CASE OF ŠILIH v. SLOVENIA
(Application no. 71463/01)
9 April 2009
This judgment is final but may be subject to editorial revision.
In the case of Šilih v. Slovenia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Ireneu Cabral Barreto,
Boštjan M. Zupančič,
Nona Tsotsoria, judges,
and Michael O'Boyle, Deputy Registrar,
Having deliberated in private on 2 April 2008 and on 18 February 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Government
Ms T. Mihelič, State Attorney,
Ms Z. Cilenšek Bončina, State Attorney, Co-Agents,
Ms V. Klemenc, Adviser;
(b) for the applicants
Mr B. Grubar, Counsel,
Ms F. Šilih,
Mr I. Šilih, Applicants,
Mr T. Ziger,
Mr U. Grubar, Advisers.
The Court heard addresses by Mr Grubar, Mrs Šilih and Mrs Mihelič as well as Mr Grubar's and Mrs Mihelič's answers to questions put by Judges Maruste and Spielmann.
I. THE CIRCUMSTANCES OF THE CASE
“The anaphylactic shock which ... followed the administration of Dexamethason and Synopen was most likely due to sensitivity to one of the mentioned drugs.
The medical treatment of anaphylactic shock in the Slovenj Gradec Hospital was, on the basis of the medical records, in accordance with established medical practice.
The consequent ventricular fibrillation was influenced by the infection of the heart muscle, which Gregor Šilih must have contracted several weeks before 3 May 1993.
After the ventricular fibrillation occurred, the hospital staff gave resuscitation. According to the medical records, this was performed in accordance with established medical practice.
In the period from Gregor Šilih's admission to the Slovenj Gradec Hospital until his death, we have not found any acts or omissions in his medical treatment which could be characterised as clearly inappropriate or negligent.”
A. Criminal proceedings
On 3 July 2001 they lodged a “request for the criminal proceedings to be reinstated”, which was considered in substance to be a request for the reopening of the case. On 29 August 2001 the interlocutory-proceedings panel of the Maribor District Court dismissed the request on the grounds that the criminal proceedings had been discontinued in a decision that was final and that it would be detrimental to the accused to reopen the case. On 9 November 2001 the Maribor Higher Court rejected an appeal by the applicants dated 4 September 2001.
On 24 June 2002 the applicants lodged with the Maribor Higher Court a “request for immediate annulment of the entire criminal proceedings ... conducted before the Maribor District Court”. This was also considered in substance to be a request for the reopening of the case and was likewise dismissed. On 27 November 2002 the Maribor Higher Court rejected an appeal by the applicants.
B. Civil proceedings
“[The applicants] are 'subsidiary' prosecutors in the criminal proceedings and therefore are very well aware that the proceedings before the Maribor District Court, where the preliminary question is being determined, have not been completed. Their supervisory appeal concerning the stay of the [civil] proceedings is therefore pure hypocrisy.”
Upon a complaint by the applicants lodged with the Ministry of Justice, Judge S.P. was ordered to explain her reply to the applicants.
“In the instant case the determination of criminal liability is a preliminary question which is relevant to the determination of the civil claim, since a civil court cannot establish facts which are different from those established by the criminal court.”
The proceedings are still pending.
C. The criminal complaint filed against the first applicant
D. Findings of the Ombudsman
“In the record of the hearing [of 28 October 2003] reference is made to twelve questions which the plaintiffs were not permitted to ask. ... As regards the majority of these twelve questions, the record contains no indication why the judge did not allow the plaintiffs to put the questions. In each instance, there was a prior objection by the defendants' representatives to the question.
Although [the applicants'] reactions, statements and proposals were perhaps extreme on occasion, the authorities, including the courts, ought to have taken into account their emotional distress ... [a factor which] may necessitate the trial being conducted in a particularly tolerant and flexible way, [though] without breaching procedural rules to the detriment of the defendants. However, the record of the hearing gives the impression of a tense rather than dispassionate atmosphere at the hearing, an impression that is reinforced also by the records of the exchanges between the judge and the plaintiffs' representative.”
