PARTLY DISSENTING OPINION OF JUDGE JOÄŒIENÄ–

(Translation)

I fully agree with the majority that there has been a violation of Article 3 of the Convention on account of the fact that the applicant was not detained in appropriate conditions that respected his dignity.

However, I cannot agree with the conclusion that there has been a violation of Article 14 taken in conjunction with Article 3 of the Convention because I do not see any evidence in the case that the applicant was put in solitary confinement and deprived of all contact with other inmates on account of his sexual orientation.

I would reiterate that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III, and Dudgeon v. the United Kingdom , 22 October 1981, § 67, Series A no. 45).

In the circumstances of the present case I consider that sufficient regard was had to the treatment of which the applicant claimed to be a victim, namely, total segregation from the prison community, in the preceding assessment which led to a finding of a violation of a substantive provision of the Convention (see paragraph 51 of the judgment). I would also point out that I agree with the Chamber that the prison authorities’ concerns that the applicant risked bodily harm if he remained in a standard shared cell were not entirely unfounded (see paragraph 42). The authorities intervened at the specific request of the applicant, who had complained of intimidation and bullying by heterosexual inmates in the shared cell. They took what they deemed to be security measures to protect the applicant and guarantee him humane conditions of detention. Even if those measures did in fact infringe Article 3 of the Convention, I do not see any evidence that the applicant’s total exclusion from prison life was decided on account of his sexual orientation. In my opinion, there is no factual basis for the Chamber’s conclusion in that respect. I would even say that there was no intention on the part of the authorities to discriminate. In my view, having regard to the positive obligations under the Convention, the prison authorities pursued the legitimate aim of protecting the applicant from discriminatory attacks that he would have suffered at the hands of other inmates on account of his sexual orientation.

I observe that the finding of a violation of Article 3 in the present case addresses the main legal question raised by the applicant. It is not therefore necessary to examine the same facts separately under Article 14 of the Convention (see Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, § 134, ECHR 2001 ‑ XII). For the same reason I voted against the amount awarded to the applicant by the Chamber. I find the sum excessive.