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 6 § 1 of the Convention on account of the absence of any legal grounds for the participation of the lay judges S. and B. in the administration of justice in the applicant ’ s case.

2. We would, however, have liked the reasoning set out in paragraph 49 of the judgment, on account of its importance, to have been included in the operative provisions as well, for the following reasons, already explained in our joint concurring opinion delivered in the case of Vladimir Romanov v. Russia , (no. 41461/02) and attached to the judgment of 24 July 2008 .

3. 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.

4. And indeed, what the Court says in paragraph 49 of the judgment is in our view of the utmost importance. It reiterates that when an applicant has been convicted despite a potential 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 that Article not been disregarded (the principle of restitutio in integrum ) [1] . It further reiterates that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine , ECHR 2005 ‑ IV , and Popov v. Russia , no. 26853/04, § 264 , 13 July 2006 ) . Moreover, in the same paragraph the Court notes in this connection that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see also paragraph 28 of the judgment). 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 are observed.

5. In the present case, the applicant asked for the judgment of 27 December 2002, as upheld on appeal on 14 November 2003, to be quashed and his case re-examined by the domestic courts (see paragraph 47 of the judgment).

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 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. We would also like to stress that in the present case, the applicant did not claim any compensation in respect of pecuniary and non-pecuniary damage (see paragraph 47 of the judgment).

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, especially in criminal matters. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure (Article 413 of the Russian Code of Criminal Procedure), it is the Court ’ s duty not only to note the existence of the procedure, as paragraph 49 of the judgment does, but also to urge the authorities to make use of it. However, this is not legally possible unless such an exhortation appears in the operative provisions of the judgment.

8. 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 ”.

9. 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.

10. 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 approp riate to redress the violation.

[1] See also the join t concurring opinion of J udges Rozakis, Spielmann, Ziemele and Lazarova Trajovska in Salduz v. Turkey ( [GC], no. 36391/02, 27 November 2008 ) and the reference to public international law, most notably to the judgment of 13 September 1928 of the Permanent Court of International Justice in the case concerning the Factory at Chorzów (claim for indemnity) (merits) :

“The essential principle is ... that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”. (Series A, no. 17, p. 47) .

See also, J. Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries , Cambridge University Press, 2002, p. 211, (2)); Loukis G. Loucaides, “Reparation for Violations of Human Rights under the European Convention and Restitutio in integrum ”, [2008] European Human Rights Law Review , pp. 182-192.