FOURTH SECTION

CASE OF ABDU v. BULGARIA

( Application no. 26827/08 )

JUDGMENT

(Extracts)

STRASBOURG

11 March 2014

FINAL

11/06/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Abdu v. Bulgaria ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Paul Mahoney, Krzysztof Wojtyczek , judges, and Françoise Elens-Passos , Section Registrar ,

Having deliberated in private on 11 February 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 26827/08) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sudanese national, Mr Nasredin Rabi Abdu (“the applicant”), on 15 April 2008 .

2 . The applicant was represented by Mrs M. Ilieva , a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent s , Mrs M. Kotseva and Mr s M. Dimova , of the Ministry of Justice .

3 . The applicant alleged that the authorities had failed in their obligation to conduct an effective investigation into the racist attack against him .

4 . On 9 September 2010 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1968 and lives in Sofia .

6 . On 1 3 May 2007, at around 7.30 p . m . , the applicant and one of his friends, Z.N., also a Sudanese national, were involved in a fight with two Bulgarian youths outside a shopping centre in central Sofia. The two Bulgarian youth s, M.V. and R.G., fled before the police arriv ed , but they were arrested and remanded in custody for breach of the peace ( хулиганство ). The report drawn up by the polic e officers described the two Bulgarian youth s as skinheads , adding that they were already known to the police f or various offences such as breach of the peace , theft, burglary and drug trafficking .

7 . The police initiated a preliminary investigation . Th e applic ant and his friend , the two Bulgarian youth s a nd an eyewitness were inter viewed . According to the applic ant ’ s submissions , Z.N. and he had been coming out of the shopping centre when they were attacked by the two young men . The first Bulgarian, who had a shaved head, had thrown the applicant on to the ground and kick ed him . Th e applic ant had then got up and punched him back . The two Bulgarians had insulted them by calling them “ Negros ” ( негри ) , also shouting “ dir ty Negros , what are you doing here ? ” . The second Bulgarian , who had long hair , had brandished a knife and threatened Z.N . with it . Th e applic ant and Z.N. had fled, and had met a police patrol , which had started looking for the two Bulgarians and managed to arrest them a few minutes later . Z.N. ’ s statements broadly corrobor ated those of the applic ant.

8 . According to M.V. , the fight had begun because one of the Sudanese you ths had shoved him with his shoulder when they had passed each other at the entrance to the shopping centre. He said that he had not paid any attention to what his friend R.G . had been doing . The fighting had stopped at some stage and his friend and he had fled when someone warned them that the police were on their way .

9 . R.G. confirm ed that one of the Sudanese men had pushed his friend M.V. as he pass ed by and that that was when the fight had started . Blows had been exchanged on both sides, and M.V. had had his face bloodied. At one stage R.G. had taken out his knife, which had put an end to the fight , and the two groups had then gone their separate ways . M.V. and R.G had been arrested by the police a few minutes later .

10 . The eye witness stated that he had seen one of the Bulgarians , the one with the shaved head , trip up one of the Sudanese men , who had then riposted with a punch . A general fight had then broken out among the four p e r sons involved .

11 . Th e applic ant was examined by a forensic medical expert on 15 May 2007. According to the medical certificate drawn up on that occasion, the applicant had a swelling of the nasal base , a n approximately one ‑ centimetre ‑ long abrasion on the left -hand side of his nose , covered with a scab , a swollen finger on his left hand and a contusion to the right knee . According to the medical certificate , the injuries noted had caused physi cal pain . They had resulted from blows struck by blunt instruments and could have been occasioned in the manner described by the applicant , namely in the course of a fight .

12 . At the end of the investigation the police transmit ted the evidence gathered to the public prosecutor for a decision on instituting a criminal prosecution f o r racist violence pursuant to Article 162 § 2 of the Crimi nal Code .

