SEPARATE OPINION OF JUDGE BRATZA JOINED BY JUDGE COSTA

I fully agree that there has been a violation of the applicant ' s rights under Article 3 of the Convention and only wish to make clear that in my view the primary responsibility for what occurred lies not with the police or with the prison authorities who were charged with the care of the applicant during her period of detention, but with the judicial authorities who committed the applicant to an immediate term of imprisonment for contempt of court.

While there appear on the material before the Court to have been certain failings in the standard of care provided by the police and prison authorities, these stemmed in large part from the lack of preparedness on the part of both to receive and look after a severely handicapped person in conditions which were wholly unsuited to her needs. On the other hand, I can see no justification for the decision to commit the applicant to an immediate term of imprisonment without at the very least ensuring in advance that there existed both adequate facilities for detaining her and conditions of detention in which her special needs could be met.

SEPARATE OPINION OF JUDGE GREVE

I fully agree with my colleagues that there has been a violation of the applicant ' s rights under Article 3 of the Convention. Since, in my opinion, however, the case raises serious and also new issues within a core area of the Court ' s mandate, I would like to add a few points.

In this case there is a lack of immediate compatibility between the applicant ' s situation as such and detention in any ordinary prison facility. The applicant is confined to her wheelchair and has an extensive need for assistance, to the extent that at night she is unable to move enough to keep a normal human body temperature if the room in which she stays is not specially heated or, as in casu , she is not wrapped, not just in blankets, but in a space blanket.

In this the applicant is different from other people to the extent that treating her like others is not only discrimination but brings about a violation of Article 3. As for the prohibition of discrimination, see Thlimmenos v. Greece ([GC], no. 34369/97, § 44, ECHR 2000-IV), which reads:

“The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification ... However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

It is obvious that restraining any non-disabled person to the applicant ' s level of ability to move and assist herself , for even a limited period of time, would amount to inhuman and degrading treatment – possibly torture. In a civilised country like the United Kingdom , society considers it not only appropriate but a basic humane concern to try to improve and compensate for the disabilities faced by a person in the applicant ' s situation. In my opinion, these compensatory measures come to form part of the disabled person ' s physical integrity. It follows that, for example, to prevent the applicant, who lacks both ordinary legs and arms, from bringing with her the battery charger to her wheelchair when she is sent to prison for one week, or to leave her in unsuitable sleeping conditions so that she has to endure pain and cold – the latter to the extent that eventually a doctor had to be called – is in my opinion a violation of the applicant ' s right to physical integrity. Other events in the prison amount to the same.

The applicant ' s disabilities are not hidden or easily overlooked. It requires no special qualification, only a minimum of ordinary human empathy , to appreciate her situation and to understand that to avoid unnecessary hardship – that is, hardship not implicit in the imprisonment of an able-bodied person – she has to be treated differently from other people because her situation is significantly different.

As the Court has found, Article 3 has been violated in this case. In my opinion, everyone involved in the applicant ' s imprisonment – the judge, police and prison authorities – contributed towards this violation. Each of them could and should have ensured that the applicant was not put into detention until special arrangements had been made such as were needed to compensate for her disabilities, arrangements that would have ensured that her treatment was equivalent to that of other prisoners. The failure to take these steps foreseeably gave rise to violations of the applicant ' s personal integrity – physical and psychological – as well as to inhuman and degrading treatment.

The treatment to which the applicant was subjected moreover violated not only specific provisions but the entire spirit of the Standard Minimum Rules for the Treatment of Prisoners (adopted on 30 August 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders).