42 ANGUELOVA v. BULGARIA JUDGMENT – PARTLY DISSENTING OPINION OF JUDGE BONELLO 12. So also the Supreme Court of the United States, in cases in which the standard and the burden of proof to establish racial discrimination are at issue, works from a more effective and efficient platform: it is for the applicant to make out a prima facie issue of discrimination. Once the applicant has established what, in our Court's language, could be called “an arguable claim”, the burden of proof then shifts to the defendant to satisfy the court of the legitimacy and justification of the action impugned [Griggs v. Duke Power Co. 401 US 424, 427 (1971); McDonnell Douglas Corp. v. Green 411 US 792, 802 (1973)]. This attainable and equitable level of proof appears light-years away from the “proof beyond reasonable doubt” which is stunting European human rights protection in areas where the highest level of protection, rather than the highest level of proof, should be the priority. 13. So long as the Court persists in requiring in human rights disputes a standard of proof that fifty years experience has shown it to be as unreal as it is unrealistic and unrealisable, it will, in effect, only continue to pay lipservice to the guarantees it then makes impossible to uphold. The way forward, in my view, lies in a radical and creative rethinking of the Court's approach, leading to the removal of the barriers which, in some important human rights domains, make the Court an inept trustee of the Convention. The Court has often risen to the challenge in spectacularly visionary manners, and ought, in matters of ethnic discrimination, to succumb with pride to its own tradition of trail blazing. 14. Various well-tried ways come to mind to achieve a new and better balance between the claims of the applicant and those of the state. One is the shift of the burden of proof: a device the Court has already adopted successfully when the alternative would have made the search for truth impossible. Thus, for instance, death or injury during police custody raises a presumption (engineered by the Court's case-law) that shifts the burden of providing a satisfactory explanation to the State [See, for example, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, and some recent Turkish cases]. 15. Thus also the Court, in a forward-looking decision, has held that the failure by the Government to submit information to which only it could have access, may give rise to inferences that the applicant's charges are well-founded [Timurtaş v. Turkey, no. 23531/94, ECHR 2000-VI, and Taş v. Turkey, no. 24396/94, 14 November 2000]. 16. Reliance on inferences, legal presumptions and a shift in the onus of evidence also proved decisive in the recent Conka case, in which the Court, rather than requiring from the applicants proof beyond reasonable doubt that their expulsion was in pursuance of a collective expulsion policy, found a violation by starting from the opposite end of the syllogism: “The procedure followed [by the State authorities] did not enable it [the Court] to eliminate