13 . By an ord er of 15 June 2007 the district prosecutor decided not to bring a criminal p r o sec ut ion . He considered that while a fight had indeed occurred among the four men , i t had not been established that M.V. and R.G. had acted for reasons linked to Z.N ’ s and the applic ant ’ s racial origins . The causes of the altercation were unclear , and the three versions of the facts – by the applic ant and Z.N., by M.V. and R.G ., and by the eye witness – con flicted as to how and by who m the fight had been started . The two Sudanese men had clai m ed that they had been called “ dirty Negros” , but the fact that it had been precisely their racial origin that had motiv ated the violence had not been corrobor ated by any other piece of evidence . The eye witness , in particular , had not mentioned having heard any exchanges between those involved . Th e prosecutor conclu ded that in the absence of evidence of the specific motivation provided for by l aw , the offence had not been made out .

14 . The applic ant lodged an appeal with the higher prosecutor against the decision no t to prosecute . He submitted that the investigation had been in complete and that the investigators should have questioned M.V. and R.G. about their motivation and their reasons for wearing black clothing , “R anger - s ty l e ” military shoes and even Nazi insignia , as he remembered seeing such insign ia on a T -shirt worn by one of the assailants . According to the applic ant, the polic e officers who had attended the scene should also have been inter viewed about how M.V. and R.G. had been dressed at the time of their arrest. Similarly , th e investigators should have explicitly asked the eye witness whether he had heard the exchanges between those involved , which they had not .

15 . On 15 October 2007 the Sofia public prosecutor ’ s office confirmed the district prosecutor ’ s decision . The public prosecutor held that there was nothing to suggest that the violence had been perpetrated on the grounds of the applicant ’ s racial origin a s the s o l e fact that he was black was insufficient to make out the offence .

16 . By a letter of 29 July 2008 the applic ant ’ s lawyer asked for a copy of the criminal case file , without providing reason s for h er request . On 6 August 2008 the district prosecutor refused to supply the copies requested on the grounds that the lawyer had already been notifie d of the prosecut or ’ s decisions and that now that the appeal had been dismiss ed , the case was clos ed .

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THE LAW

I. ALLEGED VIOLATION OF ARTICLE S 3 AND 14 OF THE CONVENTION REGARDING THE INEFFECTIVE NE SS OF THE INVESTIGATION

28 . The applicant complained that the authorities had failed in their obligation to conduct an effective investigation into the racist attack which he had suffered , and in particular that they had not taken sufficient action to establish a possible racist motive for th e assault. He relied on Article s 3 and 14 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 14

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

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B. Merits

1. T he parties ’ submissions

32 . The Government submitted that the treatment inflicted on the applicant had not attained the minimum level of severity for the application of Article 3. They also considered that the authorities had adopted all the requisite investigati ve measures to shed light on any possible racist motivation for the violence inflicted on the applic ant. They pointed out that the police officers had attended the scene and apprehended those responsible , that an investigation had been conducted d uring which all the witnesses had been questioned , and that prosecution for racist violence had been considered . Nevertheless , according to the evidence obtained during the investigation , only the applic ant and his friend had submitted that insults such as “ dirty Negros ” had been uttered , which circumstance had not been confirm ed by the sole eye witness or by any other evidence .

33 . Th e Government confirme d the determination of the Bulgarian authorities to shed light on and p r os ec u t e all act s of racist violence , but submitted that the existence of such motivation had not been established in the present case . They reiterated the arguments put forward in the context of the objec tion as to non- exhaustion of domestic remedies to the effect that the applic ant could have brought criminal proceedings for minor injuries or civil proceedings against those responsible .

34 . Th e applic ant conteste d the Government ’ s submissions . He submitted that even if the physical injuries infli cted on him were not very severe , the assessment of the severity threshold required under A rticle 3 of the Convention should take account of the racist motiv e for the violen t acts and the possible effects of such motivation , namely feelings of fear , an guish and inferiority .

