PARTLY DISSENTING OPINION OF JUDGE NICOLAOU

The background

1. The salient facts which led to the present application may be briefly stated. In 1998 the applicant was arrested on a serious criminal charge and then taken to a police station where, following questioning, a confession was obtained from him. Immediately afterwards he complained that the confession had been the result of ill-treatment by the police officers questioning him.

2. As a result of the complaint criminal proceedings were commenced against those who appeared to have been involved. However, in March 2001 the proceedings were discontinued by an investigator who took the view that there was insufficient evidence to proceed. In the discontinuance decision it was noted, inter alia , that the applicant ’ s allegations were incoherent and that the injuries he sustained, which were described as light, could have been caused in the course of the arrest.

3. Meanwhile, in September 2000, the applicant and a co-defendant who had made a similar complaint of ill-treatment were convicted and sentenced to long terms of imprisonment, after a trial in which they had pleaded not guilty and in which their purported confessions were used in evidence. Their appeals were unsuccessful and, subsequently, both men lodged applications with the Court.

4. The applicant, in his first application ( Jeronovi č s v. Latvia , no. 547/02, 1 December 2009), complained, inter alia , (a) that while he was being questioned in custody the police had subjected him to ill-treatment, in breach of Article 3 of the Convention, for the purpose of extracting a confession from him; and (b) that a statement so obtained had subsequently been used in evidence against him at his trial, in breach of the fairness requirement inherent in Article 6 § 1 of the Convention.

5. The Government were given notice of those complaints in 2007, together with certain others which have no significance in the present context. Following unsuccessful attempts at a friendly settlement, the Government submitted a unilateral declaration in 2008, the terms of which can be found in paragraph 19 of the present judgment. They admitted that the “physical treatment” received by the applicant at the hands of the police, as well as the “effectiveness of the investigation” that ensued, “did not meet the standards enshrined in Article 3”, and offered to pay him “ex gratia” a certain amount of money by way of compensation for pecuniary and non ‑ pecuniary damage, costs and expenses. They added, by way of final statement, that such payment “[would] constitute the final resolution of the case”.

6. By a Chamber decision of 10 February 2009 the Court, acting on the unilateral declaration and relying on Article 37 § 1 (c) of the Convention, struck out the applicant ’ s Article 3 complaint under both its substantive and procedural heads (see paragraph 20 of the present judgment). Further, the Court proceeded to dismiss, inter alia , the Article 6 § 1 fairness complaint as being inadmissible (see paragraph 21 of the present judgment). Two other complaints which were declared admissible at the same time and on which final judgment was given on 1 December 2009 do not concern what is now at stake.

7. After the Court had finally determined that first application, the applicant went back to the domestic authorities and requested, on the basis of the unilateral declaration which had acknowledged the violation of his Article 3 rights, (a) that the authorities comply with the procedural requirements of Article 3 by reopening and continuing the proceedings concerning his ill-treatment, and (b) that they reopen the proceedings leading to his conviction, as they had been flawed by the admission of confession evidence obtained in violation of Article 3.

8. The Latvian Criminal Procedure Law provided that, subject to certain requirements and conditions, criminal proceedings or a criminal prosecution which had been terminated might be reopened either where there were no lawful grounds for termination or where new circumstances had been disclosed (section 393); it also provided that criminal proceedings which had ended in a valid court judgment or decision might be reopened on the basis of newly disclosed circumstances, enumerated therein (sections 655 ‑ 6 57).

9. The applicant ’ s requests for reopening were examined in a two-tier system and rejected by a final decision on 20 December 2010. The reasoning of the decisions turned solely on the application and interpretation of sections 655- 6 57, which were relevant only to the applicant ’ s conviction. The discontinued criminal proceedings against the police officers were not addressed at all, neither was there any mention of the possible need to resume the investigation into the applicant ’ s ill-treatment.

The present application

10. In his present application the app licant complained under Article 13 that the refusal of the authorities to reopen the criminal proceedings concerning the investigation into his ill-treatment demonstrated the absence of a remedy by which to have his rights under the procedural limb of Article 3 vindicated, given that the authorities were not otherwise disposed to carry out a proper investigation into his ill-treatment. He also complained of the authorities ’ refusal to reopen the criminal proceedings which had led to his conviction so that the Article 6 § 1 fairness issue might be reconsidered; however, this latter complaint, which was declared inadmissible by the Court ’ s decision of 9 October 2012, can obviously no longer be examined.

My own assessment

11. In my opinion, the only real matter now at issue is whether Latvia remains in violation of its obligation to investigate the applicant ’ s – already acknowledged – ill-treatment by police officers. There can only be one answer to that and it is clearly in the affirmative. Whether domestic law did or did not provide machinery whereby an applicant could request the authorities to act in this regard is utterly without significance. Consequently, it is also without significance whether, as a matter of domestic law, the applicant ’ s requests for reopening were rightly or wrongly determined. Once the authorities had become aware of the applicant ’ s ill-treatment they were duty-bound to act without any prompting; they should have proceeded, without further ado, to carry out an Article 3-compliant investigation, the meaning of which is made abundantly clear by firmly established and undisputed case-law. Member States are expected to be aware of their duty in this regard.

