EHRM, 11-07-2017, nr. 19867/12

Following an altercation with other persons, the applicant was prosecuted by the public prosecutor at the Matosinhos District Court for threatening conduct. An expert report was produced during the investigation, stating that the applicant had limited intellectual and cognitive capacities but that she should be held criminally responsible for her acts.

In a judgment of 23 March 2007 the Matosinhos District Court dismissed the applicant's defence of diminished criminal responsibility and sentenced her to 320 day-fines, amounting to a total of 640 euros (EUR), for threatening and insulting conduct, as well as ordering her to pay damages to the victims.

On 13 April 2007 the applicant appealed to the Oporto Court of Appeal (‘the Court of Appeal’) against the judgment. She repeated that she had been unaware of the unlawfulness of her acts and sought an acknowledgment of her lack of criminal responsibility owing to the psychiatric disorders from which she claimed to suffer. Consequently, she asked for a fresh assessment of the facts and the opportunity to state her case at a hearing.

On 12 December 2007 the Court of Appeal held a hearing attended by the public prosecutor and counsel for the applicant. However, no examination of the applicant herself took place.

In a final judgment of 19 December 2007 the Court of Appeal upheld the applicant's conviction for threatening and insulting conduct, but reduced the sentence to 265 day-fines, amounting to a total of EUR 530. It held that there was no need for a fresh assessment of the facts because the applicant had not succeeded in challenging the validity of the assessment conducted by the court of first instance.

The applicant paid the fine in several instalments.

During the hearing before the Court it was pointed out that in January 2016, five years after the fine had been paid in full, the entry concerning the applicant's conviction had been deleted from her criminal record.

On 15 April 2008 the applicant lodged an application with the Court complaining that she had not been heard in person by the Court of Appeal, and that this violated Article 6 § 1 of the Convention.

In a judgment of 5 July 2011 the Court declared admissible the complaint under Article 6 § 1 of the Convention and found a violation of that provision, holding as follows:

As regards the claims in respect of pecuniary and non-pecuniary damage under Article 41 of the Convention, the Court stated the following:

On 5 July 2012 the Portuguese Government submitted an action plan to the Committee of Ministers concerning the execution of the Court's judgment of 5 July 2011. They confirmed that the amount awarded to the applicant had been paid to her on 14 December 2011. As regards the general measures, the Government pointed out that the Prime Minister's Office had proposed amending the Code of Criminal Procedure to allow hearings to be held in any court of appeal determining the issue of guilt or the sentence in respect of an accused person.

At the hearing before the Court it was pointed out that the aforementioned proposal had not been approved and had therefore not in fact been included in the final version of the revised Code of Criminal Procedure.

At the time of adoption of the present judgment no plans to reform the Code of Criminal Procedure were on the domestic authorities' agenda. The procedure for supervising the execution of the judgment of 5 July 2011 was still pending before the Committee of Ministers.

Concurrently, on 18 October 2011, relying on Article 449 § 1 (g) of the Code of Criminal Procedure, the applicant lodged an application for review with the Supreme Court. She submitted that the Court of Appeal's judgment of 19 December 2007 was incompatible with the Court's judgment of 5 July 2011.

The prosecution submitted that the application should be allowed on the grounds that serious doubts could legitimately be raised about the conviction, particularly as regards the sentencing.

In a judgment of 21 March 2012 the Supreme Court refused to grant a review. It held that there was no cause for a review because the judgment delivered by the Court of Appeal was not incompatible with the Court's judgment. It considered that the lack of a hearing for the applicant in the Court of Appeal had constituted a procedural irregularity that was not amenable to review, and held as follows:

27. Article 449 § 1 (g) of Law no. 48/2007 of 29 August 2007 amending the Code of Criminal Procedure established a new ground for an application for review of a final judgment. The Article in question is worded as follows:

Article 449 (grounds for an application for review)

In a judgment of 27 May 2009 (domestic proceedings no. 55/01.OTBEPS-A.S1), the Supreme Court held that the new ground, as set out in Article 449 § 1 (g) of the Code of Criminal Procedure, for review of a final judgment had to be interpreted restrictively. In the light of Recommendation No. R (2000) 2 of the Committee of Ministers, it held that the reopening of proceedings was necessary ‘where a decision of the European Court of Human Rights had concluded that a domestic judgment was contrary to the Convention or where there had been procedural errors or shortcomings of such gravity as to cast serious doubt on the decision (fortes dúvidas sobre a decisão) adopted at the close of the proceedings, and, simultaneously, where the injured party continued to suffer very serious adverse effects as a result of the national decision, those effects could not be remedied by the just satisfaction awarded by the Court and restitutio in integrum could only be achieved by means of a retrial or the reopening of the proceedings’.

In a separate opinion, one of the three judges on the bench that had examined the application for review, while concurring with the decision, expressed the view that the Supreme Court's interpretation of Article 449 § 1 (g) had been overly restrictive. The judge stated the following:

In the judgment in question, the Supreme Court allowed an application for the reopening of criminal proceedings in which a journalist had been convicted of a breach of judicial confidentiality (segredo de justiça), having regard to the European Court's finding in Campos Dâmaso v. Portugal (no. 17107/05, 24 April 2008) that the conviction had infringed the applicant's right under Article 10 of the Convention.

The Supreme Court has allowed three applications for review under Article 449 § 1 (g) of the Code of Criminal Procedure concerning convictions for defamation which the European Court had deemed incompatible with Article 10 of the Convention:

The other relevant provisions of the Code of Criminal Procedure at the material time read as follows:

Article 119 (irremediable nullity)

Article 122 (effects of nullity)

Article 450 (locus standi)

Article 457 (granting of a review)

Article 458 (quashing of incompatible judgments)

Article 460 (retrial)

While assessing whether Article 46 of the Convention precludes the examination by the Court of the complaint under Article 6 of the Convention, the majority of the Grand Chamber reiterate that the Court does not have jurisdiction to order the reopening of proceedings, but they also admit that, in certain exceptional circumstances, the reopening of the case represents an appropriate, or the most appropriate, form of redress of the Convention violation8.. As will be demonstrated below, this is an understatement of the Court's rich case-law on individual measures of redress of a Convention violation.

