DISSENTING OPINION OF JUDGE SERGHIDES
- Introduction
1. The
case concerns three sets of proceedings brought against the applicant
by the criminal-law authorities, the Securities Market Commission (CMVM)
and the Banco de Portugal (BdP) respectively for various criminal and
administrative offences committed while he was a member and later
Vice-Chairman of the Board of Directors of the Banco Commercial
Português bank (“the BCP”). The applicant raised two complaints:
firstly, that his right not to be tried or punished twice for the same
acts (ne bis in idem), as guaranteed by Article 4 of Protocol No. 7
to the Convention, had been infringed and, secondly, that the absence
of any effective remedy by which to assert his rights domestically had
entailed a breach of Article 13 of the Convention.
2. I respectfully disagree with the finding that there has been no violation of Article 4 of Protocol No. 7 and that there was no need to examine the admissibility and merits of the complaint under Article 13, which is why I voted against points 3 and 4 of the operative provisions of the judgment.
3. I explain my disagreement on these two points below, but before doing so, I wish to underline that the ne bis in idem principle
is the cornerstone of legal certainty, one of the most fundamental
guarantees of a fair trial and an important safeguard against the abuse
of State power.
B. My disagreement with the finding that there has been no violation of Article 4 of Protocol No. 7 to the Convention – The erosion of ne bis in idem under the “coherent whole” or “integrated punitive system” approach
4. It is my submission that the interpretation of Article 4 of Protocol No. 7
to the Convention allowing multiple sets of proceedings on the basis
that they form a “coherent whole” or an “integrated punitive system”, as
established in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, 15 November
2016) and furthered explained and developed in the present judgment, is
fundamentally irreconcilable with the principle of ne bis in idem.
5. At its core, such an approach undermines the absolute and non-derogable character of the right in question (see, in this regard, Article 4 § 3 of Protocol No. 7). The ne bis in idem principle enshrines a categorical rule that is not subject to any limitation clause, unlike the qualified rights guaranteed by Articles 8 to 11 of the Convention, which contain limitations in their respective second paragraphs. The “reopening” clause in Article 4 § 2 of Protocol No. 7,
concerning the emergence of new or newly discovered facts, or the
discovery of a fundamental defect in the proceedings, does not call into
question the absolute nature of the right, as
it relates to situations in which the initial decision cannot be
regarded as having acquired the requisite finality or validity.
6. In
this connection, it is to be emphasised that the non-absolute character
of the requirements of legal certainty must not be conflated with the
absolute nature of the right in question. Against this background, the
Grand Chamber’s observation in Mihalache v. Romania ([GC], no. 54012/10, § 129, 8 July
2019) that the requirements of legal certainty are not absolute should
be understood as referring to the finality of the earlier decision in
the specific circumstances contemplated by Article 4 § 2 of Protocol No. 7.
It cannot be construed as suggesting that the guarantee against being
tried or punished twice is itself a qualified or non-absolute right.
Accordingly, the limited possibility of reopening proceedings where new
or newly discovered facts have emerged, or where a fundamental defect
has been detected in the previous proceedings, cannot be relied upon to
dilute the absolute guarantee enshrined in Article 4 of Protocol No. 7.
7. Consequently, properly understood, the principle of ne bis in idem operates as a strict procedural bar:
once a final decision has been rendered, the State is definitively
precluded from pursuing further proceedings in respect of the same
facts. As Professor W. A. Schabas observes, the right under Article 4 of Protocol No. 7 “applies not only to a second conviction for the same offence but even to a second prosecution”, or, put differently, “it is sufficient that the second proceedings have only begun”.
The “integrated system” doctrine, however, effectively undermines this
guarantee by transforming a categorical prohibition into a conditional rule,
dependent on the degree to which sets of proceedings are connected. In
doing so, it introduces balancing considerations that are inherently
incompatible with the very nature of an absolute right.
8. This
does not mean that the Court should disregard the second set of
proceedings altogether. On the contrary, an examination of subsequent
proceedings is indispensable in order to determine whether the idem
requirement is satisfied. However, recognising the existence of
subsequent proceedings for the purpose of identifying duplication is
fundamentally different from treating both sets of proceedings as
components of a single integrated procedure. This latter approach risks
neutralising the protective function of the ne bis in idem
guarantee itself. It may also undermine the integrity and finality of
the first set of proceedings, diminishing both the judicial work
undertaken and the authority of the decision itself.
