CONCURRING OPINION OF JUDGE ZAGREBELSKY JO INED BY JUD GES ROZAKIS, CABRAL BARRETO , SPIELMANN AND SAJÓ

(Translation)

Like the majority , I consider that there has been a violation of the procedural limb of Article 2 of the Convention in th e present case, which concerns a death which occurred prior to the entry into force of the Convention in respect of the respondent State. I agree with the reasoning set out in paragraph s 153 et seq. of the judgment , which enables the Court to conclude that the State is under an obligation to start and carry out an effective investigation even when the death took place before the critical date (see paragraph 159). This obligation “ binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it ” (see paragraph 157).

With the exception of crimes that are not subject to statutory limitation, events that occurred in the distant past will not necessarily give rise to the application of the aforementioned principle. When the Convention enters into force in respect of a State, the likelihood is that there will no longer be any victims able to claim to be entitled to an investigation o r to complain to the Court of the l ack or ineffectiveness of an investigation. In any event, if the criminal law is no longer applicable o w ing to the expiration of the limitation period or if an investigation would be pointless because of the disappearance of evidence and witnesses, the re will be no justification for imposing the obligation. However , this is an issue relating to the merits of the case before the Court whereas the question examined in the present judgment concerns the determination of the Court ' s jurisdiction ratione temporis and, consequently, the admissibility of the application.

Despite this, the majority have f ound it necessary to indicate that “ having regard to the principle of legal certainty, the Court ' s temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended ” (see paragraph 161 of the judgment). To my mind, the Court may indeed be led by restrictions of a legal or factual nature to decide in certain cases that the State i s not under a procedural obligation. However, as I have already mentioned, this would not entail calling into question the Court ' s jurisdiction ratione temporis , but excluding a violation of the procedural limb of Article 2.

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.

JOINT DISSENTING OPINION OF JUDGE S BRATZA AND TÃœRMEN

1 . To our regret, we are unable to agree with the majority of the Grand Chamber that the Court has jurisdiction ratione temporis to examine the applicants ' complaint that the domestic authorities failed to deal with their claim arising out of their son ' s death with the level of diligence required by Article 2 of the Convention. In our view, the Government ' s preliminary objection to the Court ' s jurisdiction is well-founded and should have been upheld. In consequence, we have voted against the finding of the majority that there has been a violation of Article 2 in its procedural aspect.

2 . In its Bleči ć judgment ( Bleči ć v. Croatia [GC], no. 59532/00, § 70, ECHR 2006-III), the Court reiterated that, according to the general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of entry into force of the Convention with regard to that Party. It was the application of this rule which led the Chamber in the present case to reject as inadmissible the applicants ' complaint of a violation of the substantive aspect of Article 2, the Chamber noting that the applicants ' son had died in hospital on 19 May 1993 and that their complaint was obviously based on facts which occurred and ended before the date of ratification (28 June 1994) and was therefore incompatible ratione temporis with the provisions of the Convention (see paragraph 90 of the judgment of the Chamber ).

3 . In the Bleči ć case the Court held that the Court ' s temporal jurisdiction was to be determined “in relation to the facts constitutive of the alleged interference” with a Convention right and that if such interference occurred prior to ratification, the subsequent failure of remedies aimed at redressing that interference could not bring it within the Court ' s temporal jurisdiction (paragraph 77). The Court went on to note that, where the interference pre-dated ratification, while the refusal to remedy it post-dated ratification,

“ ... to retain the date of the latter act in determining the Court ' s temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention came into force in respect of that State. However, this would be contrary to the general rules of non-retroactivity of treaties” (paragraph 79).

4 . The issue raised by the present case differs from that in Bleči ć. The complaint concerns not, as in that case, a failure to remedy after the date of ratification an “interference” with a Convention right occurring before that date but an alleged breach, occurring after the date of ratification, of the positive obligation of the State under Article 2 to investigate a death occurring before that date. Nevertheless, the principles established in the Bleči ć case are, in our view, of some importance in the present case. The procedural obligation, if any, imposed on a State under Article 2 arises in principle at the moment when a death occurs at the hands of agents of a State or, as in the present case, when the relevant authorities of the State are made aware of a credible allegation that the death resulted from medical negligence on the part of hospital authorities. Although the obligation is an autonomous one, in the sense that it is not dependent on the existence of a substantive violation of Article 2, it is an obligation which not only derives from the death but is integrally linked with it. Where, as in the present case, the death occurs prior to the date of ratification, no Convention obligation is imposed on the State under Article 2 in either its substantive or procedural aspect and the Court has no temporal jurisdiction to examine a complaint of a violation of Article 2 in either of its aspects. To hold otherwise would, as in the Bleči ć case, result in the Convention being binding for that State in relation to a fact or situation (the death and the omission to investigate the death) that had taken place before the Convention came into force.

