CONCURRING OPINION OF JUDGE COSTA

(Translation)

I voted with the majority of the Court in favour of finding that the respondent State had not violated Article 2 of the Convention, but had violated Article 3.

I would like to clarify how, in my mind and in the present case, these two Articles fit together and why I do not perceive any contradiction between the two findings.

One seemingly paradoxical, but – to my mind – simple and logical, way of arriving at the conclusions of the judgment would be to reverse the order of the points in the operative provisions and the paragraphs of the judgment which provide the supporting reasons.

Admittedly, it may seem natural to begin, as does the judgment, with the right to life and to continue with the inhuman and degrading punishment and treatment. In the circumstances of the present case, however, I find it more appropriate to do the opposite. I have scarcely any doubt as far as Article 3 is concerned. Five days before being imprisoned, Mark Keenan, who had been treated in hospital, had been diagnosed as presenting a personality disorder, paranoid psychosis and suicide threats. After being released on bail, then re-imprisoned some four months later to serve a four-month prison sentence, the young man, whose state of health was known to the prison’s senior medical officer (who had consulted the psychiatrist who had been treating him), manifested very serious disorders. Fifteen days after he had been imprisoned, he threatened to hang himself and a noose fashioned from a bed sheet was found in his cell. Two weeks later he attacked two hospital officers. A prison doctor, who had had only six months’ training in psychiatry, certified him fit for adjudication in respect of the assault and, in the meantime, fit for placement in the segregation unit within the prison’s punishment block, a measure which was taken the same day by the prison’s deputy governor. Mark Keenan then threatened to commit suicide, claimed to be hearing voices and to think he was Jesus Christ. He nonetheless remained in the segregation unit from 3 to 15 May. On 14 May the deputy governor ordered him to serve twenty-eight additional days in prison for having attacked the hospital officers (it should be noted that, on that date, he had only nine days left before his expected release date). It was on the following day that he hanged himself with a ligature fashioned from a bed sheet.

In my opinion, and however delicate the assessment which the prison authorities had to make, the confinement of the applicant and the sentence to a further four weeks in prison when he had only days left before the expected date of his release constituted treatment and punishment contrary

to Article 3, having regard to Keenan’s personality. In that connection, I find a comparison with Kudła v. Poland ([GC], no. 30210/96, ECHR 2000-XI), in which the Court did not find a violation of Article 3, very illuminating.

However, I would, personally, have reached the same conclusion if the young man had attempted to kill himself without success or if he had manifested his desperation in other ways, such as injuring himself, as – alas – sometimes happens. In other words, it is not, in my view, Keenan’s death which revealed the inhuman nature of what he had endured. The two things are distinct.

It is precisely for that reason that I have no difficulty, even though a death occurred, in concluding that there has not been a violation of Article 2. The positive obligation on the States to take appropriate steps to protect life, particularly in respect of someone placed under the supervision of the prison authorities, does not appear to me to have been violated in the present case. Mark Keenan was regularly monitored and was given medical treatment in prison. He was also put on “fifteen-minute watches” (16 April, 30 April, 1 May). The risk that he might commit suicide was known and was taken seriously. His severely deranged and fragile personality made him a suicide risk, but also meant that he was unpredictable, and it was impossible to keep him under observation twenty-four hours a day. In short, I do not think that his right to life was violated by the respondent State, even negligently.

In sum, I do not therefore disagree with the operative provisions of the judgment, but I do think that the reasoning which was followed has the disadvantage of suggesting that Article 3 is in some way a substitute for Article 2 and that it is because the Court did not find that there had been a violation of that Article that it fell back on Article 3. I think, on the contrary, that the two Articles are autonomous and that, in other scenarios, the opposite finding could be arrived at, that is, a violation of Article 2 but not of Article 3. There is thus no logical hierarchy between them. Admittedly, the practice is to follow the order of the Convention itself and to examine first the complaint based on Article 2. That approach is not obligatory, however, and the present case seems to me to illustrate that.