JOINT PARTLY DISSENTING OPINION OF JUDGE S CABRAL BARRETO, BOTOUCHAROVA, MULARONI AND JOÄŒIENÄ–

1 . We regret we are unable to follow the majority as regards the position of the public prosecutor supervising the police investigation into the death of Moravia Ramsahai ( point 4 of the operative provisions ).

2 . We observe that the police investigation was carried out under the supervision of an Amsterdam public prosecutor who was responsible precisely for the police work done at Flie r bosdreef police station. The same public prosecutor took the decision not to prosecute Officer Brons under authority delegated to her by the Chief Public Prosecutor.

3 . We agree with the majority that public prosecutors are inevitably dependent on the police for information and support and that this circumstance does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police. Problems may arise, however, if a public prosecutor has a close working relationship with a particular police force ( see paragraph 344 of the judgment).

4 . The Court has underlined in previous cases the importance not only of hierarchical and institutional independence but also of practical independence ( see Mastromatteo v. Italy [ GC ] , no. 37703/97, § 91, ECHR 2002-VIII, and Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 70, ECHR 2002-II).

5 . The Court has found in the present case that the investigation lacked independence in that important parts of it were carried out by direct colleagues of the police officers implicated in the death of Moravia Ramsahai ( see paragraphs 333 - 41 of the judgment). We consider that the same conclusion must follow from the finding that the investigation was supervised by the very public prosecutor to whose authority the Flie rbo sdreef police station, to which Officers Brons and Bulstra belonged, was subject in its day-to-day work.

6 . We conclude that there has accordingly also been a violation of Article 2 in this regard.

JOINT PARTLY DISSENTING OPINION OF JUDGES JOČIENĖ AND POPOVIĆ

1 . We regret that we are unable to follow the position of the majority that there has not been a violation of Article 2 of the Convention as regards the procedure before the Court of Appeal.

2 . The applicants ’ complaint under Article 12 of the Code of Criminal Procedure was heard in chambers by a “judge delegate” ( raadsheer-commissaris ) on 1 March 1999. Mr Hamer made extensive oral submissions on the applicants ’ behalf. These included a request for an adjournment in order to add the official report of Public Prosecutor De Vries and Officer Brons ’ s service record (including, especially, some complaints recorded against him) to the file.

3 . On 26 April 1999 the Court of Appeal dismissed the applicants ’ complaint against the p ublic p rosecutor ’ s decision not to prosecute. This decision was not made public.

4 . As has been mentioned above, the Court of Appeal ’ s hearing was not public. We agree with the Grand Chamber ’ s ruling (see paragraph 353) that Article 2 does not go so far as to require all proceedings following an inquiry into a violent death to be public. When examining this point, we can follow the Chamber ’ s position as expressed in its judgment of 10 November 2005 (see paragraph 421) and also the Grand Chamber ’ s position (see paragraph 354) that the Court of Appeal ’ s proceedings did not have to be open to the public.

5 . But, when analys ing this aspect, we still share the doubts of the applicants mentioned in the judgment of the Grand Chamber (see paragraph 310) that “ [ t ] he proceedings before the Court of Appeal had not involved the applicants sufficiently for their interests to be safeguarded .. . Nor, in the applicants ’ submission, was it at all clear why these proceedings could not have been public ” . Nevertheless, we can agree with the Chamber (see paragraph 421 of the Chamber ’ s judgment) that a person whom it is not appropriate to put on trial should also be spared the unpleasantness of being made a public spectacle.

6 . However, the lack of publicity of the Court of Appeal ’ s decision is another matter. To find a violation as regards the procedure before the Court of Appeal is the most important aspect for us. We totally agree with the Chamber ’ s position in its judgment of 10 November 2005 ( see paragraph 422) that “ [ w ] here it is decided that a person vested with public authority at whose hands a human being has died should not face criminal proceedings, Article 2 requires the decision to be open to public scrutiny (see Finucane [ v. the United Kingdom , no. 29178/95], § 79 [ , ECHR 2003 ‑ VIII ] )”.

7 . For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v. Turkey , 27 July 1998 , § 82 , Reports of Judgments and Decisions 1998 ‑ IV , and McKerr v. the United Kingdom , no. 28883/95, § 148 , ECHR 2001 ‑ III , etc.).

8 . Turning to the facts of the present case, we cannot agree with the position of the Grand Chamber (see paragraph 354 of the judgment) : “... the Court takes the view that the Court of Appeal ’ s decision was not requ ired to be made public either. ... In addition, given that the applicants were not prevented from making the decision public themselves, the Court takes the view that the requirement of publicity was satisfied to an extent sufficient to obviate the danger of any improper cover-up by the Netherlands authorities . ”

9 . We still think that a prompt and public decision given by the authorities in investigating the use of lethal force is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan v. the United Kingdom , no. 24746/94, § § 108 and 136-40 , 4 May 2001 ). And in our opinion, an obligation to make the decision public cannot be placed on the applicants. In such a sensitive case only a public decision could enable the applicants to protect their legitimate interests properly, if necessary by mounting legal challenges to the decision, and only a public decision could exclude any negative allusion concerning the actions taken by the authorities when examining a matter of such crucial importance. We also share the position of the applicants expressed in the Grand Chamber ’ s judgment (see paragraph 309) that the family had been denied any involvement in the investigation or access to the case file, which impaired their ability to protect their interests properly.

10 . And in our opinion there has accordingly been a violation of Article 2 as regards the procedure followed by the Court of Appeal and especially the fact that the decision of the Court of Appeal was not made public.