DISSENTING OPINION OF JUDGE KOVLER

(Translation)

I regret that I cannot share some of the conclusions reached by the majority of the Chamber in the present judgment, which I consider quite ambiguous.

From the beginning of examination of the case, in particular from the application of Rule 39 of the Rules of Court (“Interim measures”) on 4 October 2002, the proceedings were marked by several irregularities: the applicants ' representatives knowingly provided false names for the applicants; the nationality of some of them was uncertain; the representatives ' authorities to act , submitted on 22 November 2002 on behalf of the five extradited applicants , referred only to Georgia as the respondent State, etc.

In reality, according to the lawyers ' confessions as broadcast by the Georgian and Russian press and reproduced in their subsequent statements, including those before the Court, their clients misled the investigators in Georgia and Russia: in order to avoid extradition, they used a “strategy of false names” (see the transcripts of Mr Gaba y dze ' s confessions in the admissibility decision), inventing surnames, addresses and dates of birth, which prevented their identity from being established before our Court. Yet Article 35 § 2 of the Convention provides: “The Court shall not deal with any application submitted under Article 34 that (a) is anonymous ...” In this connection, I would quote the British lawyer Philip Leach who, inter alia , presented the first so-called Chechen cases before the Court without any problem of procedural irregularity: “Every application to the European Court must identify the applicant (Article 35 (2) a). Any application which does not do so may be declared inadmissible on this ground alone” (Philip Leach, Taking a Case to the European Court of Human Rights , London, 2001, p. 85). We imposed fairly strict rules on the two Governments with regard to compliance with procedural formalities. Procedural rigour and the principle of equality of arms required the same attitude towards the applicants ' representatives. However, I have not found convincing arguments in the judgment to justify the indulgence shown . The result has been that, even at the point of adopting its judgment, the Court has been obliged to refer occasionally to two surnames in respect of the same individual and to take pains to avoid mentioning the nationality of such or such an applicant.

The issue of the lawyers ' authority to act as the applicants ' representatives is presented even more mysterious ly in the judgment. To judge by paragraph 14 of the judgment, “On 22 October 2002, under Rule 47, an application against Georgia and Russia was lodged on behalf of thirteen applicants by their representatives” . Not until a month later did the

lawyers “ fax[.. . ] the powers of attorney authorising them to represent the extradited applicants before the Court. Those documents, which referred to Georgia as the respondent State, had been signed by the applicants ' family members and friends liv ing in Russia ” (see paragraph 225). Although the Court justifies this interval by “extremely urgent circumstances which were not attributable to the applicants” (see paragraph 312), it gives the impression of justifying the irregularities on the part of professional lawyers in order to conclude that the applicants “may be considered [ sic ] to be validly represented”. In the same way, the lawyers ' “contradictory” (to say the least) statements about the signatures may be considered valid. The admissibility decision contains a phrase worthy of a detective novel : “The signatures on the authorities to act had allegedly been added by the applicants [N.B. they were already extradited] themselves on 22 November 2002 and obtained with the help of persons of Chechen origin living in Russia or, in certain cases, added by family members of the applicants, living in Russia . ” It was only when the handwriting report showed that the authorities to act had not been signed by the extradited applicants that one of the lawyers finally admitted having “ appealed to their relatives and friends, and it was the latter ' s signatures which appeared on the authorities to act ” (see paragraph 231 of the judgment ). I regret that the Chamber has not taken into account the Court ' s case-law on the inadmissibility of improper applications (see, mutatis mutandis , Stamoulakatos v. the United Kingdom (dec.), no. 27567/95, 9 April 1997), including on the grounds of “deliberate misrepresentation”, to use the expression employed by Karen Reid (Karen Reid, A Practitioner ' s Guide to the European Convention on Human Rights , London, 1998).

If I dwell on these regrettable facts, it is in order to point out that every applicant , or his or her representative , signs an application form containing the following declaration: “I hereby declare that , to the best of my knowledge and belief , the information I have given in the present application form is correct . ” They thus confirm that the information provided is true, on pain of falling within the scope of Article 35 of the Convention , the Court being entitled at any stage of the proceedings to declare an application inadmissible where the right of application has been abused (Article 35 § § 3 and 4 of the Convention), or of inducing the Court to have recourse from the outset to the investigati ve measures provided for in Rule 42 of the Rules of Court.

Not wishing to “ be taken for ” a moraliser, I nonetheless wish my approach to be clearly understood: the meticulous observance of all procedural details by the Court in its capacity as a strict arbiter is what guarantee s the merits of its judgment. If a referee makes a concession to one side during a match, the other side considers itself free to manoeuvre as it wishes . T he facts of the instant case provide much evidence of this.

In spite of my firm belief that this application is inadmissible on the ground s of its anonymity and abuse of the right of application, I am obliged to state my view on the merits of the case, and wish to set out my position briefly .

