PARTLY DISSENTING OPINION OF JUDGE MITS

1 . I agree that in this case there has been no violation of Article 5 § 3 and that the complaint under Article 14 in conjunction with Article 6 § 1 is inadmissible. I differ from the majority in that I find the complaint under Article 13 in conjunction with Article 14 and Article 6 § 1 admissible, although I conclude that the said Articles have not been violated. The crux of the case lies in the application of the “significant disadvantage” criterion, raising two questions: can a complaint such as this alleging discrimination be treated as not requiring an examination on the merits, and does an affirmative answer to the first question automatically mean that a complaint concerning the lack of effective domestic remedies is inadmissible as well?

A. Alleged discrimination as a significant disadvantage

2 . While the domestic law at the time clearly excluded the relevant offences from the requirement of audiovisual recording of interrogations, there were no repercussions on the applicant ’ s procedural rights or on his personal situation. The domestic courts (the Court of Cassation and the Constitutional Council) duly considered the applicant ’ s case. As a result, the impugned legislative provisions were declared unconstitutional, but with regard to the applicant ’ s particular situation it was concluded that he could have relied on any of the other procedural guarantees ensuring respect for his rights in relation to the interrogations (see paragraphs 17-18 of the judgment).

3 . It remains to be determined whether respect for human rights requires an examination on the merits of a complaint of potential discrimination under Article 14 in conjunction with Article 6 of the Convention, in particular if the highest domestic judicial authority has acknowledged the discriminatory character of the impugned domestic provisions; however, this finding was not applicable in the applicant ’ s situation.

4 . On the one hand, this case raises no serious questions with regard to the interpretation or application either of the Convention or of the domestic law. On the other hand, at its face value the claim might be of “a minimum level of severity” warranting its consideration (see, for example, Van der Putten v. the Netherlands (dec.), no. 15909/13, § 28, 27 August 2013). The latter, however, cannot be assessed in the abstract but only in the circumstances of a particular case. Since there were no any adverse consequences for the applicant and since the issue has been resolved by the domestic authorities, there are no compelling reasons to keep the Convention machinery further engaged with such a complaint, all the more so if the underlying idea of this admissibility criterion is to allow the Court, in view of its workload, to devote more time to cases warranting an examination on the merits and also to provide some degree of flexibility in addition to the other admissibility criteria (see paragraphs 77-78 of the Explanatory Report on Protocol No. 14). Therefore, the present complaint does not require an examination on the merits.

B. The arguable claim in the context of effective remedies

5 . The majority followed the case-law and found that since the complaint under Article 14 in conjunction with Article 6 § 1 was declared inadmissible because no significant disadvantage was suffered, the claim raised was not “arguable” in terms of Article 13. This approach accommodates the principle of procedural expediency and there are good reasons for it.

6 . Nevertheless, I find it difficult automatically to declare a complaint involving Article 13 inadmissible, for three reasons. First, a complaint that has been declared inadmissible under Article 35 § 3 (b) because the applicant has not suffered a significant disadvantage may be of such a nature that it might otherwise have resulted in a judgment on the merits or even have indicated “ a violation of a right [that was] real from a purely legal point of view” (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). In other words, Article 35 § 3 (b) is also applicable to “arguable claims”. Second, the guarantee of an effective remedy under Article 13 exceeds the scope of the individual case. This Article is of central importance from the point of view of the Convention system, which is based on the premise that the alleged violations must be addressed and remedied at the domestic level (the principle of subsidiarity). Third, depending on the availability of remedies in the particular domestic legal system, the complaint may attain the minimum level of severity warranting its consideration by the Court. Therefore, a complaint concerning the availability of effective remedies must be addressed separately, irrespective of the application of Article 35 § 3 (b) to another Article. These considerations will weigh more heavily when the safeguard clause “duly considered by a domestic tribunal” is removed, as envisaged by Protocol No. 15.

7 . The complaint in the present case under Article 14 in conjunction with Article 6 § 1 was “arguable” in terms of Article 13 and triggered its application. The applicant had access to a court, and his complaint concerning the relevant aspect of a fair trial from the point of view of the Convention was duly assessed by the Court of Cassation. The effectiveness of a remedy under Article 13 does not depend on a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI) . There has therefore been no violation of Article 13 in conjunction with Article 14 and Article 6 § 1 in this case.