PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. I am unable to follow the majority ’ s decision in finding that there has been no violation in the present case. In my opinion the conditions of detention to which the applicants have been subjected in Division 3 of the CCF centre, taking the cumulative effect into account, constitute degrading treatment and a violation of Article 3 of the Convention.

2. I share the opinion of the majority when they state that the issue is neither the medical conditions (paragraph 108 of the judgment) nor the prison overcrowding, as the applicants had individual cells of 9 sq.m. (paragraphs 97 and 110). However, the other general living conditions endured by the prisoners appear to me to be deplorable and, to use the words of the CPT report (paragraph 61) “far below any acceptable standard”. The applicants ’ remaining complaints (paragraphs 89-94) focus on: a lack of water in the showers; difficulty in obtaining hot water; limited availability of hot drinks; water from basins not drinkable; lack of clean sheets on beds; no heating in cells (cold and humidity in winter); difficulty in opening windows (2.5 metres from floor) and in ventilating cells; lack of natural and artificial light and inability to flush toilets (hygiene problems).

3. The Government disputed the complaints and claimed, in general, that the cumulative effect of the detention conditions in Division 3 of the CCF centre “were not such as to arouse in [the applicants] feelings of fear, anguish and inferiority capable of humiliating and debasing them in any manner ... ” (paragraph 103). However, at the same time they recognised that the centre provided no hot water or heating in the cells and that the toilets could not be flushed, and minimised all the other shortcomings. The Government merely observed that “the Maltese authorities ’ response of 4 July 2013 to the CPT report of 2013 stated that maintenance works were being conducted at the facility on a regular basis” but without giving any further details (paragraph 102).

4. In addition, the Government sought to make up for the manifest deficiencies of the facilities by pointing out that “[o]ther available amenities included a library, a gym, a church, a school and workshops” and that “[o]ccasional cultural events were organised”. They overlooked the fact, however, that this assessment was not shared by the CPT. In the reference report cited in paragraph 61 of the judgment the CPT added a commentary (no. 23) and the following recommendation (see complete report on CPT website):

“The CPT recommends that the Maltese authorities redouble their efforts to significantly expand the activities and training available to prisoners at the CCF. The aim should be to ensure that all prisoners are able to spend a reasonable part of the day engaged in varied, purposeful activities. ... Further, the Committee would like to receive detailed information on the workshop activities currently being offered to prisoners (number of prisoners and hours per week).”

5. In paragraph 106 of the Court ’ s judgment it is observed that, going beyond the requirement of a sufficient living area for the prisoners, the other conditions of detention and their cumulative effects, such as “ ... natural light or air, the availability of ventilation, the adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygiene requirements” are important for an assessment of conformity with Article 3 (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 149, 153 and 156, 10 January 2012), adding that the length of the detention under certain conditions must also be taken into account. Thus in the case of Zakharkin v. Russia (no. 1555/04, 10 June 2010) the applicant, who was alone in a cell, had complained not about a lack of space but about other aspects of his detention conditions and the Court reiterated the principle that “ ... such factors as access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements, the opportunity to use the toilet in private and the availability of ventilation are relevant to the ass essment ... ” (ibid., § 122), in finding that there had been a violation of Article 3 in that case (ibid., §§ 129 and 130). That situation was perfectly comparable to that of the applicants in the present case (see also Apostu v. Romania , no. 22765/12 , § 79, 3 February 2015).

6. From paragraph 107 of the judgment onwards, after finding that “... a number of other applications have been lodged and are currently pending before the Court in their preliminary stages by detainees of Division 3 who complain about the same circumstances”, the majority carry out a detailed analysis of all the applicants ’ complaints. With all due respect, I find somewhat shocking the arguments put forward to reject those complaints. As regards the humidity in the cells (paragraph 114) the majority ’ s argument is based on the photographs provided by the Government, which are clearly at odds with the CPT ’ s report finding the contrary (see paragraph 61 of the judgment, cited above ). The natural and artificial light “while not ideal” and “while it is rather unfortunate” (paragraph 115), does not seem to raise an issue. The same applies to the opening of windows – it could have been worse, according to the majority (paragraph 116). The lack of a heating system “remains regrettable – as it would particularly help in connection with any mould or dampness present in the cells”, but can be compensated for by additional blankets (paragraph 117)! As to the access to toilets, there is no problem either, even though “... close proximity and exposure (to the toilet) is objectionable also from a hygiene perspective” (paragraph 120). As regards the poor state of the showers, it is “surely inexcusable that over a span of five years the situation concerning the functionality of showers appears to remain problematic” (paragraph 122) and the lack of hot water is “unfortunate” but – luckily – “in this respect the Court will remain vigilant in future cases” (paragraph 123). What vigilance is being referred to here exactly?

7. Lastly, the Court reiterates (paragraph 128) its “concern about a number of matters highlighted above” but does not reach the conclusions which, in my opinion, are called for in view of the deplorable situation to which the applicants have been subjected. On the contrary, it merely states that it is not convinced that the general conditions of detention, although “far below any acceptable standard” to use the words of the CPT, exceeded the level of suffering inherent in any deprivation of liberty. It adds that it takes into consideration the “medical treatment received by the applicants”, as if medical treatment (which must necessarily be provided to any prisoner) could provide some compensation for all the aspects of the poor conditions endured in the prison.

[1] . http://www.timesofmalta.com/articles/view/20150811/local/cells-not-adequate-for-prisoners.580133 published on 11 August 2015