PARTLY DISSENTING OPINION OF JUDGE GREVE

In the present case I have found a violation of Article 3 of the Convention. Unlike the majority, I do not find that Mr Caloc can be held responsible for the medical problems which he had when released from detention.

Concerning Mr Caloc's health, the following evidence is available:

1. Mr Caloc was born in Martinique on 5 March 1954. He weighs some 63 kg. He is illiterate, speaks the local creole language and, with difficulty, some French. In 1988 he was a farmer and also ran a business. Previously he had worked as a heavy-plant driver. It is not alleged by the French Government that Mr Caloc suffered from any medical complaint before he was arrested at approximately 2.30 p.m. on 29 September 1988.

2. Some three hours after he was arrested, Mr Caloc – at the request of the French police – was examined by a duty doctor, Dr Thomas. After examining Mr Caloc , the doctor wrote a summary report in which he concluded that there was no medical reason why Mr Caloc should not be held in detention as he was not suffering from any complaints. The extract from Dr Thomas's report provided to this Court reads:

“... I the undersigned certify that I have today examined Adrien Caloc .

He complains of nothing.

His state of health is compatible with being held in police custody.”

The doctor's report does not indicate that there was any particular reason why he was called to examine Mr Caloc . No mention is made of force having been used to apprehend or arrest Mr Caloc . It is not stated in the report that any such use of force was the reason why the doctor was asked to examine Mr Caloc .

3. Mr Caloc was released from detention on 30 September 1988 and joined his family which, frightened by the situation, had sought refuge in another area. That very day Mr Caloc asked to be examined by the local duty doctor, complaining of ill-treatment by the police during his detention. The duty doctor, Dr Kéclard , examined Mr Caloc the next morning, on 1 October 1988, and gave him a medical certificate as to his findings of signs of violence. That examination was followed by X-ray examinations.

Later, Dr Kéclard was visited at his surgery by the police and questioned by them about his examination of Mr Caloc and the reasons for his having issued a medical certificate. By that time Mr Caloc had been accused of slandering the police on account of his complaint of ill-treatment during the detention and had, moreover, been redetained for this alleged offence. In this “slander” case a verdict of guilty was delivered very quickly, whereas the applicant's complaint of ill-treatment faced constant delays in the investigation and judicial follow-up. In respect of the latter, the applicant was first interviewed by a judge more than three years after the “slander” case had been adjudicated, and long after at least one of the policemen allegedly responsible had been transferred back to the French mainland. That treatment of Mr Caloc is difficult to reconcile with the provisions in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – see, particularly, Articles 16 § 1, 12 and 13.

In the legal proceedings in the alleged ill-treatment case, a judge asked another doctor, Dr Cayol , to review Dr Kéclard's medical findings during his examination of Mr Caloc . Dr Cayol concluded:

“Having familiarised myself with Dr Kéclard's medical certificate and taken into account the information available from the questioning and the [medical] examination of 29 September [1988], I can accept that on 1 October 1988 [the applicant] presented a bruise on the right shoulder (after having fallen from an upright position) and pain when using his wrists and the lumbar region, problems which caused:

(a) total physical incapacity for three days;

(b) temporary total unfitness for work for nineteen days.

At present [the applicant] is, medically speaking, physically fit to carry on his usual activities without any changes.”

The Government did not dispute the medical findings of either Dr Kéclard or Dr Cayol .

It can thus be concluded that, when arrested by the police, Mr Caloc was not suffering from any medical complaint. He was furthermore given a clean bill of health by the doctor who ascertained that he was fit for detention some two and a half hours after he had been arrested and after he had been violently restrained from leaving the police station. When he left detention, however, Mr Caloc suffered from medical problems of such a serious nature that he was physically wholly incapacitated for three days and was unable to work for nineteen days.

Mr Caloc claimed that the police forced him to sit handcuffed on a chair – with his hands behind his back – for some nine hours without anything to eat or drink, and repeatedly hit him. Thereafter, he alleged, the police chained him to the wall in a dark cell. On release from detention, he immediately saw a duty doctor – who was not his own doctor – and complained of ill-treatment by the police.

This Court has repeatedly held that “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention” (see, in particular, the following judgments : Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V; Ribitsch v. Austria, 4 December 1995, Series A no. 336, pp. 25-26, § 34; and Tomasi v. France, 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108 ‑ 11). In other words, where he has injuries which were not there at the time of arrest, it is not for the applicant to substantiate his allegations of torture, inhuman or degrading treatment. The onus of proof shifts to the State to provide a “plausible explanation” of those injuries. The shift of the onus of proof is not taken into account by the majority in the present judgment .

Mr Caloc had no criminal record prior to the arrest and detention in issue. His case was a trivial one in which he was suspected of vandalism in the form of putting sand in the engines of two bulldozers owned by a private individual. The police had come to look for Mr Caloc at his home but, as he was not there, they had advised his wife that he was wanted at the police station. Mr Caloc therefore went to the police station himself. There, he was told by a policeman that his wife had told the police – some of whom were not fluent in the local creole language – that he was guilty of the suspected vandalism. Mr Caloc wanted to fetch his wife to the police station to have it clarified that this was a misunderstanding. When he made to go to find his wife, he was stopped by the police – the policeman in question was much bigger than Mr Caloc , weighing some 83 kg – and Mr Caloc fell to the ground.

Although external physical signs of violence may not immediately be visible, two crucial points have not, in my opinion, been proved and no plausible explanation was given for them by the Government.

Firstly, it has not been shown that the turmoil of the arrest, or rather the violence allegedly used when Mr Caloc was arrested, was at all significant and therefore to be recorded, let alone that it was capable of causing the medical complaints from which Mr Caloc suffered when he was released from detention. On the contrary, the doctor called upon by the police to ascertain whether Mr Caloc's health was compatible with detention less than two and a half hours after that violence, does not mention any such violence and states explicitly that Mr Caloc complains of nothing . Although some effects of violence may first become visible only hours after the bodily injury, it is unlikely that the physical impact would not be registered by the injured person himself to any degree worth mentioning under such circumstances.

Secondly, although a bruise later registered on Mr Caloc's right shoulder may not be incompatible with a fall in which the applicant hit the ground with his shoulder, there is no medical information to support a claim that the total physical incapacity for three days experienced by Mr Caloc after his release from detention and the additional unfitness for work for nineteen days were consequences of the turmoil at the time of the arrest. To say, as the Commission did, that the latter must have been due to the special requirements of Mr Caloc's work, is an assertion unsubstantiated by the facts of the case and therefore only speculation. On the other hand, Mr Caloc's own record of ill-treatment by the police – beatings included – are more compatible with his state of health on being released from detention. The burden of proof rests on the Government, who have not proved their version of the events on a balance of probabilities.

It may be added, lastly, that the serious consequences of the physical harm to Mr Caloc after his encounter with the police, his interrogation and his detention, are such that the Government remain responsible also for the possible cumulative effects of the treatment to which the police subjected Mr Caloc . Was the violence used to apprehend Mr Caloc proportionate, considering that he was suspected of a trivial act, had come on his own initiative to the police station, had no previous criminal record and only wanted to leave the police station to get clarification of a possible misunderstanding in a context where some of the policemen were ignorant of the local language? Did the police act responsibly when they asked a doctor to ascertain whether Mr Caloc was fit to undergo detention, without emphasising the violence used when Mr Caloc had been arrested, when one bears in mind that this violence had, in their opinion, been of such a serious nature that the authorities later alleged that it was in itself the cause of Mr Caloc's three days of total incapacity and nineteen days of unfitness for work? According to Rule 24 of the Standard Minimum Rules for the Treatment of Prisoners, a medical officer must see and examine every prisoner with a view particularly to the taking of all necessary measures. A common-sense inference from the fact that Dr Thomas made absolutely no reference to this violence, the applicant's fall, etc., in his report does not lend any persuasive weight to later statements by the authorities (based on a statement of late January 1992 by one of the policemen involved) that this violence was the sole reason why the doctor was asked to see and examine the applicant. If that had been the case, it could also have been expected that it would have been recorded that the applicant complained of nothing despite the fall and the violence. Furthermore, would it not in itself amount to inhuman treatment if in those circumstances the police used the opinion of the medical expert, whom they had not informed of the earlier violence, to justify Mr Caloc's detention notwithstanding their own knowledge? And, lastly, the Government are, in my opinion, also responsible for the cumulative effect on Mr Caloc's health of the violence used for apprehending him, the shortcomings of the medical examination of the person arrested, leading to his being declared fit to undergo detention, and the detention under the actual circumstances. The general principle in international law, based on the general consensus of contemporary thought, is that whenever the lawful use of force and firearms is unavoidable, law-enforcement officials shall “exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (see Principle 5(a) of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials).

My concerns in the case are not allayed when the Government plead that Mr Caloc was detained in a completely bare security cell with no holes in the walls other than for ventilation (the diameter of those holes was only slightly larger than that of a cigarette), so that Mr Caloc could not have been shackled to the wall as he submitted to the Court. Detention under such circumstances may in itself amount to degrading if not also inhuman treatment. The lack of light in the cell contravenes Rule 11 of the Standard Minimum Rules for the Treatment of Prisoners. Why the applicant had to be handcuffed when he was detained in this kind of cell also merits some explanation. The information provided by the Government does not suffice to bring this treatment of the applicant into line with Rule 33 of the Standard Minimum Rules, on instruments of restraint. Moreover, it would have been easy for the Government to provide the Court with photographs of the detention facility used, and not leave the Court with almost nothing but general references to all detention facilities in Martinique having been inspected and found to meet standard requirements.

To conclude, I find a violation of Article 3 in the present case, seeing that Mr Caloc entered the police facilities with a clean bill of health and left with serious medical complaints for which the Government have failed to give a plausible explanation showing that they are not responsible. The treatment may be qualified as inhuman and degrading.

[1] . Note by the Registry . The report is obtainable from the Registry.