DISSENTING OPINION OF JUDGE KJØLBRO

1 . I disagree with the majority that there has been a violation of Article 14 read in conjunction with Article 3 of the Convention. In other words, I disagree that the State has failed to fulfil its positive obligation to conduct an effective investigation into the incident of allegedly racially motivated violence.

2 . It is undisputed that a violent clash took place between the applicant and a private person (Mr E.D.). The applicant lodged a criminal complaint and brought the alleged racial motive of the perpetrator to the attention of the prosecutor. The prosecutor initiated a criminal investigation into the offence of “violence against a member of a group” (Section 174/B of the Criminal Code) and investigated into the alleged racial motives for the attack. Therefore, the question is not whether the prosecutor investigated into the allegedly racially motivated attack, but if the investigation into the alleged racist motives was effective as required by Article 3 of the Convention.

3 . An investigation was prompted immediately and completed expeditiously. The relevant evidence was gathered. Amongst other, the applicant and his girlfriend were heard as witnesses. So were the two police officers that arrived at the scene after the incident. An attempt was made to identify the three acquaintances of the applicant who had intervened after the incident. The alleged perpetrator was also questioned. Furthermore, the prosecutor had at his disposal the documents provided, including medical reports and prints of posts from a social network. The majority have not pointed to any lacking investigative measures or concreate shortcomings in the gathering of evidence that could justify finding the investigation ineffective.

4 . In fact, the only basis for finding of a violation is the prosecutor ’ s assessment of the evidence and decision to discontinue the investigation. In the assessment of my colleagues, the prosecutor ’ s assessment “resulted from a manifestly unreasonable assessment of the circumstances of the case” (see paragraph 77 of the judgment). I firmly disagree with that statement.

5 . It transpires clearly from the reasons given by the prosecutor that the decision to discontinue the investigation into the offence of “violence against a member of a group” was based on an assessment that the offence “cannot be proven sufficiently for establishing criminal responsibility” and that the “racist motive ... cannot be established beyond doubt ... ” (see paragraph 17 of the judgment). In other words, the prosecutor was of the opinion, on the basis of an assessment of all the material, that the evidence was insufficient to secure a conviction of the alleged perpetrator.

6 . The positive obligation to conduct an effective investigation is an obligation of means, not of result ( Milić and Nikezić v. Montenegro , nos. 54999/10 and 10609/11 , § 94, 28 April 2015 ), and it is not the task of the Court to assess the criminal responsibility of individuals ( AvÅŸar v. Turkey , no. 25657/94, § 284, ECHR 2001 ‑ VII (extracts)). Furthermore, having regard to the presumption of inn ocence as guaranteed by Article 6 § 2 of the Convention as well as the well-established principle of objectivity in criminal law, the Convention cannot be interpreted as requiring the prosecutor to indict and press criminal charges against a person, if, in the assessment of the prosecutor and on the basis of a proper assessment of all the relevant evidence, no criminal offence has been committed, or the evidence is insufficient to secure a conviction. Therefore, in case the investigation performed at domestic level has been effective in the sense of gathering all the relevant evidence, the Court should accept the assessment of the evidence performed by the domestic authorities unless the assessment is arbitrary or manifestly unreasonable.

7 . In my view, there is no basis for saying that the decision of the prosecutor to discontinue the investigation into “violence against a member of a group” was arbitrary or manifestly unreasonable or that it was not “based on an adequate assessment of all the relevant factual elements in the case” ( Milić and Nikezić v. Montenegro , nos. 54999/10 and 10609/11 , § 99, 28 April 2015 ).

8 . In support of the conclusion that the prosecutor ’ s assessment “resulted from a manifestly unreasonable assessment of the circumstances of the case”, the majority mention three elements: (1) the prosecutor ’ s assessment of the racist motive (paragraph 72 of the judgment), (2) the significance of the perpetrator ’ s posts on the social network (paragraph 73-74) and (3) the importance of the perpetrators link to a film on a social network (paragraph 75 of the judgment).