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
B. The Criminal Procedure Act
“(1) An aggrieved party acting as a prosecutor ... may request the investigating judge to open an investigation or propose additional investigative measures. During the course of the investigation they may also submit other proposals to the investigating judge.
(2) The institution, conduct, suspension and termination of an investigation shall be governed, mutatis mutandis, by the provisions of the present Act applying to ... the investigation conducted at the request of the public prosecutor...
(3) When the investigating judge considers that the investigation is complete he or she shall inform the aggrieved party acting as a prosecutor... The investigating judge shall also advise such aggrieved party .... that he or she must file the indictment ... within fifteen days, failing which he or she may be deemed to have withdrawn from the prosecution and a decision may be taken to discontinue the proceedings. The investigating judge shall also be bound to give such warning to the aggrieved party acting as a prosecutor ... in cases where the panel has dismissed his or her motion to supplement the investigation because it is of the opinion that the matter has been sufficiently investigated.”
Under section 274 of the CPA, the accused may lodge an objection to the indictment within eight days after its receipt. The objection is examined by the interlocutory-proceedings panel. Section 276 of the CPA provides, inter alia:
“(2) If in considering the objection the interlocutory-proceedings panel discovers errors or defects in the indictment (section 269) or in the procedure itself, or finds that further investigations are required before the decision on the indictment is taken, it shall return the indictment to the prosecutor with directions to correct the established defects or to supplement ... the investigation. The prosecutor shall within three days of being informed of the decision of the panel submit an amended indictment or request a ... supplementary investigation. ...”
“(1) In deciding an objection to the indictment the interlocutory-proceedings panel shall not accept the indictment and shall discontinue the criminal proceedings if it finds that:
(3) a criminal prosecution is statute-barred ...
(4) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged.”
C. The Code of Obligations
D. The Civil Procedure Act
“When the decision of the court depends on a preliminary determination of the question whether a certain right or legal relationship exists, but [the question] has not yet been decided by a court or other competent authority (preliminary question), the court may determine the question by itself, save as otherwise provided in special legislation.
The court's decision on the preliminary question shall be effective only in the proceedings in which the question was determined.
In civil proceedings, the court shall be bound with respect to the existence of a criminal offence and criminal liability by a finding of guilt by a criminal court judgment that is final.”
“In addition to the examples specifically given in this Act, the court may order a stay of proceedings:
1. if it decides not to determine the preliminary question itself (section 12)...”
“If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section 213, the proceedings shall resume once the [other] proceedings are finally concluded (pravnomočno končan postopek) ... or when the court finds that there is no longer any reason to await the end [of the other proceedings].
In all cases, the discontinued proceedings shall continue at the relevant party's request, immediately after the reasons justifying the stay cease to exist.”
E. Regulation concerning the organisation and functioning of the Tribunal of the Medical Association
F. The Act on the Protection of the Right to a Trial without Undue Delay
III. DECLARATION OF SLOVENIA UNDER FORMER ARTICLES 25 AND 46 OF THE CONVENTION OF 28 JUNE 1994:
“The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental organisation or group of individuals claiming to be the victim of [a] violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.
The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory ipso facto and without special agreement, on condition of reciprocity, the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.”
IV. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The Vienna Convention of 1969 on the Law of Treaties
“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”
B. International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts (adopted by the International Law Commission on 9 August 2001)
“An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”
“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”
C. The International Court of Justice
“... it appeared ..., that the dispute submitted to the Court has a threefold subject: (1) The disputed existence of a right of passage in favour of Portugal; (2) The alleged failure of India in July 1954 to comply with its obligations concerning that right of passage; (3) The redress of the illegal situation flowing from that failure. The dispute before the Court, having this three-fold subject, could not arise until all its constituent elements had come into existence. Among these are the obstacles which India is alleged to have placed in the way of exercise of passage by Portugal in 1954. The dispute therefore as submitted to the Court could not have originated until 1954.”
“.... By its terms, the jurisdiction of the Court is accepted 'over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date'. In accordance with the terms of the Declaration, the Court must hold that it has jurisdiction if it finds that the dispute submitted to it is a dispute with regard to a situation subsequent to 5 February 1930 or is one with regard to facts subsequent to that date.
