PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

( Translation )

I voted against points 3 and 4 of the operative part for the following reasons.

1. I do not share the majority view that there has been no violation of Article 2 of the Convention in respect of the respondent State ’ s obligation to conduct an effective investigation into the circumstances of the incident which led to the death of the applicant ’ s son.

2. I note that the authorities showed their willingness to conduct an investigation into the shooting. In that connection, two separate sets of proceedings were conducted: criminal proceedings and an administrative inquiry. However, I am not persuaded that those proceedings were sufficiently thorough and effective to meet the above requirements of Article 2.

3. I also note that there were glaring omissions in the conduct of the preliminary investigation. In particular, great importance should be attached to the fact that the criminal police laboratory was unable to determine the exact distance from which the bullet was fired, because of an omission in the collection of evidence. In fact, the sample of skin taken from the victim was not large enough , so the experts were unable to conduct an effective examination in that respect. Furthermore, it seems that no effort was made to identify and question the victim ’ s two friends who were with him that night and might have witnessed the incident.

4 . I am further struck by the fact that the ballistic report only concerned the number of bullets fired from G.A. ’ s revolver and did not mention anything about the functioning of a 357 - magnum Smith and Wesson. In particular, it bore no indication as to the pressure needed in order to release the hammer and fire the gun, although the applicant had expressly invited the investigating judge to examine this issue. In t his connection I regret that the question of the use of G.A. ’ s revolver was considered only by minority judges on the bench of the Katerini Assize Court .

5 . Moreover, I cannot overlook the fact that during the hearing before the Katerini Assize Court , the forensic expert who conducted the post-mortem examination was not invited to analyse his report and express his view s o n the incident. On the contrary, the court heard evidence from another doctor who had never examined the victim, but had only read the post-mortem examination report and had been called by the defendant. I regret that the Katerini Assize Court attached great importance to the statement of this expert and based its conclusion on that and on the theory

concerning the trajectory of the bullet put forward by a mathematician called by the defendant.

6. I further observe that the police officers who rushed to the scene of the crime and conducted the preliminary inquiry were attached to the Ano Poli police station, as was the officer involved in the incident , thus calling into question the ability of the officers concerned to conduct an independent inquiry, as it was highly likely that they would have personally known the officer involved and might have worked with him in the past, creating inevitable feelings of professional solidarity. This is particularly so in the present case where the applicant was not able to participate in the first stages of the preliminary proceedings, namely the inspection of the area and the crime scene reconstruction, since he was not informed of the i ncident until ten hours later.

As the Court has held previously (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § § 325 and 337 , ECHR 2007 ‑ ... ) :

“ for the investigation to be ‘ effective ’ ... it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence ... . What is at stake here is nothing less than public confidence in the state ’ s monopoly on the use of force.

...

The Court has had occasion to find a violation of Article 2 in its procedural aspect in that an investigation into a death in circumstances engaging the responsibility of a public authority was carried out by direct colleagues of the persons allegedly involved .. . Supervision by another authority, however independent, has been found not to be a sufficient safeguard for the independence of the investigation ... ”

7 . Lastly , the Court has previously underlined the importance of the suspension from duty of the agent under investigation or on trial as well as his dismissal if he is convicted (see, mutatis mutandis , Abdülsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004). In the present case, I regret that, after a short period of 52 days during which he was granted sick leave, police officer G.A. resumed his duties and a few months later he was transferred to an administrative post in the headquarters of the T hessaloniki Police Directorate.

8 . In the light of the above-mentioned serious shortcomings in the investigations, I conclude that they were not effective. It is therefore my opinion that there has been a violation of Article 2 under its procedural aspect.

9. I also cannot share the view that the finding of a violation constitutes in itself sufficient just satisfaction.

10. In the present case, the Court found a violation of Article 2 of the Convention. Admittedly, the Thessaloniki Administrative Court of Appeal had found the State responsible and had already awarded damages. But the breach of Article 2, as found by this Court, cannot be remedied exclusively by an award of compensation previously granted by the domestic courts to the relatives of the victim. In my view, the claim of non-pecuniary damage presented by the applicant under Article 41 of the Convention is clearly distinguishable from the claim presented before the domestic courts. In other words, I find it contradictory to decide that the applicant can still claim to be a victim within the meaning of Article 34 of the Convention (paragraph 48) and then to hold that the finding of a violation of the Convention constitutes in itself sufficient just satisfaction within the meaning of Article 41 of the Convention.