JOINT DISSENTING OPINION OF JUDGE S SAJÓ AND TSOTSORIA

We agree with our fellow judges that there has been no substantive violation of Article 3 in this case. The applicant suffered injuries that rendered him unfit for work for five days. The Court found that the injuries were not attributable to the State as the plain - clothes police officers with whom the applicant had a fight were acting in their private capacity when they allegedly beat him up . Their acts were found to have been those of private individuals (see paragraph 33 of the judgment) . In addition, the Court found “ no indication that the State authorities had failed to take effective steps to protect the applicant from ill-treatment ” (ibid.).

Notwithstanding the factual finding quoted above, the Court concluded that there had been a procedural violation here because of the impunity of policemen in a situation involving degrading and inhuman treatment. We agree that the authorities have a duty to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”, even if such treatment is administered by private persons . Here we follow the majority in referring to Ay v. Turkey ( no. 30951/96, § 60, 22 March 2005 ) .

On the application of this standard we disagree and to our regret we have to dissent in the present case regarding the finding of a procedural violation of the prohibition of degrading and inhuman treatment.

The requirement defined in Ay is, in fact , more specific: “ Allegations of treatment contrary to Article 3 of the Convention must be supported by appropriate evidence ” (ibid., § 47). In other words, not all injurious treatment, but only ill-treatment that arguably amounts to inhuman and degrading treatment, will trigger these obligations. We find this distinction important not only because this is the standard applied in Ay and other cases following it, but also because otherwise the Court would provide protection under the Convention to people who may have suffered injustice but not a human rights violation prohibited by the Convention. Here we follow the uncontested position of the Court as defined in Perez v. France ( [GC], no. 47287/99, ECHR 2004 ‑ I ).

We disagree, therefore, with the application in the present case of the standard confirmed in Ay (cited above). The applicant failed to formulate an arguable suspicion before the national authorities that he was the victim of inhuman and degrading treatment. In the case of Ay , by contrast, after concluding that there had been no violation of the prohibition of torture in its substantive aspect, the Court, in its analysis of the arguable allegations raised by the applicant in respect of the investigations into his complaints, did not limit its analysis to the finding of serious wounds, and considered it relevant to examine “the possible involvement of agents of the State” (finding that there had been no violation). In the present case the allegations raised by the applicant, namely that he suffered injuries in the course of a

verbal and physical confrontation between private individuals (see paragraph 33 of the judgment), do not amount to an arguable allegation of inhuman and degrading treatment. This allegation is one of private revenge (as is corroborated by the applicant ' s Article 6 complaint). He may have substantiated the fact that he suffered injuries that “ appear to have been superficial with no lasting consequences ” (ibid.) but could not show that this had occurred in a situation that was one of ill-treatment in the sense of inhuman and degrading treatment. We do not believe that the injury itself, suffered in a confrontation with non-State agents, was enough to substantiate his allegations of inhuman and degrading treatment.

In Tonchev v. Bulgaria ( no. 18527/02 , § 40, 19 November 2009 ) the Court provides the following summary of its case - law:

“ Previous cases in which the Court has found that the State ' s positive obligations under Article 3 were engaged concerned far more serious instances of ill ‑ treatment: beating with a garden cane applied with considerable force on more than one occasion (see A. v. the United Kingdom , 23 September 1998, § 21, Reports of Judgments and Decisions 1998 ‑ VI), very serious neglect and abuse for a number of years (see Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 11 ‑ 36, 40 and 74, ECHR 2001 ‑ V), consistent sexual abuse over a period of years (see D.P. and J.C. v. the United Kingdom , no. 38719/97, §§ 66-74, 10 October 2002), extremely serious sexual and physical abuse over a long period of time (see E. and Others v. the United Kingdom , no. 33218/96, §§ 43 and 89, 26 November 2002), multiple rape (see M.C. v. Bulgaria , no. 39272/98, §§ 16 ‑ 21, 30 and 153, ECHR 2003 ‑ XII), beating all over the body with wooden planks, leading to multiple rib fractures (see Å ečić v. Croatia , no. 40116/02, § 8, 11 and 51, ECHR 2007 ‑ VI), and anal fissure caused by several attackers in highly intimidating circumstances (see Nikolay Dimitrov v. Bulgaria , no. 72663/01, §§ 9 and 70, 27 September 2007). ”

In Tonchev a wilful attack on a five- year - old by a private person resulting in a longitudinal wound on the left eyebrow measuring 11 mm by 3 mm and a bruise on the lower left eyelid measuring 5 mm by 3 mm was not considered to amount to inhuman and degrading treatment. The requirement of such special elements is related to the somewhat exceptional nature of State liability for the acts of non-State agents: “ In general, actions incompatible with Article 3 of the Convention incur the liability of a contracting State only if they were inflicted by persons holding an official position. ...” (see 97 Members of the Gldani Congregation o f Jehovah ' s Witnesses and 4 Others v . Georgia , no. 71156/01 , § 96, ECHR 2007 -V). However, in the present case the Court found that the acts of the plain-clothes policemen had not been carried out by persons holding an official position (see paragraph 33 of the judgment).

