PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

1. I agree with the conclusion finding a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant ’ s complaints that he sustained injuries in the prison colony.

2. However, I cannot share the majority ’ s opinion that there was no violation of Article 3 in its substantive aspects as regards the alleged ill-treatment.

I. As to the factual circumstances of the case

3. According to the applicant, during the period of 1 to 7 August 2002 he was severely beaten on several occasions by members of the special unit, who had arrived in the colony to carry out searches of the cells (see paragraph 14 of the judgment). [1]

4. The applicant made very serious allegations, namely that as a result of the use of force, his ribs were broken and his left kidney damaged. The recollection of the events as presented by the applicant do not contain the slightest contradiction. It is undisputed that he was X-rayed but was never given a copy of the results (see paragraph 15). Admittedly, the colony doctor indicated “no injuries” on the applicant ’ s medical card on 1 August 2002 (see paragraph 18). Subsequently, after having been admitted to the colony hospital in early September 2002, the applicant was diagnosed with a kidney disease (according to the applicant) or with diabetes (according to the documents submitted) (see paragraph 20). A surgeon at the colony hospital examined the applicant and diagnosed him with “an injury to the left side of the chest” (see paragraph 21). More than a month later, the applicant underwent a “large picture from photoroentgenography ”, which revealed no pathological changes” (see paragraph 22). However, an expert noted in January 2003 that it was necessary to perform a plan (survey) X-ray of the applicant ’ s chest in order to “establish whether he had [sustained] fractures of the ribs” (see paragraph 26). An X-ray performed in November 2005 showed some deformation of the applicant ’ s left rib no. VIII, which, according to the forensic experts “was consistent with a united fracture that occurred at the time and in the circumstances described in the documents” (see paragraph 34).

5. It should also be noted that the use of force as such (see paragraph 27) has not been disputed by the respondent Government.

6. For my part, I consider those limited findings – established only within the closed prison environment, that is, within the prison colony –, taken together with the applicant ’ s account of the events, very worrying. I am satisfied that the applicant has, at the least, established an arguable claim.

7. As the Court rightly notes in paragraph 54 of the judgment, a particularly thorough scrutiny should be applied where the applicant raises an arguable complaint of ill-treatment.

8. In paragraph 57, however, the majority regrettably places emphasis on the fact that “the applicant ’ s version of events has not been backed up by persuasive evidence or reliable witness testimonies”. In my view, the majority view does not take sufficient account of the enormous difficulties faced by the applicant in gathering evidence in the context of a closed prison environment.

9. The applicant ’ s arguable complaint of ill-treatment should have prompted a serious and detailed investigation. The numerous shortcomings of the investigation (paragraphs 59-65) have led the Court to find a violation of the procedural limb of Article 3. The inadequacy of the investigation deprived the Court of more precise information concerning the substance of the claim.

II. As to the uncertainties surrounding the burden and standard of proof in proceedings concerning alleged violations o f Article 3 of the Convention.

10. This case highlights once again the two technical problems faced by the Court when it comes to establishing the factual circumstances related to allegations of ill-treatment.

11. Firstly, the question of the burden of proof and, secondly, the question as to the standard of proof.

12. As to the burden of proof , and in the event of an arguable complaint of ill-treatment, I am of the opinion that the onus of proof should shift to the State to provide a full account of the events. [2] In the present case the State has provided nothing by way of explanation. The Court found in this respect a procedural violation of Article 3 of the Convention.

13. As to the standard of proof , I would like to emphasise firstly that in exceptional cases such as the present one, the standard of proof “beyond a reasonable doubt” is too stringent a standard to be of practical use. Indeed, one should not forget that the victim of alleged violations of Article 3 is, in most cases, deprived of the means of substantiating his grievance and the only evidence he can produce is his own testimony. [3] Admittedly, the Court has never softened this standard in its case-law. [4] However, as Judge Bonello pointed out in his partly dissenting opinion in the case of Sevtap Veznedaroğlu v. Turkey ( no. 32357/96 , 11 April 2000 ),

“expecting those who claim to be victims of torture to prove their allegations ‘ beyond reasonable doubt ’ places on them a burden that is as impossible to meet as it is unfair to request. Independent observers are not, to my knowledge, usually invited to witness the rack, nor is a transcript of proceedings in triplicate handed over at the end of each session of torture; its victims cower alone in oppressive and painful solitude, while the team of interrogators has almost unlimited means at its disposal to deny the happening of, or their participation in, the gruesome pageant. The solitary victim ’ s complaint is almost invariably confronted with the negation ‘ corroborated ’ by many” (see paragraph 14 of the Opinion).

