JOINT CONCURRING OPINION OF JUDGES SPIELMANN, VILLIGER, KARAKAÅž, ZIEMELE AND SPANO

It is with regret that we are unable to agree with the Court’s conclusions regarding the Government’s objection to the applicants’ victim status. The majority find in paragraphs 126 and 127 of the judgment that the objection “does not concern a matter that goes to [the Court’s] jurisdiction” and that “the Government are estopped from raising a preliminary objection based on the applicants’ victim status at this stage of the proceedings ...”.

We cannot agree with that approach, which we find to be inconsistent with the Court’s case-law. In its judgment in the case of R.P. and Others v the United Kingdom, no. 38245/08, 9 October 2012, the Court stated (in § 47):

“Although the Government have not raised an objection on this ground, the Court notes that an objection on the ground of victim status is an objection which goes to the Court’s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (see, mutatis mutandis , Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III).”

The Court confirmed this approch very recently, in its judgment in the case of Furman v. Slovenia and Austria (no. 16608/09, judgment delivered on 5 February 2015). Paragraph 84 of that judgment states:

“The Court has already held that the question of admissibility on the ground of victim status falls within the Court’s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (see R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012)...”

In our view, the Court should in the instant case have examined the Government’s objection, rather than disposing of it with reference to the doctrine of estoppel.

We also consider that it was not necessary for the Court to take such a firm position on this matter, having regard to the fact that in the subsequent paragraphs it proceeds to examine the objection on an “even assuming”basis and then dismisses it.

CONCURRING OPINION OF JUDGE DE GAETANO

I have had the benefit of reading the joint concurring opinion of Judges Spielmann, Villiger, KarakaÅŸ, Ziemele and Spano.

While I agree that the wording of paragraph 126 is highly problematic, I am of the view that the Government were correctly estopped in this case from raising the preliminary objection based on the applicants’ lack of victim status.

To my mind, the correct approach in this case is that laid down in paragraph 82 of Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts)) where it was stated as follows:

“In the absence of any exceptional circumstances that could have dispensed the Government from raising this objection in a timely manner, the Court holds that the Government are estopped from raising their preliminary objection concerning the first applicant’s victim status (see Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006 ‑ II; Prokopovich v. Russia , no. 58255/00, § 29, ECHR 2004-XI (extracts); and Andrejeva v. Latvia [GC], no. 55707/00, § 49, ECHR 2009).”

The Court is, of course, always at liberty to raise a similar matter ex officio but in the instant case it did not. For that reason, paragraphs 128 to 135 are unnecessary, and the issue of the preliminary objection should have stopped at paragraph 127.