JOINT PARTLY DISSENTING OPINION OF JUDGES JO ÄŒIENÄ– , TSOTSORIA AND KARAKA Åž

We do not share the majority ' s opinion that there was a violation of Article 3 of the Convention under its substantive limb in the present case.

As the majority point out in paragraph 30 of the judgment, allegations of ill ‑ treatment must be supported by appropriate evidence. To assess this evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” ( Ireland v. the United Kingdom , 18 January 1978, § 161 , Series A no. 25) . However, i n order t o fall within the scope of Article 3 of the Convention , the alleged ill- treatment must attain a minimum level of severity ( ibid ., § 162 ).

In our view, in the present case, first of all, proof of the applicant ' s ill-treatment did not follow from the coexistence of sufficiently strong, clear and concordant inferences (see, for example, Labita v. Italy [GC], § 121, ECHR 2000-IV), and, secondly, the t reatment of which the applicant complain ed d id not attain the minimum level of severity for Article 3 of the Convention to be applicable.

Following the applicant ' s arrest on 29 October 2003, she had a medical examination in the hospital (resulting in two reports), which revealed no trace of ill ‑ treatment on her body. She complained only of pain in her right upper arm. On the same day, she was released from police custody, after being questioned by the public prosecutor.

Eight days after she was arrested and released, the applicant underwent a further medical examination on 6 November 2003. The report drawn up on that occasion indicated “a 2 x 6 cm ecchymosis on the back of her leg”. Although the medical reports issued when she was arrested did not indicate any sign of ill-treatment, the public prosecutor initiated an investigation but decided not to prosecute. With regard to her allegations of ill-treatment during the demonstration, we consider that the applicant has not made an arguable claim.

Even assuming that the acceptance of the second report, which should be of no evidentiary value, by the prosecutor in order to examine the applicant ' s allegations of ill-treatment placed the burden of proof on the Government, we consider that in this case the Court has forgotten to apply the principle of “minimum level of severity”. The very limited injury sustained by the applicant after a demonstration – a small bruise on the leg eight days after her release – should not be sufficient for the Court to find a substantive violation of Article 3.

This explains why we also voted against the Court ' s award in respect of non ‑ pecuniary damage.