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

the applicant in gathering evidence.
9. The applicant's arguable complaint of ill-treatment should have prompted a serious and detailed investigation. The numerous shortcomings of the investigation 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 of Article 3 of the Convention

10. As I have already explained in my partly dissenting opinion in the case of Alibekov v. Russia (No. 8413/02, 14 May 2009), a case of this nature highlights once again the two technical problems faced by the Court when it comes to establishing the factual circumstances relating to allegations of ill-treatment.
11. Firstly, there is the question of the burden of proof and, secondly, the question as to the standard of proof.
12. As to the burden of proof, 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. <*> In the present case, as in the case of Alibekov, the State has provided nothing by way of explanation. The Court found in this respect a procedural violation of Article 3 of the Convention.
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<*> See Judge Bonello's partly dissenting opinion in the case of Sevtap {Veznedaroglu} v. Turkey, No. 32357/96, 11 April 2000.

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 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. <*> Admittedly, the Court has never softened this standard in its case-law. <**> However, as Judge Bonello pointed out in his partly dissenting opinion in the case of Sevtap {Veznedaroglu} v. Turkey (No. 32357/96, 11 April 2000),
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<*> See Loukis Loucaides, "Standards of Proof in Proceedings Under the European Convention on Human Rights", in {Presence} du droit public et des droits de l'homme. {Melanges} offerts {a} Jacques Velu, Brussels, Bruylant, 1992, p. 1431, and reprint in Essays on the Developing Law of Human Rights, Leiden, Boston, Martinus Nijhoff, 2007, p. 158.
<**> 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, {Giuffre} Editore, 2009, p. 427.

"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)
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 investiga

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