European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

 

CASE OF ESKERKHANOV AND OTHERS v. RUSSIA

 

(Applications nos. 18496/16 and 2 others - see appended list)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

25 July 2017

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Eskerkhanov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Helena Jäderblom, President,
          Luis López Guerra,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides,
          Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 27 June 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in three applications (nos. 18496/16, 61249/16 and 61253/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Temirlan Dukvakhayevich Eskerkhanov on 21 March 2016, and Mr Anzor Shakhidovich Gubashev and Mr Shadid Shakhidovich Gubashev on 5 October 2016.

2.  Mr Eskerkhanov was represented by Ms R. Magomedova, a lawyer practicing in Moscow, Mr Anzor Gubashev and Mr Shadid Gubashev were represented by Mr M. Khadisov, a lawyer practicing in the Moscow Region.The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The applicants complained, in particular, about their conditions of their detention and transfer to and from prison, the length of their pre-trial detention and of excessively long proceedings in the judicial review of their detention.

4.  The above-mentioned complaints were communicated to the Government between 30 June and 1 December 2016 and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The three applicants were born in 1980, 1981 and 1983 respectively and are in detention in Moscow.

6.  The facts of the cases, as submitted by the parties, may be summarised as follows.

A.  Application no. 18496/16

7.  The applicant was arrested on 8 March 2015 on suspicion of murder.

8.  On 8 March 2015 a court ordered his pre-trial detention, which was further extended on several occasions, in particular on 24 August and 25 November 2015. The applicant appealed against the extension orders on 26 August and 26 November 2015 respectively. The appeals were dismissed on 16 December 2015 and on 8 February 2016.

9.  The applicant has been detained in remand prison no. 77/6 in Moscow since 17 March 2015, except for twenty-one days in May 2015 when he was detained in remand prison no. 77/1 in Moscow (hereinafter “IZ-77/6” and “IZ-77/1”). In IZ-77/6 the applicant has around 3 square metres (sq.m) of personal space, the cell is extremely hot in the summer and extremely damp in the winter, it lacks natural light and fresh air, while access to potable water and hot water is restricted. The applicant has not been provided with bedding and can have no more than one ten-minute shower a week. Daily physical exercise in the fresh air is limited to one hour. The applicant has not described the conditions of his detention in IZ-77/1.

10.  On 25 November 2015 the applicant was transported between IZ-77/6 and the Basmanny District Court of Moscow in a prison van. Personal space in the van was limited and there was not enough fresh air; the applicant had no access to a toilet and no food or drinking water was provided. Upon his arrival to the court building and before returning to the remand prison he was detained for about 15 hours in a convoy cell where he disposed of around 0.5 sq. m of personal space and had no access to natural light, fresh air, the toilet or drinking water.

B.  Applications nos. 61249/16 and 61253/16

11.  The applicants were arrested on 7 March 2015 on suspicion of murder.

12.  On 8 March 2015 a court ordered their pre-trial detention, which was further extended on several occasions, in particular on 19 February, 1 March and 12 May 2016. Appeals filed by the applicants were dismissed on 8 April, 21 April and 28 June 2016 respectively.

13.  On 12 May 2015 the applicants were transported from remand prison No. 77/2 in Moscow (“IZ-77/2”) to the Moscow City Court and back in a prison van. The conditions of the applicants’ transfer to and from the court building were identical to those described by the applicant in case no. 18496/16.

II.  FRIENDLY SETTLEMENT AND UNILATERAL DECLARATION

A.  Application no. 18496/16

14.  By a letter of 26 October 2016 the Government asked the Court to strike application no. 18496/16 out of its list and enclosed the text of a unilateral declaration with a view to resolving the issues it raised.

15.  On 13 December 2016 the applicant’s lawyer disclosed the terms of the Government’s declaration to the media stating that the Russian Government and the Court had “entered into an agreement under which Russia [would] pay a compensation” of six thousand euro to the applicant, that “Russia ha[d] acknowledged” the violations and that the applicant was “thinking over the offer but [would] most likely accept it”. The lawyer’s statements were published, in particular, on the websites of the Vedomosti and Kommersant newspapers and on the website of the Ria Novosti news agency.