The Court has affirmed time and again that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention9.. When the respondent State's legal order cannot provide for reparation, or can only provide for partial reparation, to be made for a declared Convention violation10., the Court may afford just satisfaction to the injured party. The principle underlying the provision of just satisfaction for a Convention breach is that the applicant should as far as possible be put in the position he would have enjoyed had the violation not occurred (restitutio in integrum)11., provided that such means are compatible with the conclusions set out in the Court's judgment and with the rights of the defence12.. Payment of compensation is compatible with other general or individual measures necessary to put an end to the violation found by the Court13..

Yet the Court has also acknowledged that the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it, and the Court may decide to impose only one such measure, such as, for example, the return of an expropriated piece of land14., the return of a building15., the release of a person16., the redress of any past or future, negative consequences derived from a disciplinary punishment17., the discontinuation of detention on remand and its replacement by another reasonable and less stringent, measure of restraint, or with a combination of such measures18., the replacement of a life sentence by a Convention-compatible penalty not exceeding 30 years of imprisonment19., the opening of a new criminal investigation20. or the closing of a pending investigation21., the obtaining of assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated22., and the reinstatement of a person in a State function23..

The retrial clause was first formulated in the specific context of cases against Turkey concerning the independence and impartiality of the national security courts. The Court indicated under Article 41 of the Convention that, ‘in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay’24.. This was known as the Gençel clause. A similar stance was adopted under Article 41 in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts, but to the infringement of his right to participate in his trial25.. Subsequently, the retrial clause was named as the Gençel-Somogyi clause. It is important to note that in both cases the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. No reference was made in the operative part to the retrial or reopening of the case.

In Öçalan v. Turkey26., the Grand Chamber endorsed the general approach adopted in the above-mentioned case-law, but with a different terminology and within a different normative framework. It considered under Article 46 of the Convention that where an individual, as in the instant case, had been convicted by a court that did not meet the Convention requirements of independence and impartiality, ‘a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation’ (the so-called Oçalan clause)27.. However, it added that the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court's judgment in that case, and with due regard to the above case-law of the Court. The Court also held that its findings of a violation of Articles 3, 5 and 6 of the Convention constituted in themselves sufficient just satisfaction for any damage sustained by the applicant28..

In Verein gegen Tierfabriken VgT (No. 2), the Grand Chamber explained the meaning of the Oçalan clause in detail. The cornerstone of the Grand Chamber's judgment is the idea that a reopening of domestic proceedings is a ‘key means’ for the proper execution of the Court's judgments and should take place in accordance with ‘the conclusions and the spirit of the Court judgment being executed’29.. The Court assumed its inherent (implied) competence to examine the domestic authorities' conduct after the first Verein gegen Tierfabriken judgment, with the argument that if the Court were unable to examine it, it would escape all scrutiny under the Convention. Thus, the Court's competence covers, according to the rationale of Verein gegen Tierfabriken Schweiz (VgT) (no. 2), not only the actions of national authorities that conflict with the reopening clause, but a fortiori also their omission to reopen the domestic proceedings30..

The Court's case-law evolved rapidly, encompassing other subject matters and fields of law. The result is that the Court's competence to order a retrial or reopening of a case is now well-established. In fact, the retrial clause has been applied following a finding of a breach of Article 6 on account of infringements of the right of access to court31., the right to be tried by a court established by law32., the principle of impartiality or independence of the court33., the right to participate in the trial34., the right to question witnesses35., the right to be heard in person36., the right to be informed in a detailed manner of the accusation37., the right to have time and facilities for the preparation of one's defence38., the principle of adversarial proceedings and equality of arms39., the right to legal assistance40., the principle of a fair trial, including the prohibition of police entrapment41., and the right to a motivated judgment42..

Other than Article 6 cases, the clause has been used in Article 243. and Article 744. cases. Additionally, the clause has been extended to civil, administrative and tax cases45.. The criteria of application of the retrial clause in non-criminal cases are not always clear, the Court having refused sometimes to apply it in spite of the applicant's explicit request46.. As a result, applicants have no choice but again to seek relief through money and time-consuming international litigation before the Court when the respondent states do not comply with the initial findings of the Court.

In view of the above, to state, as the majority do in the present judgment, that these are exceptional cases is an understatement of the Court's rich case-law. Furthermore, the majority do not fully assess the nature, scope and effect of the retrial clause. Paragraphs 49 to 51 of the judgment simply omit such assessment, limiting themselves to a repetitive and partial overview of the Court's case-law.

Normally, the Court refers to the retrial clause as a matter of ‘principle’, but in some occasions it mentions it as a ‘rule’47., equating legal principles and rules. The retrial or reopening of the proceedings has also been described without any mention to a ‘principle’ or a ‘rule’, since it ‘constitutes the most appropriate redress in the circumstances of the case’48..

Contrary to the initial judgments, the Oçalan clause has been used under Article 4149. and the Gençel clause under Article 4650.. In some less frequent cases a specific retrial clause is inserted in the operative part of the judgment itself. For example, in Lungoci, the Court ordered in the operative part that that the respondent State reopened the domestic proceedings within six months of the date on which the judgment becomes final, if the applicant so requested51.. In Maksimov, the Court held in the operative part that ‘the respondent State must take all measures to reopen the cassation appeal proceedings provided by the Transitional law’52. In other cases, the Court ordered in the operative part not the reopening of the case, but already the legal effect intended as ‘the most appropriate form of redress’, like for example the full restitution of the applicant's title to the flat and the annulment of her eviction order53.. In this type of cases, the Court imposed under Article 41 the revocation of the domestic courts' eviction order in conjunction with the award of damages. If the flat is no longer the State's property, or if it has been otherwise alienated, the respondent State should ensure that the applicant receives an ‘equivalent flat’54.. In some other cases, the Court determined, in the operative part of the judgment that, in accumulation with the Court's award of just satisfaction, a domestic judicial decision be implemented and produce its real effect55..

