PARTLY DISSENTING OPINION OF JUDGE ADEISHVILI

I regret that I can not agree with the position of the majority of the Chamber in finding a violation of Article 2 (procedural aspect) and Article 38 of the Convention.

With regard to the interpretation and application of the procedural aspect of Article 2 of the Convention, I believe that the majority deviated from the principle of subsidiarity – a cornerstone of the Convention system. In the present case the Court has been unable to avoid acting as the appellate body it is not intended to be. In its practice the Court often has to strike a balance between subsidiarity and supervision. In the case “ Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium v. Belgium (Merits)” the Court refused “to assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention” (paragraph 10, Interpretation adopted by the Court, judgment of 23 July 1968). The present case is threatening to the very principle that guarantees the efficiency of the system.

In establishing the violation by the judiciary of Article 2 in its procedural aspect, the Court imputed a number of other action s to the domestic courts that cannot be deemed to be the functions of the judiciary and thus cannot be attributed to it. For instance, the deficiencies described by the Court in paragraphs 261-266 have nothing to do with the activities of the domestic courts.

According to the legislation at the material time , the court s were the only authority with the power to dispense justice . The d omestic courts had no role to play in starting any investigation themselves or collect ing any evidence. This was the job of the prosecution.

In the present judgment the Court criticises the domestic courts ’ inactiv ity, but the question arises whether, at the material time, the domestic courts actually had the power to remedy the shortcomings the Court imputes to the judiciary today . The answer is that all th e issues raised by the Court in the above - mentioned paragraphs should have been clarified by the investigati ng authorities and not by the domestic courts , because a t the material time the judiciary had no right even to return a case for additional investigation without the consent of the prosecution. Thus, it is not correct to impute all those deficiencies to the judicial authorities when the lat t er had no power to cure them.

As regards Article 38, I have to disagree with the majority ’ s departure from the Court ’ s case-law. In a number of cases the Court has found violations of Article 38 when the requested materials were never submitted to it ( Imakayeva v. Russia , no. 7615/02, § 201, Lyanova and Aliyeva v. Russia , nos. 12713/02 and 28440/03 , § 145, Nevmerzhitsky v. Ukraine , no. 54825/00 § 77).

In the case of Alikhadzhiyeva v. Russia (no. 68007/01 ) , the respondent Government submitted the case file only after the application had been declared admissible (§ 99). In fact, the Government even directly refused to submit the case file at the communication stage (§ 102). However, in paragraph 104 the Court noted: “ As to Article 38, the Court reiterates that it is applicable to cases which have been declared admissible. Taking into account the Government ’ s compliance with the Court ’ s request after the admissibility decision, the Court cannot find that the delays in submitting the information requested were such as to prejudice the establishment of facts or to otherwise prevent the proper examination of the present case. In these circumstances, the Court considers that there has been no breach of Article 38 of the Convention as regards the timing of the submission of the documents requested by the Court”.

From the Court ’ s above clarification it can be inferred that in order for a delay in submitting the case file to be considered as a violation of Article 38, (i) the delay must occur at that stage in the proceedings when the case is examined on the merits; (ii) the delay must be such as to prejudice the establishment of facts; (iii) the delay must be such as to otherwise prevent the proper examination of the case.

In the present case none of the above-mentioned conditions applied. The admissibility and merits of the case were examined at the same time (paragraph 4), and during that examination all the requested materials were in the possession of the Court. At the same time, the delay was not of such a nature as to prejudice the establishment of facts or otherwise prevent the proper examination of the case. The judgment on the present case is direct evidence that, based on the materials received, the Court made the relevant factual inferences and drew the corresponding legal conclusions. Nothing suggests either that the Court was unable to fulfil its functions because of the Government ’ s failure to discharge its obligations under the Convention. So there was no element in the case that could result in a violation of Article 38.

This precedent creates a dangerous approach to the use of Article 38, as it may make the Governments rather reluctant to furnish the Court with the materials in their possession, knowing that even if they submit them with a certain delay the Court may still find a breach of Article 38. This approach may not be in the Court ’ s best interest in achieving its ultimate goals.

[1] The conversion given in accordance with the exchange rate of the Georgian lari to the euro on 14 December 2010