Information Note on the Court’s case-law 209

July 2017

Eskerkhanov and Others v. Russia - 18496/16, 61249/16 and 61253/16

Judgment 25.7.2017 [Section III]

Article 35

Article 35-3-a

Abuse of the right of application

Disclosure by applicant’s lawyers of unilateral declaration and of friendly settlement: admissible, inadmissible

Facts – In the Convention proceedings, all three applicants complained under Articl e 3 of the conditions of their pre-trial detention and in the van which transported them from prison to the courthouse.

In the first applicant’s case, the Government issued a unilateral declaration and asked the Court to strike the application out of its list. The first applicant’s lawyer subsequently disclosed the terms of the declaration to the media, which published the information on their websites. In the light of that development, the Government withdrew its declaration.

In the case of the second and third applicants, their lawyer informed several media outlets of the details of friendly-settlement negotiations that had taken place between the Government and the two applicants. That information was published by the media on their websites.

In their su bmissions to the Court, the Government asked for all three applications to be struck out for abuse of the right to individual petition as the friendly-settlement process was confidential and, in the first applicants’ case, a unilateral declaration should b e assimilated to that process.

Law – Article 35 § 3 (a): According to Article 39 § 2 of the Convention friendly-settlement negotiations are confidential and 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.

However, as clearly stated in the 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 Governm ent in public and adversarial proceedings before the Court, even though the material outcome of those procedures may be similar.

It was therefore important to distinguish the procedures launched in the cases in question. In the first applicant’s case, no f riendly-settlement negotiations were put in place and the Government had made a declaration of its own motion. The Government’s preliminary objection was therefore rejected and the application declared admissible.

Conclusion : preliminary objection dismisse d (unanimously).

In the cases of the second and third applicants, Article 39 of the Convention and Rule 62 § 2 were explicitly cited and a proper procedure of friendly-settlement negotiations launched. The information in Russian enclosed with the Court’s letter to the two applicants made it clear that all friendly-settlement negotiations were strictly confidential. The applicants and their representative should therefore have complied with that requirement and had not advanced any justification for not doing so. Accordingly , such conduct amounted to an intentional breach of the rule of confidentiality, which had to be considered as an abuse of the right of individual application.

Conclusion : applications of second and third applicants inadmissible (abuse of the right of peti tion).

On the merits, the Court unanimously found a violation of Article 3 and of Article 5 § 4 in the first applicant’s case and awarded him EUR 6,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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