JOINT CONCURRING OPINION OF JUDGES SAJÓ AND TSOTSORIA

This judgment follows a line of the Court ’ s case-law that disregards the Grand Chamber judgment in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, ECHR 2002 ‑ I) and, without making a proper distinction, applies to private negligence the case-law that has been developed and applied in relation to inhuman and degrading conduct on the part of State agents exercising physical power. Together with other colleagues, we expressed our reservations in Kraulaidis v. Lithuania (no. 76805/11, 8 November 2016) and we cannot agree with the present judgment to the extent that its finding of a violation of Article 3 is based on the assumption that O ’ Keeffe v. Ireland ( [GC], no. 35810/09, ECHR 2014 (extracts)) requires the same standard to apply irrespective of whether the inhuman or degrading treatment by private individuals was inflicted voluntarily or not. Moreover, we are of the view that where a more effective remedy exists than the criminal one, applicants must avail themselves of that remedy, although in the circumstances of the case no such remedy was available and therefore the application is admissible.

Contrary to the situation in Kraulaidis and its progeny, there was enough evidence in the present case for the prosecutor to indict the construction site manager for a non-negligent crime (see paragraph 40 of the judgment), although this does not apply to the initial period of the investigation, when the available information, including official reports to the State Labour Inspectorate, indicated only formal breaches of safety rules. Moreover, in 2009 a court had already found that “some witnesses” had admitted to giving false testimony under pressure from the employer (see paragraph 28). In view of the above, there must have been grounds for treating this case with all the care that is due when an investigation is conducted into a substantiated allegation of at least serious recklessness. However, the domestic courts did not exercise proper diligence, even though they should have been aware of the fact that the prosecution would soon become time ‑ barred.

DISSENTING OPINION OF JUDGE BOÅ NJAK

1. Unfortunately, I cannot agree with the majority that the application in the present case should be declared admissible. Furthermore, even assuming that the conditions for the application ’ s admissibility were met, it is my belief that the Chamber should not find a violation of Article 3 of the Convention.

2. Following the workplace accident which resulted in serious impairment of the applicant ’ s health, he decided to seek a criminal ‑ law response against those responsible for the incident, by turning to the Klaipeda city prosecutor ’ s office. In the course of the ensuing criminal proceedings, the applicant lodged a claim for civil damages. On 8 May 2012 the Klaipeda District Court terminated the case against V.J.S. on the ground that the prosecution had become time-barred. The court decided that the applicant ’ s civil claim should not be examined and that the applicant should instead institute civil proceedings. Such a decision was in accordance with the relevant provisions of the Lithuanian Code of Criminal Procedure and the case-law of the Supreme Court of Lithuania. This legal framework is not unique to Lithuania – indeed, it can be encountered in several other High Contracting Parties to the Convention. Its logic is clear: while there may exist procedural or/and substantive obstacles to finding a defendant criminally responsible, there may still be grounds to grant the related civil claim, but these are to be determined in separate civil proceedings. The Government have provided the Court with examples of successful civil actions brought by plaintiffs subsequent to criminal proceedings in which the defendants were not convicted. It appears from those examples that the applicant in the present case could possibly have been successful with his claim had he continued to pursue it in civil proceedings, as instructed by the Klaipeda District Court. For reasons unknown to our Court, he failed to act accordingly and thereby discontinued his action against V.J.S.

3. It may well be considered reasonable for a victim to join the criminal proceedings against a defendant by lodging a civil claim, rather than by instituting separate civil proceedings. However, if a criminal-law action against a defendant does not lead to a conviction and consequently, in view of the provisions of the particular legal system, no decision on the merits of the civil claim is taken, this claim will remain to be decided in civil proceedings. Although burdensome for the victim, this path is to be considered legally coherent and acceptable. Since the applicant in the present case did not use it, his civil claim remained undecided on the merits by the courts of the respondent State. In my opinion, this should lead to a conclusion that the applicant failed to exhaust the available domestic legal remedies. Consequently, the application should have been declared inadmissible.

4. Notwithstanding the issues of admissibility, I believe that in the present case there was no violation of Article 3 of the Convention. While it is true that under the case-law of this Court (see, for example, O ’ Keefe v. Ireland , [GC], no. 35810/09, ECHR 2014), Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment even where such treatment has been inflicted by private individuals, one must first discern the conduct that can possibly fall within the ambit of Article 3. The case-law of the Court, adjudicating on the positive obligation of the High Contracting Parties under the procedural limb of Article 3 of the Convention, has dealt with cases of rape, sexual abuse or violence (see O ’ Keeffe v. Ireland , cited above; C.A.S. and C.S. v. Romania , no. 26692/05, 20 March 2012; M.C. v. Bulgaria , no. 59297/12, 25 March 2014; Y. v. Slovenia, no. 41107/10, 28 May 2015), in certain instances coupled with illegal confinement (see S.Z. and others v. Bulgaria , no. 29263/12, 3 March 2015). Some of the cases examined have concerned family violence (see M. and M. v. Croatia , no. 10161/13, 3 September 2015) or violent beating and injuries in a fight (see Sakir v. Greece , no. 48475/09, 24 March 2016; Dimitar Shopov v. Bulgaria , no. 17253/07, 16 April 2014; Biser Kostov v. Bulgaria , no. 32662/06, 10 January 2012; and Beganović v. Croatia , no. 46423/06, 25 June 2009). What these cases have in common is conduct containing elements of violence, inducing feelings of humiliation and degradation in the victim. In each case, this conduct was directed against a specific victim (who later became an applicant before the Court), more specifically against his or her life or limb and/or personal integrity. It was committed intentionally, with the possible exception of the case of Muta v. Ukraine (no. 37246/06, 31 July 2012), where it remained open whether the perpetrator had acted intentionally or with negligence – in all other aspects, that case did not differ from the above-mentioned cases of ill-treatment by private individuals. Apparently, there exist important similarities between the conduct qualified as ill ‑ treatment in those cases and the brutality inflicted by police and other State agents that was at the heart of the Article 3 case-law as it was developed over the decades.

