JOINT DISSENTING OPINION OF JUDGES ROZAKIS, LOUCAIDES AND TULKENS

( Translation )

We do not share the opinion of the majority in this case. We consider that the applicant ' s solitary confinement for eight years and three months amount s to inhuman treatment contrary to Article 3 of the Convention for the following reasons.

1. As regards, firstly, the solitary confinement regime per se , it was common ground that it entailed the applicant ' s being held in a 6 . 84 square metre cell that was run-down and poorly insulated with an open toilet area , and a ban on all contact with other people, including prison wa rd ers. The applicant was only allowed to leave his cell once his fellow inmates had returned to theirs and his sole activity outside his cell was a two-hour daily walk in a triangular area that was 15 m etres long and 7 . 50 m wide at the base receding to 1 m at the vertex. That area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. His only visits were from his lawyers and, once a month, a priest ( see paragraph 11 of the judgment ).

It should be noted that the solitary-confinement regime thus imposed by the competent prison authorities wa s th at prescribed by the relevant statutory and regulatory provisions, in particular the circular of 8 December 1998 applying the decree amending Article D. 283-1 of the Code of Criminal Procedure ( see paragraph 62, under the heading “ II. Relevant law, IV. – The Solitary Confinement Regime” ). As the Conseil d ' État itself noted in its judgment of 30 July 2003: “[I]t is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work available to other prisoners collectively”. In these circumstances, it concluded: “... a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention , be amenable to judicial review” ( see paragraph 64 of judgment ).

In that connection, the fact that the applicant “cannot be considered to have been in complete sensory isolation or total social isolation” (see paragraph 103 of the judgment ) – which would constitute the most serious and extreme form of isolation – cannot lead to the conclusion that the regime to which he was subject was not genuine isolation, but akin to an ordinary, even commonplace, measure. Indeed, it was this regime that was the subject of critical examination and recommendations by the European

Committee for the Pre vention of Torture (see paragraph 6 5 of the judgment).

2. Turning to the length of the applicant ' s solitary confinement , it is also undisputed that it lasted eight years and two months. That period by itself flatly contradicts the express statement in the circular of 8 December 1998 that solitary confinement is an exceptional measure that “is not intended to continue indefinitely” and must be as short as possible . Indeed, it is for this reason that solitary confinement cannot be prolonged beyond three months without a new report being laid before the commission responsible for the execution of sentences and a decision of the regional director, or beyond a year from the date of the initial decision without a decision of the Minister of Justice ( Article D. 283-1 of the Code of Criminal Procedure, as amended by Decree n o. 98-1099 of 8 December 1998).

Such a period is not, as the majority note, merely “regrettable”, it is also liable to produce harmful effects, as is observed in the same ministerial circular of 8 December 1998 : “ In view of the harmful effects of prolonged solitary confinement the prison governor and regional director m u st closely monitor the length of the measure ” ( see paragraph 63 of the judgment, under the heading “ II. Procedure in solitary confinement cases , 3. Lifting the measure ” ).

Accordingly, viewed objectively, solitary confinement for a period a s long a s eight years – the period in the instant case – substantially exceeds the inevitable level of suffering inherent in detention . The fact on which the majority rely , namely that the applicant himself affirmed in his observations in reply that he was in perfect mental and physical health , has no bearing on this issue. Subjectively, the applicant may have felt well enough , but the issue of whether a person has been subjected to inhuman or degrading treatment cannot be decided solely by reference to what the victim of such treatment fe els at th e time: it must also be decided on the basis of what can objectively be regarded as being contrary to the minimum acceptable standards of treatment consistent with respect for human dignity. To take the opposite view would lead to absurd results. In addition, it must be borne in mind that the effects of certain treatment on a person ' s physical or mental health may not be immediately apparent bu t become so subsequently. This phenomenon is well known in the sphere of the post-trauma tic effects of inhuman or degrading treatment or torture. Similarly, a person in good health may nonetheless suffer from particular forms of ill - treatment. In that connection, it should be recalled that, in one of his objecti ons to a renewal of solitary confinement, the applicant himself described it as “a form of torture” (see paragraph 25 judgment).

On this question of length, we consider that the recent decisions of the Fr ench courts holding that a decision to place a prisoner in solitary confinement is amenable to judicial review offer valuable insight . Thus, in his submissions to the Paris Administrative Court of Appeal prior to its judgment of 5 November 2002, the Government Commissioner stressed that “the most negative effect of solitary confinement for the persons concerned is its indefinite length”, adding “ if it lasts for several months, solitary confinement will, at the very least, cause a deterioration in the prisoner ' s mental state, if it does not actually drive him mad. That is why some prisoners use the expression ' white torture ' to descri be life in the segregation unit” . In its judgment of 19 August 2004, the Paris Administrative Court of Appeal suspended a prisoner ' s solitary confinement that had been virtually continual since 2000 because of “its exceptional length” and its “negative psychological effects on the prisoner”.

From the legislative standpoint, a draft decree currently under discussion lays down that after two years the measure may only be prolonged in exceptional circumstances and following a decision giving special reasons .

