PARTLY DISSENTING OPINION OF JUDGE PANOVA

(Translation)

While agreeing with the majority that there has been a breach of Article 2 of the Convention under its substantive limb, I do not believe that there is convincing evidence that there has been a breach of that provision under its procedural limb.

In order to find that there has been such a breach, in paragraph 84 of the judgment the majority relies on two points: (a) that, in assessing the results of the investigation into Mr Todorov ’ s death, the authorities did not apply a standard that was comparable to the “no more than absolutely necessary” standard required by Article 2 § 2; and (b) that they did not interview the members of the anti ‑ terrorist squad, because they preferred to preserve their anonymity. In my view, in the specific circumstances of this case the failure to interview the officers of the anti ‑ terrorist squad did not have any effect on the thoroughness of the investigation carried out by the national authorities. It is beyond doubt that in spite of the rule applicable at the time of the investigation – section 159(3) of the Ministry of Internal Affairs Act 1997, which required that the identities of those officers be kept secret – there was a procedural possibility under Bulgarian law to interview them, for instance by questioning them as anonymous witnesses. Interviewing such officers is clearly required in cases similar to Vachkovi v. Bulgaria (no. 2747/02, 8 July 2010), where the Court found that there had been a breach of Article 2 of the Convention precisely because of the failure to interview the officers of the anti ‑ terrorist squad. However, I do not find that the facts of the present case match those of Vachkovi . In that case, the unquestioned witnesses were the only ones who had been in close proximity to the victim at the time his death. It was therefore natural that they would be the most useful witnesses and that, without interviewing them, the authorities could not maintain that they had done all they could to uncover the truth. In the instant case, the special anti ‑ terrorist squad took part in the last stages of the operation, and none of its members was any closer to the house where the victim was hiding than any of the other witnesses. In the course of the investigation the authorities interviewed enough persons who were close to Mr Todorov and almost all police officers who had taken part in the operation. After the case was referred back for additional investigation, the authorities obtained additional expert evidence, the purpose of which was to establish the time and the manner in which Mr Todorov had died. In as much as the majority finds that those two points were not elucidated, and that the authorities did not therefore carry out an effective investigation into the death of the applicants ’ relative, I am not convinced that it was possible to obtain any further clarification by interviewing the officers of the anti ‑ terrorist squad. I consider that the investigation obtained sufficient evidence – in the form of expert reports and witness statements – that allowed the competent authorities to determine whether any offences had been committed.

In the final analysis, States cannot be blamed for enacting legislation which protects the identities of police officers who are, by law, required to discharge very important duties in challenging situations. The essential issue in the present case is whether by interviewing those officers the authorities would have arrived at a different conclusion. I do not believe that this would have been the case, for the above ‑ mentioned reasons. The effectiveness of an investigation is not determined by the quantity of the evidence but by the quality of the information conveyed by that evidence. For this reason, I find that the national authorities cannot be faulted for the way in which they conducted the investigation, which was comprehensive and full in terms of elucidating the manner in which the events of 10 and 11 December 2003 had unfolded. As regards the time and the manner of Mr Todorov ’ s death, interviewing those officers would not have helped clarify these points, which were obviously something that could be determined solely through expert evidence. In view of this, and of the Court ’ s settled case ‑ law concerning the effectiveness of investigations into suspicious deaths, I am of the view that the national authorities gathered enough evidence to be able to determine speedily the cause of Mr Todorov ’ s death and the person or persons who bore responsibility for it. In examining the procedural limb of Article 2 of the Convention, the Court should not seek to determine that, on the basis of the available evidence, the national authorities should have made fundamentally different findings of fact or law. This is a matter falling into the exclusive purview of the national authorities, which should not be supplanted by the Court.

In this connection, I also cannot agree with the majority ’ s view under the procedural limb of Article 2 of the Convention that the national authorities did not assess the evidence concerning the use of force by the police in a way compatible with the “no more than absolutely necessary” standard under that provision. This finding is, in my view, an assessment of the ends, not of the means, and should not have featured in the Court ’ s analysis under the procedural limb of Article 2. This point is relevant only for the finding of a substantive breach of Article 2, a finding with which I fully agree.

For these reasons, I believe that the Court should have found a breach of Article 2 of the Convention under its substantive limb in relation to the death of Mr Todorov, but not a breach of the State ’ s duty under the procedural limb of that provision to carry out an effective investigation of the circumstances in which that death took place.