CONCURRING OPINION OF JUDGE LOUCAIDES

While agreeing with the approach of the majority in this case I would like to say a few words about the notion of “jurisdiction” within the meaning of Article 1 of the Convention. This issue is dealt with in paragraphs 137 and 1 38 of the judgment.

To my mind “jurisdiction” means actual authority, that is to say the possibility of imposing the will of the State on any person, whether exercised within the territory of the High Contracting Part y or outside that territory. Therefore, a High Contracting Party is accountable under the Convention to everyone directly affected by any exercise of authority by such Party in any part of the world. Such authority may take different forms and may be legal or illegal. The usual form is governmental authority within a High Contracting Party ' s own territory, but it may extend to authority in the form of overall control of another territory even though that control is illegal ( see Loizidou v. Turkey (preliminary objection s ) , judgment of 23 March 1995, Series A no. 310), notably occupied territories ( see Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV). It may also extend to authority in the form of the exercise of domination or effective influence through political, financial, military or other substantial support of a g overnment of another State. And it may, in my opinion, take the form of any kind of military or other State action on the part of the High Contracting Party concerned in any part of the world (see, by way of contrast , Bankovi ć and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001 ‑ XII, cited in the judgment).

The test should always be whether the person who claims to be within the “jurisdiction” of a High Contracting Party to the Convention, in respect of a particular act , can show that the act in question was the result of the exercise of authority by the State concerned. Any other interpretation excluding responsibility of a High Contracting Party for acts resulting from the exercise of its State authority would lead to the absurd proposition that the Convention lays down obligations to respect human rights only within the territory under the lawful or unlawful physical control of such Party and that outside that context, leaving aside certain exceptional circumstances (the existence of which would be decided on a case - by - case basis), the State Party concerned may act with impunity contrary to the standards of behaviour set out in the Convention. I believe that a reasonable interpretation of the provisions of the Convention in the light of its object must lead to the conclusion that the Convention provides a code of behaviour for all High Contracting Part ies whenever they act in the exercise of their State authority with consequences for individuals.

PARTLY CONCURRING OPINION OF JUDGE COSTA

(Translation)

1. I have decided to concur with my fellow judges ' view that the operative provisions of the judgment should contain an indication to the Government of the respondent State that the applicant ' s release must be secured at the earliest possible date.

2. I would like briefly to explain the reservations I have had on this subject.

3. The Court ' s case-law in this sphere is well known. Since its judgment in Marckx [1] , the Court has regarded its decisions as being essentially declaratory , so that when it finds that there has been a violation of the Convention, it leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligations under Article 46 [2] , which contains an undertaking by the States to abide by judgments of the Court.

4. The distinction between the choice of means and the obligation to achieve a specific result thus seeks to reconcile the principle of subsidiarity with the collective guarantee of the rights and freedoms protected by the Convention. Normally, it is for the Committee of Ministers of the Council of Europe, not the Court, to ensure compliance with the Court ' s judgments by supervising the general and individual measures taken by the respondent State to remedy the violation of the Convention. This, too, follows from Article 46.

5. There have already been cases in which the Court has limited the State ' s choice of means. In cases involving deprivation of property, it has stated in the oper ative provisions that the State must return the property to the applicant [3] . It is true that it has not viewed that obligation as being totally mandatory, as it stipulates in the judgments that “failing such restitution ... ” the State must pay certain sums to the applicant. In other words, r estitutio in integrum is only compulsory in cases of this type to the extent that it is feasible (such a proviso being necessary , inter alia , to protect the rights of third parties acting in good faith).

6. In any event , while an order by the Court requiring a State to achieve a specific result offers the advantage of simplifying the Committee of Ministers ' task, it also complicates it in some ways. Under the system that operated before Protocol No. 11 came into force, in cases in which, instead of being responsible for supervising the execution of a Court judgment [4] , the Committee of Ministers had itself decided that there had been a violation of the Convention [5] , the States undertook to treat any decision of the Committee of Ministers as binding [6] . Under the current system, that State obligation to the Committee of Ministers has, at least on the face of it, disappeared, although that does not prevent the Committee of Ministers, when supervising the execution of a judgment in accordance with Article 46 § 2 as now worded, from relying on paragraph 1 of that Article, which provides: “The [States] undertake to abide by the final judgment of the Court in any case to which they are parties. ”

7. The more specific the wording of the judgment, the easier the Committee of Ministers ' task of supervising the execution of measures imposed on the States becomes from the legal perspective. However, that is not necessarily true of the political aspects, since, if it has no choice as to the measures to be implemented, the respondent State will be left with only one alternative: either to comply with the Court ' s order (in which case all will be well), or to run the risk of blocking the situation.

8. The present case thus gave considerable pause for thought. T he continued detention, without any legal basis, of a person acquitted in a final judgment nearly three years ago, constitutes a flagrant denial of justice to which the Court had to respond with exemplary firmness, but, equally, the practical difficulties of enforcing the judgment called for caution. Although the authorities of the Autonomous Republic of Ajaria have yet to release the applicant, this has not been for want of action on the part of the central government authorities [7] , who have repeatedly called for and sought to obtain his release from prison. Paragraphs 59 to 71 of the judgment are sufficiently clear on this point. The question that arises, therefore, is whether the Court should have waited for a more suitable opportunity to take this step forward in its case-law. Similarly, is there not a risk that the Committee of Ministers will find itself faced with a situation which, albeit straightforward legally, is highly complex in practice?

9. I have pondered each of these objections. Two series of considerations have been instrumental in my rejecting them. As regards principle, which is the most important factor, it would have been illogical and even immoral to leave Georgia with a choice of (legal) means, when the sole method of bringing arbitrary detention to an end is to release the prisoner. From the factual standpoint, at a time when relations between the respondent State and its decentralised entity have changed considerably and are still evolving, the wording adopted by the Court in its judgment ought to help put a stop to what is a glaring injustice that has gone on for far too long, especially as Georgia will remain responsible for a continuing violation of Article 5 § 1 of the Convention until such time as Mr Assanidze is released.

10. In any event , it is my hope that this judgment will be followed by the applicant ' s release as soon as possible. I would also note that the Court has taken what to my mind represents a welcome and logical step forward from the aforementioned restitution of property cases, as, rather than deciding that Georgia must pay the applicant compensation if it fails to secure his release, it has ruled that the payment obligation is additional to and does not in any way lessen the obligation to secure his release.