5 . This principle was established in the Court ' s decision in the case of Moldovan and Others and RostaÅŸ and Others v. Romania ( (dec.), nos. 41138/98 and 64320/01, 13 March 2001 ) , in which the applicants complained, inter alia , of a violation of the procedural aspects of Article 2 in relation to killings which had occurred in September 1993 before the entry into force of the Convention with regard to Romania on 20 June 1994. They further complained under Article 3 that the authorities had failed properly to investigate the participation of police officers in the attacks on Roma residents during the Pogrom on the same date and that the destruction of their property and belongings amounted to treatment contrary to that Article.

In a decision which was cited with approval by the Grand Chamber in the Bleči ć case, the Court unanimously rejected the claims under both Articles as falling outside its competence ratione temporis . As to the former complaint the Court noted that

“ ... the alleged obligation under the Convention of the Romanian authorities to conduct an effective investigation capable of leading to the identification and punishment of all individuals responsible for the deaths of the applicants ' relatives is derived from the aforementioned killings whose compatibility with the Convention cannot be examined by the Court. It follows that the complaint is inadmissible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.”

The Court reached the same conclusion in relation to the Article 3 complaint, holding that the obligation to carry out an effective investigation resulted from attacks which had occurred prior to the date of ratification and whose compatibility with the Convention could not, accordingly, be examined by the Court.

6 . The Court arrived at the same result in the case of Voroshilov v. Russia ( (dec.), no. 21501/02, 8 December 2005 ) , dismissing a complaint under the procedural aspect of Article 3 and under Article 13. The ill-treatment of which complaint was made took place in July and September 1997 before the entry into force of the Convention in respect of the Russian Federation on 5 May 1998.

Citing the decision in the Moldovan case with approval, the Court observed that the procedural obligation under Article 3 arises when an individual makes a credible assertion of having suffered treatment contrary to Article 3. It continued:

“However, since the Court is prevented from examining the applicant ' s assertion relating to the events lying outside its jurisdiction ratione temporis , it is unable to reach a conclusion as to whether the applicant has made a “credible assertion” as required by the above provision. Accordingly, it cannot examine whether the Russian authorities had an obligation under the Convention to conduct an effective investigation in the present case ... Likewise, the alleged failure to conduct the investigation cannot be held to constitute a continuous situation raising an issue under Article 3 in the present case, since the Court is unable to conclude that such an obligation existed.”

The Court went on to reject the Article 13 complaint on the same basis, holding that it was “not competent to examine whether the applicant had an ' arguable claim ' of a breach of a substantive Convention right and that his submissions in respect of Article 13 therefore also fall outside the Court ' s competence ratione temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001)”.

7 . The Court similarly declined jurisdiction to examine whether there had been a breach of the procedural obligations of the State in respect of a death which had occurred in 1994 in the case of Kholodov and Kholodova v. Russia ( ( dec., no. 30651/05, 14 September 2006). The investigation into the death had commenced prior to the date of ratification but, as the Court found, had continued long after that date, eventually resulting in the final acquittal of the alleged perpetrators in March 2005. The Court rejected the complaint, citing with approval its earlier decisions in the cases of Moldovan and Voroshilov :

“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 ... 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 ... ”.

8 . The decision of a differently constituted Chamber of the Court in the case of BÇŽlÇŽÅŸoiu v. Roma n ia ( (dec.), no. 37424/97, 2 September 2003 ) represented a major departure from the precedent set in the Moldovan case some two and a half years before. The Chamber there decided that it had temporal jurisdiction to examine a procedural complaint under Article 3 concerning ill-treatment which had allegedly occurred in July 1993, having rejected the substantive complaint on ratione temporis grounds. It based its decision on the fact that the proceedings against those responsible for the ill-treatment had continued after the date of ratification of the Convention by Romania and had ended with a final judgment of the Supreme Court of Justice in 200 2 . However, it was not explained in the decision how the case was to be distinguished from the Moldovan case, which had been cited by the respondent Government in argument. Nor was it explained how the mere fact that an investigation or proceedings continued after the date of ratification could confer temporal jurisdiction on the Court to examine whether there had been compliance with the State ' s procedural obligations under Article 3 when, at the time of the events complained of, the State was not bound by the Convention and no such procedural obligation was thus imposed on the State.

9 . While we share the view of the majority that this apparent conflict in the Court ' s case-law requires to be resolved, we cannot agree with the majority ' s apparent preference for the approach in the Bǎlǎşoiu case or with their reasoning, which is founded on the alleged “detachability” of the procedural obligation from the substantive obligation. It is argued that the procedural obligation has not been considered dependent on whether the State is ultimately found to be responsible for the death and that the Court has consistently examined the question of procedural obligations under Article 2 separately from the question of compliance with the substantive obligation and, where appropriate, has found a separate violation of Article 2 on that account even where no substantive violation has been found.

