CONCURRING OPINION OF SIR NICOLAS BRATZA

The Chamber was unanimous in finding a procedural violation of Article 3 of the Convention in relation to both incidents involving the applicant ' s arrest and detention and divided only on the question whether it had been sufficiently shown that the injuries sustained on both occasions resulted from his ill-treatment by the police, in violation of the substantive aspect of that Article. In common with the majority of the Chamber, I take the view that, whereas it has been shown that the injuries recorded in the medical report of 14 May 2001 were the result of ill-treatment by the police following the applicant ' s arrest on 10 May, the same cannot be said of the injuries sustained by the applicant on 10 July 2002 and recorded in the medical report of the following day.

The different conclusion reached by the majority in relation to the two incidents flowed from the principles developed in the case-law of the Court concerning the burden and standard of proof in relation to complaints of violations of Article 3. As noted in paragraph 45 of the judgment, the oft-repeated principle that the burden lies on an applicant to prove “beyond reasonable doubt” that he has been subjected to ill-treatment attaining the threshold set by that Article has been tempered by the equally well-established principle that such proof may follow from the co-existence of sufficiently strong, clear and concordant influences and similar unrebutted presumptions of facts. One such strong presumption arises in respect of injuries sustained by a person during detention, first explained by the Court in the case of Tomasi v. France (judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-111) in which the Court stated that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see to similar effect Ribitsch v. Austria , judgment of 4 December 1995, Series A, No. 336, pp. 25-26, § 34; Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V).

As regards the first incident, the medical report of 14 May 2001 revealed that the applicant had sustained relatively minor physical injuries inflicted by blows with blunt objects, possibly on 10 May 2001. These injuries were consistent with the applicant ' s account that on the latter date he had been punched, kicked and beaten with a wooden baton in the office of the village police inspector at the time of his arrest. The medical examination was carried out several days after the applicant had escaped from custody on or shortly after 10 May but the respondent Government have at no stage argued that the injuries were caused after the applicant ' s escape from custody and have not disputed that they were in fact sustained while he was in police custody. The sole explanation offered by the Government for the

injuries is that they were sustained when the applicant allegedly jumped from a police car, in which he was accompanied by three or four policemen and which was, according to the evidence of two of the policemen, travelling at some 70 to 80 kilometres per hour. However, as noted in the judgment of the majority of the Chamber, the nature and extent of the injuries sustained by the applicant and recorded in the medical report are not consistent with this account and no other plausible explanation has been offered as to how the applicant came by the injuries found. Accordingly the Government have failed to discharge the burden on them to provide a satisfactory and convincing explanation for the injuries found.

Different considerations, however, seem to me to apply in the case of the second incident. It is not disputed by the applicant that, on 10 July 2002, before being arrested by the police, he had fallen or jumped to the ground from the window or balcony of the third floor apartment which he and his accomplice had recently burgled. Moreover, according to his own account, the injury which he sustained to his left leg as a result of the fall prevented him from running away from the scene. The medical report of 11 July 2002 recorded a series of injuries, including concussion, fractures of three ribs, a fracture of the tibia of the left foot and a fracture of the second finger of his left hand. The forensic report prepared on 2 December 2002 confirmed that all the injuries recorded in the medical report could have been caused as a result of a fall from the third floor, “if the applicant ' s body had hit hard objects”. In the light of this evidence, I find that a plausible explanation has been given for the injuries sustained by the applicant. In this regard, unlike the minority of the Chamber, I do not attach decisive importance to the use of the word “objects” in the forensic report as indicating the expert ' s view that there must have been various sources of impact; nor do I feel sufficiently qualified to assert that had the applicant landed on a flat surface following his fall he could not plausibly have sustained multiple injuries to the different parts of his body identified in the medical report.

It is, I accept, a disturbing feature of the case not only that the police failed to have the applicant medically examined in the immediate aftermath of the fall, despite the fact that he had clearly suffered injuries, but that the authorities appear to have formed the view that the applicant needed urgent medical care only in the early afternoon of the following day. As to the former point, while the omission to carry out a medical examination of an injured suspect is clearly unacceptable, I am unable to draw the inference from this omission that the applicant ' s injuries had not in fact been sustained at the time of his initial detention. As to the latter point, had this lack of medical attention been part of the complaint made by the applicant, I would have found a substantive violation of Article 3 on the ground that the failure to provide medical assistance to a detainee who was in urgent need of it could of itself amount to inhuman treatment for the purposes of that Article. However, that is not the complaint which the applicant has at any

time made, his sole allegation being that the injuries he sustained were caused by physical ill-treatment by the police while he was in their custody. Having regard to the undisputed events which preceded the applicant ' s arrest and detention on this occasion, I am unable to find that this case has been sufficiently made out.

PARTLY DISSENTING OPINION OF JUDGE BONELLO, JOINED BY JUDGES TRAJA AND MIJOVIĆ

1. The Court unanimously found a “procedural” violation of Article 3 in relation to the ill-treatment claimed to have been suffered by the applicant on July 10, 2002 ( ' the second incident ' ), in that the authorities failed to conduct a proper investigation into the applicant ' s allegations of police brutality. The majority, however, found no “substantive” violation of Article 3 as they believe it has not been “established beyond reasonable doubt that the injuries sustained by the applicant were the result of ill-treatment”.

2. I respectfully disagree with the majority. Their “non-violation” conclusion, in my view, runs counter to factual findings, legal inferences, and the established case-law of the Court.

