PARTLY CONCURRING AND PARLY DISSENTING OPINION OF JUDGE LEMMENS

1 . I am happy to agree with the finding that there has been a violation of Article 3 of the Convention. However, while the majority emphasise the effects of the General Amnesty Act of 2012 on the criminal proceedings against the perpetrators of the acts complained of by the applicant, I believe that more attention should have been paid to the role played by the prosecutor in this case.

As to the various complaints made under Article 8, to my regret I am unable to agree with the majority ’ s view that they relate only to the applicant ’ s physical and psychological integrity. Accordingly, I disagree with the majority ’ s conclusion that these complaints are not worthy of separate examination.

Procedural limb of Article 3

2 . With respect to the procedural limb of Article 3, I agree with the assessment of the criminal-law framework as having a sufficient deterrent effect (see paragraph 84 of the judgment). The problem in the present case lies with the implementation of that framework.

3 . As regards the first three investigations, it strikes me how the prosecutor dealt with the applicant ’ s complaints. Where he had a choice, he systematically opted for the offences with the lowest penalties. As a result, the proceedings were all discontinued as falling within the scope of the General Amnesty Act (which applied to offences for which the sentence was two years ’ imprisonment or a lighter penalty):

(a) first investigation: complaint based (only) on the offence of self ‑ administered justice (maximum sentence: three months ’ imprisonment) – charge based on that offence (no recharacterisation by the prosecutor as a more serious offence!) – proceedings accordingly discontinued because of the general amnesty (see paragraphs 18-22 of the judgment);

(b) second investigation: one complaint based on the offence of self ‑ administered justice, after which the prosecutor opened a criminal investigation for the offences of infliction of bodily harm (maximum sentence: two years ’ imprisonment) and self-administered justice (see above) – another complaint based on, inter alia , the offences of threat (maximum sentence: one year ’ s imprisonment), breaking and entering (maximum sentence: one year ’ s imprisonment), insult (maximum sentence: a fine), theft (maximum sentence: three years ’ imprisonment), destruction of property (maximum sentence: three years ’ imprisonment) and malicious use of telephone calls (maximum sentence: one year ’ s imprisonment), after which the prosecutor opened another criminal investigation for malicious use of telephone calls – after the two investigations had been joined, the prosecutor concluded that S.N. and E.N. had committed the offences of bodily harm, self-administered justice and threat – proceedings accordingly discontinued because of the general amnesty – appeals by the applicant, who complained that the prosecutor had failed to continue the investigation based on the offences of theft in collusion with others (maximum sentence: five years ’ imprisonment), destruction of property (see above), torture (maximum sentence: ten years ’ imprisonment) and constraint through threat or violence for the acquisition of property (see above) – decision to discontinue upheld by the courts (see paragraphs 23-44 of the judgment);

(c) third investigation: complaint based on theft (see above) – investigation based on that offence, but the offence later recharacterised and the charge based on the offence of self-administered justice (see above) – proceedings accordingly discontinued because of the general amnesty (see paragraphs 45-50 of the judgment).

The majority consider that “it is not for the Court to speculate whether the prosecutor should have pursued the criminal investigations under other articles of the Criminal Code” (see paragraph 87 of the judgment). I find this an unsatisfactory position in the circumstances of the case. The Court should have gone further and analysed the reasons, if any, why the prosecutor did not even try to bring charges for offences to which the General Amnesty Act would not apply.

4 . Then comes the fourth investigation. As the majority note, “the applicant attempted to remedy the adverse effects resulting from the granting of the general amnesty by lodging another complaint against S.N. in 2014 for, amongst other offences, threat and inflicting grievous bodily harm, the latter being punishable by up to ten years ’ imprisonment” (see paragraph 88 of the judgment).

However, rather than seizing the new opportunity to investigate the matter, the prosecutor decided not to bring the case to trial “given the lack of evidence” (ibid . ). This time, the courts disagreed. They annulled the prosecutor ’ s decision. Since then, no progress has been made (see paragraphs 51-55 of the judgment).

5 . I thus find that there has been a disturbing pattern of downplaying the importance of the facts, so that only minor offences were prosecuted and the more important offences, the relevance of which seems obvious to me, still remain unprosecuted. It is not merely the General Amnesty Act that should be criticised, but also, and more importantly, the characterisation of the criminal acts by the prosecutor in such a way that they would fit within the scope of that Act. The case is a clear example of how the deterrent effect of the criminal-law framework has been completely destroyed.

Article 8

6 . With regard to the complaint brought by the applicant under Article 8, the majority note that it concerns an alleged lack of respect for her “home, life and property” (see paragraph 91 of the judgment) and that in her submissions the applicant specifically complained about a failure “to protect her health, life and property” (see paragraph 92 of the judgment). The majority consider that the complaint is “related to the applicant ’ s physical and psychological integrity”, which is covered by the concept of private life under Article 8 (see paragraph 93 of the judgment). Noting further that the Court already found a violation under Article 3, the majority find that it is not necessary to examine the complaint separately under Article 8.

7 . I respectfully disagree.

For an examination of the complaints, the application as formulated in the application form should be the starting-point (see Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 122, 20 March 2018). The applicant complained about the failure of the authorities to protect her life and her health as well as her property. Apart from the complaints relating to her physical and psychological integrity, which the Court unanimously decided to examine under Article 3, there were also complaints about the inability of the authorities to assist her in securing enforcement of the judgment of the Vlora District Court dismissing S.N. ’ s claim for the repossession of the house (see paragraph 11 of the judgment), and thus to let her live in her home, and about the failure to protect her against the alleged removal by S.N. and E.N. of all her objects in the house (see paragraphs 15 and 17 of the judgment).

In my opinion, these other complaints concern the right to a court (Article 6 § 1), the right to respect for the applicant ’ s home (Article 8), and the right to respect for her property (Article 1 of Protocol No. 1).

The finding of a violation of Article 3 cannot be considered to cover these complaints.

I regret that these complaints, recharacterised under the said provisions of the Convention, were not communicated to the Government. Obviously, the applicant was not in a position to elaborate on the above-mentioned complaints “even after the communication of the case to the Government” (as indicated by the majority in paragraph 95 of the judgment), since the parties were simply not asked to submit observations on them.

For these reasons, I consider that the complaints concerning the right to a court, the right to respect for the applicant ’ s home and the right to respect for her property should have been examined separately, if necessary after communication of this part of the application to the Government.