In Laska and Lika, the Court went a step further and considered under Article 46 that there was a positive obligation incumbent on the respondent State to ‘remove any obstacles in its domestic legal system that might prevent the applicants' situation from being adequately redressed (…) or introduce a new remedy’ for the reopening of the cases in view of the lack of such remedy in national law56.. To be more precise, the Court did not refrain from recalling that the Contracting States are under a duty to organise their judicial systems in such a way as to enable their courts to meet the requirements of the Convention, but adduced, innovatively, that this principle also applies to the reopening of proceedings and the re-examination of the applicants' case. Yet such imposition was not repeated in the operative part which referred to the award of non-pecuniary damage, but not to the reopening of the case57..

In M.S.S., having regard to the particular circumstances of the case and the urgent need to put a stop to these violations of Articles 13 and 3 of the Convention, the Court considered ‘it incumbent on Greece, without delay, to proceed with an examination of the merits of the applicant's asylum request that meets the requirements of the Convention and, pending the outcome of that examination, to refrain from deporting the applicant’58.. Yet none of these individual measures indicated under Article 46 were inserted into the operative part of the judgment.

The case-law is also changeable with regard to the accumulation of just satisfaction and the retrial clause. In spite of the fact that neither the Gençel nor the Oçalan judgments accorded just satisfaction, the Court imposes cumulatively just satisfaction and the retrial clause in the vast majority of cases59.. Less frequently, it dismisses the claim for just satisfaction in view of the retrial clause60. or imposes them alternatively61.. The grounds for such a choice are not obvious.

Occasionally, the Court merely refers to the existence of a national mechanism for the review of the domestic judgment, sometimes in addition to the award of just satisfaction62., at other times in its absence63..

Summing up, individual measures may be imposed by the Court according to one of the following three types of solutions:

In the light of the foregoing considerations, it is undeniable that, in the long-standing practice of the Court, obligations imposed in the operative part and those included only in the reasoning part of the judgment have the same legal force, in spite of the different formulation given to them. The reopening clause is a key means for the execution of the Court's judgments whose legal force does not depend on whether it is inserted in the reasoning or the operative part of the judgment. To conclude otherwise would mean either that the judgments' language is dictated by whimsical changes of mood or, even worse, by political considerations. The choice of the formula in the Court judgments is neither a matter of taste of the drafter nor of chamber politics determined by the need to confer a more or less emphatic tone to the individual measure in view of the respondent State's expected reluctance or abeyance to follow suit.

In sum, Article 46 of the Convention does provide, when appropriate, for imperative, individual legal effects of the Court's judgments in the domestic legal order of the respondent state, including an order for retrial, re-examination or reopening of a criminal case. The Oçalan clause must be read coherently and consistently in the light of the Court's evolving case-law. As it will be demonstrated, the variety of formulae present in the case-law not only raises an issue of lack of readability of the judgment and consequently of legal certainty, but also undermines the full and effective enforcement of the Court's judgments. Unfortunately, the present judgment does not provide the much needed guidance in this ambit, in terms of putting into perspective the Oçalan clause against the background picture of the Court's rich case-law on individual measures of redress of a Convention violation and of restating their legal force.

The majority of the Grand Chamber deny the right to reopen a criminal case after a Court's finding of a violation on the basis of the lack of a ‘uniform approach among the contracting States’. In their assessment of the implementation of Recommendation (2000) 2 on re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (hereinafter ‘the Recommendation’), the majority conclude that ‘in most of those States the reopening of proceedings is not automatic and is subject to admissibility criteria’64.. In its leading judgment of 27 May 2009, the Supreme Court also interpreted, by a majority of two to one, Article 449 (1) (g) of the Code of Criminal Procedure in the light of and with the same exact content of the Committee of Ministers Recommendation No. R (2000) 265..

Since both the majority of the Grand Chamber and the majority of the Supreme Court in its 27 May 2009 judgment rely on the standards of the Committee of Ministers Recommendation (2000) 2 as the point of departure for their own reasoning, it is necessary to analyse that Recommendation and its implementation by the Contracting Parties to the Convention.

The Committee of Ministers Recommendation states that ‘in exceptional circumstances the re-examination of a case or a re-opening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum.’ Moreover, the Committee of Ministers encourages the Contracting parties to the Convention to provide for the reopening of domestic proceedings in the case of a substantive or a procedural violation of the Convention. In both cases, the victim of the human rights violation must still be suffering its very serious negative consequences at the time the Court establishes the violation and these consequences can only be remedied by reopening the proceedings. When a procedural error or shortcoming has been established by a judgment of the Court, a reopening of the case is also dependent on the gravity of the error or shortcoming and the seriousness of the issuing doubt on the outcome of the domestic proceedings.

The difference of regime between substantive and procedural Convention violations for the purposes of reopening domestic proceedings creates an undesirable uncertainty. Considering the fact that the Court does not always distinguish between substantive and procedural violations, preferring to find a global violation, it will not be always clear which criteria to apply: the more stringent criteria for a reopening following a finding of a procedural violation, or the less stringent criteria for a reopening following a finding of a substantive violation.

