C ONCURRING OPINION OF J UDGE L ORENZEN

I voted with the majority in favour of finding a violation of Article 2 in its procedural limb. However, I am not able fully to agree with the majority ' s reasoning in respect of the Court ' s jurisdiction ratione temporis.

As demonstrated in paragraphs 148-152 of the judgment, the Court has not always been consistent in its case-law when determining whether it has jurisdiction to examine complaints of a violation of the procedural requirements under Articles 2 and 3 where the facts concerning the substantive aspect of these Articles fall outside the period under the Court ' s competence even if the subsequent proceedings fall at least partly within that period. In the case of Blečić v. Croatia ( [GC], no. 59532/00, ECHR 2006-III) the Court established general principles to be applied in respect of its jurisdiction ratione temporis but did not address the specific question of its temporal jurisdiction under Articles 2 and 3 in the above situation.

For the reasons stated in paragraphs 153-162 of the judgment I can agree that the Court has – in certain circumstances – jurisdiction ratione temporis to examine procedural complaints relating to deaths which have taken place outside its temporal jurisdiction, but that, for obvious reasons of legal certainty, such jurisdiction cannot be open-ended. In this respect, I fully agree with what is said in paragraph 161 of the judgment. However, I fail to see that the criteria established by the majority in paragraph 163 are in conformity with this requirement. Thus, it is not easy to understand what is meant by the requirement for “a genuine connection” between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Furthermore the fact that the majority seem ready to accept such a connection “based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” appears to confirm that the jurisdictional limits will be difficult to identify, if they exist at all. I find it incompatible with the declared intention to respect the principle of legal certainty to define the Court ' s temporal jurisdiction in such a vague and far-reaching way.

In my opinion, there must be a clear temporal connection between on the one hand the substantive event – death, ill-treatment etc. – and the procedural obligation to carry out an investigation and, on the other, the entry into force of the Convention in respect of the respondent State. This will be the case where the event occurred and an investigation was initiated before the entry into force of the Convention, but a significant part of that investigation was only carried out after that date. Likewise where the event occurred or was only discovered so close to the critical date that it was not possible to commence an investigation before that date. Where on the other hand no investigation was carried out despite knowledge of the event or where the investigation was terminated before the critical date, I would say that the Court would have jurisdiction only where an obligation to carry out investigative measures was triggered by relevant new evidence or information (see, mutatis mutandis , Brecknell v. the United Kingdom , no. 2457/0 4, §§ 70-71, 27 November 2007).

In the present case, the death of the applicant ' s son occurred a little more than a year before the entry into force of the Convention in respect of Slovenia and, with the exception of the preliminary investigation, all the criminal and civil proceedings were initiated and conducted after that date (see paragraph 165 of the judgment). In these circumstances, I agree that there is a sufficient temporal connection between the relevant events and the entry into force of the Convention to find that the Court has jurisdiction ratione temporis to examine the applicants ' procedural complaint under Article 2. For the reasons stated in the judgment I agree that there has been a violation of that Article.

CONCURRING OPINION OF JUDGE ZUPANČIČ

I concur in the outcome in this case but consider it useful to add the following remarks.

In Moldovan and Others and RostaÅŸ and Others v. Romania ((dec.), nos. 41138/98 and 64320/01, 13 March 2001) , the critical language of the decision goes as follows:

“ In the present case, the Court notes that the killings happened in September 1993 before the entry into force of the Convention with regard to Romania , i.e. 20 June 1994. However, in accordance with the generally recognised rules of international law, the Convention only applies in respect of each contracting party to facts subsequent to its coming into force for that party . The possible existence of a continuing situation must be determined, if necessary ex officio , in the light of the special circumstances of each case (e.g., n os. 8560/79 and 8613/79 (joined), Dec. 3.7.79, D.R. 16, p. 209). The Court must therefore verify whether it is competent ratione temporis to examine the present complaint. ” (Emphasis added.)

It would appear that in Blečić v. Croatia ([GC], no. 59532/00, § 75, ECHR 2006 ‑ III), the Grand Chamber somehow attempted to endorse the Moldovan decision by including it in the summary of the relevant case-law. The subsequent cases, such as Kholodov and Kholodova v. Russia ((dec.), no. 30651/05, 14 September 2006) , have since then been employing a formula combining the approaches from Moldovan and Blečić :

“Admittedly, the investigation into Mr Dmitriy Khodolov ' s death and the trial of putative perpetrators continued long after the ratification of the Convention by the Russian Federation . However, the Court ' s temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference cannot bring it within its temporal jurisdiction (see Blečić v. Croatia [GC], no. 59532/00, § 77, ECHR 2006-...).

Since the Court is prevented ratione temporis from examining the applicants ' assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case (see Moldovan and Others v. Romania (dec.) , no. 41138/98, 13 March 2001).

Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed [in the first place] (see Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005).

