PARTLY DISSENTING OPINION OF MR BONELLO

1. The Court has unanimously found a violation of Article 3 on account of the failure by the Turkish authorities to investigate the applicant’s complaint of torture, but has held that it is “impossible to establish on the basis of the evidence before it, whether or not the applicant’s injuries were caused by the police or whether she was tortured to the extent claimed”. [1] In other words, the Court dismissed the applicant’s claim and was not satisfied, on the ‘evidence’ that she had suffered torture or inhuman treatment. I disagree.

2. Before the applicant’s interrogation by policemen in an undisclosed station, she was examined by a forensic doctor, and there is no allegation that her body showed any trace of trauma. [2]

3. The applicant claims that, during interrogation, she was undressed, hung up by her arms, given electric shocks in her mouth and genitals, threatened with death and rape. This routine was repeated on the following three days. During the first two days she was left without any food at all. [3]

4. The applicant further alleged that, under threat of death and rape, she signed a ‘confession’ admitting membership of an outlawed organisation, the PKK. The statement which the applicant signed also included a disclaimer to the effect that the bruises on her body had been caused by a fall. [4]

5. Two doctors examined the applicant separately over a week after the interrogation ended, but when still in police custody; they found violet coloured bruises on her upper arm and on her right tibia. [5]

6. The applicant complained both to the public prosecutor and to the State Security Court, before being released from detention, that she had been tortured by the police and that the ‘confession’ had been extracted under torture. [6]

7. The applicant was tried on a charge of being a member of the PKK. Despite her signed confession, the State Security Court acquitted her on the ground of lack of evidence, having noted the applicant’s claim that the confession had been obtained by duress and torture. [7]

8. I believe that the majority, concluding that the applicant had not proved that she had been tortured and that the injuries to her person were caused by the police, disregarded several basic and vital elements of the rules of evidence that should inspire any court.

9. Firstly, this Court has repeatedly held that: “Where an individual, when taken in police custody, is 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”. [8] This plainly posits that, in the presence of injuries which were not there at the time of arrest, it is not for the applicant to substantiate her allegations of torture or inhuman treatment. The onus of proof shifts to the State to provide a ‘plausible explanation’ of those injuries. In the present case the State has done nothing by way of explanation. The shift in the onus of proof is the first evidential norm neglected in the judgment.

10. Secondly, a cardinal requirement relating to the standard of proof was similarly discounted. In the present case the Court did not expressly assert that the applicant had an obligation to prove her allegations of torture “beyond reasonable doubt”. But that is the standard of proof hitherto ordained by the Court in allegations of torture and inhuman treatment; it is evident that, in the wake of this evidentiary imperative, the Court expected the applicant to prove her allegations “beyond reasonable doubt”. [9]

11. Independently of the failure by the majority to apply the rule that it was incumbent on the State to discharge the burden of evidence (v. § 9), I find the standard of proof - beyond reasonable doubt - required by the Court in torture cases to be legally untenable and, in practice, unachievable.

12. Proof “beyond reasonable doubt” reflects a maximum standard relevant and desirable to establish criminal culpability. No person shall be judicially deprived of liberty, or otherwise penally censured, unless his guilt is manifest “beyond reasonable doubt”. I subscribe to that stringent standard without hesitation. But in other fields of judicial enquiry, the standard of proof should be proportionate to the aim which the search for truth pursues: the highest degree of certainty, in criminal matters; a workable degree of probability in others.

13. Confronted by conflicting versions, the Court is under an obligation to establish (1) on whom the law places the burden of proof, (2) whether any legal presumptions militate in favour of one of the opposing accounts, and (3) “on a balance of probabilities”, which of the conflicting versions appears to be more plausible and credible. Proof “beyond reasonable doubt” can, in my view, only claim a spurious standing in ‘civil’ litigation, like the adversarial proceedings before this Court. In fact, to the best of my knowledge, the Court is the only tribunal in Europe that requires proof “beyond reasonable doubt” in non-criminal matters.

14. Expecting those who claim to be victims of torture to prove their allegations “beyond reasonable doubt” places on them a burden that is as impossible to meet as it is unfair to request. Independent observers are not, to my knowledge, usually invited to witness the rack, nor is a transcript of proceedings in triplicate handed over at the end of each session of torture; its victims cower alone in oppressive and painful solitude, while the team of interrogators has almost unlimited means at its disposal to deny the happening of, or their participation in, the gruesome pageant. The solitary victim’s complaint is almost invariably confronted with the negation “corroborated” by many.

15. For the Court to expect from torture victims any ‘hard’ evidence, beyond the eloquence of their injuries, is to reward and invigorate the ‘inequality of arms’ inherent in most torture scenarios.

16. Thirdly, the Court has, in my view, side-tracked the key question of credibility. I ask if, relying on its memory in handling so many cases of torture, the Court has compelling reasons to award more faith and credit to security forces which have an unenviable track-record to live down, rather than to those who claim to be their victims. No allegation has been made against the personal integrity and uprightness of the applicant, other than the damning circumstance that she was the wife of a human rights activist. The test, in the event, should have been: on a balance of credibility, who is likelier to have provided the court with a more reliable version of the incidents? The security forces?

17. Fourthly, it is difficult to envisage what “proof” the Court expected from the applicant in order to substantiate her claim that she was repeatedly tortured by being forcibly undressed, suspended, threatened with death and rape and deprived of food. These amusements are particularly ungenerous with those tangible signs dear to forensic experts. So, again, the only reasonable test ought to have been: on a balance of credibility, which of the two parties rests more convincingly on the side of truth?

18. Personally, I would have little hesitation with the answer. The majority seem to have thought otherwise. And its conclusion is unassailable - if you start your assessment of credibility from the premise that the applicant, (whose personal integrity and honour are not in dispute), is neither to be trusted nor believed, while the security forces, repeatedly found guilty by this Court of killings, torture and inhuman behaviour, are.

19. Finally, the Court has unanimously affirmed that the respondent State breached Article 3 in that it failed to investigate the applicant’s complaints of torture. In other words, the Court has held the respondent State guilty of defaulting in its obligation to unearth evidence by means of a determined fact-finding exercise. But then, after having established that the dearth of evidence is the defendant’s fault, the Court visited the consequences of this failure on the applicant. She has been penalised for not coming up with evidence that the Convention obliges the State to procure. Hard as I try, I cannot see this as a consequent technique of decision-making.

[1] Para 30.

[2] Para 11.

[3] Para 12.

[4] Para 13.

[5] Para 14.

[6] Paras 16 and 17.

[7] Para 19.

[8] Selmouni v. France , 28 July, 1999 § 87 (to be published); Ribitsch v. Austria , 4 December 1995, A 336, § 34; Tomasi v. France , 27 August 1992, A 241-A, §§ 108-111.

[9] First enunciated in Ireland v. U.K. , 18 January 1978, A 25 § 162, followed up in Labita v. Italy , 6 April 2000, § 121 (to be published). For the inadequacy of the ‘beyond reasonable doubt’ standard of proof in Article 3 cases, vide Loukis . G. Loucaides, Essays on the Developing Law of Human Rights , Martinus Nijhoff , p. 158.