PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

1. I agree with the conclusion finding a violation of Article 3 of the Convention on account of the authorities ’ failure to carry out an effective and thorough investigation into the applicant ’ s allegations of ill-treatment by the police.

2. However, I cannot share the majority ’ s opinion that there was no violation of Article 3 in its substantive aspects as regards the alleged ill-treatment.

I. As to the factual circumstances of the case

3. According to the applicant, the police officers, after having arrested him on 9 March 1999, put him in the back seat of the car, where they started beating him to make him confess to the thefts until he almost lost consciousness. At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B., an investigator. One of the police officers pulled a knitted hat down over his eyes. Then they pinned him to the table and threatened to rape him with a rubber truncheon (see paragraph 8 of the judgment).

4. The applicant was released on 12 March 1999 (paragraph 10 of the judgment) and he was examined three days later by a general practitioner and a surgeon who took into account his allegations of ill-treatment and made a diagnosis of contusion as specified in paragraph 11 of the judgment.

5. In paragraph 42 of the judgment, the Court rightly “considers that the contusion diagnosed by the doctors who examined the applicant indicate that his injuries were sufficiently serious to amount to ill-treatment within the scope of Article 3”. And yet the majority give the State the benefit of the doubt, raising the question “whether the State should be held responsible under Article 3 in respect of those injuries”.

6. In my view there is no doubt that the State should be held responsible. To support the contrary view, the majority rely in paragraph 44 of the judgment inter alia on “the results of the authorities ’ inquiry into the applicants ’ allegations of ill-treatment”, an inquiry which has been held to fall short of the requirements of Article 3 (paragraphs 46-57 of the judgment).

7. For my part, I am satisfied that the applicant has, at the least, established an arguable claim. As the Court rightly notes in paragraph 46 of the judgment, “the medical evidence and the fact that the applicant was being held in custody until three days before he sought medical assistance raise a reasonable suspicion that the injuries he sustained might have been caused by the police”.

8. It goes without saying that a particularly thorough scrutiny should be applied where the applicant raises an arguable complaint of ill-treatment. In my view, the majority view does not take sufficient account of the enormous difficulties faced by the applicant in gathering evidence.

9. The applicant ’ s arguable complaint of ill-treatment should have prompted a serious and detailed investigation. The numerous shortcomings of the investigation have led the Court to find a violation of the procedural limb of Article 3. The inadequacy of the investigation deprived the Court of more precise information concerning the substance of the claim.

II. As to the uncertainties surrounding the burden and standard of proof in proceedings concerning alleged violations o f Article 3 of the Convention

10. As I have already explained in my partly dissenting opinion in the case of Alibekov v. Russia (no. 8413/02, 14 May 2009 ), a case of this nature highlights once again the two technical problems faced by the Court when it comes to establishing the factual circumstances relating to allegations of ill-treatment.

11. Firstly, there is the question of the burden of proof and, secondly, the question as to the standard of proof.

12. As to the burden of proof , in the event of an arguable complaint of ill-treatment, I am of the opinion that the onus of proof should shift to the State to provide a full account of the events. [1] In the present case, as in the case of Alibekov , the State has provided nothing by way of explanation. The Court found in this respect a procedural violation of Article 3 of the Convention.

13. As to the standard of proof , I would like to emphasise firstly that in exceptional cases such as the present one, the standard of proof “beyond reasonable doubt” is too stringent a standard to be of practical use. Indeed, one should not forget that the victim of alleged violations of Article 3 is, in most cases, deprived of the means of substantiating his grievance and the only evidence he can produce is his own testimony. [2] Admittedly, the Court has never softened this standard in its case-law. [3] However, as Judge Bonello pointed out in his partly dissenting opinion in the case of Sevtap Veznedaroğlu v. Turkey ( no. 32357/96 , 11 April 2000 ),

“expecting those who claim to be victims of torture to prove their allegations ‘ beyond reasonable doubt ’ places on them a burden that is as impossible to meet as it is unfair to request. Independent observers are not, to my knowledge, usually invited to witness the rack, nor is a transcript of proceedings in triplicate handed over at the end of each session of torture; its victims cower alone in oppressive and painful solitude, while the team of interrogators has almost unlimited means at its disposal to deny the happening of, or their participation in, the gruesome pageant. The solitary victim ’ s complaint is almost invariably confronted with the negation ‘ corroborated ’ by many.” (see paragraph 14 of the opinion)

14. In my view, therefore, the time has come for the Court to reconsider its traditional approach as to the burden and standard of proof in those cases where it identifies numerous and serious shortcomings in the investigation.

I II. As to the consequences to be drawn from an inadequate and ineffective investigation

15. However, even applying the traditional standard of “proof beyond reasonable doubt”, I am of the opinion that the Court should have found a violation of Article 3 in its substantive aspect.

16. The applicant set out his complaint in a coherent and convincing manner. He presented an arguable claim based on credible assertions which, regrettably, did not prompt an effective and thorough official investigation.

17. Consequently, in my view, the inadequacy and ineffectiveness of the investigation into the applicant ’ s complaint amounts not only to a violation of the procedural aspect of the complaint in question. It amounts also to a strong corroboration of the same complaint in its substantive aspects, as there is a serious risk that a deficient investigation covered up guilty behaviour by the members of the police. Indeed, in the present case “the assistant prosecutor confined herself to questioning the investigator and some of the police officers involved” (paragraph 52 of the judgment).

18. As Judge Loucaides rightly pointed out in his dissenting opinion in the case of Petropoulou-Tsakiris v. Greece ( no. 44803/04, 6 December 2007 ), the majority ’ s approach may encourage the authorities to use unacceptable methods of investigation into facts amounting to ill-treatment in respect of individuals such as the applicant or other persons who do not have eyewitnesses to corroborate their complaints of ill-treatment. This is particularly true with regard to violence within the closed environment of a police car and a police station. Or, as Judge Bonello put it in his partly dissenting opinion in the case of Veznedaroğlu v. Turkey , “[the applicant] has been penalised for not coming up with evidence that the Convention obliges the State to procure” (see paragraph 19 of the opinion).

19. In the case of Ireland v. the United Kingdom ( 18 January 1978, § 161, Series A no. 25 ), the Court stated that it

“adopts the standard of proof beyond reasonable doubt but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context the conduct of the Parties when evidence is being obtained has to be taken into account”. (emphasis added)” [4]

20. To sum up, and in the light of the above, I believe that the applicant ’ s version of events is true and I am satisfied that there has been a violation of Article 3 in its substantive aspect.

[1] See Judge Bonello’s partly dissenting opinion in the case of Sevtap Veznedaroğlu v. Turkey , no. 32357/96 , 11 April 2000 .

[2] See Loukis Loucaides , “Standards of Proof in Proceedings Under the European Convention on Human Rights”, in Présence du droit public et des droits de l’homme . Mélanges offerts à Jacques Velu , Brussels , Bruylant , 1992, p. 1431 , and reprint in Essays on the Developing Law of Human Rights , Leiden, Boston, Martinus Nijhoff , 2007, p. 158.

[3] On the standard of proof, see Patrick Kinsch , “On the Uncertainties surrounding the Standards of Proof in Proceedings before International Courts and Tribunals”, in Individual Rights and International Justice, Liber Fausto Pocar , Milan , Giuffrè Editore , 2009, p. 427.

[4] See also the partly dissenting opinion of Judge Loucaides , joined by myself, in the case of Zubayrayev v. Russia ( no. 67797/01, 10 January 2008 ).