9. Respectfully, the approach under discussion is manifestly incompatible with the principle of effectiveness (effet utile), which is an overarching Convention principle. Permitting States to split proceedings deliberately into parallel administrative and criminal tracks, only to reclassify them ex post facto as a “coherent whole”, fails to secure effective protection of the ne bis in idem
right. From the perspective of the individual, the reality of his or
her situation remains unchanged, with multiple sets of proceedings,
repeated exposure to punishment and prolonged legal uncertainty. A
guarantee that tolerates such outcomes is no more than a formal and
illusory construct, devoid of any practical value.
10. To
be more precise, the approach in question gives rise to structural
legal uncertainty because the decisive criterion – whether there is a
“sufficiently close connection” between sets of proceedings – is framed
in broad and indeterminate terms, without clear limits or precise
criteria. The notion of a “sufficiently close connection” lacks
precision and invites inconsistent and discretionary application,
thereby undermining foreseeability and the rule of law. In parallel, it
risks institutionalising double punishment, as cumulative sanctions
imposed across different sets of proceedings may, in substance,
replicate the very duplication which the provision is intended to
prohibit. The approach under discussion is therefore incompatible with
the principle of human dignity, as it subjects individuals to legal
uncertainty and potentially repetitive punitive processes, thereby
failing to respect their status as autonomous persons entitled to
foreseeability, legal certainty and fair treatment under the law.
11. Respectfully,
the counter-arguments advanced in support of this approach are
unconvincing and doctrinally flawed. Reliance on the proportionality of
the overall sanction is misplaced: ne bis in idem
prohibits the duplication of proceedings as such, irrespective of the
severity of the resulting penalties. Crucially, the absolute character
of the right under Article 4 of Protocol No. 7
means that proportionality has no role to play: there are no
permissible restrictions to weigh in the balance. The present case goes
further still: it effectively applies a retrospective balancing
exercise, assessing compliance with the right in question by reference
to later sets of proceedings, taken together with the first set.
Likewise, the foreseeability of multiple sets of proceedings cannot
legitimise a possible violation of the Convention: a predictable breach
remains a breach. Nor can the reference to separate legal interests
justify multiple proceedings, as the idem criterion is grounded in the identity of facts, not their legal characterisation. The ne bis in idem guarantee, though not included in Article 6
of the Convention, is still a fair-trial guarantee and should be given
the same normative and doctrinal weight as those contained in Article 6.
12. To
hold otherwise would be to open the door to the artificial
fragmentation of a single course of conduct into multiple prosecutable
elements. In conclusion, the “integrated punitive system” approach
fundamentally distorts and weakens the nature of ne bis in idem.
It replaces a clear and robust safeguard with a flexible and readily
manipulable standard, thereby depriving the right at stake of both its
absolute and its non-derogable character, together with its practical
effectiveness within the Convention system.
13. In
view of the above, and taking into account the circumstances of the
present case, I would have found that there had been a violation of
Article 4 of Protocol No. 7.
14. I
am also unable to agree with the Court’s view that its approach in the
present case can properly be regarded as an application of the “living
instrument” doctrine (see paragraph 216 of the present judgment).
Elsewhere, I have discussed in detail the question whether a setback or
regression in the protection of a human right, as has occurred in the
present case, can strictly speaking be considered an application of the
“living instrument” doctrine. I concluded that the answer must be in the negative.
15. That
conclusion, in my view, is equally compelling in the circumstances of
the present case. The “living instrument” doctrine is best understood as
a specific expression or manifestation of the principle of
effectiveness, both as a method of interpretation and as a norm of
international law. Consequently, it cannot be used to depart from, or
operate against, its very foundation, namely the principle of
effectiveness itself. To accept otherwise would be to deprive the
doctrine of its normative coherence and transform it into an instrument
capable of justifying results antithetical to the object and purpose of
the Convention. Properly understood, the “living instrument” doctrine
serves to enhance the protection of Convention rights and ensure that
they remain practical, effective and adapted to present-day conditions;
it cannot be used to justify a diminution of such protection.
