DISSENTING OPINION OF JUDGE KALAYDJIEVA

In 1991, when the applicant (at that time 32 years old) was involved and seriously injured in a fight with private individuals, Bulgaria was not a Party to the Convention, which at that time did not entail any “separate and autonomous duty” of “effective and prompt investigation” under Article 2 or 3. Nonetheless, the next day the national authorities instituted criminal proceedings and charged the suspected perpetrators with attempted murder.

By 1996 the applicant had missed the opportunity to join the criminal proceedings as a civil party or to institute separate compensation proceedings for the serious injuries he had sustained, as the general limit ation period for such claims had expired. I fully agree with the majority in dismissing Mr Shopov ’ s complaints under Article 6 based on an alleged violation of his right to obtain compensation for the ill- treatment to which he was subjected .

It might also be of interest to note that at that time the case-law of the Court under Article 3 of the Convention did not yet require States Parties to conduct an effective investigation into any acts of violence , whether committed by State agents or private parties, while the view that Article 6 of the Convention did not guarantee any individual right of the victims to criminal proceedings was already fully valid – as it is to this day. Had the applicant complained before the Court at that time, there is a reasonable chance that his application would have been declared inadmissible both on account of the fact that the events took place before ratification of the Convention and on account of the Court ’ s view that the Convention did not guarantee any right to criminal proceedings against third parties.

The applicant ’ s inactivity continued until 2003 . By that time the development of the Court ’ s views on the State obligation to investigate had already been triggered in its case-law of the late 1990s . H owever, h e failed to join the criminal proceedings either as a civil party or as a private prosecutor and/or to request steps for their timely and proper conduct, with the exception of his mother ’ s complaints in the period 1991-1994 ( resulting in the prosecutor ’ s order that they be completed “without delay” ) and his lawyer ’ s request in 2003 ( resulting in an order that they be completed in thirty days ) . In the meantime , in 1996, the initial charges of attempted murder had been changed to “causing intermediate bodily harm”.

There is nothing to show that Mr Shopov undertook any other serious attempts to pursue his interest in the conduct of these proceedings in the period of almost nine years which elapsed between the last request made by his mother in 1994 (see paragraph 13 of the judgment) and the single request made by his lawyer o n 18 July 2003 for further action in the long ‑ dormant proceedings (see paragraph 17). By that time the applicant was clearly aware of the ineffectiveness of the criminal investigation and must have become aware that the reduction of the charges against the perpetrators in 1996 entailed the risk of an earlier time-bar for their prosecution. However, he failed to challenge th at reclassification at the time, as he could have, and demonstrated no further interest in the proceedings for the next three years. In these circumstances I am not inclined to believe that the discontinuation of the proceedings as being time ‑ barred took the applicant by surprise and I cannot agree with the majority ’ s views that his appeal against the discontinuation of the proceedings in 2006 can be seen as an “immediate ” reaction ( see paragraph 51). Mr Shopov did not complain that he had no access to or opportunities for other action , as the majority appears to have assumed (see paragraph 51 in fine ) in view of the absence of formal remedies at his disposal. Although undertaken between long intervals of complete inactivity, his attempts while the proceedings were still open did trigger a reaction , while the last one was under taken when it was already too late. Thus, neither the applicant nor the investigati ng authorities took reasonable steps for the proper conduct and conclusion of the investigation in the meantime.

While I am equally “struck by the fact that the repeated requests of the prosecutor to the investigator to conclude the investigation went unheeded” and I fully agree with the majority that “[t]he general conduct of the investigation by the authorities allowed the statutory limitation period to lapse” (see paragraph 51), I remain unconvinced that the applicant ’ s own conduct did not contribute to this situation . Unlike Mr Shopov, all the applicants in the cases relied on in the present case raised their complaints before this Court only after having done “all that could be reasonably expected” to pursue their rights at the national level.

In contrast, Mr Shopov remained inactive for two notable periods of nine and three years, in full awareness of the dormant nature of the investigation and the risk , for at least a significant part of these periods , t hat the proceedings would be discontinued as being time-barred. The applicant provided no explanation as to why he had failed to bring his complaints under the Convention in the period before 2003, once he became aware of the ineffectiveness of the investigation, or after the expiry of the thirty - day time-limit for conclud ing it (see paragraph 17), but instead waited for three more years before lodging his application with the Court in 2007.

By that time the Court had dismissed numerous similar complaints as inadmissible in accordance with the criteria applicable at the time : the fact that the events complained of took place before the ratification of the Convention; the fact that the Convention does not guarantee any individual right to criminal proceedings against private parties ; and the visible failure of the applicants to reasonably pursue their rights before the national authorities before coming to the Court or to register their complaints within a reasonable time after reali s ing that the available domestic remedies were ineffective. I am not convinced that the present application would have had a different fate had it been examined at the time of its lodging .

However, by 2013 , when this application was examined, the living instrument of the Convention had not only elaborated the doctrine of positive obligations to investigate , but also expanded the now independent “procedural aspect” of the protection of individual rights under Article 3 and applied it with hindsight to events which took place even before ratification of the Convention. Relying r igorously on all the new standards resulting from this subsequent development, the conclusions of the majority on the merits of the complaints appear to attach considerable significance to the ex officio nature of the positive obligation to investigate ill-treatment by private parties, while failing to subject to reasonable scrutiny the applicant ’ s own conduct for the purposes of their admissibility. In this regard I find it difficult to agree that such an emphasis will meaningfully serve the purposes for which the ex officio nature of the obligation to investigate was initially developed , namely to impose a duty to establish and disclose the circumstances of wilful ill-treatment by S tate agents so as to safeguard the public interest in their accountability.

This approach to examining the applicant ’ s “immediate” reactions in 2013 appears to favour individuals who remained “wisely” inactive for as long as necessary for the Court to develop its doctrine , in order to benefit from their own inactivity. I am far from convinced that the Convention case-law may be interpreted as an instrument for making up for missed opportunities.

Summum jus, summa injuria ?