DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGES ROZAKIS, TSATSA-NIKOLOVSKA, FURA-SANDSTRÖM AND POPOVIĆ

(Translation)

Unlike the majority, we consider that the applicant was subjected to treatment proscribed by Article 3 of the Convention in that he was held in solitary confinement for the lengthy period of eight years and two months and that such a long period of solitary confinement attained the minimum level of severity required to constitute inhuman treatment. Our reasons for so finding are as follows.

1. We wish to preface our remarks by saying that we share the concerns which national authorities in general may have in confronting the problems posed by the fight against terrorism and organised crime. However, in accordance with the case-law of the Convention institutions, the measures the States are forced to take to protect democracy against this scourge must be consistent with the essential values of democracy – of which respect for human rights is the prime example – and must avoid undermin ing th ose values in the name of protecting them . More specific ally , we recognise that the danger posed by someone of the applicant ’ s character can give rise to complicated problems for the prison authorities and that there may be no alternative but to resort to high-security prisons and special prison regimes for certain categories of remand and convicted prisoner s . However, it must nevertheless be borne in mind that the guarantees provided by Article 3 are absolute and allow of no exception, and that the nature of the alleged offence is of no relevance under th at provision .

2. The solitary confinement regime . The basis for the prison regime to which the applicant was subjected is to be found in the relevant statutory and regulatory provisions , in particular Decree no. 98-1099 and its associated circular of 8 December 1998 , which regulate the solitary confinement of prisoners “ as a precautionary or security measure ” . By virtue of these pr ovisions (see paragraphs 80- 81 of the judgment):

(i) solitary confinement may exceed three months only if a new report has b een made to the S entence E nforcement B oard;

(ii) solitary confinement may exceed one year only if the minister so decides on the basis of a recent report by the regional director after the regional director ha s obtained the opinions of the S entence E nforcement B oard and the prison doctor;

(iii) “ solitary confinement shall not constitute a disciplinary measure ” and “ 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 themselv es justify solitary confinement ” .

This is the ratio legis underpinning the French solitary-confinement regime: it constitutes an exceptional measure that is justified on precautionary or security grounds and which, once it has been in place for a year, only the minister is empowered to take , on the basis of a recent report and a medical opinion . By its very nature, it is not a measure that is intended to last indefinitely. On the contrary, its duratio n must be as short as possible.

3. Physical conditions. It is not disputed that the physical conditions in which the applicant was held in solitary confinement left much to be desired: the cell was run-down and poorly insulated and had an open toilet area, the applicant was not allowed any contact and his sole permitted out-of-cell activity was a two-hour daily walk in a walled-in triangular area smaller than a swimming pool (see paragraph 12 of the judgment). Despite this, we are able to agree with the CPT and the majority that the conditions were “ globally acceptable ” . Nonetheless, it is undeniable that physical conditions are closely related to the length of detention and that conditions which it may be humanly possible to bear for several months will inevitably become increasingly harsh and unbearable as the years go by and the level of suffering grows.

4. Nature of the applicant ’ s solitary confinement. After comparing the present case to previous cases the Court has examined, the majority found that the situation that most close ly resembl ed the facts of the present case was the one it had examined in the R o hde case , in which it held that there had been no violation. We agree with that assessment. However, it is important to compare like with like. As the judgment rightly states (see paragraph 134), in the R o hde case the applicant was held in solitary confinement for eleven and a half months (less than the one-year period for which ministerial review is require d under French law), whereas Mr Ramirez Sanchez was held under the same regime for eight years and two months , in other words fo r a period eight times as long.

The majority is comfort ed in its view by the fact that “ t he applicant cannot be considered to have been in complete sensory isolation or total social isolation ” (see paragraph 135). One might readily imagine that if he had been, the finding of a violation would not have been in doubt, as such regimes represent the gravest and most unacceptable form of regime to be found in democratic societ ies . In the present case, the Court described the applicant ’ s isolation as “ partial and relative ” , as if a scale of the seriousness of such a prison regime had been established. However, no such scale exists. The French legislation does not contain any qualif iers, but simply refers to “ solitary confinement ” ( mise à l ’ isolement ) , “ solitary - confinement measure ” ( mesure d ’ isolement ) and “ placement in solitary confinement ” ( placement à l ’ isolement ) . The same is true of the CPT reports, the Guidelines adopted by the Committee of Ministers of the Council of Euro pe, the R ecommendation of the Committee of Ministers on the European Prison Rules and the report of the Commissioner for Hum an Rights (see paragraphs 80- 86).