Moreover, the reopening of the case shall only be authorised when two cumulative conditions obtain: the continuing suffering of very serious negative consequences and the impossibility of remedying those consequences by way of just satisfaction. Neither of these conditions is present in Article 4 (2) of Protocol 7. It is difficult to understand why a reopening following the finding of a Convention violation in a Court judgment should be subject to stricter conditions than those laid down in Article 4 (2) of Protocol 7 for any other domestic reopening procedure.

Furthermore, the requirement that the negative consequences of a Convention violation ‘are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening’ establishes a relationship of subsidiarity between reopening the domestic proceedings and just satisfaction. Accordingly, whenever possible, preference must be given to just satisfaction over reopening the domestic proceedings. This rule of subsidiarity of reopening contradicts Article 41 of the Convention itself. According to this provision, the respondent State should do its best to provide full reparation (and not ‘partial reparation’) for a declared Convention violation, preferably by way of restitutio in integrum, which means wiping out the legal and material consequences of its wrongful act by re-establishing the situation that would exist if that act had not been committed, and for that purpose by reopening the domestic proceedings that led to the wrongful act66.. Compensation can certainly be added to restitution insofar as damage is not made good by restitution67., but not set as an alternative to it, and even less as a preferable alternative. To put it in logical terms, the Recommendation reverses the logical order of preference established by Article 41 of the Convention. Ultimately, the very strict terms of the Recommendation are not in line with the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution as far as possible and that compensation can be considered only after concluding that, for one reason or another, restitution could not be effected68..

Worse still, the underlying assumption of the Recommendation conditions is that human rights violations can be ‘bought’. Governments may avoid the reopening of domestic proceedings by paying up for a Convention violation established by a final Court judgment, regardless of the nature of the Convention right or freedom violated.

In addition, the requirement of the ‘continuing suffering’ contradicts the rationale of the extraordinary appeal for the purpose of reopening of domestic proceedings. In the vast majority of member States, reopening of a case is allowed even when the penalty had already been served or the convicted person had already died.

Furthermore, the requirement of ‘continuing suffering’ is highly restrictive, because it warrants ‘a direct causal link between the violation found and the continuing suffering of the injured party’69. and ‘very serious negative consequences because of the outcome of the domestic decision at issue’. It is doubtful that these ‘very serious negative consequences’ include the entry of a conviction in the convicted person's criminal record70., the payment of a fine in instalments71. or the submission to limitations to the convicted person's social and professional life imposed by a suspended sentence, parole or conditional release. When the Convention violation is committed in criminal proceedings, it may impact on the conviction or the sentencing. Restoring the applicant in the position he would have enjoyed had the violation not occurred may warrant the review of both the conviction and the sentence or just the sentence, whatever the latter's gravity might be.

In the vast majority of member States, domestic legislation explicitly provides for the right to request the review or the reopening of criminal proceedings on the basis of a finding of a violation by the Court or of a judgment by an international court, which covers the Court72.. This is the case in Article 30bis of the Andorran Transitional Act on Judicial Proceedings and Article 19bis of the Justice Act73., Articles 363 (a) to 363 (c) of the Austrian Code of Criminal Procedure74., Articles 442 bis and 442 quinquies of the Belgium Code d'instruction criminelle and Article 116 of the Law of 5 February 201675., Article 327 § 1 (f) of the Code of Criminal Procedure of Bosnia and Herzegovina76., Article 422 § 1 (4) of the Bulgarian Code of Criminal Procedure, Article 502 of the Croatian Code of Criminal Procedure77., section 119 of the Act on the Constitutional Court of the Czech Republic78., the Cypriot Law no. 23(I)/2015 of 25 February 201579., Article 457 § 1 (b) of the Dutch Code of Criminal Procedure80., Article 367 § 7 of the Estonian Code of Criminal Procedure, Article 622-1 of the French Code of Criminal Procedure81., Article 310 (e) of the Georgian Code of Criminal Procedure82., section 359 § 6 of the German Code of Criminal Procedure83., Article 525 § 1 (e) of the Greek Code of Criminal Procedure84., Article 416 § 1 (g) of the Hungarian Code of Criminal Procedure85., Article 655 § 2 (5) of the Latvian Law on criminal procedure86., Article 456 of the Lithuanian Code of Criminal Procedure87., Article 443 § 5 of the Luxembourg Code of Criminal Procedure88., section 449 § 1 (6) of the Macedonian Criminal Proceedings Act, Article 508 § 4 of the Monaco Code of Criminal Procedure, Article 464 of the Moldovan Code of Criminal Procedure89., Article 424 § 6 of the Montenegro Code of Criminal Procedure, section 391 § 2 of the Norwegian Criminal Procedure Act90., Article 540 § 3 of the Polish Code of Criminal Procedure91., Article 449 § 1 g) of the Portuguese Code of Criminal Procedure, Article 465 of the Romanian Code of Criminal Procedure92., Article 200 of the San Marino Code of Criminal Procedure93., section 394 §§ 1–3 of the Slovakian Criminal Procedure Code94., Article 954 § 3 of the Spanish Code of Criminal Procedure95., Article 122 of Federal Law of 17 June 2005 on the Swiss Federal Court96., Article 311 (f) of the Turkish Code on Criminal Procedure97. and Article 445 of the Ukrainian Code of Criminal Procedure98..

In only two member States, Azerbaijan99. and Russia100., the existence of explicit provisions on reopening of criminal proceedings on the basis of a Court judgment does not correlate to an individual right of the convicted person to reopening.

In some member States the absence of an explicit provision for the reopening of criminal proceedings on the basis of a final judgment of the Court has been overcome by a dynamic interpretation of the general provisions on review under the Code of Criminal Procedure or procedural law. This is the case in Albania101., Denmark102., Finland103., Iceland104., Ireland105., Italy106., Sweden107. and the United Kingdom108..

