JOINT PARTLY DISSENTING OPINION OF JUDGES KOVLER AND KALAYDJIEVA

Together with Judges Bratza, Tulkens, Spielmann, Vučinić and Raimondi, we have expressed our disagreement with the conclusions of the majority as concerns the admissibility of the complaints by the applicants Mr Dabetić and Mrs Ristanović. In our view similar concerns were applicable to the conclusions reached by the Chamber of the Third Section in its judgment of 31 May 2007 in respect of the victim status of the applicants Mr Petreš and Mr Jovanović. In this regard the Chamber on the one hand found that “the issuing of the retroactive residence permits, in line with the Constitutional Court’s decision, constitutes an adequate and sufficient remedy for their complaints” (see paragraph 311 of the Chamber judgment), while on the other hand finding a violation of Article 13 of the Convention, holding that “the respondent Government have failed to establish that the [same] remedies at the applicants’ disposal can be regarded as effective remedies” (see paragraph 385 of the Chamber judgment).

We fully subscribe to the Grand Chamber’s express conclusions that “[h]aving regard to this lengthy period in which the applicants experienced insecurity and legal uncertainty and the gravity of the consequences of the ‘erasure’ for them, ... the acknowledgment of the human rights violations and the issuance of permanent residence permits [to the other six applicants] did not constitute ‘appropriate’ and ‘sufficient’ redress at the national level” (see paragraph 267 of the judgment) and that in view of the Government’s failure to establish the effectiveness of the available remedies, there was a violation of Article 13 in conjunction with Article 8. For the same reasons why we disagree that an applicant may be required to make use of remedies that are unable to provide “adequate and sufficient” redress, we equally fail to see how the implementation of the same measures could deprive an applicant of his or her victim status. In previous cases the Grand Chamber has subjected the victim status of applicants to scrutiny in the light of the (in)appropriateness and (in)sufficiency of the remedies available at the national level as two issues that should be examined together, since they reflect two sides of the same coin (see Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010; Sakhnovskiy v. Russia [GC], no. 21272/03, 2 November 2010; and Konstantin Markin v. Russia [GC], no. 30078/06, 22 March 2012).

We regret the majority’s view that the controversial findings of the Chamber on the victim status of the applicants Mr Petreš and Mr Jovanović constituted a “procedural bar” to the Grand Chamber’s jurisdiction (see paragraph 263 of the judgment), thus allowing a clearly different outcome in identical individual cases.