CASE OF KIRIL ZLATKOV NIKOLOV v. FRANCE

FIFTH SECTION

CASE OF KIRIL ZLATKOV NIKOLOV v. FRANCE

(Applications nos. 70474/11 and 68038/12)

JUDGMENT

(Extracts)

STRASBOURG

10 November 2016

FINAL

06/03/2017

This judgment has become final under Article 44 § 2 of the Convention final but it may be subject to editorial revision.

In the case of Kiril Zlatkov Nikolov v. France,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Erik Møse,
André Potocki,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 27 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 70474/11 and 68038/12) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Kiril Zlatkov Nikolov (“the applicant”), on 27 October 2011 and 4 October 2012.

2. The applicant was represented by Ms C. Waquet, of the Conseil d’État and Court of Cassation Bar, and Mr L. Auffret, a lawyer practising in Lyons. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs, Ministry of Foreign Affairs.

3. The Government were given notice of the applications on 27 February 2014 in so far as they concerned Article 5 § 3 of the Convention, Article 14 of the Convention taken in conjunction with Article 6 § 1, and Article 13 of the Convention. The remaining complaints were declared inadmissible.

4. The Bulgarian Government, having been informed of the applications, did not avail themselves of their right to intervene under Article 36 § 1 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1971.

6. In connection with an investigation into an international prostitution ring, measures were taken to intercept telephone conversations in accordance with Article 706-95 of the Code of Criminal Procedure, on one mobile telephone line in particular: from 5 p.m. on 6 August 2009 until 8.39 p.m. on 19 August 2009, on the basis of an order of 5 August 2009 by the Chambéry judge responsible for matters concerning civil liberties and detention (“the liberties and detention judge”), authorising interceptions for two weeks; and from 28 August 2009 until 11 September 2009, on the basis of an order of 26 August 2009 by the same judge. Two conversations with a person using a mobile phone belonging to a certain I.K., which were recorded on 4 September 2009, appeared to incriminate the applicant: one between a woman identified as R.G. and a man known as Kiril, later identified as the applicant, and the other between the same woman and another man, in which the same Kiril was referred to in terms suggesting that he was involved in the prostitution ring.

A. The judicial investigation

1. The applicant’s arrest, transfer to France, placement under formal investigation and pre-trial detention

7. A judicial investigation was opened on 2 October 2009 into alleged offences of living on the earnings of prostitution with aggravating circumstances, committed as part of an organised gang; trafficking in human beings, committed as part of an organised gang; and criminal conspiracy. A warrant for the applicant’s arrest was issued on 28 July 2010 by Judge N.C., the vice-president responsible for the investigation at the Lyons tribunal de grande instance. After being arrested in Germany pursuant to the warrant, which had in the meantime been converted into a European arrest warrant, the applicant was handed over to the French authorities at 11.45 a.m. on 16 December 2010; he was then brought before the Strasbourg public prosecutor and immediately placed in administrative detention in Strasbourg. At 10.56 a.m. on 20 December 2010 he was brought for the first time before B.G., the investigating judge dealing with the case, who placed him under formal investigation for the above-mentioned offences. At about 5 p.m. on the same day, the Lyons liberties and detention judge, to whom the matter had been referred by the investigating judge, interviewed the applicant and remanded him in custody pending trial.

8. Although the alleged offences were classified as serious crimes, the interviews and confrontations carried out during the investigation were not recorded, by virtue of the exception provided for in the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, as applicable at the material time.

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2. Application to have procedural steps declared void

13. On 17 June 2011 the applicant applied to the Investigation Division of the Lyons Court of Appeal to have various procedural steps declared void, including the order for his detention, the interviews and confrontations carried out during the investigation and the interception of various telephone conversations. He submitted two requests for preliminary rulings on constitutionality, concerning respectively the seventh paragraph of Article 64-1 and the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, pursuant to which no video recording had been made of the interviews and confrontations.

14. On 6 September 2011 the Investigation Division dismissed most of the application to have the procedural steps declared void (except for one point concerning the interception of telephone conversations), in particular restating the reason given in its previous decision of 13 January 2011. In two further judgments delivered on the same day, it referred the requests for preliminary rulings on constitutionality to the Court of Cassation.

