JOINT DISSENTING OPINION OF JUDGE S MYJER AND LÓPEZ GUERRA

We voted against finding a procedural violation in this case.

We subscribe to the majority ’ s view that the diagnosis established by the doctors who examined the applicant after the incident indicates that the latter ’ s condition , if caused by the police , was sufficiently serious to amount to ill-treatment within the scope of Article 3 (see paragraph 72 of the judgment). We are also in agreement that , as was said, for instance, in the Cobzaru v. Romania judgment (no. 482549/99, § 65, 26 July 2007), “where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny , even if certain domestic proceedings and investigations have already taken place” (see paragraph 83 of the judgment). And we agree that a substantial criminal investigation was carried out in the case by the domestic authorities (see paragraph 84).

From the facts (see paragraphs 23-37) it is clear that the Romanian authorities took the allegations seriously and carried out an immediate and extensive investigation , hearing all kind of witnesses and ordering expert reports.

The majority still have doubts as to the effectiveness of the investigation and give examples of what should have been investigated as well.

At this point we would like to note that the same paragraph 65 of the Cobzaru judgment cited above starts as follows: “The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact , where this is not rendered unavoidable by the circumstances of a particular case (see , for example , McKerr v. the United Kingdom (dec.) , no. 28883/95, 4 April 2000).”

Looking at the way the investigation was carried out in this particular case , we strongly believe that this is one of the cases where the Court should not try to take on the role of a first-instance tribunal and indicate what the national authorities should have investigated as well, or dismiss as inadequate the inferences drawn by the national authorities from the direct examination of witnesses and other evidence .