CONCURRING OPINION OF JUDGE MOTOC

(Translation)

I totally agree with the approach taken by the Chamber. It has adopted an approach that is important for the Court ’ s case-law, but the reasoning is not sufficiently developed. The Chamber has correctly classified as torture the violence inflicted on the two victims, who were in State custody. But on what legal basis did the Chamber rule that those acts were torture? Above all, how did the Chamber make the distinction between torture and inhuman or degrading treatment?

1. There is no doubt that the State agents in this case acted with the intention of obtaining a confession (see, to similar effect, Dikme v. Turkey , no. 20869/92, § 64, ECHR 2000 ‑ VIII, and Aksoy v. Turkey , 18 December 1996, § 9, Reports of Judgments and Decisions 1996-VI ) in the case of the second applicant and of obtaining information in the case of the third applicant. In both instances, they used force to intimidate the two victims. Both applicants were in a state of vulnerability on account of the fact that they were being held by the police. The factors indicating to us that this was a case of torture rather than of inhuman or degrading treatment are the intent behind the conduct ( dolus specialis ) and the victims ’ vulnerability. The existence of these two factors prevailed over the physical intensity of the pain or suffering (see Nowak M. and McArthur E., The United Nations Convention Against Torture. A Commentary , Oxford University Press, 2008, p. 77).

2. The case of these two victims, a mother and daughter, is singular, in that the acute suffering resulting from the acts committed by the State agents was not only physical, but also psychological. It is not necessary in this case to find the interrogation techniques with which the Court is familiar – Palestinian hanging (see Aksoy v. Turkey , cited above), beatings (see Dikme v. Turkey , cited above), falaka ( Salman v. Turkey [GC], no. 21986/93, ECHR 2000 ‑ VII), electric shocks (see Akkoç v. Turkey , nos. 22947/93 and 22948/93, ECHR 2000 ‑ X, and Mikheyev v. Russia , no. 77617/01, 26 January 2006 ) or rape (see Aydin v. Turkey [GC], no. 23178/94, 25 September 1997) – but the intense psychological suffering arising from the very close family ties between the two victims was considered sufficient to find that the physical violence which occurred during the period in custody had amounted to an act of torture.

3. It is clear that the Court has already referred to the importance of psychological suffering in Ireland v. the United Kingdom (18 January 1978, Series A no. 25), in which the Court indicated that psychological suffering is sufficient in itself to classify an act as torture. The Commission had already used the term “non-physical torture” in the Greek case (Yearbook 12), and described it as a state of anguish and stress caused by means other than bodily assault.

4. Given that the present case concerned not only physical but also psychological violence, the Chamber ought to refer to the Court ’ s principles as set out in Campbell and Cosans v. the United Kingdom (25 February 1982, Series A no. 48) and developed in Gäfgen v. Germany ([GC], no. 22978/05, ECHR 2010) . Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Campbell and Cosans v. the United Kingdom , § 26) and “[I]n particular, the fear of physical torture may itself constitute mental torture. However, there appears to be broad agreement, and the Court likewise considers, that the classification of whether a given threat of physical torture amounted to psychological torture or to inhuman or degrading treatment depends upon all the circumstances of a given case, including, notably, the severity of the pressure exerted and the intensity of the mental suffering caused” (see Gäfgen , cited above, § 108).

5. Lastly, the question of evidence. The two applicants submitted medical certificates confirming the physical violence. These certificates have been contested by the Government, which have not submitted any relevant evidence in support of their challenge. Admittedly, the two applicants have not submitted medical certificates attesting to their psychological distress, but it was impossible to produce these in the given circumstances. The victims ’ credibility is demonstrated by all of the coinciding factors, taken together.