PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

I regret that I am unable to share the opinion of the majority of the Court that there has been a violation of Article 13 of the Convention in this case.

In my view, given that the Court concluded that there has been no violation of Article 2, it is incorrect to find that Article 13 has been violated for the reason that there is no domestic remedy to redress the violation of Article 2.

In paragraph 170 of the judgment, the Court considers that “although it has found that there has been no breach of Article 2 in this case, that does not prevent the applicant ' s complaint under that Article from being “arguable” for the purposes of Article 13” and quoted its Kaya v. Turkey judgment of 19 February 1998 (§107 thereof) in this connection. The Kaya case was, however, very different. In Kaya the Court considered that it had not been established beyond reasonable doubt that the deceased was indeed unlawfully killed as alleged and found a violation of Article 2 only under its procedural head on account of the failure of the authorities of the respondent State to conduct an effective investigation into the killing. In Kaya it was clear that the procedural obligations under Artic le 2 had not been fulfilled and, for that reason, the Court found also a violation of Article 13.

In my opinion there can be no an automatic correspondence between a procedural violation of Article 2 and a violation of Article 13. In my partly dissenting opinion in the Court ' s judgment of 24 February 2005 in Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00), I suggested that there is no reason to find a violation of Article 13 on the basis of the mere fact that there has been a violation of the procedural obligation under Article 2. Moreover, it has to be underlined that in the present case the situation is different. The reference to Kaya could be useful, but a contrario , because here no violation has been found neither of the substantive nor of the procedural aspect of Article 2.

The Court in paragraph 171 recalls that “in the case of a breach of Article s 2 and 3 of the Convention, ... , compensation for non-pecuniary damage flowing from the breach should, in principle, be available as part of the range of redress”. We can then consider that a right to compensation arises from the violation of Article 2 and that this right is a Convention right. Consequently, this right should be considere d as one referred to by Article 13. But Article 13 is applicable only if this right gives rise to an arguable claim in the precise case. I wonder how one could consider that a claim founded on a violation of the Convention is “arguable” and at the same time consider that there has not been a violation of the Convention.

I admit that the applicant ' s claim has been declared admissible by this Court. However, I do not think that the claim should be, on that account, declared “arguable” for the purposes of proceedings before a national judge. In my view, what counts is the final judgment o f the Court, which in this case is one of non-violation. The decision on admissibility is a preliminary one of procedural effect only. I would add that in the present case following the admissibility decision the Court found it necessary to request further information from the parties on certain matters concerning the conduct of the police operation and the investigations carried out. Therefore, in my view there are no reasons for declaring “arguable” a claim that the Court in its judgment considers in reality to be ill founded.