PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1. I voted against point 5 of the operative part of the judgment, that is to say the finding by the majority that the applicant ’ s complaint under Article 8 of the Convention merited no separate examination. In my opinion, it in fact did. That finding is based on the application of the so-called Câmpeanu formula, a sparing one-sentence consideration that, owing to the fact that the Court “has examined the main legal questions raised in the present application”, it is absolved from the “need to give a separate ruling on the admissibility and merits of the [remaining] complaint”. This condensed consideration is to be found in paragraph 189 of the judgment, in which the reference is made to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 17 July 2014 and into which the template was copied verbatim from paragraph 156 of that judgment .

Truth to tell, the case of Centre for Legal Resources on behalf of Valentin Câmpeanu was not the one where the Câmpeanu formula was first introduced. It was used in several earlier cases. But it was specifically that case which bestowed its name on the formula in question in the internal argot of the Court, because it was in that judgment that that formula was consolidated as a template to be employed in subsequent cases – which is exactly what is happening since (see paragraph 52 below).

2. In the instant case, before turning to the applicant ’ s complaint under Article 8, the Court had already examined his two complaints under Article 3 and found a violation of that Article on two accounts. Consequently, the complaint under Article 8 was left unexamined, as regards both its merits and, indeed, its admissibility.

I

3. By the “main legal questions” the majority meant the questions raised in the applicant ’ s two complaints under Article 3. One of them related to the conditions of the applicant ’ s detention (one part of this complaint, which pertained to the material conditions of detention, was rejected as manifestly ill-founded, but another part, concerning the lack of adequate medical care, was declared admissible and was examined on the merits); the other to the irreducibility of his life sentence. I have no objections to the finding of a violation of Article 3 as regards both Article 3 complaints which were declared admissible.

4. Apropos of the second of the above-mentioned complaints, the applicant was sentenced for life even before the Vinter era (see Vinter and Others v. the United Kingdom , nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He lodged his application on 11 June 2013, that is to say almost one month before the delivery of that landmark judgment. At that time the leading case on the issue of the (ir)reducibility of life sentences was Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008. Under the Kafkaris principles, the applicant ’ s life sentence would most likely have been considered reducible, and no violation of Article 3 would have been found. With the advent of Vinter and Others , however, the Court ’ s approach changed radically, this conversion being confirmed in a series of subsequent judgments.

All the same, even now there still persists a question as to at what time and by which domestic body the particular violation of Article 3 on account of the irreducibility of the applicant ’ s life sentence was committed. The materiality of this question proceeds from the trivial fact that every concrete violation of law (and of the law of the Convention in particular) as such is always committed not only in a specific place, but also at a specific time, and, last but not least, by a specific “transgressor”. Still, this question was never addressed by the Court – neither in the context of any particular pre- Vinter life imprisonment situation examined by it, nor as a general, across-the-board issue. For all one knows, it may never be addressed. Even if at this stage of development of the Court ’ s case-law on life imprisonment this awkward question (or rather an assemblage of several associated questions) can be regarded as predominantly theoretical or overly analytical, it can by no means be discounted, at least not wholly.

But I shall not delve into these intricacies here. On this matter I refer to my two separate opinions (one dissenting and another one concurring) in T.P. and A.T. v. Hungary , nos. 37871/14 and 73986/14, 4 October 2016 and Matiošaitis and Others v. Lithuania , nos. 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69428/13 and 72824/13, 23 May 2017.

5. Be that as it may, the Court ’ s well-established (how “well”?) case-law, as it stands today, conclusively left no room for a different finding on the above-discussed issue. The same holds true for the finding of a violation of Article 3 on account of the conditions of the applicant ’ s detention (the broad concept, which in this particular case was limited to the lack of adequate medical care). I therefore concurred with my colleagues in the Chamber as regards these findings.

6. At the same time, I was not able to support the majority ’ s resolution not to examine the applicant ’ s complaint under Article 8.

The underlying complication relates not so much to the unexamined complaint of this particular applicant – although the very fact that his grievance as regards visits in detention was left not properly addressed is embarrassing in itself. The prime problem lies with the tool which was employed in the instant case for the disqualification of the applicant ’ s complaint under Article 8 and which, if used too often and indiscriminately (even if it may not be not unwholesome in and of itself), may hinder the protection and promotion of various Convention rights on even a broader scale.

The name of that underlying problem is the Câmpeanu formula.

II

7. Normally, applicants complain to the Strasbourg Court not for the sake of experiencing the dubious pleasure of litigation, in the course of which (as a subsidiary product of the examination) certain legal issues of broader importance may be (and often are) tackled: they complain about factual situations unpropitious to them, which they want to be straightened out. Perhaps the lion ’ s share of all the applications lodged contain not one but several complaints (or, as is sometimes the case, the first application is followed by further applications from the same applicant), which, in the applicants ’ view, either pertain to different factual situations (or different aspects of the same factual situation) or should be legally assessed under not one, but several provisions of the Convention. Such complaints are formulated as separate. Yet they may in fact overlap with each other, because they either share the same factual background , or invoke interrelated provisions of the Convention. Such overlapping, or interrelatedness, of the same applicant ’ s complaints may allow (or at times even require) the Court to treat them as raising the same legal issue and, given that that issue has already been examined (at least in essence, if not in every detail) from one angle, factual o r legal, to resolve that its re ‑ examination from a different angle is not required.

8. The interrelatedness of complaints is both an asset and a liability for the Court, which, as is well-known, is overloaded with a backlog of pending cases (one colleague of mine has jokingly, but aptly called the Strasbourg Court “the biggest legal factory in the world”). It is an asset, as it allows for some of the complaints being left unexamined – and to do this to no one ’ s, even the applicants ’ , detriment. By choosing not to examine separately each and every one of the overlapping complaints, the Court actually saves time and other resources, but still fulfils its mission. However, the interrelatedness of complaints is, or most certainly can become, also a liability, because the temptation to leave some complaints unexamined based on the sole premise that they are interrelated – and in this way to lighten the Court ’ s docket – may be too strong to be effectually resisted. If such a temptation seizes the judicial mind, what I just have called a “premise” may in fact only be a pretext, or excuse.

9. In order to reasonably and legitimately perceive and treat the same applicant ’ s complaints allegedly pertaining to different factual situations (or different aspects of the same set of facts) or lodged under different Articles as two sides of the same coin, some sort of linking element is needed, which would bring them together as two aspects of the same whole.

The basis for the grounds on which the same applicant ’ s complaints may be legitimately considered to be interrelated can derive from one of the two domains (or both of them). These domains are: (i) the realm of the reality of life, that is, the concrete factual circumstances, in which the controversy, which was presented for the Court ’ s examination, originated; and (ii) the province of law per se , that is to say, the provisions of the Convention itself. Tertium non datur . If the necessary linking element is not to be found in the realm of facts, the only other domain where it could be sought – and perchance found – is that of the legal provisions themselves.

This crucial distinction should be never lost sight of whenever the Court is faced with two or more complaints from the same applicant, be they contained in one single or two or more separate applications: the Court must consider whether they merit a separate examination or they are interrelated and some of them may be left unassessed. Had this distinction not been overlooked in the instant case, this opinion would have not been written. Below I shall deal consecutively with these two spheres and their bearing on the actual or alleged interrelatedness of complaints.

10. In deciding whether some of the same applicant ’ s complaints may be legitimately left unexamined as being interrelated with those which the Court has already examined, their factual interrelation is a necessary prerequisite , a sine qua non . If the factual background of one complaint overlaps with that of another, it may be legitimate (but not necessarily preferable) not to examine anew what is essentially the same complaint, because that would be redundant (by the way, such a choice would tally with an additional, pragmatic, consideration as to the celerity of examination and economising the Court ’ s resources). Faced with such a choice, the Court may exercise its discretion and resolve that separate examination of the other complaint, which is only nominally separate from the one already examined, is not necessary . However, such resolution does not mean in and of itself that the same factual situation cannot or should not be examined from the standpoint of two or more Articles: for the determination of this aspect another criterion, which refers to the domain of legal provisions, must be employed (see paragraphs 11-13 below).

If, however, two or more complaints concern unrelated factual situations, that is to say, if they do not share the same factual background, they must be dealt with as separate, even if they both (all) invoke the same Article. There cannot be any legitimate rationale behind otherwise admissible complaints being left unexamined. And there is none. The only discernible rationale for such a manoeuvre would be the celerity of the examination of the case. Such a consideration would be laudable as pragmatic and in this sense reasonable, but pragmatic is by no means necessarily equivalent to legitimate. Not infrequently it is the reverse.

