PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGES KOSKELO AND EICKE

Introduction

1 . For the reasons set out below we are of the view that, in the circumstances of this case, under Article 46 of the Convention the Court had no jurisdiction to examine the applicant ’ s complaint and that this application should therefore have been held to be incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and should have been rejected in accordance with Article 35 § 4. However, the majority having concluded that Article 46 did not deprive the Court of jurisdiction on the merits, we agree that the fresh investigation into the applicant ’ s allegations of police ill-treatment did not fall short of the procedural obligation under Article 3 of the Convention.

The context

2 . In its judgment in V.D. v. Croatia , no. 15526/10, §§ 78, 79 and 85, 8 November 2011, the Court found a violation of the substantive and the procedural limb of Article 3 of the Convention on the basis that:

“ ... regard being had to the applicant ’ s allegations of ill-treatment, corroborated by the medical reports, and to the circumstances in which the applicant sustained the injuries, the Court considers that the Government have not furnished any convincing or credible arguments which would provide a basis to explain the manner in which the applicant had sustain these injuries.

The Court therefore concludes that the State is responsible under Article 3 on account of the inhuman and degrading treatment to which the applicant was subjected by the police officers.

...

... in the present case there has also been a violation of the procedural aspect of Article 3 of the Convention in respect of both sets of proceedings against the four police officers implicated ... ”

3 . By an Action Plan concerning the execution of this judgment, dated 8 February 2012, the Croatian Government informed the Committee of Ministers, under the heading “Individual Measures” that:

“ On 17/02 2012 and on 13/04/2012 respectively, the applicant requested reopening of both criminal proceedings he instituted against four police officers, which were the subject of ECtHR judgment. Both requests are invoking Article 500, § 1 and Article 502 § 2 of the Law on Criminal procedure.

...

Proceedings for deciding on these requests are pending before the competent Zagreb County Court, and the Government shall inform the Committee of Ministers on further developments as soon as any new information becomes available.”

4 . As the judgment notes at § 50, as a consequence and “[ i ]n order to execute the Court ’ s judgment, in March and October 2013, the domestic courts reopened the proceedings against the police officers suspected of the applicant ’ s ill-treatment during the arrest, and the relevant State Attorney ’ s Office conducted a fresh investigation into the incident”.

5 . The Committee of Minister ’ s supervision of the execution of the judgment in V.D. v. Croatia is not yet closed and the Committee of Minister ’ s HUDOC EXEC webpage in relation to this case (last accessed on 21 October 2018) describes the “Status of Execution” in relation to individual measures in the following terms:

“ ... The competent domestic court has not yet made decision on his requests. On 12 April 2012, however, the applicant ’ s lawyer complained that on 17 January 2012, after the Court rendered the judgment at issue, the Supreme Court had found that the use of the police force in the instant case was not excessive.Information would be appreciated on the outcome of the domestic proceedings in V.D. as well as on individual measures taken within the context of Mafalani and Tadić .”

6 . However, neither the applicant nor the Government appear to have notified the Committee of Ministers of either the end of the criminal investigation in respect of the police officers (judgment §§ 12 – 30) or the outcome of the civil proceedings leading to an award (and payment) of compensatory damages to the applicant (judgment §§ 31 – 33), apparently over and above the award of just satisfaction made by the Court in its judgment of 8 November 2011 (and paid by the Government on 19 March 2012).

7 . Instead, by an application lodged on 10 April 2015, the applicant initiated the present proceedings before the Court complaining in reliance on Article 3 of the Convention that the investigation into his allegations of ill-treatment by the police during his arrest had not been effective.

Jurisdiction under Article 46

8 . Article 46 of the Convention, in so far as relevant, provides as follows:

“Binding force and execution of judgments

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

...

4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”

9 . On its face, it appears clear that Article 46 only confers jurisdiction on the Court in relation to adequacy of the execution of a judgment – and the question whether that might amount to a refusal to abide by that judgment – in the context of a referral by the Committee of Minister under Article 46 § 4 of the Convention. This was confirmed by the Grand Chamber in Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 33, ECHR 2015: “The question of compliance by the High Contracting Parties with the Court ’ s judgments falls outside its jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) , nos. 41561/07 and 20972/08, § 56, 18 October 2011)”.

