CONCURRING OPINION OF JUDGE GROZEV

While I voted with the majority on all the findings in the present judgment, I was unable to follow it with regard to one of the grounds on which a violation of the procedural obligation under Article 2 was found. Namely, the refusal of the trial court to join the applicants’ civil claim to the criminal proceedings and the absence of any other possibility for the applicants to have standing in the criminal proceedings before the domestic courts (see paragraphs 223-227 of the present judgment). All of the accused in these criminal proceedings were found guilty and received adequate sentences, which in my view excludes any claims by the applicants under the procedural head of Article 2. This judgment’s finding of a violation is thus based on an expansion of the respondent States’ duty to investigate loss of life, one which is neither necessary nor justified. This new interpretation and application of the principles governing the procedural obligation under Article 2 departs from the very basis on which the obligation was created in the first place, that is, establishing the relevant facts which led to the loss of life and punishing those responsible. This new approach risks creating confusion, as it raises questions about its future application that have no clear and coherent answers.

My objection to finding a violation on the ground of the applicant’s lack of standing in the criminal trial is not based on any doubts as to the importance of the involvement of victims in criminal investigations. This is an important safeguard for the effectiveness of the investigation required under Articles 2 and 3 of the Convention. However, the right to involvement of the victims in the proceedings is not a stand-alone right, but only one element, among several others, of the right to an effective investigation into loss of life or credible allegations of inhuman and degrading treatment. That right has been developed in the Court’s case-law over the years as a procedural guarantee that those guilty of the most serious crimes against life and physical integrity do not go unpunished, which would undermine the public trust in the justice system and the rule of law (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 237, 30 March 2016). The Court has defined this procedural right as the duty of the respondent States to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of the effective criminal-law provisions (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 171, 14 April 2015). The different elements of an effective investigation spelled out by the Court in its judgments, specifically independence, adequacy, thoroughness, timeliness, the participation of victims or next of kin are just that, elements used to assess whether the respondent State’s failure to punish the breaches of the domestic criminal-law provisions was justified. Once this underlying obligation of the respondent State has been effectively performed, and those responsible for the loss of life or inhuman and degrading treatment under Articles 2 or 3 have been found guilty and punished, discussion of the individual elements of an effective investigation is no longer possible. To put it simply, these individual elements of an effective investigation are not stand-alone rights.

The opposite approach, however, is precisely what has been adopted in the present case in finding a violation of the procedural obligation under Article 2. This is despite the fact that all of the accused in the criminal trial were found guilty and punished and, as the Court has held, the applicants were sufficiently involved in the proceedings at the investigation stage and the sentences imposed were adequate (see paragraphs 210 and 222 of the present judgment). For the first time, the Court has chosen to find a violation of the procedural right under Articles 2 or 3 of the Convention in a case where those responsible were found guilty and adequately punished. Further, the reasoning in support of this finding does not assess the complaint in the light of the applicable principle that the victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011). The legitimate interest for the applicants’ involvement has not been identified, and there is no analysis of whether and to what extent the refusal to consider the civil claim within in the criminal trial had an impact on the effectiveness of the prosecution. Thus, the only way to understand the conclusion that there has been a violation of the applicants’ rights as a result of their lack of participation in the criminal trial is to regard such participation in the criminal proceedings as a separate right, completely detached from the underlying obligation for an effective investigation and for prosecution and punishment of those responsible for the loss of life.

However, the creation of such a stand-alone, independent right gives rise to a number of difficult questions, to which there are no obvious and easy answers. If one of the elements used by the Court to assess the effectiveness of the investigation can be singled out in order to find a violation, despite the fact that the underlying purpose of its existence has been achieved, what other elements could similarly be assessed separately? Is the Court going to review separately, under Articles 2 and 3, complaints about independence, refusals to accept evidentiary requests, findings of fact and the length of criminal proceedings, even if the individuals responsible were found guilty and adequately punished? If these elements of an effective investigation are no longer just that, namely elements used to assess the overall result of the criminal proceedings, but become separate rights, then what are the related domestic remedies? In the present case, the refusal to consider the applicants’ civil claim was appealed against, and the related final decision was adopted long before the end of the criminal proceedings. Does the six-month time-limit start to run as of this decision, as it should if this were a separate, independent right that is unconnected to the outcome of the criminal case? If yes, then the present complaint for lack of standing in the criminal trial must be declared inadmissible with respect to some of the applicants as being out of time (see paragraphs 67-68 of the present judgment). If there is a separate, independent right under Articles 2 and 3 for a victim to have standing in the criminal trial, what is the connection between this separate right and Article 6, where no such right exists? And finally, what would be the obligations of the respondent States in implementing the Court’s judgment? A reopening of the domestic criminal proceedings so as to give the applicants standing, without changing anything in the outcome of these proceedings, is not in the interest even of the applicants themselves.

Enhanced effective participation of victims of crime in criminal proceedings would undoubtedly be a laudable development. The Committee of Ministers of the Council of Europe itself has adopted recommendations in that sense (see paragraph 155 of the present judgment). However, the shift from recommending such participation towards creating a separate, independent right to standing in criminal proceedings under Articles 2 and 3 of the Convention is a significant step, and one which I fear, given the confusion and inconsistency to which it would give rise, might undermine rather than strengthen the protection of individual rights under the Convention.

APPENDIX

List of cases:

No.

Application no.

Case name

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

63543/09

Durdaj v. Albania

Zamira DURDAJ 1971 Gërdec Albanian

Dorian MATLIJA

2.

46707/13

Selami and Others v. Albania

Aishe SELAMI 2002 Tirana Albanian Pashk KAÇI 1951 Tirana Albanian Mirela HAZIZAJ 1985 Tirana Albanian Miselda ZGURI 2002 Tirana Albanian Medi CELAMI 1979 Tirana Albanian

Rabie GËRDECI 1978 Tirana Albanian Shaban BRAHUSHI 1960 Berat Albanian

Sabrie PICARI 1967 Tirana Albanian Dylbere PRINI 1962 Tirana Albanian Adelina CANI 1990 Tirana Albanian Meltina HAKA 1992 Tirana Albanian Bege ALIU 1933 Tirana Albanian

Esmeralda SEFAJ 1979 Tirana Albanian

Dorian MATLIJA

3.

46714/13

Durdaj and Hazizaj v. Albania

Roxhens DURDAJ 1997 Tirana Albanian Alketa HAZIZAJ 1978 Vorë Albanian

Dorian MATLIJA

4.

12720/14

Zamira Durdaj and Feruzan Durdaj v. Albania

Zamira DURDAJ 1971 Gërdec Albanian Feruzan DURDAJ 1968 Tirana Albanian

Dorian MATLIJA