11. Now to the legal , or formal , interrelation of complaints. This proceeds from the law of the Convention itself. The legal, or formal, interrelatedness of complaints may be a decisive factor in cases in which the Court is called upon to deal with the same factual situation, which is challenged not from one but from several angles, that is to say from the standpoint of two or more different Articles.

As it happens, in many applications the same factual situation serves for a bombastic invocation of rather a large number of Articles (which, quite understandably, may arouse suspicion as to the well-foundedness of some of the complaints). More often than not the examination of some of the multiple challenges set out indeed proves redundant. Even so, the challenging of the same factual issue from the standpoint of several Articles is not in and of itself superfluous. The Convention was not meant to be compartmentalised in the sense that its Articles (at least many of them), enshrining individual rights and freedoms, should be applicable to one area only, to which other Articles had no access. Nor, conversely, was it intended to render its Articles (or many of them) inapplicable to the areas to which other Articles were applicable. The provisions of the Convention concur, and this to no small extent; the subject matter of certain Articles overlaps, fully or in part, with the subject matter of other Articles. Some Articles are absorbed, fully or in part, by (subsumed by, subordinate to etc. – the Court has used different terms in its case-law to describe the overlapping of the subject matter of various Articles) other Articles and in this sense are lex specialis in relation to the latter, and those other Articles are lex generalis . For example, in particular (although not exclusively) where the right claimed is a civil one, Article 6 § 1 is regarded in the Court ’ s case-law as a lex specialis in relation to Article 13, which is a lex generalis ; in a similar vein Article 11 is regarded as a lex specialis in relation to Article 10, which is a lex generalis .

If the complaint regarding the same factual situation invokes both a lex specialis and a lex generalis , then, once a violation of the Convention has been found based on a lex specialis , the re ‑ examination of the same matter under a lex generalis may be redundant. In such an event the Court has the discretion to resolve that a separate examination of the same complaint under lex generalis is not necessary.

12. It must be underscored again and again and again that this can be so only with regard to the same complaint. If, however, there is no commonality of the two complaints lodged by the same applicant at the level of their factual background, the fact of leaving one of them unexamined on the pretext that the Articles invoked by the applicant are a lex generalis and a lex specialis in rela tion to each other would be far ‑ fetched.

13. To conclude, whereas the factual background criterion allows the Court to decide that some factually interrelated complaints may be legitimately left unexamined on the basis of the assessment that the plurality of factual issues raised in them is only nominal, the criterion of the link between the legal provisions can only be employed to the one single factual issue , with regard to which more than one Article was invoked, and allows for the non-examination of that issue under certain Articles, if their provisions overlap to some significant extent with those of the Articles under which that complaint was already examined.

Accordingly, where the Court deals with a plurality of factual issues and has to establish whether that plurality is real or only nominal, the factual background criterion is an indispensable yardstick, and the shared factual background a necessary condition for resolving that some complaints are to be left unexamined; the link between the provisions of the Convention is a criterion, applicable only when it has been established that the plurality of factual situations complained of was only nominal. The legal link criterion is thus auxiliary .

III

14. The foregoing considerations as regards the legal (formal) interrelation of complaints pertains to those under Articles 3 and 8, when they are lodged by the same applicant. These two Articles have not been regarded in the Court ’ s case-law as overlapping, let alone as a lex generalis and a lex specialis in relation to each other. Accordingly, a complaint under Article 8 should not be seen a priori as being covered by a complaint under Article 3 (as it is, for example, with complaints under Articles 11 and 10).

15. This, however, does not completely exclude the possibility that in the particular circumstances of a specific case a complaint under Article 8 can be embraced, in whole or at least in part, by a complaint under Article 3. That is because any ill-treatment, which is proscribed by Article 3 (torture, inhuman or degrading treatment or punishment), inherently also involves some encroachment upon the person ’ s or his or her family ’ s private life, respect of which is protected by Article 8; on the other hand, an intrusion into the person ’ s (or even his or her family ’ s) privacy may assume forms which hardly could be called ill-treatment in the specific sense of Article 3. But a similar relation may be said to exist between Articles 8 and 2, 8 and 4, 8 and 5 and so on.

16. The links between the subject matter of Articles 3 and 8 therefore do not per se allow for treating these two Articles as overlapping in the proper sense of the word, let alone as lex generalis and lex specialis in relation to each other. Articles 3 and 8 remain separate legal territories – but such as are not completely isolated one from another and which, depending on the particular circumstances, can be bridged.

17. For example, in Melnik v. Ukraine , no. 72286/01, § 62, 28 March 2006, the Court acknowledged that Article 8 may extend to situations of deprivation of liberty and may be regarded as affording a protection in relation to the conditions during detention which do not attain the level of severity proscribed by Article 3. This possibility of extension owes in particular to the fact that the notion of “private life” is a broad one and is not susceptible to exhaustive definition, but covers the moral and physical integrity of the person and thus embraces multiple aspects of the person ’ s physical and social identity (see, as one of the most recent authorities, Denisov v. Ukraine [GC], no. 76639/11, §§ 95-96, 25 September 2018; but note also Abu Zubaydah v. Lithuania , no. 464454/11, § 664, 31 May 2018, and Al Nashiri v. Romania , no. 33234/12, § 697, 31 May 2018, which, although adopted earlier, became final subsequently to Denisov (on 8 October 2018) and in which the interpretation of the notion of “private life” as covering the moral and physical integrity of the person is hedged with the caveat “depending on the circumstan ces”). In Melnik the Court found violations of Articles 3 and 13, but, referring to Nuray Åžen v. Turkey (no. 2) , no. 25354/94, 30 March 2004 and Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004, held, already in its preliminary considerations, that it was “not appropriate to take [also the matter of the State ’ s alleged interference with the applicant ’ s right to correspond from prison] up separately at this stage”, notwithstanding that this complaint under Article 8 was not an “elaboration” of that under Article 3 (paragraph 63). No less meaningful for such a resolution was the fact that the applicant ’ s complaint under Article 8 was lodged after the communication to the respondent Government of his several initial and later also additional complaints under Articles 3 and 13. In these particular circumstances of that case any claim that the complaint under Article 8 was left unexamined owing specifically to its legal link with Article 3 would be shaky. In addition to that, when considering that Article 8 may extend to situations of deprivation of liberty and afford protection in relation to conditions during detention (which is a “natural” domain of Article 3), the Court referred to Raninen v. Finland , 16 December 1997, § 63, Reports of Judgments and Decisions 1997 ‑ VIII ; curiously enough, in the latter case the Court, despite the general acknowledgment of the possibility of the legal interrelatedness of the complaints under Articles 3 and 8, found no violation of Article 3 (but it found violations of Article 5 §§ 1 and 2), and then held that no separate issue arose under Article 8, because the “applicant based [this] complaint ... on the same facts as that under Article 3” and had not shown that there were no “sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on [the applicant ’ s] physical or moral integrity as to constitute an interference with [his] right to respect for private life as guaranteed by Article 8” (paragraph 64).

18. In general, t he watershed between Article 3 and Article 8 complaints is fairly plain, but not completely clear-cut. Complaints under Article 3 and Article 8 can be interrelated, but, as a rule, they cannot overlap on the sole basis of the legal link between the subject matter of Article 3 and that of Article 8. Even if exceptions are not inconceivable in theory, the conclusive criterion allowing for a resolution that Article 3 and Article 8 complaints are interrelated, fully or in part, is the one already mentioned in paragraph15 above – the particular circumstances of the case . This criterion points, first and foremost, to the shared factual background of the concurring complaints. Only when the complaints under Articles 3 and 8 do share some factual background can an auxiliary criterion of legal links between the two Articles be brought in to allow for determining that the non-isolatedness of the provisions of these Articles may be sufficient for the Court to resolve that the complaint falls under such requirements of the Convention, which, in view of the particular circumstances of the case, may be seen as overlapping to some significant extent, and this absolves the Court from examining the same factual situation from the standpoint of all the Articles invoked.

IV

19. The above observation fully applies to the complaints under Article 8 concerning family visits in detention (as well as other aspects of detainees ’ private and family lives), as well as those which pertain to the conditions of detention, which are the issues dealt with in the present case. In the Court ’ s case-law such complaints were always treated as not overlapping and were examined separately (provided that they were not inadmissible on Convention-warranted grounds). The fact that the Court had already examined the complaints under Article 3 did not prevent it from addressing those under Article 8, let alone induce it to declare that owing to that examination it was absolved from another one, properly requested by an individual, who exercised his or her right under Article 34. Below are a few examples.

