PARTLY DISSENTING OPINION OF JU D GE LOUCAIDES , JOINED BY JU D GE MULARONI

1. I entirely agree with the general principles set out in paragraphs 27-32 of the judgmen t, and I fully subscribe to the Court ’ s conclusion that there has in this case been a violation of Ar ticle 2 of the Convention on account of the applicant ’ s inability to take part in the inquest to determine the cause s of her partner ’ s death . I consider, though, that the re were other shortcomings in the investigation carried out in the present case , which, in my view, should have been emphasised in the judgment . Moreover , I am not convinced by the reasoning that led the majority to allow the Government ’ s objection o n grounds o f failure to exhaust domestic remedies r egarding the complaint of a violation of A rticle 2 of the Convention and relati ng to the alleged responsibility of the authorities for M r Sliti ’ s death , and I consider that there has been a violation of th at provision under this head as well .

A. As regards the conduct of an “ offici al and effective investigation ” in the present ca s e

2. I entirely agree with the majority that the “ inquest to determine the c ause s of death ” referred to in A rticle 74 of the C ode of C riminal P rocedure is in theory an “ official investigation ” capable of leading to the identification and punishment of those responsible ( see paragraph 43 of the judgment ), and that, in the present case, it was sufficient to note that the applicant had no access to that inquest to conclude that it was not “effecti ve ” ( see paragraph s 44-49).

I wish to stress, however, that, in my view , other criteria established in t h is field by the Court ’ s case-law and reiterated in paragraph 32 of the judgment do not appear to have be en satisfied either .

3. I would point out, first of all, that the investigating judge did not himself undertake any investigation : the inquiry was fully entrusted to the senior police officers in accordance with general instructions issued on 27 May 1999 . The investigating judge , and the medical experts appointed by him , based themselves entirely on the facts as established by the police. The possibility could not be ruled out that Mr Sliti had died as a result of negligence by the police: the police are responsible for managing and supervising Arenc Centre , subject to the authority of the public prosecutor ; i n the a bsence of medical staff , medicines were distributed to detainees by police officers; i n the present case first aid was administered by those officers .

Moreover, in so far as it can be reconstructed from the documents produ c ed by the parties, there were a number of shortcomings in the investigation : (1) I am surprised , first of all, that it lasted more than two years and, in particul a r, that the anatomicopathological report (of 15 Oc tob er 1999) and the toxicological report ( of 19 July 2000) were made so long after the death , and that an expert medical opinion c o mparing the conclusions of tho se two expert reports with the data in the deceased ’ s medical file was not sought until 6 November 2000 ( and close d on 2 May 2001, that is, nearly two years after the death ); (2) only two of the deceased ’ s “ fellow detainees ” were questioned, whereas the file shows that some ten people were present during the events ; (3) al t hough the two “fellow detainees” who were interviewed state d that the deceased had been agitated the day before he was taken ill , and his medical history was known , the authorities did not attempt to establish whether there was a link between the death, the applicant ’ s condition prior to being taken ill and the failure to tr eat him beforehand; (4) neither the Navy firefighters who intervened at the scene ( except the doctor ) n or the m e dical staff who subsequently took charge of the applicant until his death were questioned ; (5) evidence was not heard from the applicant , who had been the person closest to the deceased ; (6) as has been stressed previously , the investigating judge did not carry out any investigation – he does not even appear to have gone to the scene of the incident .

B. As regards the authorities ’ responsibility for Mr Sliti ’ s death

1. Exhaustion of domestic remedies

4. I do not share the majority ’ s view that as the applicant did not lodge a criminal complaint together with an application to join the proceedings as a civil party, she failed to exhaust domestic remedies . I doubt that such a remedy (which is a criminal-law remedy) would be effective or adequate where , as could have been the case her e , the death complained of is not attributable to one or more individuals in particular, but likely to have been caused by “instit ution al” negligence . Moreover , the applicant ’ s submission that such a complaint was difficult to justify without having prior access to a minimum amount of i nformation about the circ um stances of the death i s not unfounded ; I find that argum ent all the more per suasive in that the complaint w ould in that case have been lodged by an “indirect victim” who had not witnessed the facts . Furthermore , since the Cour t has held in the present case, regarding the “ procedural obligations ” under Article 2 of the Convention, that the applicant should automatically have been allowed access to the inquest to determine the cause s of death , I find it contradictory to consider that she has not exhausted domestic remedies because she did not lodge a criminal complaint together with an application to join the proceedings as a civil party .