The facts or situations to which regard must be had in this connection are those with regard to which the dispute has arisen or, in other words, as was said by the Permanent Court in the case concerning the Electricity Company of Sofia and Bulgaria, only 'those which must be considered as being the source of the dispute', those which are its 'real cause'. ... The Permanent Court thus drew a distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the dispute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court.”
The ICJ went on to find that:
“...it was only in 1954 that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India's failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The time-condition to which acceptance of the jurisdiction of the Court was made subject by the Declaration of India is therefore complied with.”
D. The United Nations Human Rights Committee
“ 5.3. ... the events which could have constituted violations of several articles of the Covenant and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmissible ratione temporis.”
“6.2 ... a distinction should be drawn between the complaint relating to Mr Thomas Sankara and the complaint concerning Ms Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara's death certificate of 17 January 1988, stating that he died of natural causes - contrary to the facts, which are public knowledge and confirmed by the State party (paras. 4.2 and 4.7) - and the authorities' failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms Sankara and her children.”
The Committee went on to find that:
“6.3 ... it could not consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continued after the Protocol's entry into force. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party. The Committee took note of the authors' arguments concerning, first, the failure of the authorities to conduct an inquiry into the death of Thomas Sankara (which was public knowledge) and to prosecute those responsible - allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant. Secondly, it was clear that in order to remedy this situation, the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year statute of limitations, and these proceedings continued after the Covenant and the Optional Protocol entered into force for Burkina Faso. Contrary to the arguments of the State party, the Committee considered that the proceedings were prolonged, not because of a procedural error on the part of the authors, but because of a conflict of competence between authorities. Consequently, insofar as, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and prosecute the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because the proceedings have not concluded to date, the Committee considered that this part of the communication was admissible ratione temporis.”
E. The Inter-American Court of Human Rights
114. The Inter-American Court of Human Rights (IACHR) has established the procedural obligations arising in respect of killings or disappearances under several provisions of the American Convention on Human Rights (“the American Convention”). In cases concerning breaches of procedural obligations, in particular where it found that the substantive aspect of the right to life had also been violated, the IACHR was ready to find a violation of Article 4 (right to life) taken together with Article 1 § 1 (obligation to respect rights) of the American Convention (see Velásquez Rodríguez v. Honduras, judgment of 29 July 1988, and Godínez Cruz Case v. Honduras, judgment of 20 January 1989). In many cases, in particular those where the substantive limb of Article 4 had not been breached, the IACHR examined such procedural complaints autonomously under Article 8, which, unlike the European Convention, guarantees the right to a fair trial for the determination of rights and obligations of any nature, and Article 25, which protects the right to judicial protection, taken together with Article 1 § 1. The IACHR followed the latter approach in cases where the killing or disappearance took place before the recognition of its jurisdiction by a respondent State.
“77. ... the facts that the Commission alleges in relation to the alleged violation of Articles 4 (Right to Life), 5 (Right to Personal Integrity) and 7 (Right to Personal Liberty) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Ernestina and Erlinda Serrano Cruz, are excluded owing to the limitation to the recognition of the Court's jurisdiction established by El Salvador, because they relate to violations which commenced in June 1982, with the alleged 'capture' or 'taking into custody' of the girls by soldiers of the Atlacatl Battalion and their subsequent disappearance, 13 years before El Salvador recognized the contentious jurisdiction of the Inter-American Court.
78. In view of these considerations and pursuant to the provisions of Article 28 of the 1969 Vienna Convention on the Law of Treaties, the Court admits the preliminary objection ratione temporis...”
84. The Court considers that all the facts that occurred following El Salvador's recognition of the Court's jurisdiction and which refer to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, are not excluded by the limitation established by the State, because they refer to judicial proceedings that constitute independent facts. They commenced after El Salvador had recognized the Court's jurisdiction and can constitute specific and autonomous violations concerning denial of justice occurring after the recognition of the Court's jurisdiction.