20. In Peers v. Greece , no. 28524/95, ECHR 2001 ‑ III, the Court found a violation of Article 3 on account of what it called the “ objectively unacceptable conditions of the applicant ’ s detention” (paragraph 75), and a violation of Article 8 on account of the monitoring of the applicant ’ s correspondence, inter alia , with the Convention organs. Again in Poltoratskiy v. Ukraine , no. 38812/97, ECHR 2003 ‑ V , it did not see itself as precluded from examining the applicant ’ s complaint as regards the restrictions on family visits in prison and finding a violation of Article 8, even though it had already found a violation of Article 3 on account of the conditions of detention (as well as other violations of Article 3); going even further, the Court also examined the complaint under Article 9 (and found a violation of that Article). In Aleksanyan v. Russia , no. 46468/06, 22 December 2008, the Court found inter alia , both a violation of Article 3 on account of the lack of proper medical assistance in the remand prison and a violation of Article 8 on account of the searches of the applicant ’ s premises. In Visloguzov v. Ukraine , no. 32362/02, 20 May 2010, it found violations of Article 3 on account both of the physical conditions of the applicant ’ s detention and of the lack of appropriate medical assistance for the applicant in detention, but also a violation of Article 8 on account of the seizure and retention by the prison officials of the letter from the Court. In István Gábor Kovács v. Hungary , no. 15707/10, 17 January 2012, the Court, having found a violation of Article 3 on account of the overcrowded conditions in which the applicant was detained, went on to examine his complaint as regards the restrictions “on the frequency and duration of family visits”, and found a violation of Article 8. In Idalov v. Russia [GC], no. 5826/03, 22 May 2012 two violations of Article 3 were found on account of the applicant ’ s conditions of detention, and also a violation of Article 8 on account of the opening by the officer of the correctional facility of letters from the Court to the applicant (along with a number of violations of other Articles); see also Buglov v. Ukraine , no. 28825/02, 10 July 2014.

21. In a number of cases the findings as regards the alleged violations of Article 3 and 8 were composite, so to speak. In ValaÅ¡inas v. Lithuania , no. 44558/98, ECHR 2001 ‑ VIII, the Court found a violation of Article 8 on account of the control correspondence between the applicant, who was a prisoner, and the Court, a violation of Article 3 on account a body search of the applicant which amounted to degrading treatment, but no violation of Article 3 on account of disciplinary sanctions against him. In Nazarenko v. Ukraine , no. 39483/98, 29 April 2003 and Dankevich v. Ukraine , no. 40679/98, 29 April 2003, a violation of Article 3 was found on account of the applicant ’ s conditions of detention and a violation of Article 8 on account of interference with the applicant ’ s right to respect for his correspondence as regards one period of detention, but no violation of that Article as regards another period. Even more composite were the findings in Khokhlich v. Ukraine , no. 41707/98, 29 April 2003: a violation and no violation of Article 3, and a violation and no violation of Article 8. Somewhat similar, but even more composite, were the findings in Voykin and Others v. Ukraine , no. 47889/08, 27 March 2018, where the Court dealt with an application lodged by four applicants. In Rodzevillo v. Ukraine , no. 38771/05 , 1 4 January 2016 the Court found a violation of Article 8 (encumbering of the applicant ’ s parents ’ ability to visit him in prison) and a violation of Article 3 (conditions of detention), but one complaint under Article 3 was rejected as manifestly ill-founded. And so on.

In none of these judgments was there even the slightest hint that any of the legal issues, irrespective of whether a violation or a no violation of the Convention was found, were to be considered as “main” (as in the present case), whereas others, accordingly, as “not main”, whatever that label may mean (cf. paragraphs 54, 68 and 73 below).

22. There were also cases in which the Court, having found a violation of Article 3 on account of the conditions of detention, then found a violation of Article 14 in conjunction with Article 8, and then set aside the examination of the complaint under Article 8 taken alone. For example, in Varnas v. Lithuania , no. 42615/06, 9 July 2013 t he applicant complained of his inability to receive conjugal visits from his wife during his pre-trial detention (arguing, inter alia , that his entitlement in that respect had been more restricted than that of a convicted person serving a prison sentence); in Costel Gaciu v. Romania , no. 39633/10, § 50, 23 June 2015 the applicant complained of the refusal of his requests for conjugal visits for the sole reason that he was not a convicted prisoner (under domestic law a person being held in pre-trial detention was not entitled to conjugal visits, in contrast with a person already convicted, who had such a right). The Court considered that since it had found a breach of Article 14 of the Convention taken in conjunction with Article 8, it was unnecessary to consider whether there had been a violation of Article 8 alone. This setting aside of an Article 8 complaint, however, represented a very different approach from that used in the present case, where such a complaint has been left unexamined from any angle. Interestingly enough, the applicants in the above-mentioned cases did not invoke Articles 8 or 14 themselves: Mr Varnas relied on Article 3, and Mr Gaciu on Articles 3 and 7. It was the Court which proprio motu requalified their complaints as falling under Articles 8 and 14, based on the consideration that the essence of their grievances appeared “to be the allegedly unjustified difference in treatment as concerns conjugal visits between himself, a person in pre-trial detention, and a convicted prisoner serving a prison sentence” (see Varnas , § 92, and Costel Gaciu , § 43). From this perspective, it is not so evident that the Court should have declared at all that it set aside the complaints under Article 8 taken alone, because such complaints were not specifically identified by either the applicants or the Court itself.

23. To complete the picture, in yet other cases the Court, having already examined complaints concerning conditions of detention (and sometimes also other allegations), refrained from ruling on the merits of the complaints as regards restrictions on family visits, but not on the grounds that the examination of some “main legal questions” had allegedly absolved it from the need to examine certain other issues.

For example, in Savenkovas v. Lithuania , no. 871/02, 18 November 2008 , the Court, having found a violation of Article 3 on account of the applicant ’ s conditions of detention and a violation of Article 8 on account of excessive control of his correspondence (and having examined also the complaints under Articles 5 and 6), further examined the admissibility of the Article 8 complaint as regards family visits, but rejected it as manifestly ill-founded, because the applicant “ha[d] not shown that he was denied any visits from his family” (paragraph 100). In Piechowicz v. Poland , no. 20071/07, 17 April 2012, the Court rejected for non-exhaustion of domestic remedies the applicant ’ s complaint regarding his conditions of detention, but then went on to examine the complaint under Article 8 and found a violation on account of the restrictions on the applicant ’ s contact with his family during his detention.

24. In the Court ’ s practice, t he usual order of examination of cases, in which both Article 3 and Article 8 complaints were invoked, is that where Article 3 complaints are examined first. There have been exceptions though. For instance, in Varnas , discussed in paragraph 22 above, the Court first found a violation of Article 8 in conjunction with Article 14 (after having rejected as manifestly ill-founded the applicant ’ s complaints under Article 5 concerning the length of detention), and then undertook the Article 3 complaint regarding the allegedly deplorable prison conditions, but rejected it, as the applicant “had not raised this issue with the [domestic] administrative courts ... an effective remedy for [such] complaints” (paragraph 124). Notwithstanding the difference in the order of examination, the structural pattern persisted: Article 8 complaints were perceived as separate, autonomous from those under Article 3.

25. So much for the relationship between the legal issues arising from complaints under Article 3 pertaining to the conditions of detention (including the lack of medical care) and those arising under Article 8. The Court ’ s structural approach has not been different at all with regard to complaints concerning the irreducibility of the applicant ’ s life sentence (Article 3) and the restrictions on family visits in detention (Article 8): these complaints have been examined separately. For instance, in Öcalan v. Turkey (no. 2) , nos. 24069/03 and 3 others, 18 March 2014, no violation of Article 8 was found as regards the alleged restrictions on visits by and the applicant ’ s communication with his family members, but a violation of Article 3 was found on account of the lack of possibility that the applicant, a lifer, could be released on parole. More generally, the violations of Article 3 being found on account of the irreducibility of a life sentence were not a justification for the failure also to examine other complaints under Article 8. The latter were not set aside; see for example, Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12 , ECHR 2014 (extracts), where one of the applicants complained that his correspondence with his lawyers was being routinely opened and read by the prison authorities and that some letters had not been dispatched to his lawyers; this complaint was examined, but rejected for being “partly out of time and partly manifestly ill-founded” (paragraph 277).

