Постановление Европейского суда по правам человека от 16.09.2010 «Дело Тигран Айрапетян (Tigran Ayrapetyan) против России» [англ.]

ptions of fact will arise in respect of injuries occurring during such detention.
70. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A No. 336, and Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII). The Court further reiterates that, being sensitive to the subsidiary nature of its role and cautious in taking on the role of a first-instance tribunal of fact, it is nevertheless not bound by the findings of domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, by contrast, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A No. 247-B; see also Matyar v. Turkey, No. 23423/94, § 108, 21 February 2002, and Vidal v. Belgium, 22 April 1992, §§ 33 and 34, Series A No. 235-B).
(b) Assessment of the evidence
71. In the present case it is undisputed between the parties that on the evening of 10 February 2001 the applicant was examined by a doctor at polyclinic No. 218 who concluded that the applicant's lower jaw had been fractured and recommended in-patient treatment (see paragraph 13). Between 11 February and 2 March 2001 the applicant underwent surgery and in-patient treatment in Moscow City Hospital No. 1 in this connection (see paragraphs 16 and 17). The existence of the injuries strongly supported the applicant's account of events. Indeed, regard being had to the fact that the prosecution case against officer B. was based on, among other things, medical reports confirming the above injuries (see paragraph 51), it can be said that the authorities conceded that the allegations had been credible.
72. The Court also takes note of its conclusions made in respect of the procedural aspect of Article 3 of the Convention (see paragraphs 83 and 84 below) and in particular the findings concerning the authorities' failure to react swiftly to the applicant's complaints as well as the irretrievable loss of the original documents of the applicant's medical files from polyclinic No. 218 and Moscow City Hospital No. 1.
73. The Court reiterates its established case-law that strong presumptions of fact will arise in respect of proven injuries occurring during detention and that the burden of proof is reversed and may be regarded as resting on the authorities to provide a satisfactory and convincing explanation for the injuries in question (see Ribitsch and Salman, both cited above). The Court considers that, likewise, in situations such as that in the present case, it is for the respondent Government to discharge the burden of proof and to provide a satisfactory and convincing explanation for the origin of those injuries on pain of recognition that the applicant's allegations of ill-treatment are truthful and correct.
74. In respect of the facts, the Court notes that even though at a certain stage of the investigation attempts had been made to explain the applicant's fractured jaw by his possible fall during the arrest (see paragraphs 31 and 44), this version was ultimately rejected by the prosecution in favour of the applicant's account of the events (see paragraph 45) and in any case was not adopted by the Government in the Strasbourg proceedings. Since the Government did not provide the Court with copies of the decisions analysing that version, as well as copies of documents and evidence on which it may have been based, the Court does not find it possible to speculate on its well-foundedness and concludes that no satisfactory and convincing explanation for the origin of the applicant's injuries has been obtained or advanced either at the domestic level, or in the proceedings before this Court. Without prejudice to the question of the personal criminal liability of the alleged perpetrators of the acts in question, the Court

> 1 2 3 ... 8 9 10 11 ... 12