JOINT CONCURRIN G OPINION OF JUDGES NICOLAOU AND KELLER

1. We wholeheartedly agree with the majority ’ s finding that Article 3 has been violated in this case. We would, however, respectfully clarify the reasoning by which we arrive at this conclusion.

2. First, we would like to comment on the concept of cage. The Grand Chamber judgment is limited to the use of a metal cage as described in paragraphs 48 and 125. We would note that Russia and other countries that have used metal cages in courtrooms are developing a tendency to replace them with glass enclosures or “organic glass screens” (see paragraph 75 of the judgment). The present judgment does not apply to such security measures. However, we would stress that such “cages” might raise issues under the requirement of procedural fairness in Article 6 § 1 and the presumption of innocence in Article 6 § 2 of the Convention (compare the Views of the Human Rights Committee in Kovaleva and Kozyar v. Belarus , Communication No. 2120/2011, Views of 29 October 2012, CCPR/C/106/D/2120/2011, § 11.4 ).

3. Second, we consider it necessary to address the absolute nature of Article 3, in the light of which paragraph 124 of the present judgment should be read. It is the Court ’ s established case-law that Article 3 enshrines an absolute right. [1] Hence, the provision is not only non- derogable , as is evident from Art icle 15 § 2 of the Convention, but it also does not permit exceptions, regardless of the conduct of the victim or the circumstances ( see Gäfgen v. Germany [GC] , no. 22978/05, § 87 , ECHR 2010 ). Accordingly, while the context of a given treatment or punishment may be taken into consideration in determining whether the threshold of severity required for a violation of Article 3 has been reached, it cannot provide a justification for those acts or omissions that reach this threshold ( see Ireland v. the United Kingdom , 18 January 1978, § 163, Series A no. 25 , and Saadi v. Italy [GC] , no. 37201/06, § 127, ECHR 2008 ). There is, in short, no room for a margin of appreciation or a justification for ill-treatment re aching the threshold of Article 3. There is room for relativity only on the question whether the threshold of severity has been reached for a violation of Article 3, not whether treatment or punishment that reach this threshold constitute a violation of the Convention ( see Ireland v. the United Kingdom , cited above, § 162). [2]

4. Given the impossibility of justifying ill-treatment that reaches the threshold of severity required for a violation of Article 3, we consider it unfortunate that the judgment, in paragraph 124, pays so much attention to the legal basis for the use of the cage in courtrooms and suggests that its insufficiency is, in the present case, a relevant factor. This paragraph could be misunderstood, a contrario , as suggesting that a sufficient legal basis could have somehow justified the alleged violation of Article 3. We consider it essential that no such impression be conveyed. The existence of a sufficient legal basis is one condition of justifying an interference with Ar ticles 8–11 of the Convention, which explicitly permit such justifications in their respective second paragraphs. As no justific ation is possible under Article 3, paragraph 124 of the present judgment must be read as an argument ad abundantiam . In other words, it must be taken as a passing comment on the problematic nature of regulating court proceedings by unpublished orders of a general nature. In no event should this paragraph be read as meaning that a sufficient legal basis could ever legitimi s e acts otherwise contrary to Article 3 of the Convention (compare, in the same vein, the Concurring Opinion of Judge Bratza in the case of Jalloh v. Germany [GC] , no. 54810/00, ECHR 2006-IX, arguing that the majority ’ s consideration of whether the forced administration of emetics was “necessary” detracted from the absolute nature of Article 3 ).

5. In paragraph 128 of the judgment, the Court be gins the analysis under Article 3 by correctly asking whether the minimum threshold of severity required under that provision has been reached . However, it then brings into play the presumption of innocence and the fairness of the proceedings in paragraphs 131–134. Whilst acknowledging that these issues might be serious (see paragraph 2, above), we regard their inclusion in the examination under Article 3 to be misplaced.

6. As to security in the courtroom, paragraph 137 should not be read as maintaining the possibility, however small, of justifying the use of metal cages in courtrooms . Other means, consistent with the dignity of the accused, are possible and should be used instead. We draw attention to the principal finding of the Court, which is made very clear in paragraph 138 of its judgment: the use of metal cages in the courtroom is per se incompatible with Article 3.

7. The Court ’ s emphasis on the presumption of innocence in paragraphs 131–134 of the present judgment represents yet another argument ad abundantiam : while only Article 3 was invoked in the present case, the placement of accused individuals in cages for trial could conceivably, in certain circumstances, raise an issue under Article 6 § 2 of the Convention. The fact that the Court has noted this possible problem, however, does not mean that paragraphs 131–134 are relevant to its finding of a violation under Article 3. The examination of alleged violations of Article 6 § 2 is different from that under Article 3, and the two should be meticulously kept separate.

8. To conclude, while agreeing with the Court ’ s finding in this case, we are of the opinion that the present judgment must be understood in the light of the considerations set out above. In particular, no part of this judgment should be understood as undermining the absolute nature of Article 3 by permitting exceptions from that provision. It is essential that there be no doubt about the fact that Article 3 is violated in all instances in which the severity of ill-treatment inflicted reaches the level of severity that constitutes the threshold for its application.