PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

In addition to my concurring opinion with Judge Yudkivska and Judge Lemmens, I dissent with regard to the finding that the first applicant ’ s complaint of a violation of Article 3 of the Convention on account of the intensity of the court hearing schedule is manifestly ill-founded. To my mind, the very early pick-up and late drop-off times, which left the first applicant with less than eight hours per day to have some rest and recuperate, attained the threshold of severity required to characterise them as degrading treatment within the meaning of Article 3 of the Convention. It is telling to me that the Government did not even comment on the applicant ’ s submissions on this point (see paragraph 188 of the judgment), thereby implicitly accepting that Article 3 had indeed been infringed in this regard. Hence, I do not understand why the majority downplayed this degrading conduct by merely considering it under Article 6 and not under Article 3. The majority ’ s legal reasoning on this point is quite contradictory: on the one hand, they admit that the “cumulative effect of exhaustion caused by lengthy prison transfers leaving less than eight hours of rest, repeated for four days a week over a period of more than four months, must have seriously undermined the first applicant ’ s ability to follow the proceedings, make submissions, take notes and instruct his lawyers” (see paragraph 254 of the judgment), but on the other hand they do not acknowledge that this same seriously damaging conduct had the effect of degrading the applicant to the level of a mere object in the hands of the authorities. In my view, the extremely tiring early pick-up and late drop-off times, the excessively intensive hearing schedule and the lengthy prison transfers were the source not only of the breach of the right to a fair procedure under Article 6 acknowledged by the majority (see paragraph 255 of the judgment), but also of a violation of the prohibition of degrading treatment under Article 3, which the majority failed to recognise.

CONCURRING OPINION OF JUDGE KELLER

1 . I agree with the Court that Mr Udaltsov ’ s complaint under Article 18 of the Convention should not be examined. However, it seems right for me to explain the reasoning by which I arrived at this conclusion as I have disagreed with the Court on this issue in previous cases (see, for example, my partly dissenting opinion in Kasparov v. Russia , no. 53659/07, 11 October 2016, and my joint partly dissenting opinion with Judges Nicolaou and Dedov in Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, 23 February 2016).

2 . In the present case, I consider that Mr Udaltsov has failed to substantiate his claim under Article 18. The essence of an Article 18 complaint is that a Convention right was restricted chiefly for a purpose not prescribed by the Convention (see Merabishvili v. Georgia [GC], no. 72508/13, § 305, 28 November 2017). In the single paragraph of his observations addressing Article 18, Mr Udaltsov submitted that his criminal prosecution might have a chilling effect on him and others who publicly criticised the Government. However, he did not argue that his prosecution had been undertaken for a purpose such as a “hidden agenda” to silence him (contrast Ilgar Mammadov v. Azerbaijan , no. 15172/13, §§ 133-44, 22 May 2014). Because of Mr Udaltsov ’ s omission in this regard, the Court could only consider the purposes for the prosecution asserted by the Government: the prevention of disorder and crime and the protection of the rights and freedoms of others. These are legitimate aims, as reflected in paragraph 288 of the Court ’ s judgment.

3 . The Court would accept the predominance of an ulterior purpose such as the silencing of criticism, which is alien to the ideals and values of a democratic society governed by the rule of law (see Merabishvili , cited above, § 307). However, since Mr Udaltsov has failed to assert an ulterior purpose, it is unnecessary to consider Article 18. My conviction in this regard is strengthened even more by the fact that the second applicant did not submit that the “hidden agenda” of the authorities was a fundamental aspect of this case (contrast Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 156, 15 November 2018). As the Court notes at paragraph 305 of its judgment, his argument as to Article 18 was essentially the same as that made with respect to Articles 10 and 11 of the Convention. It should be noted that Mr Udaltsov is in a rather unfortunate situation. He made his submission in 2016, before the judgments in Merabishvili (28 November 2017) and Navalnyy (15 November 2018) were handed down (see Navalnyy , cited above, § 165, and Merabishvili , cited above, §§ 309-17). At the time when he made his observations, the criteria for a prima facie claim might thus not have been so clear in the Court ’ s case-law. Nevertheless, after Merabishvili and in the absence of a claim that this aspect of the case is fundamental, there is nothing to induce the Court to deviate in this case from its settled practice, which is not to engage with questions that it has already examined under other provisions of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

4 . Moreover, Mr Udaltsov should have offered some evidence to make out a prima facie case. The Court has made it clear that applicants may rely on inferences and “unrebutted presumptions of facts” and that it will be more easily persuaded if the alleged purpose is particularly reprehensible or the Convention right at stake is especially significant (see Merabishvili , cited above, § 314).

5 . Mr Udaltsov ’ s position as a political activist and a member of the opposition to the government does not by itself warrant an examination under Article 18 ( ibid., § 323). Regrettably, he invoked Article 18 without properly substantiating his claim. I therefore agree with the Court that it is unnecessary to examine this aspect of his complaint.

APPENDIX

List of applications

1. 75734/12 Razvozzhayev v. Russia and Ukraine

2. 2695/15 Udaltsov v. Russia

3. 55325/15 Razvozzhayev v. Russia