LABITA v. ITALY JUDGMENT – JOINT PARTLY DISSENTING OPINION 44 JOINT PARTLY DISSENTING OPINION OF JUDGES PASTOR RIDRUEJO, BONELLO, MAKARCZYK, TULKENS, STRÁŽNICKÁ, BUTKEVYCH, CASADEVALL AND ZUPANČIČ (Translation) The majority of the Court have concluded that there has been no violation of Article 3 of the Convention as regards the applicant's allegations of ill-treatment in Pianosa Prison. We regret that we are unable to share that opinion. 1. The majority of the Court considered that the applicant has not proved “beyond all reasonable doubt” that he was subjected to ill-treatment in Pianosa as he alleged. While we agree with the majority that the material produced by the applicant constitutes only prima facie evidence, we are nonetheless mindful of the difficulties which a prisoner who has suffered ill-treatment on the part of those responsible for guarding him may experience, and the risks he may run, if he denounces such treatment. Indeed, the applicant stated that the Pianosa warders instructed the prisoners not to talk about the treatment they suffered, whether among themselves or with their lawyers, and threatened them with reprisals if they did so (see paragraph 29 in fine of the judgment). The applicant stated that on at least one occasion he was subjected to reprisals (see paragraph 29 of the judgment). In a context such as that described by the Livorno judge responsible for the execution of sentences in his report of 5 September 1992 (see paragraph 42 in fine of the judgment), it is understandable that prisoners would not dare to ask to be seen by a doctor immediately after being subjected to ill-treatment, especially as the doctor might have links with the prison authorities. We are accordingly of the view that the standard used for assessing the evidence in this case is inadequate, possibly illogical and even unworkable since, in the absence of an effective investigation, the applicant was prevented from obtaining evidence and the authorities even failed to identify the warders allegedly responsible for the ill-treatment complained of. If States may henceforth count on the Court's refraining in cases such as the instant one from examining the allegations of ill-treatment for want of sufficient evidence, they will have an interest in not investigating such allegations, thus depriving the applicant of proof “beyond reasonable doubt”. Even though we consider that in some cases a procedural approach may prove both useful and necessary, in the type of situation under consideration it could permit a State to limit its responsibility to a finding of a violation of the procedural obligation only, which is obviously less serious than a violation for ill-treatment. In addition, we consider that the matters that led the Court to hold that there had been a procedural violation of