16. In
this sense, the doctrine is inherently teleological and directional: it
operates so as to reinforce, not weaken, the level of protection
previously attained. Moreover, the Court’s established case-law has
consistently linked evolutive interpretation with the need to ensure
that rights are “practical and effective” rather than “theoretical or
illusory”.
17. An
interpretation which results in a lowering of existing standards of
protection sits uneasily with that requirement, since it risks rendering
previously secured guarantees less effective in practice. It follows
that a regressive interpretation cannot, without contradiction, be
subsumed under the logic of evolutive interpretation. This view is also
supported by Gerards, who rightly argues that:
“...
the effectiveness principle and the Preamble to the Convention do not
support such a possibility of ‘regressive evolution’ or, as it has been
more recently termed by Helfer and Voeten, ‘walking back’. The
Convention Preamble states that the aim of the Council of Europe is ‘the
maintenance and further realisation’ of human rights and fundamental
freedoms which suggests a one-way dynamic in the direction of offering
more rather than less protection of human rights.
...
It is clear ... that, in principle, [the Convention] strives for
progressive evolution to enable ‘further realisation’ of the rights
protected by the Convention.”
18. This reading is further corroborated by the interpretative framework set out in Articles 31
and 32 of the Vienna Convention on the Law of Treaties of 1969, which
require that a treaty be interpreted in good faith in the light of its
object and purpose. In the case of the Convention, that object and that
purpose – as reflected in the Preamble and consistently reaffirmed in
the Court’s jurisprudence – consist in the progressive realisation and
effective protection of fundamental rights.
19. A
construction that permits regression would therefore be difficult to
reconcile with these general rules of interpretation. Indeed, the
Convention is a living instrument not because it permits the erosion of
rights, but because it seeks to ensure that human-rights protection
evolves in a manner that is practical, effective and responsive to the
conditions of contemporary democratic societies. Its character as
“living” denotes adaptability in the service of enhanced protection, not
flexibility in the direction of restriction. Evolution in Convention
law must remain faithful to the object and purpose of the Convention,
namely the effective and progressive protection of human rights.
20. Any
departure from the object and purpose of the Convention runs the risk
of undermining both the legitimacy of the Court’s interpretative
authority and the coherence of the Convention system as a whole.
21. I
regret to say that, in the present case, the Court has not only
followed an approach that walks back the protection of the human right
in question, but also appears to affirm that its approach involves no
such back-tracking. If an absolute right, such as the one at issue, is
treated as a qualified right and, at the same time, in a manner that
manifestly undermines its effective protection, it is difficult to see
how this could be regarded as anything other than a regression which
risks emptying the concept of an “absolute” right of any meaningful
content.
C. My disagreement with the finding that there was no need to examine the admissibility and merits of the complaint under Article 13 of the Convention
22. The applicant complained that all the domestic remedies he had pursued in respect of his complaint under Article 4 of Protocol No. 7 had been dismissed and submitted that this consequently amounted to a violation of his rights under Article 13
of the Convention, which guarantees the right to an effective remedy.
The judgment, however, states that there is no need to examine the
admissibility and merits of that complaint (see paragraph 295 of the judgment and point 4 of its operative provisions).
23. In
doing so, it begins by referring to the Chamber’s approach, namely its
decision to refrain from ruling separately on the admissibility and
merits of the complaint on the basis of the principle that the Court “is
master of the legal characterisation to be given to the facts of the
case” (jura novit curia) and on that basis to consider it appropriate to examine the application solely under Article 4 § 1of Protocol No. 7 (see paragraph 131 of that judgment dated 8 October 2024). No mention of the applicant’s Article 13
complaint was made in the operative provisions of the Chamber judgment,
where it was completely absorbed by the complaint under Article 4 § 1 of Protocol No. 7, with no violation being found.
24. By
contrast, it seems that the present Grand Chamber judgment does not
rely on this principle of recharacterisation to avoid examining the
complaint under Article 13 of the Convention but on another principle, using the lex specialis rationale to absorb one Convention right into another. In this connection, it refers to the following passage from Tsaava and Others v. Georgia ([GC], nos. 13186/20 and 4 others, 11 December 2025):
“225. It
is open to the Court not to examine complaints which fully, or to some
extent, overlap with complaints which it has already examined because
they relate to the same facts, and concern issues which are part of –
and are thus absorbed by – the broader issues already examined. Also,
when faced with a complaint under two Convention provisions which, on
the facts of the case before it, govern the same subject matter but
differ in their level of specificity (lex generalis and lex specialis), the Court normally examines the complaint solely under the latter, sometimes construing it in the light of the former.”
