PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. With all due respect to the majority, I find myself unable to share their view that in the present case there was a violation of Article 3 of the Convention only in its procedural limb and not also under its substantive limb.

2. It is an undisputed fact that the applicant, then aged 16, was detained by the police and shortly after his release was found by a doctor to have a bruised left cheek, which he had not had before his detention. The respondent State, therefore, had, under the circumstances, the burden of proof to provide a reasonable, credible and convincing explanation as to what had happened. In Samüt Karabulut v. Turkey ( no. 16999/04, § 42, 27 January 2009) the Court noted: “Article 3 does not prohibit the use of force in certain well-defined circumstances, such as to effect an arrest. However, such force may be used only if indispensable and must not be excessive ... ”; but it ultimately concluded (ibid., § 43): “the Government have failed to furnished convincing or credible arguments which would provide a basis to explain or justify the head injury sustained by the applicant during his arrest, at the end of a peaceful demonstration”.

3. In Βouyid v. Belgium ([GC], no. 23380/09, § 83, ECHR 2015) the Grand Chamber clearly held as follows:

“that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing the facts which cast doubt on the account of events given by the victim ... In the absence of such explanation the Court can draw inferences which may be unfavourable for the Government ... ”.

As the Court went on to explain (ibid., § 83 in fine ): “[t]hat is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them”. In that case, the Court found proven the fact that the bruising on the applicants ’ faces had resulted from a slap inflicted by the police officers while they were under police control (ibid., § 98). This reversal of the burden of proof in cases where an individual is taken into police custody in good health but is found injured at the time of release can also be explained by the fact that it is usually difficult for the applicant to furnish sufficient evidence to convince the Court of police misconduct.

4. In Bouyid (ibid., § 82) the Court held that for allegations of ill-treatment, the standard of proof “beyond reasonable doubt” was to be adopted. It is obvious that the same standard should be adopted when the burden of proof is reversed, as in the present case. I believe that the principle that the Convention is a vital and living instrument should apply – and the Bouyid case is a good example of this – not only in relation to the substantive law but also in relation to the procedural law and the law of evidence, and the development of all these aspects should be in parallel. The judgment in the Bouyid case not only contributed to furthering the guarantee of the right under Article 3 to be protected from ill-treatment, but also elucidated the issue of the evidential proof in such matters by leaving no doubt about it. If in the reversal mechanism the standard of proof were to retreat or diminish, then there would be no justification to talk about reversal. This view is supported, by analogy, by the clear jurisprudence on the matter in relation to the right to life under Article 2 of the Convention. In Velikova v. Bulgaria (no. 41488/98, § 70, ECHR 2000 ‑ VI) the Court clearly held that, where an individual was taken into police custody in good health and was later found dead, there was a reversal of the burden of proof and the State, on which it lay, had to provide a satisfactory and convincing explanation based on the standard of proof “beyond reasonable doubt”. This principle applies also, a fortiori , in relation to Article 3 , because unlike the right under Article 2, the Article 3 right is absolute, applying always without any exceptions or possible defences for the State.

5. In view of the above jurisprudence, the question arises whether, under the circumstances, the respondent State, on which the burden of proof lay, provided a reasonable, credible and convincing explanation of what had happened. On the one hand, and similar to what was alleged by the respondent State in Samüt Karabulut ( cited above ), the Government in the present case averred that the applicant ’ s injury was caused by the measures used to overcome his resistance during his arrest. The applicant, on the other hand, contended that during his preliminary questioning at the county police station he had been beaten and slapped on the face by police officers, and submitted that his injuries did not correspond to the coercive means which the Government declared to have been used on him, i.e. forms of restraint. In paragraph 59 of the judgment, the majority find the explanation offered by the Government a plausible one, and accordingly, they consider that it has not been established that the applicant was actually exposed to slapping on the face during his preliminary questioning.

6. As has been seen above, according to the jurisprudence, the standard or measure of proof incumbent on the respondent State is very high – beyond reasonable doubt – and it thus has to offer a reasonable, credible and convincing explanation. A plausible or possible explanation does not reach the evidential standard or measure required by the jurisprudence, which requires that the explanation be convincing. A plausible explanation has only the appearance of truth or reasonableness as opposed to a convincing explanation, which is effective as proof or evidence, containing the element of conviction or firm persuasion as to the truth of an explanation by rejecting any other. In other words, a plausible argument can be defeated by a convincing one. At paragraph 72 of their judgment the majority, while dealing with the allegations of a violation under the procedural limb of Article 3 of the Convention, rightly consider that the allegations of ill-treatment of the applicant “were sufficiently credible to give rise to an obligation on the part of the authorities to investigate them in compliance with the requirements of Article 3 of the Convention”. Also in paragraph 71 of the judgment the Court, again while dealing with the allegations of a violation under the procedural limb of Article 3, rightly says that it is of the opinion that, “in assessing the credibility of the applicant ’ s allegations, it must take into account that the applicant was a minor and that there were misgivings as to the regularity of his detention and as to whether his legal guardians had properly been notified of his custody, especially as all of those factors must have been known to the authorities at the relevant time”.

