Постановление Европейского суда по правам человека от 01.07.2010 «Дело Никифоров (Nikiforov) против России» [англ.]

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<*> Rectification: the words "joined by Judges C. Rozakis and S.E. Jebens" were added on 2 July 2010.

C.L.R.

S.N.

CONCURRING OPINION OF JUDGE MALINVERNI,
JOINED BY JUDGES ROZAKIS AND JEBENS <*>

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<*> Rectification: the words "joined by Judges Rozakis and Jebens" were added on 2 July 2010.

1. I voted in favour of finding that there had been a violation of Article 3. However, I wish to distance myself from the majority's conclusion that the ill-treatment suffered by the applicant should be described as torture (see paragraph 46 of the judgment).
2. While I am aware that the distinction between degrading treatment, inhuman treatment and torture is not always easy to establish, I consider that, to avoid trivialising the term, findings of torture should be reserved for the most serious violations of Article 3.
3. Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person by or at the instigation of a public official for a specified purpose (for example, a confession, punishment or intimidation). This definition lays down the three constituent elements of torture: intensity of suffering, deliberate intention and specific aim.
4. The Court has elaborated on the three concepts referred to in Article 3 by focusing chiefly on the intensity of the suffering inflicted on the victims, so that a distinction can be made between the types of treatment falling within the scope of that Article. According to its case-law, the category of torture should be reserved for "deliberate inhuman treatment causing very serious and cruel suffering", to which it attaches "a special stigma" (see Selmouni v. France [GC], No. 25803/94, § 36, ECHR 1999-V).
5. The criteria it uses in its assessment of ill-treatment also enable the Court to classify instances of such treatment in concrete terms. Its assessment is based on "all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc." (ibid., § 100).
6. Admittedly, in recent years the concept of "torture" has been interpreted in an evolutive manner and acts previously classified as inhuman and degrading treatment are now in some cases described as torture (see Selmouni, cited above, §§ 101 and 105; Dikme v. Turkey, No. 20869/92, ECHR 2000-VIII; and {Ilhan} v. Turkey [GC], No. 22277/93, ECHR 2000-VII).
7. In the present case, on 31 December 2003, a forensic expert had examined the applicant and recorded multiple injuries, including bruises to the eye, a broken nose, a chipped tooth, and abrasions on the face (paragraphs 14, 28 and 40).
8. Admittedly, the blows received by the applicant were violent, and not necessary. I am not persuaded, however, that the present case involved gratuitous and premeditated violence, contrary to the position the Court held in other cases, such as Dedovskiy v. Russia (No. 7178/03, §§ 81 - 85, 15 May 2008), where the Court found that acts of torture had been committed since blows had been administered to the prisoners according to a predefined, calculated plan by a special-purpose squad, and where the use of rubber truncheons was retaliatory in nature.
9. Nor can the ill-treatment complained of by the applicant be compared to the treatment ("Palestinian hanging") suffered, for example, by Mr Aksoy (see Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI), which the Court found could only have been deliberately inflicted, since a certain amount of preparation and exertion would have been required

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