Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook
It also appears from the Court’s case law that when a respondent Government
fails to conduct a medical examination before placing a person in detention, it will
to some extent have forfeited the argument that the injuries present at the time
of release pre-dated the period of detention. Thus, in its judgment in the case of
Abdülsamet Yaman v. Turkey211 the Court observed that the applicant had not been
medically examined at the beginning of his detention and had not had access to
a doctor of his choice while in police custody. Following his transfer from police
custody, he had undergone two medical examinations that resulted in a medical
report and the inclusion of a medical note in the prison patients’ examination book.
Both the report and the note referred to scabs, bruises, and lesions on various parts
of the applicant’s body.212 Those injuries, in the absence of a plausible explanation
from the respondent Government, were sufficient for the Court to conclude that
they were the result of ill-treatment for which the Government bore responsibility
in violation of Article 3 of the Convention.213
In conclusion, based on the case law examined above, the Court expects a respondent Government to provide a satisfactory and convincing explanation for injuries
and deaths caused in custody. It is not sufficient for a respondent Government to
point to other potential causes without providing adequate evidence in support
of its submissions. Any medical evidence submitted by a respondent Government
will be scrutinised by the Court before it can be accepted as proof of the cause
of injury or death in custody. It is also open to applicants to submit to the Court
medical reports to rebut those put forward by the respondent Government.
Furthermore, the Court itself can ask a forensic expert to comment on any medical
evidence submitted by the parties. The Commission did just this in the Salman v.
Turkey214 case mentioned above when it requested an expert opinion on the medical issues in the case “from Professor Cordner, Professor of Forensic Medicine at
Monash University, Victoria (Australia) and Director of the Victorian Institute of
Forensic Medicine”.215
ii) Obligation to Assist the Court in Establishing Facts
According to Rule 44A of the Rules of Court, the parties to a case before the Court
have a duty to cooperate fully in the conduct of the proceedings and, in particular,
to take such action within their power as the Court considers necessary for the
211
212
213
214
215
80
Abdülsamet Yaman v. Turkey, no. 32446/96, 2 November 2004.
Ibid., § 45.
Ibid., §§ 46–48.
See Salman v. Turkey, no. 21986/93, 27 June 2000.
Ibid., § 6.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents