JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, SPIELMANN AND JEBENS

1. We are unable to agree that there has been no violation of Article 8 of the Convention on account of the lack of adequate and continuous treatment for the applicant ' s psychiatric condition.

2. Being the master of the characterisation to be given in law to the facts of the case, the Court decided to examine this issue under Article 8 of the Convention and did not exclude the possibility that treatment which does not reach the severity of Article 3 may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity.

3. In our view, the facts disclose that the applicant suffers from a number of serious mental ailments, and that he was in great need of psychiatric treatment (see paragraphs 167-169 of the judgment). We furthermore find that the State authorities have not provided the applicant with sufficient treatment, bearing in mind that he, as a detained person, was particularly vulnerable (see paragraph 170 of the judgment).

4. It is our submission that the State authorities have not taken necessary measures to secure adequate psychiatric supervision of the applicant, notwithstanding the fact that in two penal institutions, specific treatment, tailored to the needs of people suffering from PTSD, is provided (see paragraph 173 of the judgment).

5. Admittedly, the applicant has been prescribed and given pharmacotherapy for his mental condition during his imprisonment. But this, in the particular circumstances of the case, does not suffice. The applicant was impulsive and emotionally unstable, easily lost control of his behaviour, with evident low tolerance towards frustration, a high tendency to react aggressively, a significantly reduced capacity to maintain self-control and a high likelihood of reoffending. Psychiatric supervision was clearly needed. The facts of the case also show that the applicant was prone to conflicts with other inmates and the prison personnel, that he was aggressive and that he often went on hunger strikes. On several occasions he also inflicted injuries on himself and attempted to commit suicide. These circumstances, together with the clear recommendations that the applicant receive psychiatric treatment, show that the applicant was indeed in need of such treatment. In view of the applicant ' s diagnosis and mental problems, such a programme appears to have been all the more necessary.

6. The applicant has been detained since 1 April 2005. A lthough the relevant provisions of the Enforcement of Prison Sentences Act require that an individual programme be devised for each inmate, the Government have not shown that any such programme was devised in respect of the applicant. In view of the applicant ' s diagnosis and his mental problems, such a programme appears to have been all the more necessary.

7. The Government submitted that inmates suffering from PTSD were involved in group therapy specifically tailored to their needs. As regards the three penal institutions at issue, such groups were founded in Lepoglava State Prison and Pula Prison. However, the applicant did not benefit from any such therapy.

8. During his stay in Pula Prison from 6 January to 5 November 2007, the applicant was not included in any group therapy for inmates suffering from PTSD and was seen by a psychiatrist only once, on 24 August 2007.

9 . As regards the applicant ' s stay in Lepoglava State Prison, the Government alleged that during his time there he had initially, on arrival, been involved in a therapeutic programme for inmates suffering from PTSD . The applicant, however, submitted that he had not been included in any therapy for persons suffering from PTSD. It is therefore regrettable that the Government failed to provide any further information on the exact duration or frequency of any of the alleged therapeutic treatment of the applicant. It could reasonably have been expected of the prison authorities to keep a record of the psychiatric and other therapeutic sessions attended by the applicant and to carry out regular assessment of his participation and condition. It is unclear what treatment, if any, was provided to the applicant in such groups , and on what basis , or what personnel was involved in the conduct of these groups.

10 . It is undisputed that during his stay in Gospić Prison , from 14 October 2006 to 6 January 2007, the applicant did not receive any treatment for his psychiatric condition.

11. In the course of the applicant ' s continual placement in penal institutions since 1 April 2005, his examinations by a psychiatrist , though frequent, have always been connected with incidents or hunger strikes concerning him rather than being planned as part of a well-designed therapeutic process with specific aims. In this connection we would stress that providing adequate professional treatment for convicts suffering from psychiatric conditions , and in particular PTSD, is not only beneficial to the individual convict but also to the well-being of society as a whole. In short, the attitude of the authorities has been purely reactive and not, as it should have been, proactive.

12. We are also mindful of the fact that there was a recommendation by doctors who examined the applicant, including psychiatrists, that he be placed in a non-smoking cell, and that this was not complied with .

13. An aggravating circumstance is the frequency of the applicant ' s transfers to various detention facilities. He has been a prisoner “in orbit”. Indeed, the applicant has so far spent about four years in various penal institutions in Croatia , during which period he has not been provided with adequate psychiatric supervision for his PTSD and has at times been placed in overcrowded cells with smokers. In view of the gravity of his psychiatric problems, the constant change in the applicant ' s placement, which has then necessarily entailed a change in his therapists and therapeutic conditions, can hardly be conducive for improvement in his mental health.

14. In our view, the foregoing considerations are sufficient to conclude that the relevant prison authorities have not secured the applicant adequate supervision for his mental problems. They have therefore failed in their positive obligations under Article 8 of the Convention, namely to secure to the applicant the “respect” for his private life to which he is entitled under the Convention.