CONCURRING OPINION OF JUDGE POWER-FORDE

I voted with the majority to find no violation of Article 2 of the Convention. The case, however, raises a question which may require clarification in another forum. The judgment cites a central principle articulated in Hugh Jordan v. the United Kingdom. [1] In situations where the responsibility of state agents in connection with a person ’ s death is at stake, the next of kin of the victim must be involved in any investigative procedure conducted by the authorities to the extent necessary to safeguard his or her legitimate interests . The question which the instant case raises is whether a deceased person ’ s family has the same or an equivalent right to be involved in such criminal investigations that ensue where the responsibility of non ‑ state agents is in issue.

The facts of the present case are extreme. The applicants ’ father ’ s death was caused by the gross negligence of a doctor who administered a lethal dose of diamorphine in circumstances where he was not familiar with or aware of the purposes of that drug. Criminal proceedings were instituted both in Germany where he had been licenced to practise and in the United Kingdom where the death had occurred. It is in these circumstances that the judgment considers the extent to which, if at all, the family had right to be involved in such proceedings as were instituted by the German authorities.

The judgment confirms that the Court ’ s jurisprudence does not necessarily require the provision of a criminal law remedy in every case involving medical negligence. It then considers that ‘ it may, therefore, be arguable whether and to what extent the applicants ’ involvement as next ‑ of ‑ kin is required in the event that the prosecution authorities have recourse to such a remedy on their own initiative ’ (§ 87). Having questioned whether the applicants ’ involvement in the criminal investigation was ‘ required ’ as part of the state ’ s procedural obligations under the Convention, the judgment concludes ‑ without answering the question ‑ that the applicants ’ ‘ involvement ’ , such as it was in this case, was sufficient to the extent necessary to safeguard their interests (§ 92).

I would have preferred the judgment to identify, more specifically, the legitimate interests of the next-of-kin in criminal proceedings for wrongful death caused by non-state agents and, thereafter, to examine whether such interests had been safeguarded su fficiently. Clearly, the family has a legitimate interest in establishing the facts pertinent to the cause of death together with an interest in identifying the person responsible. These matters were certainly established in the investigation conducted by the authorities in this case. [2] Whether the family ’ s legitimate interests in criminal proceedings extend any further—or to put it another way, whether the state ’ s obligation vis-à-vis the next-of-kin ends there—is a question that might, usefully , be clar ified.

It is anomalous that whilst German law obliges the authorities to grant a victim ’ s relatives the right to inspect the files in criminal proceedings taken against the perpetrator of the offence (§ 29) that same law imposes no obligation on the authorities to inform the relatives of the fact that such proceedings, to which they are parties , have terminated. On the 12 th of March 2008 the prosecutor in this case took such a decision to terminate the criminal proceedings against Doctor U. They applied to the Witten District Court for a penal order to be issued, which, if granted, would impose a suspended sentence of nine months upon the doctor together with a fine of €5,000. German law did not entitle the applicants to challenge this request for the purposes of ‘ having a different legal consequence for the offence being imposed ’ (§ 56). Essentially, they had no right to object to this application nor, indeed, to be heard by the court that would impose such an order. In this context, victim impact evidence is, apparently, not a factor in the assessment of such applications which, if granted, have significant consequences in terms of sentencing.

I hesitate to endorse the very broad nature of the assertion that the decision not to notify the applicants about the termination of criminal proceedings ‘ did not affect their legitimate interests as aggrieved persons or potential joint plaintiffs in the prosecution ’ (§ 91) in circumstances where those interests have not been identified, specifically . No longer being joint plaintiffs in criminal proceedings has obvious consequences for the next ‑ of ‑ kin. The discontinuation of proceedings without notice to a party thereto may raise an issue under Article 6 of the Convention. Whether that failure to notify affects the party ’ s interests sufficiently so as to amount to a violation of Article 2 is questionable.

I accept that a penal order may satisfy the requirements of Article 2 insofar as it enables the authorities to identify the cause of death and the person responsible therefor. However, where a wrongful death resulting in criminal proceedings being instituted occurs, it is, psychologically, of some value for the next-of-kin to have an opportunity to hear the authorities pronounce on such criminal responsibility. It is important for them to have a public acknowledgement of the wrong that was done to their loved one even if they are aggrieved by the apparent leniency of the penalty imposed for having caused such a wrong.

[1] Hugh Jordan v. the United Kingdom , no. 24746/94, ECHR 2001 ‑ III (extracts) .

[2] A state’s general responsibility under Article 2, however, is not limited to establishing the immediate or proximate cause of death as is clear from the Court’s findings in a number of cases (See L.C.B. v. the United Kingdom ( 9 June 1998, Reports of Judgments and Decisions 1998 ‑ III ); Öneryıldız v. Turkey ( [GC], no. 48939/99, ECHR 2004 ‑ XII ); and Opuz v. Turkey ( no. 33401/02, ECHR 2009 )) . In considering the state’s obligations under Article 2, this Court assesses whether the state did all that could have been required of it to prevent life from being ‘avoidably put at risk’. This assessment, however, does not fall within a review of any criminal proceedings taken against an individual responsible for the wrongful death.