JOINT DISSENTING OPINION OF JUDGE S SPIELMANN, ZUPANČIČ AND POWER-FORDE

1. We are unable to agree with the Court ’ s finding that there has been no violation of Article 3 of the Convention in respect of the holding of the applicant in a metal “cage” during his trial. Holding defendants, even those who have not been convicted, in such cages appears to be standard procedure in Ukraine (see paragraphs 41 and 60 of the judgment). This procedure is in itself very problematic.

2. The Court has found a violation in this respect on numerous occasions, and summarised its case-law in the case of Khodorkovskiy v. Russia ( no. 5829/04 , 31 May 2011 ), in the following terms:

“123. The Court notes that the practice of placing a criminal defendant in a sort of a ‘ special compartment ’ in a court room existed and probably continues to exist in several European countries ( Armenia , Moldova , Finland ). In some countries (such as Spain , Italy , France or Germany ) the accused are sometimes placed in a glass cage during the hearing. Such a practice has occasionally been examined in the context of the guarantee of the presumption of innocence under Article 6 § 2 of the Convention (see Auguste v. France , no. 11837/85, Commission Report of 7 June 1990, D.R. 69, p. 104; see also Meerbrey v. Germany , no. 37998/97, Commission decision of 12 January 1998). In recent years the Court has begun to examine the practice also from the standpoint of Article 3 of the Convention. Thus, in the case of Sarban v. Moldova (no. 3456/05, § 90, 4 October 2005) the applicant was brought to court in handcuffs and held in a cage during the hearings, even though he was under guard and was wearing a surgical collar (see, a contrario , the case of Potapov v. Russia ((dec.), no. 14934/03, 1 August 2006). A violation of Article 3 of the Convention was found in a case where the applicant was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia , no. 52058/99, §§ 105-109, 25 May 2007). Handcuffing of the applicant gave rise to a violation of Article 3 of the Convention in a situation where no serious risks to security could be proved to exist (see Henaf v. France , no. 65436/01, §§ 51 and 56, ECHR 2003-XI; Istratii and Others v. Moldova , nos. 8721/05, 8705/05 and 8742/05, §§ 57 and 58, 27 March 2007).

124. Lastly, in the recent case of Ramishvili and Kokhreidze v. Georgia , (no. 1704/06, §§ 98 et seq., 27 January 2009) the Court, in a very similar factual context, decided as follows:

‘ ...The public watched the applicants [in the courtroom] in ... a metal cage.... Heavily armed guards wearing black hood-like masks were always present ... the hearing was broadcast live .... Such a harsh and hostile appearance of judicial proceedings could lead an average observer to believe that ‘ extremely dangerous criminals ’ were on trial. Apart from undermining the principle of the presumption of innocence, the disputed treatment in the court room humiliated the applicants .... The Court also accepts the applicants ’ assertion that the special forces in the courthouse aroused in them feelings of fear, anguish and inferiority ....

The Court notes that, against the applicants ’ status as public figures, the lack of earlier convictions and their orderly behaviour during the criminal proceedings, the Government have failed to provide any justification for their being placed in a caged dock during the public hearings and the use of ‘ special forces ’ in the courthouse. Nothing in the case file suggests that there was the slightest risk that the applicants, well-known and apparently quite harmless persons, might abscond or resort to violence during their transfer to the courthouse or at the hearings ..... ’

This approach was recently confirmed by the Court in the case of Ashot Harutyunyan v. Armenia (no. 34334/04, §§ 126 et seq., 15 June 2010) where the applicant had been kept in a metal cage during the entire proceedings before the Court of Appeal, and where the Court found a violation of Article 3 of the Convention on that account.

125. In the Court ’ s opinion, most of the decisive elements in the Georgian and Armenian cases referred to above were present in the case at hand. Thus, the applicant was accused of non-violent crimes, he had no criminal record, and there was no evidence that he was predisposed to violence. The Government ’ s reference to certain ‘ security risks ’ was too vague and was not supported by any specific fact. It appears that ‘ the metal cage in the ... courtroom was a permanent installation which served as a dock and that the applicant ’ s placement in it was not necessitated by any real risk of his absconding or resorting to violence but by the simple fact that it was the seat where he, as a defendant in a criminal case, was meant to be seated ’ (see Ashot Harutyunyan v. Armenia , cited above, § 127). Furthermore, the applicant ’ s own safety or the safety of the co-accused was not at stake. Finally, the applicant ’ s trial was covered by almost all major national and international mass media, so the applicant was permanently exposed to the public at large in such a setting. As in Ashot Harutyunyan the Court concludes that ‘ such a harsh appearance of judicial proceedings could lead an average observer to believe that an extremely dangerous criminal was on trial. Furthermore, [the Court] agrees with the applicant that such a form of public exposure humiliated him in his own eyes, if not in those of the public, and aroused in him feelings of inferiority ’ (§ 128).

126. In sum, the security arrangements in the courtroom, given their cumulative effect, were, in the circumstances, excessive and could have been reasonably perceived by the applicant and the public as humiliating. There was, therefore, a violation of Article 3 of the Convention in that the treatment was degrading within the meaning of this provision. ”

3. The short reasoning in paragraph 63 of the judgment in support of the finding of non-violation of Article 3 of the Convention seems unconvincing.

4. Admittedly, the applicant was suspected of particularly violent crimes. But that is not the correct test. In view of the principle of presumption of innocence, the only test should be whether there is an actual and specific security risk in the courtroom. In paragraph 64 of the judgment the Court rightly accepts that there were no specific facts supporting a security risk. Moreover, the Court highlights the lack of assessment of such a risk by the domestic court.

5. In such circumstances, and even in the absence of extensive media coverage, the placement of the applicant in a metal “cage” constituted per se degrading treatment. Hence, we are of the opinion that there has been a violation of Article 3 of the Convention.