PARTLY DISSENTING OPINION OF JUDGES O’LEARY AND HÜSEYNOV

1. We are, regretfully, unable to join our colleagues in rejecting as inadmissible that part of the applicant’s complaint under Article 3 of the Convention which relates to alleged physical abuse during his arrest.

2. By splitting the applicant’s Article 3 complaint in two (see §§ 56 – 65 of the Chamber judgment), the majority have, in our view, misunderstood the nature of the applicant’s complaint, which related to a sequence of continuous events occurring during and just after his arrest. They have also applied in an unduly formalistic manner the rule of exhaustion of domestic remedies and the six-month rule. This approach was not only unnecessary, but it is also contradicted by parts of the analysis on the merits of the Article 3 complaint relating to the strip search. As indicated below, several references to the applicant’s broader complaint of physical abuse on arrest, and its consequences, resurface in the judgment on the merits.

3. The need to apply the rule on exhaustion with some degree of flexibility and without excessive formalism, given the context of protecting human rights, has been emphasised on a number of occasions (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 87, 9 July 2015 and the authorities cited therein). If more than one potentially effective remedy is available, the applicant is only required to have used one of them (see for example Aquilina v. Malta [GC], no. 25642/94, § 39, 29 April 1999 or Karakó v. Hungary , no. 39311/05, § 14, 28 April 2009). When one remedy has been attempted, use of another remedy which has essentially the same purpose is not required (see, for example, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019). The Court has emphasised that applicants must comply with the applicable rules and procedures of domestic law, failing which their application is likely to fall foul of the condition laid down in Article 35 (see for example Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 72 and 80, 25 March 2014). However, where an appellate court examines the merits of a claim even though it considers it inadmissible, Article 35 § 1 will be complied with (see, implicitly, Voggenreiter v. Germany , no. 47169/99, 8 January 2004). As regards the six-month rule, that period runs from the final decision in the process of exhaustion of domestic remedies (see Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018). The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule ( Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016; Alekseyev and Others v. Russia , nos. 14988/09 and 50 others, §§ 10-16, 27 November 2018). Only remedies which are normal and effective can be taken into account. An applicant cannot thus extend the strict time-limit imposed by the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention ( Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 132, 19 December 2017).

4. In the instant case, the applicant was arrested at Tbilisi International airport at 10.15 p.m. on 27 September 2008. His article 3 complaint relates to physical abuse to which he claimed he was subject during and after his arrest and the manner in which a strip search immediately after his arrest was performed, without a prior judicial warrant on grounds of alleged urgency. The applicant’s Article 3 allegations thus relate to a period of thirty minutes following his arrest during which time he claims that he was kicked in the stomach, slapped in the face, made to strip naked, do sit-ups, kicked and subject to repeated anal inspections, lost consciousness and was filmed by attending police officers on their mobile phones.

5. On 13 October 2008 the applicant’s lawyers complained to the regional prosecutor’s office that during the arrest and search he had been subject to physical abuse and humiliation, that the strip search had been conducted by unauthorised personnel and that it had been the subject of unauthorised recordings on the mobile phones of several officers (§ 20). This complaint was rejected by the competent prosecutor on 17 October 2008. An appeal was lodged on 28 October 2008 with the Prosecutor General’s Office to which no reply was received (§ 24). Complaints to the Ukrainian consulate, the Public Defender of Georgia and the President of Georgia were forwarded to the prosecutor and the trial judge in charge of his case in November and December 2008 (§ 26). This yielded no results. On 28 September 2008 the regional prosecutor applied to a court to validate retroactively the search which had been performed urgently the previous day. The court examined the application in writing and the applicant was not permitted to submit any observations. The applicant did not appeal, within the designated seventy-two hours, the retroactive decision to validate the search pursuant to Article 293 of the CCP (§ 31). Prior to the applicant’s trial, his lawyers sought to have excluded as inadmissible certain parts of the gathered evidence due to the serious violations which had taken place during the arrest and search. Police officers and an interpreter who had been present during the arrest and search were questioned by the investigator who was in charge of the applicant’s case. The investigator had himself participated in the arrest and search. When the trial was opened on 27 April 2009, the applicant submitted a written statement describing the arrest and search in detail, requested that all the arresting officers and the interpreter be questioned, protested his innocence, claimed, inter alia, that he had been physically and psychologically ill-treated during the search and requested the exclusion of inadmissible evidence in accordance with Articles 110 and 111 of the CCP (§§ 39 – 40). This request was rejected in its entirety by the trial judge on the grounds that the search had been conducted by an authorised officer and his ill-treatment allegation was unsubstantiated (§ 41). When finding the applicant guilty on 18 June 2009, the trial court held that the applicant had fabricated his version of the arrest and search in order to evade criminal responsibility and that the minor injuries found on the applicant did not correspond to the scale of violence which he claimed to have suffered (§ 46). The applicant’s appeal maintained the claim that he had been subject to physical and verbal abuse during the arrest and strip search and that the manner in which the strip search had been carried out constituted inhuman and degrading treatment (§ 49). The appeal court refused to declare the body search and material evidence it had allegedly produced inadmissible and concluded that “the available evidence did not support the allegations of physical violence”.

