PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the majority ’ s finding that there has been a violation of A rticle 3 of the Convention in its substantive aspect. At the same time, I agree with the view that the investigation carried out by the authorities was ineffective and that there has been a violation of the procedural limb of Article 3.

2. It has been established by the Court that the applicant tried to escape from the apartment where he was apprehended by the police and that he resisted arrest. It is not disputed that the police had to use force to arrest the applicant. It is also clear that because of his resistance and aggressive behaviour the applicant suffered some kind of injuries during the arrest.

However, the exact circumstances of the arrest and detention at the police station on 9 June 2006 are disputed by the parties. It is not possible to establish these circumstances on the basis of the evidence provided by the parties. In particular , it is not possible to establish what kind of injuries were caused to the applicant during the arrest or whether further injuries were inflicted at the police station. The available evidence does not allow the conclusion that the injuries were necessarily inflicted on the applicant when he was detained at the police station. Given the lack of detailed information on what exactly happened during the arrest and in the police station, it is not possible to assess whether the measures applied by the police were justified and proportionate. It remains unclear to wh at extent the injuries were the result of the applicant ’ s behaviour and to wh at extent they were caused by the action of the police. The fact that the applicant was handcuffed before his arrival at the police station does not necessarily mean that he was unable to assault the police officers . Furthermore, I do not know what the atmosphere was like at the police station. Whereas I agree that it is not possible to conclude from the case file that the applicant ’ s conduct justified the deployment of strict restraint measures by the police, I cannot exclude the fact that his conduct might have justified such measures.

3. I cannot agree with the finding that the Government ha d not furnished any information indicating that the injuries might have been sustained before his arrest. The Government presented arguments that cast doubt on the version of events given by the applicant. They expressly stated that, in their view, the injuries had been inflicted during his apprehension. They gave an account of events that demonstrate d the necessity of the use of force during the a rrest.

The Government drew attention to the fact that the applicant had been under the influence of narcotics when he was arrest ed . This fact could have had a major impact on the course of events. They also pointed out that the applicant had been diagnosed by medical experts as having an inclination to wards self- harm . I am not in a position to assess the credibility of th at statement , but I consider that it should not be ign ored.

4. The adjudication o f complaints under A rt icle 3 of the Convention requires a clear division of the burden of proof between the parties. In the present case the presumption that arises from the fact that someone was taken into police custody in good health does not apply. It is not clear for me how the burden of proof was divided between the applicant and the Government. Whereas the standard of proof “beyond reasonable doubt” imposes a burden that may be impossible to meet for applicants, it is also necessary to take into account the unavoidable limits of a most effective investigation carried out in good faith by the authorities.

5. In the case of Grimailovs v. Latvia (no. 6087/03, 25 June 2013) the Court, when considering an allegation of ill-treatment by the police, was confronted with similar difficulties in establishing the facts. The reasons in that judgment state that the Court found it “impossible to establish, on the basis of the evidence before it, whether or not the applicant ’ s injuries were caused as alleged ” . Therefore the Court could not find a violation of the substantive aspect of Article 3 of the Convention. I do not see any reason to depart from the approach adopted in that case.