35 . I n connection with the effectiveness of the investigation conducted , the applic ant maintained that the prosecutor had ignored the evidence gathered by the police investigation pointing to a racist motiv e for the attack . He stressed that between the years 2000 and 2009, no convictions had ever been made on the basis of Article 162 and the other provisions of the Crimi nal Code against discrimination offences and hate crime.

2. The Court ’ s assessment

a) The severity of the treatment infli cted on the applic ant

36 . The Court r eiterates that in order to fall within the scope of A rticle 3, ill- treatment must attain a minimum level of severity . The assessment of this minimum is relative by definition, and depends on all the circumstances of the case, including the duration of the ill-treatment, its physical and ment al effects and, in some cas es, the victim ’ s sex, age and state of health. Further factors to be taken into account include the purpose of the ill- treatment and the underlying intention o r motivation ( see , for example, El Masri v . “ the former Yugoslav Republic of Macedonia ” [GC], n o. 39630/09, § 196, E CH R 2012 ). The Court has considered some types of treatment “ inhuman ” , particularly where it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see , among other authorities , Labita v. Italy [GC], n o. 26772/95, § 120, E CH R 2000-IV).

37 . Even where the victim did not suffer serious or lasting physi cal injuries , the Court has held that corporal punishment infli cted on an adolescent should be de scribed as “degrading” in so far as it constituted an assault on “ precisely that which it is one of the main purposes of Article 3 to protect, namely a person ’ s dignity and physical integrity ” ( see Tyrer v . Uni ted Kingdom , 25 April 1978, § 33, Series A n o. 26). By the same token , in a case concerning har ass ment of a person suffering from physi cal and menta l disabilities , the Court ruled that the feelings of fear and helplessness caused by the ill-treatment were sufficiently serious to attain the level of severity required to fall within the scope of Article 3 of the Convention, even though the applic ant had only suffered physi cal injuri es on one occasion ( see Đorđević v . Croatia , no. 41526/10 , § 96, E CH R 2012). The Court has on several occasions examined from the angle of A rticle 3 situations in which the applic ants had not suffered any physi cal injuries ( see , for example, Gäfgen v . Germany [GC], n o. 22978/05, § 131, E CH R 2010, concerning threats of torture, and Kurt v . Tur key , 25 May 1998, §§ 133-34, Re ports of J udgments and D ecisions 1998-III, relati ng to the disappearance of a relative ).

38 . Furthermore , the former European Commission on Human Rights a ccepted that discrimination based on race could, in certain circumstances, of itself amount to “degrading treatment” within the meaning of A rticle 3 ( see East African Asians v . Uni ted Kingdom , n os. 4403/70 and others , Commission report of 14 December 1973, Decisions and Re ports 78, pp. 57 and 62, §§ 196 and 207). Discriminatory remarks and racist insults must in any event be considered as an aggravating factor when considering a given instance of ill- treatment in the light of A rticle 3 ( see Moldovan and Others v . Romania (n o. 2) , n os. 41138/98 and 64320/01, § 111, E CH R 2005-VII ( extracts ), and B.S. v . Spain , n o. 47159/08 , § 41, 24 July 2012).

39 . In the present case the applic ant and his friend were involved in a fight with two young men who , according to the applicant viole nt ly attack ed them . During the fight blows were exchanged and the applic ant and his friend were threatened with a knife . Th e medical report mentions several injuries to the applic ant ’ s body – a swelling of the nasal bas e, an approximately one-centimetre-long abrasion on the left-hand side of the nose, covered with a scab, a swollen finger on his left hand and a swollen right knee ( see paragraph 11 above ). These physi cal after-effect s are compounded by a possible racist motiv e for the violence perpetrated : the applic ant submitted that he had been the target of racist insul ts , a nd the police reports themselves had described the two you ths involved in the fight a s skinheads. The Court considers that in the light of all these fact or s, particularly the infringement of human dignity constituted by the presumed racial motiv e for the violence, treatment such as that alleged by the applicant falls within the scope of Article 3 of the Convention (see, mutatis mutandis , B.S. v. Spain , cited above, § 41 ).