Although I agree with my colleagues ' conclusions that there has been no violation by Georgia of Article 3 with regard to the five extradited applicants and that it is unnecessary to continue examination of the complaints under Articles 2 and 3 in so far as they concern the extradition of Mr Khashiev and Mr Baymurzayev to Russia, I am unable to accept that there would be a violation of Article 3 if the decision to extradite Mr Gelogayev to Russia were to be e xecuted . In my opinion, this conclusion, based on factual conjecture (the “general situation in Chechnya” as described in paragraphs 364 and 366) and legal speculation (a fairly superficial interpretation of the validity of the Russian Constitutional Court ' s judgment of 2 February 1999) , is also based on a value judgment concerning a deterioration of the situation in the region (see paragraph 367) and there is no justification for it in the Court ' s case-law. In Mehemi (no. 1) , the Court found that there would be a potential violation of Article 8 (right to respect for private and family life) if the applicant (who had family ties in France) were to be extradited (see Mehemi v. France (no. 1) , judgment of 26 September 1997 , Reports of Judgments and Decisions 1997-VI ); this is not the case here. As far as I am aware, the only examples of a finding of a potential violation of Article 3 in the event of extradition concern extradition to a State that is not a signatory to the Convention (see Soering v. the United Kingdom , judgment of 7 July 1989, Series A no. 161 , and Cruz Varas and Others v. Sweden , judgment of 20 March 1991, Series A no. 201 ).

In my opinion, the Court lacks valid grounds for stating that it is “established” that there would be a violation of Article 3 of the Convention in the event of the applicant ' s extradition to a country which is a signatory to the Convention and which has provided the Georgian Government and the Court with all necessary assurances of compliance with the Convention vis-à-vis the applicants, including Mr Gelogayev .

As to the events during the night of 3 to 4 October 2002 (r evolt by the prisoners and its suppression by the Georgian security forces), the Court has, in my opinion, taken a fairly strange position by speculating on “the applicants ' particular vulnerability” (they were armed, let it be note d , with bricks and pieces of metal) and on the “legitimate fears” that they may have “ experienced at the idea of their extradition”. Even if the Court “ has not overlooked the fact that prison wardens and members of the special forces were also injured in ' hand-to-hand combat ' with the applicants” and that four of the seven applicants were sentenced by a Georgian court on 25 November 2004 to two years and five months ' imprisonment, it nonetheless finds that there was “physical and mental suffering of a nature amounting to inhuman treatment”. From now on, the quelling of a prison riot is likely to be condemned as disproportionate...

I am also obliged to confess that the logic behind the finding of a violation of Article 34 by Georgia escapes me: is Georgia guilty of having permitted the plane carrying the extradited individuals to leave at around 7.10 p.m. (Strasbourg time), when it did not receive formal notification of the application of Rule 39 of the Rules of Court until more than half an hour later? Is it also responsible for the fact that the fact-finding visit to Russia did not take place ( see paragraphs 477-78)? Moreover, I refer to the joint dissenting opinion of Judges Caflisch, Türmen and myself in Mamatkulov and Askarov v. Turkey ( [GC], nos. 46827/99 and 46951/99, ECHR 2005 ‑ I) , in which we question the binding nature of the interim measures indicated by the Court as they are currently set out in Rule 39 of the Rules of Court, particularly paragraph 3, the French version of which refers to “ mesures provisoires recommandées ” ( “ recommended interim measures ” ).

In my opinion, the finding of a violation of Article 34 of the Convention by Russia derives from the mutual intransigence of the positions adopted by the Court and the Russian Government. The Court relies on the Orhan option, which consists in asserting that “the assessment of the authenticity of an application comes under the sole jurisdiction of the Court , and not that of a Government” (see Orhan v. Turkey , no. 25656/94, 18 June 2002, and paragraph 513 of the present judgment). For their part, t he Government did not recognise the authorities to act of the “ purported representatives” and prevented them from gaining access to the applicants. It is regrettable that the lack of procedural rigour (mentioned above) before the Court poisoned the remainder of the examination of the case. Each party has its own dignity which deserv es respect, even in the case of a respondent Government.

However, I do agree with several of the Court ' s conclusions regarding certain failings by the Russian respondent Government to cooperate in the organisation of a fact-finding visit; at the same time I do not subscribe to the argument put forward in paragraph 500 to the effect that “ the conduct of a fact-finding visit, decided by the Court ... , does not depend on the progress of domestic proceedings ”. I have difficulty in imagining the reaction of a domestic court if a delegation from the European Court were to arrive in town and begin question ing the defendants while it was examining a case ...

Finally, with regard to the sums awarded to the applicants in respect of alleged non-pecuniary damage, I wish to point out that the two respondent Governments acted in accordance with the provisions of the European Convention on the Suppression of Terrorism (1977) and the European Convention on Mutual Assistance in Criminal Matters (1959), not to mention the Minsk Convention (1933), referred to in the judgment, which requires Contracting States to comply with those treaty provisions. I very much doubt that the obligations arising from those texts are to be interpreted as the cause of non-pecuniary damage to those who come under the scope of the above-mentioned conventions. It is for th is reason that, as in Mamatkulov and Askarov , I consider the finding of a violation (in so far as there has been one) to be sufficient just satisfaction in a case of this sort.

[1] . A Chechen ethnic group living in Georgia .

[2] . All the applicants’ names have been translit erated into English .

[3] . Mr Kushtanashvili did not wish to indicate his date of birth .

[4] . Form no. 1 is a document containing a photograph of the individual concerned; it is prepared by the relevant sections of the Ministry of the Interior when an identity card is provided to that individual, and proves ipso facto his or her nationality.

[5] . T he exact reference for this document is not given, in compliance with the Court’s undertaking ( see paragraph 16 of the judgment ) not to disclose the names of the pre-trial detention centres in Russia in which the applicants are held.