HASSAN v. THE UNITED KINGDOM – JUDGMENT
27
evidence or pre-determined formulae for its assessment. It adopts the
conclusions that are, in its view, supported by the free evaluation of all
evidence, including such inferences as may flow from the facts and the
parties’ submissions. According to its established case-law, proof may
follow from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Moreover, the level
of persuasion necessary for reaching a particular conclusion and, in this
connection, the distribution of the burden of proof, are intrinsically linked to
the specificity of the facts, the nature of the allegation made and the
Convention right at stake. The Court is also attentive to the seriousness that
attaches to a ruling that a Contracting State has violated fundamental rights
(see El Masri v. “the former Yugoslav Republic of Macedonia” [GC],
no. 39630/09, § 151, ECHR 2012).
49. Furthermore, it is to be recalled that Convention proceedings do not
in all cases lend themselves to a strict application of the principle affirmanti
incumbit probatio (the principle, that is, that the burden of proof lies on the
person making the allegation in question). The Court reiterates its case-law
under Articles 2 and 3 of the Convention to the effect that where the events
in issue lie within the exclusive knowledge of the authorities, as in the case
of persons under their control in custody, strong presumptions of fact will
arise in respect of injuries and death occurring during that detention. The
burden of proof in such a case may be regarded as resting on the authorities
to provide a satisfactory and convincing explanation. In the absence of such
explanation the Court can draw inferences which may be unfavourable for
the respondent Government. The Court has already found that these
considerations apply to disappearances examined under Article 5 of the
Convention, where, although it has not been proved that a person has been
taken into custody by the authorities, it is possible to establish that he or she
was officially summoned by the authorities, entered a place under their
control and has not been seen since. In such circumstances, the onus is on
the Government to provide a plausible and satisfactory explanation as to
what happened on the premises and to show that the person concerned was
not detained by the authorities, but left the premises without subsequently
being deprived of his or her liberty. Furthermore, the Court reiterates that,
again in the context of a complaint under Article 5 § 1 of the Convention, it
has required proof in the form of concordant inferences before the burden of
proof is shifted to the respondent Government (see El Masri, cited above,
§§ 152-153).
50. It is not in dispute in the present case that the applicant’s brother was
captured by United Kingdom forces on 23 April 2003, subsequently
detained at Camp Bucca and that he died shortly before his body was found
in Samara on 1 September 2003. The disagreement over the facts centres on
two issues: first, whether Tarek Hassan was arrested and detained as a
means of exerting pressure on the applicant to surrender himself and,
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