jOINT PARTLY DISSENTING OPINION OF JUDGES PASTOR RIDRUEJO, BONELLO, MAKARCZYK, TULKENS, STRÁŽNICKÁ, BUTKEVYCH, CASADEVALL AND ZUPANČIČ

(Translation)

The majority of the Court have concluded that there has been no violation of Article 3 of the Convention as regards the applicant's allegations of ill-treatment in Pianosa Prison. We regret that we are unable to share that opinion.

1. The majority of the Court considered that the applicant has not proved “beyond all reasonable doubt” that he was subjected to ill-treatment in Pianosa as he alleged. While we agree with the majority that the material produced by the applicant constitutes only prima facie evidence, we are nonetheless mindful of the difficulties which a prisoner who has suffered ill ‑ treatment on the part of those responsible for guarding him may experience, and the risks he may run, if he denounces such treatment. Indeed, the applicant stated that the Pianosa warders instructed the prisoners not to talk about the treatment they suffered, whether among themselves or with their lawyers, and threatened them with reprisals if they did so (see paragraph 29 in fine of the judgment ). The applicant stated that on at least one occasion he was subjected to reprisals (see paragraph 29 of the judgment ). In a context such as that described by the Livorno judge responsible for the execution of sentences in his report of 5 September 1992 (see paragraph 42 in fine of the judgment ), it is understandable that prisoners would not dare to ask to be seen by a doctor immediately after being subjected to ill-treatment, especially as the doctor might have links with the prison authorities.

We are accordingly of the view that the standard used for assessing the evidence in this case is inadequate, possibly illogical and even unworkable since, in the absence of an effective investigation, the applicant was prevented from obtaining evidence and the authorities even failed to identify the warders allegedly responsible for the ill-treatment complained of. If States may henceforth count on the Court's refraining in cases such as the instant one from examining the allegations of ill-treatment for want of sufficient evidence, they will have an interest in not investigating such allegations, thus depriving the applicant of proof “beyond reasonable doubt”. Even though we consider that in some cases a procedural approach may prove both useful and necessary, in the type of situation under consideration it could permit a State to limit its responsibility to a finding of a violation of the procedural obligation only, which is obviously less serious than a violation for ill-treatment. In addition, we consider that the matters that led the Court to hold that there had been a procedural violation of Article 3 (see paragraphs 130-35 of the judgment ) are in themselves sufficiently clear and evident to justify finding a violation of the substantive point.

We consider that where some or all of the events in issue can be known only by the authorities, as when the victim is in prison, serious presumptions arise that the injuries and ill-treatment were inflicted during detention. In such cases, it may even be considered that the burden of proof is on the authorities to provide a satisfactory and convincing explanation. In any event, the standard to which the applicant must prove his case is lower if, despite being asked, the authorities have failed to carry out effective investigations and to make the findings available to the Court.

Lastly, it should be borne in mind that the standard of proof “beyond all reasonable doubt” is, in certain legal systems, used in criminal cases. However, this Court is not called upon to judge an individual's guilt or innocence or to punish those responsible for a violation; its task is to protect victims and provide redress for damage caused by the acts of the State responsible. The test, method and standard of proof in respect of responsibility under the Convention are different from those applicable in the various national systems as regards responsibility of individuals for criminal offences (see the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, Opinion of the Commission, p. 37, § 110).

2. Furthermore, not all of the types of treatment complained of by the applicant before the Court would have left physical or mental scars detectable on medical examination. There would not necessarily have been any signs left by insults, threats or acts of humiliation, by being kept handcuffed during medical examinations, or being required to run along a slippery corridor leading to the exercise yard while warders hurled insults. Such treatment is nonetheless liable to damage an individual's mental integrity and, accordingly, may come within the scope of Article 3 of the Convention.

The applicant's assertions concerning the psychological ill-treatment which he allegedly suffered are corroborated by other evidence as to the general situation obtaining in Pianosa Prison. Thus, the report of the Livorno judge responsible for the execution of sentences (see paragraph 42 of the judgment ), drawn up when the applicant was in Pianosa , denounced the practice of “running to the exercise yard” and depicted a climate of violence. The ensuing investigations led to the prosecution of two warders, though there was insufficient evidence on file to secure a conviction (see paragraph 49 of the judgment ). Furthermore, in his note of 12 October 1992, the Director-General of the Prison Administration Department (see paragraph 46 of the judgment ) did not deny that prisoners had been victims of violent episodes at Pianosa Prison, but attributed the situation to “logistical” problems resulting from the simultaneous and unscheduled transfer of a large number of prisoners and the consequent need for restructuring. In addition, in his note of 12 December 1996 (see paragraph 50 of the judgment ) the President of the court responsible for the execution of sentences explained that the “abuse and irregularities” witnessed at Pianosa resulted from the fact that warders had been recruited from other prisons and given “ carte blanche ”.

3. We also attach particular importance to the fact that, before the Commission, the Government acknowledged that the applicant had been ill ‑ treated and contested none of his allegations concerning the prison warders' conduct. Furthermore, in their observations before the Commission, the Government themselves described that conduct as “appalling”. Indeed, it was largely on the basis of the Government's admission of the facts that the Commission concluded in its report that there had been a violation of Article 3 (see paragraph 120 of the Commission's report). Nor did the Government deny before the Court that the applicant had been subjected to the alleged treatment. They merely contended that the treatment had not attained the level of severity required to constitute a violation of Article 3.

In the light of the foregoing, we consider that there were sufficiently strong, precise and concordant inferences before the Court for it to find that the applicant was subjected to the ill-treatment of which he complained.

We are also satisfied that that treatment, owing to its repugnant nature and duration, was such as to cause the applicant fear, anxiety and feelings of inferiority capable of humiliating and debasing him and that such emotions were not the inevitable consequence of imprisonment.

Consequently, we consider that the treatment complained of caused the applicant humiliation and debasement that attained the level of severity required to come within the concept of “inhuman and degrading treatment” within the meaning of Article 3 and that the respondent State's responsibility is engaged.

[1] 1. Note by the Registry . Protocol No. 11 came into force on 1 November 1998.

[2] 1. Note by the Registry. The full text of the Commission’s opinion and of the separate opinion contained in the report will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but in the meantime a copy of the Commission’s report is obtainable from the Registry.