16.  On 14 December 2016 the applicant accepted the Government’s declaration.

B.  Applications nos. 61249/16 and 61253/16

17.  By letters of 12 December 2016 the applicants in applications nos. 61249/16 and 61253/16 were informed of the Court’s decision to communicate their applications to the Government. The information note in the Russian language attached to the letters included, inter alia, information on the strictly confidential nature of all friendly-settlement negotiations. The Court also provided the parties with declarations prepared by the Registry, aimed at securing a friendly settlement of the cases.

18.  On 30 January 2017 the applicants’ lawyer informed several media outlets that the Court “had found for the applicants and awarded 6,500 euros to each [applicant]”. That information was published, in particular, on the websites of the Kommersant, Vedomosti and Izvestiya newspapers.

THE LAW

I.  JOINDER OF APPLICATIONS

19.  Given that the three applications concern similar complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.

II.  GOVERNMENT’S PRELIMINARY OBJECTION

A.  The parties’ submissions

20.   The Government referred to the confidentiality of the friendly-settlement process and to the fact that a unilateral declaration should be considered as a potential friendly-settlement agreement. The Government therefore argued that “the applications should be declared inadmissible due to the applicant[s’] abuse of their right to individual petition and ask[ed] the Court to strike the present cases out of the list of the cases pending before the Court”.

21.  In response to a question from the Court as to whether the Government had withdrawn their unilateral declaration of 26 October 2016 submitted with regard to application no. 18496/16, the Government reaffirmed their views and insisted on not striking the application out of the list of cases pending before the Court on the basis of the unilateral declaration.

22.  None of the applicants submitted any comments.

B.  The Court’s assessment

23.  The Court notes that according to Article 39 § 2 of the Convention friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further states that no written or oral communication and no offer or concession made in the framework of an attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. This rule, as stipulated in the Convention and in the Rules of Court, is to be interpreted in the light of the general objective of facilitating friendly settlement and protecting the parties and the Court from any eventual pressure (see Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009).

24.  The Court has stated on multiple occasions that a breach of the confidentiality of friendly-settlement negotiations could, in certain circumstances, justify a conclusion that an application is inadmissible on the grounds of an abuse of the right of petition (see, inter alia, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; Baucal-Đorđević and Đorđević v. Serbia (dec.), no. 38540/07, 2 July 2013; Gorgadze v. Georgia (dec.), no. 57990/10, 2 September 2014; and Ausad Valimised Mtü v. Estonia (dec.), no. 40631/14, 27 September 2016). For a case in which the applicant’s lawyer intentionally disclosed the details of friendly-settlement negotiations see Tsonev v. Bulgaria ((dec.), no. 44885/10, § 26, 8 December 2015, with further references).

25.  The Court also observes that Rule 62A § 1 (c) of the Rules of Court sets out that a declaration acknowledging that there has been a violation of the Convention in an applicant’s case, together with an undertaking to provide adequate redress and, as appropriate, to take the necessary remedial measures (“unilateral declaration”), must be made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings.

26.  As clearly stated in the above rules, a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement proceedings and, on the other, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court, even though the material outcome of those procedures may be similar (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 74, ECHR 2003-VI).

27.  It is therefore important to distinguish the procedures launched in the cases in question. In case no. 18496/16, no friendly-settlement negotiations were put in place and the Government made a declaration of its own motion, in accordance with Rule 62A § 2 of the Rules of Court. In cases nos. 61249/16 and 61253/16, Article 39 of the Convention and Rule 62 § 2 of the Rules of Court were explicitly cited and a proper procedure of friendly-settlement negotiations launched. The information note in Russian which was enclosed with the Court’s letter of 12 December 2016 to the two applicants in the above-mentioned cases made it clear that all friendly-settlement negotiations were strictly confidential. The applicants and their representative should therefore have complied with that requirement. In any event, they have failed to advance any justification for not doing so. In view of the above, the Court considers that such conduct amounts to an intentional breach of the rule of confidentiality, which must also be considered as an abuse of the right of individual application.

28.  The Court therefore declares applications nos. 61249/16 and 61253/16 inadmissible due to an abuse of the right of individual application, in accordance with Article 35 §§ 3 and 4 of the Convention.

