When a Discrepancy is Not Necessarily a Discrepancy

Today I would like to discuss one particular aspect of a recent case, Biçici v. Turkey. This case concerned the arrest of Ms. Biçici, while she was participating in a peaceful demonstration, and her alleged ill-treatment during the arrest. The European Court of Human Rights found in favour of Ms. Biçici, ruling that the intervening authorities had used disproportionate force in hastily responding to the peaceful demonstration. The Court also found the intervention itself to be unnecessary and disproportionate. Both articles 3 and 11 had thus been violated. But it was close. The ruling on art. 3 was delivered by a narrow majority of 4-3.

What I would like to discuss is the Court’s use of the elements of proof adduced by the applicant. I am going out on a limb here, not being a medical expert. I hope one of our readers with specific medical expertise could either confirm or refute my argument.

The majority and the dissenters disagreed on the role of the two medical reports adduced as evidence. The first medical examination of the applicant took place on the day of her arrest, some time between the arrest itself and her questioning at the police station. The applicant was arrested at approximately 4.10 p.m., while her questioning started at 7.30 p.m. That means she was examined in a timeframe of maximum 3 hours after the alleged ill-treatment during the arrest. The first medical report mentioned that there were no signs of injury on the applicant’s body. The second medical examination took place eight days later, after the applicant had lodged a complaint with the public prosecutor. The second medical report mentioned a 2 x 6 cm ecchymosis (bruise) on the back of her left leg and concluded that the injury rendered the applicant unfit for work for five days.

Regarding the proof of the alleged ill-treatment, the ECtHR majority stated: “[t]he Court notes that although this second medical report was issued eight days after the applicant’s release from custody, the public prosecutor did not hesitate to accept it as evidence of the applicant’s allegations and did not question the causal link between the ecchymosis identified in the report and the alleged ill-treatment. Nor did the public prosecutor refer to the discrepancy between the two medical reports. In these circumstances, the Court considers that the medical report issued on 6 November 2003 appears to have evidentiary value and may thus be used as evidence. (own emphasis)” One of the arguments of the dissenters, in holding that art. 3 had not been violated, was that the applicant had not offered sufficient proof of the alleged ill-treatment. Regarding the second medical report, the dissenters stated that it “should be of no evidentiary value”.

The dissenters clearly question the relevance of the second report, but also the majority seems to be at least a bit skeptical, referring to a discrepancy between the two reports. However, I do not think that the textual difference reveals an actual discrepancy. Both medical reports are in my opinion logically compatible. I think it is perfectly possible that a bruise would not appear within the first hours after having sustained an injury, but only after – for example – a day. That would explain why the first medical report did not mention the bruise, while the second did. Hence, both medical reports are perfectly compatible and the dissenters were in my opinion wrong to outright dismiss the evidentiary value of the second report.

I wonder if the Court – confronted with what it deemed to be a discrepancy between two medical reports – sought the expertise of a medical expert who could shed light on this question. The judgment does not mention any such attempt on the part of the Court. I suspect that the Court did not do so and determined the medical relevance of both reports by itself. I wrote before that a judge is not necessarily a mathematician and should refrain from attempting to be. By the same token, judges are generally speaking not medical experts. Which is why the Court would do well in consulting one when important medical questions arise, such as the one in Biçici v. Turkey.

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