CONCURRING OPINION OF JUDGE KALAYDJIEVA JOINED BY JUDGE DE GAETANO

I fully share the opinion that the present case discloses a violation of Article 3 of the Convention. This provision, “ ... read in conjunction with the State ’ s general duty under Article 1 of the Convention to ‘ secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention ’ , requires by implication that there should be an effective official investigation ... capable of leading to the identification and punishment of those responsible ... If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance ... , would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ” ( see Assenov and Others v. Bulgaria , 28 October 1998, § 102 , Reports of Judgments and Decisions 1998 ‑ VIII ) .

While the Court has clarified that the positive obligation to investigate arguable claims of ill-treatment is not “ one of result, but of means ” , I find it increasingly disturbing that the Court is regularly confronted not only with instances of failure to use all appropriate means to investigate, but also with the absence of reasonable and plausible explanations for what sometimes appears to be a deliberate reluctance to do so. Practices of delays and failure to investigate are reflected in cases (among others) where the alleged victim ’ s timely access to independent medical experts to document injuries allegedly sustained was barred ; where there was an unwarranted refusal by the investigating authorities to collect relevant evidence in a timely manner ( for example, the failure to question potential independent eyewitnesses); or where the authorities prefer red to withhold such evidence ( for example, a video recording of an interrogation).

Where the domestic investigating authorities fail to take all relevant steps “ capable of establishing the circumstances and leading to the punishment of those responsible ” , the Court is not only required yet again to act as a first - instance court in trying to establish the facts, but is at times also confronted with a new line of objections on the part of the Government seem ingly rely ing on the very failure to investigate such alleged treatment. In some cases the national authorities have relied on the delayed, contaminated or self-limited scope of the investigation in argu ing that, while such endless proceedings remain pending at domestic level, an examination under the substanti ve aspect of Article 3 by the Court might risk a premature interference with the rights of officers suspected of ill-treatment to be presumed innocent and to have the issue of their guilt determined in accordance with their right to a fair trial.

Inexplicable failures to examine claims of alleged ill-treatment not only have the effect of barring the victims ’ access to compensation proceedings at national level, but also prevent public scrutiny of potential abuse. Under the current practice of the Court , they also inevitably result in limiting the Court ’ s scrutiny to the “cheaper” procedural limb of Article 3. Far from resulting in the adoption of appropriate individual measures ( such as the reopening of any contaminated investigations, or the bringing to account of those who carried them out in bad faith) and/or general measures to provide effective domestic remedies to prevent the recurrence of similar violations , the Court ’ s limited scrutiny now risks allow ing the positive procedural obligation of S tate s P arties to turn, albeit unwittingly, into an instrument that is increasingly liable to serve the opposite purpose, namely that of ensuring impunity.

Is it not the time for the Court to either require reasonable and plausible explanations for failures to investigate or, in the absen ce of such explanations, to draw inferences as to whether the failures de facto pursued or achiev ed impunity?