DISSENTING OPINION OF JUDGE MARUSTE

With some hesitation I disagreed with the majority in finding no violation of Article 3 under its substantive limb.

It transpires from the facts – and this was not disputed by the respondent Government – that on 28 April the applicant was invited to the Kharkiv State Tax Police Inspectorate and that he was present there. On the same day the applicant complained that he had been beaten in the tax police office to the Anti-Corruption Department, which sent him for a medical examination and transferred his complaint to the prosecutor ' s office. The medical examination took place the following day and revealed that the applicant was suffering minor injuries and had bruises on his abdomen. The day after, the neurosurgery department of Hospital no. 4 diagnosed concussion and numerous bruises on the applicant ' s head. These findings were confirmed by a forensic medical examination two weeks later.

These are the hard facts. It is clear that the applicant has made his case and has proof to support his allegations. The closely-linked chain of consequent events is evident. The Chamber also considers (see paragraph 55) “ that there is sufficient evidence in the case ... that the applicant sustained injuries, which were sufficiently serious to amount to ill-treatment falling within the scope of Article 3 ”. But then the Chamber endorses the argument of the Government that the precise date of infliction of these injuries was never established, overlooking its own finding of a procedural violation of Article 3. But what can we expect and how can we rely on deficient investigation results?

It has been the rule, already since the Ribitsch case, that where allegations are made under Article 3 of the Convention the Court must apply particularly thorough scrutiny. And if the official investigation has failed – as in the case before us – then the in dubio pro reo principle applies. Furthermore, the Chamber, when finding that it cannot conclude “beyond reasonable doubt” that the applicant ' s injuries were caused by the actions of a tax police officer (paragraph 57), seems to lay the burden of proof on the applicant and apply the “beyond reasonable doubt” test in reverse. My understanding is that the burden lies in such situations on the respondent Government, which have to show “beyond reasonable doubt” that the injuries were not caused by State agents. For me this has not been shown in this case. If it had been argued by the Government and found by the Chamber that no causal link between the visit to the police office and the injuries could convincingly be established, I would then have had some difficulty in making these arguments.

[1] Approximately EUR 278,703 .

[2] Approximately EUR 474,022 .

[3] Approximately EUR 237.88 .

[4] Rectified on 27 February 2008. A currency conversion clause was incorporated into the operative part of the judg ment .