As we have already mentioned, at the heart of the problem, over and above the question of physical conditions, is the issue of the length of the applicant ’ s solitary confinement. Even if his isolation was only partial or relative , the situation became increasingly serious with the passage of time. Indeed, despite the legislature ’ s oversight in not setting a maximum period (and it is this that is perhaps the source of the arbitrariness), it is implicit in the detailed statutory regulations on solitary confinement that extending the measure beyond a year is inherent ly danger ou s and should only be done in exceptional circumstances .

5. Duration of the solitary confinement . The terms of the circular of 8 December 1998 are clear. Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective evidence of a risk of serious incident, and the statement of reasons must identify the risks the measure seeks to avoid ( the list includes the risk of escape, violence, disruption or connivance and danger to physical integrity). In the present case, the orders successively prolonging the applicant ’ s solitary confinement did not set out any real reasons. They are statements in general terms that are often reproduced from one document to the next and which are devoid of the genuine reasons and objective evidence required by the legislation. In addition, they are contradicted by the factual reality, as the applicant was held under the ordinary prison regime for a year and a half (between October 2002 and March 2004) and again from January 2006 onwards without any incidents being reported.

By analogy, one may consider that in similar situations the Court ’ s case-law concerning the rules applicable under Article 5 § 3 of the Convention for keeping an accused in detention pending trial beyond a certain time should apply. A period of more than eight years cannot stand up to any objective examination. Whatever the physical conditions, such a lengthy period is bound to aggravate the prisoner ’ s distress and suffering and the risks to his or her physical and mental health that are inherent in any deprivation of liberty.

The majority note with concern the length of the solitary confinement, consider that in view of its length a rigorous examination is called for to determine whether it was justified , regret that no upper limit has been provided for (see paragraphs 136 and 137), share the CPT ’ s concerns about the possible long-term effects of the applicant ’ s isolation and repeat their concern about the particularly lengthy period the applicant spent in solitary confinement. However, they fail to draw the logical conclusions from their findings, preferring instead to note that since 5 January 2006 the prisoner has been held in normal prison conditions (see paragraph 150). We c annot agree with that approach.

6. Solitary confinement and the applicant ’ s health. In paragraph 141 of the judgment the majority attempt to minimise the significance of the medical opinions on the applicant ’ s health by drawing a distinction between the period prior to October 2002 and the period thereafter. However, as far back as 23 May 2001, the doctor in charge of the Outpatient Consultation a nd Treatment Unit wrote to the g overnor of La Santé Prison to say that even though the applicant was in reasonabl e physical and mental condition “ strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm ” and that it was his duty as a doctor to alert the governor “ to these potential consequences ” (see paragraph 58 of the judgment). On 13 June 2002 an assistant doctor from the Outpatient Consultation and Treatment Unit at La Santé Prison stated t hat , from the medical standpoint, “ t he problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner ’ s physical and mental health ” (see paragraph 65). On 29 July 2002 the same doctor stated: “ I am not qualified to express an opinion on his mental health ” (see paragraph 66).

The applicant was subsequently transferred to Saint-Maur Prison where he was held under the ordinary prison regime from October 2002 to March 2004. On 18 March 2004 he was transferred to Fresnes in the Paris area, apparently (from what the Court was told at the hearing) in order to facilitate the investigating judge ’ s investigations, and was again placed in solitary confinement. From that date on and despite some ambiguity, all the medical certificates consistent ly speak of risks to the applicant ’ s health (see paragraphs 72- 75). Neither his physical robustness nor his mental stamina can make a period of solitary confinement in excess of eight years acceptable.

[1] . See Article D. 283-1 of the Code of Criminal Procedure.

[2] . Ibid., Article D. 283-2.