JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, BRATZA, LORENZEN AND VAJIĆ

1 . We voted against the finding of the majority that Article 6 of the Convention was not applicable in the present case.

2 . Before the Chamber the applicants restated their procedural complaints under Article 2 of the Convention and argued that they gave rise additionally to a breach of Article 6. The Chamber rejected the complaint, finding Article 6 to be inapplicable under both its civil and criminal limbs. Before the Grand Chamber neither party submitted any argument under said Article. The majority of the Court followed the Chamber in finding Article 6 not to be applicable. Since the complaint does not appear to have been pursued before the Grand Chamber and since it does not in any event add anything to the complaint which has already been considered under Article 2, we would have preferred to find merely that it was unnecessary to examine the case separately under Article 6.

JOINT PARTLY DISSENTING OPINION OF JUDGE S COSTA, BRATZA, LORENZEN AND THOMASSEN

1 . We are unable to agree with the majority of the Grand Chamber that the procedural requirements of Article 2 of the Convention were violated on the grounds that the investigation into the death of Moravia Ramsahai was inadequate.

2 . The principles governing the procedural req uirements of Article 2 are well established in the Court ’ s case-law. The obligation to protect the right to life, combined with the States ’ general duty under Article 1 to secure the rights and freedoms defined in the Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. For an investigation into a killing to be “effective” , the person responsible for carrying out the investigation must be independent and impartial in law and in practice. However, the investigation must also be “effective” in the sense that it is capable of leading to a determination of whether the use of force was justified in the circumstances and to the identification of those responsible for the death and to their punishment if it was not. It is this latter aspect of the requirement of “effectiveness” (which is characterised in the judgment as one of the “adequacy” of the investigation) which the majority of the Court find not to have been satisfied in the present case.

3 . As emphasised in the judgment, the procedural obligation in Article 2 is not one of result but of means. What is also clear from the Court ’ s case-law is that an investigation may satisfy the Convention requirements of effectiveness or adequacy even if it has not been shown that all possible investigative measures have been taken. A lacuna or deficiency in an investigation will give rise to a breach of the procedural obligation only if it is such as to undermine its capability of establishing the facts surrounding the killing or the liability of the persons responsible. Whether it does so must be assessed in the light of the particular circumstances of each case.

4 . Before the Grand Chamber the applicants relied on six alleged deficiencies in the forensic and other investigations which were carried out into the death: (i) the lack of any attempt to determine the precise trajectory of the bullet; (ii) the failure to test the hands of Officers Brons and Bultstra for gunshot residue; (iii) the lack of evidence of any examination of Officer Brons ’ s service weapon and ammunition or of the spent cartridge; (iv) the absence from the autopsy report of any drawings or photographs showing the entry and exit wounds caused by the fatal bullet; (v) the lack of any reconstruction of the incident; and (vi) the fact that Officers Brons and Bultstra were not questioned for several days after the fatal shooting, during which time they had the opportunity to discuss the incident between themselves and with others.

5 . Both the Chamber and the Grand Chamber, correctly in our view, rejected the applicants ’ first criticism on the grounds that it was questionable whether the trajectory of the bullet could have been determined on the basis of the information available since, after striking Moravia Ramsahai, the bullet left no trace apart from a shattered pane of glass.

6 . As to the other alleged deficiencies, the findings of the Grand Chamber differ from those of the Chamber, the majority concluding, without more detailed reasoning, that the failings had not been explained (paragraph 329) and that they “impaired the adequacy of the investigation” (paragraph 328).

7 . While we can agree that forensic examinations of the kind indicated in (ii) and (iii) above are not only in general of value but will often be an indispensable feature of an effective investigation into gunshot deaths, we share the view of the Chamber that, in the particular circumstances of the present case, the lack of any such examinations did not undermine the adequacy of the investigation into the death. Despite the apparent inconsistency between the statements of the two officers directly concerned and those of Officers Braam and Van Daal to which reference is made in paragraph 3 31 of the judgment, it was clearly established by the investigation, and has not been disputed, that one round only was fired during the incident which resulted in the death, that it was fired by Officer Brons and that his service weapon, still loaded with seven out of the total of eight rounds, together with one spent cartridge was handed over to the Forensic Laboratory in Rijswijk (see paragraphs 234­ 38 and 263 of the Chamber ’ s judgment ). In these circumstances, it is not clear to us what a forensic examination of the hands of the two officers or of their weapons could have revealed.

8 . A reconstruction of the scene of an incident resulting in death may also prove an important element of an effective investigation, particularly where there a re or may have been several eye witnesses of an incident resulting in death, whose memory of the events may be refreshed or clarified by a reconstruction. However, like the Chamber, we do not find that in the particular circumstances of the present case such a reconstruction was an indispensable part of the investigation or that its omission rendered the investigation inadequate.

9 . The lack of any adequate pictorial record of the trauma caused to Moravia Ramsahai ’ s body by the bullet does not appear to have been expressly relied on by the applicants before the Chamber and is certainly not reflected in the Chamber ’ s judgment. The judgment of the Grand Chamber records, in paragraph 224, that “no drawings or photographs were appended to the autopsy report as contained in the investigation file”. While this is true, it is not the case that the investigation was devoid of photographic evidence. As noted in the Chamber ’ s ju dgment (paragraphs 255- 80), a total of twenty-nine photographs were taken at the scene of the incident, including four photographs of the body of Moravia Ramsahai. Moreover, a detailed description of the bullet wound sustained by him was contained both in the provisional conclusion of the pathologist (see paragraph 252 of the Chamber ’ s judgment) and in the autopsy report itself (see paragraphs 2 22 - 23 of the Grand Chamber ’ s judgment). While it might have been desirable that the photographs of the bullet wound were appended to the report to confirm the findings of the pathologist, we cannot find that the omission to do so in any way undermined the effectiveness of the investigation.

10 . The omission to separate Officers Brons and Bulstra or to question them until nearly three days after the incident is, in our view, more problematic. While, as noted in the Chamber ’ s judgment, there is no evidence that there was any collusion between the officers themselves or between the officers and other police officers, it was in our view clearly important that steps should have been taken to prevent any risk of collusion and that the statements of both officers should have been promptly obtained by an authority independent of the police. However, we see this deficiency as one related less to the adequacy of the investigation as a whole than to the lack of independence of the initial police investigation and to the failure of the National Police Internal Investigations Department to assume control over the investigation at the earliest opportunity – a matter which has led to the separate finding of a procedural violation of Article 2.

11 . Having examined in their totality the steps taken at the various stages of the investigation, which are summarised in the judgment, we are unable to share the view of the majority that the alleged deficiencies, whether considered individually or cumulatively, undermined the investigation as a whole, or rendered it inadequate.