PART 2: How to Bring a Case to the Court
in part on material compiled by Amnesty International showing the existence of
such a risk.
iv) Other Evidence
In cases concerning allegations of ill-treatment, the Court has examined a wide
variety of evidence submitted to it by the parties or obtained by the Court itself.
Such evidence has included, inter alia, photographs of the applicant’s body,182 video
footage of the prison cell in which the applicant was allegedly detained,183 plans
of the detention facility where the applicant was detained and raped and which
she described in her application form,184 a piece of cloth used to blindfold the applicant in police custody while he was being ill-treated,185 autopsy reports showing that the person had been subjected to ill-treatment prior to his killing,186 and
photographs showing that a body had been mutilated.187 It must be stressed that
such objects, individually, do not constitute conclusive evidence and in most cases
they will be regarded as circumstantial evidence. However, sufficient circumstantial evidence may persuade the Court, in the absence of any direct evidence –
which can be very difficult to obtain in human rights cases – to find an applicant’s
allegations established.188
c) Burden of Proof
Convention proceedings do not always lend themselves to a rigorous application
of the principle affirmanti incumbit probatio (he who alleges something must prove
that allegation). In this connection, reference may be made to the Court’s judgment
in Ireland v. the United Kingdom:
In order to satisfy itself as to the existence or not in Northern Ireland of practices contrary to Article 3, the Court will not rely on the concept that the burden of
proof is borne by one or other of the two Governments concerned. In the cases
referred to it, the Court examines all the material before it, whether originating from
the Commission, the Parties or other sources, and, if necessary, obtains material
proprio motu.189
Nevertheless, according to the Court’s established case law, an applicant bears
the initial burden of producing evidence in support of his or her complaints at
the time the application is introduced. Once the applicant satisfies this burden
Mathew v. the Netherlands, no. 24919/03, 29 September 2005, §§ 158–165.
Ostrovar v. Moldova, no. 35207/03, 13 May 2005, § 72.
Aydın v. Turkey [GC], no. 23178/94, 25 September 1997, § 39.
Tekin v. Turkey, no. 22496/93, Commission Report of 17 April 1997, § 190.
Süheyla Aydın v. Turkey, no. 25660/94, 24 May 2005, § 188.
Akkum and Others v. Turkey, no. 21894/93, 24 March 2005, §§ 51–52.
Imakayeva v. Russia, no. 7615/02, 9 November 2006, §§ 139–143; Bazorkina v. Russia, no. 69481/01, 27
July 2006, §§ 108–112.
189 Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, § 160.
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