CONCURRING OPINION OF JUDGE MYJER

I agree with the conclusions of the Chamber on all aspects of the case and would only like to add a few remarks of my own.

As to the reasoning in paragraphs 79 and 84: if the applicant had complained only about physical violence inflicted by his interrogators, the very fact that the medical report dated 4 April 1996 (paragraph 32) made it clear that the applicant presented “injuries caused by hitting with hard objects which could have taken place 15 to 30 days before the medical examination” would have reversed the burden of proof. The Government would have had to establish satisfactorily that the applicant ’ s injuries were caused otherwise than – entirely, mainly, or partly – by the treatment he underwent while in custody ( Ribitsch v. Austria , judgment of 4 December 1995, Series A no. 336, § 34). The applicant, however, complained about the fact that he had been beaten by his interrogators and by inmates. That makes the case a little more complicated, since – as far as violence by inmates is concerned – in my opinion the Government cannot be blamed for all such acts. As regards their responsibility for violence by inmates, it should in my opinion be established that either the authorities were aware of such violence but did nothing to prevent or immediately stop it (or worse, encouraged it) or that the prison conditions and/or the medical condition of the applicant were such that violence by inmates was in the specific circumstances of the case foreseeable, or that the authorities, having been properly warned, did not take the necessary steps to prevent further violence from occurring. In this specific case it is clear that the applicant ’ s wife lodged a complaint on 16 February 1996 (paragraph 29). The injuries indicated in the above-mentioned report must have been sustained after that date. The judgment thus makes it clear that the national authorities cannot hide behind the fact that they investigated the allegations and that the interrogators cannot be blamed. Since they were properly warned as of 16 February 1996, the reversal of the burden of proof remained in place, in respect of the violence inflicted by inmates as well.

I should like to add one other point.

The applicant also complained about the fact that Article 34 had been breached. I agree that the reasoning in paragraph 98 is in line with the existing case-law. I also find that there is a big difference between this case and the case of Petra v. Romania , which is quoted in that paragraph, and between this case and the cases mentioned in the important report of Christos Pourgidides , Member state s ’ duty to co-operate with the European Court of Human Rights (PACE document 11183 (9 February 2007)). Nevertheless, it worries me that the Prosecutor ’ s Office, after having searched the applicant ’ s house, also confiscated:

– a letter of 11 August 2003 from the Court concerning the present application;

– copies of a letter addressed by the applicant to the Court (paragraph 53).

Although I am aware that the documents were returned to him several months later (paragraph 54), it is in my opinion altogether arguable that the very fact that “untouchable” correspondence with the Court has been confiscated as such does raise an issue under Article 34. After such confiscation, does it really matter that there was a domestic remedy at his disposal which should have been used first? I wonder what the use is of being able to challenge the decision of the Prosecutor ’ s Office under domestic law if in the meantime the authorities have become aware of the contents of correspondence with the Court. Once they have discovered that they confiscated “untouchable” documents, ought the authorities not to be under an obligation to repair proprio motu the violation not only by returning the documents but also by at least expressly acknowledging that they had been wrong to confiscate them.