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 .