In Malta, it would be possible to request a reopening on the basis of Article 6 of the European Convention Act, according to which any judgment of the Court to which a declaration made by the Government of Malta in accordance with Article 46 of the Convention applies may be enforced by the Constitutional Court. Furthermore, the Prime Minister may, ex officio or upon request of a person convicted ‘on indictment’, refer a case to the Court of Criminal Appeal. In that event, the case shall be treated as an appeal to that court by the person convicted, and presumably, that court could have regard to any finding of a violation of the Convention by the Court when deciding whether to quash the conviction and order a retrial. However, neither of these two mechanisms (enforcement by the Constitutional Court and referral of the case by the Prime Minister to the Court of Criminal Appeal) has ever been used109..

In Serbia, Article 473 of the new Code of Criminal Procedure could provide the grounds for the reopening of criminal proceedings based on the court's judgments if these were in the future to be interpreted as ‘new facts’ or ‘new evidence’, but this has not been the case yet110.. The same could be said for Armenia111. and Slovenia112..

Finally, Liechtenstein is the sole member State where the reopening or review of criminal convictions on the grounds of a judgment by the Court is not possible. The absence of this right is justified by the legal concept of res judicata and legal certainty113..

Reopening is sometimes subject to specific conditions in conformity with the criteria enumerated in the Recommendation (2000) 2 of the Committee of Ministers (II [i] and [ii]). Some member States provide that the convicted person must continue to suffer the negative consequences of the violation found by the Court or the effects of the conviction (Belgium, France, the Republic of Moldova, Monaco, Portugal114., Romania, the Russian Federation115., San Marino, Slovakia, Spain and Sweden116.). In some other member States, there is no requirement of effective causality between the violation and a damage caused by the domestic judgment, since potential causality suffices. For example, some States additionally require for reopening that the impugned domestic judgment must be ‘based’ on the violation found by the Court (Bosnia and Herzegovina, Germany and Montenegro) or that the violation is of ‘essential importance for the case’ (Bulgaria) or that and it must be assumed that a new hearing should lead to a different decision (Norway). Others appear to have a lower threshold, requiring only that it could not be ruled out that the violation might have affected the content of the domestic decision in a manner detrimental to the person concerned (Austria) or that the finding of a violation may have affected the outcome of the case (Estonia). With regard to violations of the Convention in the course of domestic proceedings, in some of the States reopening is only allowed where the procedural shortcomings cast a doubt on the outcome of the impugned proceedings (Belgium, Lithuania, Norway and Poland). In the United Kingdom, the Criminal Cases Review Commission will refer the case to the Court of Appeal when it considers ‘that there is a real possibility that the conviction would not be upheld were the reference to be made’ (i.e. a real possibility that the conviction would be quashed by the Court of Appeal). In Malta, if a criminal case is referred by the Prime Minister to the Court of Criminal Appeal, the latter may order a retrial on the grounds of an irregularity during the proceedings, or a wrong interpretation or application of the law, which could have had a bearing on the initial verdict, ‘if it appears to the court that the interests of justice so require’.

The legislations of other member States require that the effects of the violation found can only be rectified by re-examination or reopening, that review or reopening is necessary to remedy those effects, or that they cannot be remedied by compensation or just satisfaction (Andorra, Belgium, Estonia, France, Italy, Lithuania, the Republic of Moldova, Monaco, the Netherlands, Norway, Portugal117., Romania, San Marino, Slovakia, Spain and Switzerland). In Montenegro, it is sufficient if the reopening of the proceedings can remedy the violation found by the Court. In Sweden, domestic case-law established that reopening may be ordered where it is considered a more adequate measure than other available measures.

In some of the member States, legislation provides for both types of conditions (reopening as the only means of remedying the effects of the violation and the continuing existence of negative consequences of the violation) to be met cumulatively (Belgium, France, the Republic of Moldova, Monaco, Portugal, Romania, San Marino, Slovakia and Spain).

As regards the type of violation found by the Court, the vast majority of member States do not distinguish between cases in which the proceedings at issue were unfair (violation of Article 6) and cases where it was their outcome or decision which was on the merits contrary to the Convention (for instance, to Article 10). Some legislations explicitly refer to both types of violations, in line with the Recommendation (2000)2 of the Committee of Ministers (Belgium, Greece, Hungary, Norway and Poland), but only three of them provide for different rules according to the nature of the violation (Belgium, Norway and Poland).

Successful cases of reopening are known in a number of domestic jurisdictions. In cases in which the Court had found Article 6 violations they led to the annulment of the initial domestic judgments and the re-examination of the case, resulting in the rectification of the shortcomings identified by the Court with the same (conviction) or a different outcome (e.g. acquittal). These cases refer to different types of Article 6 violations, including violations of the principle of legal certainty118., of the right to have a reasoned judgment119., of the right to a public hearing and to have the evidence directly assessed by the convicting court120., of defence rights under Article 6 § 3 (d)121., of the right to a fair trial in cases of police entrapment122. and of the right to be presumed innocent123., among others.

A worrying signal of the indifference of national courts to judgments of the Court finding a Convention violation is the lack or scarcity of a judicial practice of reopening criminal proceedings on the basis of the Court's judgments in some judicial systems, as in Armenia, Denmark, Ireland, Malta, San Marino and Serbia. Even more serious is the situation in Russia and Azerbaijan, where victims of human rights violations do not even have a right to the reopening of proceedings. This situation contrasts with the openness to the Court's judgments of other judicial systems, as in Albania, Austria, Belgium, France, Georgia, Greece, Lithuania and Moldova.

Summing up, there is a European consensus on the individual right to a reopening of criminal proceedings on the basis of a finding of a violation by the Court, with only three States departing from this solution124.. Furthermore, a small minority of the European States provide that the effects of the violation found can only be rectified by reopening, and an even smaller minority lay down that the convicted person must continue to suffer the negative consequences of the violation found by the Court. Only nine States lay down both material admissibility criteria.