5. With regard to the possibility of raising her complaint before the administrative courts, in the context of an application for compensation , I note that, on the basis of the documents produced by the Government in the proceedings before the Cou r t , the applicant ( on 21 February 2003) lodged an application with the Minister of the Interior ( see par agraph 19 of the judgment ); if applicable , she should be able to challenge a refusal of that request in the ad ministrative court s. The case-law appears to indicate , however, that where no effective investi gation has been carried out , an application for compensation cannot be regarded as “ effective ” within the meaning of Ar ticle 13 taken in conjunction with A rticle 2 and within the meaning of A rticle 35 § 1 [1] ( see Hugh Jordan and McKerr , cited above , §§ 111 et seq. and 159 et seq. , and §§ 117 et seq . and 170 et seq . respective ly ).

6. That being stressed , I note that the applicant was totally excluded from the investigation ( she did not even have access to the a utops y report ) – which does not seem to have been “ effective ” in other respects either – ; she did not have any concret e evidence from which to judge whether her partner ’ s death could have resulted from negligent omission . In the end , her only means of gain ing access to the documents in the domestic proceedings was thro ugh the Court proceedings . In theory , the question whether domestic remedies have been exhausted is judged on the basis of the date on which the application is lodged ( see, for example, Zutter v . France , no. 30197/96, de cision of 27 June 2000; Van der Kar and Lissaur van West v. France , nos. 44952/98 and 44953/98 , 7 November 2000 ; and Malve v. France , no. 46051/99, decision of 20 March 2001). In addition, there may be special circumstances which absolve applicant s from the obligation to exhaust the domestic remedies at their disposal : the Cour t must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant s ( see, for example, Van Oosterwijck v. Belgium , judgment of 6 November 1980, Series A no. 40, p. , §§ 36-40 , and Selmouni v. France [GC], no. 25803/94, § 75 et seq . , ECHR 1999 ‑ V ) . Thus , in any event , on the date when the application was lodged with the Cour t the applicant was not in a position to use the remedies theoretically available to her . I deduce from this that there was no probl em of exhaustion in the present case and that the Court was required to examine on the merits the complaint lodged under A rticle 2 and relating to the authorities ’ responsibility for Mr Sliti ’ s death .

2. As to the merits

7. Where an individual dies in detention , it is incumbent on the State to account for the events that caused the death , failing which the authorities will be held responsible for the purposes of A rticle 2 of the Convention : strong presumptions of fact will arise in respect of death occurring during that detention . T he burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( see, for example, mutatis mutandis , Velikova v. Bulgaria , no. 41488/98, § § 70 , ECHR 2000 ‑ VI ).

8. I n the instant case the treatment administered to the applicant ’ s partner after he was taken ill do es not appear to be at issue ; that is in any event the conclusion of the e xperts appointed by the investigating judge, who found the treatment to have been “i n conformity with current medical knowledge ” ( report of 2 May 2001). The foreseeability of the events is also difficult to establish .

9. Nevertheless , I consider that Mr Sliti ’ s detention in a place with no medical facilities and no organised medical follow-up in itself endangers the health and life of those concerned [2] and , as such , discloses neg ligence on the part of the aut horities : the State ’ s responsib ilit y is engaged under Article 2 on account of the death alone , in such circumstances , of a person deprived of their liberty in such a place , unless it is shown that there is no link between the death and the lack of adequate m e dical care . In other words, the above-mentioned principle of the pr e s umpt ion of responsibility of the State has to apply .

Two reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Trea tment or Punishment (“CPT” – see paragraphs 22-23 of the judgment ) show that at the t ime of the facts of this case “ the holding conditions at Marseilles- Arenc Administrative Detention Centre left a lot to be desired : there was no provision for any specific medical attention or nurs ing cover ; m edicines were distributed by the sur veillance staff (police officers) “in accordance with the needs expressed by the detainee s ” . According to the CPT, “i n addition to the difficulties in seeing a doctor, the situation inevitably gave rise to unacceptable consequences from a medical-ethics standpoint” .

I t is therefore clear that at the material time there was no medical infrastructure or medical staff at Arenc and that the medicines were distributed to the detainees by police officers. Furthermore , in the pr e sent case, notwithstanding Mr Sliti ’ s serious medical history and the heavy medica tion that had to be administered to him, the authorities were not concerned about his refusal to take his medicine or his state of agitation, and omitted to seek medical advice immediately . In my view , that amounts to a form o f n e gligence a ttributable to the respondent State . As the Government have not provided any evidence to show th at there is no link between that ne gligence and Mr Sliti ’ s death, I consider that there has been a vio lation of A rticle 2.

10. I consider that, in the light of my conclusions under A rticle 2, it is not necessary to examine the complaint under Article 1 3 of the Convention .

[1] 1. Given the close affinities between Articles 13 and 35 § 1 regarding the concept of effective remedy (see, inter alia , Kudla v. Poland [GC], n o. 30210/96, § 152, ECHR 2000-XI), these two questions merge together in the instant case .

[2] 1. As reiterated in paragraph 28 of the judgment, the Court has held, in the context of Article 3, that the authorities have an obligation to protect the health of persons deprived of liberty .