JOINT PARTLY DISSENTING OPINION OF JUDGES PASTOR VILANOVA AND SERGHIDES

(Translation)

1. The majority conclude that the injuries inflicted on the applicant should be characterised generically as ill-treatment (see, for instance, paragraph 83 of the judgment). For our part, we would argue that they should be characterised as torture, as the applicant maintained. Point 3 of the operative provisions states that there has been a violation of the substantive aspect of Article 3 of the Convention on account of the national authorities’ failure to protect the applicant against ill-treatment by his cellmates. We voted in favour of that finding in so far as it does not come into direct conflict with the position which we defend. However, we opposed the quantification of non-pecuniary damage (see points 5(i) and 6 of the operative provisions), which we consider to be inadequate since it is broadly in line with the amounts awarded by the Court in cases of inhuman or degrading treatment.

2. We will now elaborate on the reasons which prompted us to consider that the applicant was tortured by fellow inmates, in breach of his right to have his integrity protected by the authorities.

3. It should be observed at the outset that the applicant spent a month in detention pending investigation because he tried to pay a toll with a ten ‑ euro banknote which the authorities initially thought to be counterfeit. They subsequently acknowledged that it was genuine. The applicant alleged that, while in detention, he had been tortured, beaten and raped. Unfortunately, the applicant’s allegations of torture and rape were not examined by the majority, even though the Court’s usual practice is to specify the type of ill ‑ treatment suffered in the body of the judgment and/or in the operative provisions. As a result, like the applicant, we are unable to address them directly.

4. Nevertheless, we believe that the proof of these allegations does indeed exist. The burden of proof in respect of the rape of the applicant (with its implications for the legal characterisation of the facts) should not lie solely with him, especially since the authorities did not conduct an investigation despite being legally bound to do so (Article 223 § 1 of the Code of Criminal Procedure). It can readily be inferred that the reason why the applicant did not report the incident immediately was because, as he explained, he was very afraid, particularly of the other prisoners who had threatened to kill him if he reported them (see paragraph 14 of the judgment). Nevertheless, it appears that the applicant was moved from his original cell following the meeting with his lawyer, who observed an appreciable change in his behaviour (see paragraph 20). The fact that the authorities agreed to the transfer means that a problem must have existed. It is well known that prisoners are not allowed to change cell unless there is a good reason for it. However, the fact is that no investigation, even of a summary nature, was instituted following that request. In our view, the lack of an investigation is further evidence, if any were needed, corroborating the applicant’s version of events.

5. As regards the burden of proof, our case-law is based on the existence of proof “ beyond reasonable doubt ”. This criterion stems from common law and requires conclusive proof in order to override the principle of the presumption of innocence. However, the Court’s practice is quite different, in that it has gradually relaxed the rigid nature of this principle, which comes from the sphere of criminal law. For instance, in the absence of direct proof confirming that an act was committed, notably when the alleged abuse occurred while the person concerned was in the custody of the State, our Court is content to rely on other evidence. Thus, it has used evidence arising from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, 6 April 2000), from primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts, and also from statements by international observers (see Merabishvili v. Georgia [GC], no. 72508/13, § 317, 28 November 2017).

One wonders, therefore, whether the expression “ beyond reasonable doubt ” should not be abandoned, as it sits ill with the judicial nature of the Court. It would seem much more sensible to us to use the test of proof on the balance of probabilities, at least in cases concerning Articles 2, 3 and 4 of the Convention.

6. In the instant case it seems clear to us that the applicant’s version was detailed, coherent and substantiated. He stated that he had been drugged and subsequently raped and had his head and eyebrows shaved by his cellmates. He added that the removal of his eyebrows was an outward sign that he had been sodomised (see paragraph 18 of the judgment). A double humiliation! Indeed, this fact was confirmed before a judge by four witnesses (see paragraphs 29-32 of the judgment). The Government, for their part, offered no explanation as to the relationship between the shaving and the alleged rape. Their disingenuous silence on the subject should count against them, especially since no effective investigation was carried out by the authorities into the applicant’s subsequent allegations of ill-treatment. Such an investigation was all the more vital since the right in issue here has a special ranking under the Convention (Article 3). Nor can the context be overlooked. In that connection, the CPT, in the reports following its visits of September 2004 (paragraphs 87 and 89 of document CPT/Inf(2006) 18, reproduced in paragraph 48 of the judgment) and June 2015 (paragraph 51 of document CPT/Inf(2016) 21, reproduced in paragraph 50 of the judgment), emphasised the very high level of inter-prisoner violence in the prison in question. All this evidence should have served to confirm the applicant’s version of events.

