PARTLY DISSENTING OPINION OF JUDGE BONELLO

1. I concurred with my colleagues in all the votes but one. I could not subscribe to the majority view that, in the present case, there has been no infringement of the prohibition against discrimination (Article 14).

2. I consider it particularly disturbing that the Court, in over fifty years of pertinacious judicial scrutiny, has not, to date, found one single instance of violation of the right to life (Article 2) or the right not to be subjected to torture or to other degrading or inhuman treatment or punishment (Article 3) induced by the race, colour or place of origin of the victim [The Commission held, in 1973, that “differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when different treatment on some other ground would raise no such question” ( East African Asians v. the United Kingdom , Commission's report of 14 December 1973, Decisions and Reports 78-A)]. Leafing through the annals of the Court, an uninformed observer would be justified to conclude that, for over fifty years democratic Europe has been exempted from any suspicion of racism, intolerance or xenophobia. The Europe projected by the Court's case-law is that of an exemplary haven of ethnic fraternity, in which peoples of the most diverse origin coalesce without distress, prejudice or recrimination. The present case energises that delusion.

3. Frequently and regularly the Court acknowledges that members of vulnerable minorities are deprived of life or subjected to appalling treatment in violation of Article 3; but not once has the Court found that this happens to be linked to their ethnicity. Kurds, coloureds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, colour, nationality or place of origin has anything to do with it. Misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence.

4. At the root of this injurious escape from reality lies the evidentiary rule which the Court has inflicted on itself: “The Court recalls ... that the standard of proof required under the Convention is 'proof beyond reasonable doubt'.” [ Velikova v. Bulgaria , no. 41488/98, ECHR 2000-VI] The majority found that in the present case it had not been established “beyond reasonable doubt” that in the death of the 17-year-old Rom, Anguel Zabchekov that followed the devoted attentions of police officers, his ethnicity was “a determining factor” with those police officers who facilitated the young Rom's access to the fastest lane from Razgrad to eternity.

5. This inability to establish a link between physical abuse and ethnicity comes notwithstanding that the red light about the special treatment of Roma by the Bulgarian police in breach of Articles 2 and 3 has been flashing insistently and alarmingly: this is the third case of death or brutality of Roma at the hands of Bulgarian police officers decided by the Court (see Assenov and Others and Velikova ). According to reports of inter-governmental organisations and human rights groups, the Bulgarian law-enforcement services boast of an unenviable primacy in racially prejudiced ill-treatment of Roma.

Amnesty International, in a chillingly detailed account, focused on the predilection displayed by police officers for savaging Roma. “Many of the victims of beatings and other ill-treatment by police officers are Roma ... Amnesty International expressed concern to the Bulgarian authorities about two other incidents of mass beatings during police raids on Roma neighbourhoods, five incidents of racial violence where Roma were inadequately protected, five cases of deaths in suspicious circumstances and nine incidents of torture and ill-treatment involving twenty-one victims.”

“The problem” adds the report, “is further compounded by a pattern of impunity of law-enforcement officers responsible for human rights violations” [“ Bulgaria , Shooting, Death in Custody, Torture and Ill-treatment”. AI Index: EUR 15/07/96]. On immunity of police officers from prosecution, Amnesty International added that it was “concerned that police impunity which prevails as Bulgarian authorities consistently fail to investigate such incidents properly and impartially places at ever greater risk of racist violence the most vulnerable ethnic community in Bulgaria” [AI Index: EUR 01/06/97].

Another report emphasises that “Roma throughout Bulgaria have been subjected to beatings and other ill-treatment by law-enforcement officers. Amnesty International believes that in most instances such treatment is racially motivated and is concerned that the ill-treatment of Roma is one of the major human rights problems in Bulgaria” [“Bulgaria: Concerns about Ill-treatment of Roma by Bulgarian Police”. AI Index: EUR 15/05/95].

6. It has not only been human rights groups that have sounded the alarm. Intergovernmental organisations such as the Council of Europe and the United Nations have also noted the problem. The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions to the United Nations Commission on Human Rights, too, “expresses concern about reports indicating that persons belonging to the Roma minority [in Bulgaria] are the main victims of police violence, in particular of violations to the right to life” [Report of 25 January 1996 (E/CN.4/1996/4)]. The report by Alvaro Gil-Robles, the Council of Europe's Commissioner for Human Rights, on his visit to Bulgaria in December 2001 also contributes to the overall perception of Roma as a disadvantaged and targeted minority in that country.

7. The publication “Profession: prisoner. Roma in detention in Bulgaria” also documents in detail the systems of conduct massively employed in Bulgaria by law-enforcement officers, fortified by almost automatic impunity [European Roma Rights Centre, Country Reports Series no. 6, December 1997].

8. Similar negative assessments of systematic police brutality against Roma in Bulgaria has been expressed and recorded by other human rights watchdogs, like the Human Rights Project, the Bulgaria Helsinki Committee and Human Rights Watch .

9. Nowhere does the Convention mandate the “proof beyond reasonable doubt” standard today required of the victim to convince the Court that death or ill-treatment were induced by ethnic prejudice. Article 32, on the contrary, gives the Court the widest possible discretion as to the interpretation and the application of the Convention. What the Convention does mandate is quite the opposite: that its provisions should be given thorough implementation. Any exercise in interpreting the Convention must be geared to “securing the universal and effective recognition and observation” of the guarantees enumerated, unless it is to turn into a betrayal of the spirit and the letter of its momentous preamble.