9 . Firstly, as regards the racist motive, it follows from Section 174/B of the Criminal Code that the prosecutor, in order to secure a conviction, has to prove beyond reasonable doubt that the violence was inflicted against the victim “because that other person belongs to a ... ethnic, racial ... group”. The prosecutor explained in the reasons given for his decision (paragraph 17 of the judgment) why it would not be possible to prove that the violence was inflicted “because of” the Roma origin of the applicant. In the assessment of the prosecutor, the offence “cannot be proven sufficiently for establishing criminal responsibility” and that the “racist motive ... cannot be established beyond doubt ... ” I fail to see how the majority ’ s reference to the sufficiency of “mixed motives” has any bearing on the assessment of the case. The prosecutor assessed that he could not prove the link between a racist motive and the violence. The prosecutor referred to the fact that the perpetrator “had intended to leave the scene and only turned back because of the victim ’ s reproach and that the only information about the start of the fight originates in the contradictory statements of the victim and [the perpetrator]”. My colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment as “arbitrary” or “manifestly unreasonable”.

10 . Secondly, as regards the importance of the posts on the social network, my colleagues criticize the prosecutor for not having explained “why the content of the posts and the applicant ’ s subsequent testimony could not be unequivocally linked to the impugned events and why [the perpetrators] motives for the attack on the applicant could not be validly deduced from those posts” (see paragraph 73 of the judgment). However, my colleagues fail to recognize the difference between violence against a person who is of Roma origin, and violence against a person because of the persons Roma origin. In the first situation the ethnic origin of the victim is a statement of fact, in the other it is the cause of the violence. It transpires clearly from the reasoning of the decision that the prosecutor assessed that the posts were insufficient to prove that the incident took place “because of the victim ’ s Roma origin”. Again, my colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment as “arbitrary” or “manifestly unreasonable”.

11 . Thirdly, as regards the link to the racist film in one of the posts of the perpetrator on the social network, my colleagues criticize the prosecutor for having “failed to give any reason why this cannot be regarded as an evidence of racially biased motives” (see paragraph 75 of the judgment). However, the prosecutor clearly stated that it could not be proven “either from the post or from the subsequent messages” that the incident took place “because of the victim ’ s Roma origin” (see paragraph 17 of the judgment). My colleagues fail to recognize that the fact that a person has expressed views that may be interpreted as racist does not imply that everything the person does is racially motivated. Again, my colleagues may disagree with that assessment, but there is insufficient basis for characterising the assessment as “arbitrary” or “manifestly unreasonable”.

12 . In my view, the majority is acting as a fourth instance court substituting their own assessment of the evidence for that of the domestic authorities. The judgment can only be read as criticizing the prosecutor for not having indicted the perpetrator and brought the case before the criminal courts.

13 . However, as already mentioned, the Convention cannot be interpreted as requiring the prosecutor to indict and press criminal charges against a person, if, in the assessment of the prosecutor and on the basis of a proper assessment of all the relevant evidence, no criminal offence has been committed, or the evidence is insufficient to secure a conviction. Furthermore, as already mentioned, there is no basis for saying that the decision of the prosecutor to discontinue the investigation into “violence against a member of a group” was arbitrary or manifestly unreasonable or that it was not “based on an adequate assessment of all the relevant factual elements in the case” .

14 . I would like to underline another aspect. The applicant has complained of the alleged ineffectiveness of the investigation conducted by the authorities rather than about the absence of prosecution as such (see paragraph 32 o f the judgment). My colleagues d o not criticize the domestic investigation for being ineffective in the sense of not having secured all the relevant evidence, but like the applicant they are in fact criticizing the prosecutor ’ s assessment of the evidence. In this context it is important to notice that it was open to the applicant, if he was dissatisfied with the prosecutor ’ s assessment of the evidence, to institute subsidiary private prosecution (Section 199(2) of the Code of Criminal Procedure), had they wanted a court ’ s assessment of the facts of the case. This was not done. Rather, the applicant turned to the European Court of Human Rights that has now told the domestic prosecutor, albeit indirectly, that he should have indicted the perpetrator and brought the case before criminal courts, irrespective of the fact that the evidence, in the assessment of the prosecutor, was insufficient to secure a conviction, as the decision of the prosecutor, according to the majority, results from “a manifestly unreasonable assessment of the circumstances of the case”.

15 . For the reasons mentioned, there has, in my view, been no violation of Article 14 read in conjunction with Article 3 of the Convention.