7. It is true that the applicant did not produce a medical certificate concerning possible rape. Nevertheless, we consider that this omission does not suffice to automatically cast doubt on his allegations. This is the approach taken by the Inter-American Court of Human Rights (see, inter alia , J. v. Peru , § 333, 27 November 2013, and Espinoza Gonzales v. Peru , § 152, 20 November 2014), and with which we agree. We cannot overlook the existence of several factors which, in combination, justify this omission: (1) the fear of reprisals, (2) the shortage of doctors in the prison (paragraph 118 of document CPT/Inf(2006) 18 reports the presence of one doctor to take care of 1,200 prisoners), (3) the failure of the prison authorities to act when injuries to prisoners were recorded (paragraph 89 of the report), and (4) the fact that rape does not necessarily leave physical traces, especially after some time has elapsed.

8. The likelihood that the applicant was raped, an extremely serious and cruel act, combined with the other ill-treatment to which he was subjected, should have led the Chamber to find that acts of torture were committed. Even if no rape took place, it could be argued that the shaving of the applicant’s eyebrows, coupled with the cruel stares of other people, caused him acute mental distress amounting to an act of torture.

9. One last factor establishes a link between the inhuman experience undergone by the applicant and the State’s responsibility. The applicant contended before our Court that all these acts of violence were carried out under the orders or with the tacit approval of the prison authorities, particularly on account of his Croatian nationality. Once again, the Government omitted to respond to this complaint. However, they could not have been unaware of the aftermath of the Balkans war (1992-95) and the atrocities committed at that time. The prison authorities therefore had a duty to prevent possible inter-ethnic tension. Moreover, in its 2006 report the CPT referred to complaints concerning the ill-treatment of prisoners on account of their nationality:

“At Sremska Mitrovica Penitentiary Reformatory, the CPT’s delegation received a considerable number of allegations of physical ill-treatment by staff. Most of the allegations related to before 2004. Nevertheless, the delegation heard a number of recent allegations of slaps and kicks, as well as of verbal abuse, in particular of persons of Roma origin, foreign prisoners and members of national minorities in Serbia” (paragraph 83 of the CPT report CPT/Inf(2006) 18).

Unfortunately, this aspect of the issue is absent from the majority’s analysis, in disregard of the Court’s case-law on the subject (see Premininy v. Russia, no. 44973/04, § 87, 10 February 2011, and Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, §§ 69-71, 27 May 2008).

10. We are of the view that the conclusion reached by the majority, who acknowledge the State’s responsibility under the substantive aspect of Article 3, is not entirely consistent. One cannot on the one hand accept that the applicant’s claims are credible (see paragraph 83 of the judgment), including his account of being shaved and being made to sing Serb nationalist songs, while at the same time reaching a finding that falls short of his claims (by ruling implicitly that he was “only” subjected to inhuman or degrading treatment), without offering an express and convincing explanation. In sum, this human tragedy was not subjected to the meticulous scrutiny that was fully warranted in the circumstances. Therefore, this dissenting opinion is about more than merely questioning the award made for non-pecuniary damage.

11. The principle of effectiveness, which is inherent in the Convention, including in the provisions of Article 3, cannot be satisfied if the Court does not appropriately ascertain the true nature of an alleged violation under this Article and characterise it accordingly as torture or inhuman or degrading treatment, having regard to the facts of the particular case before it and the degree of seriousness of the said violation. Failure for the Court to do so, as, in our humble view, happened in the present case, will result in: (a) not giving the right under Article 3 its due and fullest weight and effect consistent with its wording and aim and purpose, and (b) awarding an insufficient amount of just satisfaction for non-pecuniary damage under Article 41 of the Convention.

12. To sum up, three serious problems are combined here: the fact that the ill-treatment in question is not expressly characterised in the judgment, the ongoing relevance of the standard of proof “beyond reasonable doubt” and, lastly, the omission to consider a possible discriminatory motive based on the applicant’s nationality.