29.  As to application no. 18496/16, the Court rejects the Government’s preliminary objection. The Court observes that the Government, as can be seen from their letters, have withdrawn their unilateral declaration regarding that application. It further finds that the disclosure of the conditions of the unilateral declaration to the public neither amounts to an abuse of the right of individual application by the applicant nor gives any reason to strike the case out of the list of cases pending before the Court. The Court will therefore proceed with the examination of the complaints raised in application no. 18496/16.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

30.  The applicant in application no. 18496/16 complained that the conditions of his detention and transport were in breach of Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

31.  The Court observes that the applicant complained about the detention conditions in two facilities in Moscow: IZ-77/6 and IZ-77/1. The Court notes that the applicant failed to give any description whatsoever of the conditions of detention in IZ-77/1. The Court also notes that the period of the applicant’s detention in IZ-77/6 was interrupted by his detention in IZ-77/1 for medical treatment for twenty-one days in May 2015 (see Gorbulya v. Russia, no. 31535/09, § 47, 6 March 2014). Therefore, the Court finds it appropriate to declare the complaint about the conditions of detention in IZ-77/1 manifestly ill-founded and the complaint about the conditions of detention in IZ-77/6 between March and May 2015 belated.

32.  The Court further notes that the remainder of the complaints under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that is not inadmissible on any other grounds. Thus, it should be declared admissible.

B.  Merits

1.  With regard to the conditions of the applicant’s detention in remand prison IZ-77/6

33.  In view of the above (see paragraph 31 above), the Court will take into consideration the period of the applicant’s detention in IZ-77/6 since the end of May 2015.

34.  The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 136-40, ECHR 2016; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012; and Butko v. Russia, no.  32036/10, 12 November 2015).

35.  In the present case the applicant has around 3 sq.m of personal space. The space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light and air, the adequacy of the cell’s temperature, the possibility to use the toilet in private, access to bedding and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, § 139).

36.  Having regard to its case-law on the subject, the Court considers that the applicant’s conditions of detention in the IZ-77/6 facility since the end of May 2015 have been inadequate.

37.  This complaint therefore discloses a breach of Article 3 of the Convention.

2.  With regard to the conditions of the applicant’s transport

38.  The applicant complained about the conditions of his transport between IZ-77/6 and the Basmanny District Court of Moscow on 25 November 2015.

39.  The Court reiterates that it has examined the issue of inhuman and degrading conditions of transport in many cases against Russia (see Idalov v. Russia [GC], no. 5826/03, §§ 103-108, 22 May 2012; Khudoyorov v. Russia, no. 6847/02, §§ 117-19, ECHR 2005-X (extracts); Guliyev v. Russia, no. 24650/02, §§ 61-70, 19 June 2008; and Starokadomskiy v. Russia, no. 42239/02, §§ 55-60, 31 July 2008). It established in particular that transporting detainees in cramped prison vans was impermissible, irrespective of the duration, and that a lack of appropriate food on the days of transport was an aggravating factor (see Khudoyorov, cited above, § 118, and Starokadomskiy, cited above, §§ 55, 58). The Government did not provide any information to permit the Court to distinguish the present case from those cited above.

40.  The applicant’s complaint about the conditions of his transport therefore also discloses a breach of Article 3 of the Convention.

3.  With regard to the conditions of the applicant’s detention in the convoy cell at the Basmanny District Court of Moscow

41.  The Court notes that the applicant was kept in the convoy cell at the Basmanny District Court of Moscow on 25 November 2015 in poor conditions. Although his detention in the convoy premises was not continuous, the Court cannot overlook the fact that it alternated with his detention in the remand prison and his transport in conditions which it has already found to have been inhuman and degrading. In those circumstances, the cumulative effect of the applicant’s detention in the extremely small convoy cell at the Basmanny District Court of Moscow without ventilation, food, drink or free access to a toilet must have been of such intensity as to induce physical suffering and mental weariness (see Moiseyev v. Russia, no. 62936/00, § 142, 9 October 2008).

42.  The Court therefore also establishes a breach of Article 3 of the Convention on account of the conditions of the applicant’s detention in the convoy cell.

