PARTLY DISSENTING OPINION OF MRS. THUNE, MRS. LIDDY,  MR. BUSUTTIL, MR. BRATZA

AND MRS. HION

We have voted with the majority of the Commission on the main complaints

under Articles 3 and 8, but have been unable to agree that there has been no

violation of Article 13 in conjunction with Article 3 and Article 8

respectively. Accordingly we have voted against the conclusions in paragraph 125

and 130.

The applicant alleges that he did not have at his disposal an effective

remedy for his Article 3 complaint. The majority of the Commission, found that

the possibility to complain to the Public Prosecutors Office was sufficient in

the particular circumstances of this case.

We regret that we have not been convinced that this remedy is sufficiently

effective to comply with the requirements under Article 13  of the Convention.

Under S. 11(a) of Law V. of 1972 on the Public Prosecutor's Office, the

public prosecutor is empowered to supervise, inter alia,  the lawfulness of the

conditions of detention, forced medical treatment and the execution of the

detention. Further, by S. 12 para. 1 of the Law it is provided, inter alia, that

the organs competent for the execution of sentences are required to comply with

the prosecutor's instructions "ensuring respect for the law".

The majority of the Commission acknowledge - rightly, in our view - that

the possibility of recourse to the competent public prosecutor is in the

relevant legal texts couched in vague terms. In particular, it is unclear

whether there is a duty to investigate such individual complaints and whether a

complainant is entitled as of right to a decision in his or her individual case.

Recalling the vulnerable position of detainees, we consider that clarity

as regards their legal position is essential. It must be the responsibility of

the Contracting States to ensure that the applicable rules are precise and clear

as to the possibility to complain and the procedure to follow.

In addition, we have doubts as to the scope of the powers of the public

prosecutor to issue binding instructions to the relevant prison authorities. It

is true that in the present case the applicant had recourse to the public

prosecutor and received a reasoned decision rejecting his complaint. However, we

note that his complaint to the prosecutor did not relate to general prison

conditions but to specific allegations of ill-treatment in prison.

The complaints set out in the decision of admissibility concerning

conditions of detention and control of correspondence relate to alleged

structural deficiencies within the prison for which in our view an application

to the public prosecutor would appear to afford no obvious remedy within the

meaning of Article 13.

The applicant has exemplified his problems by stating that the activities

out of the wards were only possible "as special rewards". He liked reading and

sport but these possibilities were restricted for him on the stated ground that

"it is better if such a man does not read". The Government has not disputed the

assertions.

It appears therefore that an award system, with all its risks of

arbitrariness and favouritism, operated within the prison rather than a system

of disciplinary measures to deprive a prisoner of a privilege or right because

of the prisoner's verifiable misconduct and following appropriate procedures.

There is no evidence as to how the remedies relied on by the majority could

resolve such structural problems. In particular, in the absence of any prison

records regarding receipt and transmission of the applicant's mail, it is

difficult to see how complaints to the National Headquarters of Penal

Institutions or the competent Public Prosecutor's Office could have been

effective. It would appear that any changes in the structural organisation of

prisons, probably with financial and personnel implications, were primarily a

matter for the Minister for Justice and his or her Government colleagues to

decide on. In these circumstances, the only effective remedy would appear to be

a Court Order establishing the prisoner's rights and engendering appropriate

administrative or legal consequences. Article 70/K of the Constitution has not

been shown to be effective in this respect, for the reasons given in para. 119

of the Report.

Accordingly, there has been a violation of Article 13.