26. The same structural pattern was also in evidence in cases where the applicants were not detainees, but nonetheless under the control of the authorities. For example, in V.C. v. Slovakia , no. 18968/07, ECHR 2011 (extracts), the Court found a violation of Article 3 on account of the applicant ’ s sterilisation, to which she did not give her informed consent, and a violation of Article 8 on account of the “absence ... of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman[, which] resulted in a failure ... to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life” (§ 154). Both these violations, in fact, consisted of the same action, yet this did not prevent the Court from assessing that action from the standpoint of both Articles 3 and 8 (although the Court held that the finding of a violation of Article 8 absolved it from also examining that action separately from the standpoint of Article 12, that is to say whether it gave rise also to a breach of the applicant ’ s right to marry and to found a family). A violation of both Articles 3 and 8 was found in R.R. v. Poland , no. 27617/04, ECHR 2011 (extracts); and no violation of Article 3, but a violation of Article 8 in TysiÄ…c v. Poland , no. 5410/03, ECHR 2007 ‑ I.

27. In each of these cases both the complaints under Article 3 and those under Article 8 were examined, unless there were weighty grounds under the Convention for not doing so. Still, in certain cases, which appear to be rather exceptional, the Court, having found a violation of Article 3 on account of the conditions of detention, has refused to examine an Article 8 complaint concerning family visits in detention. The crucial, decisive criterion in such cases was whether the complaints shared the same factual background. In IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004 ‑ VII, the Court found a violation of Article 3, but, having turned to the applicants ’ complaints under Article 8, considered that it was not necessary to examine them separately from the standpoint of that Article, pointing out that the Article 8 complaint was “limited to the fact that it was impossible for the applicants to write freely to their families ... from prison and to the difficulties they encountered in receiving the visits from their families”, but these allegations had already been “taken ... into account in the context of Article 3”; the Court referred to four paragraphs of that judgment, where the same facts were assessed (paragraphs 469 and 470). In the particular circumstances of that case, this was an explanation (which some might, however find debatable), not an abrupt statement that the Article 8 complaint would be not examined, because this was simply “not necessary”. As a comparison, in a later case relating to the same international conflict, Mozer v. the Republic of Moldova and Russia , [GC], no. 11138/10, 23 February 2016, the Court, having found a violation of Article 3 on account of the inadequacy of the applicant ’ s conditions of detention, went on to examine his Article 8 complaint that for no apparent reason he had been unable to meet his parents for a considerable length of time, and found a violation of Article 8 because “the restriction of prison visits from his parents” did not comply with the Convention requirements (§ 196).

28. The principled approach that Article 3 and Article 8 complaints raise separate legal issues was (and hopefully still is, notwithstanding the most unfortunate deviation in the present case) entrenched in the Court ’ s practice to such an extent that, as the years have passed, cases involving such complaints are increasingly being dealt not by Chambers, but by Committees, which testifies to the fact that no novelties should be reasonably expected in cases of this category.

To give just a couple of recent examples, in Oskirko v. Lithuania [Committee], no. 14411/16, 25 September 2018, the Court found a violation of Article 3 on account of the applicant ’ s conditions of detention (which, incidentally, involved a number of privacy-related elements), and then went on to examine his complaint under Article 8 (taken alone and in conjunction with Article 14) as regards the alleged lack of long-term conjugal visits, but rejected it as incompatible ratione personae with the provisions of the Convention because, as it transpired, the applicant had never requested such visits; in Michno v. Lithuania [Committee], no. 29826/15, 4 December 2018, the Court, having found a violation of Article 3 on account of the applicant ’ s material conditions of detention, further examined his Article 8 complaint and found a violation of that Article because the applicant had not been allowed, while in lengthy detention on remand, to receive long-stay visits from his partner and his sister. The same pattern was typical of the cases against Ukraine. In Guk v. Ukraine [Committee], no. 16995/05, 8 December 2016, for example, a violation of Article 3 was found on account of the applicant ’ s material conditions of detention, and then another one of Article 8 on account of the frequency and length of the family visits during his post-conviction detention, the number of people admitted per visit, and the manner in which these visits were conducted ; in a related case, Tkachev v. Ukraine [Committee], no. 11773/08, 19 April 2018, the Court, referring to its Guk judgment, found a violation of Article 3 on the “same account” as in that case, and held that it was not necessary to address the applicant ’ s other allegations concerning his conditions of detention (paragraphs 32 and 33), but then addressed his complaint Article 8 complaint, which it rejected as manifestly ill-founded.

29. In view of such practice, Article 8 complaints concerning family visits in detention (or, where applicable, conjugal visits – in the light of the proviso that the Court has not so far interpreted the Convention as requiring provision to be made for such visits – for perhaps the most recent confirmation of this decidedly ancient thesis from the 1990s, Varnas and Costel Gaciu , both discussed in paragraph 22 above) or conditions of detention can in no way be seen, in any legally meaningful sense, and treated as being covered by those under Article 3 from the point of view of the link between those two Articles.

V

30. So much (some would say too much) for the pure theory and the Court ’ s case-law regarding concurring compl aints under Articles 3 and 8. I turn now to the applicant ’ s complaints in the instant case.

31. As a reminder, the complaint under Article 8 concerned the alleged infringement of the applicant ’ s right to family visits in detention, whereas the complaints under Article 3 related to the applicant ’ s conditions of detention (the lack of adequate medical care) and the irreducibility of his life sentence.

The Article 8 complaint thus stood aside from and was not interrelated with the Article 3 complaints as regards their factual background. Their disparity was pronounced. They did not overlap by one iota.

The one and only factual circumstance common to them was that the applicant was a detainee. There were no other discernible qualities which would ally them, and the quality of being a detainee was not determinative, however far-reaching it might be for the person concerned. If not, the complaints lodged by the same detainee should always, in all cases be treated as (factually) interrelated, however separate they may be in life, let alone law.

32. Family (or conjugal) visits are one thing; conditions of detention and irreducibility of life sentence another. I t is perfectly conceivable that family (conjugal) visits are denied to life prisoners held in decent conditions and, conversely, that life prisoners held in conditions falling short of the requirements of Article 3 enjoy family (conjugal) visits whenever they request them. Until now the Court, in its case-law, has respected this basic distinction: for all I know, perhaps it has never found a violation of Article 3 solely on account of restrictions on family (or conjugal) visits in prison, and (even accepting that Article 8 may extend to situations of deprivation of liberty – see paragraph 17 above ), also has never found a violation of Article 8 on the sole basis that the conditions of detention were unsatisfactory, including the inadequacy of medical care.

33. Owing to the fact that the applicant ’ s complaints under Articles 3 and 8 did not share any factual background, there is no need to test them under the auxiliary criterion, that is to say, from the perspective of the legal links between those Articles. There are no particular circumstances which would warrant invoking such test, let alone allowing his Article 8 complaint to be left unexamined.

34. Let us imagine for a moment that the applicant lodged not one but two separate applications regarding the same alleged violations: one under Article 3 (regarding the conditions of detention and the irreducibility of life sentence) and the second under Article 8 (regarding family visits); and that the Court (for whatever reason) did not join them, but dealt with them consecutively. Could the Court then hold in the second case (regarding family visits) that, as the “main” legal questions (under Article 3) have been examined in the first case, the complaint under Article 8 does not deserve a separate examination? I do not think so. That would be too unconvincing and unjustifiable. Too nonchalant and haughty.

35. Consequently, the complaint under Article 8 merited a separate examination, because it raised a separate legal issue. But not only that. It could not be legitimately set aside, because this was contrary to th e well ‑ established Court ’ s case-law , where, as it was shown, Article 3 and Article 8 complaints were always examined each on its own merits (provided that they were not inadmissible on Convention-warranted grounds).

36. At least this was so until the advent of the Câmpeanu formula. Or rather until its indiscriminate application as a template in the cases where it does not fit. As in the present case.

VI

37. If using the Câmpeanu formula in the instant case in order to set aside the applicant ’ s Article 8 complaint was an attempt to create the impression that that complaint was somehow (factually or at least legally) interrelated with his complaints under Article 3, such an impression would be misleading. Had these complaints indeed been interrelated, it would have been unnecessary to invoke the Câmpeanu formula. Quite unnecessary. For, when the Court has had to resolve that one of the interrelated complaints could be left unexamined, it has actually employed other devices, depending on whether the interrelatedness of the concurring complaints was determined by the fact that they shared at least some factual background or whether it proceeded from the overlapping of the provisions of the Convention invoked.

