CONCURRING OPINION OF JUDGE KALAYDJIEVA

I join the findings of the majority that the circumstances of the present case disclose violations of the applicant rights under Articles 3 and 5 of the Convention. The majority ' s conclusions concerning the severity of the sustained treatment are based on the evidence before the Court and standard of proof “beyond reasonable doubt”, which the applicant failed to meet – he provided no evidence that he was subjected to the alleged acts of torture and succeeded in substantiating only the claim of ill-treatment, which was indicated by remaining traces of injuries. The applicant could not obtain copies of certain investigation documents and the respondent Government did not submit them.

In the present case the respondent Government objected that the applicant ' s complaints concerning sustained torture and ill-treatment were the subject of proceedings before the national authorities, which have been pending for seven years. They furthermore maintained that a premature finding of the Court in these complaints might infringe the fairness of the future trial against two senior police officers. In the absence of such accusations against any officer possibly involved in the alleged treatment, I would see no such danger.

The question remains, however, whether in the face of the clearly ineffective domestic investigation of the applicant ' s complaints, which may be seen as amounting to a refusal to investigate, the Court may find itself in a situation, where – based on the absence of evidence resulting from this refusal – it may be prevented from subjecting such grave complaints to any scrutiny or even be required to exonerate alleged acts of torture as a result the national authorities ' failure to investigate into them.

It is shocking that – despite the explicit indication of the prosecution authorities that the investigation found that “M. requested the other police officers to handcuff the applicant and to hang him over the crowbar which was placed between two chairs; to place a gas mask over the applicant ' s head and block the air flow” and that this “torture lasted from 1 a.m. on 21 May to 9.50 a.m. on 22 May 2003 ' ” (see paragraph 32), officer M. was not charged with having those orders himself, nor were any of the officers who, according to the indictment, carried out this order, ever investigated or charged with the crime of torture envisaged by Article 27 of the Criminal Code. The national courts which were confronted with this indictment were not competent to instruct the prosecution authorities to bring charges or to investigate those police officers who had acted under the order to torture, nor could they require the reclassification of this officer ' s acts as an “excess of authority with no elements of torture present”. Seven years after the events this might no longer be possible. A year after the events – in June 2004 – the applicant stated that he could identify the policemen involved, but the relevant investigatory steps had not been taken (see paragraph 22) and according to the indictment, “the other police officers were not prosecuted as the applicant ' s mother submitted that, given the lapse of time [until 28 December 2007], the applicant would not be in position to identify any other police officer except for A. and M.” (see paragraph 33) The attempted suicide after seven days of detention and interrogation in the police premises was explained with his diagnosis as having a “high depressive suicidal disorder” without further scrutiny whether the applicant suffered such a condition before his arrest or whether it was possibly related to the allegedly sustained treatment. In these circumstances I remain unconvinced that the domestic investigation was intended to “lead to the identification and punishment of those responsible” (see § 102, Assenov and Others, judgment of 28 October 1998, Reports 1998-VIII, with further reference to McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86, and the YaÅŸa v. Turkey judgment of 2 September 1998, Reports 1998 ‑ VI, p. 2438, § 98).

The absence of any plausible explanation for the reasons of failure to collect key evidence at the time when this was possible should, in my view, be treated with particular vigilance. In fact the period of seven years of demonstrated, if not deliberate systematic refusals and failures to undertake timely and adequate investigation and to follow the instructions of the national courts by taking further necessary steps to investigate arguable allegations of torture seems to make it possible for at least some of the agents of the State to benefit from virtual impunity as a result of the lapse of time.

In such circumstances a victim of alleged torture will be further humiliated by the fact that the open denial of an investigation successfully prevented the Court ' s scrutiny and limited its role to witnessing acts, which appear to be better qualified as “collusion in or tolerance of unlawful acts”.