JOINT PARTLY DISSENTING OPINION OF JUDGES FUHRMANN AND KŪRIS

The majority of the Chamber has concluded that there has been a violation of Article 3 of the Convention as regards the allegations of the applicant that her son was subjected to inhuman and/or degrading treatment by the prison authorities in May 1993. We regret that we are unable to share this opinion.

1. It is considered by the majority of the Chamber that the imposition of a serious disciplinary punishment on Mark Keenan by the prison authorities was not compatible with the standard of treatment required in respect of a mentally ill person and must therefore be regarded as constituting inhuman and degrading treatment and punishment within the meaning of Article 3 of the Convention. In the opinion of the majority, there had been a defective monitoring of his condition and a lack of informed psychiatric input into his assessment and treatment which disclosed significant defects in the medical care provided to a mentally ill person known to be a suicide risk.

2. As correctly recalled in paragraph 109 of the judgment, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.

The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 94 et seq., ECHR 2000-XI).

The decisive point is whether there were physical or mental indications which rendered or should have rendered the prison authorities aware that there was a risk of any acute or severe suffering as a result of the measure (see Bollan v. the United Kingdom (dec.), no. 42117/98, ECHR 2000-V).

3. We share the opinion of the majority of the Commission that there is no contemporaneous evidence that prior to his death Mark Keenan was suffering from a significant level of anguish or distress attributable to his conditions of detention.

It has to be noted that on the same day on which he committed suicide, at about 6.25 p.m., he was visited in the morning by Dr Bickerton, who found him calm, polite and relaxed, then by the deputy governor, Mr McCombe, with whom he only had a discussion about the right to buy tobacco and who

left him relaxed. Last but not least, in the afternoon of the same day he was visited by an old friend who saw him for some twenty minutes and found him in good spirits, save for a disappointment concerning the fact that he had an additional twenty-eight days to serve in prison. This visitor left him looking forward to his next visit the following Saturday and, in the recollection of the prison officer who returned Mark Keenan to his cell after the visit, Mark Keenan appeared to be in high spirits and was very talkative.

Under these circumstances, we cannot but conclude that the prison authorities had no realistic prospect of perceiving that Mark Keenan was at risk of committing suicide and that the prison authorities did all that could reasonably be expected of them. This finding led by the way to the reasoning, also used by the Chamber in its unanimous conclusion, that there had been no violation of Article 2 of the Convention in this case.

The same arguments militate in our opinion also in favour of finding that there has been no violation of Article 3 and, like the majority of the Commission, we cannot find a sufficient basis for drawing conclusions, to the requisite standard of proof beyond reasonable doubt, that the segregation of Mark Keenan constituted treatment of the severity prohibited by Article 3 of the Convention.