5. Recently, a Chamber of the Fourth Section delivered a judgment in the case of Kraulaidis v. Lithuania (no. 76805/11, 8 November 2016). It found a violation of the procedural limb of Article 3 in a case concerning a traffic accident. This judgment is inconsistent with the existing well ‑ established case-law. Previously, any deficiencies in judicial proceedings concerning traffic and other accidents were analysed under Article 6 of the Convention (see, for example, Dragomir v. Romania , no. 43045/08, 14 June 2016; Atanasova v. Bulgaria , no. 72001/01, 2 October 2008; and Buonfardieci v. Italy , no. 39933/03, 18 December 2007). The judgment in Kraulaidis v. Lithuania created considerable unease among four judges of the composition, who decided to write a concurring opinion. They explicitly highlighted the absence of the ill-treatment aspect in a car accident caused by negligence (see § 12 of the concurring opinion) and called upon the Grand Chamber to stop the drift into trivialisation of Article 3 rights (see § 7 of the concurring opinion). Nevertheless, this majority within the Chamber chose not to vote against the finding of a violation of the procedural limb of Article 3 of the Convention.

6. The judgment in the present case goes a step further. It is inconsistent with the case-law cited in § 4 of this dissenting opinion. The specific conduct resulting in the applicant ’ s accident has never been established, but it is allegedly related to the deficient organisation of the construction site. In contrast to the acts qualified as ill-treatment in the above-mentioned cases, such failure to ensure deficient organisation was not a violent act and did not on the face of it include any element of humiliation and debasement of the victim, that is, of the applicant. What is more, it was not directed against the applicant [1] , let alone against his life, limb or personal integrity. Instead it appears from the provisions of Article 176 of the Lithuanian Criminal Code (hereinafter referred to as the LCC) that the criminalisation of acts under this provision is targeted at the protection of safety and health at work, which are legal goods only remotely and indirectly connected with the physical and personal inviolability of an individual. The alleged perpetrator, V.J.S., was initially accused of intentional and subsequently of negligent disregard of workplace safety rules. However, this mental element of the offence did not relate to the serious bodily injury sustained by the applicant. According to the wording of Article 176 of the LCC, a violation of the requirements of safety protection at work is considered a criminal offence when it results in an accident involving people or causing other serious consequences. The offender ’ s intent (or negligence, if § 3 of Article 176 of the LCC is applicable) relates to the violation of safety or health requirements and not to the consequence, which in the present case was the serious bodily harm suffered by the applicant. The result is the so-called objective condition of criminalisation (in German, die Objektive Bedingung der Strafbarkeit ). In other words, according to Article 176 of the LCC, neither intent nor negligence is required in relation to the bodily harm suffered by the victim (the applicant in our case). This illustrates an additional trivialisation of the Court ’ s case-law with regard to Article 3.

7. Finally, one should not forget that the applicant never claimed a violation of Article 3. He never asserted that he had been tortured or treated in an inhuman or degrading manner. Instead, he relied upon Articles 6 and 13 of the Convention. Nevertheless, the Chamber decided to examine the case under Article 3 of the Convention, relying upon the Court ’ s role as the master of legal characterisation. It is my belief that this role should be exercised with the utmost caution. To be specific, there exists an imminent danger of reading into an application facts and circumstances that are not contained within it, and in consequence, examining it under an angle that was never envisaged by the person who lodged it. In such cases, the Court decides ultra petitum , which is incompatible with its role as a court. It is likely that in the present case the Chamber decided to rule in favour of the applicant due to a feeling of sympathy for the injustice arguably experienced by the applicant. In order to pave the way for this outcome, the Chamber identified Article 3 of the Convention as the provision best suited to that purpose and interpreted it in the manner described above.

8. I have to dissent from such an approach. While it is true that the Convention is a living instrument, its interpretation cannot be construed beyond the meaning of its provisions. It is unlikely that an average qualified observer would characterise an unsafe construction site as an instance of the inhuman or degrading treatment that the High Contracting Parties have a positive obligation to prevent and investigate. For this reason, I decided to vote against finding a violation of Article 3 of the Convention.

[1] According to its settled meaning, the word treatment ( F r. le traitment ) relates to the act or manner of dealing with someone.