CONCURRING OPINION OF JUDGES Turković AND EICKE

Introduction

1 . While we agree that in this case there has been both a procedural and a substantive violation of Article 3 of the Convention, in relation to the latter we fundamentally disagree both with the decision of the majority in § 75 “to distinguish two stages of the police operation” as well as the conclusion reached – or better the failure to reach a conclusion - in relation to the question whether the conduct of authorities during the “first stage” (also) amounted to substantive breach of Article 3.

2 . Before setting out the reasons for our disagreement, we want to underline the importance of the work done by the Committee for the Prevention of Torture (CPT) in relation to the use of electrical discharge weapons (“EDWs”) in the context of law enforcement operations and, in particular, when effecting an arrest (see §§ 53 and 54). This is only the second time that this Court has had the opportunity to address the use of EDWs (the other being Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, 30 September 2014) and this judgment rightly highlights and endorses the CPT ’ s conclusions on their use set out in its 20 th General Report, dated 26 October 2010, in the context of Article 3 of the Convention.

3 . Having considered the evidence before the Court and the CPT ’ s conclusions and applied this Court ’ s consistent case-law, for the reasons identified below, it seems to us to be clear that in this case the Court had no choice but to conclude that there has been a s ubstantive violation of Article 3 in relation to the whole operation or, if one were to adopt the majority ’ s distinction, that there has been a clear violation of Article 3 during the “first stage” of the arrest and that the asserted inability of the majority to determine whether the use of force during this “first stage” was excessive is inconsistent with the Court ’ s established case-law and, in fact, amounts to an unwarranted reversal of the burden of proof inconsistent with the fundamental values of a democratic society enshrined in Article 3.

Two stages

4 . In § 75, the majority asserts that it is “necessary” to distinguish two stages of the police operation in question without, however, providing any explanation as to why it is “necessary” to do so. Such a distinction is not required or even suggested by the Court ’ s case-law nor is there any suggestion in the judgment or the observations of the parties that the applicant himself sought to distinguish between two “stages” of the arrest.

5 . In fact, the relevant aspects of the applicant ’ s complaint before this Court are summarised in § 55 as being “of ill-treatment during his arrest”. The fact that his complaint was, in fact, a single complaint concerned with the totality of the arrest operation is further underlined by his submissions set out in §§ 58 and 61:

“ When carrying out his arrest the police had used disproportionate force, despite the fact that the applicant had offered no resistance and followed their orders. The applicant claimed that in the course of his arrest the police officers had hit him in the face, head, back, and legs, kicked him in the face, fired on various parts of his body with the EDW, forced him to drink blood from the floor, and strangled him with a T ‑ shirt folded around his neck. ...

...

All those arrested submitted that the police had acted violently. They had not resisted, and had followed the orders given during their arrest. Thus, there had been no need to use the EDW or other coercive measures. Moreover, all those arrested had been taken completely by surprise by so many police officers storming the flat and using the stun grenades. This had eliminated any resistance on their part.”

6 . In light of the above, there is no reason we can see, and certainly no “necessity”, for creating what appears to us to be an artificial distinction between two “stages” of the arrest operation rather than treating the whole operation (i.e. both “stages” of it) as a single operation which is the subject of a single complaint.

The “first stage”

7 . Adopting for present purposes the distinction introduced by the majority, it is clear from the evidence in relation to the initial/early stages of the arrest (the “first stage”) that the police operation in this case took place in the context of an investigation into a most serious criminal offence, namely kidnapping. That said, it also appears (though this is of absolutely no relevance to the assessment under Article 3) that the arrest was being effected “after the event”, i.e. after part of the ransom had been paid and the victim had been released and there was not, therefore, unlike the explanations sought to be advanced in Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010, any intention of saving the victim ’ s life or preventing a deterioration of the victim ’ s situation.

8 . In assessing the applicant ’ s complaint under Article 3 it is important to note that the judgment, in § 71 and by reference to the totality of the arrest operation and before drawing the distinction between the two “stages” of that operation, makes clear that “[h]aving regard to medical certificates issued in the course of the applicant ’ s custody and the forensic opinion ’ s conclusions, ... the existence of the applicant ’ s injuries sustained in the course of his arrest is beyond dispute”.

9 . The evidence in relation to the “first stage” recorded in the judgment further makes clear that:

(a) although the arrest took place in a flat with a number of occupants, of the five persons in the flat, only two (the applicant and his girlfriend) were sought and arrested in connection with the kidnapping and the remaining three were, in fact, only arrested on suspicion of possession of drugs (§ 26);

(b) the arrest was carried out by 15 police officers, including 8 officers from a special anti-terrorist police squad who “were equipped with rifles, helmets and bullet-proof vests, and were wearing balaclavas and used a stun grenade” (§ 31) to enter the flat;

(c) (as the relevant police officer himself confirmed and the prosecutor established) at the time of the first use of the EDW on the applicant he was “lying down on the floor with his hands under his body” and one of the officers was “sitting on the applicant”. Nevertheless, it is recorded that, according to his own evidence, that same officer nevertheless decided to use the EDW on the applicant “given the risk that [he] might have a firearm and seeing that [he] had refused to be handcuffed” (§ 32); and

(d) (as corroborated by one of the other occupants of the flat) after the police had ordered everyone to get on the floor, the applicant “had been kicked and hit by three police officers, and ... the EDW had been used on him” (§ 25).