b) Compliance with the State ’ s positive obligations

( i ) General principles

40 . The Cour r eiterates that the obligation on High Contracting Parties under A rticle 1 of the Convention to secure t o everyone within their juri s diction the r i gh ts and freedoms defined in the Convention , taken in conjunction with Article 3, requires them to to take steps to ensure that individuals within their jurisdiction are not subjected to ill-treatment , even admi nistered by private individuals ( see A. v . the Uni ted Kingdom , 23 Septemb e r 1998, § 22, Re ports , 1998-VI; Z. and Others v . the Uni ted Kingdom [GC], n o. 29392/95, §§ 73-75, E CH R 2001-V; and M.C. v . Bulgari a , n o. 39272/98, § 149, E CH R 2003-XII).

41 . Such protection necessitates in particular establishing a legislative framework to shield individuals adequately from treatment incompatible with A rticle 3 ( see A. v . the Uni ted Kingdom , cited above, § 24; M.C. v . Bulgaria , cited above , § 153 ; and Nikol ay Dimitrov v . Bulgaria , n o. 72663/01, § 66, 27 September 2007 ). The positive obligations on S tat es may, in the case of certain very serious acts committed by individuals , require the en a ctmen t of criminal provisions ( see M.C. v . Bulgaria , §§ 150 ‑ 153, and Nikol ay Dimitrov , § 67, both cited above ).

42 . Furthermore, where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and identify and punish those responsible. Similar requirements are also set out in the Convention against T orture and other C ruel, Inhuman o r Degrading Treatment or Punishmen t ... . The Court ’ s case-law states that these obligations apply whatever the status of the person s charged , in cluding private individuals ( see Šečić v . Croatia , n o. 40116/02, § 53, 31 May 2007, and Nikol ay Dimitrov , cited above , § 68 ).

43 . The obligation to conduct an effective investigation is an obligation not of result but of means : the authorities must t a ke the reasonable measures available to them to secure evidence concerning the incident at issue . A requirement of promptness and reasonable expedition is also implicit in this context ( see Šečić , § 54, and Nikolay Dimitrov , § 69, both cited above ).

44 . Moreover, w hen investigating violent incidents triggered by suspected racist attitudes , the S tat e authorities are required to take all reasonable action to ascertain whether there w ere racist motiv es and to establish whethe r feelings of ha tred or prejudices based on a person ’ s ethnic origin played a role in the events . Tr ea t ing racially motivated violence and brutalit y on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly d estructive of fundamental human rights . A failure to make a distinction in the way in which situations which are essentially different are handled may constitute unjustified treatment i rreconcilable with A rticle 14 of the Convention ( see Šečić , cited above , §§ 66-67 ; Beganović v . Croatia , n o. 46423/06 , §§ 93-94, 25 June 2009 ; and , mutatis mutandis , Seidova and Others v . Bulgaria , n o. 310/04 , § 70, 18 November 2010, and Nach ova and Others v . Bulgaria [GC], n os. 43577/98 and 43579/98, § 160, E CH R 2005-VII). The said obligation also appli es where a given type of treatment incompatible with A rticle 3 is infli cted by a private individual ( see Šečić , § 67, and Beganović , § 94, both cited above ).

45 . I n practice, of course , it is often extremely difficult to prove racist motivation. The obligation on the respondent S tat e to investigate possible racist overton es to an act of violence is an obligation of means rather than an obligation to achieve a specific result ; the authorities must take all reasonable measures having regard to the circumstances of the case ( see Šečić , § 66 ; Beganović , § 93 ; Seidova and Others , § 70 ; and Nach ova and Others , § 160, all cited above ).

