PARTLY DISSENTING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

1. My dissenting opinion concerns solely the applications 61249/16 and 61253/16, which were declared inadmissible by the Chamber for an abuse of the right of individual application. The majority considers that the disclosure by the applicants ’ lawyer of the friendly-settlement proposal prepared by the Registry of the Court amounts to abuse of the right of petition and justifies a finding that the two applications are inadmissible.

With all due respect, I cannot share that conclusion.

2. The dismissal of these two applications results from public statements made by the applicants ’ lawyer on 30 January 2017. More specifically, the lawyer allegedly transmitted the following information to the State news agency TASS:

“The Court has granted our application and ordered that the Gubashevs be paid 6,500 euros each in compensation. We had complained about the conditions of detention: belated transportation to court, violations of the regulations on meals, the use of handcuffs ... ”

The web pages and newspapers which relayed the lawyer ’ s statements show photographs of the applicants during their criminal trial. Nowhere do they suggest that the applicants had taken part in disclosing the text of the friendly-settlement proposal, as was the case, for instance, in Mandil v. France (dec.), no. 67037/09, 13 December 2011.

3. The judgment claims to be based on well-established case-law by the Court. The relevant paragraph (number 24) refers to five previous decisions, namely Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; Baucal-Đorđević and Đorđević v. Serbia (dec.), no. 38540/07, 2 July 2013; Gorgadze v. Georgia (dec.), no. 57990/10, 2 September 2014; and Ausad Valimised Mtü v. Estonia (dec.), no. 40631/14, 27 September 2016; it also refers to Tsonev v. Bulgaria (dec.), no. 44885/10, § 26, 8 December 2015. It is true that our case has similarities to Tsonev . The problem, in my humble opinion, is that the Tsonev decision, like the case before us, departed, with no particular justification, from the Court ’ s consistent case-law. In reality, all of the cases cited in Tsonev (§ 26) – but also in the five other decisions mentioned at the beginning of this paragraph – concern disclosures made personally by the applicants, with or without their lawyers being present. The case-law in force until now has required (some reasons are to be found below) substantiated evidence of personal and wilful responsibility on the part of the applicant in disclosing the friendly-settlement proposal to third parties (see Hadrabová and Others v. the Czech Republic (dec.); Miroļubovs and Others v. Latvia , § 66, no. 798/05, 15 December 2009; Gorgadze v . Georgia, § 19; Mandil v. France; and Ausad Valimised Mtu v. Estonia (dec.), § 19, no. 40631/14, 27 September 2016). In our case, however, and I would emphasise this point, the disclosure was made exclusively by the lawyer, and there is no reason to suppose that this revelation enjoyed the applicants ’ tacit support. Moreover, they have been imprisoned since 2015 (paragraph 5).

4. In reality, the decision that I contest, is, as I see it, based on two disputable premises: (a) the applicants and their lawyer did not advance any justification for failing to comply with the confidentiality rule concerning the friendly-settlement proposal (paragraph 27), and (b) it is presumed that the lawyer was representing the applicants in making this disclosure (paragraph 24).

Firstly, it is unlikely that the lawyer will admit to his own wrongdoing.

Secondly, the Court ’ s official application form sets out the limits of the lawyer ’ s authority. The principal (the applicant) must expressly authorise a lawyer to represent him or her before the European Court of Human Rights “concerning [the] application lodged under Article 34 of the Convention”. For his or her part, the lawyer must agree “to represent the applicant in the proceedings before the European Court of Human Rights concerning the application lodged under Article 34 of the Convention”. It is this bilateral agreement, to be strictly construed, which henceforth authorises the lawyer to act on the applicant ’ s behalf. The signatures which are to be found in the respective applications prove that the applicants did indeed confer this task on their lawyer. However, the lawyer ’ s powers are not unlimited. They are restricted to the contentious proceedings being conducted before our Court. Thus, as a general rule, the applicant takes responsibility for all of the procedural acts carried out by his or her representative: submission of the application and the subsequent observations, the lawyer ’ s reception of the observations from the respondent Contracting Party, etc. In our case, the public statements made by the applicants ’ lawyer to the TASS State news agency cannot in any way be equated with a procedural act. On the contrary, they amount to a demonstration of free speech by the lawyer, committed outside the strict framework of the authority form and in the exercise of his freedom of expression. The applicants are not bound by his actions. The opposing party is free to take action against him if they consider that damage has been caused or to decline any friendly negotiation.

