PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE SAJÓ

I voted with the majority in declaring the complaint admissible and in finding a violation of Article 2 of the Convention. However, I cannot subscribe to my colleagues’ reasoning regarding the admissibility of the complaint or the substantive violation of Article 2 of the Convention. In my view, the majority’s broad conception of the State’s positive obligations to protect life is a marked departure from our prior case-law, which requires States only to take reasonable measures to protect individuals from foreseeable risks.

I. ADMISSIBILITY

I agree with my colleagues that the case is admissible, but I base my finding on slightly different grounds. In cases of unintentional death, the Court is not required to consider the merits of a complaint regarding a criminal remedy where the applicant, in choosing to forgo a civil remedy, has “denied [herself] access to the best means – and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent” of the responsibility for her child’s death (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 55, ECHR 2002-I). The applicant need not, however, exhaust remedies that exist only in theory; rather, she is required only to exhaust remedies that “operate effectively in practice” (see Calvelli and Ciglio , cited above, § 53).

In this case, the Government has not demonstrated that a separate civil action, without a criminal judgment, would have been reasonably likely to provide an effective remedy for the applicant. Under Article 6.271 of the Lithuanian Civil Code, the Government are liable for damages where State or municipal authorities “fail to act in the manner prescribed by laws for these institutions,” but it is not clear that a civil suit filed pursuant to this Article would be effective without a criminal judgment indicating a violation of the law. Article 6.250 similarly provides for non-pecuniary damages “incurred due to crime, health impairment or deprivation of life,” but, again, it is not clear that the applicant could have recovered damages without a prior criminal judgment. Although the Government have argued that Article 6.266 provides a potential civil remedy that does not depend on evidence of fault, in this case the applicant would probably be unable to establish ownership of the building (see paragraphs 17 and 69 of the judgment), since ownership was established only de facto , and even then it was established only by a prosecution service which was clearly unwilling to proceed with the case. The Government failed to prove that de facto owners are liable under Article 6.266 of the Civil Code. Moreover, strict liability in civil law may not be sufficient to satisfy the Calvelli and Ciglio criteria, in the sense that it does not elucidate who was responsible for the child’s death. Since the Government have not demonstrated that a separate civil action would have been an “effective” remedy that the applicant was obliged to exhaust, I find that the applicant has victim status and the complaint is admissible.

II. ALLEGED SUBSTANTIVE VIOLATION OF ARTICLE 2 OF THE CONVENTION BY LITHUANIA BECAUSE OF THE FAILURE TO MONITOR BUILDINGS ADEQUATELY

While I agree that States have a positive obligation to protect the lives of individuals from certain foreseeable risks, I am unable to agree with the majority’s characterisation of the State’s responsibility to safeguard citizens from the dangers of derelict buildings. The majority opinion correctly notes that the State has violated the positive obligation to protect life. “For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (see Keenan v. the United Kingdom , no. 27229/95, §§ 90, ECHR 2001-III).

Subsequent cases have reaffirmed the Keenan standard. In the case of A.A. and Others v. Turkey , for example, the Court stressed the importance of interpreting States’ positive obligation to protect life “ de manière à ne pas imposer aux autorités un fardeau insupportable ou excessif ” [1] , bearing in mind “ les choix opérationnels à faire en matière de priorités et de ressources ” [2] (no. 30015/96, § 45, 27 July 2004). In Furdík v. Slovakia ((dec.), no. 42994/05, 2 December 2008) the applicant claimed that Slovakia had violated Article 2 by failing to implement a regulatory framework specifying a time-limit within which emergency workers had to respond to a call. The Court held that “the positive obligations under Article 2 [do not] stretch as far as to require the incorporation in the relevant regulations of an obligation of result... Various limiting factors inherent to the operation of airborne medical assistance (...) would render such a general obligation difficult to fulfil and impose a disproportionate burden on the authorities of Contracting States” (see Furdík v. Slovakia , cited above, LAW 1(b)(ii)). States do have an (additional) obligation to protect the safety of individuals in public places (see Ciechońska v. Poland (no. 19776/04, §§ 64-67, 14 June 2011), and also a duty “to adopt in this context regulations for the protection of people’s safety in public spaces, and to ensure the effective functioning of that regulatory framework” (see Ciechońska , cited above, § 69). However, this does not mean that in the specific case before us the Keenan criteria are not to be examined in order to establish State responsibility. In Ciechońska the issue was whether “the legal system as a whole dealt adequately with the case at hand” (ibid., § 70, emphasis added), taking into account the remedies available to the victim for redress. This is not the same as attributing strict liability to the State under the Article 2 positive obligations, as the present case seems to suggest. In contrast to the present case, the Court in the Ciechońska case did not examine the issue of whether the Government’s failure to remove the diseased tree in itself violated Article 2 and thus did not expand the States’ positive obligations to protect life. The only issue the Court found itself obliged to examine concerned remedies (“whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have amounted to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim”). In fact the only ground for the finding of a violation was that the State had failed to provide an adequate and timely response to the negligent death. The judgment reaffirmed the proposition, expressed in both Keenan and A.A. and Others , that “the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind (...) operational choices which must be made in terms of priorities and resources” (ibid., § 64).

In Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey , (no. 19986/06, §§ 32-41, 10 April 2012) it was of great importance that the State had specific duties vis-à-vis a vulnerable child under the exclusive control of the public authorities (see, mutatis mutandis , Molie v. Romania (dec.), no. 13754/02). Actual foreseeability (a matter that was not even discussed, far less established in the present case) was shown in that case. The specific conditions of the Kemaloğlu case are absent in Banel .

Applying the Keenan standard, since it has not been demonstrated that the authorities ought to have known of the existence of a risk, and in particular that any such risk had been shown to be immediate, I do not find that the actions of the Government in this case violated the substantive limb of Article 2 of the Convention. Although municipalities must take reasonable steps to avert foreseeable dangers to residents, they retain a measure of discretion in prioritising their obligations. In this case the authorities learned about the poor condition of the building at issue on 28 February 2005, some three months prior to the building’s collapse on 6 June 2005 (see paragraphs 6 and 26 of the judgment). There is no evidence in this case that the municipality was aware that the building was in imminent danger of collapsing or that it posed a foreseeable risk to the life of the applicant’s son. Even if some risk was foreseeable, I do not find the authority’s failure to take action within a three-month time-period to be unreasonable, given the other obligations that municipal governments must fulfil and the absence of strong evidence that the authorities knew that the building posed a serious and immediate danger to residents’ lives.

I am troubled by what I see as an expansion of the State’s positive obligations in the majority judgment, which finds that in addition to the Keenan standard “the State’s duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places” (paragraph 66, emphasis added). In my view, the Court’s application of the idea that “the State’s duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places” is overly broad. First, by focusing only on the obligation to take “reasonable measures” to protect individuals, and without limiting these measures to addressing foreseeable risks, the Court is signalling a stark departure from our previous case-law (see Keenan v. the United Kingdom , §§ 90-99, cited above). Moreover, requiring frequent monitoring and repair or demolition of derelict buildings is a heavy burden to place on State and municipal governments, which must meet many other obligations with limited staff and funds.

Substantive liability for lack of prevention should not be confused with the State’s failure to adequately prosecute those responsible for the negligent maintenance of the building (see 66-71 of the judgment). The need to provide effective legal remedies should not affect the scope of the risks that States have an obligation to address.

Since the death of the applicant’s son was not clearly foreseeable and because the failure of the municipal government to act within three months of learning of the poor condition of the building was not manifestly unreasonable, I find that there has been no substantive violation of Article 2 of the Convention.

III. ALLEGED PROCEDURAL VIOLATION OF ARTICLE 2 OF THE CONVENTION BY LITHUANIA BECAUSE OF THE LENGTH OF THE CRIMINAL INVESTIGATION INTO THE DEATH OF THE APPLICANT’S SON

I agree with my colleagues that the State violated Article 2 in failing to conduct a criminal investigation into the death of the applicant’s son within a reasonable period of time. I thus find that the respondent State has violated Article 2 of the Convention and concur with the Court’s judgment on this point.

[1] . “in a way that does not impose an unsupportable or excessive burden on the authorities”

[2] . “the operational choices they must make in terms of priorities and resources”