PARTLY DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGES COSTA, JUNGWIERT , MYJER, SAJÓ, LAZAROVA TRAJKOVSKA AND KARAKAŞ

To my great regret I cannot share the opinion of the majority that there has been a violation of Article 34 of the Convention in this case, for the following three reasons.

Firstly, in my opinion, the applicant was not in a situation in which he suffered irreparable damage, nor was the Court prevented from examining the case.

Secondly, there is nothing to suggest that the domestic authorities were unwilling to comply with the interim measure indicated to them or that they acted in bad faith.

Thirdly, compliance with the interim measure was merely delayed for three days. Such a delay cannot be said to have hindered the effective exercise of the applicant ' s right of individual petition (Article 34 of the Convention).

1. The very purpose of applying interim measures is the prevention of an imminent risk of irreparable damage to applicants ' physical or mental integrity or health while their complaints of a violation of core Convention rights are examined by the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 104 and 108 , ECHR 2005 ‑ I ). [1] Of course, the Court could find a violation of Article 34 of the Convention if it were shown that during the period of non-compliance the applicant had been subject to a risk of irreparable damage to his life or health capable of depriving the proceedings of their object. However, in my view, the applicant ' s state of health, although serious, was not put at risk as the result of his transfer to the prison hospital, where qualified medical personnel could administer all the treatment which had been prescribed for him. In these circumstances I conclude that the applicant was not exposed to a risk of irreparable damage capable of depriving the proceedings of their object and that the Court was not prevented from examining the case.

2. Secondly, in my view, the respondent Government took – with some delay, it is true – all steps to ensure compliance, in good faith, with the interim measure indicated by the Court. When the Government ' s Agent asked the trial court to take all necessary measures to ensure compliance with the interim measure, the court examined that request as soon as possible, ordering the applicant ' s immediate transfer back to the neurological centre on 14 November 2005. There is nothing to suggest that the domestic authorities were unwilling to comply with the interim measure indicated to them. While an initial misunderstanding between the various

domestic authorities and a certain lack of organisation in the work of the Agent ' s office resulted in a regrettable delay in ensuring the applicant ' s continued treatment at the neurological centre, all the necessary steps were taken during the next working day, by the end of which he was admitted back to the centre.

3. The applicant was transferred from the neurological centre to a prison hospital on Friday 11 November 2005. On Monday 14 November 2005, the next working day, he was transferred back to the neurological centre. It follows that compliance with the interim measure was merely delayed for three days. On the particular facts of the present case, I am unable to find that the delay in implementing the interim measure can be said to have hindered the effective exercise of the applicant ' s right of individual petition within the meaning of Article 34 of the Convention. In this respect the case is very different from those where the removal of an applicant from a country in disregard of the terms of a Rule 39 indication has the inevitable consequence of rendering nugatory the exercise of the right by preventing the Court from conducting an effective examination of the Convention complaint and, ultimately, from protecting the applicant against potential violations of the Convention rights invoked.

I agree with the majority that a delay in complying with an interim measure may in some cases expose the applicant to a real risk and amount to hindrance to the effective exercise of Convention rights. However, in the circumstances of the present case and having regard, in particular, to the fact that the applicant ' s condition was found to have stabilised before he was discharged from the neurological centre on 10 November 2005 and transferred to the prison hospital, I consider that the relatively short delay before the applicant was returned to that centre and was able to complete his course of HBO therapy did not expose him to an immediate or particularly severe risk to his life or health.

JOINT DISSENTING OPINION OF JUDGE S MYJER AND SAJÓ IN RESPECT OF THE COMPLAINT UNDER ARTICLE 3 OF THE CONVENTION

We voted against finding a violation of Article 3.

There is no doubt that the applicant had a serious medical condition.

We just do not agree that – while deprived of his liberty – the applicant was not provided with the medical assistance required by his condition.

From the facts (paragraphs 22-43) it is clear that during his detention he was seen on a number of occasions by various doctors and that he was given all kinds of specialised medical assistance. He was not only transferred to the prison hospital when that was considered necessary from a medical point of view, but was even allowed to undergo the recommended ' hyperbaric oxygen ' (HBO) treatment in a specialised neurological unit outside the prison.

It is not within our competence to pronounce on the medical necessity of this special treatment.

Since we also voted against finding a violation of Article 34 – and, in Judge Sajó ' s case , against a violation of Article 5 § 1 – we did not vote in favour of awarding any compensation to the applicant.