15. On 14 September 2011 the applicant lodged an appeal on points of law, relying in particular on Article 5 § 3, Article 6 § 1 and Article 14 of the Convention and the constitutional principle of equality.

16. On 18 January 2012 the Court of Cassation referred the requests for preliminary rulings on constitutionality to the Constitutional Council and deferred judgment pending the Council’s decision.

17. In a decision of 6 April 2012 (no. 2012-228/229 QPC) the Constitutional Council declared the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure unconstitutional, holding that by providing for an exception to the rule of compulsory video recording of interviews in connection with serious offences where such interviews were carried out during preliminary or judicial investigations into serious offences relating to organised crime or undermining the fundamental interests of the nation, the impugned provisions infringed the principle of equality. It pointed out that the abrogation of those provisions would take effect from the publication of its decision and would apply in the case of persons in police custody or under formal investigation who were questioned or interviewed from that date onwards.

18. In a judgment of 10 May 2012 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law. ... It rejected his argument that there had been violations of the Convention (he had relied on Articles 6 and 14 of the Convention and, more broadly, the right to a fair trial and the prohibition of discrimination) and the Constitution as a result of the application of the seventh paragraphs of Articles 64-1 and 116-1 of the Code of Criminal Procedure in his case. Firstly, it held that the Constitutional Council had specified that the abrogation of the provisions in question would apply only in the case of persons in police custody or under formal investigation who were questioned or interviewed following the publication of its decision, so that his argument had in that respect become devoid of purpose. Secondly, it observed that the applicant had not been questioned in police custody and that, although his interviews by the investigating judge had not been recorded on video, “this did not result in any infringement of his rights under the Convention, be it his defence rights or the right to a fair trial, seeing that he was given the option of receiving legal assistance, and had the opportunity to review the manner in which the questions and answers had been transcribed in the record, which had been approved by a registrar, to ask for any corrections to be made and to challenge, at any stage of the proceedings, the meaning and scope of his statements as transcribed”.

19. ... Lastly, it held that “it is not possible for anyone other than the party concerned to complain of a breach of the substantive requirements governing police custody, or of the lack of a video recording of police questioning or interviews by the investigating judge, in support of an application to have a procedural step or document declared void”; accordingly, the applicant was not entitled to object that the judgment appealed against had stated that there was no cause to declare void any police questioning or interviews by the investigating judge concerning individuals other than himself.

B. The applicant’s conviction

20. In a judgment of 28 October 2011 the Lyons Criminal Court found the applicant guilty of the alleged offences, although it dismissed the charge of trafficking in human beings. It sentenced him to four years’ imprisonment and a fine of 10,000 euros (EUR).

21. In a judgment of 20 July 2012 the Lyons Court of Appeal upheld the judgment as to the issue of guilt and sentenced the applicant to six years’ imprisonment with a minimum term of two-thirds of the sentence, as well as imposing a fine EUR 10,000 and a five-year exclusion order from the départements of Savoie and Bas-Rhin.

22. An appeal on points of law by the applicant – whose sole argument was that French criminal law was not applicable – was rejected by the Criminal Division of the Court of Cassation in a judgment of 12 June 2013.

23. The applicant was released on 12 June 2015 after serving his sentence.

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THE LAW

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III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6 § 1

54. The applicant complained that he had been discriminated against in that, having been prosecuted for a serious offence relating to organised crime, he had not been afforded the safeguard provided for in Article 116-1 of the Code of Criminal Procedure, namely a video recording of interviews at the investigating judge’s office of anyone placed under formal investigation, given that in accordance with the seventh paragraph of the Article in question, such a safeguard did not apply where the investigation concerned organised crime, serious offences undermining the fundamental interests of the nation or terrorist offences. He relied on Article 14 of the Convention in conjunction with Article 6 § 1. The Articles in question provide respectively:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. The parties’ submissions

1. The Government

55. In the Government’s submission, the applicant could not rely on Article 14 of the Convention, seeing that the nature of the offence with which an individual was “charged”, within the meaning of Article 6 § 1, related solely to the characteristics of acts forming the subject of a preliminary or judicial investigation and therefore did not constitute either a characteristic of the individual concerned or an aspect of his or her status. They pointed out that in Gerger v. Turkey ([GC] no. 24919/94, § 69, 8 July 1999), Akbaba v. Turkey (no. 52656/99, § 28, 17 January 2006), and Tanrıkulu and Deniz v. Turkey (no. 60011/00, § 37, 18 April 2006) the Court had held that there was no discrimination in breach of the Convention where a distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity.

