CONCURRING OPINION OF JUDGE SAJ Ó

While I agree with my colleagues, I find it necessary to specify the reasons why I find the Article 3 complaints admissible. The Government maintained that the first, second and third applicants had failed to exhaust the available criminal remedies. The Court considered that this objection went to the very heart of the question whether the said applicants had suffered a procedural violation of Article 3 , and examined it at the merits stage. In its analysis of the merits of the allegation of police brutality, the Court state d that there should be an effective official investigation. The Court continue d as follows: “ Even when, strictly speaking, no complaint has been made, an investigation must be started if there are sufficiently clear indications that ill-treatment has been used (see Stanimirović v. Serbia , no. 26088/06, § 39, 18 October 2011). Victims of alleged violations are not required to pursue the prosecution of officers suspected of ill-treatment on their own. This is a duty of the public prosecutor who is better equipped in that respect ( Stojnšek v. Slovenia , no. 1926/03, § 79, 23 June 2009; and Otašević v. Serbia , no. 32198/07, § 25, 5 February 2013).”

This argument is related to the absence of an initial complaint by the applicants. The Court is of the view that in similar situations an ex officio investigation is required. The admissibility issue is, however, slightly different. It concerns the use of available remedies in case s where the investigation fails to occur. Where there is an effective remedy to correct the lack of, or shortcoming s in, an investigation, the subsidiarity principle requires that such effective remedy be used. In the present case the possibility of bringing a “ subsidiary ” prosecution was available, in principle, to the applicants. This possibility exists irrespective of the fact that the prosecution of officers suspected of ill-treatment is the duty of the prosecutor (when he or she become s aware of it, even in the absence of a formal complaint). There can be no doubt that this Court requires the exhaustion of a domestic remedy where the national system offers the possibility of appeal to a court against a decision by the prosecutor not to prosecute in Article 3 cases. The same logic applies where the national system offers the option of bringing a subsidiary prosecution, as long as that remedy is effective .

Turning to the present case, it can be argued that in Serbia Article 61 of the Serbian Code of Criminal provides that , should the public prosecutor decide that there is no bas i s for press ing charges, he must inform the victim of this decision ; the latter then has the right to take over the prosecution of the case on his own behalf, as a “subsidiary prosecutor” (see paragraph 40 of the judgment). In other words, only after being informed of the prosecutor ’ s negative decision can an applicant act as a “subsidiary prosecutor.” In the present case, notwithstanding the order of the judge for medical evidence to be obtained, the public prosecutor took no investigative action (see paragraphs 11 and 16). It is not clear how the applicants could have made use of their right to bring a subsidiary prosecution, which is in any case governed by extremely short deadlines. The burden of proving the effectiveness of a remedy falls on the Government. The Government do not specify how, in the specific circumstances, a subsidiary prosecution could have been effective. Therefore, the Article 3 complaints are admissible.