JOINT DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE, RANZONI AND BOÅ NJAK

1. We respectfully disagree with the majority that there has been no violation of Article 3 of the Convention. In our opinion, both the conditions of detention to which the applicant was subjected, taking into account their cumulative effect, and the medical care provided have infringed the standards enshrined in the Court ’ s long-established case-law pertaining to Article 3 of the Convention.

2. The complaint was lodged by an applicant serving an eight ‑ year custodial sentence in Divisions 3, 5 and 6 of the Corradino Correctional Facility in Malta, who suffered from inappropriate conditions of detention as well as from insufficient medical treatment.

3. The present opinion should be read in conjunction with our opinion in Yanez Pinon and Others v. Malta (nos. 71645/13, 7143/14 and 20342/15, delivered on the same date) in so far as it concerns the conditions of detention in the Maltese prison. In this respect, we refer to that opinion in full.

4. In addition, we reject the majority ’ s assumption that it is for prisoners, including prisoners with an asthma condition, to restore and paint their own dilapidated cells (see paragraph 72 of the present judgment). In so ruling, the majority demonstrated, in practical terms, disregard for the applicant ’ s specific health condition.

5. Furthermore, the applicant ’ s situation was compounded by the fact that he had to endure solitary confinement, without even being acquainted with the decision and the details pertaining to it (see paragraph 76 of the judgment), let alone having an opportunity to impugn it. This practice of informal punishment in this particular Maltese prison, which has also been criticised by the Council of Europe ’ s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), is not acceptable in States governed by the rule of law.

6. All these circumstances had a major detrimental psychological impact on the applicant, which was evidently further intensified by the discriminatory tone of the treatment that he endured in detention. Let us not forget that the applicant was a Costa-Rican national who could speak only Spanish and had been placed in a Maltese prison which had no particular programme for foreign prisoners. Here again the majority took the opportunity to refer to their “discrimination concerns” (see paragraph 77) with regard to the application of sanctions in the Maltese prison but, astonishingly, drew no conclusions from this fact.

7. Regarding medical treatment, we agree with the majority ’ s severe criticism of the lack of information provided by the Government (see paragraphs 85-87 of the judgment). But instead of concluding that the Government had failed to inform the Court properly on a matter of such importance, the majority simply overlooked the fact that the burden had been on the Government to submit to the Court sufficient evidence that they had fulfilled their positive obligations to provide quality medical care to the applicant but that they had failed to satisfy that evidentiary burden. On the contrary, the majority have shifted that burden onto the applicant, requiring him to present a “specific and detailed denial” of the Government ’ s position (see paragraph 88). Furthermore, when the applicant claimed that he could not use the communal areas, the majority brushed aside his claim with the argument that the Government had not made a “specific submission on this point” (see paragraph 77). This uneven, double-standard approach to the evidentiary rules is, to our minds, incomprehensible. Finally, the majority showed too high a degree of tolerance towards the cancellation of medical and rehabilitative appointments and the delays with which medical treatment was provided (see paragraph 90).

8. We are, of course, aware that there are more serious prison failings in certain parts of Europe. However, the present judgment, along with that in the Yanez Pinon and Others case, raises an important and, at the same time, worrying question: should the even more severe situation in certain European prisons be used as an excuse to lower the standard of protection afforded to prisoners in other States? Such a downgrading of the human rights of prisoners is not acceptable to us. The question could also be phrased in another way: how poor does the treatment of prisoners in European prisons have to be for the Court to intervene? We would answer that the right not to be subjected to ill-treatment enshrined in Article 3 of the Convention has a minimum core, which is beyond any derogation (Article 15 of the Convention), regardless of where in Europe this standard is applied. To pretend otherwise would mean that human dignity has a different value according to the area of Europe in which Article 3 is applied. This is, again, unacceptable.

9. To conclude, the cumulative effect of the deplorable conditions of detention in the Corradino Correctional Facility in Malta as described above and in our opinion in Yanez Pinon and Others v. Malta , combined with the long period during which the applicant had to endure these conditions, caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. This suffering was aggravated by the manner in which he was subjected to solitary confinement and by the Government ’ s failure to protect his health adequately. To our mind, the applicant ’ s situation reached the threshold of degrading treatment for the purposes of Article 3 of the Convention. In consequence, we have voted for finding a violation of this provision.