JOINT DISSENTING OPINION OF JUDGE S SAJÓ, ZUPANČIČ AND WOJTYCZEK

To our regret we cannot follow the majority in this case. The applicant ’ s husband, who worked on a Lithuanian ship, was found dead in his cabin. There was never any sign or indication, nor even any allegation by the applicant, that he was killed. The applicant claimed in the domestic proceedings that her husband had passed away on account of an alleged gas leak on board that was due to the bad technical state of the engine. Experts ruled out the possibility of a causal link between the heart attack and the gas leak. This was the uncontested finding of the administrative courts. Nevertheless, in a situation where there could not be any criminal responsibility, the Court found a procedural violation of Article 2 because of a lack of a proper criminal investigation.

However, as the judgment itself admits, in accordance with Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002 ‑ I), the duty of effective investigation differs depending on the particular situation that has triggered it. Secondly, the next sentence from that paragraph is not quoted:

“However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case.”

In a situation where it was clear that there could not be any causal link and therefore any responsibility, even for negligence, we find it more than strange to hold the Lithuanian State responsible for delays in an unnecessary and groundless criminal investigation. Therefore, we cannot agree with the following conclusion (paragraph 70):

“... whilst any possible failure to undertake investigative measures on 24 or 25 October 2007 on Brazilian territory is mostly not down to the Lithuanian ship ’ s captain and thus not down to the Lithuanian authorities (see paragraph 53 above), it also transpires from the facts of the case that there were numerous deficiencies once the investigation into the circumstances of the applicant ’ s husband ’ s death was conducted in Lithuania.”

From the time when the ship was in the Brazilian harbour and the local investigation authorities took over the investigation, no State responsibility could be attributed to Lithuania, as Lithuania (represented by the Captain, who acted in conformity with the law) had no effective control over the autopsy. The alleged numerous deficiencies of the investigation had no bearing on its outcome and the delays, even if otherwise problematic, had no bearing on the case. We find that the available forensic evidence enabled the establishment of the cause of death (natural causes) as required by the case-law, and the additional deficiencies of the investigation (e.g. failure, due to delays, to obtain relevant logbooks to enable the authorities to determine the possibility of fumes which could not have caused the heart attack) had no bearing on the elements which had to be determined under the Kalicki test ( Kalicki v. Poland , no. 46797/08 , § 51, 8 December 2015 ). You cannot blame the chef of the restaurant for too much salt in the soup where you are entitled to a steak only and the soup has not been served to you.

Whatever inadequacies there may have been in the criminal investigation, these were immaterial and therefore there has not been any procedural violation of Article 2 in the present case.