CONCURRING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER

(Translation)

1. I voted in favour of finding that there had been a violation of A rticle 3. However, I wish to distance myself from the majority ’ s conclusion that the ill-treatment suffered by the applicant should be described as torture .

2. While I am aware that the distinction between degrading treatment, inhuman treatment and torture is not always easy to establish, I consider that, to avoid trivialising the term, findings of torture should be reserved for the most serious violations of Art icle 3.

3. A rticle 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or De grading Treatment or Punishment defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by or at the instigation of a public official for a specified purpose (for example, a confession, punishment or intimidati on). This definition lays down the three constituent elements of torture: intensity of suffering, deliberate intention and specific aim.

4. The Court has elaborated on the three concepts referred to in Article 3 by focusing chiefly on the intensity of the suffering inflicted on the victims, so that a distinction can be made between the types of treatment falling within the scope of that Art icle. According to its case-law, the category of torture should be reserved for “ deliberate inhuman treatment causing very serious and cruel suffering ”, to which it attaches “ a special stigma ” ( see Selmouni v. France [GC], no. 25803/94 , § 36 , ECHR 1999-V).

5. The criteria it uses in its assessment of ill-treatment also enable the Court to classify instances of such treatment in concrete terms. Its assessment is based on “ all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. ” (ibid., § 100).

6. Admittedly, in recent years the concept of “torture” has been interpreted in an evolutive manner and acts previously c lassified as inhuman and degrading treatment a re now in some cases described as torture ( see Selmouni , cited above, §§ 101 and 105; Dikme v. Turkey , no. 20869/92, ECHR 2000 ‑ VIII ; and Ä°lhan v. Turkey [GC], no. 22277/93, ECHR 2000 ‑ VII ) .

7. In the present case, as is clear from the judgment (see paragraphs 27, 28, 30 and 60), the applicant received violent blows to several parts of his body from prison warders using rubber truncheons. As a result he sustained serious injuries necessitating his admission to the prison hospital .

8. However, the prison warders ’ use of force was intended to prevent the outbreak of a riot . It should not be overlooked in this context that in most prisons there is generally a latent presence of violence, which may at any

time degenerate into a riot . It is also important to take into account the warders ’ duty to maintain order in the prison.

9. In this context, I find it difficult to accept the Court ’ s assertion in paragraph 64 of the judgment that the truncheon blows – which, moreover, had a basis in law in the event of a riot – were administered selectively to certain prisoners although the aim had been to repress a collective breach of the detention regime , quite simply because such an assertion is impossible to prove.

10. Admittedly, the blows received by the applicant were extremely violent, requiring hospital treatment, and were probably not necessary . I am not persuaded, however, that the present case involved gratuitous and premeditated violence, contrary to the position in D e dovskiy v. Russia (no. 7178/03, §§ 81-85 , 15 May 2008), where the Court found that acts of torture had been committed since blows had been administered to the prisoners according to a predefined, calculated plan by a special-purpose squad, and where the use of rubber truncheons was retaliatory in nature.

11. I n conclusion, without wishing in any way to downplay the acts of violence for which the prison warders were responsible, I consider that such acts should be described as inhuman treatment and not torture .

12. Once again, I am emphasising this point because I believe that, if it is not to be trivialised, the term “torture” must be reserved for the most serious instances of ill-treatment .