PARTLY DISSENTING OPINION OF JUDGE KOSKELO

1. In this case, I have dissented both on the issue of admissibility, which concerns the applicability of Article 6 § 1 in the present circumstances, and on the merits, which concern the finding of a violation of the right of access to a court under Article 6 § 1. In both respects, my dissent is limited to the complaints brought by the second, third and fourth applicants (applications nos. 6319/21, 6321/21 and 9227/21). As far as the first applicant (application no. 345/21) is concerned, I agree that the complaint is inadmissible, and thus incapable of giving rise to any finding of a violation of Article 6 § 1.

2. While the main issue in regard to the consequences and the coherence of the Court’s case-law is that of access to a court, on which I refer to the joint dissent submitted by myself together with Judges Kjølbro and Ranzoni, there is a close connection between that issue and the question of the applicability of the civil limb of Article 6 § 1 in circumstances such as those in the present case. That is why I have chosen also to vote against the conclusion reached by the majority in respect of the question of admissibility.

3. According to the Court’s established case-law, the key requirement for the applicability of the civil limb of Article 6 § 1 – apart from the existence of a “dispute” which concerns “civil rights”, neither of which concepts are at issue here – is that the proceedings in question must be decisive for the determination of the civil rights in question . Indeed, the essence of civil proceedings is to provide access to a court. As the Court stated in Golder v. the United Kingdom (21 February 1975, Series A no. 18), the principle whereby a civil claim must be capable of being submitted to a judge for determination ranks as one of the universally recognised fundamental principles of law.

4. The present case illustrates the paradox that arises from holding that a criminal investigation is capable of engaging the applicability of the civil limb of Article 6 § 1, whereas such an investigation, in itself, can never fulfil the basic function of civil proceedings, namely the determination of a dispute concerning civil rights. Where a civil party is joined to criminal proceedings, and even if such joinder is acknowledged at the investigation stage of those proceedings (as in San Marino), the actual determination of the civil claim will not occur unless and until that claim is submitted before a court and adjudicated.

5. In the present judgment, however, the majority assert that “the outcome of the criminal investigation” would have been decisive for the determination of the civil rights in question (see paragraph 50 of the judgment). This statement is wholly unqualified and takes no account of the fact that the investigation yielded no results and produced no findings whatsoever, in terms of neither the factual nor the legal grounds pertaining to the alleged civil rights. The suspects are still presumed innocent, but the existence of this legal principle does not amount to a “determination” of any specific civil claims.

6. While it is true that the Court has held that Article 6 applies to criminal proceedings involving civil-party claims from the time when the complainant is joined as a civil party (unless there has been a valid waiver of the right), the fact remains that the leading cases cited in this respect ( Perez v. France [GC], no. 47287/99, ECHR 2004 ‑ I, and Gorou v. Greece (no. 2) [GC], no. 12686/03, 20 March 2009) did not concern situations where the criminal investigation had produced no findings at all. In Perez , the criminal proceedings were discontinued based on the ruling by the investigating judge that there was no case to answer, on the ground that there was insufficient evidence that anyone had committed the alleged offence (see paragraph 13 of that judgment). The complaint raised under Article 6 § 1 concerned the subsequent appeal proceedings by which the applicant had attempted to challenge that ruling. In Gorou , there had been an acquittal by the criminal court, and the complaint under Article 6 § 1 again related to the subsequent appeal proceedings. Thus, neither Perez nor Gorou was concerned with criminal complaints which remained without action and results.

7. By contrast, situations where a criminal complaint has been lodged but the investigation is subsequently discontinued without reaching any findings of fact or law relating to the alleged offence can hardly be assimilated with circumstances such as those in the above Grand Chamber rulings. A more differentiated approach would be called for when assessing the conditions under which criminal proceedings may be considered to involve a determination of the civil rights of the alleged injured party and thus engage the application of the civil limb of Article 6 § 1. A blanket assimilation of a criminal complaint and wish for compensation (or for subsequent civil party status) with the actual lodging of a specific civil claim in this context seems very difficult to justify, especially in association with the kind of consequences that we address in the joint dissenting opinion on the merits of the present case. It would not be reasonable to leave the domestic authorities without the means of avoiding such adverse consequences which, inter alia , are liable to harm the interests of those victims of serious crime who most depend on the possibility of having their civil claims determined through criminal proceedings. As the present complaints fell into the category where no findings had been yielded by the criminal investigation, I have voted against the admissibility of the three applications in question as a signal for the need to adopt a more differentiated assessment.

JOINT DISSENTING OPINION OF JUDGES KJØLBRO, RANZONI AND KOSKELO

1. We have regrettably not been able to agree with the majority on their conclusion according to which there has been a violation, in respect of the second, third and fourth applicants, of their right under Article 6 to have access to a court.