But it is not my intention to provide in this narrative anything resembling an exhaustive list of devices, already present in the Court ’ s arsenal; a couple of typical examples, each pertaining to one of the two types of the interrelatedness of the concurring complaints, should suffice to demonstrate that such tools have been available and widely used.

38. The device most notably (but not exclusively) used in tackling factually interrelated complaints was the template consideration that the complaints left unexamined did not raise issues separate from those which had already been examined under different Articles.

For example, in Jalloh v. Germany [GC], no. 54810/00, ECHR 2006 ‑ IX, the Court found that the applicant, on whom the authorities had forcibly administered medication, “ha[d] ... been subjected to inhuman and degrading treatment contrary to Article 3” (and found a violation of that Article), and then held that the applicant ’ s complaint under Article 8, which concerned the same fact, did not give rise to any separate issue (paragraphs 82, 83 and 86).

Why then, in the present case, use some new tool, namely the Câmpeanu formula, if there was a tried and tested one available, which had, so to speak, been certified through decades of the Court ’ s practice? Was it only for the reason that the new formula was fashionable? But why has it become fashionable? And, most importantly, where might the fact of following this (in my opinion, very dubious) fashion take the Court ’ s case-law?

39. Of course, the Court ’ s case-law, including its language, is constantly evolving. It would be gratuitous to reckon on the formula used in Jalloh (and many cases involving Articles 3 and 8 decided before Jalloh , and an uncountable number of cases involving various other Articles) remaining unmodified forever (notwithstanding the fact that it is used verbatim time and again in so many judgments). Also, Jalloh precedes Centre for Legal Resources on behalf of Valentin Câmpeanu by eight years. One perhaps could presume that in 2006, the year of Jalloh , the Câmpeanu formula was not invented yet, or at least was not seen as helpful for the purposes of the cases, which involved complaints under both Articles 3 and 8. Not really; as mentioned, that formula was used, even though sporadically, even before Centre for Legal Resources on behalf of Valentin Câmpeanu (for further details see paragraphs 41 and 50 below). So, better late than never? With that case a new era had dawned: from now on that formula should allow for the Court, if it so wishes , to leave the complaints lodged under Article 8 (but also other Articles) unexamined, substantiating their setting aside by means of a one-sentence template.

40. In Centre for Legal Resources on behalf of Valentin Câmpeanu the Court, having found violations of Article 2 (taken alone and in conjunction with Article 13), stated that “it ha[d] examined the main legal questions raised in the present application and that there [was] no need to give a separate ruling on the remaining complaints”, that is those under Articles 5, 8 and 14 (paragraph 156). As it transpires, in that case not only Article 8 was invoked, though it was left unexamined, but Article 3 was also relied on (taken alone and in conjunction with Article 13). However, as regards the complaint under Article 3, the Court stated that it did not give rise to an issue, which would have been separate from those raised in other complaints and already examined by the Court, that is to say those under Article 2 (taken alone and in conjunction with Article 13), which the Court found to have been violated (paragraphs 144, 147, 153 and 154). This setting aside of the complaint under Article 3 was very different from that of the Article 8 complaint in the same judgment, virtually on the same page – so different that it merits to be dealt with more closely (see paragraphs 48-50 below).

41. But let us first take a look at whether the Câmpeanu formula (which was not, of course, so called in the Court ’ s argot at the time) was used in cases involving both Articles 3 and 8 prior to its consolidation in Centre for Legal Resources on behalf of Valentin Câmpeanu . As already mentioned more than once, this formula was not first introduced in the case which gave the template its name. Even before it the Court ’ s case-law sometimes resorted to the explanation that the examination of the “main legal questions” absolved the Court from the need to examine certain other questions. Several authorities, in which that idea had materialised, were referred to in a motley list of judgments set out in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu , in particular: Kamil Uzun v. Turkey , no. 37410, 10 May 2007; Women On Waves and Others v. Portugal , no. 31276/05, 3 February 2009; Velcea and Mazăre v. Romania , no. 64301/01, 1 December 2009; Villa v. Italy , no. 19675/060, 20 April 2010; and The Argeş College of Legal Advisers v. Romania , no. 2162/05, 8 March 2011. These were Chamber cases, all pre- Stanev (see paragraph 42 below); but a couple of post- Stanev cases were also cited, namely Ahmet Yıldırım v. Turkey , no. 3111/10, ECHR 2012 and Mehmet Hatip Dicle v. Turkey , no. 9858/04, 15 October 2013. However, the “main legal questions” formula was also used by the Grand Chamber in Varnav a and Others v. Turkey [GC], nos. 16064/90 and 8 others, ECHR 2009, which also was included in that list (and distinguished from the Chamber cases by a “see also” remark).

42. The formula in question was thus a part of the Court ’ s arsenal as long ago as 2012, the year of Stanev v. Bulgaria [GC], no. 36760/06, ECHR 2012 , which involved concurring complaints under Articles 3 and 8 (and some others). Nevertheless, it was not used in Stanev . In order to substantiate the setting aside of Article 8 (and some other) complaints, the Court used the above-discussed tried-and-tested device – the “no separate issue” formula, which it apparently considered to be more appropriate than the “main legal questions” formula, which would amount to a blank declaration that it would not consider certain complaints because there was simply no need. And rightly so. In that case a violation of Article 3 was found on the grounds that the living conditions in a social care home, to which the applicant was exposed, amounted to degrading treatment. The Court, however, held that neither those conditions nor the restrictive guardianship regime, which had effectively barred the applicant from taking part in community life and developing relations with persons of his choosing, raised an issue under Article 8 which would have been separate from that already examined under Article 3, as well as Articles 5, 6 and 13 (paragraphs 212, 213 and 252). This was so because, in the Court ’ s assessment, the complaints under Articles 3 and 8 were interrelated by their factual background.

43. It may be said that neither Jalloh nor Stanev directly concerned the lack of adequate medical treatment. Here is another example – this time of a case where that issue was at the heart of the dispute: D. v. the United Kingdom (no. 30240/96, 2 May 1997). The applicant was an alien who had served his prison sentence and was subject to expulsion from the United Kingdom, because he had no entitlement to remain in her territory. While in prison, he had benefited from medical, social or other forms of assistance provided by that State. T he Court found that the removal of the applicant (to St Kitts) would violate Article 3, but then held that Article 8 complaints (which obviously pertained to the same factual situation) raised no separate issue (paragraphs 54 and 64).

44. In Jalloh or Stanev the applicants ’ complaints under Articles 3 and 8 shared, at least in part, the same factual background, but the “main legal questions” formula was not invoked. It was not considered to be universal. The “no separate issue” formula sufficed to justify leaving the complaints under Article 8 unexamined.

For its approbation as a template designed and ready for a broader application, the “main legal questions” formula had to wait for Centre for Legal Resources on behalf of Valentin Câmpeanu .

45. So much for one of the devices used by the Court in cases where the complaints under Articles 3 and 8 shared some factual background. Where there was no commonality of factual context, the Court always had at its disposal another device, which would allow for leaving one or the other unexamined. Article 8 complaints, which have originated from other facts than those complained of under Article 3, were rejected not as raising no separate issue, but as raising no issue at all . There is abundant case-law to that effect. A typical example would be Iustin Robertino Micu v. Romania , no. 41040/11, 13 January 2015. The applicant was suffering from an illness. While being under the control of the police, whom he had informed of his condition, he was nevertheless refused medical treatment (as well as food and drink). On that account the Court found a violation of Article 3 (it also found violations of Articles 5 § 1 and 13). The applicant ’ s other complaints, including one under Article 8, were rejected as manifestly ill-founded, using the habitual formula that these complaints “do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols”.

46 . As I already made clear, I do not intend to provide a comprehensive analysis (or a list) of tools which the Court can (and could even in 2014, the year of Centre for Legal Resources on behalf of Valentin Câmpeanu ) employ to justify the setting aside of an Article 8 complaint, once it had examined (and had found a violation of) an Article 3 complaint. The gist of the above-provided examples (which could be complemented by many others) is that even before the gradual introduction and consolidation of the “main legal questions” formula a set of devices was available which enabled the Court, after having found a violation of Article 3, to legitimately set aside Article 8 complaints. The choice of the appropriate tool was basically factual background-dependent . If the complaints shared the same factual background, the one under Article 8 could be considered as raising no separate issue. If they were unrelated because they had originated from different factual settings, the Article 8 complaint was left unexamined when it was inadmissible on one of the Convention-warranted grounds, for example, where it was manifestly ill-founded.

