CONCURRING OPINION BY JUDGE KŪRIS

1. I consider this judgment fair.

As a rule, judgments are fair when the conclusions reached are based on consistent reasoning. Of course, this is not the only condition for achieving fairness, but it is nevertheless an indispensable one.

Or so it would seem in theory, but it is not always true in practice. At least not in this case.

2. The reasoning which led to the finding of non-violation of Article 3 of the Convention under its procedural aspect, as it appears on paper, lacks consistency. A n essential argument has been passed over in silence.

Not long ago, in 2012, in Č esnulevičius v. Lithuania (no. 13462/06 , 10 January 2012 ), the Court found a violation of Article 2 § 1 of the Convention under its procedural aspect (under the substantive head, too). T he events mentioned in Česnulevičius and Kardišauskas had taken place in the same prison, except that Česnulevičius was an Article 2 case because the inmate died.

The Česnulevičius judgment reads ( § 99) (emphasis added):

However, in the instant case, the Court finds that anonymous witnesses do not appear to have been the only source of evidence. Although it is not the Court ’ s role to assess the probative value of each piece of evidence, it cannot fail to note that on 4 April 2000 a metal bar and masks with holes were found at the crime scene and that, according to the applicant, the guards apprehended three identified prisoners nearby. Lastly, the Court also gives substantial weight to the Kaunas Regional Prosecutor ’ s suggestion that the anonymous witnesses could have been questioned once they had finished serving their sentences ... . Given that more than eleven years have passed since the death of the applicant ’ s son, it is not unreasonable to assume that at least some of those witnesses are at large by now. Nonetheless, the Government have not provided any information as to whether those witnesses, except for one of them ..., have been questioned by the prosecutors again with a view to compelling them to testify.

And § 73 of the present judgment states:

The Court further observes that since December 2003 the actions taken by the investigators have been less frequent. Additional operational measures were ordered and performed in May-July 2005 and in 2007, which, however, did not produce any leads to pursue (see paragraphs 21-24 and 28 above).

Full stop.

We are now in the year 2015, eight years after the last “operational measure”. In Česnulevičius , “substantial weight” was attached to a period of eleven years. In the present case, a time-lapse of eight years was deemed to merit not even one line of comment.

There are several outstanding differences pertaining to the procedure of investigating the crime (i.e. the procedural aspect either of Article 3 or Article 2 § 1 of the Convention) between Kardišauskas and Česnulevičius (see in particular § 96 of the latter judgment) . First of all , unlike in Česnulevičius , the investigation in Kardišauskas had not been frequently closed and reopened. Secondly, unlike in Česnulevičius , in the present case the authorities did not fail to order proper expert examinations. Thirdly, unlike in Česnulevičius , there is nothing in this case to suggest that the investigation was not carried out by competent, qualified and impartial experts. Fourthly, unlike in that earlier case , where there was obvious inaction on the part of the investigating authorities, in Kardišauskas the investigation is continuing, albeit slowly and with no success as yet.

But even given all these differences, the “eleven years” argument had been of special importance in Česnulevičius , a pinnacle of its line of reasoning. Therefore, it would have been logical for the Court in this case to reach a conclusion similar to that in Česnulevičius . Instead, the “e ight years” circumstance was not even addressed, and the opposite conclusion was reached, namely no violation.

Why did the Court make a different finding? It has provide d no explanation. This omission might be interpreted as tacitly setting a “threshold” for the “permissible” pro traction of an investigation: eight years might be all well and good, but eleven years would constitute a violation of the procedural head of Article 2.

Such an interpretation would be utterly wrong. The Court should not have left any possibility for it.

The possibility of such speculation could have been eliminated (or at least minimised) had the Court explicitly stated what transpire s from the case file, namely: ( i ) that the timing of “additional operational measures” was dependent on the possibilities for the investigators to question potential witnesses who had been inmates of the prison in May 2003 and who had already finished serving their sentences; (ii) that that was the strategy pursued by the investigators; and (iii) that such a strategy was neither unreasonable nor belated.

3. One further aspect has been passed over in silence. The judgment does not mention that, as it (also) transpires from the case file, the applicant ’ s conduct in prison was far from commendable. True, in 2003-2011 he was commended six times for good behaviour; but he was also warned or received disciplinary penalties on sixteen occasions for breaching prison rules, namely for being intoxicated and ( sic! ) using physical force against another prisoner. Given this record of disciplinary violations, the applicant could hardly be considered a genuinely vulnerable type of prisoner.

Nor could he be considered credible. He had misled the investigation on several counts, including the weapon and the nature of the attack on him, as well as the personality of the alleged attacker (see, respectively, paragraphs 17, 21 and 74, 17-19 and 71 of the judgment). The authorities showed leniency by refraining from investigating the manner in which the deliberate false accusation, by the applicant, of an u n i n volved person of having committed a serious offence were dealt with under criminal legislation.

Against this whole background, one might wish that more weight had been given in the judgment to the Government ’ s submission that “the applicant was not willing to cooperate with the investigation authorities and to secure a positive outcome to the investigation” ( § 63 of the judgment). Curantes iura iuvant , and, I believe, vice versa.