Постановление Европейского суда по правам человека от 09.07.2009 "Дело "Илатовский (Ilatovskiy) против Российской Федерации" [рус., англ.]

s;
4. Holds that there is no call to award the applicant any amount by way of just satisfaction.

Done in English, and notified in writing on 9 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Andre} WAMPACH
Deputy Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Spielmann and Malinverni is annexed to the judgment.

C.L.R.

A.M.W.

JOINT CONCURRING OPINION OF JUDGES 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) <*>. 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 {Ocalan} 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.
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<*> See also the joint concurring opinion of Judges 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 {Chorzow} (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 Responsib

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