JOINT SEPARATE OPINION OF JUDGE S KALAYDJIEVA AND DE GAETANO

1. We fully subscribe to the conclusion that the Bulgarian authorities failed to meet their obligations under the procedural limb of Article 3 of the Convention. However, quite apart from considerations relating to delay, we are of the view that the case raises serious questions concerning another aspect of the positive obligation to conduct “an independent official investigation ... capable of leading to the identification of those responsible with a view to their punishment” (§ 78), which aspect has not been adequately addressed in the present judgment.

2. While we are prepared to accept that a prosecutor must be accorded a degree of discretion to decide whether the facts and the evidence justify a decision to bring an alleged offender before the courts in order to seek his punishment, we also believe that this power is based on the premise that the discretion is exercised in good faith; and, generally speaking, the exercise of this discretion will be compatible with the po sitive obligation under Article 3 only if accompanied by some system of appropriate checks and balances capable of preventing abuse. Where this discretion is capable of being exercised arbitrarily or in bad faith, as is suggested by the facts of the instant case, the very object of the procedural requirement of Article 3 is undermined, since the punishment component can never materialise notwithstanding that the investigation was capable of identifying the offender or offenders.

3. The applicant ’ s appeals against the successive orders for the discontinuation of the investigation proceedings provided for a semblance of such checks at the national level and, indeed, resulted in four different independent judges expressing in clear terms their concern as to the good faith of the prosecution authorities when the latter repeatedly found the facts and evidence in the case insufficient for the purposes of indictment. Even assuming that the prosecutors in the present case acted in the sincere belief that these facts and evidence did not justify a decision to indict the suspect/s in question, we fail to see any justification for the absence of further diligent investigation of other avenues which the prosecution authorities might have seen as a more plausible explanation of the origin of the applicant ’ s serious injuries. In the opinion of one of the judges in the appeal proceedings, “the prosecutor ’ s conclusions suggested that ... the applicant had somehow injured himself or had been attacked by unknown individuals ... [H]aving regard to the time and location of the incident as suggested by the prosecutor, namely while the applicant was retuning home, it was very unlikely that this would have gone unnoticed.”

4. The questionable good faith with which the investigation proceedings were repeatedly discontinued also raised a sufficient degree of concern with the higher prosecution authorities which led them to consider the possibility of disciplinary measures against the responsible prosecutors. We see no reason not to share their concerns. However, such concerns were clearly insufficient to either bring the identified suspects before the courts, or to trigger any further investigation to ascertain other circumstances or perpetrators.

5. In the instant case the situation amounted to de facto tolerance by the authorities towards violence causing suffering beyond the threshold of Article 3, which cannot but undermine public confidence in the principle of lawfulness and maintenance of the rule of law. We regret that the present judgment fails to examine the extent to which the demonstrated arbitrary exercise of prosecutorial discretion contributed to the respondent Government ’ s failure to meet the obligations under Article 3. Unaccountable discretion renders meaningless the positive obligation to conduct an investigation capable of leading to punishment and, in practice, relegates the victim to the position obtaining before the development of the positive obligation doctrine in the context of Articles 2 and 3.