Постановление Европейского суда по правам человека от 14.01.2010 "Дело "Мельников (Melnikov) против Российской Федерации" [рус., англ.]

/> 6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 14 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar





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

C.L.R.

S.N.

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 wi



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