JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA, Sir Nicolas BRATZA AND THOMASSEN

We are in complete agreement with the conclusion and reasoning of the majority of the Court save as to the finding that the failure to comply with the judgment acquitting the applicant infringed Article 6 § 1 of the Convention and that, in consequence, no separate examination of the complaint under Article 5 § 4 was called for. In our view, the conclusion should have been reversed and a violation of Article 5 § 4 found, without the necessity of examining the case separately under Article 6.

The essence of the applicant ' s claim under the Convention is that, notwithstanding his acquittal o n all the charges against him by a final judgment of the Supreme Court of Georgia, he has continued to be detained in violation of domestic law and without any lawful basis since 29 January 2001 . This has quite correctly resulted in the Court ' s finding that the applicant has been arbitrarily detained since that date, in breach of the provisions of Article 5 § 1.

In holding that the refusal to comply with the judgment of the Supreme Court acquitting the applicant additionally violated Article 6 of the Convention, the majority of the Court have adapted and applied the principle first expounded in Hornsby v. Greece (judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II) to the effect that the “right to a court” of which the right of access constitutes one aspect, would be illusory if a State ' s domestic legal system allowed a final, binding decision to remain inoperative to the detriment of one party. As the Court went on to observe in its judgment in that case, it would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions.

However, Hornsby , and subsequent decisions of the Court applying the principles there stated, involved civil rather than criminal proceedings. We are not persuaded that the reasoning of the Court – with its references to access to a court, to the execution of judgments and to the necessary measures to comply with a final, enforceable judgment (see paragraphs 40-45 of Hornsby ) – can be easily transposed to the case of a defendant in criminal proceedings. This is the more so where, as in the present case, a defendant is acquitted by a final judgment of a court, where in general there is nothing for the national authorities to execute and where no measures are necessary to comply with the judgment . Further, the Court ' s reliance in Hornsby on the fact that the procedural guarantees under Article 6 would otherwise be illusory has much less force in the case of the acquittal of a defendant, having regard to the well-established case-law of the Convention

organs that an applicant who is acquitted cannot in any event claim to be a victim of a violation of such procedural guarantees.

Moreover, since the failure of the national authorities to comply with the judgment of the Supreme Court is at the heart of the Court ' s finding of a breach of Article 5 – to which as the lex specialis in the sphere of liberty and security of person the case more naturally belongs – we see no necessity in any event for a separate and additional finding under Article 6 directed specifically to the failure of compliance itself.

On the other hand, we consider that there is a separate and distinct problem under Article 5 § 4, which confers on a person deprived of his liberty the right to take proceedings by which the lawfulness of his detention shall be decided speedily and his release ordered if the detention is not lawful. It is an inherent requirement of this provision that the national authorities should promptly comply with any such order for release. The Government argue that the applicant has at all times been able to challenge the lawfulness and merits of his detention before the domestic courts. While this may be formally the case, the submission wholly ignores the reality that such an application would have been fruitless. In the present case, the Supreme Court did not confine itself to quashing the applicant ' s conviction and dismissing the criminal proceedings against him. It went further by ordering his immediate release. While the order for release was made at the end of the criminal proceedings against the applicant and not in a separate challenge to the lawfulness of his continued detention, the fact that for a period of over three years the authorities have consistently refused to respect or give effect to the order of the Supreme Court of Georgia is the clearest evidence of the ineffectiveness of the remedy in the case of the present applicant and of a violation of the Stat e ' s obligations under Article 5 § 4 of the Convention.

[1] . Marckx v. Belgium , judgment of 13 June 1979 , Series A no. 31, p. 25, § 58.

[2] . Former Article 53 of the Convention.

[3] . See Papamichalopoulos and Others v . Gr ee ce ( Article 50) , judgment of 31 October 1995, Series A no. 330-B , and Brumă rescu v . Romani a ( just satisfaction ) [GC] , no. 28342/95, ECHR 2001-I.

[4] . Under former Article 54 of the Convention.

[5] . As it had power to do under former Article 32 .

[6] . In accordance with paragraph 4 of that provision .

[7] . Who are rightly held solely responsible for the breach of the Convention in the present judgment ( see paragraph 150 ).