CONCURRING OPINION OF JUDGE H Ü SEYNOV

I share the Court ’ s conclusion that there was a procedural violation of Article 3 of the Convention in the present case. Indeed, the investigation into the applicants ’ allegations of police violence was marred by a number of shortcomings. However, I am of the view that the Court ’ s findings have omitted one important deficiency, namely the lack of independence of the investigation. I agree with the applicants that the investigation was not conducted by an independent authority.

As noted by the Court, the investigation into the alleged misconduct of the riot control unit was carried out by a division of the Munich police responsible for offences perpetrated by public officials under the supervision of the Munich public prosecutor ’ s office (§ 15). The investigating division was thus part of the same police service as the police officers whose alleged misconduct they were investigating. Both the investigating unit and those subject to investigation were under the command of the Munich Chief of Police. Having acknowledged this fact, the Court nevertheless emphasised that “the investigating officer was not a direct colleague of the officers of the riot control unit”, and went on to conclude that “it finds no sufficient hierarchical, institutional or practical connection between the investigating division and the riot control unit which, by itself, would render the investigation unreliable or ineffective” (§ 85).

I respectfully disagree. In my view, the “direct colleagues” criterion referred to by the Court appears to have been broadened in its recent case ‑ law. The case of Kulyk v. Ukraine (no. 30760/06, § 107, 23 June 2016), is worthy of particular mention here. In that case, the criminal inquiry conducted by an entity within the Ministry of Interior vis-à-vis employees of that same Ministry was found to have lacked independence. The Court, in particular, noted that “...on several occasions the police bodies were asked by the prosecutor ’ s office to conduct certain investigative steps, in particular to find witnesses. Although those requests were addressed to an entity different from the one where the police officers L. and P. were employed, the fact that an entity within the Ministry of Interior was involved in an investigation concerning employees of that same Ministry is capable of undermining the independence of such an investigation. In this respect the Court also refers to the findings of the CPT, which has long been urging the Ukrainian authorities to create an independent investigative agency specialised in the investigation of complaints against public officials ...”

Accordingly, I am of the opinion that there was a sufficient institutional connection between the investigating unit of the Munich police and the police officers under investigation, and that the criminal inquiry in question failed to present an appearance of independence.

Interestingly, in the present case the Court has also referred to the CPT ’ s findings (§ 42). In particular, in the report on its visit to Germany from 25 November to 7 December 2015, the CPT expressed its doubts “as to whether investigations carried out by investigators of the central investigations units – and even more so those carried out by criminal police officers of regional or local headquarters – against other police officers can be seen as fully independent and impartial” (see CPT/Inf (2017) 13, § 18).

On a more general note, the Court ’ s finding that the investigation in question fulfilled the requirements of independence and impartiality seems to me regrettable in the light of the longstanding criticisms raised by various international and regional human rights institutions, specifically the UN Human Rights Committee, the UN Committee against Torture, the CPT and the Commissioner for Human Rights, with regard to the lack of independent police investigations in Germany (see CCPR/C/DEU/CO/6 (2012), § 10; CAT/C/DEU/CO/5, § 19; CPT/Inf (2017) 13, cited above; and CommDH(2015)20, § 38-39). Similarly, the German National Agency for the Prevention of Torture (Nationale Stelle zur Verhütung von Folter) established as a national preventive mechanism under the Option Protocol to the UN Convention against Torture has also advocated the establishment of independent bodies dealing with allegations of police violence in the German Federal States (Länder) (see Annual report 2016 of the National Agency for the Prevention of Torture).