The Convention has to be applied by the Court in such a way as to guarantee “not rights that are theoretical or illusory, but rights that are practical and effective” [ Artico v. Italy , judgment of 13 May 1980, Series A no. 37]. No more effective tool could be devised to ensure that the protection against racial discrimination becomes illusory and inoperative than requiring from the victim a standard of proof that, in other civil-law disputes, is required of no one else.

10. The Court has never explained, let alone justified, why the standard of proof weighting the applicant in human rights disputes should be equivalent to that required of the State to obtain a safe and dependable criminal conviction. I have elsewhere disassociated myself from any adherence to a standard that I find legally untenable and, in practice, unachievable; a standard that only serves to ensure that human rights harm, however flaunted and forbidding, remains unharmed [ VeznedaroÄŸlu v. Turkey , no. 32357/96, 11 April 2000 ]. This doctrine only rewards those the Convention would fain not see rewarded.

11. It is cheerless for me to discern that, in the cornerstone protection against racial discrimination, the Court has been left lagging behind other leading human rights tribunals. The Inter-American Court of Human Rights, for instance, has established standards altogether more reasonable: “The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of States responsible” [ Velásquez Rodríguez v. Honduras , Inter-American Court of Human Rights, 29 July 1988, § 134].

12. So also the Supreme Court of the United States, in cases in which the standard and the burden of proof to establish racial discrimination are at issue, works from a more effective and efficient platform: it is for the applicant to make out a prima facie issue of discrimination. Once the applicant has established what, in our Court's language, could be called “an arguable claim”, the burden of proof then shifts to the defendant to satisfy the court of the legitimacy and justification of the action impugned [ Griggs v. Duke Power Co. 401 US 424, 427 (1971); McDonnell Douglas Corp. v. Green 411 US 792, 802 (1973)]. This attainable and equitable level of proof appears light-years away from the “proof beyond reasonable doubt” which is stunting European human rights protection in areas where the highest level of protection, rather than the highest level of proof, should be the priority.

13. So long as the Court persists in requiring in human rights disputes a standard of proof that fifty years experience has shown it to be as unreal as it is unrealistic and unrealisable, it will, in effect, only continue to pay lip-service to the guarantees it then makes impossible to uphold. The way forward, in my view, lies in a radical and creative rethinking of the Court's approach, leading to the removal of the barriers which, in some important human rights domains, make the Court an inept trustee of the Convention. The Court has often risen to the challenge in spectacularly visionary manners, and ought, in matters of ethnic discrimination, to succumb with pride to its own tradition of trail blazing.

14. Various well-tried ways come to mind to achieve a new and better balance between the claims of the applicant and those of the state. One is the shift of the burden of proof: a device the Court has already adopted successfully when the alternative would have made the search for truth impossible. Thus, for instance, death or injury during police custody raises a presumption (engineered by the Court's case-law) that shifts the burden of providing a satisfactory explanation to the State [See, for example, Assenov and Others v. Bulgaria , judgment of 28 October 1998 , Reports of Judgments and Decisions 1998-VIII, and some recent Turkish cases].

15. Thus also the Court, in a forward-looking decision, has held that the failure by the Government to submit information to which only it could have access, may give rise to inferences that the applicant's charges are well-founded [ TimurtaÅŸ v. Turkey , no. 23531/94, ECHR 2000-VI, and TaÅŸ v. Turkey , no. 24396/94, 14 November 2000 ].

16. Reliance on inferences, legal presumptions and a shift in the onus of evidence also proved decisive in the recent Conka case, in which the Court, rather than requiring from the applicants proof beyond reasonable doubt that their expulsion was in pursuance of a collective expulsion policy, found a violation by starting from the opposite end of the syllogism: “The procedure followed [by the State authorities] did not enable it [the Court] to eliminate all doubt that the expulsion might have been collective” [ Conka v. Belgium , no. 51564/99, ECHR 2002-I].

17. The Court has also, by an admirable process of judicial activism “created” the concept of a “procedural violation” of Article 2 [ McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324], and, more recently, of Article 3 [ Assenov and Others , cited above]. The selfsame rationale that found in a non-investigation, or an inadequate investigation of death or inhuman treatment by the State, a “procedural violation” of those guarantees, should inspire and would justify the finding of a violation of Article 14 taken in conjunction with Articles 2 or 3 where no proper investigation of the alleged violation has been carried out.

18. The Court has thus at its disposal a notable arsenal of weapons with which to break the stalemate that has not allowed it, throughout fifty years of activity, to censure one single act of racial discrimination in areas of deprivation of life or inhuman treatment. Ideally it should reconsider whether the standards of proof should not be the more juridically justifiable ones of preponderance of evidence or of a balance of probabilities. Alternatively it should, in my view, hold that when a member of a disadvantaged minority group suffers harm in an environment where racial tensions are high and impunity of State offenders epidemic, the burden to prove that the event was not ethnically induced shifts to the Government.

Subordinately, in the sphere of Article 14, as it has done in the case of Articles 2 and 3, the Court ought to invest in its own doctrine of “procedural violation” when the record shows that the injury suffered by a member of a disadvantaged minority has not been adequately investigated.

19. This would help bring the Court in line with its own case-law that “very weighty reasons would have to be put forward (by the Government) before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention” [ Gaygusuz v. Austria , judgment of 16 September 1996, Reports 1996-IV].

20. For the reasons sketched briefly above, I found it inescapable to vote for a violation of Article 14 of the Convention.