PARTLY DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGES POPOVIĆ AND PINTO DE ALBUQUERQUE

1. I voted against point 3 of the operative provisions, which states that “ the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage ” . In my opinion, the mere finding of a violation is insufficient to repair the damage suffered by the applicant. Even from a theoretical or philosophical viewpoint, it is legitimate to wonder whether the mere finding of a violation of a fundamental right can possibly afford sufficient redress (see Aquilina v . Malta [ GC ], no. 25642/94, dissenting opinion of Judge Bonello) .

2. It is true that Article 41 of the Convention stipulates that the Court is to afford just satisfaction only “if necessary”. The case-law reveals that the Court has adopted this solution mainly when the victim had the possibility of obtaining satisfaction at domestic level, when the violation found was of little significance, when the national authorities clearly expressed the will to reform the legislation or practice from which the violation originated or when the victim had the possibility of requesting the reopening of the domestic proceedings or obtaining satisfaction at domestic level.

3. It must be acknowledged, however, that these criteria are fairly vague and imprecise and leave the Court with a significant discretion , which might give rise to inequalities in treatment. For instance, in some cases similar to the present one the Court has made an award to the victims. Examples of such cases are Schaller- Bossert v. Switzerland ( no . 41718/05, § 47, 28 October 2010 ) and Ellès and Others v . Switzerland ( no . 12573/06 , § § 27 and 37, 16 December 2010 ) .

4. In the present case, the applicant was the victim of a violation of the principle of equality of arms, implicit ly guaranteed by A rticle 6 of the Convention. The Court has always held that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of the provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings if requested.

5. However , in the present case the judgment does not even mention the possibility for the applicant to request the reopening of the proceedings. This fact , coupled with the Court ’ s refusal to make an award to the applicant , means that the damage he sustained has not been sufficiently redressed .