94. Therefore, the Court decides to reject the preliminary objection ratione temporis in relation to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, and to any other violation whose facts or commencement was subsequent to June 6, 1995, the date on which the State deposited with the OAS General Secretariat the instrument recognizing the Court's jurisdiction.”
“39. ... [a]ccording to this principle of non-retroactivity, in the case of a continuing or permanent violation, which begins before the acceptance of the Court's jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.”
“43. ... [T]he Court distinguishes between alleged violations of the American Convention that are of a continuing nature, and those that occurred after November 12, 1987. With respect to the former, the Tribunal observes that the perpetration of a massacre in 1986 has been alleged; in consequence, an obligation arose for the State to investigate, prosecute and punish the responsible parties. In that regard, Suriname initiated an investigation in 1989. Yet, the State's obligation to investigate can be assessed by the Court starting from the date when Suriname recognized the Tribunal's competence. Thus, an analysis of the State's actions and omissions with respect to that investigation, in light of Articles 8, 25 and 1.1 of the Convention, falls within the jurisdiction of this Court. ...
44. Consequently, the instant preliminary objection is dismissed on the grounds set out above.
141. The Court has held above that it lacks jurisdiction over the events of November 29, 1986 in Moiwana Village; nevertheless, the Tribunal does have competence to examine the State's fulfilment of its obligation to investigate those occurrences (supra paragraph 43). The following assessment will establish whether that obligation was carried out pursuant to the standards set forth in Articles 8 and 25 of the American Convention.
163. In consideration of the many facets analyzed above, the Court holds that Suriname's seriously deficient investigation into the 1986 attack upon Moiwana Village, its violent obstruction of justice, and the extended period of time that has transpired without the clarification of the facts and the punishment of the responsible parties have defied the standards for access to justice and due process established in the American Convention.
164. As a result, the Tribunal declares that the State violated Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) of that treaty, to the detriment of the Moiwana community members.”
I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION IN ITS PROCEDURAL LIMB
The relevant part of Article 2 of the Convention provides:
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life...”
A. The Government's preliminary objections
1. Jurisdiction ratione temporis
(a) The Chamber judgment
(b) Submissions of those appearing before the Court
(i) The Government
(ii) The applicants
(c) The Grand Chamber's assessment
(i) General principles
(ii) The Court's jurisdiction ratione temporis in respect of the procedural complaints under Article 2 of the Convention
(α) The relevant case-law developed so far
“Since the Court is prevented ratione temporis from examining the applicants' assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case (see Moldovan and Others v. Romania (dec.), no. 41138/98, 13 March 2001). Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed (see Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005).”
(β) “Detachability” of the procedural obligations
Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account (Vo, cited above, § 89) – will have been or ought to have been carried out after the critical date.
However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.
(iii) Application of the above principles to the present case
2. Exhaustion of domestic remedies
Secondly, they argued that the applicants had failed to avail themselves of the remedies available in respect of the complaints of undue delay.
The applicants contested the Government's arguments.
As regards the first limb of the objection, the Chamber observed that the applicants had resorted to all the remedies available to them in the criminal proceedings. As to the civil proceedings, which were still ongoing, the Chamber considered that this part of the Government's objection was closely linked to the substance of the applicants' complaint under the procedural aspect of Article 2 and that its examination should therefore be joined to the merits of the case.
1. The Chamber judgment
2. The parties' submissions
(a) The applicants
(b) The Government
3. The Grand Chamber's assessment
(a) Relevant principles
195. A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Paul and Audrey Edwards, cited above, § 72). The same applies to Article 2 cases concerning medical negligence. The State's obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Byrzykowski, cited above, § 117).
(b) Application of the above principles in the instant case
III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
“In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
“150. The Court finds that the applicants have failed to submit documentary evidence of the expenses they allegedly incurred as a result of the inactivity of the courts in the domestic proceedings. As regards the remainder of the claim for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged... It therefore rejects this claim.
151. As to non-pecuniary damage, the Court, deciding on an equitable basis and having regard to the sums awarded in similar cases and the violation which it has found in the present case, awards the applicants the full sum claimed, namely EUR 7,540.”