Accordingly, the comparative-law conclusions of the majority, as expressed in paragraphs 34 to 39 of the judgment, do not reflect the situation on the ground. The majority's deficient comparative-law method, based on a strictly descriptive approach, can be criticised for two main reasons: first, it did not properly identify the aim of the comparison (why to compare, for what purpose) and consequently it failed to determine the proper sources and level of the comparison (what to compare or how to compare). The thoroughness of the comparison also leaves much to be desired, the majority opting for a purely descriptive-quantitative approach to the materials available, without any analysis of the differences and specificities of the national legal systems, including the case-law of the competent domestic courts and the practice of other competent political and administrative authorities. Such a methodologically incorrect comparative method could not but lead to a misevaluation of the European consensus.

Second Part (§§ 35–56)

In accordance with the traditional view that Article 6 § 1 of the Convention does not guarantee a right to the reopening of proceedings125., it has been the Court's position that it does not have competence ratione materiae over complaints related to extraordinary remedies for the reopening of a criminal case, because they pertain to a stage of the proceedings where the offender can no longer be considered as ‘charged of a criminal offence’.

In 2015, the Court made a step forward in the field of civil law, admitting that Article 6 is not normally applicable to extraordinary appeals seeking the reopening of terminated judicial proceedings, unless the nature, scope and specific features of the proceedings on a given extraordinary appeal in the particular legal system concerned may be such as to bring the proceedings on that kind of appeal within the ambit of Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants126.. This Grand Chamber case-law was applied that same year of 2015 in a criminal law case 127., in which the Court found that the Supreme Court, by excluding the confession made by the applicant in the absence of his lawyer from the body of evidence following the Court's previous judgment and reassessing the remainder of evidence to conclude that the applicant's conviction could stand, had undertaken a re-examination of the applicant's case. The Court equated the legal situation in which the applicant found himself to that of the applicant in the case of Bochan (no. 2). The Court concluded therein that Article 6 applied given that the Supreme Court had conducted a ‘reconsideration’ of the applicant's claim on new and fresh grounds linked to its interpretation of the Court's judgment, albeit deciding not to change the outcome of the case. Thus, the proceedings at issue concerned the determination of the applicant's guilt of a criminal offence within the meaning of Article 6 of the Convention. Such a re-examination constituted relevant new information in the context of a fresh application which the Court can deal with.

According to the present judgment, Article 6 of the Convention is applicable to extraordinary remedies for the reopening of a criminal case whenever the appellate court is called upon to determine a criminal charge128.. Ultimately, this evolutive interpretation of Article 6 equates ordinary appeals and extraordinary appeals for reopening of proceedings by transforming the latter into an ‘extension’ of the former129.. To put it in crystal-clear terms, this is the final step in the process of recognising the full applicability of Article 6 to extraordinary appeals for the reopening of a criminal case, and it is also the added value of this judgment130..

This bold and laudable development of the case-law is accompanied by the no less remarkable acknowledgment of the Court's competence over the non-execution of its judgments, namely when the domestic courts refuse to reopen the criminal case following a finding of a Convention violation. Here again, the Court is consolidating its own case-law. The role of the Committee of Ministers, under Article 46 § 2 of the Convention, in supervising the execution of the Court's judgments does not mean that measures taken by a respondent State to implement a judgment delivered by the Court cannot raise a new issue under the Convention and thus form the subject of a new application that may be dealt with by the Court131..

Emre (no. 2)132. put the final touch to this line of case-law. In Emre133., the Chamber criticised a measure of indefinite removal. In Emre (no. 2), another Chamber acknowledged the Court's competence over the execution of its judgments in spite of the fact that the Swiss Federal Court had upheld the request for a reopening of the case and replaced the measure of removal banning the applicant from Switzerland for an indefinite duration by removal with a ban of ten years from 2 June 2003. The Chamber found that there had been a violation of Article 8, in conjunction with Article 46, because the Federal Court had wrongly implemented the Court's first Emre judgment134.. With the present judgment, the Grand Chamber lends its authority to the Emre (no. 2) judgment's hands-on approach on the issue of non-existent or deficient implementation of the Court's judgments.

The majority's commendable leap forward in terms of the applicability of Article 6 of the Convention to extraordinary remedies concerning the reopening of criminal proceedings is even more significant in view of the fact that it is based on an erroneous interpretation of national law. The majority misread the national legal framework on extraordinary remedies in criminal procedure with a view to reaching the conclusion that the extraordinary appeal for reopening a case lodged before the Supreme Court in accordance with Article 449 of the Code of Criminal Procedure ‘determines a criminal charge’ and therefore comes within the scope of Article 6 of the Convention135.. Such a misreading of national law fittingly tailors the instant case to the majority's extension of the Bochan (no. 2) rationale to criminal cases, in so far as the latter required that the extraordinary appeal for the reopening of proceedings be ‘similar in nature and scope to ordinary appeal proceedings’136. in order for the guarantees of Article 6 of the Convention to apply to the extraordinary appeal in question.

The point warrants dwelling further on the intricacies of national law. As a matter of law, it is erroneous to argue that in Portuguese law the extraordinary appeal for the reopening of a criminal case has ‘some features in common with an appeal on points of law’137.. They differ in terms of the admissibility requirements, locus standi, time-limits, formalities, the competent court, the remit of the court and the appellant's procedural guarantees, as the Government themselves rightly pointed out138.. Ordinary appeals (recursos ordinários) and extraordinary appeals (recursos extraordinários) are regulated, respectively, in Title I and II of Book IX of the Criminal Procedure Code. There are common provisions applicable to both ordinary appeals to the court of appeal and ordinary appeals to the Supreme Court (Articles 399 to 426-A), but there are no common provisions applicable to both ordinary appeals and extraordinary appeals. They are regulated separately, in different Titles of the Code. Article 448 foresees the subsidiary application of the provisions on ordinary appeals to the appeal for the uniformity of the case-law, but there is no equivalent norm for an appeal to reopen a case. Thus, it is wrong to maintain that in Portuguese law the extraordinary remedy of Article 449 of the Code of Criminal Procedure is an ‘extension’ of the previous proceedings concluded by the judgment of 19 December 2007139.. The Supreme Court itself has always held that the extraordinary remedy for the reopening of a case is not an ‘appeal in disguise’ or a ‘substitute of the ordinary appeals’ and therefore it should not be ‘permissive to the extent of trivialising and consequently underestimating reopening’ as if it were a mere extension of the previous proceedings140..