25. Based
on the principle set forth in that judgment, the present judgment
states that the question arises whether, in the present case, the
applicant’s complaint under Article 13 calls for a separate examination from that of his complaint under Article 4 of Protocol No. 7 or whether, on the contrary, the two complaints “overlap” (see paragraph 293 of the judgment).
26. In this connection, the present judgment notes (see paragraph 294)
that the two complaints in question relate to the same facts, namely
the institution of three sets of proceedings of a criminal nature
against the applicant by the BdP, the CMVM and the criminal-law
authorities respectively. Additionally, it notes (ibid.) that both
complaints also relate to the same issue of an alleged breach of the ne bis in idem principle. As it goes on to explain, under Article 4 of Protocol No. 7 the applicant alleged that he had been tried three times for the same offence and, under Article 13, he complained of the dismissal of his appeals alleging a breach of the ne bis in idem principle in the BdP proceedings, the criminal proceedings and the CMVM proceedings.
27. In view of the above circumstances, the Grand Chamber concludes (see paragraph 295 of the judgment) that it is not necessary to examine the admissibility and merits of the complaint under Article 13, since the latter has been absorbed by the broader examination under Article 4 of Protocol No. 7, which thus constitutes a lex specialis in relation to the more general requirements of Article 13.
28. It is noteworthy that, although both the Chamber judgment and the Grand Chamber judgment in the present case treat the Article 13 complaint as being absorbed by the complaint under Article 4 of Protocol No. 7, only
the Grand Chamber judgment includes a point in its operative provisions
holding that there is no need to examine the Article 13 complaint. It remains unclear whether this outcome stems from the Court’s use of a different methodology to avoid examining the Article 13
complaint. Specifically, the Chamber judgment relied on the principle
of legal recharacterisation prior to its examination, whereas the Grand
Chamber refers in fine to the principle of lex specialis. In both instances, the Court has performed a form of procedural absorption. In the former case, this absorption was so absolute that it precluded any mention of Article 13
in the operative provisions of the judgment. In the latter, however,
the absorption is less opaque; while the Court finds it unnecessary to
examine the admissibility or merits of the complaint, it nevertheless
explicitly records this decision within the operative provisions. This
discrepancy raises significant questions as to the transparency of the
Court’s reasoning and suggests that such “absorption” effectively masks a
mere failure to address a distinct procedural violation.
29. In Tsaava and Others
(cited above), on which the conclusion in question is based, the Grand
Chamber held that, in the light of its findings under the procedural
limb of Article 3 of the Convention, there was no need to examine the admissibility and merits of the complaint under Article 13 (§ 450).
In that case, I appended a partly dissenting opinion criticising this
approach, and I would also refer to a number of opinions I have written
on the same or similar issues (see, for instance, my two most recent
opinions: a partly dissenting opinion in Batou v. Switzerland, no. 30781/22, 7 May 2026, and a dissenting opinion in Eisenauer and Others v. France, no. 47090/22 and 9 others, 12 May 2026).
30. I
respectfully disagree with the above approach adopted by the Grand
Chamber in the present case, for the reasons set out below. Absorption
is not a neutral analytical step but a substantive decision
not to adjudicate a complaint. Without a demonstration that all
essential elements of the unexamined complaint have been fully
addressed, the assertion of overlap remains cursory. It risks replacing
reasoned adjudication with an assumed equivalence, thereby depriving
applicants of an effective judicial determination of each complaint. The
right to an effective remedy is autonomous and express. It cannot be
displaced by the right not to be tried or punished twice under Article 4 § 1 of Protocol No. 7.
The two rights are conceptually and functionally distinct. Their
nature, scope and purpose are different. In my humble submission, even
the Grand Chamber in Tsaava and Others acknowledged, in paragraph 227
of that judgment, a point that appears to have been overlooked or
insufficiently considered both in its own conclusion and in the present
judgment. In particular, it observed that, although complaints may arise
out of the same facts, they do not necessarily overlap, as there may be
differences in the nature of the interests safeguarded by the
respective provisions. Complaints under Article 4 of Protocol No. 7 and under Article 13 may well arise from the same facts, but factual overlap is not normative equivalence.