46 . The obligation on the authorities to seek a possible link between racist attitudes and a given act of violence is thus part of the responsibility incumbent on S tat e s under A rticle 14 of the Convention taken in conjunction with A rticle 3, but it is also an aspect of the procedural obligations flowing from A rticle 3 of the Convention. Owing to the interplay of the two provisions, issues such as those raised by the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case depending on the facts and the nature of the allegations made ( see , mutatis mutandis , Nach ova and Others , cited above , § 161, and B.S. v . Spain , cited above , § 68). In the present case , in view of the allegations made by the applic ant to the effect that the ineffectiveness of the investigation stems precisely from the fact that the authorities insufficiently investigated the racist aspects of the acts of violence, the Court considers that the complaint should be considered from the angle of both the provisions i n question – A rticle 3 taken separately and A rticle 14 in conjunction with A rticle 3.

( ii) Application of these principles to the present case

47 . The Court observe s that under Article 162 of the Bulgarian Crimi nal Code , violence committed against others for racial reasons is a criminal offence puni shable by imprisonment . In en a c ti ng th at provision the Bulgarian authorities complied with the obligation flow ing from the International Convention on the E limination of All Forms of Racial Discrimination , under which the S tat e s P arties undertook to make violence based on racial considerations a criminal offence ... . There can therefore be no doubt that the provisions of Bulgarian criminal law prohibit the ill ‑ treatment complained of by the applic ant, who does not in fact complain about the existing legal framework . Consequently , the Court cannot criticise the Bulgarian authorities for an omission in establishing legislation geared to wards preventing ill- treatment with racist overtones .

48 . M oving on to the obligation to conduct an effective investigation , the Court notes that a preliminary investigation was prompt ly initiated after the incident, during which the applic ant, his friend Z.N., the two young men involved , M.V. and R.G., a nd an eye witness were questioned . The evidence gathered during the investigation and the medical certificate issued to the applic ant were transmitted to the public prosecutor for a decision on whether the two Bulgarian youths should be prosecuted for racist violence under Article 162 § 2 of the Crimi nal Code . However, the prosecution decided that the offence had not been made out and, in particular, that the racist motivation for the violence had not been established . While it is not for the Court to rule on the application of domestic law or adjudicate on the individual guilt of persons charged with offences , it must nevertheless review whether and to what extent the competent authorities , in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by the procedural obligations of the Convention ( see , mutatis mutandis , Vasil Petrov v . Bulgaria , n o. 57883/00, § 78, 31 July 2008).

49 . In this connection , the Court notes that the prosecuting authorities concentr ated their investigations and analys e s on whether the two Sudanese men or the two Bulgarians had started the fight . They thus confined themselves to establishing the actus reus of the offence governed by Article 162 § 2 of the Crimi nal Code, that is to say the violence perpetrated , merely noting the lack of evidence that the violence had been motivated by racist considerations. The authorities accordingly did not deem it necessary to question the eye witness exp licitly on any exchanges he might have heard during the fight or to question the two Bulgarian youth s about any possible racist motivation for their acts . Yet right from the beginning of the investigation the applicant ha d claimed that he suffered racist insult s , and the police report described the two Bulgarians as skinheads, well-known for their extremist, racist ideology (see Šečić , cited above , § 68). The applic ant also highlighted these shortcomings in the investigation in the appeal which he lodged against the decision no t to prosecute , drawing the prosecutor ’ s attention to the way in which the two youths were dressed and the need to question them about their motives , but these requests were ignored by the higher prosecutor ( see paragraphs 7 and 14-15 above ).

50 . In view of the foregoing considerations , the Court considers that having regard to the specific substantiated allegations made by the applic ant d uring the criminal proceedings , the competent authorities had plausible evidence at their disposal sugges ting possible racist motivation for the violence inflicted on the applicant and fail ed in their obligation to take all reasonable measures to investigate a possible racist motive for the violence which occurred .