6. According to the majority, the applicant should have pursued two different procedural paths at domestic level in relation to a) his allegation of physical abuse at the time of his arrest and b) his alleged ill-treatment as a result of the manner in which the strip search was performed just after it. When the complaint lodged by his lawyers on 13 October 2008 − which covered both limbs of what in essence was an Article 3 complaint – was rejected by the competent prosecutor on 17 October 2008, the majority claim that the applicant should have known that no investigation had been instigated into his allegations of physical violence and that there was no realistic prospect of one being provided in the future (§ 60). No judicial appeal lay against the prosecutor’s refusal we are told. The majority reject the applicant’s argument that raising allegations of physical abuse in the subsequent trial constituted an effective remedy as, according to the majority, the trial court was not authorised to order a preliminary investigation into those allegations and could not direct the prosecutor to do so (§ 61). Two Georgian decisions in which a trial was similarly deemed not to constitute an effective remedy in relation to Article 3 allegations of physical abuse are cited in support of this approach. As such, according to the majority, time started running in relation to the allegations of physical abuse on 17 October 2008, rendering this part of the applicant’s Article 3 complaint, which he lodged on 20 January 2011 some months after his conviction, as out of time. In contrast, the applicant’s complaint in relation to the manner in which the strip search was carried out is not considered to have been lodged out of time. Firstly, the rejection of this complaint by the prosecutor in October 2008 did not preclude the trial court from examining it. Secondly, pursuant to the relevant provision of the CCP in relation to inadmissible evidence, this part of the Article 3 complaint could and should have been examined by the trial court (§ 64).

7. Our disagreement with our colleagues is based on a number of factors.

8. First, the applicant based his article 3 complaint on a continuous series of events or actions which allegedly took place in the space of approximately thirty minutes. It strikes us as entirely artificial to separate the abuse complained of into two separate incidents and to expect the applicant to pursue two separate domestic remedies and, if necessary, come to this Court on two separate occasions several years apart.

9. Second, and most importantly, the applicant pursued these complaints jointly before the domestic authorities; first at the level of the prosecutor and then at the level of the trial court and on appeal. More importantly, both the trial and appeal courts responded to the two related aspects of his Article 3 complaint, namely the preliminary physical abuse on arrest and the subsequent physical and psychological abuse during the strip search. As indicated previously, even if this may have been incorrect in terms of the letter of domestic law (a point on which we are neither convinced nor competent to pronounce), where an appellate court has examined the merits of a claim, even though it considers it inadmissible, Article 35 § 1 will have been complied with.

10. Third, one of the reasons for excluding what is treated as the first limb of the applicant’s Article 3 complaint (physical abuse during the arrest) is because the trial court in regard to that complaint could not order a preliminary investigation into the events complained of or direct the prosecutor to do so (§ 61). However, when examining the merits of what is considered the other limb of the applicant’s Article 3 complaint (strip search), the Chamber judgment recognises that the trial court was “under an obligation to do no more than examine whether the evidence obtained as a result of the search had in fact been obtained by inhuman and degrading treatment ... without there being a possibility that they could also proceed to holding responsible any perpetrator” (§ 73). Thus, in reality, the trial court was competent to perform only the one task the applicant asked of it – establish whether in the period of thirty minutes during and after his arrest he had been subject to inhuman and degrading treatment whether in relation to the physical abuse alleged or the manner in which the search was performed – and, if so, draw the necessary consequence for his trial, namely exclude the evidence obtained unlawfully. What it could not do in relation to the physical abuse alleged it could also not do in relation to the unlawfully performed strip search, namely investigate and prosecute the perpetrator(s) of the alleged abuse whether committed during the arrest or subsequently during the search. That does not mean raising the two limbs of his Article 3 complaint before the trial court was not an effective remedy for both limbs.

