CONCURRING OPINION OF JUDGE NU SS BERGER

I agree with the majority that there has been a violation of Article 3 of the Convention on account of the lack of adequate assistance in detention in respect of the applicant ’ s infection. It is absolutely unacceptable that a detainee with an active form of TB should be placed in a special cell but not given any treatment at all. That is what happened to the applicant between 28 July 2007 and 15 May 2008, that is, for more than nine months. Although the TB Centre confirmed the applicant ’ s diagnosis and specified that he required a prolonged course of chemotherapy, nothing was done. However, on 15 May 2008 the situation changed. The applicant was admitted to the TB ward, where he received continuous treatment and had the relevant medicines administered to him. It is beyond dispute that his health improved. Admittedly, even during this period of time the treatment was not perfect. The TB category was not mentioned, there was no individualised hygiene plan, the prison diet was not tailored to the applicant ’ s needs and the medical assistance was still not comprehensive (see paragraph 91). Nevertheless, it has to be acknowledged that there was a huge difference between the period before 15 May 2008 and afterwards. Even though the treatment during the second period was far from perfect, I do not believe it reached the threshold required for a violation of Article 3 of the Convention. Therefore, I would have preferred the Chamber to take a more differentiated approach.

PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA JOINED BY JUDGE SPIELMANN

To my regret, I cannot share the opinion of the majority that there was has been no violation of Article 3 concerning the applicant ’ s knee injury.

I note that the applicant still had full mobility when he was arrested in 2007, but that, according to the medical report of November 2009, he had “a consolidated fracture of the left knee cap and a moderately expressed contracture of the left knee joint” (see paragraph 40). This implies limitation of the knee ’ s flexibility, hindering the applicant ’ s movements.

It follows from the Court ’ s case-law that a deterioration in a person ’ s state of health in a detention facility inevitably raises doubts as to the adequacy of the medical treatment there (see Khudobin v. Russia , no. 59696/00, § 84, ECHR 2006-XII (extracts)). Thus it was up to the authorities to provide a plausible and convincing explanation for the applicant ’ s mobility problem.

In the present case I observe that the applicant sustained his knee injury after falling down while being transported to the ITT. He complained immediately to an ITT doctor (see paragraph 29), who confirmed the injury but recommended that he consult a phtisiatrician – a tuberculosis specialist – although it was clear that the applicant needed to consult a trauma specialist who could assess the condition of his knee and treat it. Although for any broken bone medical assistance during the first few days appears to be crucial, the applicant did not receive any further help and was transferred back to the SIZO three days later, on 12 March, with a still broken and untreated knee cap.

The majority criticises the applicant for his failure to complain again on his arrival at the SIZO, or to insist on clarification of his diagnosis (see paragraph 78). I notice, however, that according to the medical certificate issued by the SIZO doctor, the applicant did not raise any complaint as he “wished to get to his cell sooner” (see paragraph 30). It is important to mention that transfer from the ITT to the SIZO could take up to two days in quite appalling conditions (see in this regard the Court ’ s findings in the cases of Yakovenko v. Ukraine, no. 15825/06, §§ 105-113, 25 October 2007, and Koktysh v. Ukraine , no. 43707/07, §§ 107-108, 10 December 2009, concerning the conditions of transportation between the same ITT and SIZO as in the instant case); and for a person with a fractured knee, which causes unbearable pain, such a trip is exhausting. Hence, I do not consider that he could be reproached for his desire to get to his cell immediately and to rest after a gruelling journey.

The fact remains that the authorities knew about the applicant ’ s knee problem as of 9 March, and I fail to see any practical obstacles to its immediate treatment in order to avoid negative consequences. Instead, this problem was first addressed on 24 March, about two weeks after the injury occurred. Although the knee fracture had healed per se, it appears from the documents submitted that the knee remained deformed.

In the absence of any evaluation of the causes of this deformity, the most plausible explanation would appear to be that the applicant was not afforded appropriate medical treatment for the contracture. I therefore cannot conclude that the authorities undertook sufficient measures to ensure that the applicant was not subjected to treatment contrary to Article 3 of the Convention.