PARTLY DISSENTING OPINION OF JUDGE DEDOV

(Translation)

I regret that I am unable to subscribe unreservedly to the view of my colleagues in the present case. I voted in favour of finding a violation of Article 4 of Protocol No. 4 to the Convention, but I believe that the finding of a violation is sufficient by way of non-pecuniary damage. It is clear from the facts of the case that the applicants ’ situation was not an urgent one resulting from persecution or an immediate threat to their lives, integrity or dignity. Moreover , they had crossed the border illegally and in a violent manner. The authorities, for their part, examined the individual situation of both applicants when they crossed the border again, as required by the Convention. Consequently, even as regards its substance, the violation cannot be considered a serious one.

All the circumstances are clear to me. I have just one concern as regards this case and numerous other similar cases examined by the Court, namely the fact that the Court , in a situation of unlawful conduct or even violence, maintains (albeit not in all cases) the high standards it requires of the authorities. I can imagine how shocked the Spanish border guards must have been by this invasion, during which the applicants, together with numerous other migrants, launched an assault on the border. We think that State agents should remain calm and impartial in all circumstances because they are trained to deal with any “standard” situation. But they are people like you and I who have emotions ; t hey also deserve our respect, and we should take that into consideration . We should therefore ask ourselves who was in the more vulnerable position in the present case.

[1] . https://www.defensordelpueblo.es/noticias/la-defensora-del-pueblo-concluye-en-el-senado-el-tramite-parlamentario-del-informe-anual-2/