3. As regards, lastly, the grounds for solitary confinement and the reasons stated in the decisions , the general terms of the circular of 8 December 1998 must be borne in mind . “ Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm . The reasons must state whether the measure has been taken to avoid the risk of escape , violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement ”. In addition , “The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement” . Article D. 283-2 of the Code of Criminal Procedure is cl ea r: “Solitary confinement shall not constitute a disciplinary measure” ( see paragraph 62 of the judgment in fine ).

In a judgment of 5 November 2002 the Paris Administrative Court of Appeal drew the logical conclusions from the circular , holding : “ The power vested in the prison governor to place a prisoner in solitary confinement against his or her will may only be lawfully exercised in order to prevent or to put an end to disturbances or trespass to the person or property which would occur if the prisoner remained in the establishment or communal area ... In his stated reasons, the prison governor merely underlined on a pre-printed form one of the grounds for solitary confinement set out in that document, namely ' breakdown of order and discipline in the prison ' ... By failing to specify the factual circumstances constituting the breakdown , ... the governor failed to discharge his obligation to state reasons . ”

In the instant case, the applicant ' s solitary confinement was repeatedly prolonged on the basis of general and often identical statements which on a number of occasions cited security grounds without specifying actual incidents relating to the applicant ' s behaviour in prison. Incidentally, we would also observe that the security grounds relied on by the authorities d o not appear to be consistent with the fact that for a period of approximately one and a half years (from October 2002 to March 2004) the applicant was released from solitary confinement. Prolonging solitary confinement in this way for a period so long as to be virtually permanent and for reasons other than those set out in the statutory provisions and regulat ions can be regarded as an abuse of power on the part of the authorities bring ing the measure into the domain of unacceptable suffering, which is a characteristic of inhuman treatment .

( a) More specifically, the inevitable conclusion from an examination of the quarterly statements of reasons given for keeping the applicant in solitary confinement is that over the course of the years the reasons became somewhat stereotyped and did not indicate whether a proper assessment of the applicant ' s situation or condition had been made in accordance, inter alia , with the CPT ' s recommendations . Thus, it is striking that the reasons stated f or prolonging the solitary confinement were often simply borrowed from the preceding decision or decisions . The wording of the proposals of 20 January and 25 April 1997 is absolutely identical. The same is true of the proposals of 13 August , 21 October 1997 and 23 January 1998 and of those of 22 April , 23 July and 19 October 1998. The proposals of 25 October 1999, 27 April , 20 July and 20 October 2000 also contained identical reasons , as did th os e of 24 April , 18 June and September 2001. Lastly, the proposals of 10 January , 25 March and 8 July 2002 also contained like wording .

While it is understandable that the reasons for keeping the applicant in solitary confinement sh ould remain essentially unchanged over the years, we nevertheless consider that the fact that proposals to prolong the measure have on a number of occasions simply adopted the wording of previous proposals verbatim or even copied them outright prevent s the re being any assurance or appearance of a real, genuine assessment of the applicant ' s situation o n what is a matter of no small importance .

( b) We also consider it necessary to pay particular attention to the medical examinations the applicant received. Throughout the period he spent in solitary confinement, doctors were asked to advise, in accordance with paragraph 5.1 of the circular of 8 December 1998 , whether he could remain in solitary confinement. After issuing certificates over a number of years stating that the applicant ' s condition was compatible with his continued confinement, the doctors from the Outpatient Consultation and Treatment Unit subsequently became more circumspect and their opinions di ffered . Thus, a certificate issued on 15 January 1999 referred to the need for psychiatric care. On 13 July 2000 the senior doctor at La Santé Prison stated that the applicant was “in quite astounding physical and mental condition after six years in solitary confinement” . However, he also remarked that it was not proper for a patient ' s doctor to be required to issue a certificate that ought to be a matter for expert opinion and that it was very difficult for a doctor to sanction solitar y confinement on administrative , not medical , grounds . In certificates issued on 3 October 2000 and 20 March 2001 the doctors stated that in view of the applicant ' s mental state, it was not possible to give a medical opinion on whether he was fit to remain in solitary confinement . On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison stated that the doctors from the medical service at the prison were not qualified to judge whether the applicant ' s physical and mental health was compatible with his continued solitary confinement . On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit wrote to the governor of the prison to inform him that, even though the applicant wa s in reasonable physical and mental condition , strict solitary confinement for more than six years and nine months was ultimately bound to cause psychological harm . He said in conclusion that it was his duty as a doctor to al ert the governor to the po tential consequences so that an informed decision could be taken . On 20 September 2001 the same doctor said that his opinion did not constitute an expert opinion, which he was not qualified to give . On 13 June 2002 the doctor again point ed out that prolonged solitary confinement over a number of years could affect a prisoner ' s physical and mental health .

It is clearly apparent from the various certificates issued by the applicant ' s doctors at La Santé Prison that they considered that they had been called upon to perform a task for which , as a number of them were at pains to point out, they were not qualified . Indeed they suggested that an expert would have been in a better position to determine whether the applicant ' s health, and in particular his mental health, was compatible with such a lengthy period in solitary confinement. However, no expert opinion was sought.

For all these reasons, we consider that in the present case, despite the considerable risks his character posed, the applicant ' s continuous solitary confinement for more than eight years attained the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention and that there has been a breach of that provision.

[1] 1. The words in bold characters were added or amended by the decrees of 1996 and 1998 : Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996 ; and Decree no. 98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998 .

[2] 1. Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996 ; and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998 .