PARTLY CONCURRING OPINION OF JUDGE MARUSTE

While being in agreement with the majority in finding a violation of Article 3 in respect of the conditions of detention I would like to put forward my view that the case also raises serious concerns about excessive use of force by the authorities as well as the burden of proof under these circumstances.

It is not disputed by the parties that the applicant was suffering from several and severe health problems – a broken rib and head injury in particular - which under the circumstances can be prima facie regarded as possible ill-treatment by the authorities as alleged by the applicant. As the facts show, the head injury in particular became a serious source of pain and suffering for the applicant. The majority seems to accept the explanation provided by the domestic authorities (police and prosecutor) and the Government that recourse to physical force was necessary in restraining the applicant and was made necessary by the applicant ’ s own conduct, or rather that it was not possible to establish that the applicant was ill-treated while in police custody and therefore the applicant has failed to make his case as required. Accordingly the majority dismisses these allegations (see § 61).

On the basis of the Court ’ s case-law ( Rehbock v. Slovenia, no. 29462/95, ECHR 200-XII) and Convention doctrine I would argue that the reasoning in end part of § 58 of the judgment which reads as follows “Although, according to subsequent medical findings, the applicant could have suffered a head injury in 2003, in the absence of any materials shedding light on the relevant circumstances, including the period in which that injury could have been sustained, this allegation alone cannot raise a reasonable suspicion against the police officers” , runs counter to our well established doctrinal principle. Namely that when a person is under the control of authorities (as in the case at hand) there is a strong presumption that the injuries alleged and established are attributable to the authorities and the burden of proof in that case shifts and it is for the authorities to show convincingly that they are not responsible for the alleged injuries. As it has been determined in the Ribitsch and Salman cases, in situations, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of person under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria , 4 December 1995, § 34 , Series A no. 336 and Salman v. Turkey [GC], no. 21986/93, § 100 , ECHR 2000 ‑ VII ).

Consequently, the reasonable suspicion still stays. The applicant asked for assistance in connection with his injuries, made the relevant allegations against the police, and asked for criminal proceedings to be instituted against those who inflicted the bodily injuries. He did what could reasonably be expected under the circumstances.

It has to be noted that the prosecutor refused to initiate criminal proceedings, finding the allegations groundless on the basis of testimonies of the investigator and the police officers who had participated in the arrest of the applicant and the finding of the medical commission that the applicant had been fit for detention. Neither the police nor the investigator could be considered impartial in that situation and the medical commission apparently was asked about his fitness for detention and did not consider his injuries. The mere fact that applicant was considered fit for detention does not necessarily imply that he was not injured.