JOINT DISSENTING OPINION OF JUDGES JOČІENĖ, SAJÓ AND RAIMONDI

There is no doubt in our minds that in the present case the applicant ' s rights under Article 3 of the Convention were violated. As an inmate he suffered injuries during a security operation in Gebze prison. Those injuries bear out his claim of inhuman and degrading treatment. Given the improprieties in the investigation following the applicant ' s injury, the Government could not be said to have satisfactorily discharged their burden of explaining the injuries. For this reason, we find that Article 3 was violated and we therefore voted with the majority on the question of non-pecuniary damage.

We could not, however, follow the majority in regard to its finding of a violation of Article 2. The facts of the case remain con test ed. The applicant was wounded in the foot. This is certainly not life-threatening, but the nature of the wound alone is not decisive for the applicability of Article 2 of the Convention. In fact, in a number of cases the Court has examined complaints under this provision where the alleged victim did not die as a result of the impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99, § 49, ECHR 2004-XI, and Alkın v. Turkey , no. 75588/01, § 29, 13 October 2009). In such circumstances, the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case the State agents ' actions in inflicting injury short of death are such as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention, having regard to the object and purpose pursued by that Article (see Makaratzis , cited above, § 51).

The Court has had the opportunity to consider the nature of security operations in Turkish prisons in the course of prison riots in a number of cases. Where the intervention resulted in killings, the Court considered the application under Article 2 (see Gömi and Others v. Turkey , no. 35962/97, 21 December 2006, and Perişan and Others v. Turkey , no. 12336/03, 20 May 2010); it did so even in a case where the applicant survived the injury to his pancreas (see İsmail Altun v. Turkey , no. 22932/02, 21 September 2010). However, in the case of Perişan and Others , the complaints under Article 2 of the Convention of those applicants who did not suffer life-threatening injuries were examined from the standpoint of Article 3 of the Convention.

In the absence of the use of firearms, not even the serious injuries of ten applicants resulted in an Article 2 review (see Satık and Others v. Turkey, no. 31866/96, 10 October 2000, see further Kurnaz and Others v. Turkey , no. 36672/97, 24 July 2007). In the present case, the applicant did not substantiate his claim that the other injured inmates had been shot or that firearms had been used on a large scale. The Court did not find established in the present case any facts which would allow us to conclude that the nature of the operations, including the use of force, was comparable to the security operations at Diyarbakır or Bayrampasa prisons. In the absence of an at least potentially lethal wound there is nothing in the case file, apart from the unsubstantiated allegations of the applicant, that would point to a degree and type of force or an intention or aim behind the use of force that would trigger the analysis of the facts under Article 2 on an exceptional basis. Therefore, as no clear issue arises under Article 2 in the present case, the State has no obligation to bear the burden of providing plausible explanations in regard to that Article.