JOINT DISSENTING OPINION OF JUDGES DEDOV AND ZÃœND

1. We agree with the majority that the respondent State failed to comply with its obligations under Article 38, and we voted accordingly. If the Court so requests, the State is obliged to submit the complete criminal file.

2. However, we regret that we are unable to conclude from this failure that the investigation was not adequate and that there has been a violation of Article 2 under its procedural limb. We should not forget that the Court had at its disposal a significant volume of documents (running to hundreds of pages), covering the first stages of the investigation and other major developments (see paragraph 16 of the judgment). The applicant had full access to the file through her lawyer (see paragraph 43). If there had been a serious lacuna in the information about the investigation which the Government provided at the Court’s request, the applicant would have pointed out this shortcoming. However, no such allegation has been made in this case by the applicant.

3. The procedural obligation is not one of result but of means. The investigators cannot therefore be blamed for their eventual failure to identify all of the perpetrators of the murder. It is clear that they made a meaningful attempt to find those who were responsible. They opened the investigation within several hours of the incident and located the body of Ms Estemirova shortly thereafter. Many investigative steps were taken promptly within the first few days after the murder. The investigation was not suspended prematurely or unreasonably. No defects in the investigative activities were found by the supervising authorities or the domestic courts. Despite the applicant’s argument to the contrary, the investigators followed several lines of inquiry, including the theory that law-enforcement agents had been implicated in the crime. In doing so, the investigators not only questioned dozens of law-enforcement agents in the region, but also obtained and tested their DNA samples. The results of the investigation appeared to be convincing to the Court, as it has found unanimously that the applicant’s submissions and the circumstances of the event as elucidated during the investigation do not allow it to establish that State agents were involved in the abduction and the killing of Ms Estemirova, which was the applicant’s main claim.

4. The investigation had a tangible outcome – it came up with a plausible theory of murder by Mr Bashayev, which was supported by hard evidence and statements from several witnesses. However, the majority, with reference to the results of the investigation as set out in paragraphs 17, 29 and 31 of the judgment, found that the experts had been unable to conclude with sufficient certainty that the bullets and the cartridges from the scene of the incident had been part of the same firearms ammunition, that the camouflage uniforms from Mr Bashayev’s address had been in contact with Ms Estemirova’s clothes, that the silencer had been used with the gun which belonged to Mr Bashayev or that the elements of fibres from the car belonged to Ms Estemirova.

5. We have another reading of the experts’ findings. Their conclusions, formulated using the verb “could”, do not suggest that the experts were unable to make any findings or that they had serious doubts. According to Russian doctrine and practice, experts cannot in principle say that something happened with 100% probability. Their conclusions are always formulated as “could” or “could not” (see, for example, Nikolay Fedorov v. Russia , no. 10393/04, § 25, 5 April 2011; Nigmatullin and Others v. Russia [Committee], nos. 47821/09 and others, § 58, 4 February 2020; and Romanova and Others v. Russia [Committee], nos. 21080/09 and others, § 33, 30 March 2021). Moreover, the experts’ findings that the bullets from the crime scene had not been shot from the silencer do not undermine the credibility of the investigators’ version of the murder. The rubber elements on the silencer matched a piece of rubber which had been collected at the crime scene. It is of course possible that the perpetrators carried the silencer with them without using it during the shooting.

6. Finally, even if there were some conflicts between pieces of evidence, they were not the result of the investigators’ professional negligence; they do not relate to the key elements of the investigation and they cannot therefore cast doubt on the thoroughness of the investigation as a whole, particular regard being had to the complexity of the case and the requirement to apply the procedural duty under Article 2 realistically (see Hanan v. Germany [GC], no. 4871/16, § 200, 16 February 2021).

7. We ought to bear in mind that the Court should not assume the role or take place of the supervising investigating authority in the assessment of the quality of an investigation comparing hundreds of pieces of evidence or looking for inconsistencies in witness evidence, unless those defects are obvious. The Court normally focuses its assessment on the procedural defects (whether a criminal case was opened in a timely fashion, whether the proceedings were prematurely suspended, and so on), or repeats the criticism expressed by the domestic authorities in stating that the investigators failed to comply with their instructions. In this case the Court, however, went beyond its role in so far as it based its conclusion of a violation of Article 2 under its procedural limb on the insignificant contradictions in the evidence, which are a normal feature of a complex criminal investigation at the pre-trial stage of the proceedings.