PARTLY DISSENTING OPINION OF JUDGE KARAKAÅž

The Court found “substantive” and “procedural” breaches of Article 3 of the Convention in relation to the ill-treatment claimed to have been inflicted on the applicant and as a result of the authorities ’ failure to conduct a proper investigation into the applicant ’ s allegations of police brutality.

I voted in favour of finding a “procedural” breach of Article 3 in view of the shortcomings in the investigation, as identified by the Court. However, to my regret, I respectfully disagree with the majority as regards their finding of a “substantive” breach of that provision. In my opinion, the majority ’ s conclusion runs counter to the factual findings and legal principles established in the case-law of the Court.

In concluding that there had been a substantive violation of Article 3, the majority attached fundamental importance to the third medical report dated 29 May 2002, not obtained by the applicant until three days after his release from police custody. In so far as the burden of proof is concerned , I find this conclusion erroneous having regard to the Court ’ s established case-law which states that “where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Ribitsch v. Austria , judgment of 4 December 1995, Series A no. 336, p. 26, § 34).

In the instant case, the first two medical reports drawn up by the doctor who examined the applicant immediately after his release from custody stated that there were no signs of ill ‑ treatment on the applicant ’ s body. Accordingly, to my mind, the Government discharged their obligation to provide proof that the applicant did not have any injuries at the time of his release. The burden of proof thus shifted to the applicant, who was under an obligation to adduce evidence that the symptoms noted in the third medical report were the result of treatment which he had suffered during his detention in police custody and had not occurred after his release. However, he has failed to do so. He could also have obtained a n additional medical report on the day he was released.

The majority disregarded the first two medical reports on the basis of the applicant ’ s claim that the doctor who carried out the first two examinations did not take account of his allegations of ill-treatment (see paragraphs 10 and 53). I find it difficult to understand how the majority could draw such a negative inference from this claim which the Court was, moreover, unable to verify ( ibid .) .

In view of the above, I consider that that there has been no violation of Article 3 under its substantive limb and that, therefore, the amount awarded to the applicant for just satisfaction should have been less than EUR 10,000.