PARTLY DISSENTING OPINION OF JUDGE DEDOV

In principle, I am not against finding violations of various Articles of the Convention in the manner decided by the majority of judges in the present case. However, I regret that I cannot accept the position of my colleagues with respect to compliance with the six-month rule. I feel that the Court still has difficulty understanding and applying the Varnava approach in disappearance cases such as this one , so it is too early to say that we have established case - law on this matter.

The Varnava judgment ( Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009 ) provides a complex but quite clear approach on this issue:

“158 . ... Where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01 , 28 May 2002, and Bayram and Yıldırım v. Turkey (dec.), no. 38587/97 , ECHR 2002 ‑ III). The same principles have been applied, mutatis mutandis , to disappearance cases (see Eren and Others v. Turkey (dec.), no. 42428/98 , 4 July 2002, and Üçak and Kargili and Others v. Turkey (dec.), nos. 75527/01 and 11837/02 , 28 March 2006) ...

161 . ... In cases of disappearances, just as it is imperative that the relevant domestic authorities launch an investigation and take measures as soon as a person has disappeared in life-threatening circumstances, it is indispensable that the applicants, who are the relatives of missing persons, do not delay unduly in bringing a complaint about the ineffectiveness or lack of such investigation before the Court. With the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court ’ s own examination and judgment may be deprived of meaningfulness and effectiveness. Accordingly, where disappearances are concerned, applicants cannot wait indefinitely before coming to Strasbourg. They must make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay ...

165. Nonetheless, the Court considers that applications can be rejected as out of time in disappearance cases where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case ... ”

I am not sure that the applicants did act without undue delay in the present case. According to the facts , the event occurred in 2002, the criminal proceedings were suspended in October 2003, and the applicants ’ attempts to challenge the suspension and their requests for the resum ption of proceedings were rejected by various authorities for several years between 2003 and 2007 , when on 28 May the Shali district prosecutor responded to the applicants that there were no grounds on which to resume the proceedings (see paragraph 36 of the judgment).

Therefore, at the end of May 2007 the applicants should have realised that no effective investigation would be forthcoming . But they waited almost two years more before lodg ing an application with the Court on 16 March 2009.

I must add that , after four years of inaction and an absence of any tangible results owing to the suspension of the investigation , it would be unreasonable to rely on the prosecutor ’ s statement of 28 May 2007 to the effect that the authorities were continu ing to provide operative search activities.

As regards the references to the cases of Er and Others and Bozkır and Others in paragraph 46 of the judgment, I believe that these references are not appropriate as the applications in those cases ha d been lodged with the Court shortly after the suspension , or even before the suspension , of the criminal investigation.