56. The Government further submitted that the difference in nature between offences had to be regarded as de facto entailing different situations for the individuals accused of having committed them: a person charged with an ordinary offence could not be viewed as being in a similar or comparable situation to that of a person charged with a serious or particularly complex offence, such as those provided for in Article 706-73 of the Code of Criminal Procedure (concerning organised crime, undermining the fundamental interests of the nation and terrorism). There had therefore not been a difference in treatment between similar situations.

57. Lastly, the Government pointed out that for there to be a breach of Article 14, the applicant had to have been the victim of discrimination in the enjoyment of a right set forth in the Convention. However, this had not been the case as far as his right under Article 6 § 1 was concerned. They accepted, with reference to the explanatory memorandum on the Bill to improve the balance in criminal proceedings ..., that by making it possible to check statements transcribed in records of questioning or interviews, video recordings contributed to guaranteeing the right of the “person charged” to a fair trial. However, as the domestic court had pointed out in the present case, the lack of a recording did not infringe that right if counsel for the accused was present during the questioning and was able to ensure that the accused’s statements were properly transcribed, to make any observations and to ensure that any difficulties were noted. The Government observed that the applicant had not challenged the accuracy of the records drawn up following his interviews by the investigating judge; and moreover, he had been assisted by counsel during the interviews, so that he had been afforded the same guarantee as the one set forth in Article 116-1 of the Code of Criminal Procedure.

58. The Government added that serious offences committed as part of an organised gang had initially been excluded from the requirement to produce a recording “on account of their seriousness, complexity and more broadly the nature of such offences”. To that end, the legislature had intended to reconcile the rule on recordings with the specific requirements of preliminary and judicial investigations into offences relating to organised crime or undermining the fundamental interests of the nation.

2. The applicant

59. Relying on Clift v. the United Kingdom (no. 7205/07, §§ 58-59, 13 July 2010), the applicant pointed out that, although only differences based on an identifiable personal characteristic by which persons or groups of persons could be distinguished from one another could give rise to discrimination in breach of Article 14, a characteristic could qualify as personal even if it was not innate or inherent in the person concerned. The Court had found in that case (§§ 61-63) and in Engel and Others v. the Netherlands (8 June 1976, § 72, Series A no. 22) and Shelley v. the United Kingdom ((dec.), no. 23800/06, 4 January 2008) that this applied to the status of a prisoner serving a fixed-term sentence of fifteen years or more as opposed to a life sentence, and also to military rank and to the status of a detainee in general. The applicant argued that this was also true of the nature of the offence of which a person was accused.

60. In the applicant’s submission, there had been no relevant justification for the difference in treatment in his case. It could not be justified by the fact that he had been suspected of offences committed as part of an organised gang, since some offences of that kind were not covered by the exception complained of (he mentioned the offences of poisoning and armed assault of a police officer under Articles 221-5 and 222-14-1 respectively of the Criminal Code, where these were committed as part of an organised gang). As to the justification based on the seriousness of the alleged offence, it was inadequate on two counts: firstly because, as the Court had held in Gäfgen v. Germany ([GC], no. 22978/05, § 177, ECHR 2010) and other cases, it was in the face of the heaviest penalties that respect for the right to a fair trial had to be ensured to the highest possible degree by democratic societies; and secondly, because some offences that were just as serious as the one of which he had been suspected (since they carried the same sentence) were not covered by the exception. The same applied to the reason relating to the nature of the interests that had been harmed, given that an offence committed as part of an organised gang affected the same interests as if it had been committed in another way.