This is even more true where the alleged ill-treatment occurred in the closed environment of a prison.

14. In my view, therefore, the time has come for the Court to reconsider its traditional approach as to the burden and standard of proof in those cases where it identifies numerous and serious shortcomings in the investigation.

I II. As to the consequences to be drawn from an inadequate and ineffective investigation

15. However, even applying the traditional standard of “proof beyond a reasonable doubt”, I am of the opinion that the Court should have found a violation of Article 3 in its substantive aspect.

16. The applicant set out his complaint in a coherent and convincing manner. He presented an arguable claim based on credible assertions which, regrettably, did not prompt an effective and thorough official investigation.

17. Consequently, in my view, the inadequacy and ineffectiveness of the investigation into the applicant ’ s complaint amounts not only to a violation of the procedural aspect of the complaint in question. It amounts also to a strong corroboration of the same complaint in its substantive aspects, as there is a serious risk that a deficient investigation covered up guilty behaviour by the members of the special unit.

18. As Judge Loucaides rightly pointed out in his dissenting opinion in the case of Petropoulou-Tsakiris v. Greece ( no. 44803/04, 6 December 2007 ), the majority ’ s approach may encourage the authorities to use unacceptable methods of investigation into facts amounting to ill-treatment in respect of individuals such as the applicant or other persons who do not have eyewitnesses to corroborate their complaints of ill-treatment. This is particularly true with regard to violence within the closed prison environment. Or, as Judge Bonello put it in his partly dissenting opinion in the case of Veznedaroğlu v. Turkey , “[the applicant] has been penalised for not coming up with evidence that the Convention obliges the State to procure” (see paragraph 19 of the Opinion).

19. In the case of Ireland v. the United Kingdom ( 18 January 1978, Series A no. 25 ), the Court stated that it:

“adopts the standard of proof beyond reasonable doubt but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context the conduct of the parties when evidence is being obtained has to be taken into account (emphasis added)” [5]

20 . To sum up, and in the light of the above, I believe that the applicant ’ s version of events is true and I am satisfied that there has been a violation of Article 3 in its substantive aspect.

[1] I would like to emphasise that this is not the first time that the Court has had to deal with operations conducted by special-purpose squad s in Russian prison colonies. In Dedovskiy and Others v. Russia ( no. 7178/03, 15 May 2008 ) , the Court found that the applicants were subjected to torture. In Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008 ), the Court again found that the applicant was subjected to treatment which can be described as torture. In Sharomov v. Russia (no. 8927/02, 15 January 2009 ), the Court, on the basis of a report, statements and the fact that the presence of a squad had been authorised and the officers had been advised of the applicable rules on the use of force, found no violation of the substantive limb of Article 3. In that case, no separate claim concerning an alleged ineffective investigation was made.

[2] See Judge Bonello’s partly dissenting opinion in the case of Sevtap Veznedaroğlu v. Turkey , no. 32357/96 , 11 April 2000 .

[3] See Loukis Loucaides , “Standards of Proof in Proceedings Under the European Convention on Human Rights”, in Présence du droit public et des droits de l’homme . Mélanges offerts à Jacques Velu , Bruxelles , Bruylant , 1992, p. 1431 , and reprint in Essays on the Developping Law of Human Rights , Leiden, Boston, Martinus Nijhoff , 2007, p. 158.

[4] On the standard of proof, see Patrick Kinsch , “On the Uncertainties surrounding the Standards of Proof in Proceedings before International Courts and Tribunals”, in Individual Rights and International Justice, Liber Fausto Pocar , Milan , Giuffrè Editore , 2009, p. 427.

[5] See also the partly dissenting opinion of Judge Loucaides , joined by myself, in the case of Zubayrayev v. Russia ( no. 67797/01, 10 January 2008 ).