10 . The general principles underlying this Court ’ s approach to an allegation of treatment contrary to the requirements off Article 3 by someone wholly or largely within the control of the police are well known and the judgment understandably limits itself (§ 67) to a cross reference to the relevant paragraphs in the Court ’ s recent judgment in Bouyid v. Belgium [GC], no. 23380/09, 28 September 2015.

11 . However, in light of the majority ’ s conclusion that “[h]aving regard to the conflicting evidence as well as the shortcomings in the investigation (...), the Court is unable to determine whether the use of force by the police during the first stage of the operation was excessive” (§ 76) it is worth setting out what are, for me, the key elements of the Court ’ s approach in relation to the assessment of the evidence in such cases:

“ Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( ... ).

On this latter point the Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim ( ... ). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government ( ... ). That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see, among other auth orities, Salman, cited above, § 99). (Bouyid at §§ 82-83, underlined emphasis added).

The Court notes that Article 3 does not prohibit the use of force in certain well-defined circumstances. However, such force may be used only if indispensable and must not be excessive ( ... ). When a person is confronted by the police or other State agents, recourse to physical force which has not been made strictly necessary by the person ’ s own conduct diminishes human dignity and is in principle an infringement of the rights set forth in Article 3 of the Convention ( ... ). Such a strict proportionality approach has been accepted by the Court also in respect of situations in which an individual was already under the full control of the police ( ... ). The Court attaches particular importance also to the type of injuries sustained and the circumstances in which force was used ( ... ).

Where injuries have been sustained at the hands of the police, the burden to show the necessity of the force used lies on the Government ( ... ). (Anzhelo Georgiev, §§ 66 - 67, underlined emphasis added). ”

12 . When applying these principles to the facts of this case, as summarised above, it is further important to bear in mind

(a) the view of the CPT, as recorded in § 70 of its 2010 Report (not reproduced in the judgment but reiterated by the CPT in § 22 of its report on its visit to Poland in 2017, judgment § 54) that “the use of EDW should be limited to situations where there is a real and immediate threat to life or risk of serious injury. Recourse to such weapons for the sole purpose of securing compliance with an order is inadmissible. Furthermore, recourse to such weapons should only be authorised when other less coercive methods (negotiation and persuasion, manual control techniques, etc) have failed or are impracticable and where it is the only possible alternative to the use of a method presenting a greater risk of injury or death”; and

(b) the fact that, in § 72 of that Report (judgment § 53), the CPT gives as its example of “misuse” of EDWs “the repeated administration of electric shocks to persons lying on the ground”.

13 . In light of the evidence before this Court, including that given by the police officer in question, and having regard to the guidance given by the CPT, it is clear that, absent a “a satisfactory and convincing explanation” from the Respondent Government, there are here “strong presumptions of fact” leading to the inevitable inference that the force used was excessive and that it amounted to a substantive violation of Article 3 of the Convention.

14 . No such “satisfactory and convincing explanation” has, however, been provided by the Respondent Government or the domestic authorities. On the contrary, as the judgment records in § 76, the Government sought to justify the use of the EDW, on an individual lying on the floor with his hands under his body, essentially on the basis of “the applicant ’ s refusal to follow police orders”. As the CPT ’ s conclusions make clear, such an explanation cannot, on its own, be sufficient and, in principle, the repeated use of an EDW on a person lying on the ground is a misuse of such a weapon. However, no further explanations or attempts at justifying the use of the EDW was provided. In fact, as the judgment further notes in §§ 90 ‑ 95, the domestic investigation, and therefore by necessity the Respondent Government before this Court, “did not give answers to a number of major questions arising in the case, specifically how exactly the officers had used force against the applicant, whether its use had been proportionate and what the origin of the acknowledged injuries had been” and “failed to address the applicant ’ s allegations concerning the repeated use of an EDW after the applicant had been immobilised on the floor”.

15 . As a consequence, it appears to us that the only option open to the Court was to conclude, as it had done in Anzhelo Georgiev , § 78, that the authorities failed to discharge the burden satisfactorily to disprove the applicants ’ version of the events and did not furnished convincing arguments to justify the degree of force used against the applicant and that it is therefore satisfied that during “first stage ” of the police operation of 11 June 2011 the police subjected the applicant to treatment incompatible with Article 3 of the Convention.

16 . For the majority to assert that it is “unable” to determine this issue and to refuse to reach a final conclusion about whether the treatment during the “first stage” of the arrest, a question which only falls to be answered because the majority chose to distinguish between different “stages” of the arrest, is not only inconsistent with the Court ’ s established approach under Article 3 to cases such as the present but amounts to an unwarranted reversal of the burden of proof in relation to the justification of force used in relation to an individual under the control or in the custody of the authorities, inconsistent with the fundamental values of a democratic society enshrined in Article 3.