47. Such a simple basic scheme: in each instance the setting aside of an Article 8 complaint had a proper legal basis. No room was left for arbitrary setting aside of Article 8 complaints. In other words, no room for the rationing of justice (which, in its own right, would be a species of denial of justice), where the applicant would be entitled to a certain (unspecified) quota of alleged violations of the Convention to be examined and found, and if that quota has been reached, his or her other complaints, whatever their subjective and objective importance, would be considered as meriting no separate examination. Which in fact means no examination at all.

48. In this respect Centre for Legal Resources on behalf of Valentin Câmpeanu was a novelty. And a rather intriguing one, because in that case not one but two tools were used for tackling similar situations: the tried-and-tested Jalloh formula and the (now consolidated) Câmpeanu formula. I shall deal with these two situations consecutively.

49. The Court held that no separate issue arose under the Article 3 complaint taken alone and in conjunction with Article 13, in view of its finding of a violation of Article 2 in both its substantive and procedural limbs. The Court ’ s reasoning on this issue merits a closer look. It is limited to a reference to two judgments, namely Nikolova and Velichkova v. Bulgaria , no. 7888/03, 20 December 2007, and Timus and Tarus v. the Republic of Moldova , no. 70077/11 , 15 October 2013 . Nikolova and Velichkova states: “[h]aving regard to the grounds on which [the Court] has found a dual violation of Article 2 ..., [it] considers that no separate issue arises under Article 3” (paragraph 78). But, curiously enough, paragraph 58 of Timus and Tarus , referred to in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu , does not contain the formula “no separate issue”: it states that the Court, in view of its findings (that is, the finding of a violation of Article 2 under both its substantive and procedural limbs), “does not consider it necessary to also examine the case under Article 3”. Perhaps this should explain the caveat “ mutatis mutandis ”, contained in the reference (although “ mutatis mutandis ” precedes the reference to Nikolova and Velichkova , not that to Timus and Tarus ). Notwithstanding that caveat (or maybe even reinforced by it), the references to Nikolova and Velichkova and Timus and Tarus , as well as the “no separate issue” conclusion in Centre for Legal Resources on behalf of Valentin Câmpeanu , signify that even in the latter case the formula “no separate issue” was understood as synonymous to the formula “not necessary to examine”. They both pointed to the fact that (i) the questions raised in the applicant ’ s complaint under Article 3, taken alone or in conjunction with Article 13, but set aside by the Court, had indeed already been examined by it, fully or in part, from the standpoint of Article 2; (ii) the consideration that the complaints already examined under Article 2 were in essence the same as those lodged under Article 3 owed to the fact that they shared, at least in part, the same factual background; (iii) the separate examination of the same set of facts from one more standpoint therefore was redundant.

50. In contrast to the setting aside of the applicant ’ s complaint under Article 3, based on the “no separate issue” formula, the Court embarked on the “main legal questions” enterprise in order to justify refraining from the separate examination of the complaint under Article 8 alongside those under Articles 5 and 14. This explanation was also limited to nothing more than references to the Court ’ s earlier judgments (already listed in paragraph 41 above. A closer look at the cases referred to shows their wide diversity.

In Kamil Uzun , for instance, the Court set aside the complaints under Articles 6, 8, 13 and 14, and Article 1 of Protocol no. 1 on the grounds that it had examined the complaint under Article 3 (and found a violation of that Article), which, as it appeared, raised the “main legal question”. In Women On Waves and Others it found a violation of Article 10, which it held to be the “main legal question”; once that question had been examined, it was not necessary to examine the complaints under Articles 2 and 6, and Article 2 of Protocol no. 4. In Velcea and Mazăre the Cou rt found violations of Articles 2 and 8; relying on the finding of violations o f Article 2 (but not of Article 8), it left unexamined the complaint under Article 5. In Villa v. Italy it set aside the complaint under Article 6 § 1, after having found a violation of Article 2 of Protocol no. 4 (and having found that Article 5 § 1, also invoked by the applicant, was not applicable to his situation), which, in its opinion, raised the “main legal question”. In The Argeş College of Legal Advisers the Court left unassessed the complaint under Article 6 § 1, in view of the fact that it found a violation of Article 11. In Ahmet Yıldırım as many as four complaints, namely the ones under Articles 6, 7 and 13 and Article 2 of Protocol no. 1, were left unexamined in view of the finding of a violation of Article 10. In Mehmet Hatip Dicle the Court found a violation of Article 10, which, in its opinion, raised the “main legal question”, and then declared that it would not address the complaints unde r Articles 7, 14 and 18. Finally, in Varnava and Others the Grand Chamber, having found continuing violations of Articles 2, 3 and 5 (as regards the latter, not on all counts, as invoked by the applicants), resolved not to examine the complaints under Articles 4, 6, 8, 10, 12, 13 and 14.

As it transpires, most of these cases did not at all involve, as in Centre for Legal Resources on behalf of Valentin Câmpeanu , the relationship between Article 2 (taken alone or in conjunction with Article 13), as raising the “main legal question”, and Articles 5, 8 and 14 as such, which allegedly could be left unexamined in view of the Court ’ s findings as regards Article 2. This issue was definitely not involved in Kamil Uzun , where the “main legal question” was the one raised under Article 3; not in Women On Waves and Others , Ahmet Yıldırım , or Mehmet Hatip Dicle , where it was raised under Article 10; and not in The Argeş College of Legal Advisers (Article 11); and not in Villa v. Italy (Article 2 of Protocol no. 4). In most of the cases referred to in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu , that is to say, in all of them, except Velcea and Mazăre and Varnava and Others , the complaints under Article 2 were not the ones which the Court assessed as raising the “main legal questions”. In fact, in Kamil Uzun , Villa , The Argeş College of Legal Advisers , Ahmet Yıldırım and Mehmet Hatip Dicle Article 2 was not at all invoked by the applicants. In Women on Waves and Others the complaint under Article 2 was set aside by the Court on the grounds that the “main legal question” was the one raised in the complaint under Article 10. As already mentioned, Article 2 was involved only in two of the cited cases: Velcea and Mazăre and Varnava and Others , but even in these two cases the differences with Centre for Legal Resources on behalf of Valentin Câmpeanu were outstanding. In Velcea and Mazăre the legal question, which the Court assessed as “main”, was indeed the one examined under Article 2, but the legal question which was left unexamined concerned only Article 5, and not Articles 8 or 14. The difference is even more striking with Varnava and Others , where the legal issue raised in the complaint under Article 2 also was among those assessed by the Court as one of the “main” ones, but the complaint under Article 3 was also examined as separate from that under Article 2, that is to say, the finding of a violation of Article 2 was not seen as sufficient for resolving that the complaint under Article 3 (or, for that matter, Article 5) could be set aside as not raising a legal question which was in any sense less than “main” or as r aising “no separate issue” (cf. paragraph 49 above). Without going into further detail, it is evident that the list of judgments in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu obscures rather than clarifies the law proceeding from the precedents referred to and ostensibly relied upon.

It also should be noted that the paragraphs of the judgments referred to in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu , in their turn, contain references to earlier judgments, in which the “main legal questions” formula was used. Irrespective of the issues examined or left unexamined in these cases, they all, save Varnava and Others alone, refer to Kamil Uzun . Perhaps this could explain why, prior to being consolidated in Centre for Legal Resources on behalf of Valentin Câmpeanu , the “main legal questions” formula was called, in the Court ’ s argot “ Uzun formula”. Only in Velcea and Mazăre and Ahmet Yıldırım there are references to judgments other than Kamil Uzun , and these not always involved the same Articles as the cases in which those judgments were relied upon. What is more, these judgments, in their turn, refer to Kamil Uzun and sometimes to other cases, which, again in their turn, most often referred to Kamil Uzun , but sometimes introduced the “main legal questions” formula without any reference to previous judgments. A yet deeper investigation would show that in some instances the use of the “main legal questions” formula was substantiated with the reference to judgments, where that formula was not used. Perhaps the earliest judgment (or at least one of the earliest) referred to at the far end of this multi-storey passage from judgment to judgment (sometimes with a change of wording), which resulted in what has now become the Câmpeanu formula, was Sadak and Others v. Turkey (no. 1) , nos. 29900/96 and 3 others, ECHR 2001 ‑ VIII, where the Court left unexamined the complaints under Articles 10, 11 and 14 (as well as some of the complaints under Article 6), on the grounds that it had already examined most of the complaints under Article 6; there the Court agreed with the European Commission of Human Rights, which had held before, that the “main legal questions” were raised in the latter.