B. Costs and expenses
“154. Under the Court's case-law, an applicant is entitled to the reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.”
224. The applicants claimed EUR 5,000 in respect of the proceedings before the Grand Chamber. However, their itemised claims amounted to EUR 2,864 only, broken down as follows. Relying on the domestic scale of lawyer's fees, the applicants claimed EUR 1,184 in respect of legal fees for the work done by their representative in the written and oral proceedings before the Grand Chamber. In addition they claimed EUR 855 in respect of travel and subsistence related to his attendance at the hearing and a further EUR 825 in respect of their own travel and subsistence expenses.
226. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 VIII).
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months, the following amounts:
(i) EUR 7,540 (seven thousand five hundred and forty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 4,039 (four thousand and thirty-nine euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 9 April 2009.
Michael O'Boyle Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) Concurring opinion of Judge Lorenzen;
(b) Concurring opinion of Judge Zupančič;
(c) Concurring opinion of Judge Zagrebelsky joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó;
d) Joint dissenting opinion of Judges Bratza and Türmen.
CONCURRING OPINION OF JUDGE LORENZEN
I voted with the majority in favour of finding a violation of Article 2 in its procedural limb. However, I am not able fully to agree with the majority's reasoning in respect of the Court's jurisdiction ratione temporis.
As demonstrated in paragraphs 148-152 of the judgment, the Court has not always been consistent in its case-law when determining whether it has jurisdiction to examine complaints of a violation of the procedural requirements under Articles 2 and 3 where the facts concerning the substantive aspect of these Articles fall outside the period under the Court's competence even if the subsequent proceedings fall at least partly within that period. In the case of Blečić v. Croatia ([GC], no. 59532/00, ECHR 2006-III) the Court established general principles to be applied in respect of its jurisdiction ratione temporis but did not address the specific question of its temporal jurisdiction under Articles 2 and 3 in the above situation.
For the reasons stated in paragraphs 153-162 of the judgment I can agree that the Court has – in certain circumstances – jurisdiction ratione temporis to examine procedural complaints relating to deaths which have taken place outside its temporal jurisdiction, but that, for obvious reasons of legal certainty, such jurisdiction cannot be open-ended. In this respect, I fully agree with what is said in paragraph 161 of the judgment. However, I fail to see that the criteria established by the majority in paragraph 163 are in conformity with this requirement. Thus, it is not easy to understand what is meant by the requirement for “a genuine connection” between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Furthermore the fact that the majority seem ready to accept such a connection “based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” appears to confirm that the jurisdictional limits will be difficult to identify, if they exist at all. I find it incompatible with the declared intention to respect the principle of legal certainty to define the Court's temporal jurisdiction in such a vague and far-reaching way.
In my opinion, there must be a clear temporal connection between on the one hand the substantive event – death, ill-treatment etc. – and the procedural obligation to carry out an investigation and, on the other, the entry into force of the Convention in respect of the respondent State. This will be the case where the event occurred and an investigation was initiated before the entry into force of the Convention, but a significant part of that investigation was only carried out after that date. Likewise where the event occurred or was only discovered so close to the critical date that it was not possible to commence an investigation before that date. Where on the other hand no investigation was carried out despite knowledge of the event or where the investigation was terminated before the critical date, I would say that the Court would have jurisdiction only where an obligation to carry out investigative measures was triggered by relevant new evidence or information (see, mutatis mutandis, Brecknell v. the United Kingdom, no. 2457/04, §§ 70-71, 27 November 2007).
In the present case, the death of the applicant's son occurred a little more than a year before the entry into force of the Convention in respect of Slovenia and, with the exception of the preliminary investigation, all the criminal and civil proceedings were initiated and conducted after that date (see paragraph 165 of the judgment). In these circumstances, I agree that there is a sufficient temporal connection between the relevant events and the entry into force of the Convention to find that the Court has jurisdiction ratione temporis to examine the applicants' procedural complaint under Article 2. For the reasons stated in the judgment I agree that there has been a violation of that Article.
CONCURRING OPINION OF JUDGE ZUPANČIČ
I concur in the outcome in this case but consider it useful to add the following remarks.