10 . That said , the relationship between the jurisdiction of the Committee of Ministers and that of the Court in its judgment has repeatedly required careful calibration. The Grand Chamber has, most recently, summarised the Court ’ s approach in Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, § 47, 11 July 2017, a case concerning a refusal to re-open criminal proceedings which had been the subject of a prior judgment of the Court under Article 6:

“The Court observes that in its judgments in Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, ECHR 2015) and Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) ([GC], no. 32772/02, ECHR 2009) and its decision in Egmez v. Cyprus (( dec. ), no. 12214/07, §§ 48-56, 18 September 2012) it considered the issue of its jurisdiction in relation to the prerogatives of the respondent State and of the Committee of Ministers under Article 46 of the Convention. The principles set out by the Court in those judgments and that decision may be summarised as follows:

(a) Findings of a violation in its judgments are essentially declaratory and, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2) , cited above, § 61).

(b) The Committee of Ministers ’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (ibid, § 62; see also Bochan (no. 2) , cited above, § 33, and Egmez , cited above, § 51).

(c) On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases, for example where the domestic authorities had carried out a fresh examination of the case by way of implementation of one of the Court ’ s judgments, whether by reopening the proceedings or by initiating an entirely new set of proceedings (see Egmez , cited above, § 52, and the references therein).

(d) It transpires from the Court ’ s case-law that the determination of the existence of a “new issue” very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut (see Bochan (no. 2) , cited above, § 34, and, for an examination of that case-law, Egmez , cited above, § 54). The powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court ’ s judgments and assess the implementation of measures adopted by States under that Article are not encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2) , cited above, § 67).”

11 . It is therefore, crucially, the exclusive role of the Committee of Ministers under Article 46 § 2 to ensure that the applicant receives resitutio in integrum , as reflected in “the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation which existed before the wrongful act was committed” ( Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2) , cited above, § 86; by reference to The International Law Commission ’ s Articles on the Responsibility of States for Internationally Wrongful Acts) in relation to the violation found in the first judgment. The Court, by contrast, only has jurisdiction in relation to “new issues” or relevant “new information” which might constitute a new violation of the Convention.

12 . In Moreira Ferreira v. Portugal (no. 2) , where the original judgment was solely concerned with a violation of a procedural obligation under Article 6 of the Convention, a majority of the Grand Chamber concluded that the Supreme Court in that case, in the context of the review proceedings, had “once again focused on the determination, within the meaning of Article 6 § 1 of the Convention, of the criminal charge against the applicant” and that the Court, therefore, had jurisdiction to consider the compliance of these second proceedings with Article 6 § 1.

13 . While we agree with Part I of the Joint Dissenting Opinion of Judges Raimondi, Nußberger , De Gaetano, Keller, Mahoney, Kjølbro and O ’ Leary in Moreira Ferreira v. Portugal (no. 2) , the difference in approach between the majority and the minority in that case does not need to be resolved in order to support our conclusion in the present case. It seems to us that the circumstances of that case can be clearly distinguished from those in the present case.

14 . After all, while the original judgment in that case only found a procedural violation, the original judgment in the case of Egmez v. Cyprus (no. 30873/96, ECHR 2000 ‑ XII) – as in the present case - the relevant finding of the Court confirmed a substantive violation of Article 3 of the Convention. When that case came back before the Court, the complaint was – as it is in the present case – also one of a failure to carry out an effective investigation into the original ill-treatment suffered by the applicant found to have amounted to a breach of Article 3 in the original judgment.

15 . In these circumstances, the Court in its decision in Egmez v. Cyprus of 18 September 2012, which the Grand Chamber in Moreira Ferreira v. Portugal (no. 2) expressly relied upon, concluded that it had no jurisdiction to examine the applicant ’ s complaint under that head and declared that aspect of his second case inadmissible ratione materiae . It did so on the basis that (§§ 61-63) :

“The Court first observes that in so far as the appointment of the investigator and the ensuing investigation are concerned, these constituted the individual measures adopted by the Cypriot Government in order to execute the Court ’ s judgment and to secure the rights of the applicant which the Court found to have been violated. Consequently, the steps taken by the Government cannot be considered as new factual developments as they formed part of the measures adopted in pursuance of the Court ’ s initial judgment and thus fall within the supervision exercised by the Committee of Ministers. The Court, therefore, does not have jurisdiction to review these measures. This, it will be recalled, is a matter for the Committee of Ministers ( ... ).

The question that remains is whether there were any factual developments or any new events or circumstances not determined by the first judgment in the case which could be said to raise a “new issue” capable of triggering a fresh investigative obligation under Article 3 of the Convention and thus a possible breach of that provision .

