CONCURRING OPINION OF JUDGE KJØLBRO

1 . I do not share the views expressed in paragraph 49 and 57 of the judgment, in which the Court is criticizing the medical report issued in respect of the applicant.

2 . Medical reports are very important in cases concerning alleged ill ‑ treatment in violation of Article 3 of the Convention. Medical examination of persons held in police custody serves as a guarantee against ill-treatment and an effective means to secure evidence and thereby secure accountability for ill-treatment. It is also important that medical examinations are performed by independent doctors, and that the examination is thorough and in conformity with good practice for doctors. In this context the standards recommended by the CPT and the guidelines set out in “the Istanbul Protocol”, as also recognized in the Court ’ s case ‑ law, are very important (see the cases cited in paragraphs 49 and 57 of the judgment).

3 . However, it does not follow from this that any medical examination that does not fully meet all the standards recommended by the CPT and “the Istanbul Protocol” may be criticized by the Court in cases concerning an alleged violation of Article 3 of the Convention. In other words, the fact that a medical report does not mentioning “explanations given by the patient as to how the injuries occurred and the opinion of the doctor as to whether the injuries are consistent with those explanations” ( Akkoç v. Turkey , nos. 22947/93 and 22948/93, § 118, ECHR 2000 ‑ X) does not in itself justify criticizing the medical report. In my view, it must depend on the specific circumstances of the case whether the medical report can be criticized by the Court, either in the context of assessing whether the ill-treatment has been proven “beyond reasonable doubt” (the substantive limb of Article 3) or in the context of an assessment of the effectiveness of the investigation performed at domestic level (the procedural limb of Article 3).

4 . On 21 October 2006, shortly after 11.15 a.m., the applicant was arrested by police officers. Less than 15 minutes later, at 11.30 a.m., the applicant was examined by a doctor, who described injuries observed (paragraph 11 of the judgment). The sections in the medical report entitled “conditions of examination”, “information regarding the incident”, “the complaints of the person examined” and “findings of the psychiatric examination” were not completed (paragraph 14 of the judgment).

5 . There is no information in the case to suggest that the applicant made any kind of complaints about ill-treatment when she was examined by the doctor. Nor has the applicant in her complaint to the Court alleged that she informed the doctor about the alleged ill-treatment during her arrest.

6 . Furthermore, when the applicant wa s questioned by the police at 1 p.m., that is approximately 1 ½ hours after the arrest, she refused to make statements to the police (paragraph 12 of the judgment). It was not until 23 November 2006, more than a month after the arrest, when the applicant was questioned by the public prosecutor as a suspect, that she “described the ill-treatment and ... asked the public prosecutor to prosecute the police officers responsible ...” (see paragraph 19 of the judgment).

7 . Under those circumstances, I do not find any basis for criticizing the medical reports issued. In my view it amounts to an excessive burden to require medical examinations to include, without exception, “explanations given by the patient as to how the injuries occurred and the opinion of the doctor as to whether the injuries are consistent with those explanations”. This must, in my view, depend on the specific circumstances of the case, including explanations given by or allegations made by the person arrested or the circumstances of the arrest.

8 . Therefore, I respectfully distance myself from the criticism expressed by the Court in paragraphs 49 and 57 of the judgment. But apart from that I fully agree with the judgment of the Court.