In sum, the Supreme Court is not called upon to ‘determine a criminal charge’141. when it performs its powers under Article 449 of the Code of Criminal Procedure. The Supreme Court only reviews the admissibility criteria of the reopening request and, if the request is admitted, the fresh determination of the criminal charge is performed by another court in accordance with Article 457142..

The majority's conclusion that ‘the Supreme Court once again focused on the determination, within the meaning of Article 6 § 1 of the Convention, of the criminal charge against the applicant’ stretches the autonomous concept of ‘determination of the criminal charge’ to its limits. If nothing prevents the Court from establishing an autonomous understanding of the concept of ‘determination of criminal charge’ for the purposes of the applicability of Article 6 to extraordinary remedies for the reopening of criminal proceedings, this exercise should not be conducted on the basis of an interpretation of national law that distorts the meaning of extraordinary appeals in the Portugues Code of Criminal Procedure.

Not only is the majority's conclusion legally unfounded, but it also raises another serious issue related to the exhaustion of domestic remedies. The majority´s silence on this point allows the highly problematic inference that an application for a reopening of proceedings or the use of similar remedies must, as a general rule, be taken into account for the purposes of Article 35 §1 of the Convention143.. This would be a regrettable case-law development.

In its judgment of 21 March 2012, the Supreme Court concluded that the applicant's conviction was not incompatible with the Moreira Ferreira judgment and excluded from the scope of Article 449 § 1 (g) of the Code of Criminal Procedure certain procedural violations, such as the absence of the defendant from proceedings, because they were not serious enough for the conviction to be considered incompatible with the Moreira Ferreira judgment. In other words, the Supreme Court applied, in substance, the position of the majority of the Supreme Court's judgment of 27 May 2009. The Supreme Court also argued that the procedural vice detected by the Court judgment of 5 July 2011 corresponded to an irremediable nullity (nulidade insanável) which could not, in and of itself, trigger a reopening of the proceedings according to Article 449.

This interpretation is problematic for three reasons. Firstly, Article 449 § 1 (g) does not draw a difference between substantive and procedural violations. Secondly, this restrictive interpretation departed from a series of judgments previously delivered by the Supreme Court on the basis of that same article144.. Thirdly, the argument concerning irremediable nullity is aimed at invoking a legal impediment to the execution of the Court's judgment within the domestic legal framework. The counter-argument is obvious: national law cannot be invoked to oppose restitutio in integrum in the form of the reopening of domestic proceedings145..

Yet the majority of the Grand Chamber accept that the Supreme Court interpretation of Article 449 § 1 (g) did not ‘appear to be arbitrary’146., because it was supposedly in line with the Court's case-law to the effect that the Convention does not guarantee the right to a reopening of proceedings147.. It has been demonstrated above that this statement does not correspond to the full picture of the Court's case-law.

Furthermore, the majority find no ‘uniform approach among the contracting States as regards the right to apply for the reopening of proceedings that have been closed’148.. The argument advanced by the majority that ‘in most of those States the reopening of proceedings is not automatic and is subject to admissibility criteria’149. simply misses the point. The point is not whether the reopening is automatic or not. In fact, reopening is never automatic, as the comparative-law review conclusively demonstrates. There are always formal admissibility criteria, like those pertaining to locus standi. But this is not the point. The point is whether there are material admissibility criteria or not.

Likewise, the argument that there is a ‘lack of a uniform approach among the member States as to the operational procedures of any existing reopening mechanisms’150. does not address the issue at stake in the present case. The issue is not ‘the operational procedures of any existing reopening mechanisms’, but the existence of material admissibility criteria that give the domestic court a margin of discretion in assessing the request to reopen a criminal case which was concluded by a final judgment, following a finding by the Court of a violation of the Convention.

As demonstrated above, there is a clear European consensus among member States regarding the individual right to re-examination of the case, including reopening or retrial of proceedings, in instances where the Court has found a violation of the Convention. Only a minority of States set out material admissibility criteria for determining whether the reopening should be granted in the form of either of the Committee of Ministers' criteria (continuing suffering of negative consequences, or the violation and effects can only be rectified by reopening) and an even smaller minority require both criteria. In the light of this European consensus, one cannot but agree with the judge writing separately in the Supreme Court's judgment of 27 May 2009. His interpretation of Portugal's international obligation to reopen the criminal case after a Court's finding of a Convention violation, without any discretion on the part of the Supreme Court, corresponds to the European consensus. Justice Maia Costa was indeed right.

Under the combined effect of an misevaluation of the existing European consensus on the reopening of criminal cases following a Court's finding of a Convention violation and the respondent State's margin of appreciation available to domestic authorities in the interpretation of the Court's judgments, the majority of the Grand Chamber have chosen a minimalist approach that weakens the Court's authority and is hardly likely to enlighten the domestic courts. The majority take the unfortunate step of applying a particularly high threshold to the European consensus, thus potentially extending the States' margin of appreciation beyond its limits. Without providing any reason for it, the majority set the bar for the consensus on the highest possible level of a ‘uniform’151. regulation of the institute of extraordinary appeal for reopening of criminal cases. The majority's contradictory approach to the determinative value of the European consensus and to the objective indicia used to determine consensus are pushed to their limit here, engendering great legal uncertainty.