12. There was, therefore, no need in the present case to look for the existence of a domestic remedy which might have been used by the applicant in order to secure his acknowledged right to an investigation. Consequently, Article 13 of the Convention did not come into play. I would add, with the utmost respect, that I fail to understand why the majority judgment dwells – and does so at such great length – on the question of reopening and is then, in the process, drawn into examining preliminary objections about victim status, compatibility ratione materiae , exhaustion and the six-month rule, when the first three are quite irrelevant if one focuses on the State ’ s obligation to investigate and, as regards the fourth, an altogether different hue has been cast on it by the majority ’ s approach to the matter (although, fortunately, this has not led to an adverse result). The fact that the parties have chosen to argue the case from that angle is no reason at all to take that path when, moreover, to do so may be at variance with the Convention and create uncertainty in a particularly sensitive area. The point I am trying to make is illustrated by paragraph 120 of the judgment, where the Court relies on a general rule against reopening and then finds reason to depart from it:

“The Court also reiterates that, according to its established case-law, an application for the reopening of proceedings or the use of similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of Article 35 § 1 of the Convention (see, for instance, Withey v. the United Kingdom (dec.), no. 59493/00, ECHR 2003-X, and H. v. Iceland , cited above, with further references). Such an approach would in the instant case entail the consequence that the Court would be prevented on formal grounds from examining the substance of the applicant ’ s complaint about the lack of an effective investigation.

However, in the specific circumstances, the Court finds reason to depart from this rule, having regard to the following factors: the Government ’ s unreserved and unequivocal acknowledgment that the applicant had been ill-treated and that the investigation failed to satisfy the requirements of effectiveness enshrined in Article 3 of the Convention; the Court ’ s own assessment of that declaration and, in the light of its findings in that connection, its decision to strike this part of the application out of its list of cases by a final decision of 10 February 2009, thus putting an end to its review of the matter (see paragraph 54 of that decision) – while noting that it was open to the applicant to pursue any national remedies available to him; and the fact that, in the absence of an effective investigation, the respondent State ’ s Article 3 procedural obligation continued to exist.”

13. In my view, the last three lines of this excerpt contain all that needed to be said. The view of the majority, that to reach that result one had to go through the reopening argument, is summarised further down, in paragraph 123, which reads as follows:

“Having regard to the authorities ’ refusal to reopen the discontinued criminal proceedings concerning the applicant ’ s ill-treatment as acknowledged by the Government ’ s unilateral declaration in application no. 547/02, the Court considers in the instant case that the applicant did not have the benefit of an effective investigation as required by Article 3 of the Convention.”

14. With the conclusion of the majority that there has been a violation of Article 3 of the Convention under its procedural head, I am prepared to agree. I would, however, have arrived at this conclusion only after restoring the first application to the Court ’ s list of cases under Article 37 § 2 of the Convention, which provides that the Court may do so if “it considers that the circumstances justify such a course.” Rule 43 § 5 of the Rules of Court, which is also relevant, must be read in the light of the wording of the Convention. I do not share the majority view, expressed in paragraph 116 of the judgment, that the circumstances here do not justify such a course.

15. I am respectfully of the view that the Court was ill-advised to accept the unilateral declaration in the terms in which it was couched. It must be borne in mind that the Government ’ s admission that the investigation carried out into the ill-treatment of the applic ant did not comply with Article 3 standards clearly meant that a further investigation was needed that would be compliant with those standards, even if ultimately it might not yield any positive results. Yet the Court did not require the Government to make the relevant undertaking, as it had done in Žarković and Others v. Croatia ((dec.), no. 75187/12, 9 June 2015), which should not be regarded as an isolated case. At the same time it appeared to accept the condition laid down to the effect that “payment [would] constitute the final resolution of the case”, and merely stated that the strike-out decision was “without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress”, when there was nothing to indicate the existence of any applicable remedy and, as it transpired, none in fact existed. I will say nothing about the inclusion of the “ ex gratia ” phrase which, although obviously attenuating the admission of a violation – quite inappropriately in my view – is not infrequent and, regrettably, seems to be accepted by our case-law. In the leading case cited in the Court ’ s strike-out decision, namely Tahsin Acar v. Turkey (preliminary objection) ([GC], no. 26307/95, § 84, ECHR 2003-VI), it is made clear that the Court should require a relevant undertaking:

“ ... where there is prima facie evidence in the case-file supporting allegations that the domestic investigation fell short of what was necessary under the Convention, a unilateral declaration should at the very least contain an admission to that effect, combined with an undertaking by the respondent Government to conduct, under the supervision of the Committee of Ministers in the context of the latter ’ s duties under Article 46 § 2 of the Convention, an investigation that is in full compliance with the requirements of the Convention as defined by the Court in previous cases ... ”

16. Once the first application had been restored to the Court ’ s list I would then have found a violation within that context, and I would have regarded the compensation already paid by the Government pursuant to the strike-out decision as the award to which the applicant was entitled under that judgment.

17. As things are now, I have little choice but to accept the finding of a violation within the context of the present application; however, taking a similar approach to the matter, I would not award a separate, additional amount of compensation. In my view, the majority makes an award of compensation to the applicant twice for what is essentially the same violation. The present case is not, as I see it, a case where a subsequent application raises or supposedly raises a new issue in relation to a previous application, as for example in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], no. 32772/02, ECHR 2009); nor is it a case of a continuing violation divisible into temporal parts for which compensation is adjudged separately, as in Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), or a case where the time element, being relevant to a proper investigation, is singled out and dealt with separately before the examination of other aspects that are still pending in an ongoing investigation, as in McCaughey and Others v. the United Kingdom (no. 43098/09, ECHR 2013). All those cases involved just one complaint, complete in its own right, and awarding compensation for it was not incompatible with awarding compensation in another case with which it had an affinity or connection, irrespective of which came to the Court first. It is not, however, possible to do that when, as in the present case, the Court has treated the complaint as just one event.