PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

Although I agree with the conclusions of the majority as regards the violations of the Convention set out in the operative part of the judgment, I cannot share their opinion that there has been no violation of Article 3 of the Convention in its substantive aspect as regards the alleged ill-treatment inflicted by police officers on the applicant.

According to the applicant, she and other Roma women were rounded up by the police for a body search. Whilst the police operation was taking place, the applicant waited her turn to be searched by the police, who were searching other residents of the settlement. She noticed that certain police officers were taunting a disabled Rom who was a relative of hers. As she moved to approach the police officers, she was forcefully pushed back by one of them while another one kicked her in the back, in spite of the fact that she had shouted that she was pregnant. As a result of the kick, the applicant felt an intense pain in the abdominal area and started bleeding. Although the bleeding was obvious to all the police officers present, the applicant was not taken to hospital. Not having any personal documents – as she was at the time an unregistered stateless person – and being alone, she felt that she could not go to the hospital on her own for fear of being refused treatment.

The next day she informed members of the Greek Helsinki Monitor that she had been kicked by a police officer and that she was bleeding. One of them then rushed her to a maternity clinic, where she was admitted immediately. According to the medical report drawn up at the end of the examination, “the applicant was admitted to the hospital on 29 January 2002, 10 weeks pregnant, with haemorrhaging from her uterus (risk of spontaneous abortion). On 2 February 2002 there was a complete expulsion of the foetus and on 4 February 2002 her uterus was cleaned.”

On 1 February 2002 counsel for the applicant lodged a criminal complaint with the Athens public prosecutor against the police officer who had allegedly used violence against the applicant and whose identity was unknown to her. In the complaint the applicant joined the proceedings as a civil party seeking damages, asked to be examined by a forensic doctor and named three persons who could testify as witnesses. She also included the address and telephone numbers of her lawyers.

The Court found that there had been a violation of Article 3 in its procedural aspect as regards the incident described by the applicant.

On 3 July 2004, two years and five months after the complaint was lodged, the Athens public prosecutor closed the file without carrying out any further inquiries. In view of this substantial delay in the conduct of the preliminary inquiry, the Court rightly found that the Greek authorities could not be considered to have acted with sufficient promptness or with reasonable diligence, with the result that the perpetrator of alleged acts of

violence had remained unidentified. As far as the administrative proceedings were concerned, the Court observed that despite the seriousness of the applicant ' s allegations, the authorities had not considered it necessary to conduct a sworn administrative inquiry. On the contrary, they had conducted an informal investigation that had ended in less than one day and had been carried out by the Deputy Director of Police, who had been actively involved in the police operation in question. It is apparent from the relevant report that the agent based his conclusions exclusively on the testimonies given by five police officers involved in the incident. Neither the applicant nor any of the other alleged victims of police brutality were examined.

However, the majority considered that there was insufficient evidence to conclude that there had been a violation of Article 3 on account of the alleged torture. They based their finding on the following reasoning:

(a) The circumstances under which the bleeding from the applicant ' s uterus occurred were not entirely clear.

(b) The medical report produced by the applicant only stated that she was bleeding and that she had suffered a miscarriage, without mentioning the existence of bruises or other injuries and without reference to any possible causes of the bleeding.

(c) The applicant had not produced any other cogent evidence in support of her allegations of ill-treatment, such as objective eyewitness testimonies.

The impression is given, by the reasoning of the majority, that the evidence of a victim of police ill-treatment is not enough to establish such ill-treatment, regardless of the credibility of such testimony. I cannot accept that approach, which I consider harks back to the early legal history of many countries when more than one witness was required to establish anything in judicial proceedings. The approach of the majority is very dangerous in the sense that it may cause injustice to individuals like the applicant, whose evidence may not by itself be taken seriously because of police prejudice as regards their status (see paragraphs 64-66 of the judgment); at the same time, it may encourage the police to use unacceptable methods of investigation amounting to ill-treatment in respect of persons like the applicant or other persons who do not have any eyewitnesses to corroborate their complaints of ill-treatment.

The applicant stated her complaint in a coherent and convincing manner. She explained that she had been kicked on her back and as a result had felt an intense pain in the abdominal area and started bleeding. There followed a miscarriage. She could not identify the police officer who had kicked her. That is understandable. What I cannot understand is why the majority did not believe her story, without even finding a concrete well-founded reason why she must have lied. In fact the evidence doe s not disclose any such reason.

The fact that the medical report produced by the applicant made no reference to bruises and to any possible causes of the bleeding does not detract from the truthfulness of the applicant ' s complaint, bearing in mind that the report in question was prepared by a gynaecologist and not by a forensic doctor.

Moreover, the inadequacy and ineffectiveness of the police investigation of the applicant ' s complaint, as set out above, does not amount only to a violation of the procedural aspect of the complaint in question. In my opinion it amounts also to a strong corroboration of the same complaint in its substantive aspect. For the attitude of the police could not be explained as anything other than an effort to cover up the guilty behaviour of one of their colleagues.

In the light of the above, I believe that the applicant ' s version of events is true and I therefore consider beyond any doubt that there has been a violation of Artic le 3 in its substantive aspect.