PARTLY DISSENTING OPINION OF JUDGE S GARLICKI AND DAVID THÓR BJÖRGVINSSON

We fully concur with the finding of a violation of the substantive aspect of Article 2. It is obvious that when the State decides to keep a sick person in prison, it must provide him or her with proper medical care.

We have more problems with the procedural aspect of Article 2. In particular, it is difficult for us to accept that there was no effective investigation into the applicant ’ s death.

The investigation took place promptly, was carried out by an authority independent from the Prison Department and involved some participation of family members.

We do not share the opinion that “the domestic authorities failed to establish the exact course of the events” (par agraphs 99 and 107). In our view, the investigation allowed most of the facts to be established , particularly those relevant to the events of 22 October 2001. The description of those facts contained in para graphs 9 to 48 of the judgment – that had to be based upon the investigation file – is fairly comp rehensive . The investigating authorities acted with sufficient diligence: all those who could contribute to the establishment of facts had been heard by the prosecutor and expert opinions had been ordered and examined. It is true that other witnesses could also have been summoned (see par agraph 107 in fine ), but we are not convinced that their testimony could have adduced relevant information. Prison guards and cell mates could confirm that the applicant had been very sick, but this was also established by other witnesses as well as by experts.

Article 2 requires that an effective investigation should be carried out in all situations where there has been a substantive violation of Article 2. But it cannot be interpreted in such a way that an investigation is only effective when it results in a criminal charge against individual S tate agents. Criminal responsibility on the part of individual S tate agents may of course rightly be ruled out on the basis of principles differ ing from those applying to the international-law responsibility of the Convention States. This is particularly true in the circumstances of this case where S tate responsibility is not engaged on the basis of the actions of identifiable individual S tate agents but rather by reference to the lack of quality and promptness of the medical care provided, the lack of cooperation and coordination between the various S tate authorities and other factors engaging different authorities and many individuals contributing to the breach (see paragraph 101 for further details ). Although such reasons are sufficient to engage State responsibility under the Convention they may not be sufficient to charge and convict any individual person. We have the impression that in this case the majority ha ve forgotten about this difference.