CONCURRING OPINION OF JUDGE S MALINVERNI

AND SAJÓ

1. We agree in all respects with the Court ' s conclusions as to the violation of Article 6 § 1 of the Convention. We would , however , have liked the reasoning set out in paragraph 53 of the judgment , on account of its importance , to have been included in the operative provisions as well , for the following reasons . [1]

2. Firstly , it is common knowledge that while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court reached a finding of a violation or no violation of the Convention , and is of decisive importance on that account for the interpretation of the Convention , it is the operative provisions that are binding on the parties for the purposes of Article 46 § 1 of the Convention. It is therefore a matter of some significance , from a legal standpoint , for part of the Court ' s reasoning to appear also in the operative provisions.

3. And indeed, what the Court says in paragraph 53 of the judgment is in our view of the utmost importance. It reiterates that when a person has been convicted in breach of the procedural safeguards afforded by Article 6, he should, as far as possible, be put in the position in which he would have been had the requirements of that Article not been disregarded (the principle of restitutio in integrum ). In the present case, the best means of achieving this is the reopening of the proceedings and the commencement of a new trial at which all the guarantees of a fair trial would be observed, provided, of course, that the applicant requests this option and it is available in the domestic law of the respondent State.

4. The reason why we wish to stress this point is that it must not be overlooked that the amounts which the Court orders to be paid to victims of a violation of the Convention are, according to the terms and the spirit of Article 41, of a subsidiary nature. Wherever possible, the Court should therefore seek to restore the status quo ante for the victim. It should even reserve its decision on just satisfaction and examine this issue, where necessary, only at a later stage, should the parties fail to settle their dispute satisfactorily.

5. Admittedly , States are not required by the Convention to introduce procedures in their domestic legal systems whereby judgments of their Supreme Courts constituting res judicata may be reviewed. However , they are strongly encouraged to do so , especially in criminal matters. We believe that where , as in the present case , the respondent State has equipped itself with such a procedure , it is the Court ' s duty not only to note the existence of the procedure , but also to urge the authorities to make use of it , provided , of course , that the applicant so wishes. However , this is not legally possible unless such an exhortation appears in the operative provisions of the judgment.

6. Moreover, the Court has already included directions of this nature in the operative provisions of judgments. For example, in Claes and Others v. Belgium (nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in point 5 (a) of the operative provisions of its judgment that “ unless it grants a request by [the] applicants for a retrial or for the proceedings to be reopened, the respondent State is to pay, within three months from the date on which the applicant in question indicates that he does not wish to submit such a request or it appears that he does not intend to do so, or from the date on which such a request is refused ”, sums in respect of non-pecuniary damage and costs and expenses. Similarly, in Lungoci v. Romania (no. 62710/00, 26 January 2006) the Court held in point 3 (a) of the operative provisions of its judgment that “ the respondent State is to ensure that, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the proceedings are reopened if the applicant so desires, and at the same time is to pay her EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into Romanian lei at the rate applicable at the date of settlement ”.

7. By virtue of Article 46 § 2 of the Convention , supervision of the execution of the Court ' s judgments is the responsibility of the Committee of Ministers. That does not mean , however , that the Court should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers ' task in discharging these functions.

8. To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also, in the operative provisions, indicate to the State concerned the measures it considers the most appropriate to redress the violation.

Dissenting opinion of Judge Cabral Barreto

(Translation)

I regret that I cannot follow the approach adopted by the majority of the Chamber in the present case for the same reasons which I expressed in my dissenting opinion in the case of Malininas v. Lithuania , no. 10071/04, 1 July 2008 .