Постановление Европейского суда по правам человека от 01.10.2009 "Дело "Топорков (Toporkov) против Российской Федерации" [рус., англ.]

ally prejudicial to human dignity?
4. Indeed, can one reasonably consider that the applicant invented all of the ill-treatment that he recounted in detail and which is referred to in paragraphs 8 and 12 of the judgment? It should not be forgotten that such treatment is impossible to prove, given that the only witnesses present were precisely those individuals accused of inflicting it.
5. Faced with the impossibility of providing evidence of a substantive breach of Article 3, the Court salves its conscience by finding a procedural violation of that provision. Is this not to take the easy way out? Is it not also to forget that a procedural violation does not have the same seriousness as a substantive violation?
6. In conclusion, in a case such as this, must the Court really always stick to the principle that, in order to be taken into consideration, the facts must have been established "beyond reasonable doubt"? I have grave reservations on this subject, and that is why I have felt it necessary to write these few lines.

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 authorities' failure to carry out an effective and thorough investigation into the applicant's allegations of ill-treatment by the police.
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, the police officers, after having arrested him on 9 March 1999, put him in the back seat of the car, where they started beating him to make him confess to the thefts until he almost lost consciousness. At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B., an investigator. One of the police officers pulled a knitted hat down over his eyes. Then they pinned him to the table and threatened to rape him with a rubber truncheon (see paragraph 8 of the judgment).
4. The applicant was released on 12 March 1999 (paragraph 10 of the judgment) and he was examined three days later by a general practitioner and a surgeon who took into account his allegations of ill-treatment and made a diagnosis of contusion as specified in paragraph 11 of the judgment.
5. In paragraph 42 of the judgment, the Court rightly "considers that the contusion diagnosed by the doctors who examined the applicant indicate that his injuries were sufficiently serious to amount to ill-treatment within the scope of Article 3". And yet the majority give the State the benefit of the doubt, raising the question "whether the State should be held responsible under Article 3 in respect of those injuries".
6. In my view there is no doubt that the State should be held responsible. To support the contrary view, the majority rely in paragraph 44 of the judgment inter alia on "the results of the authorities' inquiry into the applicants' allegations of ill-treatment", an inquiry which has been held to fall short of the requirements of Article 3 (paragraphs 46 - 57 of the judgment).
7. For my part, I am satisfied that the applicant has, at the least, established an arguable claim. As the Court rightly notes in paragraph 46 of the judgment, "the medical evidence and the fact that the applicant was being held in custody until three days before he sought medical assistance raise a reasonable suspicion that the injuries he sustained might have been caused by the police".
8. It goes without saying that a particularly thorough scrutiny should be applied where the applicant raises an arguable complaint of ill-treatment. In my view, the majority view does not take sufficient account of the enormous difficulties faced by

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