CONCURRING OPINION OF JUDGE KŪRIS

1. I have some concerns similar to those of my distinguished colleagues Judges Saj ó, Tsotsoria , Wojtyczek and Kucsko-Stadlmayer, as expounded in their separate opinion, regarding the tendency of widening, in the Court ’ s case-law, the scope of Article 3 of the Convention to also cover the investigation of conflicts and/or disputes between private parties, and especially those which arise from negligent acts. Still, there is hardly any other Article of the Convention or its Protocols which would have been “more applicable” to the present case than Article 3. The case-law suggests that in this particular case it is Article 3, and no other one, which has to be applied.

In particular, the examination of this case under Article 2 would have been far-fetched, as the factual circumstances of this case, where the applicant sustained a severe injury, although there was no threat to his life, and those of Kotelnikov v. Russia ( no. 45104/05, 12 July 2016 ), which involved an alleged intent to kill the applicant, are different. Alternatively, Article 6 § 1 and Article 13, although invoked by the applicant, are not applicable in this case either, because the applicant had not been denied access to a court; this case is therefore different from Cioban v. Romania ((dec.), no. 18592/08, 11 March 2014). What is at stake in this case is not the lack of access to a court or any deficiencies in judicial proceedings, but shortcomings in an investigation. Such deficiencies had not been found in Dragomir v. Romania (no. 43045/08, 14 June 2016), which accordingly would not have been an authority to be followed in the instant case either.

What is now left? Following the above-mentioned tendency – raising concerns as it does – it is only Article 3 under its procedural limb that remains.

2. Is it a sound tendency? My colleagues doubt that, and it is a reasonable doubt. There are weighty reasons to suggest that it would be desirable for the scope of Article 3 to shrink to some extent. But such shrinkage may also have its side-effects, because it would mean that the scope of Article 6 § 1 (or perhaps other articles) may possibly be expanded to include, quite unnaturally, situations which are now examined under the procedural limb of Article 3. Would such a widening of scope be justified? I do not think that, upon consideration, it would be easy to answer this question in the affirmative. For instance, had Article 6 § 1, and not Article 3, been applied in the instant case, this might have been satisfactory from the point of view of Article 3, its scope becoming close to what it had once been, but not necessarily from that of Article 6 § 1.

It is difficult “to follow our own wisdom” when none of the available alternatives appear, at least at first sight, to be unquestionably wise.

3. I dare to suggest why this is so. Without delving into history to try and discover when it all began (which would be an extremely interesting academic exercise), I suspect that the major problem of an overly extensive interpretation of various Articles of the Convention (and its Protocols) has its roots in the approach to this international instrument as if it were a constitution, which, at least in its Kelsenian perception (to which I subscribe in essence), does not have gaps, although its text may and does have. Unlike a constitution, the Convention does not “cover” every field of life. It has gaps. Even when the Court sees that injustice had been done, it has to ascertain whether that factual injustice falls under the Convention or not. Sometimes it does not. On the other hand, the Convention evolves. It has been repeated hundreds of times in the Court ’ s case-law that the Convention is a “living instrument”. Can the gaps in the Convention be filled in by the Court ’ s case-law? Should they? In my opinion, they can and should be filled in by the Court ’ s case-law, although to a much lesser degree than that case-law – and not just that pertaining to Article 3 – has so far actually attempted.

4. The clearly extensive interpretation of Article 3, which one observes in the instant case, is really problematic, and here I can but concur with Judges Saj ó, Tsotsoria , Wojtyczek and Kucsko-Stadlmayer. Yet I do not think that this particular extensiveness is the worst manifestation of extensive interpretation of the provisions of the Convention to be found in the Court ’ s case-law. There are other examples which are much more proactive and unconvincing and have provided more dubious results. In this context one could mention, among others, an overly extensive interpretation of Articles 8 or 10, but since these issues are not relevant to this particular case I shall not go into them here. At the same time, there are also manifestations of an overly restrictive interpretation, where a “living instrument” tool could and should have been made use of more decisively.

5. As regards the extensive interpretation of Article 3, the alternative – not only in this particular case – would have been an extensive interpretation of Article 6 § 1, which would have been no less problematic. And if none of these Articles had been interpreted extensively, that would mean that there is a gap in the Convention, which would allow, in certain circumstances, for a conflict or dispute between private parties (in particular, pertaining to negligence, but maybe not only to it) to be subject to a deliberately inefficient investigation or even not investigated at all, and still to be excluded from the ambit of this Court ’ s scrutiny. This would amount to recognising that the Convention comprises a corresponding gap, which would probably be acceptable from the legal theory angle.

However, when we look at the Convention as a whole, and not only at Article 3, which – here I again concur with my colleagues – was initially and explicitly intended as a remedy primarily to combat police brutality, are we sure that it was meant to comprise this particular gap? If so, who would benefit from it and who would lose out?

The alleged trivialisation of Article 3 may be the lesser possible evil.

[1] An even more troubling development is to apply the procedural limb of Article 2 for car accidents (even with dolus eventualis ) (see Tuchin and Tuchina v. Ukraine (no. 40458/ 08, 26 May 2016) and even where the person survived the car accident , as in Kotelnikov v. Russia (no. 45104/05, 12 July 2016), where not even the presence of the Makaratzis criteria w as considered and bodily injury is treated as death (see Makaratzsis v. Greece (no. 50385/99, ECHR 2004-XI). The very special circumstances of Kotelnikov, namely the allegation of the intent to kill and the very suspicious police interest in the matter, may mean that this judgment is just a reasonable exception, but we refer to it here because it may be seen as part of the above trend.

[2] This case concerns Art 3: fortunately the applicant survived the accident. We do not have to enter here into the discussion of the appropriateness of the extension of the procedural limb of Article 2 to car accidents. Nor are we called to discuss the difference between that case-law and cases of medical negligence. Suffice it to say that there exists a temptation to extend the Article 2 logic into the sphere of Article 3 or to treat more serious bodily injury cases as if the applicant had been killed, survival being a matter of chance.

[3] The moment is approaching when such injury may trigger Article 2 procedural obligations.

[4] The second sentence of paragraph 87 of Bouyid starts with the “however” formula that seems to create a divide . In our view the second sentence cannot be read as an exception or addition to the first sentence.

[5] The situation differs in cases where the civil remedy depends on the fact-finding of the criminal investigation . Here the availability of the civil recourse is likely to be insufficient in itself.

[6] Antonov , Cioban and Basyuk involved fatal car accidents (where persons had been killed) and hence were argued under Article 2. See also Igor Shevchenko v. Ukraine (no. 22737/04 , § 51, 12 January 2012) (stating, in the context of alleged Article 2 violations, that a civil remedy alone, if efficient, might be sufficient in cases of car accident s ) , referring to medical negligence cases Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 - I; Vo v. France [GC], no.53924/00, § 90, ECHR 2004 - VIII; and Šilih , cited above, § 194) .