DISSENTING OPINION OF JUDGE SILVIS, JOINED BY JUDGES VILLIGER, HIRVEL Ä , MAHONEY, WOJTYCZEK, KJ Ø LBRO AND BRIEDE

1. What is the status of a strike-out decision of the Court? There can be little doubt that, in the case of a n inadmissibility decision or a strike-out decision, the Court is to be considered as having “examined” the matter brought to its attention for the purposes of Article 35 § 2 (b) (see, for instance, in the context of inadmissibility decisions, Previti v. Italy (dec.), no. 45291/06, §§ 291-94, 8 December 2009, and Manuel v. Portugal (dec.), no. 62341/00, 31 January 2002, and in the context of a strike-out decision following a friendly settlement, Kezer and Others v. Turkey (dec.), no. 58058/00, 5 October 2004). It would not make any sense to give a different status to a strike-out decision following a unilateral declaration. In the present application, the parties do not allege that the Court committed a manifest error of procedure or substance when it accepted the Government ’ s unilateral declaration as a basis for striking out the application.

2. The main issue in the present case is whether or not the respondent Government have a continuing obligation under Articles 3 and 13 of the Convention, despite the Court ’ s strike-out decision of 10 February 2009, to reopen the discontinued criminal proceedings concerning the applicant ’ s allegations of ill-treatment. Such an obligation could have been included in the strike-out decision, but it was not.

In this context it should be noted that the supervision of the execution of the Court ’ s strike-out decision in the present case is a matter that falls outside the scope of the Committee of Ministers ’ supervisory role under Article 46 of the Convention, as the decision was neither based on a friendly settlement (Article 39 of the Convention and Rule 43 § 3) nor were the complaints struck out by way of a judgment after being declared admissible (Rule 43 § 3). Nor were any costs awar ded by the Court (see also Rule 43 § 4).

On the other hand, under Article 37 § 2 of the Convention the Court has powers to restore an application to the list of cases if it considers that “the circumstances justify such a course”. Under Rule 43 § 5 of the Rules of Court, it may do so if “it considers that exceptional circumstances so justify”. This of course refers to newly discovered circumstances. The Court finds no such circumstances (see paragraph 116 of the judgment), and rightly so.

3. The Government consider that the Court accepted in its strike-out decision of 10 February 2009 that the unilateral declaration submitted by the Government complied with the requirements established in the Court ’ s case-law, especially in the case of Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 75-76, ECHR 2004-III). Nothing in the Government ’ s unilateral declaration suggested an undertaking to reopen the proceedings. On the contrary, the only redress offered by the Government in their unilateral declaration, as accepted by the Court, was the payment of compensation. The Court ’ s decision did not require the reopening of the proceedings in the applicant ’ s case. Therefore, the Government see no reason to restore it to the list.

4. Is this situation altered by the fact that the strike-out decision of the Court contained the following clause?

“That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress” (in French: “ Cette décision ne préjuge en rien de la possibilité pour le requérant d ’ exercer, le cas échéant, d ’ autres recours afin d ’ obtenir réparation ”).

To my mind this cannot reasonably imply an obligation to reopen the criminal proceedings in the absence of any newly discovered fact following the unilateral declaration; this is in line with the possibilities available under domestic law. But the Court finds in the terms of the strike-out decision itself an event triggering an obligation to continue investigations (see paragraph 116, which refers to such an obligation as a precondition of the strike-out decision). I cannot but see this judgment as a departure from case-law on the status of complaints that have been dealt with by the Court in a final judgment or decision. This standing cas e-law concerns not only Article 6 complaints (as in Fischer v. Austria (dec.), no. 27569/02 , ECHR 2003 ‑ VI; Komanicky v. Slovakia (dec.), no. 13677/03, 1 March 2005; and Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). In Egmez v. Cyprus ((dec.), no. 12214/07, 18 September 2012), the Court did not find any new events that could revive a procedural obligation under Article 3 and thus trigger a possible breach of that provision. That path should have been followed in this case. The reasoning of the Court now accepted by the majority could apply also to applications that have been determined by the Court in a judgment (and not a strike-out decision), and where the State, in the view of the applicant, has failed to comply with the earlier judgment finding a violation. In other words, if the Court finds in a judgment that the State has failed to conduct an effective invest igation in violation of Article 2 or 3 of the Convention, and if the State subsequently does not ensure that a new investigation is carried out meeting the requirements of the Convention, the applicant may lodge a fresh application and the Court may find a fresh violation.

5. Tracing the steps taken in this case will demonstrate how it came about that an allegation of ill-treatment made by the applicant following his arrest on 25 April 1998 on suspicion of having committed several criminal acts is still occupying the Court in 2016. The applicant lodged complaints of ill-treatment on 8 October 2001. Mo re than f ive years later, on 22 February 2007, the Government were given notice of the application and on 30 April 2008 they issued a unilateral d eclaration admitting an Article 3 violation and awarding the appli cant comp ensation for it. On 10 February 2009 the Court accepted this unilateral declaration by the Government and struck out the case in respect of the ill-treatment covered by the declaration. In accordance with that declaration the applicant received 4,500 euros (EUR). Subsequently, on 1 December 2012, the Court found violations concerning the applicant ’ s conditions of detention following the above-mentioned arrest, as well as a violation of Article 6 § 1 because the applicant, while in detention, had not been given the opportunity to appear in person before the Supreme Court during the proceedings in his case. He was awarded EUR 5,000. All these complaints were already part of the original application in 2001. However, in 2010 the applicant reiterated his complaints in a new application and included a fresh complaint to the effect that the investigation into his ill-treatment had not resumed after the acceptance of the unilateral declaration, despite his efforts to that end at domestic level. On 9 October 2012 the Court declared the old complaints partly inadmissible, but relinquished jurisdiction to the Grand Chamber with regard to the complaint concerning the decision not to resume the investigation into the applicant ’ s ill-treatment after the acceptance of the unilateral declaration. Three out of the five Sections of the Court have, in one way or another, dealt with the applicant ’ s complaints following the events of 25 April 1998, and now the Grand Chamber has as well. The majority of the Grand Chamber has still not succeeded in bringing this case to an end. Instead it looks as if a perpetuum mobile of never-ending court proceedings has been set in motion. What purpose is being served? Is it the theoretical notion of a continuing obligation? I cannot imagine serious investigations into a case like this being taken up or resumed after the many years that have passed.

6. This judgment erodes the certainty that should prevail after the Court has completed its examination. The continuing obligation to respect legal certainty is too precious a matter to be sacrificed in an attempt to correct an earlier acceptance of a unilateral declaration even if, with hindsight, it may be thought that the Court should have been more reluctant to deprive the applicant of the benefit of an effective examination in an Article 3 case.