B. The Court’s assessment

61. The Court observes that at the material time, Article 116-1 of the Code of Criminal Procedure, by virtue of its seventh paragraph, was not applicable where the investigation related to the offences referred to in Article 706-73 of the same Code (concerning organised crime) or to offences undermining the fundamental interests of the nation or to terrorist offences, unless the investigating judge decided to record the interview. In the present case, in the absence of such a decision, the applicant’s interview by the investigating judge was not recorded as he had been charged with offences referred to in Article 706-73 of the Code of Criminal Procedure, whereas such a measure was automatically applied in the case of anyone charged with other serious offences (except those undermining the fundamental interests of the nation and terrorist offences).

62. The applicant’s argument thus amounts to maintaining that he was discriminated against in the enjoyment of his right to a fair trial.

63. The Court observes, however, that there is no indication that in the circumstances of the case, the fact that the interviews of the applicant were not recorded had any significant impact on the exercise of his rights in the context of the criminal proceedings against him, or even, more broadly, on his personal situation (see Boelens and Others v. Belgium (dec.), no. 20007/09, § 31, 11 September 2012).

64. The Court thus concludes that in any event, the discrimination alleged by the applicant in the enjoyment of his right to a fair trial did not cause him a “significant disadvantage”, within the meaning of Article 35 § 3 (b) of the Convention. This part of the application should therefore be declared inadmissible unless, as specified by the Article in question, “respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”.

65. In this connection, the Court concludes from the fact that the seventh paragraph of Article 116-1 of the Code of Criminal Procedure has been abrogated ... that respect for human rights as defined in the Convention and the Protocols thereto does not require an examination of this part of the application on the merits; it points out that this conclusion can be drawn from the mere fact that the matter before it has been resolved at domestic level, so that the case is now only of historical interest on this point (see Boelens and Others, cited above, §§ 34-35, and Uhl v. the Czech Republic (dec.), no. 1848/12, §§ 25-27, 25 September 2012). Furthermore, it considers that the Constitutional Council’s decision no. 2012-228/229 QPC of 6 April 2012 and the Court of Cassation’s judgment of 10 May 2012 indicate that the complaint under Article 14 in conjunction with Article 6 § 1 has been duly considered by a domestic tribunal.

66. This part of the application must therefore be declared inadmissible and rejected pursuant to Article 35 §§ 3 (b) and 4 of the Convention.

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FOR THESE REASONS, THE COURT

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3. Declares, by a majority, the remainder of the applications inadmissible;

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Done in French, and notified in writing on 10 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint concurring opinion of Judges Yudkivska and Ranzoni;

(b) partly dissenting opinion of Judge Mits.

A.N.
M.B.

JOINT CONCURRING OPINION OF JUDGES YUDKIVSKA AND RANZONI

(Translation)

We agree with the majority that the application should be declared inadmissible as regards the complaints under Article 14 in conjunction with Article 6 § 1 of the Convention. However, we cannot concur with the finding that this part of the application is inadmissible on the basis of the lack of a “significant disadvantage” within the meaning of Article 35 § 3 (b). This admissibility criterion makes it possible to declare cases inadmissible because of their insignificance, when they “might have resulted in a judgment without it” (see paragraph 79 of the Explanatory Report on Protocol No. 14 to the Convention).

In our view, the present case does not come within this category, since the problem it raises falls outside the scope of the Convention.

The applicant submitted that the lack of a video recording of interviews by the investigating judge – solely in the case of individuals suspected of offences relating to organised crime – amounted to a discriminatory measure and a violation of Article 14 in conjunction with Article 6 § 1 of the Convention. As the majority held, “there is no indication that in the circumstances of the case, the fact that the interviews of the applicant were not recorded had any significant impact on the exercise of his rights in the context of the criminal proceedings against him, or even, more broadly, on his personal situation” (see paragraph 63 of the judgment). In fact, the applicant did not complain that the very essence of his right to a fair trial had been impaired; it appears that his interviews were duly transcribed in the records.

Article 6 of the Convention enshrines the rule of law in a democratic society. The fundamental principle is that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Paragraphs 2 and 3 of Article 6 set out the procedural safeguards available to everyone charged with a criminal offence. Thus, Article 6 guarantees basic fairness in such matters. Such fairness must, in addition, be “practical and effective, and not theoretical and illusory”. Similarly, any complaint raised in this context must relate to a practical violation of the rights secured by Article 6, and not merely a theoretical violation.

