JOINT CONCURRING OPINION OF JUDGE S JOČIENE AND POPOVIĆ

We respectfully disagree with the majority of colleagues on the Article 3 issue in this case, for the following reasons.

1 . It is clear from the facts of the case that the applicant failed to properly raise the Article 3 complaint at the domestic level, because he did not exhaust domestic remedies, as is rightly mentioned in paragraph 14 of the judgment.

2 . We agree with the majority that the effectiveness of the original investigation can be questioned and that the State ’ s obligation to investigate was subsequently revived (see Çakir and Others v. Cyprus ( dec .), no. 7864/06, 29 April 2010, in which the names of those allegedly responsible provided in 2005 were already known in 1974).

3 . The respondent Government raised the question whether the applicant had complied with the six-month rule in this respect. The purpose of that rule is to promote security of the law (see P.M. v. the United Kingdom ( dec .), no. 6638/03, 24 August 2004). It should ensure that it is possible to ascertain the facts of a case before that possibility fades away, making a fair examination of the question in issue next to impossible (see Pavlenko v. Russia , no. 42371/02 , § 69 , 1 April 2010 ).

In principle, t he six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. However, w here it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the act at issue , or from the date of knowledge of that act or its effect on or prejudice to the applicant ( see Dennis and Others v. the United Kingdom ( dec .), no. 76573/01, 2 July 2002). Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances ( see Paul and Au d rey Edwards v. the United Kingdom ( dec .), no. 46477/99, 7 June 2001).

4 . The Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, the victim ’ s relatives are expected to keep track of the progress of the investigation and to lodge their application with due expedition once they are, or should have become, aware of the lack of any effective investigation (see Bulut and Yavuz v. Turkey ( dec .), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey ( dec .), no. 38587/97, ECHR 2002 ‑ III; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 , § 158 , 18 September 2009 ) .

We agree with the majority that the s ame ru le applies to cases concerning the obligation to investigate under Article 3 of the Convention where the applicants themselves are the victims of the alleged ill-tre atment.

5 . In the present case it has been established that the obligation to investigate was revived after the ratification of the Convention by Serbia . This occurred with the ruling of the criminal court of 27 December 2004 . We consider the six month period to have started running on that date. Therefore, the applicant must have become aware of the lack of any effective criminal investigation a lot more than six months before he lodged his application with the Court on 22 May 2006. It was due to the applicant ’ s lack of diligence, which consisted in his own negligence, that he showed no initiative in informing himself about the progress made in the investigation after December 2004, until after lodging his application with the Court in May 2006. This complaint is therefore out of time for the purposes of Article 35 § 1 of the Convention and must be rejec ted pursuant to Article 35 § 4.

6 . We hold that legal certainty requires that an applicant obey the six month rule when filing a complaint with the Court. He also has to be diligent in pursuing his rights under the Convention. The applicant in this case has neither been diligent nor has he complied with the six-month rule.

7 . These are the reasons which lead us to conclude that the Court could not find a procedural violation of Article 3 in the present case. This finding guided us to vote against the sum of money awarded to the applicant in just satisfaction, for given our finding that there was only one violation in this case we consider that the applicant should be awarded a smaller amount.