In its judgment of 21 March 2012, the Supreme Court assumed that the Court had precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence imposed. It added that the court had provided sufficient redress for the procedural violation found by making an award to the applicant by way of just satisfaction. The prosecutor in the Supreme Court defended the opposite position, considering that serious doubts could legitimately be raised about the applicant's conviction. Consequently, he asked for the extraordinary appeal to be admitted.

In the case at hand, the refusal of the Supreme Court to implement the 2011 Court judgment does not provide any new information on the facts or the legal aspects of the case. It adds literally nothing to the substance of the applicant's initial criminal case. The Supreme Court did not put forward any relevant and sufficient reasons for finding that the 19 December 2007 judgment of the Oporto Court of Appeal was compatible with the Court's judgment of 5 July 2011. In other words, in Moreira Ferreira (no. 2) the Grand Chamber is confronted with the pure and simple non-execution of the Moreira Ferreira judgment and not with a new determination of the criminal charge.

The majority of the Grand Chamber find that the Supreme Court interpretation of the Moreira Ferreira judgment was not ‘arbitrary’152.. On the basis of an underestimation of the binding meaning of the Oçalan clause, which does not tally with the history of that clause, as I have demonstrated above, the majority assume that in Moreira Ferreira the Chamber accorded to the respondent State ‘an extensive margin of manoeuvre’153.. Thus, in the majority´s view, the Supreme Court's interpretation of the Chamber judgment was within the ‘margin of interpretation available to the domestic authorities in the interpretation of the Court's judgments’154..

This is the most unfortunate point made by the majority in the entire judgment, on both domestic and Convention law grounds. At this juncture, it should be noted that the majority of the Grand Chamber omit to provide the correct interpretation of the Moreira Ferreira judgment, but at the same time condone the domestic judgment of 21 March 2012 as not distorting the meaning of the previous Chamber judgment of 5 July 2011. As the public prosecutor in the Supreme Court quite rightly pointed out, the correct interpretation of the Moreira Ferreira judgment points in the opposite direction.

In Moreira Ferreira, the Court held that the issue of the applicant's criminal liability was so important for the outcome of the case that the Court of Appeal should not have adjudicated on the appeal without first carrying out a full rehearing of the applicant. Hence, the Court found a serious procedural violation which could impact on the outcome of the applicant's criminal proceedings, namely on the degree of imputability of criminal liability to the applicant and her sentencing155., and therefore the Oçalan clause should be followed by a reopening of the applicant's case.

In its judgment of 5 July 2011, the Court did not, and did not have to, assess whether the conviction was doubtful or not. Thus, it did not preclude from the outset any possibility that the impugned domestic judgment of 19 December 2007 might raise serious doubts about the conviction. The Court's statement that it could not ‘speculate as to what the outcome of the proceedings before the court of appeal would have been if it had examined the applicant at a public hearing’ must be interpreted not as a confirmation of the validity of the conviction but as an expression of the principle of subsidiarity. Consequently, the Supreme Court's refusal to reopen the applicant's case was based on an ultra vires and non-purposeful reading of the Moreira Ferreira judgment which failed to take into account the latter's object and purpose, in other words, ‘the conclusions and the spirit of the Court judgment being executed’156., rendering illusory the principle of restitutio in integrum and impairing the very essence of the applicant's right to appear before a court determining a criminal charge against her, namely the Oporto Court of Appeal157..

Finally, the Supreme Court rejection is untenable even in the light of the standards set out in its leading judgment of 27 May 2009. At the time of the delivery of the Supreme Court's judgment on the applicant's request for reopening (21 March 2012), the consequences of the impugned domestic judgment of 19 December 2007 (fine paid in several instalments and conviction entered in the applicant´s criminal record158.) had not disappeared as a result of the Court's judgment in Moreira Ferreira and therefore the applicant was still suffering from the negative effects resulting from the domestic judgment159..

The frustration could not be greater. The majority's promised human rights-friendly approach at the admissibility stage is frustrated at the merits stage. Strangely enough, the arbitrariness test is used in the merits part for assessing the domestic authorities' interpretation of Court's judgments and their interpretation of national law160.. The majority of the Grand Chamber equate the interpretation of Court's judgments by the domestic authorities with the interpretation of national law by the domestic authorities, as if the Court's judgments and national law were at the same level. The majority rely entirely on the domestic court's own interpretation of the Court's judgments, ascribing to the Court no special expertise to interpret its own judgments. In practice, the arbitrariness test is a blank check for the domestic courts, since the majority's evaluation of the Supreme Court's refusal is limited to the formalistic verification that ‘the Supreme Court provides a sufficient indication of the grounds on which it was based’161.. The majority's position dispensing themselves of any substantive assessment of the Supreme Court's interpretation of the Moreira Ferreira judgment means that the Court yields its own competence to interpret its judgments, now explicitly enshrined in Article 46 § 3 of the Convention. To put it differently, this self-imposed limitation of the interpretative powers of the Court is at odds with the Convention itself and with the explicit will of the Contracting Parties as expressed in the Protocol 14 reform of Article 46 § 3 of the Convention.

In so doing, the majority are envisaging the Court as a mere advisory body to the Supreme Court which is ultimately free to interpret the Court's judgments as the Supreme Court pleases as long as the latter sets out some grounds, any grounds for its interpretation, regardless of the content of those grounds. Applying to the Court its own case-law, namely the seminal case Benthem v. the Netherlands,162. one would have to conclude that, according to the majority, the Court is not a judicial body, because it does not even have competence to order an individual measure to redress a Convention violation, such as reopening the domestic proceedings, and to interpret its own judgment when a new application is lodged on the basis that the Court's order has not been complied with.