3. Preliminarily, I feel a duty to underscore what I deem an inconsistency in the reasoning of the majority. The Court, effortlessly and unanimously, agreed that the facts of the case have not been established in a satisfactory manner. The State, under an obligation to conduct a proper and effective investigation into the allegations of ill-treatment made by the applicant, singularly failed in this duty. This failure by the State resulted in a corresponding failure to accrue solid evidence to the file – exclusively through the fault of the State. I find it particularly unsatisfactory to visit on the applicant the negative consequences of the State ' s failure to secure evidence in breach of its Convention obligation so to do. I am not, of course, positing an automatic “substantive” violation of Article 3 every time a government fails to conduct a proper investigation, but only that a government should be estopped from relying on its own failure in order to succeed in its defence. In so far as the burden of proof is concerned, the failure of the State to conduct a proper investigation could, in appropriate circumstances, give rise to an inference in favour of the applicant who is the victim of that failure, rather than to one in favour of the State which is the cause of it.

4. To put it differently, the majority have penalised the applicant – on account of his inability to provide evidence – for a failing of which, the unanimous Court agreed, the State was eminently culpable. The fault was attributable to the State, but it is the applicant who paid the consequences. I would have found it far more equitable had the court concluded that, once the State was responsible for the dearth of evidence, a legal inference could arise in favour of the applicant ' s allegations, which throws on the State the onus of rebuttal by contrary evidence.

5. The applicant, as I see it, had no reason at all to fabricate a charge of treatment contrary to Article 3 of the Convention. Persons detained by police authorities derive comfort from reporting, or even ' inventing ' ,

charges of ill-treatment when they aim at retracting a confession, claiming it was extracted by torture . In this particular case the applicant never wished to retract a confession at all – in fact he stood by his admission of guilt - so that fabricating a scenario of ill-treatment would have been as pointless as it was inconsequential.

6. Notwithstanding the scarcity of evidence (attributable to the State) there are important indications in the records to substantiate the allegations of the applicant that the majority of the injuries resulted from the interrogation, rather than from the fall. When medically examined after the interrogation the applicant was found to have suffered the grievous injuries described as:

“a head trauma with head concussion, an injured lip, bruises and injuries on              his face, chest trauma with a fracture of ribs nos. 8, 9, and 10 on the right side, fracture of the tibia of his left foot, contusions of the soft tissue on the back of his neck, contusion of the soft tissues on his knees, fracture of the second finger of his left hand....”

It is, to say the least, unconvincing, that a person who had suffered those crippling injuries in a drop, would have stood up and ran away, and that only the forcible detention by the neighbours prevented his escape (paragraph 31). This was his condition after the fall/jump. After the interrogation, the applicant could not even move one step and had to be carried by stretcher (paragraph 26).

7. The medical certificate established a hierarchy of certainties over possibilities: “the injuries were inflicted by blows with blunt objects” (certainty) but “could have been caused as a result of a fall from the third floor – if the applicant ' s body had hit hard objects” (possibility).

8. The forensic doctor did not rule out the theoretical possibility that the applicant sustained injuries as a result of a fall/jump, provided only it could be shown that the applicant ' s body had hit hard objects. The multiple injuries found on the applicant ' s body are only compatible with traumas originating from various sources of impact. It appears implausible that a person who lands on a flat surface should sustain injuries on opposite parts of his body, like bruises on his face and, simultaneously, at the back of his neck.

9. Had the Government intended to rely on the subordinate possibility mentioned by the forensic doctor, they ought to have proved that during the drop from the balcony the applicant had hit hard objects. As the majority accepts, no evidence of this appears in the records, and so the ' certain ' inference that the injuries were caused by blows should have prevailed.

10. The majority, in my view, ought also to have asked themselves, and answered, the question why the police only sent for an ambulance after the interrogation - rather than after the fall. Is this indicative that the (majority

of the) injuries happened after the fall or that they happened after the interrogation?

11. If, as claimed by the Government, all the injuries the applicant complains of were suffered in consequence of the fall/jump (and not inflicted by the interrogators) there would equally be a “substantive” violation of Article 3, in so far as the authorities failed to provide any medical treatment to a person who so urgently required it. The fall happened at 10 or 11 p.m. and the police only sent the applicant for treatment at 12.21 p.m. the following day, after the interrogation had been concluded. One asks why, if the applicant really was already in that severe condition after the fall, the police proceeded leisurely with the interrogation instead of calling for an ambulance forthwith. This failure to provide medical assistance to someone so badly in need of it would in itself constitute a “substantive” violation of Article 3 (see, for instance, Sarban v. Moldova , no. 3456/05, §77, 4 October, 2005 and, Biocenco v. Moldova , no. 41088/05, §§ 112-119, 11 July 2006).

12. When a person is injured before or in the process of being taken into custody, there is a duty on the part of the authorities to have that person medically examined as soon as practicable. Such an examination is important to ensure that the suspect is not in need of immediate medical treatment and is fit to withstand questioning. Furthermore, when the Government fail to conduct such a medical examination before placing that person in detention, they should be estopped from relying on their own failure in their defence, in accordance with the principle nemo auditur propriam turpitudine allegans (see, mutatis mutandis, Abdulsamet Yaman v. Turkey , no. 32446/96, § 45, 2 November 2004).

13. Given the heavy burden placed on the State to provide plausible explanations for injuries sustained by a person in custody – rather than on the applicant to prove the responsibility of the Government for those injuries - I feel compelled to reach the unequivocal conclusion that the Government has far from established that the majority of the applicant ' s injuries were not caused otherwise than by ill-treatment while in police custody ( Ribitsch v. Austria , 4 December 1995, Series A no. 336).

14. The majority only found a violation of Article 13 with regard to the ' first incident ' . In view of my conclusions regarding the ' second incident ' , I would also have found a violation of Article 13 with regard to this latter.