PARTLY DISSENTING OPINION OF JUDGE S VLADIMIRO ZAGREBELSKY AND ANDRÁS SAJÓ

While sharing the opinion that in the instant case there has been a violation of Article 11 of the Convention, which is in our view the main point of interest in the case, we were not able to follow the majority in finding also a violation of Article 3.

In the majority ’ s view the applicant ’ s version of his arrest, “namely a gratuitous, excessively brutal attack on his person by several police officers” is unsubstantiated ( paragraph 40). However, the majority take account of the traces of a blow on the frontal region of the applicant ’ s head and finds “this injury, particularly because of its location, sufficiently serious to bring it within the scope of Article 3” ( paragraph 41). As to the origin of the injury the applicant suffered, the majority acknowledge that he continued to demonstrate despite the police warnings and the dispersal of the crowd. It is in that context that the applican t was arrested and was injured.

The majority find a violation of Article 3 because “the Government have failed to furnish convincing or credible arguments which would provide a basis to explain or to justify the head injury sustained by the applicant during his arrest, at the end of a peaceful demonstration” ( paragraph 43). In our view, the peaceful nature of the demonstration has no bearing on the circumstances of the applicant ’ s arrest, because the key factor was his own attitude when he refused to disperse and intervened when the police were arresting a fellow demonstrator ( paragraph 6).

When an applicant suffers injuries while in custody and thus in the hands of the authorities, the Court rightly ask the Government to provide convincing reasons and explanations. If such explanations are not offered by the Government, a kind of presumption of the authorities ’ responsibility often operates ( Anguelova v. Bulgaria, judgment of 13 June 2002, § 110 , and Ipek v. Turkey , judg ment of 17 February 2004, § 165 ) But in totally different circumstances like the present ones, where investigations and judicial decisions took place at national level and excluded any police responsibility ( paragraph 11-21), the reversal of the burden of proof appears to us unjustified. In fact the majority ’ s reasoning contradicts the conclusions of the national judge without finding any procedural violation of Article 3 and compels the Government to provide a probatio diabolica in the procedure before the Court .

[1] The judgment is not final yet.

[2] The judgment is not final yet.