In this respect the Court reiterates that in the case of an investigation for the purposes of Articles 2 and 3, a procedural obligation may be revived subsequent to a new development, as the discovery of new evidence or information casting doubt on the results of an earlier investigation or trial (see, mutatis mutandis, Brecknell v. the United Kingdom no. 32457/04, §§ 73-75, 27 November 2007 – as regards an Article 2 complaint, and Stanimirović v. Serbia, no. 26088/06, §§ 29 and 33, 18 October 2011 - as regards an Article 3 complaint ).” ( emphasis added)

16 . Having considered the evidence, the Court concluded that, in view of the evidence in that case, “it is clear that nothing much happened following the Court ’ s judgment and that there have been no developments or any new events that could revive a procedural obligation under Article 3 and thus trigger a possible breach of that provision. The Court notes that the applicant himself has not relied on or pointed to any particular facts or developments that could warrant a different conclusion” (§ 66).

17 . In the present case, the majority decided that the relevant “new facts” were “the alleged lack of effectiveness of the fresh investigation, and more specifically the errors which the applicant claimed had vitiated the decision of the State Attorney ’ s Office to terminate the proceedings” (§ 52).

18 . However, it seems to us to be clear that neither of these two “factual developments” were such as to “raise a ‘ new issue ’ capable of triggering a fresh investigative obligation under Article 3 of the Convention”, as the decision in Egmez v . Cyprus (rightly) requires. They are, to use the language in that decision, no more than “part of the measures adopted in pursuance of the Court ’ s initial judgment” and, as such fell outside the jurisdiction of the Court and within the exclusive jurisdiction of the Committee of Ministers.

19 . There are three further aspects of this case which provide further support for this conclusion:

(a) the Court, in Egmez v . Cyprus concluded that it had no jurisdiction despite the fact that, unlike in the present case, the Committee of Ministers in that case had already closed its procedure for supervising the execution of the original judgment by a final resolution. There was, therefore, no question of a concurrent exercise of jurisdiction by the Court and the Committee of Ministers. On the contrary, the decision of the Court led to the applicant, in relation to the issues complained about, being placed wholly outside the jurisdiction and protection of the Convention system. By contrast, a decision by the Court to declare the present case inadmissible ratione materiae would not have deprived the applicant of the protection of the Convention system as he remains (or would have remained) subject to the jurisdiction of the Committee of Ministers. In Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2) , cited above, § 67, the Court clearly treated the question whether the issue “would escape all scrutiny under the Convention” as a relevant consideration in the context of the decision on jurisdiction;

(b) in light of the fact that the Committee of Ministers had expressly asked to be informed about the “outcome” of the domestic proceedings (see § 5 above) before forming a final view on the Respondent Government ’ s compliance with its obligations under Article 46 § 1, a merits decision of this Court plainly pre-empts that decision by the Committee of Ministers. While no doubt theoretically possible, especially in light of the fact that it is concerned with assessing execution not primarily against the standard of the substantive Convention provisions but against the restitution standards reflected in “the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation which existed before the wrongful act was committed” ( Verein gegen Tierfabriken Schweiz ( VgT ) (no. 2) , cited above, § 86), it is difficult to see in practice on what basis the Committee of Ministers would disagree with the Court in relation to e.g. the adequacy of the domestic investigation; and

(c) the judgment seeks to distinguish the present case and Egmez v. Cyprus (see judgment § 51) on the basis that, unlike in the latter case, “[t]he fresh investigation gave rise to a number of further procedural measures that were taken by the State Attorney ’ s Office, which led to the collection of further evidence and the establishment of new facts concerning the applicant ’ s case ( ... compare and contrast Egmez , ... , §§ 62-65, where the investigation was merely opened but then came to a complete standstill as the investigator could not contact the applicant and proceed with the investigation)”. If that were, however, a valid distinction in the context of identifying a relevant “new fact” or “new development”, it would in our view create a perverse incentive for Respondent States not to re-open any investigation following a finding of a substantive breach of e.g. Article 3. After all, if steps taken in the context of such an investigation were to trigger the (fresh) jurisdiction of the Court, following the majority ’ s interpretation of Egmez v . Cyprus , a Respondent State might seek to rely on that judgment to avoid the Court ’ s jurisdiction by not taking any effective steps at all in any subsequent investigation.