In Moldovan and Others and Rostaş and Others v. Romania ((dec.), nos. 41138/98 and 64320/01, 13 March 2001), the critical language of the decision goes as follows:
“In the present case, the Court notes that the killings happened in September 1993 before the entry into force of the Convention with regard to Romania, i.e. 20 June 1994. However, in accordance with the generally recognised rules of international law, the Convention only applies in respect of each contracting party to facts subsequent to its coming into force for that party. The possible existence of a continuing situation must be determined, if necessary ex officio, in the light of the special circumstances of each case (e.g., nos. 8560/79 and 8613/79 (joined), Dec. 3.7.79, D.R. 16, p. 209). The Court must therefore verify whether it is competent ratione temporis to examine the present complaint.” (Emphasis added.)
It would appear that in Blečić v. Croatia ([GC], no. 59532/00, § 75, ECHR 2006 III), the Grand Chamber somehow attempted to endorse the Moldovan decision by including it in the summary of the relevant case-law. The subsequent cases, such as Kholodov and Kholodova v. Russia ((dec.), no. 30651/05, 14 September 2006), have since then been employing a formula combining the approaches from Moldovan and Blečić:
“Admittedly, the investigation into Mr Dmitriy Khodolov's death and the trial of putative perpetrators continued long after the ratification of the Convention by the Russian Federation. However, the Court's temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference cannot bring it within its temporal jurisdiction (see Blečić v. Croatia [GC], no. 59532/00, § 77, ECHR 2006-...).
Since the Court is prevented ratione temporis from examining the applicants' assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case (see Moldovan and Others v. Romania (dec.), no. 41138/98, 13 March 2001).
Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed [in the first place] (see Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005).
The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
As the Court has found that [the facts underlying the] applicants' complaint under Article 2 of the Convention [are] outside its jurisdiction ratione temporis, it is not competent to examine whether the applicants had an “arguable claim” of a breach of a substantive Convention right. Accordingly, their allegations under Article 13 also fall outside the Court's competence ratione temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001). It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.” (Emphasis added.)
The logic of the decision in Kholodov rests upon the spurious premise. It maintains, almost explicitly but at any rate implicitly, that since the facts of the case are outside the Court's temporal jurisdiction, criminal procedures originating in these facts, too, are outside the Court's temporal jurisdiction.
However, it is an established and logical precept for the court of last resort not to (re)consider the facts, i.e., to leave this business to the national courts. Thus, to maintain that our Court is prevented from gauging the derivative procedures because it is prevented from examining the facts, which it almost never does, of the historical event is at best formalistic and at worst absurd.
The key question, therefore, is the meaning of the phrase “facts subsequent to its coming into force for that party.” More specifically, the meaning of the word “facts” is the central issue.
The sophisticated approach to this question (of interpretation) would maintain, as Hobbes and Alf Ross did, that outside the norm there are no “facts”, that facts per se do not exist.
In Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 II) we even had a situation in which the simultaneous and clear existence of both the “facts” and the norms, because they were not enforced, was, until the change of (legal) regime, insufficient.
At the very least, the facts do not become legally relevant unless (1) the applicable norm pre-exists and (2) the norm is applied.
The problem with Moldovan, a Section decision, is simply that it sets out from a naïve premise that facts and laws (questiones facti, questiones juris) may exist separately – and independently of one another. It is true, of course, that the historical event (the killing) may have happened at a certain point in time, e.g., before the entry into force of the Convention. However, if that event (“facts”) had not been registered by the legal system, its legal echoes would never reach, for example, Strasbourg.
Concerning ratione temporis jurisdiction there are surprisingly few combinations of event and procedures that comprise the gamut of experiment. (1) Both the historical event and the subsequent procedures might have been in the period prior to the Convention's entry into force in respect of the country concerned. Clearly, even if the procedures were allegedly in violation of the procedural limb of Article 2 or 3, the case was ad acta before the Convention's entry into force. (2) Both the historical event and the subsequent procedures might have been posterior to the Convention's coming into force in respect of the country concerned, in which case, likewise, there is no ratione temporis issue. (3) However, if the historical event occurred prior to the Convention's entry into force whereas the procedures were posterior to that date, there are further possible combinations: thus, in Kholodov, the case was processed to a preponderant extent after the entry into force of the Convention, whereas in Blečić the reverse was true.
