SEPARATE CONCURRING OPINION OF MR L. LOUCAIDES

JOINED BY MM E. BUSUTTIL, J.-C. SOYER, H. DANELIUS, F. MARTINEZ,

K. HERNDL AND R. NICOLINI

I agree with the majority that there has been a violation of Article 3 of the Convention in this case because of the conditions of detention of the applicant in the segregation unit of the Delta wing. However, I must specify that in my view the conditions of detention in question amounted to both inhuman and degrading treatment of the applicant. The concept of “degrading” treatment is autonomous and separate from that of “inhuman” treatment. The difference between the two concepts is not simply one of degree of suffering. In contrast with “inhuman” treatment, “degrading” treatment consists basically of a treatment which is humiliating and/or debasing. In my opinion, in the present case, the conditions of the detention of the applicant, as summarised in paragraph 96 of the report, in fact went beyond  degrading treatment. It is true that there were some elements of humiliating circumstances, such as the fact that the applicant had to use the toilet in the presence of another inmate. However, some other serious aspects of the treatment to which the applicant was subjected by the prison authorities and which were expressly taken into account by the Commission when finding a violation of Article 3 of the Convention, are more appropriately covered by the concept of inhuman treatment. Such are those conditions which must have caused severe physical and mental suffering to the applicant rather than humiliating or debasing him: confinement in a very small cell with no ventilation, no window or opening other than a peephole in the door in unbearably hot temperatures (“like ovens”) and in a stinking atmosphere and having to be present while the open toilet adjacent to his bed was being used by his cellmate.

(Or. English)

PARTIALLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ

I voted against finding a violation of Article 3 of the Convention in this case.

As recalled by the majority, in order to fall within the scope of Article 3, treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case (para. 88 above).

The majority considers that the applicant was subjected to “degrading” treatment. This implies that the conditions in which he had to spend some two months in the segregation unit of the Delta wing did not reach the level of “inhuman” treatment”. I agree with the last mentioned conclusion. I, however, disagree with the majority’s characterisation of the conditions in question as degrading treatment.   

When considering whether a punishment or treatment is “degrading”, the Court has emphasised that it “will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3” (Eur. Court HR, Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).

Although the applicant has undoubtedly suffered from the heat and the other conditions, it has not been suggested that his personality was affected in a manner incompatible with Article 3. Nor is there any evidence or even allegation that the prison authorities had an intention of humiliating or debasing him. Indeed, according to his own testimony the applicant had not been ill-treated by any particular person (para. 41 above). The majority’s conclusion of degrading treatment thus seems to be based on the idea that the prison conditions in which the applicant had to spend the two-month period in question were as such contrary to Article 3.

I do not dispute that conditions in a prison or another institution under the control of the State may as such amount to a breach of Article 3. I, however, consider that the threshold of a violation is in those situations higher than in a situation where certain measures are applied with the intention of ill-treating or degrading a person.

I agree that the conditions in the segregation unit of the Delta wing were far from satisfactory. I also do not doubt that that the applicant may - especially during the night-time (cf. para. 95 above) - have faced situations which can be characterised as humiliating in the ordinary sense of the word. In the overall circumstances of the case this, however, does not in my view justify the conclusion that the applicant was subjected by the respondent State to degrading treatment within the meaning of Article 3.

[1] The term « former » refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2] The original numbering of the paragraphs has been kept.