The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

As the Court has found that [the facts underlying the ] applicants ' complaint under Article 2 of the Convention [are] outside its jurisdiction ratione temporis , it is not competent to examine whether the applicants had an “arguable claim” of a breach of a substantive Convention right. Accordingly, their allegations under Article 13 also fall outside the Court ' s competence ratione temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001). It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.” (Emphasis added.)

The logic of the decision in Kholodov rests upon the spurious premise. It maintains, almost explicitly but at any rate implicitly, that since the facts of the case are outside the Court ' s temporal jurisdiction, criminal procedures originating in these facts, too, are outside the Court ' s temporal jurisdiction.

However, it is an established and logical precept for the court of last resort not to (re)consider the facts, i.e., to leave this business to the national courts. Thus, to maintain that our Court is prevented from gauging the derivative procedures because it is prevented from examining the facts, which it almost never does, of the historical event is at best formalistic and at worst absurd.

The key question, therefore, is the meaning of the phrase “facts subsequent to its coming into force for that party.” More specifically, the meaning of the word “facts” is the central issue.

The sophisticated approach to this question (of interpretation) would maintain, as Hobbes and Alf Ross did, that outside the norm there are no “facts”, that facts per se do not exist.

In Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II) we even had a situation in which the simultaneous and clear existence of both the “facts” and the norms, because they were not enforced, was, until the change o f (legal) regime, insufficient.

At the very least, the facts do not become legally relevant unless (1) the applicable no rm pre-exist s and (2) the norm is applied.

The problem with Moldovan, a Section decision, is simply that it sets out from a naïve premise that facts and laws ( questiones facti, questiones juris ) may exist separately – and independently of one another. It is true, of course, that the historical event (the killing) may have happened at a certain point in time, e.g., before the entry into force of the Convention. However, if that event (“facts”) had not been registered by the legal system, its legal echo e s would never reach, for example, Strasbourg .

Concerning ratione temporis jurisdiction there are surprisingly few combinations of event and procedures that comprise the gamut of experiment. (1) Both the historical event and the subsequent procedures might have been in the period prior to the Convention ' s entry into force in respect of the country concerned . Clearly, even if the procedures were allegedly in violation of the procedural limb of Article 2 or 3, the case was ad acta before the Convention ' s entry into force. (2) Both the historical event and the subsequent procedures might have been posterior to the Convention ' s coming into force in respect of the country concerned, in which case, likewise, there is no ratione temporis issue. (3) However, if the historical event occurred prior to the Convention ' s entry into force whereas the procedures were posterior to that date , there are further possible combinations: thus, in Kholodov , the case was processed to a preponderant extent after the entry into force of the Convention, whereas in Blečić the reverse was true.

Here it is interesting to note that in Blečić the Court maintained, in paragraph 85, that:

“ . .. the alleged interference with the applicant ' s rights lies in the Supreme Court ' s judgment of 15 February 1996. The subsequent Constitutional Court decision only resulted in allowing the interference allegedly caused by that judgment – a definitive act which was by itself capable of violating the applicant ' s rights – to subsist. That decision, as it stood, did not constitute the interference. Having regard to the date of the Supreme Court ' s judgment, the interference falls outside the Court ' s temporal jurisdiction.”

The clear implication of this is that although in Blečić both the historical event and most of the procedures took place prior to the coming into force of the Convention in respect of Croatia, it would have sufficed for the ultimate judgment of the Croatian Supreme Court to have been posterior to the coming into force of the Convention for the case to fall within the European Court ' s temporal jurisdiction. In other words, the Moldovan and Kholodov decision s are unmistakably irreconcilable with Blečić .

Moreover, this Court ' s subsidiary supervision of human rights, even by the language of Article 41, comes into play only after the domestic procedures have proved inefficacious. The Contracting Party, in this case Slovenia , cannot be expected to be able to prevent medical negligence and its sequelae. Ultra posse nemo tenetur – No one can be expected to do the impossible.

The State may, however, be expected to react vigorously through its institut ionalised procedures. At issue in all cases in which the State is not directly involved in the killing, torture etc. as, for example, in Selmouni v. France ( [GC], no. 25803/94, ECHR 1999 ‑ V ) and Jalloh v. Germany ( [GC], no. 54810/00, ECHR 2006 ‑ ... ) , are solely its investigative, prosecutorial and judicial procedures indirectly consequent upon the incriminated killing or torture. The rest is the horizontal effect known as Drittwirkung .

It follows that the so-called “procedural limb” of Article 2 or 3, often in conjunction with Article 13, habitually represents the only possible “ facts subsequent to the Convention ' s coming into force for that party ” ( supra, Moldovan ). In this sense, it can, after Šilih , be maintained that the “logic” of Moldovan, Kh o lodov and similar cases has been superseded by the language of paragraphs 159, 162 and 163 of Šilih . Likewise, the impact of Blečić seems to have been narrowed down to holding merely that the inadmissibility decision by the Constitutional Court does not suffice to bring the case within the European Court ' s temporal jurisdiction.