CONCURRING OPINION OF JUDGE SEIBERT-FOHR

While I agree with the Court’s conclusions, I am writing separately with respect to the exhaustion of local remedies in order to submit a different reasoning. To my mind, in the present case the Court should have engaged with the effectiveness of the State liability proceedings. This is not just a formality, but it is relevant to the subsidiary nature of the Convention machinery more generally (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V; KudÅ‚a v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI; and Andrášik and Others v. Slovakia (dec.), nos. 57984/00 and 6 others, ECHR 2002 ‑ IX). The rationale for the exhaustion rule is to afford the national authorities, primarily the courts, the opportunity to put right, to the extent possible, the alleged violations of the Convention (see the summary of the principles in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-89, 9 July 2015; Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 221 and seq., ECHR 2014 (extracts); and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 others, §§ 69-77, 25 March 2014). This should function as an incentive for Contracting States to increase the availability and effectiveness of their domestic remedies, including State liability proceedings. For this purpose the Court should engage with the effectiveness of such proceedings rather than unreservedly dismissing them as not having to be used for purposes of exhaustion.

In the present case, the applicant claimed that the criminal proceedings against her father had been flawed. Therefore the question to be determined for the purpose of Article 35 § 1 was which remedies had been available to the applicant to enable her to challenge these flaws. The Government argued that the applicant had failed to exhaust all available domestic remedies because it had been open to her to lodge a claim for damages against the State under the Act on Compensation for Damage Caused in Criminal Proceedings. The majority reject this claim, arguing that the applicant made full use of the criminal-law avenue available to her (see paragraph 65). To my regret, I cannot subscribe to this reasoning as it overlooks the fact that the criminal proceedings did not constitute a remedy for the violation of the respondent State’s positive obligations under Articles 3 and 8 of the Convention. The applicant had alleged abuse committed by a private individual, not by a State official. State responsibility only came into the picture when the criminal proceedings against her father failed to be effective. While the criminal proceedings constituted the appropriate channel for the applicant’s allegations of sexual abuse against her father, they were not the appropriate avenue of redress for the subsequent Convention grievance that the applicant submitted before the Court, namely the violation of the respondent State’s positive obligations during the criminal proceedings. It was only when the Supreme Court acquitted the accused as a result of the previous breach of procedural rules in the collection of evidence that the domestic authorities’ procedural response to her allegation of rape and sexual abuse by her father proved to be flawed (see paragraph 101). Only then could the applicant turn to the available domestic remedies in order to have the violation of her procedural rights established.

The majority disagree and refer to Remetin v. Croatia (no. 29525/10, § 76, 11 December 2012) and Pulfer v. Albania (no. 31959/13, § 71, 20 November 2018) to support the holding that it was not necessary to have recourse to proceedings under the Act on Compensation for Damage Caused in Criminal Proceedings. However, those cases were different from the present one, as the Governments had argued there that the applicants should have brought civil damages claims against the perpetrator (not the respondent State). In cases where the authorities fail in their obligation to conduct an investigation capable of holding a perpetrator of serious abuse responsible, the victim cannot be directed to bring civil proceedings against the individual perpetrator since such proceedings are insufficient to protect the applicant’s procedural rights under Article 3. This is not, however, at issue in the present case. The Government did not submit that the applicant should have brought civil proceedings against her father, but rather the relevant proceedings to establish State liability for damage caused in criminal proceedings. If such proceedings are capable of establishing that the criminal-law mechanisms were defective and provide the applicant with adequate compensation, they constitute an effective remedy which applicants need to use pursuant to Article 35 § 1 of the Convention (see, mutatis mutandis , Januškevičienė v. Lithuania , no. 69717/14, §§ 58-62, 3 September 2019); all the more so, as the Court does not go beyond such a solution in the present case. It finds a violation of the respondent State’s positive obligation and orders the respondent State to make an award to the applicant in respect of non-pecuniary damage. I doubt that the Court can dismiss domestic remedies capable of leading to the same outcome as ineffective. To hold otherwise would essentially call into question the effectiveness of the application procedure under the Convention.

Therefore, the majority should have considered whether a claim for damages against the State under the Act on Compensation for Damage Caused in Criminal Proceedings would have offered the applicant an effective remedy for her insufficient procedural protection during the criminal proceedings against her father. According to the Court’s established jurisprudence, the Government bear the burden of proving that a remedy is both effective and available (see Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018; Mocanu and Others , cited above, § 225; Dalia v. France , 19 February 1998, § 38, Reports of Judgments and Decisions 1998 ‑ I; McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; and Vučković and Others , cited above, § 77). The Government should be able to illustrate the practical effectiveness of a remedy with examples of domestic case-law. In particular, where the Government argue that the applicant could have relied directly on the Convention before the national courts, the degree of certainty of such a remedy will need to be demonstrated by concrete examples (see Slavgorodski v. Estonia (dec.), no. 37043/97, ECHR 1999 ‑ II).

In the present case, the Government have failed to demonstrate the effectiveness of the procedure under the Act on Compensation for Damage Caused in Criminal Proceedings for alleged breaches of the State’s positive obligations under Articles 3 and 8 of the Convention. Section 7(1) of the Act provides that if a body conducting proceedings has violated procedural law and thereby caused damage to a person, the person has the right to claim compensation for such damage. It is unclear whether this provision also applies to violations of the Convention. Though the Government argued that national courts were required to take into account the Convention principles, they conceded that there had been no cases where a breach of criminal procedure was alleged to have contravened the State’s positive obligations under Articles 3 and 8 of the Convention. Therefore, the Government have not discharged their burden of proving that there was an appropriate and effective remedy available to the applicant in the present case. The majority could have reasoned their holding accordingly. Such a holding would be an incentive for the respondent State to expand its domestic remedies for cases in which violations of positive rights are alleged, and would thus reinforce subsidiarity as a fundamental principle of the Convention system.