JOINT DISSENTING OPINION OF JUDGES ZIEMELE AND KALAYDJIEVA

1. We respectfully disagree with the majority which found no violation of Article 3 in this case. We note that the applicant formulated two complaints under Article 3. The first concerned his disability and special needs since he was unable to carry out many of his daily or routine tasks and had to seek help from his fellow inmates. Secondly, he complained about the protracted process of providing him with forearm prostheses (see paragraphs 92-93 of the judgment). We can accept that the authorities assisted the applicant and obtained the necessary prostheses after some delay (see paragraphs 124-125). However, we do not agree with the majority view that the arrangements put in place by the prison authorities to assist the applicant in attending to his daily needs were both adequate and made in time to avoid a lasting situation of questionable compatibility with the requirements of Article 3 (compare and contrast with Todorov v. Bulgaria (dec.), no. 8321/11, 12 February 2013).

2. In this regard we would like to reiterate the main principles of the Court’s case-law. More generally, the Court has stated as follows: “[Article 3] nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland , 28 January 1994, Series A no. 280 ‑ A, opinion of the Commission, pp. 15-16, § 79). The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see KudÅ‚a , cited above, § 94)” (see Mouisel v. France , no. 67263/01, § 40, ECHR 2002 ‑ IX). In the case of Farbtuhs v. Latvia (no. 4672/02, 2 December 2004), the Court noted that the prison authorities had permitted the family members to stay with the detainee for twenty-four hours at a time and that this took place on a regular basis. In addition to the family taking care of the applicant, who had a physical disability, he was assisted during working hours by the medical personnel and outside working hours was helped by his co-detainees on a voluntary basis. In that case, the Court found that such a solution was not acceptable. The Court stated that it doubted “the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention” (see Farbtuhs v. Latvia , no. 4672/02, § 60, 2 December 2004).

3. In assessing the minimum level of severity of treatment, the Court has always taken into account the relative differences in individual circumstances – depending on the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. We would stress again that, according to medical experts, the condition of the applicant in the present case required permanent assistance. The fact that the applicant had to rely on fellow inmates for assistance in meeting his daily personal needs in itself raises an issue as to whether the manner and method of execution of the punishment measures were appropriate to his disabled condition or subjected him to further distress, hardship or humiliation of an intensity exceeding the unavoidable level of suffering inherent in detention. In our view this issue was insufficiently examined.

4. The majority, despite not having in its possession any precise information as to the functioning of the system of inmate assistance to the applicant, still chose to accept that the existence of such a system was adequate from the point of view of Article 3. No distinction was subsequently made between the facts of this case and those of Farbtuhs v. Latvia . We consider that the Chamber departed from the established case ‑ law without even providing a reason.