PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

I fully agree that “the right asserted [by the applicants did ] not actually become effective until enforcement” ( paragraph 54) of the domestic civil court ’ s decision of 2004 against the Ministry of Interior, after proceedings in which a prosecutor was also a party. This decision “established the factual circumstances as described in paragraphs 7-10” ( paragraph 28) – namely that “a group of police officers ... armed with guns, batons, shields and helmets ... were running towards [the applicants] ... [broke into a locked private building and] chased [them] to the top floor, where they started beating them with batons ... [causing] wounds to their heads and bruises on their backs and arms”. The court concluded that “the police had had no justification for using force against the applicants and ... the latter had done nothing to provoke such a violent attack” ( paragraph 27). These conclusions led neither to payment of compensation nor to further investigation into the applicants ’ particular circumstances in the following years.

I agree with the Chamber that there were “ no cogent elements which would lead it to depart from ” the civil courts ’ findings ( paragraph 40), but not necessarily with the view that t he tort action “had no bearing on the State ’ s obligation to carry out an effective investigation” ( paragraph 47) . While it is true that after 2004 the applicants did not request any further or more vigorous investigation into their particular circumstances, it is difficult to conceive that th e decision in question remained unknown to the other parties to the civil case. Thus, while it may be correct that the decision disregarding the applicants ’ arguable claims of 2000 “ could not be considered ” , at least in respect of the applicants ’ complaints under the procedural limb of Article 3, a “final decision” , I wonder if no new ex officio obligation arose after 2004, when the alleged unlawful beating was “established beyond reasonable doubt” in proceedings to which both the police and the prosecution authorities were part ies .

I also wonder what more could reasonably be expected from the applicants in this regard after the “establishment of the circumstances beyond reasonable doubt” following the discontinua nce of the investigation in respect of their initial “arguable claim”. The applicants ’ steps to establish the facts of the unlawful use of force are not necessarily comparable (see paragraph 44) to those in the cases of K ı rlangıç v. Turkey ( no. 30689/05 , 25 September 2012 ), Brunner v. Turkey ((dec.), no. 10/10, 6 December 2011) and Manukyan v. Georgia ((dec.), no. 53073/07 , 9 October 2012) , where both the applicants and the relevant authorities remained completely inactive for long periods.

These circumstances raise the issue whether the positive obligation to conduct an effective investigation is an ex officio one which requires the authorities to take measures as soon as they are informed of circumstances falling under Articles 2 and 3, or one requiring the affected individuals to push for such an investigation in an attempt to “exhaust the available domestic remedies” , despite their evident ineffectiveness.

This furthermore poses the question as to the moment when it may be reasonably argued that the authorities may be considered exempt from their further ex officio positive obligation to identify those responsible , in the face of established acts which fall to be considered under Article 3 of the Convention. In this regard the Court ’ s views have developed to require not only an effective investigation, but also a reasonably appropriate punishment to avoid the impression of impunity.

Moreover , while it is true that the applicants did not insist on further investigation capable of identifying those responsible, it is difficult to deny their consistent attempt to obtain at least the compensation to which they were entitled. Was this attempt not a way of asserting their entitlement to redress for their suffering as a result of the alleged violation of their rights under Article 3?

In previous cases, the Court has examined complaints initially raised about the length of criminal proceedings in a rape case as falling to be examined under Article 3 ; it has found that payment of compensation (see Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII ) and legal aid (see Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010 , and Ilbeyi KemaloÄŸlu and Meriye KemaloÄŸlu v. Turkey , no. 19986/06 , 10 April 2012 ) constitute elements of the positive obligations of the S tate authorities to provide appropriate and sufficient redress in cases under Articles 2 and 3 ; it has also found violations of the rights protected by these provisions in cases where the applicants had obtained pecuniary compensation but the criminal investigation had resulted in inappropriately lenient punishment of the perpetrators or in no punishment at all – regardless of the late registration of the complaints under this head ( see Nikolova and Velichkova v. Bulgaria , no. 7888/03, 20 December 2007 , and Vasil Sashov Petrov v. Bulgaria , no. 63106/00 , § § 31-32 , 10 June 2010 ) . Whereas in the present case , by contrast, the Court dismissed the applicants ’ complaints that “ the authorities had failed to investigate effectively their claim that they had been beaten by the police ” ( paragraph 36) and limited the scope of its examination to the complaints that the “set of civil proceedings they were party to were excessively lengthy and that the authorities failed for a long period of time to enforce the final judgment” ( paragraph 3). It appears to me that in doing so, the Chamber apparently failed to address the pertinent question s: what were “ the rights asserted by the applicants” and what was “at stake” in these long and ineffective proceedings?

In this regard , the overall reasoning of the Court appears , for the first time , to treat complaints of ineffective protection under Article 3 as relating only to the right to a reasonable length of proceedings and enforcement of decisions – in respect of any civil right, that is to say, matters which are not necessarily protected by the Convention.

As a result, the measures to be taken for the implementation of the present judgment will inevitably remain limited to the payment of compensation in addition to th at which already became due ten years ago , this being a form of redress which the Court has considered insufficient in the circumstances of deliberate use of force by S tate agents , even prior to the development of the notion of positive obligations and protection of the rights of individuals under Articles 2 and 3 of the Convention.