DISSENTING OPINION OF JUDGE VAJIĆ

I do not agree with the majority’s finding that there has been no violation of Article 3 of the Convention on account of the use of force against the applicant in connection with his handcuffing on 23 October 2009.

Prisoners often refuse to comply with orders by prison guards, as did the applicant when he refused to comply with the handcuffing order. Prison guards, who are specially trained to cope with such situations, are supposed to carry out their orders without beating or otherwise ill-treating prisoners, even in cases where they have to have recourse to some degree of physical force to cope with a prisoner’s disorderly behaviour. This is particularly true in a situation such as the present one for which they are able to prepare and plan in advance (which would also include anticipating the necessary number of officers, the appropriate equipment and other arrangements).

However, the physical confrontation during which the applicant sustained abrasions next to his left eye and four bluish marks on his neck (see paragraph 132 of the judgment) was carried out using physical force and it does not seem to have been established that such a degree of physical force was indeed strictly necessary. The applicant’s personality and history of incidents were well known to the prison authorities and they should have done their best to avoid physical confrontation in a situation in which they could easily have foreseen it. The fact that the prison officers did not use truncheons or other active defence equipment, but rather relied on the use of shields, does not make much difference. In addition to the precautions taken to protect the prison officers – the provision of masks and shields (see paragraphs 65 and 133), the prison authorities could also have been expected to take steps to avoid causing injuries to the applicant.

The applicant was pushed against the window bars with shields and forced to the floor (see paragraph 133) during which he sustained injuries that were subsequently confirmed by a medical report. In addition, the incident took place immediately after another restraint measure had been applied to the applicant, namely, confining him to a restraint bed from 10.40 a.m. to 7.30 p.m. the previous day and in respect of which measure a violation of Article 3 of the Convention has been found in the present case.

In view of the above, I find that there has also been a violation of Article 3 as regards inhuman treatment during the incident on 23 October 2009.

Lastly, I would also like to make a remark going beyond the incident in question, as I find it rather surprising that the prison authorities repeatedly responded by confrontation and the use of physical force to the numerous instances of disorderly conduct and other incidents provoked by the applicant without using other methods when trying to cope with such behaviour. Having regard to the lengthy prison term imposed on the applicant and to the fact that his behaviour repeatedly caused problems, the prison authorities, in my view, could and should have drawn up a specific programme and regime of detention for the applicant (including the use of different kinds of additional measures, such as, for instance, educational and medical ones) in order to avoid having to respond to confrontations directly, each time they arose, and thus contribute themselves to a never-ending confrontational circle. With all due respect, and being aware that it is for the domestic authorities to decide how to perform their obligations under the Convention, the approach used in the present case does not seem to have produced the most appropriate solutions for long-term problems of the kind encountered here.