In my view, this is exactly what happened in the present case. There were no eye-witnesses to the alleged ill-treatment, and notwithstanding a subsequent rigorous and thorough domestic investigation (see judgment, paragraphs 64 to 66) it was not possible to establish beyond reasonable doubt that the applicant had been ill-treated by the police. The judgment in the present case requires the Government to establish to the Court's satisfaction the cause of the applicant's injuries, even though the injuries could have been sustained after his release. By doing so, I feel that the Court unjustifiably extends the much stricter liability rule for injuries sustained in custody to the post-custody period, a period about which the authorities have limited information and in respect of which they have a more limited responsibility. This extended liability and reversed burden of proof approach would mean that the authorities would have extremely limited possibilities for exculpating themselves from allegations of ill-treatment in custody in circumstances where an applicant only belatedly seeks medical confirmation of his injuries and makes no effort whatsoever to prove or report the existence of his injury on his release.
In addition to the above considerations, I see no reason in the present case which would justify a departure from the domestic authorities' conclusions on the applicant's complaints or which would enable the Court to establish on the material before it, beyond reasonable doubt - as required by Article 3 of the Convention -, that the applicant's injuries were caused by the police as alleged. Even if the domestic authorities' fact-finding activity is not unlimited and may be subject to review by the Court, they are, in general, in a better position to establish the facts. The Court's task is not to take the role of the domestic authorities which are in a better position to assess the relevant facts of the case. Rather, its role is to review under the Convention the decisions taken by them in the exercise of their powers (c.f. {Tkacik} v. Slovakia (dec.), No. 42472/98, 14 October 2003; Farkas v. Hungary (dec.), No. 31561/96, 2 March 2000; Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, p. 1491, § 59).
In the instant case, the authorities carried out an independent investigation into the alleged assault, heard all the witnesses available and gave reasons for their decisions not to prosecute the police officers suspected of ill-treating the applicant. The investigation was undeniably a thorough one. Two years after the first investigation of the case had been closed, the domestic authorities again re-opened the investigation at the request of the NEKI, even though they had no statutory obligation to do so.
Despite the rigorous investigation carried out, the investigating authorities were not able to establish that the applicant was ill-treated during police custody. The national authorities had the benefit of direct contact with all persons concerned and had the inestimable advantage of being able to examine all the witness testimonies and evidence immediately after the events. In my view, it is not for the Court to gainsay the prosecuting authorities' independent assessment of the weakness of the case against the police officers and their conclusion that a successful prosecution could not be mounted on the strength of that evidence.
On the basis of the above considerations, and with much regret, I disagree with the majority of the Court that there has been a violation of Article 3 of the Convention in the present case.