CONCURRING OPINION OF JUDGE POWER-FORDE

It was with some hesitation that I voted with the majority in this ca se. Both the Convention and the rules of procedure are silent as to the standard of proof this Court should adopt in determ ining complaints made thereto. In respect of alleged violations of Articles 2 and 3 of the Convention, the former Commission adopted the criminal standard of ‘ proof beyond reasonable doubt ’ in the Greek case. [1] That standard was subsequently applied by the Court over thirty years ago in Ireland v the United Kingdom [2] and it has continued as a ‘ constant ’ within the Court ’ s case law eve r since. Some commentators have argued, robustly, that the common-law standard of proof beyond reasonable doubt adopted in criminal trials has no place in the scrutiny of the human rights ’ responsibilities of states conducted by an international court of non-criminal jurisdiction. [3] This Court is not a criminal court trying individuals charged with criminal offences and expecting victims of serious violations to prove their allegations ‘ beyond a reasonable doubt ’ places upon them an onerous and unfair burden. [4] Compelling as such arguments are, I find myself bound to apply the standard of proof which this Court has consistently required. Consequently, although I have considerable misgivings about the care afforded to the applicant ’ s son whilst a vulnerable detainee in the custody of the respondent State, I cannot conclude beyond a reasonable doubt that it was responsible for his death.

That said, however, one would hope that the authorities will take cognizance of important lessons that can be learned from t his case. Firstly, although distinguishable from the deceased in Keenan v. the United Kingdo m [5] or Ketreb v. France [6] in that the applicant ’ s son was not diagnosed with a specific psychiatric condition, he was, nevertheless, a vulnerable person with a chemical dependency whose condition required particular care on the part of the authorities. Having threatened to commit suicide after altercations with two other prisoners, he should not have been transferred to the same block in which they were detained or, at the very least, he should not have been exposed to def enceless encounters with them. One would hope that, henceforth, where a vulnerable prisoner threatens to commit suicide following conflict with other detainees, the authorities will take particular care to ensure that unsupervised contact between such prisoners is not made possible.

Secondly, if such contact does occur, the authorities should have in place standard operating procedures whereby such incidents are reported and recorded and appropriate follow-up monitoring is ensured. The authorities ’ failure in this case to have such procedures in place was a significant omission on their part.

Thirdly, if a decision is taken to change a vulnerable prisoner ’ s placement because his safety and well-being so require, that decision should not be reversed solely as a form of punishment for a breach of prison rules. A clear distinction, in principle, between the purpose of ‘ placement ’ and ‘ punishment ’ needs to in place.

Finally, the prison administration in the respondent State can no longer ‘ turn a blind eye ’ to the pre valence of drugs in Dob prison. It is evident from the judgment that narcotics are, relatively, easily accessible to p risoners within that facility. With that knowledge, the prison authorities cannot wash their hands of the adverse consequences that flow from thei r “toleration” of the problem. Vulnerable individuals with chemical dependency will continue to feed their addiction (rejecting, as did the applicant ’ s son, alternative methadone programmes) and drug pushers will, in their characteristic way, continue to exploit such persons. This entire scenario cannot but have contributed to the overall desperate situation in which the applicant ’ s son found himself. Whilst I cannot, beyond reasonable doubt, fix the respondent ’ s state with responsibility for his death, I can hope that it will address the obvious deficiencies in the existing regime in the light of the events in this case.

[1] Yearbook of the Convention, 1969, p. 196, § 30.

[2] 18 January, 1978, A 25, § 161.

[3] See, for example, Loucaides, L. G. Standards of Proof in Proceedings under the European Convention on Human Rights in Essays on the Developing Law of Human Rights , (Matrinus Nijhoff, 1995, pp 157-169).

[4] Bonello, G. Evidentiary Rules of the ECHR in Proceedings Relating to Articles 2, 3 and 14—A Critique , in Inter-American and European Human Rights Journal Vol. 2, No 1 – 2, 2009, pp. 66 -80.

[5] Application no. 27229/95, ECHR 2001 ‑ III.

[6] Application no. 38447/09 , 19 July 2012.