PARTLY DISSENTING OPINION OF JUDGE KJØLBRO

1 Like my colleagues, I find it proven that the applicant was ill-treated while she was in police custody and that there has been a violation of Article 3 of the Convention. However, in my view the ill-treatment should not be characterised as torture, but as inhuman and degrading treatment. Therefore, I voted against awarding the applicant EUR 45,000 euros (EUR) in respect of non-pecuniary damage (point 4(a) of the operative provisions). The applicant should, in my view, have been awarded EUR 20,000 as compensation for non-pecuniary damage.

2 . Torture is the most serious kind of ill-treatment prohibited by Article 3 of the Convention, and it has to be proven beyond reasonable doubt in order for the Court to find a violation of that limb of Article 3.

3 . I agree with my colleagues that the Government have not been able to provide a plausible explanation for the injuries sustained by the applicant while she was in detention and consequently that there has been a violation of Article 3 of the Convention. However, the evidence is insufficient to find it proven beyond reasonable doubt that the ill-treatment amounts to torture.

4 . Two days after the arrest, when the applicant was examined by a doctor, the doctor noted that the applicant “had a scrape under her left armpit, a 7-8 cm-long large brown macule on her right forearm and a 3 cm-long oedema on her forehead above the nose” and that she had complained that she “had been hung by her arms for approximately ten minutes and that her head had been banged against a wall” (see paragraph 7 of the judgment). Furthermore, a week after the arrest, when the applicant was examined by a prison doctor, the doctor noted that the applicant had “a 4x5 cm mark on her right forearm and a swelling on her right clavicle” and that she had stated that “her arms felt painful and she had a headache” (see paragraph 9 of the judgment).

5 . In my view, the applicant ’ s allegation that she had been “hung by her arms for approximately ten minutes” while she was being ill-treated is not sufficiently supported by the medical information in the file. There is no mention of signs consistent with the applicant having been hanging by the arms for ten minutes. Nor does the investigation at domestic level support her allegations in that regard. Therefore, I disagree with my colleagues that “the findings contained in the medical reports were consistent with at least the applicant ’ s allegations of having been hung by her arms” while she “received blows to her head” (see paragraph 34 of the judgment).

6 . Furthermore, I find no basis in the file for saying that the ill-treatment “was inflicted in order to obtain information from the applicant about her suspected connection with” an illegal organisation (see paragraph 35 of the judgment). There is simply insufficient factual basis for that statement. As the facts have been presented to the Court, the Court does not even know for a fact that the applicant was questioned by the police in the period after the arrest on 7 June 1999 and before the medical examination on 9 June 1999. This may very well have been the case, but it is not apparent from the facts of the case (see paragraphs 6-7). Therefore, there is insufficient basis for saying that the ill-treatment was inflicted “in order to obtain information” from the applicant.

7 . As I do not find it proven that the applicant was hung by her arms for ten minutes while she was being ill-treated, or that she was ill-treated in order to obtain information, I cannot find it proven beyond reasonable doubt that the applicant was the victim of torture. However, as already mentioned, I agree with my colleagues that there has been a violation of Article 3 of the Convention.