IV.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

43.  The applicant complained that his appeals against the detention orders of 24 August and 25 November 2015 had not been examined speedily. He relied on Article 5 § 4 of the Convention which reads as follows:

“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A.  Admissibility

44.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and that it must therefore be declared admissible.

B.  Merits

45.  The Court reiterates that it has already found a violation of Article 5 § 4 of the Convention in a number of cases against Russia, where, for instance, the proceedings by which the lawfulness of an applicant’s detention was decided lasted twenty-seven days (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), sixty days (see Topekhin v. Russia, no. 78774/13, § 115, 10 May 2016) or one hundred days (see Pelevin v. Russia, no. 38726/05, §§ 64-67, 10 February 2011).

46.  In the present case it took the courts a hundred and eleven days to examine the applicant’s appeal against the extension order of 24 August 2015 and seventy-three days to examine the appeal against the order issued on 25 November 2015.

47.  The Court notes that nothing in the case suggests that the applicant in any way caused delays in the appeals proceedings.

48.  In the light of its consistent case-law, the Court finds that the significant delays in the examination of the applicant’s appeals cannot be considered compatible with the “speediness” requirement of Article 5 § 4.

49.  There has accordingly been a breach of Article 5 § 4.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

50.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

51.  The applicant was not asked by the Court to submit a claim for just satisfaction during the communication stage of the proceedings. The Court notes, however, that on 14 December 2016 the applicant sent a letter to the Court by which he accepted the terms of the Government’s unilateral declaration: the Government had offered to “pay the applicant a sum of EUR 6,000 as just satisfaction [...] which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses”.

52.  The Court considers that by accepting the sum of compensation indicated in the Government’s unilateral declaration the applicant unequivocally expressed his appreciation of the overall amount of just satisfaction for the violations of his rights.

53.  With regard to the above and to the principle of ne ultra petitum (“not beyond the request”), the Court awards the applicant EUR 6,000 as just satisfaction, plus any tax that may be chargeable to him on that amount.

B.  Default interest

54.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1.  Decides, unanimously, to join the applications;

 

2.  Takes note of the Government’s preliminary objection in applications nos. 61249/16 and 61253/16 and, by a majority, declares the two applications inadmissible in view of the disclosure of the friendly-settlement negotiations by the applicants;

 

3.  Takes note of the Government’s preliminary objection in application no. 18496/16 related to the disclosure of the unilateral declaration and, unanimously, dismisses it;

 

4.  Declares, unanimously, the complaints in application no. 18496/16 concerning the conditions of the applicant Mr Eskerkhanov’s detention in the IZ-77/6 facility since May 2015, the conditions of his transport and detention in the convoy cell and his complaint about the excessively long judicial review of his detention admissible and the remainder of the complaints under Article 3 inadmissible;

 

5.  Holds, unanimously, that there has been a violation of Article 3 of the Convention with regard to the conditions of Mr Eskerkhanov’s detention in the IZ-77/6 facility since May 2015 and the conditions of his transport and detention in the convoy cell;

 

6.  Holds, unanimously, that there has been a violation of Article 5 § 4 of the Convention concerning the lack of a speedy review of the grounds for Mr Eskerkhanov’s detention;

 

7.  Holds, unanimously,

(a)  that the respondent State is to pay Mr Eskerkhanov, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), as just satisfaction, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                 Helena Jäderblom
       Registrar                                                                              President

 

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

 

H.J.
J.S.P.

 




PARTLY DISSENTING OPINION OF
JUDGE PASTOR VILANOVA

(Translation)

 

1.  My dissenting opinion concerns solely the applications 61249/16 and 61253/16, which were declared inadmissible by the Chamber for an abuse of the right of individual application. The majority considers that the disclosure by the applicants’ lawyer of the friendly-settlement proposal prepared by the Registry of the Court amounts to abuse of the right of petition and justifies a finding that the two applications are inadmissible.

With all due respect, I cannot share that conclusion.

