PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE LEMMENS

1. To my regret, I cannot fully agree with the reasoning adopted in the judgment.

2. As summarised in paragraph 51 of the judgment, the applicant complains in the first place about the killing of her husband, either by the respondent State ’ s agents or by a non-governmental group (Hizbullah) aided by the authorities. She also complains of the ineffectiveness of the investigation.

When it comes to the examination of the merits of the complaint, the majority examines only the second aspect (the procedural limb of Article 2), not the first one (the substantive limb of Article 2). Hence, it does not look into what is undoubtedly the main aspect of the applicant ’ s complaint, namely the alleged direct or indirect involvement of the State in the killing of her husband.

The reason for disregarding the main issue in this way is to be found in paragraph 64 of the judgment. There, the majority holds that the applicant ’ s complaint about the killing of her husband – like her complaint relating to the alleged ineffectiveness of the investigation up to January 2000 – is inadmissible because it was lodged out of time.

While I agree that the complaint relating to the first stage of the investigation is inadmissible for the reason stated, I respectfully disagree with the inadmissibility of the complaint in so far as it relates to the killing of the applicant ’ s husband. As acknowledged by my colleagues, since there were significant new developments in January 2000, the procedural obligation to investigate the husband ’ s killing was revived after that date, with the result that the complaint relating to the ineffectiveness of the investigation thereafter cannot be declared inadmissible as being lodged out of time (see paragraphs 67 to 68 of the judgment). In my opinion, the fact that the applicant is entitled to complain that the investigation as resumed after January 2000 was ineffective should result in the admissibility of her complaint relating to the specific object of that investigation, namely the killing of her husband. The applicant should have been able in principle to await the outcome of the resumed investigation to see whether it produced evidence of the State ’ s implication in the killing of her husband, and then to refer to the results of the investigation (or the lack of meaningful results) in support of her argument that the State was in fact involved.

3. With respect to the merits of the applicant ’ s complaint relating to the ineffectiveness of the investigation after it was resumed, it is again clear from her submissions that she is primarily concerned with the absence of an investigation into the possible involvement of the security services in the killing of her husband (see paragraph 72 of the judgment). According to the applicant, far from shedding light on the circumstances surrounding the death of her husband, the investigation was an attempt to obscure the truth concerning his death (see paragraph 71 of the judgment).

The majority does not give a direct answer to that complaint. With respect to the adequacy of the investigation, it limits itself to finding that the investigation was capable of identifying and prosecuting the perpetrators of the killing, that is, the members of Hizbullah who had confessed to carrying out the operation which resulted in the killing of the applicant ’ s husband (see paragraph 78 of the judgment). To my regret, I consider that this is a very incomplete answer. The Court should have examined whether there was reason for the investigation to look into the possible involvement of the State security forces, as alleged by the applicant, and if so, whether an investigation into that aspect was actually undertaken.

By holding that the investigation was ineffective because of the delays incurred (see paragraphs 79 to 81 of the judgment), the majority is able to find a violation of Article 2. I concur with that result, but consider it to be a very meagre one.

4. I am left with the unpleasant feeling that not only the domestic investigation, but also the examination of the case by our Court, failed to contribute to disclosing the truth about what really happened when the applicant ’ s husband was killed.