DISSENTING OPINION OF JUDGE KALAYDJIEVA

The present case concerns the death of the applicant ’ s son in a prison in 1996. It is not contested that, 18 years later, the investigative process concerning this death is still not concluded and that the instituted civil proceedings are not being processed. This is the first follow-up case to be examined after the judgments of this Court in the cases of McCaughey and Others v. the United Kingdom ( no. 43098/09, 16 July 2013 ) and Hemsworth v. the United Kingdom ( no. 58559/09, 16 July 2013 ) and in my opinion it seems to illustrate some problematic consequences of the Court ’ s conclusions in those two cases.

In responding to the Court ’ s questions, the applicant ’ s representative in the present case referred to those judgments and “accepted on the applicant ’ s behalf that in view of the fact that: the applicant ’ s civil action [was] pending; the DPP ha[d] not concluded whether or not to initiate prosecutions; and, the applicant [was] entitled to appeal the recent decision of the High Court, there [was] no basis for the Court ’ s adopting a different approach to the applicant in this case ” as compared to the cases of Hemsworth and McCaughey (see § 24 of the a pplicant ’ s observations). The a pplicant furthermore “ accept[ed] that ... the Court [would] conclude that [her] claim [was] premature, but that [like in Hemsworth , § 67], it would be open to [her] to re-introduce [her] complaints under the substantive and procedural aspects of Article 2 of the Convention, should [she] be dissatisfied with the progress, or outcome of those domestic procedures ” (ibid., § 25). The applicant was thus “ content that the Court adopts the approach adopted in McCaughey and Hemsworth ” on the condition that she “ will be at liberty to re-introduce her complaints under the substantive and procedural aspects of Articles 2 and 3 in the future ” (ibid., § 26).

It seems to me that in addition to the concerns expressed in my separate opinion in the two earlier judgments mentioned and to which I have also referred here, the present case appears to highlight the dilemma with which the Court will be confronted as a result of its own self-limited scope of examination in respect of similar complaints. Given the accumulated and potential future delays, this approach may logically pose the question whether and at what point the Court might deem such complaints mature for examination, or in the alternative might find itself pressed to carry out periodic examination of the same complaints at certain intervals in the course of potential additional delays. As for the applicant ’ s concession that she might re-introduce her complaints at a later point of her dissatisfaction, the Court will at least have to specify the moment as of which it might consider the introduction of such new complaints to be compliant with the six-month time-limit, etc.

Whichever option the Court chooses for its future approach, this cannot change the obvious fact that the present case does not concern armed conflicts or mass disappearances, where investigative delays and failures may be seen as explicable or justifiable, nor does it concern situations in which the authorities are capable of demonstrating that in the many years after the incident they have taken every opportunity to clarify the circumstances and to identify those involved with a view to their appropriate accountability, as required by Arti cles 2 and 3 of the Convention.