JOINT DISSENTING OPINION OF JUDGES GARLICKI AND DAVID TH Ó R BJÖRGVINSSON

To our regret we cannot share the position of the Chamber as to the inadequacy of the investigation.

As it transpires from paragraph 60 of the Chamber judgment, the finding of a procedural violation was linked to the fact that “the authorities investigated [the applicant ’ s] allegations in too narrow a framework, and they deprived themselves of the possibility of assessing the proportionality of the force applied to the applicant from the standpoint of Article 3 standards”.

Thus, there is no reason to blame the authorities for not establishing the basic facts of the case. In consequence, it would be difficult to apply the usual finding that “the investigation was superficial, lacked objectivity and ended in decisions which contained conclusions unsupported by a careful analysis of the facts” (see, for example, Lewandowski and Lewandowska v. Poland , no. 15562/02, § 74, 13 January 2009 ; see also Dzwonkowski v. Poland , no. 46702/99, § 66 , 12 April 2007 ). It seems that, in the opinion of the Chamber, the violation resulted firstly from the fact that the “human dignity” aspect of the applicant ’ s claim had not been separately assessed and addressed by the authorities and, secondly, from the fact that the investigation did not lead to any criminal charges against the personnel of the sobering-up centre.

We are not convinced that the investigation did not take into account the applicant ’ s claims concerning infringements of her dignity. This aspect of the case was addressed initially in the decision of the regional prosecutor (7 June 2000) quashing the original decision to discontinue the investigation. The prosecutor observed that “any final decision in the case must formally address all the acts reported by the applicant, [hence also] the infringement of her dignity (inter alia, by stripping her naked)”. The district prosecutor, in the decision of 2 August 2000, followed that instruction but concluded, with reference to the applicant ’ s complaint that the officers of the sobering-up centre had behaved in a manner violating her honour and dignity, that account should be taken of the fact that the applicant herself had the right to lodge a private bill of indictment in respect of that claim. Thus, the “human dignity” aspect did not escape the attention of the authorities, even if their conclusion was that all the measures taken in the sobering-up centre had been lawful and that, therefore, there was no ground to proceed with criminal charges.

It is true that the Court ’ s assessment of the facts was different and that we found that the measures applied to the applicant had been disproportionately harsh. But this difference relates to the substantive aspect of the case and led to our finding of a substantive violation of Article 3. It cannot be carried over into the procedural assessment of the case. The domestic authorities could hardly be blamed for applying domestic standards of lawfulness and for concluding that a lawful action cannot lead to a criminal charge. It should not be forgotten that the nature of States ’ responsibilities under international law differs from that of the criminal liability of individuals. Thus, a violation of the Convention must not necessarily translate in each and every case into criminal proceedings against the person responsible.