PARTLY JOINT DISSENTING OPINION OF JUDGES GYULUMYAN AND POWER

1. We agree with the majority ' s findings in relation to violations of Articles 2, 3 and 13 in this case. However, we cannot agree that it is unnecessary to examine the applicant ' s complaint in relation to Article 14 taken together with Articles 2 and 3 of the Convention. The applicant ' s brother was a 27 year Roma who entered police custody in perfect health, suffered appallingly as a result of police brutality and died under police surveillance without the comfort or the presence of his next of kin. The applicant claims that his brother ' s Roma ethnicity was a factor in the ill- treatment and death and that the failure to open an investigation in respect of the police officers responsible for his death was inconsistent with the requirement of non-discrimination as set forth in Article 14 taken together with Articles 2 and 3.

2. We take the view that having regard to the particular circumstances of this case, the authorities were under a positive obligation to investigate whether racist motives were behind the ill-treatment and death to which Gabriel Carabulea was subjected. Their failure to conduct such an investigation leads us to conclude that there has been a procedural violation of Article 14 in conjunction with Articles 2 and 3 of the Convention.

3. Two distinct considerations inform our view. Firstly, we are cognisant of the abundant evidence of an internationally recognised problem of discrimination against Roma within Romania . Taken alone, that should have triggered an obligation on the part of the authorities to open an investigation in respect of the police officers responsible for the death of this young Roma. Additionally, we are mindful of the difficulties which the applicant faces in proving that discrimination based on his brother ' s ethnicity was a factor in the events that transpired. Consequently, we consider that where a state is the subject of persistent criticism from international quarters for the manner in which it treats an ethnic minority, justice may require that the burden shifts to such a state to show that discrimination formed no part of the events in respect of which complaints are made. In other words, as part of its overall obligation to respond to and investigate claims of discrimination against Roma in custody, the Romanian state ought to be in a position to answer the applicant ' s allegations by reference to relevant and reliable information which shows that members of the Roma community who enter police custody are treated no differently than other members of Romanian society. Their failure to discharge that burden in this case gives rise, in our view, to an issue under Article 14 in conjunction with Articles 2 and 3 of the Convention.

International Recognition of Discrimination Against Roma in Romania

4. There can be little doubt but that the respondent state is aware of repeated international expressions of concern about discrimination of Roma in Romania . There exist numerous and well documented international reports from a variety of bodies raising concerns about the repeated failure of the Romanian authorities to remedy instances of anti-Roma violence and to provide redress for discrimination. [1]

5. For example, the Reports and Observations of the Committee on the Elimination of Racial Discrimination that monitors the implementation of the United Nations Convention on the Elimination of All Forms of Racial Discrimination expressed particular concern about the situation of Roma in Romania . Additionally, the European Commission against Racism and Intolerance (ECRI) of the Council of Europe rel eased its first report on Romania in 1999 and found that violent acts were publicly committed against members of various minority groups, particularly Roma/Gypsies. That Commission appealed for an intensification of training in the administration of justice targeting, in particular, teachers in military and police academies. In its subsequent reports of 2001 and 2005 the ECRI noted that serious problems persisted throughout the country as regards police attitudes and behaviour towards members of the Roma community. More specifically, it deplored that cases of police violence against members of the Roma community continued to occur and had led to serious and sometimes lethal injuries and it advocated an independent and investigative mechanism to inquire into police abuses. Whilst , admittedly, its 2005 report noted a decrease in the level of police violence against members of the Roma community it nevertheless stressed that the Roma community continued to be discriminated against in all areas.

6. In addition to concerns expressed at international level, the Court has previously noted awareness of the problem of discrimination against Roma at domestic level. In Cobzaru v. Romania ( no. 48254/99, § 97, 26 July 2007 ) , for example, the Court observed that the numerous anti-Roma incidents which often involved State agents following the fall of the communist regime in 1990 were known to the public at large as they were regularly covered by the media. It also observed that other documented evidence of repeated failure by the authorities to remedy instances of such violence was known at domesti c level.

7. Furthermore, there are repeated references in this Court ' s judgments and the respondent Government has, indeed, admitted to the fact of law enforcement agents having inflicted injuries on Roma, participated in acts of racially motivated violence and destruction, uttered racial verbal abuse, and failed to conduct meaningful investigations into these incidents (see, among others, Stoica v. Romania, no. 42722/02, §§ 80, 81 and 132, 4 March 2008; Gergely v. Romania , no. 57885/00, §§ 16 and 25, 26 April 2007; Cobzaru , cited above, § 101; and Moldovan and Others (no. 2), no. 1138/98 and 4320/01, § 140, 2 July 2005).

8. Having regard to the information contained in international reports, the awareness of the problem at domestic level and the Court ' s previous findings in its case law, we consider that, in the circumstances of the present case the authorities had a duty to establish whether discrimination based on Roma ethnicity played a ny role in the events leading to the applicant ' s brother ' s death. Indeed, we note that in Cobzaru (cited above, § 98) t he failure on the part of the prosecutors to verify whether the policemen who inflicted violence had been involved in previous similar incidents or whether they had been accused previously of displaying anti-Roma sentiment together with the state ' s failure to advance any justification for this omission was an important factor to which the Court had regard in finding a violation of Article 14. It is difficult to see why the same approach was not followed in this case and the majority ' s reluctance so to do is regretted.

