ases, 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.
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<*> Application No. 50178/99, judgment of 20 July 2004.
<**> Application No. 72776/01, decision of 9 March 2006.
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 the 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 <*>. 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 prohibited 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.
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<*> See Stefan Trechsel, "Human Rights in Criminal Proceedings".
The provision of Article 4 § 1 of Protocol No. 7 functions also to preserve the authority of the courts <*> by protecting their independence and impartiality from any pressure to change their final conc
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