PARTLY CONCURRING OPINION OF JUDGE SIR NICOLAS BRATZA

I am in full agreement with the conclusion and reasoning of the Court on all points, save that I would have preferred that the complaint relating to the failure of the judicial authorities to investigate the applicants' allegations of ill-treatment had been examined by the Court under Article 13 of the Convention rather than under the so-called “procedural aspect” of Article 3.

In holding that, where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention “to secure ... the rights and freedoms” defined therein, requires by implication that there should be an effective official investigation, the Court has relied on its Assenov and Others v. Bulgaria judgment of 28 September 1998 ( Reports 1998-VII, p.3290 § 102). The Court there observed that, if it were not the case that Article 3 embodied such a procedural aspect, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and that it would be possible for agents of the State to abuse the rights of those within their control with virtual impunity.

However,  the Assenov and Others case was decided before the judgment of the Grand Chamber of the Court in Ilhan v. Turkey [GC], no.22277/93, ECHR 2000-VII, p.267, in which the Court voiced certain doubts as to the analogy drawn in the earlier authority between the provisions of Article 2 and those of Article 3. The Court pointed out that, while the obligation to provide an effective investigation into the deaths caused by, inter alios , the security forces had been held to be implied into Article 2 in order to ensure that the rights guaranteed by that Article were not theoretical or illusory but practical and effective, the provisions of Article 2 included the requirement that the right to life be “protected by law”. In addition, the Court noted, Article 2 may also concern situations where the initiative must rest on the State for the practical reason that the victim is deceased and the circumstances of the death may be largely confined within the knowledge of State officials (p. 295, § 91). The Court continued:

“92. Article 3, however, is phrased in substantive terms. Furthermore, although the victim of an alleged breach of this provision may be in a vulnerable position, the practical exigencies of the situation will often differ from cases of use of lethal force or suspicious deaths. The Court considers that the requirement under Article 13 of the Convention that a person with an arguable claim of a violation of Article 3 be provided with an effective remedy will generally provide both redress to the applicant and the necessary procedural safeguards against abuses by State officials. The Court's case-law establishes that the notion of effective remedy in this context includes the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment and permitting effective access for the complainant to the investigatory procedure (see the Aksoy judgment ...). Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case.”

In the Ilhan case itself, the Court found that the applicant had suffered torture at the hands of the security forces and that his complaints concerning the lack of any effective investigation by the authorities into the causes of his injuries fell to be dealt with under Article 13, rather than Article 3, of the Convention.

I consider that similar reasoning applies in the circumstances of the present cases, where the Court has likewise found a substantive violation of the Article 3 rights of nine of the applicants, and that the applicants' complaints concerning the lack of an effective official investigation into their allegations of ill-treatment would have been more appropriately examined under Article 13 of the Convention.

Since, however, Article 13 was not expressly invoked by the applicants and since I fully share the view of the Court not only that the complaints of the applicants gave rise to an arguable claim of ill-treatment which required to be investigated, but that there was a total failure of the judicial authorities to carry out any such investigation, I have joined in the finding of a violation of Article 3 of the Convention in this regard.