31. In paragraph 294
of the present judgment, the Court provides additional reasoning: both
complaints concern the same underlying issue of an alleged breach of the
ne bis in idem principle. However, this line of reasoning overlooks the fact that Article 13
is inherently concerned with the violation of a right for which no
effective domestic remedy was provided. Therefore, the commonality of
the essential claim (ne bis in idem) does not necessarily negate the distinct procedural requirement to provide a functional avenue of redress under Article 13. By conflating a possible breach of the right under Article 4 of Protocol No. 7 with the procedural right to a remedy, the Court’s logic ineluctably leads to the conclusion that an Article 13 complaint might never be raised independently.
Such a result effectively amounts to a negation of the right itself,
rendering the guarantee of an effective remedy illusory and theoretical,
rather than practical and effective.
32. Article 13
gives concrete expression to the subsidiarity enshrined in the Preamble
to the Convention: it requires States to provide remedies at national
level before the individual resorts to an application to the Court. If
the Court refuses to examine an Article 13 complaint because it has already examined a complaint under Article 4 § 1 of Protocol No. 7, it risks emptying Article 13
of its independent meaning and depriving States of guidance on what
effective remedies require in practice. Consequently, by failing to take
account of the Article 13
complaint, the Court has missed a crucial opportunity to offer States
clarification as to the nature and scope of “effective remedies” and
what such remedies should entail in practice. In this regard, the
Court’s reasoning in Kudła v. Poland ([GC], no. 30210/96, § 152, ECHR 2000-XI), is particularly instructive:
“... Article 13,
giving direct expression to the States’ obligation to protect human
rights first and foremost within their own legal system, establishes an
additional guarantee for an individual in order to ensure that he or she
effectively enjoys those rights. The object of Article 13, as emerges from the travaux préparatoires (see the Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights, vol. II, pp. 485 and 490, and vol. III, p. 651),
is to provide a means whereby individuals can obtain relief at national
level for violations of their Convention rights before having to set in
motion the international machinery of complaint before the Court. From
this perspective, the right of an individual to trial within a
reasonable time will be less effective if there exists no opportunity to
submit the Convention claim first to a national authority; and the
requirements of Article 13 are to be seen as reinforcing those of Article 6 § 1,
rather than being absorbed by the general obligation imposed by that
Article not to subject individuals to inordinate delays in legal
proceedings.”
33. The use of the lex specialis rationale to avoid examining one right separately is conceptually misplaced where there is no genuine normative conflict. The maxim lex specialis derogat legi generali, or generalia specialibus non derogant, is a tool for resolving conflicts between legal norms.
It applies where two rules lead to incompatible results and one of them
must prevail. However, the Convention rights under Article 4 of Protocol No. 7 and Article 13
are not in conflict; on the contrary, the latter supports the former by
providing an effective remedy in the event of a violation. The two
provisions are capable of simultaneous and mutually reinforcing
application.
34. The Grand Chamber in Tsaava and Others (cited above, § 225)
reiterated that, where two provisions governed the same subject matter
but differed in specificity, the Court would normally examine only the lex specialis.
However, this presupposes the existence of a normative hierarchy or
conflict, which is absent from the Convention system. The relationship
between many Convention rights is not hierarchical but complementary.
Their concurrent applicability reflects the layered protection intended
by the Convention, not their redundancy.
35. As
stated above, each Convention right has its own text, purpose, scope,
positive and negative obligations, and remedial consequences. To absorb
one right into another is to blur these distinctions. It risks
conflating legal tests, obscuring the State obligations undertaken and
weakening the doctrinal coherence of the Convention. The
Convention is not an undifferentiated reservoir of rights from which
the Court may select one provision and pour the others into it. It is a
structured charter of distinct guarantees.
Each provision is a separate vessel containing its own legal substance.
Combining them into a legal “cocktail” alters both their composition
and their function. Nor does the interpretation and application of
Convention rights permit recourse to a form of “judicial alchemy”,
whereby the substance of one guarantee is transmuted into another under
the guise of interpretative flexibility; such an approach runs the risk
not only of distorting the integrity of individual rights, but also of
subtly transforming the character of the Convention as a human-rights
treaty into a less determinate and less structurally coherent
instrument.