7. Irrespective of whether the examination of the two limbs of Article 3, substantive and procedural, are or should be independent of each other, the above unanimous finding of the Court in paragraph 72 of its judgment, while dealing with the procedural limb of Article 3, that the applicant ’ s allegations were “sufficiently credible”, should not be ignored when examining the substantive limb of Article 3 and dealing with the explanation given by the Government. There should be some consistency and coherence in the findings of the Court in relation to allegations which are relevant when examining both limbs of Article 3. One wonders how the explanation given by the Government would reach the standard required by the jurisprudence such as to be “convincing” when that explanation was found by the majority only to be “plausible”, while the explanation given by the applicant was found by the Court to be “sufficiently credible”. How, after all, could the Government ’ s explanation be “convincing” when it was found by the Court that there was a lack of a proper investigation into the matter by the authorities, thus violating Article 3 in its procedural limb? When balancing or weighing up the two different explanations, those which are “sufficiently credible” should logically carry more weight and persuasion than those which are simply “plausible”, no matter whether the standard of proof is beyond reasonable doubt or less strict.

8. Furthermore, I consider that the explanation given by the Government based on its own record, simply stating that on 18 December 2010 “coercive means were used in accordance with the law” was not even “plausible”, as the majority found. It was general, vague and unsubstantiated and should have been rejected, as the Court did in Samüt Karabulut ( cited above ).

9. It was the unanimous finding of the Court (paragraph 77) that instead of the authorities investigating the applicant ’ s allegation on their own initiative, they appear to have shifted the burden of asserting his claims to the applicant himself. This is exactly what the Government did in pursuing their stand before this Court as regards the substantive limb of Article 3; thus they did seek to shift the burden of their evidential duty to the applicant, something which I find unacceptable.

10. Challenging the applicant ’ s credibility , the majority found (paragraph 52 of the judgment) that “the medical report indicates that the applicant alleged that he received a slap on the ‘ right half of a cheek ’ , while the doctor ’ s finding of a bruise refers to ‘ cheek on the left ’ ”. While being fully aware that this Court is not, and should not take on the role of, a first instance court of fact, I will comment on this finding of the majority by making a reference to the two relevant medical reports in the case file. Thus I will have the opportunity to examine the content of these reports, which are of crucial evidential importance. These reports, which are written in the Slovakian language and bear the same date, 19 December 2010, are signed by the same doctor and concern the medical condition of the applicant.

11. The first medical report is entitled “Medical Report – Finding” (from now on referred to as the “first report”) and begins by stating: “Allegedly beaten by the police officers yesterday. Received a slap on the right half of a cheek”. Immediately after, probably describing the finding of the doctor (“Obj.”) the report goes on as follows: “no haematoma present, palp. [?] sensitive cheek, / minim. swollen cheek, / to the left, ears nose, DU [?] without discharge”. The next sentence, probably referring to the diagnosis of the doctor: “Dg.: contusio faciei 1.sins”, is not in the Slovakian language and is of unknown meaning to me. At the end of the report it is stated: “Recommended cold compress”. To the bottom right of the medical report there are, in handwriting, two sentences, the meaning of which is undecipherable, apart from the two abbreviated words “orient. neurolog.” probably referring to “neurologické orientácia“, in English “neurological orientation”. On basis of the above reference to the neurological orientation and our inability to understand the context in which it is used, I do not share the certainty of the majority ’ s observation in paragraph 54 of the judgment that the doctor ’ s findings “contain no elements, such as a state of shock (see, a contrario , Bouyid , cited above §§ 12 and 93), fatigue, dehydration or anything else to corroborate his allegations”.

