JOINT PARTLY DISSENTING OPINION OF JUDGES SAJÓ, L ó PEZ GUERRA AND WOJTYCZEK

1. We respectfully disagree with the majority in the instant case because we consider that there has been a violation of Article 3 both with regard to the non-consecutive periods in which the applicant disposed of less than 3 sq. m of personal space and the periods in which the applicant disposed of between 3 and 4 sq. m of personal space.

2. The methodology of interpretation and application of Article 3 may be different for the purposes of different types of cases brought under this provision. In some cases, it may be necessary to clarify the meaning of words used in this Article. In prison overcrowding cases, the difficulty lies not in the open texture of the provision. The wording seems sufficiently clear for the purpose of assessing conditions of detention. The main difficulty is connected with the establishment and assessment of certain factual elements which are decisive in such cases, namely in terms of the impact that personal space of a certain dimension (or lack thereof) has on the detainees and their personality.

3. We agree with the general approach adopted by the majority to assess the conditions in prisons and especially with most of the general directives set out in paragraphs 96-101. The majority rightly point to the difficulties of setting a clear-cut numerical standard for the purpose of evaluating prison conditions from the perspective of Article 3. At the same time, one cannot dispute that, for practical reasons, setting a clear numerical standard as the point of departure for the evaluation of prison conditions is unavoidable. We also agree that if the personal space available to a detainee falls below a certain pre-determined standard there is a strong presumption of a violation of Article 3. We do not contest that this presumption may be rebutted by the Government, by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space.

We differ, however, with the majority on two important points:

(i) the choice of a specific numerical space standard, and

(ii) the strength of the presumption which arises once this standard has not been met.

The first point will be discussed in detail below. On the second point, we would like to stress that, in our view, the presumption of a violation of Article 3 is particularly strong and can be rebutted only in exceptional circumstances.

4. The majority take as their point of departure for the assessment of prison conditions the standard of 3 sq. m per prisoner in multi-occupancy cells. In our view, this standard is not satisfactory and leads to the acceptance of untenable conditions in prison. It does not sufficiently take into account prison realities. The standard of 3 sq. m per prisoner means in practice that the inmates constantly breach their so-called personal distance and often enter into the so-called intimacy zone. Numerous studies show that such proximity has a detrimental effect on the personality of detainees. Those who may have doubts about this can easily test on themselves the quality of life in 3 sq. m of personal space. Prison overcrowding not only entails strong psychological suffering but also undermines the aims of the punishment, making the whole resocialisation effort much less effective. In such conditions life in prison easily becomes completely devoid of any sense. Adequate space in prison is one of the preconditions for effective resocialisation. Resocialisation of prisoners living in 3 sq. m per person or less cannot be effective.

5. Several international bodies have addressed the issue of space in prison. The ICRC has set a recommended minimum specification of 5.4 sq. m in a single occupancy cell and 3.4 sq. m per prisoner in shared accommodation. The CPT has established the following minimum standard: 6 sq. m of living space for a single occupancy cell and 4 sq. m of living space per prisoner in a multi-occupancy cell.

The majority attempt to explain why they do not refer to the standards laid down by the CPT as the point of departure for the assessment of prison conditions, but instead prefer to set their own standard. On the one hand, we agree with the argument put forward by the majority that the role of the CPT differs from that of the Court. Furthermore, we likewise consider that the recommendations of the CPT, though relevant, are not decisive for interpretation of the Convention. On the other hand, we are not convinced at all by the part of the reasoning where the majority underline the duty of the Court to take into account “all relevant circumstances” in order to justify their reluctance to adopt the CPT standard (see paragraph 112). The CPT not has only special expertise in the field of prison systems but also unique experience of conditions in prisons throughout Europe. Therefore, when setting its space standards, the CPT had in mind a comprehensive picture of the overcrowding problem and the interrelations between different factors. According to the CPT itself, the space factor is “often a very significant one or the decisive one” for the purpose of assessing whether the prison conditions amount to inhuman or degrading treatment (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, “Living space per prisoner in prison establishments”, Strasbourg, 15 December 2015, paragraph 24).

