CONCURRING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGE MALINVERNI

I agree with the finding of the majority that “the State is responsible under Article 3 on account of the inhuman and degrading treatment to which the applicant was subjected while in the police ' s charge and that there has been a violation of this provision” (see paragraph 52 of the judgment). I also agree with the basic reasoning preceding this conclusion, according to which “regard being had to the applicant ' s allegations, which were corroborated by the medical reports, and to the circumstances in which the applicant sustained the injuries, the Court considers that the Government have not furnished convincing or credible arguments which would provide a basis to explain or justify the degree of force used against the applicant” (see paragraph 51).

In fact I believe that this reasoning can very well cover all the applicant ' s relevant allegations regarding his ill-treatment by the police from the moment of his arrest up to the moment of his transfer to hospital. During all that period he was in the police ' s charge and his allegations of injuries sustained as a result of the conduct of the police were corroborated by medical reports. These reports do not, and could not, attribute the injuries to any specific period during which the applicant was in the police ' s custody. Therefore, I do not see how the majority could find that the medical reports corroborate the applicant ' s allegations only in respect of the period before he was inside Toumba police station.

In any event, I do not understand why the majority failed to examine the applicant ' s allegations as regards his ill-treatment by the police at the station. The reasoning given by the majority does not appear at all convincing to me. It runs as follows: “Having reached that conclusion, and since the Court is not able to establish the facts as regards the conduct of the police officers inside Toumba police station as it is confronted with completely divergent accounts of the events that are not corroborated by a judicial decision, it does not consider it necessary to examine the applicant ' s allegations in that respect ...” (see paragraph 53).

Neither the fact that there were conflicting accounts of the events nor the fact that a judicial decision does not corroborate the relevant events are sufficient reasons to justify the finding that the Court “does not consider it necessary to examine the applicant ' s allegations”. The preceding finding of the majority regarding the ill-treatment of the applicant was also lacking judicial corroboration – the Salonika Court of First Instance ' s conclusions went in the opposite direction to the applicant ' s version of events, and, according to the majority, “the parties have given a different account of the incident, especially as regards how both the applicant and the police officers sustained injuries” (see paragraph 49).

In any event, in cases involving complaints of ill-treatment by the police the Court always faces the problem of denial by the police of the relevant allegations, and where the applicant has exhausted domestic judicial remedies the Court faces the problem of deciding whether the findings of the domestic courts are the correct ones or not. In such cases the task of the Court is to decide where the truth lies irrespective of the account given by the police authorities or even the domestic courts (see Ribitsch v. Austria , judgment of 4 December 1995, Series A no. 336). It is precisely because of the scope and object of the Court ' s task in cases of this kind that the judicial review it carries out ensures effective protection of the relevant individual human rights.

I must add that in finding myself that the State in this case is also responsible under Article 3 on account of the inhuman and degrading treatment suffered by the applicant as a result of the conduct of the police officers inside Toumba police station, I took the following facts into account as corroboration of this finding:

(a) the finding that the applicant was ill-treated soon after his arrest and up to his transfer to the police station, which is shared by the majority;

(b) the inadequacy of the investigation into the applicant ' s allegations as regards his ill-treatment by the police both before he entered the police station and afterwards; and

(c) the lamentable explanations given in the report of the police administrative investigation – endorsed by the prosecuting authorities – which was confined to the depositions of the police officers and their denials of the applicant ' s allegations, without questioning the witnesses. The report even went so far as to find that the applicant had failed to submit to an examination by the forensic doctor, thereby turning a blind eye to the forensic medical examination he underwent on 29 January 2002.

In the circumstances I find that the applicant ' s allegations that he was ill-treated by the police at Toumba police station are well-founded and that the State was responsible for such ill-treatment.