51 . Th e Government , however, had contend ed that other legal remedies had been open to the applic ant which he ha d not use d and which could have fulfilled the procedural obligations under the Convention, such as a private prosecution for minor injuries or claiming damages in tort vis-à-vis the two persons responsible , M.V. and R.G. ( paragraphs 28 and 32 above ). The Court observe s that, in connection with the physi cal injuries infli cted on the applic ant, a private prosecution in respect of minor bodily harm brought by the applicant himself , would help establish the facts and identify and puni sh those responsible , and therefore be deemed to meet the needs of A rticle 3. However, such proceedings would not cover the alleged racist insults or the racist motivation for the violence against the applic ant, which are a fundamental part of the applicant ’ s complaint . As to the possibility of bringing an action for damages against those responsible, the Court observes that such an action, which could lead to payment of compensation but not to the prosecution of those responsible, would not fulfil the State ’ s procedural obligations under Article 3 in a case of assault (see Biser Kostov v. Bulgaria , no. 32662/06 , § 72, 10 January 2012). The legal remedies mentioned by the Government therefore cannot be considered , under the circumstances of the present cas e, capable of fulfilling the State ’ s procedural obligations, and the Court must dismiss the Government ’ s objection as to non- exhaustion of domestic remedies in this regard .

52 . Furthermore , the Court notes the findings of various national and international authoriti es concern ing the failure by the Bulgarian authorities effectively to implement provisions punishing cas es of racist violence . In its 2009 report , the European Commission against Racism and Intolerance of the Council of Europe noted that when complaints are filed concerning racist assaults “little action is taken” , and drew the authorities ’ attention to the need to deal effective ly with such complaints ... . The UN Committee on the E limination of Racial D iscrimination has also observed that “the criminal provisions relating to racist acts are still infrequently applied ” ... . More recently , i n 2013, the Ombudsman of the Republic of Bulgaria voiced his concern a bout the increasing numbers of r ace ha te crimes, and called on the authorities not to “ reduce such acts to offences of public disorder ... but to investigate possible ha te crimes ” .

53 . In the light of the foregoing observations , the Court conclu des that there has been a violation of A rticle 3 under its procedural aspect , taken separately and in conjunction with A rticle 14 of the Convention.

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FOR THESE REASONS, THE COURT

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3 . Holds , by five votes to two, that there has been a violation of Article 3 under its procedural aspect, taken separately and in conjunction with Article 14, and rejects the objection as to non- exhaustion of domestic remedies raised by the Government ;

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Done in French , and notified in writing on 11 March 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Françoise Elens-Passos Ineta Ziemele Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges P. Mahoney and K. Wojtyczek is annexed to this judgment.

I.Z . F.E.P.

PARTIALLY DISSENTING OPINION OF JUDGES MAHONEY AND WOJTYCZEK

1. We can only record our complete agreement with our colleagues in their condemnation of racism , which infringes human dignity and therefore constitutes a particularly insidious form of human rights violation; further, we fully share their view that the S tat e s, by virtue of the various relevant internationa l instruments , must adopt effective measures to combat this social scourge .

On the other ha n d , we disagree with the majority on some questions of interpret ation of the Convention for the Protection of Human Rights and Fundamental Freedom s. We must stress , first of all, that the mandate of the European Court of Human Rights is defined in a restrictive manner in A rticle 19 of the Convention. The Court ’ s role is to en sure the observance of the engagements undertaken by the H igh P arties C ontract ing in the Convention and the Protocols thereto . The Convention and the Protocols lay down a collective guarantee on some of the universally recognised human rights , establishing a minimum standard of protection for the selective catalogue of rights and freedoms which they set out, which minimum standard is binding on all S tat e s P arties. While the domestic legislation of the St at e s and other internationa l instruments may impose higher standards of protection or make good any omissions in the human rights protection afforded by the Convention and the Additional Protocols thereto , this does not in itself extend the mandate assigned to the Court .