There is no reason to assume that it is the gravity of the private attack in itself that amounts to inhuman and degrading treatment; it is only a factual element that may contribute to it. In fact, not even demonstrable ill-effects are required for a finding of inhuman and degrading treatment. What matters is how the physical or psychological mistreatment affects human dignity. Treatment is degrading where it was “such as to arouse in the

victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” (see KudÅ‚a v. Poland [GC], no. 30210/96, § 92 , ECHR 2000 ‑ XI ). It is not by accident that in all the cases cited in the judgment the victims were vulnerable persons: Roma who were subject to an attack in a case where racial motivation could not be ruled out, and where the delays and other shortcomings could be explained in part by racial animus, or children subjected to rape or other mistreatment. The injuries sustained in these cases were rather serious, but, more importantly, in each case they were linked to the vulnerable status of the victims, inevitably increasing their feelings of defencelessness as a result of being at the mercy of towering power. The duties of protection under Article 3 against inhuman or degrading treatment, including such ill-treatment administered by private individuals , imply that “ measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge ” (see E. and Others v. the United Kingdom , cited above, § 88, and 97 Members of the Gldani Congregation and Others , cited above, § 96 ).

Ill-treatment (especially when it is alleged to have been inflicted by private parties in a fist fight) is not the same as injury, and has to be understood within a structure: “ it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim ” (see Jalloh v. Germany [GC], no. 54810/00, § 67 , ECHR 2006 ‑ IX ).

It is important to remember what kind of “treatment” amounts to ill -treatment satisfying the definition of “inhuman” and “degrading”:

“ Treatment has been held by the Court to be ' inhuman ' because, inter alia , it was premeditated , was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita , cited above, § 120). Treatment has been considered ' degrading ' when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. ” (see Jalloh , cited above, § 68, emphasis added)

What makes a private physical assault amount to inhuman and degrading treatment is that t he defenceless and unwilling person becomes the mere object of the treatment – that is, he or she is not treated as a being endowed with the capacity of choice; this is what dehumanises him or her. Needless to say, this is not the case in a fight, where the protagonists enter into the fight with each other. It is true that injuries requiring five days of convalescence (or even less) have been sustained in many cases where the Court has found Article 3 violations, but in all these cases the injury was caused while the victim was in police custody or otherwise under the control of the State. In these cases it was the situation of subordination and helplessness in the face of an irresistible, overwhelming physical force

(exercised under the auspices of an entity with special obligations) that entailed the humiliation amounting to inhuman and degrading treatment. In the present case there is no indication of any submission or vulnerability-based subordination, nor did the applicant make a credible allegation in this regard; in fact, there was an investigation which concluded that a fight had taken place. The majority, in disregard of this fundamental consideration , replaced the above-mentioned fundamental constituent elements of inhumanity and degradation with the simple fact of an injury proved by a medical certificate. The Court itself found that the wounds had occurred in a fight between private parties, and that none of the structural elements of inhuman and degrading treatment were present. Inhuman and degrading treatment is and should be clearly distinguished from private assault and injury, an unfortunate and unpleasant but normal event in everyday life.

It is true that the proceedings against the policemen were suspended on account of their status, in conformity with Law no. 4616. The Court has found in a number of applications where the police or other armed forces caused injury of a certain gravity to people under their supervision that this law does not ensure the effective prevention of unlawful acts. We have never had any difficulty in finding a violation of the procedural limb of Article 3 in such situations. In certain situations an impression of total impunity may contribute to a dehumanising form of dependence. However, the mere possibility of impunity does not turn private assault into a situation where the protagonists in a fist fight act with a sense of impunity. The impunity offered by Law no. 4616 does not result in commanding supremacy as far as the alleged aggressor is concerned. Nor will the “civilian” participant in the confrontation be in a situation of defenceless vulnerability on account of the possible impunity of his opponent.

According to the Court ' s well-established case-law, the submission that “ the police officers acted with impunity has no merit . Article 3 does not entail the right for an applicant to have third parties sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed the imposition of a particular sentence (see, mutatis mutandis , Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I, and Tanl ı v. Turkey , no. 26129/95, § 111, ECHR 2001 ‑ III)” (see Pütün v . Turkey (dec.), no. 31734/96 , ECHR 2004-XII) .

Disregard for the structural elements of ill-treatment not only runs counter to the very concept of degrading and inhuman treatment. It is irreconcilable with the fundamental notions of our established case-law, to the effect that human rights violations are to be treated differently from other injustices or inconveniences, which are not the business of the Court. It is a firmly rooted principle in the Court ' s case-law that neither the Convention nor its Protocols guarantee any right as such to press criminal charges against third persons or to have them convicted ( see Perez , cited above, § 70). The Court, with its limited resources, and being entrusted with

the protection of human rights only, cannot undertake the role of the protector of all injured victims in the event that the domestic legal system fails to provide them with a remedy for injuries other than those falling within a very specific category, namely where the injury constitutes a human rights violation. The Court has clearly stated that the Convention should not become a tool of private revenge, even if the motives behind the search for justice (of which revenge is only one form) apparently satisfy the moral intuitions of some applicants .