36. It
further risks displacing the principled limits inherent in each
provision, including the specific conditions under which interferences
may be justified, and thereby undermining the carefully calibrated
balance which the Convention strikes between individual rights and
collective interests. In addition, the methodological discipline of the
Court’s case-law – built upon distinct tests, thresholds and
justificatory frameworks for each right – is eroded when guarantees are
collapsed into one another, leading to unpredictability and a loss of
normative clarity. Such an approach may also dilute procedural
safeguards, as different rights trigger different standards of review,
evidential requirements and remedial consequences. Ultimately, the
integrity of the Convention system depends upon maintaining the
analytical autonomy of each right, while allowing for principled
interaction rather than unstructured fusion.
37. Even if the Court states that it will construe the lex specialis “in the light of” the lex generalis,
this is no substitute for an autonomous examination. Without a separate
assessment, the specific normative contribution of the so-called
“general” provision remains unarticulated and untested.
38. This lex specialis approach
also creates serious rule-of-law concerns. Applicants and States are
left uncertain as to when a complaint will be examined and when it will
be declared absorbed, overlapping or redundant. The Court often fails to
identify precisely what elements of the omitted right have supposedly
been covered by the right examined. Absent such an explanation, it is
impossible to know whether the unexamined complaint has been truly
addressed, only partially considered, or simply disregarded. The
conclusion that “no separate issue arises” may then become a dismissive
device rather than the result of reasoned adjudication.
39. The approach is even more problematic when considered in the light of the Court’s own standards under Article 6
of the Convention. Domestic courts are required to conduct a proper
examination of the parties’ submissions and to give specific and express
replies to decisive arguments. The Court cannot credibly demand this of
national courts while declining, without sufficient reasoning, to
examine central Convention complaints that have been brought before it.
The legitimacy of the Court depends not only on the outcome of cases but
also on the transparency, completeness and intelligibility of its
reasoning.
40. The
failure to examine complaints also harms the development of Convention
jurisprudence. The Convention is a living instrument whose progressive
interpretation depends on the incremental clarification of each right.
When complaints are absorbed or dismissed as redundant (“no need to
examine”), opportunities are lost to define the content of provisions
such as Article 13. Over time, this may lead to doctrinal stagnation, leaving important areas of human-rights protection underdeveloped.
41. Where
an applicant raises a distinct and arguable complaint under a separate
Convention provision, the Court should address it expressly. Even if the
reasoning overlaps with the analysis under another provision, the Court
should state whether that other right has been violated. What it should
not do is leave the right unexamined through recharacterisation, the Câmpeanu formula (distinguishing between main and secondary complaints), or a superficial lex specialis
analysis. In the present case, it has chosen to follow the third method
for not examining a complaint; however, as applied by the Court, all
three methods are, in my humble view, contrary to the principle of the
effectiveness of the rights concerned. They result not only in a
limitation, but in a deprivation of the protection afforded by those
rights in practice, rendering them theoretical and illusory, rather than
practical and effective.
42. In
conclusion, the effectiveness of Convention rights requires that each
one retain its autonomous force. The Court’s role as guardian of human
rights is not fulfilled by selecting one complaint and treating the rest
as redundant. The right of individual application guarantees meaningful
judicial engagement with alleged violations, not merely access to a
judgment on some of them. A practice that leaves pleaded
rights-violations unanswered runs the risk of making those rights
theoretical and illusory, undermining subsidiarity, weakening legal
certainty and eroding confidence in the Convention system. The proper
approach is therefore one of principled completeness: every distinct and
arguable Convention complaint should receive separate, reasoned and
effective judicial examination.
43. In the light of the foregoing, had I not been in the minority, I would have examined the complaint under Article 13.
As noted above, a blanket practice of stating that “there is no need to
examine the admissibility and merits of the complaint under Article 13” risks rendering Article 13 illusory and undermining the Court’s own standards. As such, it is a practice which I cannot endorse.
D. Conclusion
44. Had I not been in the minority, having found a violation of Article 4 of Protocol No. 7,
I would have awarded the applicant just satisfaction and, for all the
reasons given above, examined his complaint under Article 13.
