JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, LOUCAIDES AND TULKENS

We do not share the conclusion of the majority that there has been no violation of Article 3 in the present case for the following reasons .

1. Leaving aside the question whether the case-law cited under § 96 of the judgment ought to be distinguished from the present case owing to the differences in the criminal offences concerned, clearly a distinction needs to be made between, on the one hand, social isolation or a special regime imposed after a conviction by a court and, on the other , pre-trial detention in solitary confinement, as in the present case . At the relevant time, according to sections 770a and 770b of the Administration of Justice Act, pre-trial detention in solitary confinement: “ ... cannot be initiated or continued if the purpose thereof can be fulfilled by less radical measures or if the measure is disproportionate to the importance of the case and the sanction to be expected if the suspect is found guilty. Decisions on solitary confinement must also take into account the special potential strain on the suspect owing to his youth or physical or mental weakness”. Thus, solitary confinement was an exceptional measure, which could be applied only when it was considered absolutely necessary in the circumstances.

Nevertheless, in this case, the City Court and, on appeal, the High Court, when prolonging the applicant ' s solitary confinement, gave rather general reasons for their decisions and did not specify why, in the circumstances, solitary confinement was considered absolutely necessary or, to put it another way, why the applicant had to be totally excluded from association with other inmates. Moreover, the decisions did not elaborate on whether less radical measures had been considered, for example they did not explain why “normal” pre-trial detention under section 762 of the Administration of Justice Act was not considered sufficient in the circumstances. Also, we find it noteworthy that the solitary-confinement measure was lifted on 28 November 1995 as soon as the applicant admitted before the City Court his involvement in the import of the papaya fruit (see §§ 13-19).

Taking these considerations into account, we are not convinced that it was absolutely necessary, in the circumstances, to subject the applicant to the exceptional measure of pre-trial detention in solitary confinement for such a long time.

2. In the present case from 8 p.m. on 13 December 1994 , the day of his arrest, until 12.30 p.m. the following day the applicant was placed in an

observation cell because he had stated that he was suffering from claustrophobia and contemplating suicide. Subsequently, from 14 December 1994 until 28 November 1995 , he was detained in solitary confinement and accordingly placed in a cell in which he was totally excluded from association with other inmates. On the basis of the medical notes and statements that were produced, the Court considered it established that the medical staff had monitored the applicant and placed him under increased surveillance whenever he showed any change in mood or behaviour.

Nevertheless, the applicant was attended to only once by a psychiatrist, namely on 18 January 1995 , less than one month after he had been detained in solitary confinement. During the remaining period of solitary confinement, which lasted until 28 November 1995 (that is to say, for another ten months), no psychological or psychiatric examination was carried out of the applicant.

We reiterate in this connection that the CPT in its report of 1991 (CPT/ Inf (91) 2) had underlined that, in certain circumstances, solitary confinement could amount to inhuman and degrading treatment, and that in any event all forms of solitary confinement should be as short as possible. It recommended that the Danish authorities take steps to ensure that remand prisoners were only placed in solitary confinement in exceptional circumstances which were strictly limited to the actual requirements of the case. Also, we observe that at the relevant time a research project had been commissioned by the Minister of Justice to examine “any possible harmful effects of being remanded in custody in solitary confinement”, the result of which had been published in a report in May 1994 stated that the research team had found inter alia that: “ ... remand in custody in solitary confinement versus non-solitary confinement involves the risk of harmful effects on mental health” and that “ ... there is a greater probability that those in solitary confinement develop mental problems and are transferred to prison hospitals for mental reasons than those who are not placed in solitary confinement” (see, for instance, page 164 of document CPT/ Inf (96) 14).

In these circumstances and having regard to the fact that the applicant had displayed mental vulnerability at an early stage of his detention, for example he said he was contemplating suicide on the day he was arrested, we find that it would have been reasonable to expect the authorities to arrange for the applicant to receive regular psychological or psychiatric examinations on their own initiative.

Also, we note the observations made by the following persons as regards the applicant ' s behaviour during his pre-trial detention in solitary confinement:

The applicant ' s mother stated, among other things, that she felt that it was worst for the applicant during the detention period when he was also solitary confined. Thereafter, he became more human and spoke more coherently. During the solitary confinement he wrote some letters with weird contents, including a letter with incomprehensible presentation of how the universe works. She had talked with counsel about getting a psychologist in from outside, but it was too difficult to cope with and nothing came of it. She would describe the difference in the applicant ' s behaviour before and after by saying that he used to be dynamic, committed and extrovert but had become grumpy and inaccessible.

The applicant ' s cousin stated, among other things, that the applicant seemed deeply unhappy and preoccupied. Often he was just listening. He had also changed appearance, having grown a big beard and lost weight. The applicant became better as time passed, as if he had found some peace.

The prison chaplain stated, among other things, that the applicant moved with great care around the grounds and walked practically sideways along the wall. He moved like a person who had done no exercise and seemed timid. The applicant needed exercise, both physically and mentally. He had a great feeling of powerlessness. The applicant seemed different than other inmates, like a stranger in that he could both think and talk and was not already “busted”. The chaplain found that in general persons detained in solitary confinement looses their concentration. This was also the case as regards the applicant. The applicant cheered up and felt stimulated by the visits to the chaplain and it has been difficult to end the consultations as the applicant kept finding new subjects and knew which subjects were interesting to the chaplain.

The prison teacher stated, among other things, that the applicant from the first day seemed desperate. Subsequently he appeared resigned. On his index card of 18 September 1995 , the teacher had noted that the applicant got more and more depressed. The applicants ' physical condition worsened, he got careless about himself, both concerning clothing and hygiene. The applicant read a lot, although he encountered difficulties in concentrating.

Apparently, none of these four witnesses reported their observations or their concerns to the courts, counsel, the prison management, the nurses or the doctors, which may have resulted in a psychological or psychiatric assessment having been carried out. In our view, however, such assessments should not depend on a request but instead should be part of a system of automatic regular monitoring of long-term detainees in solitary confinement. We believe that only under these conditions can the required monitoring be considered effective.

In view of the above we find that there has been a violation of Article 3 of the Convention in this case.