JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER, MØSE AND O ’ LEARY

The judgment is unanimous that there has been a violation of Article 5 §§ 1 and 4 of the Convention; that there h as been no violation of Article 6 as regards the applicant ’ s conviction on multiple counts of robbery and possession of firearms; and the respondent State has not failed to comply with its obligations under Article 34. We also agree with the majority which found that there has been no violation of Article 6 §§ 1 and 3 (c) as regards the applicant ’ s conviction for murder .

However , we disagree with the majority ’ s findings concerning the applicant ’ s complaint that he was ill-treated by the police between 11 and 12 June 2004. In our view this complaint is not supported by sufficient evidence and is therefore inadmissible as unsubstantiated (operative paragraphs 1 (i) of the judgment). Consequently, there is no basis for finding violations of Article 3 under its procedural or substantive limb (operative paragraphs 3 and 4).

Before focusing on the allegation concerning 11 and 12 June 2004 it should be recalled that the applicant also invoked Article 3 in respect of other events (paragraph 78 of the majority judgment). The Chamber, again unanimously, has declared these complaints inadmissible as manifestly ill ‑ founded (paragraphs 81 and 82). It considers, in particular:

- that the applicant ’ s complaints that he was subjected to electric shocks, suffocated using a gas mask, had needles inserted under his nails, was hung over a metal bar and subjected to sexual abuse between 11 and 12 June 2004 (paragraph 10) are not supported by any evidence;

- nor is there any evidence for his complaints of ill-treatment by the police after 12 June 2004 (paragraphs 13 and 21), by a prosecutor on 30 August 2004 (paragraph 17) or by the guards escorting him to court hearings (paragraph 22). As the applicant did not demonstrate that he had raised those complaints in a meaningful way before the domestic authorities, they are not considered “arguable” for the purposes of Article 3 of the Convention;

- that the applicant ’ s complaints concerning alleged ill-treatment by inmates on account of his past service in the police (paragraph 23) are entirely unsubstantiated.

Turning to the events between 11 and 12 June 2004 (paragraphs 6, 7 and 9 of the judgment), it is common ground that on 11 June 2004, at about 11 p.m., a group of four police officers boarded the train to Moldova and arrested the applicant and his suspected accomplice, who were both on a wanted list, accused of having committed multiple robberies. The police had been informed that they could have been in possession of a gun. It emerges from the police report of 12 June that the police resorted to “hand-to-hand combat techniques” and used handcuffs to restrain them. The same report stated that the applicant had “resisted lawful demands of the police ... had behaved aggressively, had refused to present his identity documents, had tried to run away [and] had grabbed the police officers ’ clothes”. The subsequent police report of 17 August 1004 also noted that the applicant had bruises on his body aft er his arrest.

Following the applicant ’ s complaint on 12 June 2004 that he had been beaten up by the police at the police station, a medical expert found multiple bruises on the applicant ’ s body and face. The expert classified them as “minor” but also noted, in view of the applicant ’ s allegations, that he could have been punched and kicked in the he ad and body (see paragraph 12).

Subsequently, the applicant withdrew his complaints on 29 and 30 June 2004, the last time in the presence of his lawyer (see paragraphs 14 and 15), and then resubmitted his complaints with respect to 11 and 12 June. These complaints were considered several times. On 29 September 2005, when studying the case file, the applicant tried to destroy several documents, in particular those concerning his statements made on 29 June 2004 (paragraph 47). On 11 February 2006 the prosecutor ’ s office maintained their conclusion that the allegations about ill-treatment were unsubstantiated. The applicant did not lodge any complaint against that decision.

The applicant ’ s complaints about ill-treatment were also examined by the courts during the trial and on appeal. In its judgment of 30 March 2007, the Appeal Court rejected them as unsubstantiated, and at the same time noted that, contrary to the applicant ’ s submissions, a certain M. had not been killed by the police, but that he had died because he had been injured by the applicant ’ s other accomplice during one of their robberies (paragraph 54). Following a retrial ordered by the Supreme Court in respect of some of the convictions, the Appeal Court on 11 August 2008 maintained its view that the complaints about ill-treatment were unsubstantiated (paragraph 61). On 16 December 2008 the Supreme Court reached the same conclusion (paragraph 64).

As stated in the majority judgment (paragraph 90), the Court is sensitive to the subsidiary nature of its task and must be cautious in taking the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances. In the present case, the applicant ’ s complaints about ill ‑ treatment between 11 and 12 June 2004 were not only repeatedly considered unsubstantiated by the prosecutor ’ s office and by the Appeal Court and the Supreme Court but even the Chamber held that the description of events given by the applicant (insertion of needles under his nails etc.) could not be true according to the findings of the medical expert (see paragraphs 81 and 82).

The applicant ’ s injuries were minor and could be explained by the need to use force during his arrest, as he, armed with a gun, resisted the police officers and tried to escape. Aside from the applicant ’ s claims, there was no other evidence suggesting ill-treatment between 11 and 12 June 2004. His credibility is highly doubtful, however, as demonstrated above. In particular, he made numerous complaints about ill-treatment which the Chamber found totally unsubstantiated.

The fact that the applicant withdrew his complaint about ill-treatment is not in itself decisive. The Court ’ s case-law illustrates that this does not occur infrequently in cases concerning Article 3, often as a result of pressure or force from law-enforcement personnel. This said, it should be noted that that the applicant even did so in the presence of his lawyer. In addition, at no point did the applicant complain that he had been subjected, when arrested on 11 June 2004, to disproportionate force itself amounting to ill-treatment within the meaning of Article 3. When examining the substantive limb of Article 3 the majority judgment partly transforms the applicant ’ s complaint to this Court (described in paragraphs 12 and 83 but subsequently enlarged in paragraph 101 of the majority judgment) in order to permit the finding of a substantive violation.

In a large number of judgments involving Ukraine, the Court has found substantive and procedural violations of Article 3 of the Convention (see, for instance, Kaverzin v. Ukraine, no. 23893/03 , 15 May 2012, with further references). However, needless to say, each case must be considered in view of the particular circumstances. The present case presents particular evidentiary challenges in view of the limited credibility of the applicant.

We therefore conclude that the applicant ’ s complaint under Article 3 about ill-treatment by the police between 11 and 12 June 2004 is unsubstantiated and should be declared inadmissible as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.