Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook
persons implicated in ill-treatment, will not deter the Court from independently
investigating the allegations if such a course of action appears justified under the
circumstances. Furthermore, whatever the outcome of the domestic proceedings,
the conviction or acquittal of those implicated in ill-treatment does not absolve
the respondent State from its responsibility under the Convention to account for
any injuries found on a person at the time of his or her release from detention.
For example, in the case of Ribitsch v. Austria,139 the Court observed that the police
officers allegedly responsible for the ill-treatment had been acquitted because of
the high standard of proof required in the domestic legislation. In this connection
the Court observed that significant weight had been given by the domestic court to
the explanation that the injuries were caused by a fall against a car door. The Court,
finding this explanation unconvincing, considered that even if Mr Ribitsch had
fallen while he was being moved under escort, this could only have provided a very
incomplete, and therefore insufficient, explanation of the injuries he sustained.140
The following sub-sections will deal with the evidential issues and the methods
employed by the Court in establishing facts.
b) Fact-finding Hearings or Missions
The Court can hold fact-finding hearings or missions pursuant to Article 38 § 1 (a)
of the Convention, which provides the following:
If the Court declares the application admissible, it shall pursue the examination of
the case, together with the representatives of the parties, and if need be, undertake an
investigation, for the effective conduct of which the States concerned shall furnish
all necessary facilities.
Furthermore, the Annex to the Rules of Court sets out the procedure to be followed in such hearings and regulates the conduct of those participating in them.
According to Rule 1 § 3 of the Annex to the Rules of Court,
[a]fter a case has been declared admissible or, exceptionally, before the decision on
admissibility, the Chamber may appoint one or more of its members or of the other
judges of the Court, as its delegate or delegates, to conduct an inquiry, carry out an
on-site investigation or take evidence in some other manner. The Chamber may
also appoint any person or institution of its choice to assist the delegation in such
manner as it sees fit.
The Court may independently decide to hold a fact-finding hearing, but applicants can also invite the Court to do so. Any such request must be reasoned, and
the applicant should explain how a fact-finding hearing would help establish the
facts. The applicant should also submit a list of the proposed witnesses together
139 Ribitsch v. Austria, no. 18896/91, 4 December 1995.
140 Ibid., § 34.
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