J OINT PARTLY DISSENTING OPINION OF JUDGE S CASADEVALL, HEDIGAN , MULARONI , FURA ‑ SANDSTRÖM, GYULUMYAN AND SPIELMANN

(Translation)

1. We voted against point 4 of the operative provisions for the following reasons .

2. We cannot subscribe to the new approach adopted by the Court which entails linking a possible violation of Article 14 of the Convention to the substantive and procedural aspects of Article 2 individually. An overall approach would have been preferable, since it would have better reflected the special nature of Article 14, which has no independent existence as it applies solely to the rights and freedoms guaranteed by the Convention. Since Article 14 has no independent existence, we consider it artificial and unhelpful to distinguish between the substantive and procedural aspects, especially as in the instant case the Court found violations of both these aspects of Article 2. An added problem is that it is too early to measure the impact this new approach will have on the application and interpretation of Protocol No. 12 to the Convention, which has just come into force in respect of the States that have ratified it.

3. By drawing a distinction between the substantive and procedural aspects, the majority found a violation of Article 14 of the Convention taken in conjunction with Article 2 solely on the basis of the authorities ' failure to examine whether the events that had led to the deaths of M r Ang elov and M r Petkov may have been racially motivated .

4. We agree with that finding. However, looking beyond this purely procedural finding, we are of the view that the other factual elements taken as a whole disclose a violation of Article 14 of the Convention taken in conjunction with Article 2.

5. Among these elements, we would note: the fact that shots were fired in a populated area – the Roma district of the village – without regard for the safety of the public; the fact that the military police were aware of the Roma origin of the victims, neither of whom was armed or considered dangerous; the published accounts of the existence of prejudice and hostility against Roma in Bu lgaria; the fact that this is not the first case against Bulgaria in which the Court has found that representatives of law and order have inflicted fatal injuries on Roma; M r M.M. ' s evidence that Major G. had hurled racial abuse at him immediately after the shooting, shouting “You damn Gypsies”; and, lastly, the authorities ' failure to take action and the grave procedural shortcomings which prevented the truth from being established.

6. It is true that the procedural shortcomings constitute a specific factor to which considerable weight must be given . They are central to the question of who must bear the burden of proof, since it is for the domestic authorities to take effective action to elucidate the relevant facts and a breakdown in the procedure will inevitably have a bearing on the conclusion to be drawn with regard to the substance of the problem.

7. However, by restricting the finding of a violation to the procedural aspect, the majority of the Court did not give enough weight to the sufficiently strong, clear and concordant unrebutted presumptions which arose out of the factual evidence in the case taken as a whole and which lead us to conclude that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 .