2. Article 3 of the Convention prohibits torture and inhuman or degrading treatment or punishment . This provision requires the S tat e s P arties to the Convention no t only to refrain from acts prohibited by the provision but also to guarantee effective protection against such acts , whether they are committed by public official s o r priv ate individual s. However , the inhuman o r degrading nature of the act mus t b e assessed in the light of all the circumstances of the case . I n order for ill- treatment to fall within the scope of A rticle 3, it mus t attain a minimum level of severity . I t follows that there may be types of violence which , although moral ly reprehensible and very often condemned by domestic legislation in the C ontract ing States , do not fall within A rticle 3 de la Convention ( see Ireland v . Uni ted Kingdom , 18 January 1978, § 167, Series A n o. 25). Moreover , th e standard applicable to the public authoritie s must automatically be more stringent than that appli ed in interpersonal relations. Consequently , the threshold for inhuman o r degrading treatment is lower for acts committed by the public authoritie s than for acts committed by priv ate individual s. Similarly , in the latter case , according to the Court ’ s well- established case-law , the obligation to investigate is only confirmed if there is sufficient evidence to corrobor ate a suspicion of offences of a specific level of severity committed by priv ate individual s.

In the present cas e , the applic ant acknowledges that the injuries he received were not particularly severe . Moreover , there are four versions of events, namely those of the applic ant, M.C., R.G. and the eye witness , the latter having confirm ed none of the other three versions. In our view , under the particular circumstances of the case , the minimum threshold for the obligation to investigate deriving from A rticle 3 of the Convention was not attained . In this connection , we do not think that the quo tation ( in paragraph 39 in fine of the judgment ) from B.S. v . Spain (n o. 47159/08, §§ 39-40, 24 July 2012) corrobor ates the conclusion reached by the majority because , unlike the ac ts complained of in B.S. , the racist abuse denounced in the present case was not attributable to any State officials exercising supervision over the victim .

We agree that motivation, particularly racist motivation, is an important factor in assessing the severity of (ill- ) treatment in the light of A rticle 3 of the Convention. Under the circumstances of the present case , however, the reliance by the majority on a putative racist motivation in order to transform a c ase of minor violence inflicted by priv ate individual s i n to a case of ill- treatment liable to attain the se verity threshold required by A rticle 3 of the Convention does not constitute a convincing argument . In our view , by adopting this approach the majority , while seeking, commendably, to make good an omission in the protection provided by the Convention, has distorted the import of A rticle 3.

3. The Bulgarian authorities have conclu ded that the individuals involved in the violence di d not commit an y offence . However , the Court judgment solely finds a violation of A rticle 3 of the Convention on the grounds that no investigation had been conducted into the possible racist motivation of the violence carried out . The majority neither pronounce on the investigation into the violence a s such nor contest the facts established on completion of the investigation . T his raises questions about the approach adopted by the majority . The first question which logi cally arises is whether the applic ant was the victim of an a ssault . Only after such an assault has been substantiat ed can the reason for its occurrence be examined . The obligation to investigate the motive for the violence carried out only eventuates after the investigators have established the assault . A finding cannot be made against a State for failing to investigat e possible racist motives for an assault without first of all substantiating the assault , or at least noting shortcomings in the investigation into the assault itself .

4. The majority highlight a range of internationa l documents bearing witness to the problem of racism in Bulgaria in an attempt to demonstrate the peculiarity of the situation in this S tat e . The particularly worrying nature of the situation in Bulgaria is used to vindicate lowering the threshold for the applicability of A rticle 3 of the Convention. We do not find this approach very convincing because unfortunately racism i s a general problem that affect s all Co u n c il of Europe countries . Moreover , the documents quoted concern general problems and seem ir relevant to the assessment of the facts in the present cas e.

5. We voted differently on the question of compen sation. Judge Mahoney aligned with the majority in voting to award damages to the applic ant , while Judge Wojtyczek voted against .