In any event, the question of the legal force of CPT documents is not the most important one. What matters is the question whether the content of the CPT recommendations is rational and relevant for the purpose of assessing the impact on detainees of the space available to them. On the specific point of space in prisons we consider that the CPT standards reflect the minimum which, in the context of the knowledge gathered by social sciences, has to be ensured in order to avoid inhuman and degrading treatment prohibited by Article 3 of the Convention.

Therefore, in our view, the minimum standard should be at least 4 sq. m per person, as has been stated in some judgments of the Court (see paragraph 108). If the personal space available to a detainee falls below 4 sq. m of floor surface in a multi-occupancy cell, there is a strong presumption of a violation of Article 3.

We are aware that the 4 sq. m standard is not a fully satisfactory one and may trigger criticism on different counts. In particular, it still remains below the desirable space recommended in the most recent documents of the CPT (see the CPT document quoted above, paragraphs 12-17). However, we do not see a better alternative to the proposed approach.

6. We note that the majority refer to various CPT recommendations concerning different aspects of prison conditions for the purposes of adjudication under Article 3. The approach does not seem fully consistent as some of those standards are accepted as such (see, for instance, paragraphs 114, 133 and 141) and some are rejected. Such a differentiated treatment of CPT standards would require an explanation.

7. The important issue tacitly underlying the adjudication in prison condition cases is the cost of the standards chosen as the basis for the assessment of those conditions. We are fully aware that ensuring decent conditions in prisons has an enormous economic cost. Some of the High Contracting Parties to the Convention have adopted a standard that is below 4 sq. m per prisoner. In those States, to implement that standard would require significant additional funds.

The Court has rightly emphasised on many occasions that “it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for human dignity of detainees regardless of financial or logistical difficulties” (see paragraph 100 and the judgments cited therein). We fully subscribe to this view. Budgetary considerations cannot justify non-compliance with the prohibition of torture, inhuman and degrading treatment. We would like to add, however, an important additional consideration in this respect. In our view, the Court, when prescribing measures to implement a judgment, is nonetheless entitled to grant an adequate time-frame for adjustment to the Convention standards, especially if it departs from its earlier case-law. Such a solution, consisting in granting a transitory period to High Contracting Parties, may facilitate the implementation of the Convention and further human rights protection. We regret that the majority did not consider it necessary to take this point into account.

It is important to add that – assuming the economic arguments cannot be completely ignored in human rights adjudication – the economic analysis of law applied to prison condition questions has to take into account not only the costs of implementing the most fundamental human rights standards but also the enormous social and financial costs of a penitentiary system which does not ensure adequate space in prisons.

8. As stated above, we consider that the presumption of a violation of Article 3 if the personal space falls below the 4 sq. m standard can be rebutted only in exceptional circumstances. The discomfort of life in such a space has to be counterbalanced by special factors which substantially alleviate the situation of detainees and go beyond the normal prisons conditions which should accompany the 4 sq. m standard. In our view, the respondent State has to show that the impact of those factors is such that the suffering experienced in prison does not exceed the level inherently connected with detention. We acknowledge that the Croatian Government has presented a number of factors which alleviated the lack of sufficient space in prison in the instant case. However, the measures taken do not seem to exceed what should be the norm in prisons where the 4 sq. m standard is observed. Therefore, in our view, all those factors taken together do not rebut the strong presumption mentioned above. Accordingly we consider that the respondent State violated Article 3 also with regard to the periods in which the applicant disposed of between 3 and 4 sq. m per person.

9. We note that the Court found a violation with regard to a period of twenty-seven days of consecutive detention with less than 3 sq. m and no violation as regards the remainder of the non-consecutive periods in which the applicant disposed of less than 3 sq. m. In fact, there were forty-seven days in a period of less than half a year when the applicant disposed of less than 3 sq. m. In our view – even assuming that the 3 sq. m standard were the correct one – there are no grounds for differentiating between those periods, given their proximity in time and their cumulative effect. The longer the deprivation of sufficient space, the stronger its psychological effects. In those circumstances, the intervals during which the applicant had slightly better accommodation did not provide any relief against the dehumanising effect of longer term detention without adequate space.

10. In conclusion, we regret to say that the judgment in the instant case petrifies and spreads standards that are difficult to accept under the Convention.