PARTLY DISSENTING OPINION OF JUDGES

THOMASSEN AND ZAGREBELSKY

We regret that we are unable to follow the majority ’ s reasoning and conclusion with regard to the procedural violation of Article 2 of the Convention.

The Court accepts in its judgment that a thorough and reliable inquiry was carried out by the authorities into the events at issue. That inquiry ’ s quality and detailed nature enable the Court to base its judgment on the factual information contained in the investigation documents (see paragraph 358 of the judgment). Furthermore, the Court accepts that the Amsterdam Court of Appeal was entitled to consider that the information available was sufficient for it to reach its decision not to order the prosecution to proceed (see paragraph 418 of the judgment ). Equally, the Court has been able to conclude, on the basis of the inquiry, that “the use of lethal force did not exceed what was “absolutely necessary” for the purpose of effecting the arrest of Moravia Ramsahai and protecting the lives of Officers Brons and Bultstra” and that “that being so, the shooting of Moravia Ramsahai by Officer Brons does not constitute a violation of Article 2 of the Convention” (see paragraph 383).

We would emphasise that the Court has been able to reach this conclusion unanimously. There is no question of any lack of evidence. On the contrary, the facts are established in detail and clearly indicate that no violation of the right to life was committed.

Nonetheless, the majority found a violation of Article 2 of the Convention. That conclusion is based on the facts that (1) the first part of the investigation was carried out by officers from the same police station as Officers Brons and Bultstra and consequently the requisite independence was lacking (see paragraphs 404-408) and (2) that the Court of Appeal ’ s decision not to order prosecution was not a public one and thus was not open to public scrutiny (see paragraph 422).

The procedural obligations of Member States under Article 2 arise in the Court ’ s case-law from the obvious necessity of ensuring, in the domestic systems, effective protection of the right to life by clarifying the facts and by punishing those who were responsible for the violation of the right at issue. To that effect some form of effective official investigation must take place. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, p. 49 , § 161 , and Makaratzis v. Greece [GC], no. 50385/99, §§ 73-74 , ECHR 2004 ‑ XI ) .

The Court, while accepting that the form of investigation which will achieve those purposes may vary in different circumstances and that it is not the Court ’ s duty to indicate how the required investigation must be carried out in given cases, has nonetheless indicated some criteria and characteristics of the requisite inquiry. The authorities must act on their own motion. The investigations must be carried out with promptness, reasonable expedition, independence and impartiality.

The Court has added that it is essential to maintain public confidence in the authorities ’ adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts. To that effect some form of public scrutiny of the investigation or its results is necessary, as well as reasons for decisions not to prosecute in controversial cases (see Finucane v. the United Kingdom , no. 29178/95, §§ 67-71, 82 , ECHR 2003 ‑ VIII , and Hugh Jordan v. the United Kingdom , no. 24746/94, § 123, ECHR 2001 ‑ III (extracts) ).

In our view, it is essential to bear in mind the actual reason for and purpose of the investigation and of the procedural obligation. In other words, every possible step should be taken to ascertain that a violation has occurred and to punish its perpetrators, or to establish that there has been no violation of the right to life. Recently, in Makaratzis v. Greece (cited above, § 74), the Court rightly stated that “any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness”. In the Court ’ s case-law, a procedural violation of Article 2 has been found in many cases where a substantive violation of the same Article has also been found, and also in cases where the impossibility for the Court to reach a conclusion on the substantive violation was a result of the lack or the insufficiency of investigations carried out by the national authorities (see, for example, Kaya v. Turkey , judgment of 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I ; YaÅŸa v. Turkey , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI ; and Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999 ‑ IV . See also Hugh Jordan v. the United Kingdom ( cited above ), where only a procedural violation was found, given that national judicial procedures were still underway, and the special case of Trubnikov v. Russia , no. 49790/99, 5 July 2005 , where a violation of Article 38 was also found on account of the Government ’ s refusal to produce the original medical file for examination by the Court).

In our view, the procedural obligations and the possibility of a violation of Article 2 under this limb should be considered in a completely different way where a substantive violation has been positively excluded by the Court. In such cases, the compliance of the investigations and national procedures with what the Court ’ s case-law indicates as appropriate and desirable seems to us irrelevant. The present case illustrates this very clearly. Neither of the criticisms made by the majority with regard to the investigation has any bearing whatever on the effectiveness of the national inquiries and on the Court ’ s conclusion that no substantive violation of Article 2 has occurred. The lack of independence found in the judgment in relation to the first part of the investigation does not cast doubt on the reliability of the findings. One could add that at least some of the investigative measures were obviously urgent, and that any delay pending the arrival of a different police force would have entailed the risk of impairing the investigation. It was obviously necessary to act immediately, as the police did on the night in question, in order to preserve evidence, request the intervention of forensic experts, seize the pistols, identify witnesses, take witness statements, etc. Subsequently a different and independent police force (see paragraph 405 of the judgment) entered the picture and took responsibility for carrying out the investigation. Such conduct by the authorities shows them to be capable of carrying out a complete and reliable investigation into the circumstances of the case.

Equally, the lack of publicity with regard to the Court of Appeal ’ s decision has no bearing on the quality and strength of the evidence to be taken into consideration. In the Court ’ s case-law, a lack of public scrutiny is taken into consideration in conjunction with the exclusion or strict limitation of the next-of-kin ’ s participation in the proceedings . In any case , some limits to public scrutiny are admitted (see Bubbins v. the United Kingdom , no. 50196/99, § § 157-158, 17 March 2005, where the Court accepted that the effectiveness of the inquest was not undermined on account of the decision to grant anonymity to Officers A, B, C and D). Furthermore, the necessity of public confidence in the correctness of public authorities ’ conduct is a general one and, in the field of justice, is taken into consideration by the Convention in Article 6 , in particular; this Article was not, however, applicable to the proceedings before the Court of Appeal (see paragraph 419 of the judgment).

In any event, where the Court elaborated on the ne ed for public scrutiny of the investigation, namely in Finucane v. the United Kingdom (cited above) , the case was completely different from the present one. First of all, the legal system concerned was profoundly dissimilar to the system in issue, and the surrounding circumstances were even less similar. In the Finucane case, the circumstances of Mr Finucane ’ s killing gave rise to suspicions of collusion with the killers by the security forces and it was not clear that the authorities ’ inquiries were in fact concerned with investigating Patrick Finucane ’ s death with a view to bringing prosecutions as appropriate. There was a lack of independence in the investigation which gave rise to serious doubts as to the thoroughness or effectiveness with which the possibility of collusion was considered . In any event, the reports were not made public and the applicant was never informed of their findings. The necessary elements of public scrutiny and accessibility to the family were therefore lacking .

In the present case , however , the applicants could participate effectively in proceedings aimed at challenging the decision not to prosecute Officer Brons ( see paragraph 415 of the judgment ), and after t he hearing in the Court of Appeal a reasoned decision was delivered to the applicants .

We would add that, as regards the finding of a violation of Article 2, the judgment seems to adopt a surprisingly formalistic attitude, examin ing the investigation ’ s supposed shortcomings even though th ey have no bearing on its purpose. This seems to us to run counter to the Court ’ s consistent case-law on procedural defects under Article 6, which does not preclude the overall fairness of the proceedings considered as a whole, even when some procedural requir ements are not met.

[1] Hindustani: a Surinamese (or a member of the Surinamese immigrant community in the Netherlands ) who is descended from indentured labourers recruited from the Indian subcontinent in the nineteenth century.