JOINT DISSENTING OPINION OF JUDGE S JOČIENĖ AND SAJÓ

We agree with the conclusions of the Chamber in this case concerning the violation of Article 11. We do not, however, share its conclusions in finding a violation of Article 3 of the Convention as regards inhuman and degrading treatment in the circumstances of this particular case.

The Court in its jurisprudence has clearly applied a stringent test as regards the minimum level of severity required in order to find a substantive violation of Article 3 of the Convention. In the case Assenov and Others v. Bulgaria ( 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII ) the Court stated:

“ ... 94. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517–18, §§ 52 and 53) ... .”

We consider that the wounds sustained by the applicants did not attain the level of severity required to satisfy the Article 3 test in the present circumstances, involving the dispersal of a demonstration during which the applicants refused to comply with an order to disperse. What is more, in this particular case the nature of the injuries sustained by the applicants did not play a decisive role. It is not clear from the facts of the case, as recognised by the Chamber, how these injuries were caused (see paragraph 39 of the judgment). Furthermore, the medical reports lacked details such as the extent of the injuries. According to the facts of the case (see p aragraph 7 of the judgment), the police were obliged to use force against aggressive demonstrators who were clearly resisting the police, in order to ensure traffic safety and disperse the demonstrators. In the present case there are differing versions of the facts submitted by the applicants and the police. According to the police, the applicants ’ injuries were caused when they resisted the police officers ’ attempt s to arrest them (see paragraph 38). According to the first and fourth applicants, the force used by the police was disproportionate and the injuries caused were serious enough to amount to ill-treatment under Article 3. The differing versions of the facts in the circumstances of this case, which were not proved, are a decisive factor in prompting us not to find a substantive violation of Article 3. The Court cannot speculate on the facts of the case and find a substantive violation of the Convention relying on disputable elements or unverified circumstances.

We could have accepted a procedural violation under Article 3 of the Convention, taking into account the arguments us ed by the Chamber in paragraphs 44 ‑ 46, but the applicants did not raise this aspect before the Court (see paragraph 20).