JOINT CONCURRING OPINION OF JUDGE S SPIELMANN AND MALINVERNI

1. We agree in all respects with the Court ' s conclusions as to the violation of Article 6 of the Convention.

2. However, g iven its importance, we would have liked the content of paragraph 54 to have been included in the operative p art of the judgment as well, for reasons we have explained in detail in our joint concurring opinion in the case of Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008) and, mutatis mutandis , in our partly dissenting opinion in the case of Prežec v. Croatia ( no. 48185/07 , 15 October 2009 ) .

3. It is indeed 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 most appropriate to redress the violation.

4. 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 Conv ention, it is the operative provisions that are binding on the parties for the purposes of A rticle 46 § 1 of the Conv ention. 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.

5. And indeed, what the Court says in paragraph 54 of the judgment is in our view of the utmost importance. It reiterates that the most appropriate form of redress in cases where it finds that the applicant has not had access to a court, in breach of Article 6 § 1 of the Convention, would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair hearing (the principle of restitutio in integrum ).

6. 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 Conv ention 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, in cases such as the present one, 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.

7. 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. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure (A rticle 428a of the Civil Procedure Act), it is the Court ' s duty not only to note the existence of the procedure, as paragraph 54 of the judgment does, 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.

8. By virtue of Ar ticle 46 § 2 of the Conv ention, 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.

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