The Shifting Burden of Proof and Discrimination Against Roma

9. Discrimination on account of a person ' s ethnic origin is a form of racial discrimination and is a particularly invidious kind which, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII; and Timishev v. Russia , nos. 55762/00 and 55974/00, § 56, ECHR 2005-XII)). That people of Roma ethnicity constitute a particularly vulnerable minority has already been noted by the Court which held that special consideration should be given to their needs both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 ‑ I; and Connors v. the United Kingdom , no. 66746/01, § 84, 27 May 2004).

10. Absent evidence of actual verbal racist abuse, a person in the position of the applicant is in an almost impossible situation in proving that discrimination based on his brother ' s ethnicity was a factor in the events that transpired. In the normal course of events it is incumbent upon the one who alleges to prove. However, t he Court has previously recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (see AktaÅŸ v. Turkey (extracts) , no. 24351/94, § 272, ECHR 2003 ‑ V ) . Where fundamental human rights are at issue the Court has not hesitated to develop its evidentiary law in order to as sist it in its search for truth, establish ing, where necessary, a shift in the burden of proof from the applicant onto the Government (see Tomasi v. France , 27 August 1992, § § 108-111 , Series A no. 241 ‑ A ) . In our view, such a shift is appropriate in the circumstances of this case precisely because it is the authorities and not the applicant who can access the relevant information which could verify or rebut the applicant ' s allegations that discrimination base on his brother ' s Roma ethnicity played a part in the treatment to which he was subjected whilst in police custody. Information concerning complaints about the ill-treatment and/or death of persons in custody, and, in particular, of Roma in custody, is wholly or substantially within the knowledge and control of the Romanian authorities.

11. On 4 September 2009, the respondent state was requested to provide the Court with information on the number of allegations made concerning police violence inflicted upon persons in custody and on the number of deaths in police custody that occurred from 1990 to that date. It was further asked to specify what proportion, if any, of the relevant data related, specifically, to members of the Roma community. On 30 October 2009 the Government informed the Court that the Romanian authorities kept no statistical data either on the number of complaints received concerning police violence upon persons in custody or on the number of deaths of detainees that had occurred in police custody for the said period. The respondent state submitted that , therefore, no statistical data was available on the number of such complaints relating, specifically, to members of the Roma community.

12. In earlier case law, the Court has held that statistics could not , in themselves , disclose a practice which could be classified as discriminatory (see Hugh Jordan v. the United Kingdom , no. 24746/94, § 154 , ECHR 2001 ‑ III (extracts) ) . However, in more recent cases on the question of discrimination the Court has relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men a nd women) in similar situations (see Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005 and Zarb Adami v. Malta , no. 17209/02, § § 77-78 , ECHR 2006 ‑ VIII ) . For example, in Opuz v. Turkey ( no. 33401/02, § 198 , ECHR 2009 ‑ ... ), the Court found that the applicant, relying on unchallenged statistical information, had been able to show the existence of a prima facie indication of a discriminatory pattern with reference to domestic violence, in so far as it affected mainly women. Consequently, in our view, while general statistics alone would not necessarily lead the Court to conclude that a substantive violation of Article 14 had occurred in a particular case, they may be indicative of a discriminatory pattern sufficient to give rise to an obligation to investigate complaints of discrimination.

13. As noted above, the respondent state indicated that it was unable to provide any relevant, realistic and centralised statistical data on the information sought by the Court concerning violence, including deaths, inflicted by police officers upon persons in custody, and specifically upon members of the Roma community. Relying on the personal rights of the Roma and the domestic data protection legal provisions as justification for their inability to furnish the requisite information, they further claimed that even if the Roma were to indicate their ethnicity when making complaints, there would be a disproportionate burden on the state in collating such information.

14. We find that such a response gives rise to an issue under Article 14. Firstly, it is wholly inadequate in the light of the international expressions of concern about discrimination against Roma in Romania and, in particular, in the light of calls for an independent and investigative mechanism to inquire into police abuses. [2] Furthermore, it is in contradiction of the Romanian authorities ' undertaking to provide adequate means of legal protection in cases of direct or indirect discrimination and to allow such discrimination to be established by any means, including, on the basis of statistical evidence . [3] In this regard we are mindful of what the European Commission on the Situation of Roma has described as “ a significant misconception among researchers, as well as policy makers and government officials, to the effect that collecting data on Roma, and other ethnic minorities, violates data protection laws and would therefore not be legal”. It also notes that i n its data protection rules, the EU has consistently affirmed that su ch rules apply to personal data only and not to aggregate data about groups or data disaggregated by ethni city or other criteria. [4]

15. Insofar as the collating of such information would impose a disproportionate burden on the respondent state, we take the view that the fundamental right to free dom from racial discrimination , as with every other Convention right, is neither theoretical nor illusory. For this right to be real and effective, a victim claiming racial discrimination in conjunction with Articles 2 and 3 must be in a position to test his or her claim by reference to objective impersonal data , [5] such as, the kind of information requested of the Government in this case. In our view, it is significant that the European Roma Rights Centre has been among the most consistent advocates of collecting ethnic data for the purposes of fighting racism and discrimination and for drafting viable equality programmes. [6]

16. The Romanian authorities ' failure to collate and to fu rnish any indication of the number of Roma who complained of ill-treatment or who died while in police custody suggests a failure to heed let alone to respond to international expressions of concern. Such a failure, in our view, gives rise to an issue under Article 14 in conjunction with Articles 2 and 3 of the Convention. More specifically, the state ' s failure to open an investigation in respect of the police officers responsible for Gabriel Carabulea ' s death , against the background of widespread awareness of the problem of discrimination against Roma in Romania (§§ 5-8 above), was inconsistent with the requirement of non-discrimination as set forth in Article 14 taken together with Articles 2 and 3.