2.  The dismissal of these two applications results from public statements made by the applicants’ lawyer on 30 January 2017. More specifically, the lawyer allegedly transmitted the following information to the State news agency TASS:

“The Court has granted our application and ordered that the Gubashevs be paid 6,500 euros each in compensation. We had complained about the conditions of detention: belated transportation to court, violations of the regulations on meals, the use of handcuffs ...”

The web pages and newspapers which relayed the lawyer’s statements show photographs of the applicants during their criminal trial. Nowhere do they suggest that the applicants had taken part in disclosing the text of the friendly-settlement proposal, as was the case, for instance, in Mandil v. France (dec.), no. 67037/09, 13 December 2011.

3.  The judgment claims to be based on well-established case-law by the Court. The relevant paragraph (number 24) refers to five previous decisions, namely Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; Baucal-Đorđević and Đorđević v. Serbia (dec.), no. 38540/07, 2 July 2013; Gorgadze v. Georgia (dec.), no. 57990/10, 2 September 2014; and Ausad Valimised Mtü v. Estonia (dec.), no. 40631/14, 27 September 2016; it also refers to Tsonev v. Bulgaria (dec.), no. 44885/10, § 26, 8 December 2015. It is true that our case has similarities to Tsonev. The problem, in my humble opinion, is that the Tsonev decision, like the case before us, departed, with no particular justification, from the Court’s consistent case-law. In reality, all of the cases cited in Tsonev (§ 26) - but also in the five other decisions mentioned at the beginning of this paragraph - concern disclosures made personally by the applicants, with or without their lawyers being present. The case-law in force until now has required (some reasons are to be found below) substantiated evidence of personal and wilful responsibility on the part of the applicant in disclosing the friendly-settlement proposal to third parties (see Hadrabová and Others v. the Czech Republic (dec.); Miroļubovs and Others v. Latvia, § 66, no. 798/05, 15 December 2009; Gorgadze v. Georgia, § 19; Mandil v. France; and Ausad Valimised Mtu v. Estonia (dec.), § 19, no. 40631/14, 27 September 2016). In our case, however, and I would emphasise this point, the disclosure was made exclusively by the lawyer, and there is no reason to suppose that this revelation enjoyed the applicants’ tacit support. Moreover, they have been imprisoned since 2015 (paragraph 5).

4.  In reality, the decision that I contest, is, as I see it, based on two disputable premises: (a) the applicants and their lawyer did not advance any justification for failing to comply with the confidentiality rule concerning the friendly-settlement proposal (paragraph 27), and (b) it is presumed that the lawyer was representing the applicants in making this disclosure (paragraph 24).

Firstly, it is unlikely that the lawyer will admit to his own wrongdoing.

Secondly, the Court’s official application form sets out the limits of the lawyer’s authority. The principal (the applicant) must expressly authorise a lawyer to represent him or her before the European Court of Human Rights “concerning [the] application lodged under Article 34 of the Convention”. For his or her part, the lawyer must agree “to represent the applicant in the proceedings before the European Court of Human Rights concerning the application lodged under Article 34 of the Convention”. It is this bilateral agreement, to be strictly construed, which henceforth authorises the lawyer to act on the applicant’s behalf. The signatures which are to be found in the respective applications prove that the applicants did indeed confer this task on their lawyer. However, the lawyer’s powers are not unlimited. They are restricted to the contentious proceedings being conducted before our Court. Thus, as a general rule, the applicant takes responsibility for all of the procedural acts carried out by his or her representative: submission of the application and the subsequent observations, the lawyer’s reception of the observations from the respondent Contracting Party, etc. In our case, the public statements made by the applicants’ lawyer to the TASS State news agency cannot in any way be equated with a procedural act. On the contrary, they amount to a demonstration of free speech by the lawyer, committed outside the strict framework of the authority form and in the exercise of his freedom of expression. The applicants are not bound by his actions. The opposing party is free to take action against him if they consider that damage has been caused or to decline any friendly negotiation.

5.  It might be argued that the applicants can always bring an action for professional liability against the lawyer at fault at a later point. In my view, that possibility is illusory here. In such a scenario, it would be for the applicants (who, I would repeat, are in prison), to prove to the domestic courts that they had had a strong probability of winning the cases brought by them before the Court against the Russian State. This is mere speculation, especially as they would be unable, in view of its confidential nature, to use the friendly-settlement proposal. Moreover, the dismissal of their applications, final as it is, ends any hope of a finding of a violation of the Convention. Lastly, I find it difficult to imagine that the Russian courts will at some future point admit, even indirectly, that there was fault of the part of the State, given that the applicants have not to date obtained satisfaction through the domestic remedies.

