DISSENTING OPINION OF JUDGE KALAYDJIEVA

In the present case the majority found a violation of Article 6 § 1 of the Convention and agreed that the applicant ’ s complaints under Article 4 of Protocol No. 7 raised no separate issue. I fail to subscribe to this opinion for the following reasons.

In my view the facts of the case clearly disclose a duplication of finalised criminal proceedings which resulted in a new punishment contrary to the ne bis in idem principle. There is no dispute that the accusations against the applicant were determined by a final and enforceable decision of the courts and that the subsequent review of that decision and the resulting new set of proceedings were not a part of the regular appeal procedure.

In such circumstances the Court should determine the compatibility of those proceedings with Article 4 of Protocol No. 7 before proceeding to consider their fairness or their compliance with the principle of legal certainty envisaged under Article 6 of the Convention. In my view this distinction is important because of the different effect of the two provisions on the situation of the person concerned. Where a retrial is prohibited per se , its outcome cannot be seen as compatible with the Convention.

In the instant case both the request and the decision to perform a new trial were based exclusively on the dissatisfaction of the prosecution authorities and the supervising court with the leniency of the final penalty. No new facts or fundamental defects of the regular proceedings were adduced. This situation is clearly distinguishable from the one considered in the earlier cases of Nikitin [1] , Bratyakin [2] , and other s. Before considering the supervisory review proceedings in those cases under Article 6 § 1 of the Convention, the Court first looked at their compatibility with the ne bis in idem principle enshrined in Article 4 of Protocol No. 7 and distinguished whether they amounted to a retrial – prohibited by the first paragraph – or to a reopening , justified in exceptional circumstances under the second paragraph . Based on the specific facts in those cases, the Court was satisfied that the review proceedings either did not lead to any rehearing, or were justified under Article 4 § 2 of Protocol No. 7 as necessary to correct a fundamental defect of the regular proceedings, or as solicited by the applicants and leading to no deterioration in their situation .

I agree with the majority ’ s conclusion that the supervisory review in the present case “allowed a rehearing of precisely the same legal point, which in the light of the above case-law cannot be considered sufficient to outweigh the binding force of a final judgment” ( § 29). This conclusion should exclude any further consideration of the proceedings under Article 6. A retrial may not be justified by t he fact that the applicant was not required to serve his penalty – an issue which was determined by the competent courts pursuant to a law on amnesty. A reopening on that ground would question the very aim of that law, which was to absolve certain categories of convicted persons from serving their penalties. I also fail to see anything extraordinary in the dissatisfaction of the accusatory party with the leniency of the penalty pronounced – a complaint which was raised and considered by the courts within the regular appeal proceedings. To see this dissatisfaction as justifying a rehearing would render the principle of legal certainty devoid of its substance.

In the absence of any justification, the reopening of the criminal proceedings constituted a retrial within the meaning of the first paragraph of Article 4 of Protocol No. 7, which cannot be considered in the light of Article 6 of the Convention. While both these provisions promote finality in criminal proceedings, Article 4 § 1 of the Protocol should be interpreted as a lex specialis to the principle of legal certainty envisaged by Article 6. More importantly, the effect of a finding of a violation of Article 6 § 1 does not equate to that of a finding of a breach of the ne bis in idem principle . [3] Turning to the straightforward fact of the retrial in the present case, I realise that a separate finding of a violation of Article 4 § 1 of Protocol No. 7 would perhaps be of questionable theoretical contribution to its interpretation. Yet, this provision also protects individuals from being punished twice. Following an amnesty, the effect of which is comparable to an acquittal, the applicant ’ s retrial resulted in his effective imprisonment. In my view this detrimental outcome should be considered automatically contrary to the Convention. This conclusion involves different consequences and requires a different redress. The applicant ’ s effective imprisonment cannot be seen as warranted by Article 5 § 1 (a) and this conclusion should automatically require his immediate release. The Court has declared this complaint inadmissible and has limited the scope of the case to the proceedings per se , thus leaving their result outside the focus of its scrutiny. The majority ’ s finding that a prohibite d retrial “did not satisfy the ‘ fair balance ’ required by Article 6” ( § 30 ) neither requires the applicant ’ s immediate release, nor calls for any additional compensation for the resulting deprivation of liberty prohibited by the Convention. In these circumstances one may only hope that the individual measures taken to correct the absence of “fair balance” found by the Court do not involve yet another reopening of the proceedings .

The provision of Article 4 § 1 of Protocol No. 7 function s also to preserve the authority of the courts [4] by protecting their independence and impartiality from any pressure to change their final conclusions. Contrary to this legitimate aim, the very purpose of the retrial in the present case was to require the lower courts to impose a harsher penalty than the initial “final” one. This was the legal ground for the requested supervisory review, and the single issue discussed in the resulting decision to order a rehearing of the case. It must not be overlooked that the reasoning given for this decision was binding and served as a mandatory instruction for the lower courts. In Daktaras v. Lithuania [5] ( §§ 35 et seq.) the Court considered that “[the binding] opinion cannot be regarded as neutral from the parties ’ point of view. By recommending that a particular decision be adopted or quashed, the President necessarily becomes the defendant ’ s ally or opponent (see, mutatis mutandis, Borgers v. Belgium , 30 October 1991, § 26, Series A no. 214-B).” In Daktaras the Court found that “the applicant ’ s doubts as to the impartiality of the Supreme Court may be said to have been objectively justified. Consequently, there has been a breach of Article 6 § 1 of the Convention.”

In the present case the similarly binding opinion had the effect of instructing the lower courts to come to certain conclusions and to a predefined result. Moreover, once the Presidium of the upper court agreed with the prosecutor ’ s view that the penalty was inappropriately lenient, the applicant ’ s case was destined to as many quashings , remittals and reviews as necessary to achieve the harsher penalty sought. Any different outcome was vulnerable to further supervisory review proceedings and there was nothing in the law to stop the subsequent quashing of decisions which failed to comply with the instructions given. Since the initiation of the supervisory review mechanism was a privilege of the prosecution with the consent of the upper courts, it allowed the perpetuation of the criminal proceedings until that party was satisfied with the result .

[1] . Application no. 50178/99, judgment of 20 July 2004.

[2] . Application no. 72776/01, decision of 9 March 2006.

[3] . See Stefan Trechsel , “Human Rights in Criminal Proceedings”.

[4] . Ibidem , p.383 – in regard of the French text of the provision.

[5] . Application no. 42095/98, judgment of 10 October 2000.