5. It might be argued that the applicants can always bring an action for professional liability against the lawyer at fault at a later point. In my view, that possibility is illusory here. In such a scenario, it would be for the applicants (who, I would repeat, are in prison), to prove to the domestic courts that they had had a strong probability of winning the cases brought by them before the Court against the Russian State. This is mere speculation, especially as they would be unable, in view of its confidential nature, to use the friendly-settlement proposal. Moreover, the dismissal of their applications, final as it is, ends any hope of a finding of a violation of the Convention. Lastly, I find it difficult to imagine that the Russian courts will at some future point admit, even indirectly, that there was fault of the part of the State, given that the applicants have not to date obtained satisfaction through the domestic remedies.

6. One point which strikes me as particularly problematic in the majority ’ s reasoning is the automatic nature of the rejection, without giving reasons for the change in the case-law or taking into consideration the aims pursued by the confidentiality rule.

In my view, the prohibition provided for in Article 39 § 2 does not, by itself, justify the rejection of an application. A combined reading of Article 39 § 2 and Article 35 § 3 (b) implies that the rejection of an application for disclosure of the friendly-settlement negotiations requires evidence of an abuse of process (see Miroļubovs and Others , § 62). Consequently, in the absence of such evidence, the application in question should not be declared inadmissible.

Thus, our Court has had occasion to explain that the aim of the confidentiality requirement was to protect the parties and itself from possible outside pressure (see Abbasov and Others v. Azerbaijan , § 29, no. 36609/08, 28 May 2013; Popov v. Moldova , § 48, no. 74153/01, 18 January 2005; Mandil v. France ; Miroļubovs and Others , § 66; and, mutatis mutandis , Eur. Com. HR, no. 26135/95, Dec. 5. 3. 1996, D.R. no 84-B, p. 156). It is therefore clearly a question of preventing abusive conduct. One cannot but note that the respondent State has not alleged any form of pressure. In their written observations, they merely condemn the breach of the confidentiality rule. With regard to our Chamber, I fail to see what difference this disclosure would have made to the decision on the merits had the case been declared admissible.

7. I consider that the rejection of an application must always be an exceptional measure (see Miroļubovs and Others , § 62), bearing in mind the very serious consequences for the applicants (see also Judge Koskelo ’ s separate opinion in ÄŒapský and Jeschkeová v. the Czech Republic , nos. 25784/09 and 36002/09, 9 February 2017). As a form of procedural “sanction”, it should be applied in a restrained manner, as our Court has indicated to the highest national courts (see Pérez de Rada Cavanilles v. Spain , 28 October 1998, § 49, Reports of Judgments and Decisions 1998 ‑ VIII; Miragall Escolano and Others v. Spain , § 38, no. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, 25 January 2000; Sotiris and Nikos Koutras ATTEE v. Greece , § 20, no. 39442/98, 16 November 2000; BÄ›leÅ¡ and Others v. the Czech Republic , § 50, no. 47273/99, 12 November 2002; RTBF v. Belgium , §§ 71-72 and 74, no. 50084/06, 29 March 2011; BureÅ¡ v. the Czech Republic , § 144, no. 37679/08, 18 January 2013; Bulena v. the Czech Republic , § 35, no. 57567/00, 20 July 2004; Kadlec and Others v. the Czech Republic , § 29, no. 49478/99, 25 August 2004; and Boulougouras v. Greece , § 27, no. 66294/01, 28 August 2004). Indeed, I consider that the precepts of a fair trial should also be binding on the Court. The latter ’ s authority and prestige also depend on it applying to itself the rules that it lays down for the domestic courts. This is required to preserve the principles of equality, legal certainty and public confidence.

8. Lastly, it is perfectly reasonable to assume that in the case before us the applicants were victims of inhuman or degrading treatment. Indeed, where the Court (through the Registry) proposes a friendly settlement, it is because it deduces that a violation has probably occurred. In weighing up a procedural requirement (confidentiality of the friendly-settlement proposal) and recognition of the violation of a right from which no derogation is possible (Article 3), the balance ought, in my opinion, to tip towards the latter. As a sanction for the lawyer ’ s negligence, the Court could then perhaps refrain from holding that the respondent State is to pay the fees of the applicants ’ representative. In this way respect for human rights and compliance with the procedural rules could be reconciled.

9. I call for this severe measure to be applied with much caution, on the basis of clear and foreseeable criteria and, equally, depending on the particular circumstances of each case.

APPENDIX

No.

Application No.

Application Title

1.

18496/16

Eskerkhanov v . Russia

2.

61249/16

Anzor Gubashev v . Russia

3.

61253/16

Shadid Gubashev v . Russia