We have no quarrel with these propositions or with the majority ' s view that the procedural obligation has evolved into a “separate and autonomous duty”. Where we differ from the majority is as to their view that the obligation is “detachable” from the death which gives rise to it, in the sense that it is an obligation which can be imposed on a State on or after the date of ratification even where the death took place before that date. Nor can we agree with the suggestion which is implicit in the judgment that, because the procedural obligation “binds the State throughout the period in which the State could reasonably be expected to take measures to elucidate the circumstances of the death”, a State which fails to carry out such an investigation into a death occurring before the date of ratification or which continues beyond that date an investigation which it has commenced without any Convention obligation to do so, can become liable for a breach of its procedural obligations from the moment of ratification. Divorcing the procedural obligation from the death which gave rise to it in this manner would, in our view, be tantamount to giving retroactive effect to the Convention and rendering nugatory the State ' s declaration recognising the Court ' s competence to receive individual applications (cf., Kadiķis v. Latvia (dec.), no. 47634/99, 29 June 2000; Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002 -II ).

10 . This interpretation is open in our view to two further objections. In the first place, it would appear to give rise to an inconsistency in the Court ' s approach, depending on whether the lack of effective investigation into a death occurring before the date of ratification is examined under the procedural aspect of Article 2 or under Article 13, whose requirements have been held to be similar to but “broader than a Contracting State ' s procedural obligation under Article 2 to conduct an effective investigation” (see the Court ' s Kaya v. Turkey judgment of 19 F ebru ary 1998, § 107, Reports of Judgments and Decisions 1998-I). While, applying the principle of “detachability”, a complaint of a lack of effective investigation could lead to the finding of a violation of Article 2, a similar complaint under Article 13 would appear to be inadmissible. This is not merely because the Court would be unable to examine whether the applicant had an “arguable claim” of a breach of a substantive Convention right (see the Voroshilov case referred to above), but for the more fundamental reason that, where the substantive complaint is inadmissible as being incompatible with the Convention, a complaint under Article 13 is similarly inadmissible, there being no “arguable claim” in such circumstances (see, for example, Ali ev v. Ukraine (dec.), no. 41220/98 , 25 May 1999).

11 . More importantly, the majority ' s approach would also, as the judgment recognises, give rise to serious issues of legal certainty, if the Court ' s temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occurred before the date of ratification were to be regarded as open-ended. The judgment seeks to dispel such risk by laying down first that, where the death occurs before the date of ratification, only procedural acts and/or omissions occurring after that date could fall within the Court ' s temporal jurisdiction and secondly, that there should exist “a genuine connection between the death and the entry into force of the Convention ... for the procedural obligation imposed by Article 2 to come into effect” (judgment paragraphs 162-163).

12 . In our view, neither requirement is such as to prevent future uncertainties arising. In particular, it is unclear whether by a “genuine connection” between the death and the entry into force of the Convention is meant a close temporal link between the two or some other and, if so, what connection. This question does not appear to be resolved by the subsequent explanation in the judgment that “a significant proportion of the procedural steps required by this provision ... will have been or ought to have been carried out after the critical date”. The application of this principle appears to us to be especially problematic in the case of “omissions”, where no, or no effective, procedural steps to investigate a death have been taken prior to the date of ratification and no such steps are taken after that date. In such an event, even if a Convention obligation to investigate the death could be held to arise at the moment of ratification, it is difficult to see how the “significant proportion” test is to be applied to the facts of any particular case. The uncertainty is in our view further compounded by the concluding statement in paragraph 163 of the judgment that the Court would not exclude that, in certain undefined circumstances, the connection between the death and the entry into force of the Convention could also be based “on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner”.

13 . For these reasons, we are in favour of following the case-law set by the decision in the Moldovan case, which appears to us to be more faithful to the principles governing the liability of States for acts or omissions occurring before the entry into force of the Convention, to ensure greater coherence in the Court ' s case-law and to be more compatible with the important principle of legal certainty.

14 . We would accordingly conclude that, even though in the present case the investigative measures and legal proceedings relating to the death which had begun before the date of ratification by the respondent State continued after that date, the complaint concerning the breach of the procedural obligations of the State falls outside the temporal jurisdiction of the Court.

15 . Since we are unable to share the majority ' s view that Article 2 was violated in the present case, we also voted against their conclusion that, having regard to this finding, it was unnecessary to examine separately the complaints under Article 6 and 13 of the Convention . Had the complaints been examined, we would have found a violation of Article 6 of the Convention on the grounds of the excessive length of the proceedings, but no violation of Article 13.

16 . As to Article 41, we are divided as to whether sums should have been awarded in respect of non-pecuniary damage and costs and expenses, Judge Bratza voting in favour of such an award in deference to the view of the majority under Article 2, but Judge Türmen voting against the making of any award.