12. The majority ’ s interpretation of the doctor ’ s first report is that the doctor found no marks on the applicant ’ s right cheek. But such a finding is not expressly stated in this report. It would be odd for a medical report not to say anything about the specific complaint, i.e. as to what the doctor did or did not find on the applicant ’ s right cheek, and instead to state only what the doctor found on the applicant ’ s left cheek or what the doctor did not find on the applicant ’ s eyes and nose. I believe that the most probable meaning of the doctor ’ s findings in the first report is this: “No haematoma. A sensitive to palpation right cheek. A swollen left cheek. Nose and eyes without discharge”. This interpretation is supported by the fact that the word “lica” meaning “cheek”, is used twice in the doctor ’ s findings in the first report: in the first place it must refer to the right cheek and in the second to the left cheek. It is not proper, I believe, for important issues such as the alleged violations to be decided on uncertainties and ambiguities of documents and to draw conclusions from them that are adverse for an alleged victim. In case of doubt, I believe that the Court has a duty, under the Convention, to safeguard and secure the core of the substantive right of the alleged victim, i.e. his right to be free from degrading treatment, by following the principle in dubio in favoram pro libertate.

13. The other medical report entitled “Medical Report – Preliminary” (from now on referred to as the “second report”) is a standardised form – a printed questionnaire – containing twelve questions. Answers to only five of the questions, however, are given by the doctor, the rest remaining unanswered. The answers given by the doctor to questions 1, 2, 4, 8 and 11 are the following. As to the first question, probably on the findings of the doctor, the answer was: “A bruised cheek on the left”. As to the second question on the patient ’ s submission about the origin and manner of infliction of the injury, the answer was: “Allegedly beaten by a police officer”. As to the fourth question “could the injury have been sustained as alleged?”, the answer was: “Yes”. As to the eighth question “would the injury have permanent or temporary consequences?”, the answer was: “An expert to determine this after a year”. As to the eleventh question on the time needed for recovery, the answer was: “Slight. Recovery time below 7 days”.

14. Contrary to the majority, I take very seriously the answers given to questions 4 and 8 in the second medical report. I also take seriously the fact that the answer given to question 2 does not confine the applicant ’ s complaint to any particular cheek. It is to be noted also that in the first report it is stated, apart from the applicant ’ s specific complaint about a slap on the “right half of a cheek”, that he was beaten by the police officers, without any further explanation. In paragraph 55 the majority note “that there is no indication in the doctor ’ s conclusions or otherwise that [the applicant ’ s injury] could only have been caused by a slap in the face as alleged by the applicant or, conversely, that it could not have been caused by the means referred to by the Government”. For me, however, what is more important is the opinion of the doctor that the injury could have been sustained as alleged by the applicant (answer to question 4 of the second medical report). The doctor ’ s finding about the left cheek in answering question 1 is, I believe, in line with what the doctor said in answering questions 2 and 4. It is quite probable that what the doctor said in answering the first question is his main finding, avoiding here the additional mention that the other cheek was found to be sensitive – a minor finding perhaps for the doctor, but certainly an important one for the Court. A sensitive cheek does not necessarily have to be swollen. On the other hand, there would be no need to describe the same cheek as both swollen and sensitive. It can be argued, in any event, that the first report, dealing with the “finding”, carries more weight than the second, which is preliminary in nature.

15. The applicant submitted that he had been subjected to slapping on the face and on the head until he confessed. A specific – and probably his main – complaint, however, seems to be a slap he had received on his right cheek, an allegation raised not only before the Court, but also before the domestic authorities and the doctor who examined him. I do not therefore see that there is any inconsistency in regard to this part of his story as the majority so assess. Besides, the doctor who examined him had found, according to the most reasonable – in my view – interpretation of his first report, that something happened to both of his cheeks: the right cheek was sensitive and the left cheek was swollen and bruised. Therefore, there is again nothing inconsistent between the doctor ’ s finding and the applicant ’ s allegation.

16. There does not seem to be any expert medical evidence before the Court that a slap on the face, even if strong, could result unavoidably in a bruised cheek (as was the condition of the applicant ’ s left cheek) and probably not to sensitivity (as was the condition of applicant ’ s right cheek) or to any bodily harm, or even any sign of maltreatment. Here one cannot therefore jump to the conclusion that the applicant had not suffered a slap on his right cheek, simply because no hematoma or bruising was found on it. Apart from the physical strength of the assaulter and the forcefulness of the slap, for a slap to leave signs of its appearance on a face, many other factors could probably be relevant, e.g. the anatomy of the victim ’ s face, whether the victim was young with a soft face, whether the slap landed mainly on the bone or the flesh, the manner or method of slapping used and the training of the assaulter to use violence without leaving signs on the body.

