JOINT PARTLY DISSENTING OPINION OF JUDGES JUNGWIERT AND KOVLER

We cannot share the Court’s conclusion that there has been a violation of Article 3 of the Convention in respect of the applicants mentioned in point 4 of the operative part. The applicants submitted that, owing to a lack of information about the fate of their relatives and the Russian authorities’ “dismissive approach” to their requests for information, they had endured inhuman and degrading treatment.

We are surprised that in this particular case the Court observes that the authorities’ obligation under Article 3 is distinct from the obligation resulting from Article 2 of the Convention “both on points of substance, and in its temporal outreach” and that “the obligation imposed by Article 3 is of a more general humanitarian nature” (see paragraph 152 of the judgment). On this occasion we would point out that in a number of cases the Court has found that the relatives of a “disappeared person” were themselves victims of a violation of Article 3 of the Convention. Those findings were based on the state of uncertainty the relatives had had to endure owing to their inability to find out the fate of their next-of-kin (see, among other cases, Orhan v. Turkey , no. 25656/94, § 324, 18 June 2002). In the present case the Court itself did not accept the “disappeared persons” version, thereby applying a strict criterion under Article 2, treating the deaths as an instantaneous act. With regard to the Article 3 issue, the Court has previously concluded that “no separate issues arise under this Convention provision beyond those already examined under Article 2 of the Convention” (see Tangiyeva v. Russia, no. 57935/00, § 104, 29 November 2007; Sambiyev and Pokayeva v. Russia, no. 38693/04, §§ 74-75, 22 January 2009; and Velkhiev and Others v. Russia, no. 34085/06; § 138, 5 July 2011).

We would also point out that in some “Chechen” cases, despite finding a violation of the procedural limb of Article 2 of the Convention, the Court said that it was not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it had breached Article 2 in its procedural aspect, could in itself have caused the applicant mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see Khumaydov and Khumaydov v. Russia, no. 13862/05, §§ 130-131, 28 May 2009, and Zakriyeva and Others v. Russia , no. 20583/04, §§ 97-98, 8 January 2009).

While we do not doubt that the death of their relatives caused the applicants profound suffering, we nevertheless find no basis in the Court’s case-law for finding a separate violation of Article 3 of the Convention, especially in the particular context – the time factor – of the present case. Consequently, we will not explore further the other reasons for the Court’s conclusions on this issue.

[1] . http://rusarchives.ru/publication/katyn/spisok.shtml. Last visited on 15 February 2012.

[2] . RSFSR – Russian Soviet Federative Socialist Republic.

[3] Steven Greer, The European Convention on Human Rights – Achievements,

Problems, and Prospects , Cambridge University Press (2006), pp. 365, p.1 (emphasis added).

[4] Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989.

[5] See the concurring opinion of Judge Lorenzen in the case of Å ilih v. Slovenia (emphasis added).

[6] Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004), pp. 239, p. 41 (emphasis added).

[7] Judge Kovler voted against finding a violation of Article 3 for the reasons expressed in the joint dissenting opinion of judges Jungwiert and Kovler.

[8] Judge Zagrebelsky, in his concurring opinion, joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó, described the “vague wording” (sic!) of the said paragraph in the following way:

“In my view, the introduction (for which there was no need in the present case) of the notion of ‘limits’ on the ‘detachability’ of the procedural obligation from the substantive obligation under Article 2 weakens the reasoning of the Court and makes the application of the legal principle established by the Grand Chamber difficult, debatable and unforeseeable. This is particularly true and troublesome in the light of the vague wording used in paragraph 163 to define the ‘limits’ in question. The Court will be forced to carry out complex and questionable assessments on a case-by-case basis that will be difficult to dissociate from the merits of the case. The impact this is likely to have on ‘legal certainty’ (which the Court has rightly referred to) is, I would venture, both obvious and harmful.”

In a recent judgment of the UK Supreme Court (18 May 2011), Lord Phillips said the following:

“49. The meaning of each of the three sentences of para 163 is far from clear. The concept of a ‘connection’ between a death and the entry into force of the Convention for the state in question is not an easy one if, as seems to be the case, this connection is more than purely temporal. The final sentence of the paragraph is totally Delphic and would seem designed to prevent the closing of the door on some unforeseen type of connection. I shall say no more about it.” ( In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) ) [2011] UKSC 20.

[9] In this respect, we are not convinced by Lord Philipps’ statement that the sentence was included “to prevent the closing of the door on some unforeseen type of connection.” (emphasis added). See above ( In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) ) [2011] UKSC 20, at para [49].

[10] Compare Judge Zagrebelsky, joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó: “In any event, if the criminal law is no longer applicable owing to the expiration of the limitation period or if an investigation would be pointless because of the disappearance of evidence and witnesses, there will be no justification for imposing the obligation.”

[11] In fact, the massacres were committed on three different sites: Katyń, near Smolensk, Kharkov (now Ukraine) and Tver.