51. Be that as it may, the hotchpotch of r eferences provided in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu hardly could be seen as conducive to treating the formula in question as universal, that is to say, applicable to the most diverse situations. And initially it was not – as transpires from Stanev . For some time.

52. But then the whole thing turned out otherwise. A brief and simple search in the Court ’ s case-law database reveals that an overwhelming majority of Chamber and Committee judgments where the phrase “main legal questions” is used, are from the post- Câmpeanu period. Since 2014, that is to say since the consolidation of the “main legal questions” formula in Centre for Legal Resources on behalf of Valentin Câmpeanu , it has become almost a matter of course to resort to the “no need to examine” formula in an ever-increasing number of cases, where the Court (“the biggest legal factory in the world”) considers that it has already examined some “main” legal questions, as in the present case.

And indeed: as that formula was coined by the Grand Chamber based on references to the cases, which differed very much with regard to the legal questions, why then could it not be used as a template in setting aside complaints in any other types of cases, where the Court for some reason did not wish to engage in a full-scale examination of otherwise admissible complaints? The legitimacy of the explosion of its indiscriminate use would not seem to be a matter of concern.

53. Still, the question persists: why on earth did the Court, in Centre for Legal Resources on behalf of Valentin Câmpeanu , base the setting aside the complaints under Articles 5, 8 and 14 on the “main legal questions” clause, rather than using any of the two habitual formulas (which would appear to be synonymic)?

54. Two answers are possible. The first would be that the Câmpeanu formula was but one more synonymous wording of the Court ’ s earlier ‑ developed devices “no separate issue” and “not necessary to examine”. That would be understandable, given that the legal questions already examined and those set aside were interrelated by their shared factual background. The notion of the “main legal questions”, which is central to the formula in question, unequivocally presupposes that the remaining legal questions are in one way or another subsumed by the legal questions already examined. For a legal question can indisputably only be “main” to something, which is comparable to it, and that something cannot be anything other than a legal question itself, which, in its turn, is “secondary” (“supplementary”, “auxiliary” etc.); and it can be “secondary” only by virtue of the fact that it is “derived” from, or subsumed (fully or partly) by, the “main” question. Once it is established that the concurring complaints share the factual background, they (or rather, in fact, the one and the same complaint) still can be assessed from different legal angles, but the overlapping of the provisions of the Convention may render the new separate examination unnecessary.

55. The second answer would be that the Câmpeanu formula was used to tackle a different situation, namely that where there was no commonality of factual background. In that case it should be, in essence, a mere paraphrase of the formulas used when the complaints left unexamined are unrelated to those examined, and a reference is made to the provision of the Convention, which allows (or even requires) them to be declared inadmissible (such as, for example, the “manifestly ill-founded” clause of Article 35 § 3).

56. Why then was the “main legal questions” formula (which was only sporadically used in pre- Câmpeanu case-law) reinforced in Centre for Legal Resources on behalf of Valentin Câmpeanu as a distinct construct of the Court ’ s legalese?

57. Trying to answer that rather general question in this (already quite lengthy) opinion would go far beyond its purpose, which is more moderate. The underlying purpose and content, and the limits, of the legitimate employment of the Câmpeanu formula still wait to be revealed.

My point is that the formula in question is not at all universal and, in particular, that it was not applicable in the present case . Its non-universality implies that caution should be exercised each and every time the Court is tempted to employ it as a tool for justifying the narrowing of the scope of the examination of an applicant ’ s grievances.

58. Be that as it may, those who maintain that the Court does not intend to engage itself in resolving the issues arbitrarily would like to believe (or at least hope) that the Câmpeanu formula, as a relatively new device, was not meant to be just an ingenious camouflage of a mere fiat – the Court ’ s naked will to refrain from examining certain questions, whatever their subjective importance to the applicants or, more broadly, their objective importance to the legal system of the respondent State (and, by extension, of other member States). In other words, this formula had to be intended either (i) to supplement the already existing set of habitual tools used to substantiate the setting aside of certain complaints (not only those under Article 8), or (ii) to provide a new synonymic wording for one of the already existing tools. Again, tertium non datur . That would be perhaps the most benevolent interpretation of all those possible.

59. But if there is in fact a tertium , that is to say, if neither the first nor the second option holds, then the legitimacy of the Câmpeanu formula can hardly be sustained. In the unfortunate event of tertium , what this template is about is a camouflage of a fiat . An escapist smokescreen (whatever the reason for the escapism).

And, one must acknowledge, an extremely convenient one. For when complaints are set aside on the grounds that they are subsumed by other complaints already examined in the same case, or when they are declared inadmissible on Convention-warranted grounds, some reasoning, however concise, is still there (or, if the reasoning is not explicit, the relevant legitimate reasons can be inferred from the whole text of the judgment, including references to the Court ’ s case-law, even if not accompanied by broader explanations or, in the alternative, deduced from the whole body of the Court ’ s case-law pertaining to similar matters). But a non-transparent and artless reference to the “main legal questions” already examined by the Court may leave the readership guessing: why certain questions are “main”, and others are not “main”? If the formula in question is not a stalking-horse for escaping difficult or uncomfortable questions, and its application is not a rationing of justice , then what are they? The very fact that such questions naturally arise is in itself a matter of concern.

60 . “Please don ’ t let me be misunderstood”, as a popular song would hav it. The problem of the excessive use of the Câmpeanu filter originated not in the instant case and is not limited to it. The finding dealt with in here is just one instance of a broader, creeping pattern of circumvention of the fundamental requirement of Article 45 that “[r]easons shall be given for judgments, as well as for decisions declaring applications admissible or inadmissible”. This increasingly popular (not in the best sense of this word) pattern is gaining an ever-greater currency in the Court ’ s post- Câmpeanu judgments.

Someday their name may be Legion.

VII

61. Whatever may be the merits of the umbrella formula in question outside the context of the present dispute (I hope that there were some, and we cannot rule out that there may be some), it was (as already mentioned) not applicable in the present case . Regrettably, in this case, together with the applicant ’ s complaint under Article 8, the caution which the Court should exercise when it is tempted to use the Câmpeanu formula (see paragraph 57 above), has also been set aside.

62 . Every court, not excluding the Strasbourg Court, relies on its earlier case-law in subsequent cases, including verbatim self-quo tations. Self ‑ quoting is desirable, necessary and often unavoidable. It is, in its own right, one of the prerequisites for the continuity of the respective court ’ s jurisprudence. And it often involves the use of templates. But mechanical, uncritical, indiscriminate self-quoting, especially the copy-pasting of templates, may be the opposite of what is desirable and necessary. It should be avoided.

63. The Câmpeanu formula , as a structural device (assuming that it was rightly employed in Centre for Legal Resources on behalf of Valentin Câmpeanu ), may not suit each and every other case. It certainly does not fit where there is an essential difference in the factual background behind two or more complaints put together in the same application by the same applicant. As the majority chose to abandon the complaint under Article 8 (which they did), this choice had to be somehow reasoned, even if briefly, as, for example, in the pre- Câmpeanu case of Ilaşcu and Others (see paragraph 27 above). A mere copy-paste of a template is a poor substitute for reasoning. Or rather no substitute at all.

64. “Reasons”, of which Article 45 author itatively speaks (see paragraph 60 above), are not just any “reasons”. Article 45 is not (only) about the structural technicalities of the Court ’ s judgments and decisions. Its raison d ’ être lies in precluding, to the extent possible, the denial of justice by the Court, both that which may stem from a benevolent error (for who does not err?) and that which may result from excessive caution or outright whim. “Reasons shall be given” means that reasons must be transparent, they shall be stated explicitly or at least be discernible from the whole text of the judgment or decision (for example, by means of relevant references, as in Ilaşcu and Others (see paragraph 27 above), or – which, although it would be not the “neatest” option from the perspective of the applicants, also cannot be excluded – from the larger body of the Court ’ s case-law. Article 45 does not tolerate reasons being substituted by their simulacra. A simulacrum of reasoning may (rightly or wrongly, but nevertheless) very naturally be suspected of camouflaging some undisclosed motives (which, in their turn, may be legitimate or not).