17. One would not expect from anyone, especially from a young person of the applicant ’ s age, who was allegedly ill-treated and had suffered slapping on his face, to remember or recognise with the utmost precision which slap was stronger than the other and on which cheek it was received, or to be able to recognise, in the heat of the moment, the difference in each actual slap he had received on one cheek from the effect that the slap had on the other cheek. Even if there were some degree of exaggeration in the applicant ’ s story as to the degree of his maltreatment, which, in any event, can be understood, taking into account his psychological condition due to the circumstances of his arrest and detention, what happened to him does not seem to be an illusion or a lie. On the contrary, his story appears to be genuine. It would not be to his benefit to argue, if he believed it to be true, that the stronger slap he had received, was on the part of his face showing the lesser external problem or appearance of maltreatment.

18. In any event, regardless of its forcefulness, a slap on the face of the person receiving it is always an assault to human dignity, and is, thus, degrading treatment per se , not because of the bodily harm, if any, it may cause to the victim, but because it disrespects human dignity and value, by humiliating and violating the human autonomy and social identity of a person. As the Court profoundly held in Βouyid (cited above, § 81), the Article 3 prohibition of degrading treatment “is a value of civilisation closely bound up with respect of human dignity”. It also eloquently held (ibid., § 101):

“Any interference of human dignity strikes at the very essence of the Convention. For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question”.

19. The Court in Bouyid went further (ibid., § 104) and examined the impact a slap may have on a person: “ A slap has a considerable impact on the person receiving it. A slap to the face affects the part of the person ’ s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses – sight, speech and hearing – which are used for communication with others ...” It continued (ibid., § 105), by reiterating that “it may well suffice that the victim is humiliated in his own eyes for there to be degrading treatment within the meaning of Article 3 of the Convention ... Indeed, it does not doubt that even one unpremeditated slap devoid of any serious or long-term effect on the person receiving it may be perceived as humiliating by that person”. The Court went on to find this “particularly true” (ibid., § 106):

“when the slap is inflicted by law-enforcement officers on persons under their control, because it highlights the superiority and inferiority which by definition characterise the relationship between the former and the latter in such circumstances. The fact that the victims know that such an act is unlawful, constituting a breach of moral and professional ethics by those officers and – as the Chamber rightly emphasised in its judgment – also being unacceptable, may furthermore arouse in them a feeling of arbitrary treatment, injustice and powerlessness ... ”.

All the above considerations apply also to the facts of the present case.

20. Proof of bodily harm would be relevant in deciding the severity of the violation and classifying it as torture or inhuman treatment or degrading treatment under Article 3. But as regards the latter type, no bodily harm is required to raise an issue under Article 3. This point was made clear in Bouyid (§ 87):

“Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 ... ”.

Thus, even if, supposedly, there was no sensitivity on the applicant ’ s right cheek or any sign of maltreatment, it does not follow that there was no slap on this cheek. In any event, it should be reiterated that the applicant alleged that he was beaten by police officers and the fact remains that the doctor assessed in his second report that the bruising to the left cheek could have been sustained as the applicant alleged.

21. The Court in the same case ( Bouyid ) referred also to the vulnerability of persons under the control of the police as an additional reason for being treated in a more humane way – a positive duty incumbent on the authorities. Specifically, it held as follows ( § 107):

“Moreover, persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning – as in the applicants ’ case – and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability. The authorities are consequently under a duty to protect them ... In inflicting the humiliation of being slapped by one of their officers they are flouting this duty”.

22. The above-mentioned positive duty or obligation of the authorities to protect persons in a vulnerable situation being held in police custody is even more imperative where the victim is a young person, like the applicant in the present case and one of the applicants in Bouyid . On this particular consideration of the vulnerability of minors, the Court held in Bouyid as follows (ibid., § 109):

“that the first applicant was ... a minor at the material time. Ill ‑ treatment is liable to have a greater impact – especially in psychological terms – on a minor ... than on an adult. More broadly, the Court has on numerous occasions stressed the vulnerability of minors in the context of Article 3 of the Convention. ... The need to take account of the vulnerability of minors has also been clearly affirmed at the international level ...”

23. Contrary to the above principle, the authorities, in the present case as in Bouyid , had omitted to fulfil both their positive and negative duties (substantive and procedural) to protect an under-age applicant.

24. I find that the respondent State has not satisfied its evidential burden as provided by the jurisprudence, with the result that the applicant ’ s injury to his left cheek and the swelling on his right cheek could be attributed to the authorities ’ violence during his preliminary questioning and not to restraint during his arrest.

25. In conclusion, I find that there has been a violation of Article 3 of the Convention in its substantive limb. This finding would have increased the amount of non-pecuniary damage, the determination of which, however, could only be theoretical, since I am in the minority.