JOINT CONCURRING OPINION OF JUDGES ZUPAN ČIČ, BERRO-LEFÈVRE AND YUDKIVSKA

1. We agree with the outcome in this case but would beg to differ on one question, which concerns the distinction between torture stricto sens u on the one hand and the concept of inhuman and degrading treatment on the other. W e shall also explain why it is uncertain, in this particular case, whether the sequelae suffered by the applicant , including his recurrent haematu ria , were or were not the consequences of the respondent S tate ’ s actions .

2. It is to be noted from the outset that the present case differs from the situation “where an individual, when taken in to police custody, is in good health, but is found to be injured at the time of release ”, which makes it “ incumbent on the State to provide a plausible explanation of how those injuries were caused ” [3] . The Court used to make a distinction between cases where an applicant was brought to the police in good health and cases whe re it was not so clear because applicants were apprehended , for instance, after fights with victims or third persons [4] .

3. The applicant in the present case was arrested o n the street immediately after he had had a fight with a certain Mr S. It is of particular importance that the applicant never contested the fact that he had been beaten by S . , had fallen on a metal fence and had thus received injuries . These circumstances count seriously against him, as well as his attempt to escape. Therefore we cannot state indubitably that the applicant was still in good health when taken into police custody.

4. However, we share the majority ’ s view that having failed to conduct a medical examination of the applicant before placing him in detention , and thus to confirm that he received injuries at the time of arrest and not after it, the authorities failed “ to discharge their burden of providing a plausible explanation for th o se injuries ” (paragraph 70) . Indeed, as stressed by the CPT , a medical examination immediately after the arrest constitute s one of the fundamental safeguards against ill-treatment which is of crucial importance particularly for countries like Ukraine , where ill-treatment in custody remains an endemic problem .

5. Nevertheless, we cannot subscribe to the conclusion in paragraph 73 of the judgment that the treatment at issue went beyond inhuman treatment and amounted to torture for the purposes of Article 3 of the Convention .

6. As can be seen from the judgment , the injuries sustained by the applicant included haematuria , an extensive haematoma on the chest , numerous bruises all over the right side of the chest and back and on the rig ht hip and left shoulder, and small scratches on his wrists. Without any attempt to underestimate or downsize the applicant ’ s sufferings, we nonetheless oppose an inflation of the category “torture” which is reserved , following Ireland v . the United Kingdom , for “deliberate inhuman treatment causing very serious and cruel suffering”, to which “a special stigma” is attached [5] .

7. I t must be understood that in Selmouni v. France the Court adopted a very concise and sophi s ticated definition of torture, using the very wording of Article 1 of the United Nations Convention A gainst Torture (hereinafter the “UN Convention”). [6] Until Selmouni v. France the European Court of Human Rights did not have its own definition of torture, neither did it distinguish strictly between torture for the purposes of Article 3 of the Convention and other forms of inhuman or degrading treatment or punishment .

8. Article 3 of the European Convention on Human Rights with its marginal heading “ Prohibition of torture ” spells it out as follows: “No one shall be subjected to torture or inhuman or degrading treatment or punishment” . The text of the Euro pean Convention on Human Rights, therefore , does not distinguish between torture and inhuman or degrading treatment or punishment. As pointed out above , the distinction between the two concepts was established in Selmouni by reference to Article 1 of the UN Convention . Article 1 requires that the suffering or pain , whether physical or mental , in order to be torture must be severe.

9. T he UN Convention definition also requires that the infliction of such severe pain or suffering be perpetrated with direct intent and moreover with a special intent ( dolu s special i s ) in order to obtain from the victim or a third person information or a confession or to punish him or her for an act that he or she or a third person has committed or is suspected of having committed or with intent to intimidate or coerce him or her or a third person or for any reason whatsoever based on discrimination of any kind. In addition, such acts of torture must be inflicted by or at the instigation of or with the connivance of a public official or any other person acting in such an official capacity. In this respect, we speak of delictum proprium , that is to say torture can only be committed, to put it simply , by an agent of the S tate.

10. On the other hand, Article 1 of the UN Convention in fine provides that pain or suffering arising only from or inherent in or incidental to normal lawful sanctions , d oes not qualify as torture. I f the person is resisting arrest and thereby makes the use of physical force inevitable for the purposes of that arrest, injuries sustained during this altercation will not qualify as torture, even though they would in every other respect , except in so far as dolus specialis is concerned, correspond to the above definition. The issue in Re h bock v. Slovenia , [7] for example, was whether the physical resistance of a body - builder did or did not necessitate the use of physical force, i.e., whether or not it was incidental to the lawful sanction constituted by his arrest.

11. The issue in the present case, where we differ with the majority, concerns, as we have pointed out above, the distinction between torture as here defined and explained , on the one hand, and inhuman or degrading treatment or punishment , on the other. Given the reception of the definition of the UN Convention ’ s Article 1 in Selmouni v. France , it must be take n into consideration that the European Court of Human Rights not only chose to be bound by the definition of torture but is eo ipso bound by the distinction between torture stricto sens u on the one hand and inhuman or degrading treatment or punishment on the other.

12. I t is i n this respect, therefore , interesting to note that the UN Convention practically does not refer , in the body of its text , to “other cruel, inhuman or degrading treatment or punishment” .

13. The term “cruel, inhuman or degrading treatment or punishment” appears only in Article 16 of the UN Convention , i.e., in its second paragraph , where the international instrument refers to the proviso according to which the UN Convention should be without prejudice to the provisions of any other international inst r ument or national law which prohibit “cruel, inhuman or degrading treatment or punishment” or which relate to extradition or expulsion.

14. In the logic of the UN Convention , therefore, “cruel, inhuman or degrading treatment or punishment” is everything which is less than torture stricto sens u .

15. Here we obser ve that the criteria in Article 1 of the UN Convention referring to dolu s special i s and delictum proprium are discret e (yes or no, aut-aut ) , which means that the preconditions for characterising the conduct of the State agent are either present or not .

16. The only no n- discre t e element of the crime of torture , which lends itself to continuity, is the pain or suffering, which must be severe . It would logically follow, therefore, that “cruel, inhuman or degrading treatment or punishment” is everything that does not qualify as torture by virtue of the required severity of pain and suffering , be it physical or mental . If the pain or suffering, physical or mental, is less than severe, in other words, we speak – all other preconditions being equal – of inhuman or degrading treatment.

17. In the present case, not on ly is it doubtful that the sequelae actually derived from ill- treatment by public officials, but also the severity of the pain and suffering has, in our opinion , not been properly establi shed.

[1] Around 544 euros

[2] Around 700 euros

[3] . See , among many other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V

[4] . See Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII , or Kobets v. Ukraine , no. 16437/04, 14 February 2008

[5] . Ireland v. the United Kingdom , 18 January 1978, § 16 7 , Series A no. 25

[6] . UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85 , available at: http://www.unhcr.org/refworld/docid/3ae6b3a94.html Part I, Article 1:

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

[7] . Rehbock v. Slovenia , no. 29462/95, ECHR 2000 ‑ XII