PARTLY DISSENTING OPINION OF JUDGE SICILIANOS

1. I fully agree with all the points set out in the judgment except the finding, in paragraph 73, that “the respondent State has not failed to comply with its obligations under the last sentence of Article 34 of the Convention”, namely the duty “not to hinder in any way the effective exercise” of the right to submit an individual application to the Court.

2. In Mamatkulov and Askarov v. Turkey the Grand Chamber of the Court emphasised that the right of individual petition constitutes the cornerstone of the whole Convention system. Having also in mind the special character of the Convention and its object and purpose, the Grand Chamber has analysed the content of the obligation contained in the last sentence of Article 34 as follows:

“100. The Court has previously stated that the provision concerning the right of individual application (Article 34, formerly Article 25 of the Convention before Protocol No. 11 came into force) is one of the fundamental guarantees of the effectiveness of the Convention system of human rights protection. In interpreting such a key provision, the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘ collective enforcement ’ (see, mutatis mutandis , Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 26, § 70).

101. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective, as part of the system of individual applications. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with ‘ the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society ’ (see Soering , cited above, p. 34, § 87, and, mutatis mutandis , Klass and Others v. Germany , judgment of 6 September 1978, Series A no. 28, p. 18, § 34).

102. The undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual ’ s right to present and pursue his complaint before the Court effectively. That issue has been considered by the Court in previous decisions. It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. As the Court has noted in previous decisions, ‘ pressure ’ includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see, among other authorities, Petra v. Romania , judgment of 23 September 1998, Reports 1998-VII, pp. 2854-55, § 43; Kurt v. Turkey , judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; Aksoy v. Turkey , judgment of 18 December 1996, Reports 1996-VI, p. 2288, § 105; and Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports 1996-IV, p. 1219, § 105)” (see Mamatkulov and Askarov v. Turkey , [GC], nos. 46827/99 and 46951 /99, §§ 100 ‑ 102 , ECHR 2005-I ).

3. In the same vein, the present judgment reaffirms that “ ‘ any form of pressure ’ includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or communication designed to dissuade or discourage applicants from pursuing a Convention complaint, or having a “chilling effect” on the exercise of the right of individual petition of applicants and their representatives” (§ 65, references omitted). The judgment further notes that the fact that an individual has managed to pursue his application does not prevent an issue arising under Article 34. Should a Government ’ s actions make it “more difficult” for an individual to exercise his right of application, this amounts to “hindering” his rights under Article 34. The intentions or reasons underlying the acts or omissions of State organs are of “little relevance” for the assessment of compliance with Article 34. What matters is the actual situation created for the individual. Furthermore, the Court must assess the complainant ’ s vulnerability. An applicant ’ s position “might be particularly vulnerable when he is held in custody with limited contact with his family or the outside world” (see § 66 of the judgment).

4. I fully subscribe to all the above statements, which are, in my view, consonant with the object and purpose of Article 34. However, I consider the application of those principles to the present case as rather problematic. It is true that the facts are disputed between the Government and the applicant. In such a situation, the majority (quite rightly) relied upon the facts as established by the domestic judicial authorities, i.e. the Court of Appeal. According to that court, the applicant was presented with written copies of the detention reviews which included statements that his detention would be reduced if he were to withdraw his application and accept voluntary return. Furthermore, the immigration officers also indicated to the applicant orally that voluntary return would reduce the length of detention (see § 68 of the judgment).

5. In other words, what was suggested to the applicant in order to reduce the length of his detention was to withdraw the application to the Court and to accept to return to Somalia. In my view, such an attitude amounts, if not to a direct pressure, at least to an “improper indirect act or communication designed to dissuade or discourage” the applicant “from pursuing a Convention complaint, or having a “chilling effect” on the exercise of the right of individual petition”. This seems to be all the more so in that the applicant was an immigrant “held in custody with limited contact with his family or the outside world” and thus “particularly vulnerable” according to the above-mentioned standards set out in the case-law of the Court.

[1] . Declaration of the High Level Conferences on the Future of the European Court of Human Rights, Izmir Turkey 26-27 April 2011, Section A “Individual measures”.