PARTLY DISSENTING OPINION OF JUDGE KARAKA Åž

In the instant case I disagree with the majority ' s conclusion that there has been a violation of Article 3 of the Convention. In finding a breach of this provision, the majority found it established that a Turkish or Turkish ‑ Cypriot police officer hit the applicant on the leg with a bayonet, causing a deep wound in her upper tibia , during a violent demonstration that took place on 19 July 1989. It considered that the applicant ' s version of events was corroborated by:

- an affidavit sworn by a witness, Ms Olga Nicolaidou, many years after the demonstration (see paragraph 17) and;

- the medical certificate issued by Dr Stelios Georgiou on 27 March 2000, almost eleven years after the alleged incident (see paragraph 18).

When the Court is presented with conflicting accounts as to the circumstances of a case it reaches its decision on the basis of the available evidence submitted by the parties (see Kakoulli and Others v. Turkey , no. 38595/97, § 102 , 22 November 2005). In assessing the evidence before it, the standard of proof adopted by the Court is that of “beyond reasonable doubt” (see Ireland v. the United Kingdom , 18 January 1978, § 161 , Series A no. 25) ; such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

In this connection I should like to point out that there was no independent and impartial eyewitness to confirm the applicant ' s version of events. In previous similar cases where the applicants alleged that they had been assaulted by Turkish soldiers or police officers , their allegations were supported by independent reports or eyewitness statements given by United Nations personnel (see in this respect, Kakoulli and Others , cited above, §§ 37-49 ; Isaak v. Turkey , no. 44587/98, §§ 28-33 , 24 June 2008 ; and Solomou and Others v. Turkey , no. 36832/97, §§ 16-20 , 24 June 2008 ). The only witness statement submitted to the Court was that of Ms Nicolaidou, who allegedly took part in the same demonstration. Moreover, Ms Nicolaidou ' s statements were obtained many years after the demonstration (emphasis added). Bearing in mind that the passage of time takes a toll on witness es ' capacity to recall events in detail and with accuracy (see Ipek v. Turkey , no. 25760/94, § 116 , 17 February 2004), it is doubtful whether she would have been able to recollect incidents which occurred many years previously.

Furthermore, the applicant failed to furnish the Court with any other evidence in support of her allegations, such as independent reports, photographs or video footage of the incident. Again, in the above-mentioned cases, the applicants ' allegations were backed up by such evidence (see Kakoulli and Others , §§ 51-57 ; Isaak , §§ 42-58 ; and Solomou and Others , §§ 28-36 , all cited above ) and the Court relied on that evidence in the establishment of the facts of those cases.

It is undisputed that the applicant was involved in a demonstration which gave rise to an extremely tense situation. In the case of Chrysostomos and Papachysostomou v. Turkey (nos. 15299/89 and 15300/89, Commission ' s report of 8 June 1993, DR 86, p. 4), the Commission found that a number of demonstrators had resisted arrest, that the police forces had broken their resistance and that in that context there was a high risk that the demonstrators would be treated roughly, and even suffer injuries, in the course of the arrest operation (see the Commission ' s report, cited above, §§ 113-115). In the instant case, moreover, the applicant was at no point arrested or detained.

Under these circumstances, it has not been established that the applicant ' s injury was deliberately caused by the Turkish or Turkish ‑ Cypriot police. Moreover, there is nothing to show that the police used excessive force when they were confronted in the course of their duties with resistance to arrest by the demonstrators (see Protopapa v. Turkey , no. 16084/90, § 48, 6 July 2009).

As regards the medical report submitted by the applicant, I would like to stress that Dr Georgiou ' s pathology findings were based on the applicant ' s allegations and her version of events which had taken place almost eleven years previously . In this connect ion I would point out that in the case of Mehmet Sahin and Others v. Turkey (no. 5881/02, § 30 , 30 September 2008), in which one of the applicants alleged that he had suffered ill ‑ treatment at the hands of the gendarmes and furnished the Court with two reports obtained from the Human Rights Foundation of Diyarbakır almost four months and two years after his release from custody, the Court attached considerable weight to the passage of time and dismissed the applicant ' s complaints of ill-treatment.

In view of the above, I consider that the evidence before the Court does not enable it to find beyond reasonable doubt that the applicant was subjected to ill ‑ treatment by the Turkish or Turkish-Cypriot police.