DISSENTING OPINION OF JUDGE SERGHIDES
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”[4], or, put differently, “it is sufficient that the second proceedings have only begun”[5]. 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[6]. 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[7].
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[8]. 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.[9]”
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[10]. 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.
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