Here it is interesting to note that in Blečić the Court maintained, in paragraph 85, that:
“... the alleged interference with the applicant's rights lies in the Supreme Court's judgment of 15 February 1996. The subsequent Constitutional Court decision only resulted in allowing the interference allegedly caused by that judgment – a definitive act which was by itself capable of violating the applicant's rights – to subsist. That decision, as it stood, did not constitute the interference. Having regard to the date of the Supreme Court's judgment, the interference falls outside the Court's temporal jurisdiction.”
The clear implication of this is that although in Blečić both the historical event and most of the procedures took place prior to the coming into force of the Convention in respect of Croatia, it would have sufficed for the ultimate judgment of the Croatian Supreme Court to have been posterior to the coming into force of the Convention for the case to fall within the European Court's temporal jurisdiction. In other words, the Moldovan and Kholodov decisions are unmistakably irreconcilable with Blečić.
Moreover, this Court's subsidiary supervision of human rights, even by the language of Article 41, comes into play only after the domestic procedures have proved inefficacious. The Contracting Party, in this case Slovenia, cannot be expected to be able to prevent medical negligence and its sequelae. Ultra posse nemo tenetur – No one can be expected to do the impossible.
The State may, however, be expected to react vigorously through its institutionalised procedures. At issue in all cases in which the State is not directly involved in the killing, torture etc. as, for example, in Selmouni v. France ([GC], no. 25803/94, ECHR 1999 V) and Jalloh v. Germany ([GC], no. 54810/00, ECHR 2006 ...), are solely its investigative, prosecutorial and judicial procedures indirectly consequent upon the incriminated killing or torture. The rest is the horizontal effect known as Drittwirkung.
It follows that the so-called “procedural limb” of Article 2 or 3, often in conjunction with Article 13, habitually represents the only possible “facts subsequent to the Convention's coming into force for that party” (supra, Moldovan). In this sense, it can, after Šilih, be maintained that the “logic” of Moldovan, Kholodov and similar cases has been superseded by the language of paragraphs 159, 162 and 163 of Šilih. Likewise, the impact of Blečić seems to have been narrowed down to holding merely that the inadmissibility decision by the Constitutional Court does not suffice to bring the case within the European Court's temporal jurisdiction.
CONCURRING OPINION OF JUDGE ZAGREBELSKY JOINED BY JUDGES ROZAKIS, CABRAL BARRETO, SPIELMANN AND SAJÓ
Like the majority, I consider that there has been a violation of the procedural limb of Article 2 of the Convention in the present case, which concerns a death which occurred prior to the entry into force of the Convention in respect of the respondent State. I agree with the reasoning set out in paragraphs 153 et seq. of the judgment, which enables the Court to conclude that the State is under an obligation to start and carry out an effective investigation even when the death took place before the critical date (see paragraph 159). This obligation “binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it” (see paragraph 157).
With the exception of crimes that are not subject to statutory limitation, events that occurred in the distant past will not necessarily give rise to the application of the aforementioned principle. When the Convention enters into force in respect of a State, the likelihood is that there will no longer be any victims able to claim to be entitled to an investigation or to complain to the Court of the lack or ineffectiveness of an investigation. In any event, if the criminal law is no longer applicable owing to the expiration of the limitation period or if an investigation would be pointless because of the disappearance of evidence and witnesses, there will be no justification for imposing the obligation. However, this is an issue relating to the merits of the case before the Court whereas the question examined in the present judgment concerns the determination of the Court's jurisdiction ratione temporis and, consequently, the admissibility of the application.
Despite this, the majority have found it necessary to indicate that “having regard to the principle of legal certainty, the Court's temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended” (see paragraph 161 of the judgment). To my mind, the Court may indeed be led by restrictions of a legal or factual nature to decide in certain cases that the State is not under a procedural obligation. However, as I have already mentioned, this would not entail calling into question the Court's jurisdiction ratione temporis, but excluding a violation of the procedural limb of Article 2.
