JOINT PARTLY DISSENTING OPINION OF JUDGES KŪRIS AND KUCSKO-STADLMAYER

1. In our opinion, the Court could have taken a more balanced approach and found that Article 3 of the Convention had not been violated.

2. One can admit that “the duration and availability of the outdoor exercise and the conditions in which [the applicant] could take it” (paragraph 41) were problematic. The majority also point out that “[t]he Court has found a violation of Article 3 because the lack or short duration of outdoor exercise was a factor that further exacerbated the situation of the applicant, who was confined to his cell for all or the rest of his time” (ibid.). But then they conclude, that “[i]n the light of the lack of personal space afforded to the applicant, combined with the lack of adequate access to outdoor activities for almost three months of his detention, the Court finds that the conditions of the applicant ’ s detention in Székesfehérvár Prison from 3 July 2012 until 7 September 2012 amounted to degrading treatment” (paragraph 42, emphasis added).

3. In the judgment, that lack of space has not been shown . In paragraph 23, where the facts pertaining to the applicant ’ s personal space in the cell are listed, it is indicated that the applicant disposed of between 3.1 and 5.1 sq. m of personal space and during some periods more than 4 sq. m, and even 5 sq. m of personal space. This is clearly within the limits accepted by the Court in its case-law.

4. In Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, § 145, 10 January 2012) the Court found that “whereas the provision of four square metres remains the desirable standard of multi-occupancy accommodation, the Court has found that where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3”. This was confirmed in Canali v. France (no. 40119/09, § 49, 25 April 2013: “ ... the personal living space in the present case does not justify, in itself, a finding of a violation of Article 3 of the Convention ... , such a violation only being found where applicants have individually had less than 3 sq. m”) and several other judgments. The assumption of “a lack of space” in our case is therefore not convincing.

5. In this context it is misleading for paragraph 42 of the judgment to cite Ananyev (cited above), §§ 149-151. In these paragraphs the Court had quoted CPT standards providing for “at least one hour of exercise in the open air every day”. The outdoor exercise available to the applicant s in that case, limited to one hour per day, had “exacerbated” their situation because they were afforded less than three square metres of personal space (ibid., § 166, emphasis added). Consequently, the applicants ’ situation in Ananyev was significantly different from the present case.

6. However, even if one assumes (though it is not clear on what grounds) that there really was a “lack of personal space”, a number of other factors also have to be taken into account (further elaborated in Ananyev , cited above, §§ 153-159), not excluding the relative short duration of the applicant ’ s stay in Székesfehérvár Prison. This assessment is absent (see paragraphs 41 and 42). Thus, the finding of a violation of Article 3 is not sufficiently substantiated and does not seem to be well balanced.

7. The Court should not be satisfied by such reasoning where the analysis of various relevant conditions is replaced by a mechanistic general reference to the effect that “[t]he Court has found a violation of Article 3” in previous cases (as in paragraph 41). It does not allow one to come even close to a proper assessment of the cumulative effect of various conditions of detention in the case actually under consideration.

Especially if, as mentioned above, one of the conditions, probably the decisive one, has not been convincingly established.