HRK 1,000 [9]

None[1] Of course, there are situations in which the possibility of reopening is excluded for various reasons, e.g. that of legal certainty, respect for res judicata or the interests of bona fide third parties or victims.

[2] Their positive experiences in that connection may be found on the Council of Europe’s website at https://www.coe.int/en/web/execution/reopening-of-proceedings .

[3] It is within the competence of domestic courts to examine, in each particular case, the existence of the remaining statutory conditions for allowing the reopening of proceedings; e.g. whether the violation of the Convention affected the outcome of the proceedings, and whether the violation or its consequences can be rectified in the reopened proceedings (see paragraph 69 of the judgment, and Moreira Ferreira , v. Portugal (no. 2) [GC], no. 19867/12, § 98, 11 July 2017).

[4] This is without prejudice to the competence of the domestic courts, see previous footnote.

[5] In Turkey, u ntil 31 July 2018, Article 311 § 1 (f) of the Code of Criminal Procedure provided applicants with a remedy entailing the possibility of reopening criminal proceedings solely on the basis of a judgment of the Court finding a violation of the Convention or the Protocols thereto. However, following the entry into force of Law no. 7145 on 31 July 2018, applicants are now entitled to lodge an application for the reopening of criminal proceedings following a decision by the Court to strike their case out of its list of cases on the basis of a unilateral declaration, as that situation is now one of those exhaustively listed in Article 311 § 1 (f) of the Code of Criminal Procedure as a ground for the reopening of criminal proceedings. Thus, the Court in Şevket Yilmaz and Others was satisfied that the domestic law provided for a remedy whereby the applicants we re able to request the reopening of criminal proceedings following a decision or judgment striking out an application on the basis of a unilateral declaration ( for civil proceedings , see Bayrakdar Özdemir v. Turkey (dec.) , no. 49523/11, 5 March 2020; for administrative proceedings , see Bahar Özbaş v. Turkey (dec.) , no. 47370/08, 28 January 2020).

[6] . EUR 844

[7] . EUR 1,755

[8] . EUR 5,084

[9] . EUR 135