2. The said applicants lodged criminal complaints and indicated that they would participate in the criminal proceedings as civil parties with a view to obtaining compensation for the damage caused to them by the alleged offences, namely bodily harm and threats (in respect of the second and third applicants) and failure to protect a minor from bullying (in respect of the fourth applicant). More specifically, the second and third applicants did not actually submit a request to join the proceedings to assert a civil claim but only indicated an intention of becoming civil parties at a later stage. As to the fourth applicant, a minor, it seems to have been in dispute whether such a request was validly lodged. The criminal investigations in question did not yield any results and no criminal charges were brought. Instead, the alleged offences became time-barred under criminal law. The civil claims, by contrast, were not time-barred and could still have been pursued separately. In essence, the issue is whether under such circumstances the failure of the criminal investigation, which resulted in the extinction of criminal liability, can be considered to entail a violation of the applicants’ right of access to a court under the civil limb of Article 6.

3. Contrary to the majority, we consider that there has been no violation of the right of access to a court. We have reached this conclusion for a number of reasons which will be explained below.

4. Firstly, we would point out that the Grand Chamber of the Court has quite recently addressed the issue in the case of Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, 25 June 2019 ), reaching the conclusion that the right of access to a court had not been violated. In that case the applicant had lodged a civil ‑ party claim in the context of the criminal proceedings. Those proceedings were, however, discontinued, inter alia on the grounds that the limitation period for criminal liability had expired. As a result, the civil claim joined to the criminal proceedings had not been examined by any criminal court (see paragraph 196 of that judgment).

5. When assessing this situation from the point of view of the right of access to a court, the Court stated the following (ibid., §§ 198-202):

“198. In this context, it may be noted that in cases where civil ‑ party claims made in the context of criminal proceedings have not been examined by reason of the termination of those proceedings, the Court has had regard to the availability of other channels through which the applicants could vindicate their civil rights. In cases where the applicants had at their disposal accessible and effective avenues for their civil claims, it found that their right of access to a court had not been infringed (see Assenov and Others , cited above, § 112; Ernst and Others v. Belgium , no. 33400/96, §§ 54 ‑ 55, 15 July 2003; Moldovan and Others v. Romania (no. 2) , nos. 41138/98 and 64320/01, §§ 119-22, ECHR 2005 ‑ VII (extracts); Forum Maritime S.A. v. Romania , nos. 63610/00 and 38692/05, § 91, 4 October 2007; Borobar and Others v. Romania , no. 5663/04, § 56, 29 January 2013; and Association of the Victims of S.C. Rompetrol S.A. and S.C. Geomin S.A. and Others v. Romania , no. 24133/03, § 65, 25 June 2013).

199. In the present case, at the time when the applicant joined the criminal proceedings as a civil party, he could have brought separate civil proceedings against J.C.P. and D.I. instead. While the available evidence and the Government’s explanations indicate that such proceedings might have been stayed pending the outcome of the criminal proceedings, the Court notes that no evidence was provided by the parties to suggest that the applicant could not have obtained a determination of the merits of his civil claims on the conclusion of the criminal proceedings.

200. Moreover, the discontinuation of the criminal proceedings against J.C.P. and D.I. did not bar the applicant from lodging a separate civil action against them with a civil court once he became aware of the final judgments of the criminal courts upholding the public prosecutor’s offices’ decision to discontinue the criminal proceedings. Furthermore, as explained by the Government (see paragraphs 95-96 above), it would have been possible for the applicant to argue that the limitation period for bringing a separate civil claim did not run during the pendency of the criminal proceedings with civil claims. Therefore, such an action was not necessarily destined to fail.

201. In the light of the foregoing considerations it cannot be said that the applicant was denied access to court for a determination of his civil rights.

202. It follows that there has been no violation of Article 6 § 1 of the Convention in this regard.”

6. Thus, it was not very long ago that the Grand Chamber confirmed that the failure of the “avenue of criminal proceedings” for the pursuit of a civil claim could not be construed as a denial of access to a court where the “avenue of civil proceedings” was available to the applicant. In the present case, the latter avenue was and remained open to the applicants even after the alleged criminal offences became time-barred.

7. In the present case, nonetheless, the majority deviate from the position adopted by the Grand Chamber. They do so by invoking the “total inactivity of the investigating judge”, which meant that “the failure to consider the applicants’ civil-party claims was due to circumstances solely attributable to the judicial authorities, causing the prosecution to become time-barred” (see paragraph 70). In this regard, the majority rely on the Chamber judgment in Petrella v. Italy (no. 24340/07, 18 March 2021). While that judgment is final, its departure from the line confirmed by the Grand Chamber in Nicolae Virgiliu Tănase (cited above) cannot in our view be regarded as settled case-law, especially as it appears that all relevant considerations were not taken into account (see further below). In this context, we also note the thorough analysis of the case-law contained in the dissenting opinion by Judge Sabato attached to the Chamber judgment in Petrella .

8. In our view, it is necessary to assess more closely the pertinence, and the implications, of the distinction based on “inactivity” in the criminal investigation for the purposes of the right of access to a court as regards civil claims. We would like to emphasise the following points in particular.

