PARTLY DISSENTING OPINION OF JUDGE BORREGO BORREGO

This opinion is not only the expression of my disagreement with the majority regarding Article 34, but also a token of my recognition and my gratitude to Ms T., this brave Russian woman and friend of the applicant.

The European Convention on Human Rights is an international treaty and as such it “ ... is binding upon the parties to it and mu st be performed by them in good faith” ( Vienna Convention on the Law of Treaties, 23 May 1969, Article 26). The European Convention states that “the High Contracting Parties undertake not to hinder in any way the effective exercise of this right” (Article 34). The case ‑ law regarding this issue “ ... of the utmost importance for the effective operation of the system ... ” is reflect ed in paragraph 119 of the judg ment.

“Not to hinder in any way the effective exercise of this right” means, firstly and obviously, that the applicants and their relatives must not be subjected to any form of pressure – direct or indirect – from the authorities to withdraw or modify their complaints.

Secondly, and again obviously, effective exercise of the right of individual petition entitles High Contracting Parties to argue freely about the case, not to lie freely about the facts. It is very difficult to ensure effective operation of the system if the Contracting Party involved does not play its part fairly.

Much to my regret, I cannot agree with the majority ' s conclusion that there has been no violation of Article 34 in the present case.

Firstly, Ms T., who witnessed the conditions in which Mr Tarariyev was treated at the hospital, was subjected to pressure by the Russian authorities. Following a request by the Government ' s Representative before the European Court after the admissibility decision, Ms T. was summoned to the Severskiy district prosecutor ' s office, where she was asked “about violations of laws” (section 22 of the Public Prosecutors Act). Ms T. was summoned as an accused or suspect and therefore “the constitutional guarantee against self-incrimination had been explained to her” (paragraph 59). She was questioned on two consecutive days. Ms T. considered that she had clearly been intimidated.

As to the assessment of this questioning, the majority states that “the Court forms the view that the interviewers attempted to obtain information which could be used for investigation of the treatment applied to Mr Tarariyev and for identification of those responsible” (paragraph 121). Although I respect this point of view, it seems unduly generous to me, more appropriate to a fairy tale than to the present case, as the Government have consistently and strongly denied any ill-treatment of Ms T.

In my opinion, the respondent State has failed to comply with its obligations under Article 34 of the Convention.

Secondly, lying is contrary to good faith and hinders the effective operation of the system. In their observations of 30 December 2004, the Government replied to the question whether the applicant ' s son had been handcuffed to the hospital bed by saying that “according to the Russian Federation Ministry of Justice and the Russian Federation General Prosecutor ' s Office, [these] allegations ... do not comport with reality”. Consequently, the decision on admissibility of 11 October 2005 states that “the Government challenged as untrue the applicant ' s allegation that Mr Tarariyev had been shackled to the hospital bed”.

Following this decision Ms T., the witness, was summoned to the prosecutor ' s office on two consecutive days (30 November and 1 December 2005). She repeated her statement and said “Mrs Tarariyeva did not ask me to confirm any facts which did not happen in reality”.

On 19 December 2005, in spite of what Ms T. had stated in the prosecutor ' s office, the Government said “[this] applicant ' s allegation ... does not meet the reality and misleads the Court. According to the Russian Federation General Prosecutor ' s Office, on the results of a repeated ly conducted check , it has been e stablished that neither the applicant nor other persons ... had been admitted to Mr Tarariyev ... ”.

It seems obvious to me who made allegations that “do not meet with the reality and mislead the Court”. I consider this behaviour by a High Contracting Party as evidence that it failed to comply with its obligations under Article 34 of the Convention.

Finally, I would like to thank Ms T., as well as Ms Tarariyeva. At difficult moments in life, as the present case shows, exemplary behaviour comes mostly from women. It is an honour for me, as a judge of this Court, to work to ensure that people like Ms T. and Ms Tarariyeva have their fundamental rights and freedoms guaranteed by the enforcement of the Convention.