11. Fourth, when examining the admissible Article 3 complaint in relation to the strip search on the merits, the Chamber judgment is itself unable to distinguish it from the instances of physical abuse complained of (and the consequences thereof). Thus, in § 74, for example, the medical requests made by the applicant and refused, to which reference is made, were requests made because of the physical injuries (bruising, dizziness, suspected broken ribs and high blood pressure) which the applicant claimed to have sustained following the alleged physical abuse.

12. Fifth, the six-month rule is applied by the majority because when the complaint to the prosecutor was rejected, they consider that the applicant should have known that there was no prospect of an investigation being undertaken in the future (§ 60). However, how could the applicant have known that his appeal of 28 October 2008 to the Prosecutor General’s Office would receive no response? Furthermore, as indicated in §§ 52-53 of the judgment, in 2012-2013 an investigation was initiated and is still ongoing, rendering the “no prospect” line of reasoning somewhat redundant.

13. Finally, the applicant’s complaint in relation to the alleged physical abuse is rejected as being out of time – the trial not having been considered an appropriate forum to raise it – based on what is claimed to be well ‑ established case-law. However, when one looks closer at the Georgian precedents referred to, particularly Manukian v. Georgia (dec.), no. 49448/08, 3 May 2016, it becomes clear that it is not on all fours with the present case. The applicant in that case was a prisoner when the events which led to his allegations of ill-treatment and gave rise to criminal proceedings against him and other inmates occurred. He lodged no criminal complaint with the prosecuting authorities which, according to the Court “was the remedy normally available in Georgian law in respect of inhuman and degrading treatment allegedly caused by prison officials” (see § 33 of the decision in Manukian , cited above). This was not the case for the present applicant. The Committee of three judges in the Manukian case also relied on the same reasoning now employed by the Chamber (namely that the trial court could not order a preliminary investigation into the allegations nor direct a prosecutor to do so). However, for the reasons already outlined above, this is not a sufficient basis to conclude that a trial court is, in certain circumstances, not an appropriate forum for raising allegations in relation to Article 3. The fact that the trial and appeal courts did not admit an applicant’s complaint or that a prosecutor remained passive throughout the proceedings should not render a potentially effective remedy ineffective. It simply demonstrates that it was not effective in a given case. We are not in a position to determine whether Article 50 of the Georgian CCP (which enjoins a court, if appropriate grounds exist, to issue a decision), corresponds to a judicial discretion or something more. Suffice it to say that in relation to the strip search the Chamber judgment considers it sufficient that “it cannot be excluded that a finding by the trial court in the criminal proceedings (of inhuman and degrading treatment) could trigger separate proceedings against a perpetrator”. Thus, there is no real difference between the two parts of the applicant’s Article 3 complaint in terms of how the trial court could have dealt with them.

14. We are concerned that by splitting an Article 3 complaint in the manner done here – particularly when what is at issue is a continuous series of related events occurring in a very reduced period of time – the Court is rendering the task of complainants excessively difficult without any need or justification for such formalism. If there are particularities in the Georgian system of remedies then of course these must be recognised and accommodated but there is no need to render excessively difficult an applicant’s effective access to this Court in the process.

15. For the rest, we agree with the Chamber’s finding of a violation of Article 6 § 1 in the applicant’s case, resulting from the failure of the trial court to engage adequately with ill-treatment allegations which potentially tainted use of the evidence on which the conviction was based. As for Article 3, the finding of a procedural violation stems from similar deficiencies in the investigation and assessment of the applicant’s allegations in this regard.

[1] 308 U.S. 338, 341 (1939)

[2] Jannatov v. Azerbaijan , no. 32123/07, 31 July 2014.

[3] 364 U.S. 206, 217 (1960)

[4] 277 U.S. 438 at 469, 471 (1928)

[5] United States v. Leon, 468 U.S. 897, 933 (1984)

[6] Merin, Yuval. Lost between the Fruits and the Tree: In Search of a Coherent Theoretical Model for the Exclusion of Derivative Evidence (March 29, 2015). 18 New Criminal Law Review 273.