CONCURRING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I agree with the conclusion that there was “degrading treatment in breach of A rticle 3 of the Convention ” in the present case, but I would have preferred to reach that finding by means of the following reasoning.

1. According to the Court ' s settled case-law , where an individual is taken into the custody of the State in good health but is found to be “ injured ” at the time of release, if the Government do not provide a plausible explanation of how those “ injuries ” were caused, the State must be held responsible for the individual ' s situation .

I agree with the observation in paragraph 4 3 that in the applicant ' s case it can r easonably be pre sumed that there is a causal link between the treatment complained of and the onset of his mental disorders .

2. However, if this causal link exists, is the State responsible for all the after-effects suffered by the applicant, for example his “persecution-type hallucination with serious depression” and his inability to continue practising as a doctor ?

An answer in the affirmative would lead me to conclude without he sitation that the s ituation was so serious as to qualify as “ torture ” rather than “degrading treatment” .

In my opinion, the applicant ' s suffering can be defined as “severe” within the meaning of Article 1 of the United Nations Convention against Torture. As the Court has held, “this ' severity ' is, like the ' minimum severity ' required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. ” (see Selmouni v. France [GC], § 100 , ECHR 1999-V ) .

The effects on the applicant ' s mental state are beyond dispute .

Admittedly, the treatment in question – wearing handcuffs – could hardly be regarded as sufficiently severe to attain the threshold required for the particular situation experienced by the applicant to be defined as torture; once again, however, we should not overlook the relative nature of concepts.

3. Why then do I have no hesitation in ruling out the classification of “torture” for the acts complained of?

For a very simple reason : there is not an adequate causal link, and I stress “ adequate ”, between the acts of which the police authorities were accused and the applicant ' s state of health .

A causal link is a common factor in all forms of liability, whether civil, criminal, political or any other form .

However, it is not sufficient to consider, as the theory of equivalence of conditions does, that any event without which the damage would not have occurred should be treated as a cause .

It must be shown that there is a relationship of probability – according to the normal course of things, the ordinary sequence of events and experience of life – between the event and the damage alleged to have resulted from it.

According to the theory of adequate causation , we should disregard the factors that have become part of the damage as a result of extraordinary circumstances and consider only those which experience of life suggests are likely to produce damage.

Returning to the case at hand, I must say that wearing handcuffs, even if we take into account the very particular set of circumstances that obtained, would in all probability not be expected to produce such serious consequences as those suffered by the applicant .

Thus, once the adequate causal link between the police authorities ' acts and the applicant ' s state of health has been broken, the State cannot be held responsible under the Convention for the applicant ' s current situation .

All that remains is the fact of wearing handcuffs. The special circumstances of the present case are very different from, and more serious than, those examined in Raninen v. Finland (16 December 1997, Reports of Judgments and Decisions 1997-VIII) ; accordingly, contrary to the conclusion reached in Raninen , and for the reasons set out in the judgment, the present case involved degrading treatment worthy of censure.