In the present case the applicant complained that his interview by the investigating judge and his confrontations with another defendant were not recorded, although the interviews were transcribed in the records.

The Court has already observed the following: “The recording of interviews provides a safeguard against police misconduct ... However, it is not persuaded that these are an indispensable precondition of fairness within the meaning of Article 6 § 1 of the Convention. The essential issue in each application brought before this Court remains whether, in the circumstances of the individual case, the applicant received a fair trial” (see Brennan v. the United Kingdom, no. 39846/98, § 53, ECHR 2001‑X).

In the case cited above, the Court refused to acknowledge video recordings of the examination of suspects as fundamental procedural safeguards, even in the case of police questioning. The present case concerned an interview by an investigating judge, in which context the risks of abuse are lower.

Although the Court has accepted that “an additional safeguard in that context may be to show, at the trial hearing, a video recording of the absent witness’s questioning at the investigation stage in order to allow the court, prosecution and defence to observe the witness’s demeanour under questioning and to form their own impression of his or her reliability” (see Schatschaschwili v. Germany [GC], no. 9154/10, § 127, ECHR 2015), it has never treated the recording as a procedural safeguard in its own right.

Article 6 § 1 of the Convention does not require the States Parties to opt for the solution of recording the questioning of persons charged with a criminal offence. The recording as such can be seen as an alternative to the written record, a further technical option made possible through technological progress, allowing information to be recorded easily in the course of the questioning.

We do not dispute that the use of audiovisual recordings of interviews facilitates the parties’ work by making it possible to check the statements transcribed in the written records, but this on no account makes it the only way of securing evidence during questioning.

The safeguards of a fair trial in terms of equality of arms were afforded in the present case since the interviews of the applicant were transcribed in the written records and he was able to check them himself and with the assistance of his counsel, and amend them where appropriate (see paragraph 57 of the judgment).

However, the interviews were not actually recorded, in accordance with the exception provided for in the seventh paragraph of Article 116-1 of the Code of Criminal Procedure, as applicable at the material time. They had taken place in 2010. In 2012 the Constitutional Council declared Articles 64-1 and 116-1 of the Code of Criminal Procedure unconstitutional, but the scope of its reasoning remains limited. The provisions in issue allowed for several situations in which interviews did not have to be recorded (for example, because of the “number of people ... needing to be questioned at the same time”, or “where this is technically impossible, as noted in the record”, and so on), in addition to the circumstances dealt with in the context of the present case. The Constitutional Council abrogated the provisions by which such exceptions were permissible, holding: “the difference in treatment ... entails unjustified discrimination; these provisions infringe the principle of equality and must be declared unconstitutional” (see Constitutional Council decision no. 2012-228/229 QPC of 6 April 2012, § 9).

The principle of equality set forth in the French Constitution resembles the principle of non-discrimination enshrined in Article 1 of Protocol No. 12 to the Convention. Indeed, if the present case had been considered under that Article, we would be in agreement with the majority. However, France has neither signed nor ratified Protocol No. 12. Article 14 of the Convention, meanwhile, “has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded” by the other substantive provisions of the Convention and the Protocols thereto (see, among other authorities, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Hämäläinen v. Finland [GC], no. 37359/09, § 107, ECHR 2014).

For our part, we consider that the method for recording interviews during investigations does not concern “the enjoyment of the rights and freedoms” secured by the Convention. Accordingly, Article 14 is likewise inapplicable. It is true that Article 14 may apply even in the absence of a violation of a substantive provision of the Convention (see X v. Turkey, no. 24626/09, § 55, 9 October 2012, and Taddeucci and McCall v. Italy, no. 51362/09, § 45, 30 June 2016). However, we take the view that an extension of the scope of Article 14 without a sufficient link to a substantive provision of the Convention would render it vague and impossible to distinguish from Article 1 of Protocol No. 12.

In conclusion, we consider that the application is inadmissible ratione materiae and we regret that the majority’s finding of no significant disadvantage may give the impression that technical facilities assisting the enjoyment of rights that are already fully protected may be raised to the rank of fundamental safeguards.

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.

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