Постановление Европейского суда по правам человека от 14.05.2009 «Дело Алибеков (Alibekov) против России» [англ.]

t when it comes to establishing the factual circumstances related to allegations of ill-treatment.
11. Firstly, the question of the burden of proof and, secondly, the question as to the standard of proof.
12. As to the burden of proof, and 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 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 a 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),
"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).
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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, Bruxelles, Bruylant, 1992, p. 1431, and reprint in Essays on the Developping 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.

This is even more true where the alleged ill-treatment occurred in the closed environment of a prison.
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 investigation.

III. As to the consequences to be drawn from
an inadequate and ineffective investigation

15. However, even applying the traditional standard of "proof beyond a reasonable doubt", I am of the opinion that the Court should have found a violation of Article 3 in its substantive aspect.
16. The applicant set out his complaint in a coherent and convincing manner. He presented an arguable claim based on credible assertions which, regrettably, did not prompt an effective and thorough official investigation.
17. Consequently, in my view, the inadequacy and ineffectiveness of the investigation into the applicant's complaint amounts not only to a violation of the procedural



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