65. However, what one reads in paragraph 189 of the present judgment, in which the Câmpeanu formula was copy-pasted, is a simulacrum, a surrogate of reasoning. For what does it mean in this particular case: the notion of “main legal questions”? By which mystical virtue were certain questions considered to be “main”, whereas other questions, not less “legal”, were not? And “main” – in what sense? “Main” – to whom? Definitely not to the applicant, for whom the conditions of detention, which hopefully will be improved sooner or later, and the possibility to be ever released from prison, which hopefully someday will be guaranteed under the relevant domestic legislative instruments, are an issue different from the visits by his family members. Even if (hypothetically) the legislation pursuant to which the applicant was not allowed family visits may have improved by now, this would not warrant the dismissal of his Article 8 complaint as something irrelevant at the material time.

Similar questions pertain to the “no need to give a separate ruling” clause. “No need” – to whom? To the applicant? Few would be surprised if he disagrees with that. Then – to the Court? As if the Court works for itself.

66. Let it be noted en passant that, as a rule, the number of violations of the Convention found in a case also has a bearing on the amount of just satisfaction awarded to the applicant under Article 41. This is, I repeat, only by the way.

67. By abruptly labelling the legal questions already examined in the instant case as the “main” ones, the majority effectively categorised, in an a contrario manner, the questions arising from the complaint under Article 8 as “not main” (most certainly they had not meant “not legal”).

68. This raises another issue – on the surface a linguistic one, but with legal and doctrinal implications.

Words have meanings (at least those used in courts ’ rulings should have them), even those which are an attempt at a camouflage. Antonyms of the word “main” include “auxiliary”, “inessential”, “inferior”, “insignificant”, “minor”, “nonessential”, “secondary”, “subordinate”, “trivial”, “unimportant”, “unnecessary”, and several others, all belonging to the tribe of second-rate members of the words kingdom. None of these antonyms can be convincingly – in either the factual or the legal sense – applied to the present applicant ’ s complaint under Article 8. Equating that complaint to something “minor”, “trivial”, “insignificant” or “nonessential”, etc., would be unsustainable, to put it mildly. The same goes for “auxiliary” and the like.

VIII

69. The Court ’ s case-law, in particular some of the judgments adopted in the cases against Ukraine, might perhaps allow us to predict with sufficient (albeit not absolute) accuracy, the outcome of the examination of the applicant ’ s complaint under Article 8, had the majority not resorted to the “no need to examine” gimmick. For instance, in Trosin v. Ukraine , no. 39758/05, 23 February 2012, a violation of Article 8 was found as regards the restrictions on family vis its during the applicant ’ s post ‑ conviction detention. I would not go so far as to suggest that there was (let alone still is) a structural (systemic) problem in Ukraine as regards family visits in prison, but the domestic legal framework as described and assessed in Trosin (although it had undergone some amendments, mentioned in, inter alia , paragraph 99 of the present judgment), does not seem, at least at a first glance, to be on an extremely friendly footing with the general principles pertaining to prisoners ’ visiting rights and the Court ’ s approach in the relevant cases, as summarised in, say, Khoroshenko v. Russia [GC] , no. 41418/04, ECHR 2015 (or at least was not on such a footing at the material time) . By holding that the present applicant ’ s complaint was undeserving of separate examination, the majority missed the opportunity to clarify the issue.

70. Maybe another opportunity will be seized in the foreseeable future? Who knows. An analogous complaint, Bigun v. Ukraine , no. 30315/10, was communicated in 2016 to the same respondent Government. The case is now pending before the Court. Two applicants, a married couple, one of whom is a lifer, complained of their inability to have long-term visits in prison. They complained under Articles 8, 12 and 13, but on the factual side the gist of their grievances, basically, was the same: the rejection of their requests to be allowed long-term visits. Most notably, the applicant in detention does not complain of the conditions of detention or the irreducibility of his life sentence. The legal question raised in the Bigun couple ’ s complaint cannot be legitimately dismissed as something “minor”, “trivial”, “insignificant” or “nonessential” etc., let alone “subordinate” or “auxiliary”, because – contrary to the Article 8 complaint in the instant case – it s tands in proud isolation and has no “main” counterpart. Furthermore, in Trosin the solitary Article 8 complaint was not deemed undeserving of examination.

71. However, Mr Bigun must properly understand the discouraging message, which the present judgment has broadcasted – not least – to him . If he, before the judgment in his case regarding family visits is adopted, endeavours to apply to the Court anew, complaining this time of the irreducibility of his life sentence under Article 3 (which would be not an unreasonable thing to do, once the present judgment becomes final), he risks falling foul of the quite dubious precedential force of that part of the instant judgment, where the applicant ’ s complaint under Article 8 was left unexamined. To wit, his (hypothetical) new application may be (as is the usual thing to do) joined to the one already communicated under Article 8; then, if a violation of Article 3 is found (many would say that this might be a predictable outcome in the post- Vinter era), and given that the “main legal question”, namely the one relating to Article 3, has already been examined, his (and his wife ’ s) complaint under Article 8 regarding family visits may be assessed by the Court as undeserving of examination, that is to say, something “minor”, “trivial”, “insignificant”, “nonessential”, you name it. Think twice before applying anew. Beware of the precedent.

The same would pertain also to (hopefully only hypothetical) complaints as regards the conditions of that applicant ’ s detention (which presumably are not unsatisfactory prima facie , if I have drawn the correct conclusion from the communication report), if they deteriorate in future.

72. The risk is there that the Câmpeanu formula, if indiscriminately, nay enthusiastically applied (I again refer to the Court ’ s case-law database – see paragraph 47 above), may serve as a tool for levelling those applications, which are loaded with a greater number of allegations, with those which contain less of them. This would look like a quota system, would it not?

73. If any categorisation of the applications lodged with the Court to those “main” and those “secondary”, “minor” etc. were needed at all (apart from where the word “main” is a mere synonym of “absorbing”, “subordinating”, “subsuming” etc. – see paragraphs 11 and 68 above), I propose a simple, even banal test. Let us label as “main” those legal questions the examination of which by the Court also tackled a specific human rights problem. It would be desirable that the Court ’ s examination of that question be instrumental to the overall promotion of human rights by triggering the solution of the respective problem (if indeed there is a problem, as alleged) – as a minimum, for the person(s) concerned, but, as the case may be, also at the national level or even Europe-wide. And let us label as “secondary”, “minor” etc. those legal questions the setting aside of which amounts, in plain language, to the problem being effectively ignored by the Court.

74. How would the present judgment look like under such test?

Not terribly inspiring. The score is two to one:

Problem A – Conditions of detention (lack of medical care) Tackled

Problem B – Irreducibility of life sentence Tackled

Problem C – Family visits in detention Ignored

In football two to one would be a win. But that win would be tarnished if the winning team had scored an own goal.

Continuing on this analogy, I regret to say that in the instant case the Câmpeanu formula served as a means of disqualifying the goalie.

75. I shall not speculate any further on the future of cases in which the Court may wish to take the same stance as in this case and divide unrelated applications into “main” ones and “not main” ones. If, however, the Bigun couple ’ s future solitary Article 8 application (like that of Mr Trosin) is examined on the merits (which, I believe, would be fair, provided that the complaint is not inadmissible on Convention-warranted grounds), one can reasonably and legitimately ask why those applicants who complain of a plurality of infringements of their unrelated rights are discriminated against as compared with those who allege only one infringement? This question is even more acute in cases like the present one, where the applicant appears to have indeed suffered violations of at least some of those rights which the Court has not refrained from looking into.

For if this is not discrimination, then, for the Convention ’ s sake, what is it?

Post scriptum. Only after this opinion was written and submitted for annexation to the judgment did I become aware of a rather recent judgment by the Chamber of the Third Section – in Popov and Others v. Russia (no. 44560/11, 27 November 2018). Three months after the delivery of that judgment, it is not yet final, as a request for the case ’ s referral to the Grand Chamber is pending before the competent panel. Whatever may be the outcome of that case, I have a pressing moral obligation to refer to and commend the most elegant partly dissenting opinion of my distinguished colleague Pere Pastor Vilanova, whose arguments I find to be all-resistant. His approach is very much like mine – or, to put it more correctly, mine is very much like his. It appears that I follow in the footsteps of at least one like-minded judge. On this occasion I should not fail to mention also Judge Bo š njak, who in the instant case has dissented on the same point as myself. If more judges share our approach, this should give us hope that the Câmpeanu formula may not stay there forever. Perhaps all courts of the world (not excluding this Court, for – I repeat myself – who does not err?) have resorted, at times, to practices which later proved to be legally unsustainable. It is in the interests of capital-J Justice that they (again, not excluding this Court) acknowledge their stumbles sooner rather than later – and abandon them.