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CONCURRING OPINION OF JUDGE SPIELMANN
I
I must admit that it was not without hesitation that I agreed that there had been no violation of Article 34 of the Convention in so far as the meetings with the applicant's representative are concerned.

Admittedly, compliance with certain formal requirements may be necessary before obtaining access to a detainee, for instance for security reasons or in order to prevent collusion or action that might pervert the course of the investigation or justice (see paragraph 96 of the judgment).

In the instant case, however, the only reason for refusing the applicant's representative permission to see the applicant was the absence of a formal request from the latter. In my view such a requirement is clearly disproportionate. It may lead to the absurd result that a lawyer who wants to prepare a case pending before the Court must contact the applicant to request a formal invitation to visit the latter in prison.

Nevertheless I voted against finding a violation of Article 34 because I agree with my colleagues that there is no evidence that the right to individual petition has been undermined.


II
In paragraph 109, the Court rightly reiterates its case-law as regards the findings under Article 6 §§ 1 and 3 (d) of the Convention, namely 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 provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the relevant proceedings if requested.

Given its importance, however, I would have preferred the reasoning set out in paragraph 109 of the judgment to have been included also in the operative provisions, for the following reasons.

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, that part of the Court's reasoning appears also in the operative provisions.

Indeed, what the Court states in paragraph 109 of the judgment is, in my 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.

The reason why I 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, in accordance with 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.

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 109 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.

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".

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 intended to facilitate the Committee of Ministers' task in discharging these functions.



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.

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