6.  One point which strikes me as particularly problematic in the majority’s reasoning is the automatic nature of the rejection, without giving reasons for the change in the case-law or taking into consideration the aims pursued by the confidentiality rule.

In my view, the prohibition provided for in Article 39 § 2 does not, by itself, justify the rejection of an application. A combined reading of Article 39 § 2 and Article 35 § 3 (b) implies that the rejection of an application for disclosure of the friendly-settlement negotiations requires evidence of an abuse of process (see Miroļubovs and Others, § 62). Consequently, in the absence of such evidence, the application in question should not be declared inadmissible.

Thus, our Court has had occasion to explain that the aim of the confidentiality requirement was to protect the parties and itself from possible outside pressure (see Abbasov and Others v. Azerbaijan, § 29, no. 36609/08, 28 May 2013; Popov v. Moldova, § 48, no. 74153/01, 18 January 2005; Mandil v. France; Miroļubovs and Others, § 66; and, mutatis mutandis, Eur. Com. HR, no. 26135/95, Dec. 5. 3. 1996, D.R. no 84-B, p. 156). It is therefore clearly a question of preventing abusive conduct. One cannot but note that the respondent State has not alleged any form of pressure. In their written observations, they merely condemn the breach of the confidentiality rule. With regard to our Chamber, I fail to see what difference this disclosure would have made to the decision on the merits had the case been declared admissible.

7.  I consider that the rejection of an application must always be an exceptional measure (see Miroļubovs and Others, § 62), bearing in mind the very serious consequences for the applicants (see also Judge Koskelo’s separate opinion in Čapský and Jeschkeová v. the Czech Republic, nos. 25784/09 and 36002/09, 9 February 2017). As a form of procedural “sanction”, it should be applied in a restrained manner, as our Court has indicated to the highest national courts (see Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 49, Reports of Judgments and Decisions 1998-VIII; Miragall Escolano and Others v. Spain, § 38, no. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, 25 January 2000; Sotiris and Nikos Koutras ATTEE v. Greece, § 20, no. 39442/98, 16 November 2000; Běleš and Others v. the Czech Republic, § 50, no. 47273/99, 12 November 2002; RTBF v. Belgium, §§ 71-72 and 74, no. 50084/06, 29 March 2011; Bureš v. the Czech Republic, § 144, no. 37679/08, 18 January 2013; Bulena v. the Czech Republic, § 35, no. 57567/00, 20 July 2004; Kadlec and Others v. the Czech Republic, § 29, no. 49478/99, 25 August 2004; and Boulougouras v. Greece, § 27, no. 66294/01, 28 August 2004). Indeed, I consider that the precepts of a fair trial should also be binding on the Court. The latter’s authority and prestige also depend on it applying to itself the rules that it lays down for the domestic courts. This is required to preserve the principles of equality, legal certainty and public confidence.

8.  Lastly, it is perfectly reasonable to assume that in the case before us the applicants were victims of inhuman or degrading treatment. Indeed, where the Court (through the Registry) proposes a friendly settlement, it is because it deduces that a violation has probably occurred. In weighing up a procedural requirement (confidentiality of the friendly-settlement proposal) and recognition of the violation of a right from which no derogation is possible (Article 3), the balance ought, in my opinion, to tip towards the latter. As a sanction for the lawyer’s negligence, the Court could then perhaps refrain from holding that the respondent State is to pay the fees of the applicants’ representative. In this way respect for human rights and compliance with the procedural rules could be reconciled.

9.  I call for this severe measure to be applied with much caution, on the basis of clear and foreseeable criteria and, equally, depending on the particular circumstances of each case.

 




APPENDIX

 

No.	Application No.	Application Title
1.	18496/16	Eskerkhanov v. Russia
2.	61249/16	Anzor Gubashev v. Russia
3.	61253/16	Shadid Gubashev v. Russia