In my view, the introduction (for which there was no need in the present case) of the notion of “limits” on the “detachability” of the procedural obligation from the substantive obligation under Article 2 weakens the reasoning of the Court and makes the application of the legal principle established by the Grand Chamber difficult, debatable and unforeseeable. This is particularly true and troublesome in the light of the vague wording used in paragraph 163 to define the “limits” in question. The Court will be forced to carry out complex and questionable assessments on a case-by-case basis that will be difficult to dissociate from the merits of the case. The impact this is likely to have on “legal certainty” (which the Court has rightly referred to) is, I would venture, both obvious and harmful.
JOINT DISSENTING OPINION OF JUDGES BRATZA AND TÜRMEN
“... to retain the date of the latter act in determining the Court's temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention came into force in respect of that State. However, this would be contrary to the general rules of non-retroactivity of treaties” (paragraph 79).
In a decision which was cited with approval by the Grand Chamber in the Blečić case, the Court unanimously rejected the claims under both Articles as falling outside its competence ratione temporis. As to the former complaint the Court noted that
“... the alleged obligation under the Convention of the Romanian authorities to conduct an effective investigation capable of leading to the identification and punishment of all individuals responsible for the deaths of the applicants' relatives is derived from the aforementioned killings whose compatibility with the Convention cannot be examined by the Court. It follows that the complaint is inadmissible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.”
The Court reached the same conclusion in relation to the Article 3 complaint, holding that the obligation to carry out an effective investigation resulted from attacks which had occurred prior to the date of ratification and whose compatibility with the Convention could not, accordingly, be examined by the Court.
Citing the decision in the Moldovan case with approval, the Court observed that the procedural obligation under Article 3 arises when an individual makes a credible assertion of having suffered treatment contrary to Article 3. It continued:
“However, since the Court is prevented from examining the applicant's assertion relating to the events lying outside its jurisdiction ratione temporis, it is unable to reach a conclusion as to whether the applicant has made a “credible assertion” as required by the above provision. Accordingly, it cannot examine whether the Russian authorities had an obligation under the Convention to conduct an effective investigation in the present case... Likewise, the alleged failure to conduct the investigation cannot be held to constitute a continuous situation raising an issue under Article 3 in the present case, since the Court is unable to conclude that such an obligation existed.”
The Court went on to reject the Article 13 complaint on the same basis, holding that it was “not competent to examine whether the applicant had an 'arguable claim' of a breach of a substantive Convention right and that his submissions in respect of Article 13 therefore also fall outside the Court's competence ratione temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001)”.
“Since the Court is prevented ratione temporis from examining the applicants' assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case... Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed...”.
We have no quarrel with these propositions or with the majority's view that the procedural obligation has evolved into a “separate and autonomous duty”. Where we differ from the majority is as to their view that the obligation is “detachable” from the death which gives rise to it, in the sense that it is an obligation which can be imposed on a State on or after the date of ratification even where the death took place before that date. Nor can we agree with the suggestion which is implicit in the judgment that, because the procedural obligation “binds the State throughout the period in which the State could reasonably be expected to take measures to elucidate the circumstances of the death”, a State which fails to carry out such an investigation into a death occurring before the date of ratification or which continues beyond that date an investigation which it has commenced without any Convention obligation to do so, can become liable for a breach of its procedural obligations from the moment of ratification. Divorcing the procedural obligation from the death which gave rise to it in this manner would, in our view, be tantamount to giving retroactive effect to the Convention and rendering nugatory the State's declaration recognising the Court's competence to receive individual applications (cf., Kadiķis v. Latvia (dec.), no. 47634/99, 29 June 2000; Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002-II).
15. Since we are unable to share the majority's view that Article 2 was violated in the present case, we also voted against their conclusion that, having regard to this finding, it was unnecessary to examine separately the complaints under Article 6 and 13 of the Convention. Had the complaints been examined, we would have found a violation of Article 6 of the Convention on the grounds of the excessive length of the proceedings, but no violation of Article 13.