9. Firstly, the possibility of joining criminal proceedings as a civil party in order to pursue compensation claims is not as such a right guaranteed under the Convention. It is a right subject to domestic law. Such a right exists in many jurisdictions, and it constitutes an important advantage for victims of crime. There is no doubt that such an advantage is of particularly high value for vulnerable victims of serious crime. The circumstances of the present case do not, however, belong to the latter kind of category, nor was there an actual joinder of specific claims (see paragraph 2 above).

10. Secondly, the Convention imposes a positive obligation on States to conduct criminal investigations in limited sets of circumstances only, namely in the context of the procedural obligations arising under the substantive provisions protecting the core rights, in particular Articles 2, 3 and 4 of the Convention as well as some of the most serious violations of personal integrity under Article 8. In this respect, it is also to be borne in mind that duties of investigation arising under those substantive provisions are wider than the specific duties to conduct criminal investigations (see, for instance, Nicolae Virgiliu Tănase , cited above, §§ 157-159; Cestaro v. Italy ; no. 6884/11, §§ 204-209, 7 April 2015; Rantsev v. Cyprus and Russia , no. 25965/04, § 285, ECHR 2010 (extracts); and Söderman v. Sweden [GC], no. 5786/08, §§ 81-85, ECHR 2013). All this is fully in line with the need to allow the Contracting States the necessary and reasonable margins of appreciation when it comes to determining their policies and priorities in the deployment and operation of the criminal justice system.

11. What the approach taken by the majority does, however, is to create a mechanism by which, in any circumstances where domestic law permits the alleged victim to join criminal proceedings as a civil party, any failure to conduct a criminal investigation permitting an examination of the civil claim by the criminal court would automatically give rise to a violation of Article 6 on the grounds of non-fulfillment of the civil party’s access to a court. This would occur quite regardless of the limitations and thresholds of seriousness which govern the Convention-based duties to carry out criminal investigations, and also regardless of the availability of the possibility of pursuing the civil claim in separate civil proceedings. Thus, indirectly, the line adopted by the majority would produce a general positive obligation, arising under Article 6, to carry out criminal investigations for the purpose of enforcing civil claims. As the present judgment demonstrates, each violation in this respect would carry a considerable cost to the public purse in terms of the award in respect of non-pecuniary damage (in the present case 4,000 euros for each applicant).

12. In our view, such a position is not acceptable as a matter of principle. Nor do the majority offer any real justification for it.

13. Thirdly, there is a high risk that the interpretation adopted by the majority may, in reality, become counter-productive precisely in regard to those victims of crime who most heavily depend on the possibility of pursuing their civil claims in connection with criminal proceedings against the perpetrators. This is so because practically all criminal justice systems operate under more or less severe constraints in terms of the resources available to them. This problem will not disappear just by virtue of this Court’s findings of violations. By contrast, increasing the pressure to spend scarce resources on cases which otherwise would not be given priority, but would require action for the avoidance of the costly violations now programmed into the system, risks diverting further resources away from the investigation of more serious forms of crime, at the expense of most vulnerable victims.

14. Furthermore, the indirect imperative to pursue criminal proceedings arising from the majority’s position (see paragraph 11 above) is not only inconsistent with the limited positive obligations existing under the substantive Convention provisions but also out of line with certain other Convention principles, notably those developed in the context of Article 10, where the Court’s case-law requires restraint in the use of criminal proceedings against members of the press, in particular, and more generally in defamation cases. It is therefore striking to note, for instance, that the Chamber judgment in Petrella v. Italy (cited above) concerned precisely criminal proceedings engaged by an applicant against the press. In that case, the applicant was awarded 5,200 euros for the failure of the domestic authorities to pursue, within the penal statute of limitations, criminal proceedings against a journalist, the managing director of the newspaper in question as well as managers of the publishing house.

15. Last but not least, the line taken by the majority not only risks becoming counter-productive with a view to the need to combat serious crime but will also cause moral hazards and risks of abuse. On the one hand, it is notorious that there are certain types of crime, or alleged crime, which the police are not in practice able to investigate effectively. On the other hand, it is easy to submit a criminal complaint, join the proceedings with a civil claim and keep waiting. The fact that the passage of time would automatically create an entitlement to compensation for non-pecuniary damage, on the grounds that the failure of the criminal complaint to produce timely results is construed as amounting to a denial of access to a court, creates evident potential for abuse. The important advantage of having civil claims joined to criminal proceedings should not be spoiled by planting into the system, through ill-considered Convention demands, obvious moral hazards and false incentives.

16. For the reasons indicated above, we do not consider that it is justified for the Court to deviate from the position confirmed by the Grand Chamber in Nicolae Virgiliu Tănase (cited above). We acknowledge, of course, that the lack of action by the investigating authorities is a problem that calls for attention. However, the position adopted by the majority in the present case, inspired by that taken by another Chamber majority in Petrella, cannot in our view be the right cure for that problem.

[1] Rectified on 30 January 2023: the text was “2. Declares , by six votes to one, the applications nos. 6319/21, 6321/21 and 9227/21 admissible, and the remainder of the applications (no. 345/21) inadmissible;”