PARTLY DISSENTING OPINION OF JUDGE NUSSBERGER

I respectfully disagree with the majority ’ s opinion that mere delays in investigating a death caused by a road accident – not an intentional killing – are to be considered as a violation of Article 2. As the investigation was successful in the end and compensation was paid, I see only a violation of Article 6 § 1, not of Article 2 of the Convention.

The Court has constantly widened the scope of applicability of Article 2 of the Convention. The procedural obligation under Article 2 has been applied not only in cases where the State could be held responsible for a person ’ s death, but also where private persons were responsible (see Anna Todorova v. Bulgaria , no. 23302/03 , § 72, 24 May 2011 , and Šilih v. Slovenia ([GC], no. 71463/01, § 192, 9 April 2009 ) . This approach has been applied in respect of deaths resulting from medical negligence (see Šilih , cited above ) and also in respect of fatal road-traffic accidents (see Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007). However, up to now the Court has found a violation of the procedural limb of Article 2 only where the investigation was not only long and ineffective, but also, as a consequence of the length and of the lack of diligence, the perpetrator could either not be identified or his or her responsibility could not be proven, so that ultimately the victim was deprived of any redress (see Anna Todorova , cited above; Šilih , cited above; and Dvořáček and Dvořáčková v. Slovakia , no. 30754/04, 28 July 2009, which became final on 28 October 2009). Contrary to the approach taken in the present case, delays in the investigation have up to now been consi dered as a violation of Article 6 alone (see Fedina v. Ukraine , no. 17185/02 , 2 September 2010 ). Consequently, in Rajkowska v. Poland , cited above, the Court did not find a violation because the driver responsible for the accident was ultimately convicte d of the offence and sentenced.

The present case is the first case in which the Court has found a violation of Article 2 despite the fact that the perpetrator was identified and punished and compensation was paid. It is true that the victim had to wait seven years before that result was achieved. This, however, is a problem of inefficiency in long civil and criminal proceedings, which is covered by Article 6 of the Convention. I do not therefore see any need for a further widening of the scope of applicability of Article 2. There is no lacuna to be filled. This departure from settled case-law does not improve the protection of victims, but rather mitigates the stigmatizing effect which the finding of a violation of Article 2 should have. Article 2 ranks as one of the most fundamental provisions of the Convention (see McCann and Others v. the United Kingdom , 27 September 1995, § 147, Series A no. 324). Therefore it matters whether a State is reproached for havin g violated Article 2 or Article 6. Delays in investigating a road accident cannot be equated with an intentional killing by State agents. In my view, this departure from the case ‑ law blurs the nuanced approach to different types of human rights violations enshrined in the Convention.