PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE SAJÓ

Although I share the view of the majority with respect to their Article 5 findings in this case, I respectfully disagree regarding the majority ’ s Article 3 conclusions. I agree with the majority ’ s conclusions regarding the violation of Article 13, but on a narrower ground.

Under Article 3 of the Convention, the majority found that the applicant ’ s conditions of detention were unsuitable for a wheelchair-bound person and constituted degrading treatment. To date the Court has required only that “where authorities decide to place and keep a person with a disability in detention they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability” (see paragraph 50 of the judgment). There were policemen (as well as the applicant ’ s wife, on occasion) readily available to assist the applicant, and the hotel facilities to which he was carried by the policemen were not located at a very great distance. In fact the distance could have been the same within the detention facility, requiring the same help from the policemen. The applicant ’ s detention under these conditions lasted only seven days, and its short duration should not have been discounted when assessing whether the treatment constituted a violation. Were the Court to apply its standards and impose a positive obligation on States to provide accessible detention facilities for persons with disabilities, for example under Article 8 in conjunction with Article 14, I would have no difficulties in apply ing those considerations to the present case. But the treatment of the applicant, while far from ideal, does not meet the threshold of inhuman or degrading treatment required by Article 3.

As to the finding of a violation of Article 13 of the Convention, I think most of the reasoning is speculative, although it follows from our case-law that in matters of deportation detention the Turkish system does not satisfy the requirements of the right to an effective remedy. These considerations apply for the period the applicant was detained and actually faced deportation. In a deportation case in which the deportation has been stayed and the applicant has arguable victim status, it appears entirely speculative to comment on the lack of an effective remedy were the domestic proceedings or the detention to have continued. It would be another matter if the deportation proceedings had progressed further and the applicant had subsequently found himself without an effective remedy. Given that these were not the circumstances of this case after the applicant ’ s release, I find it difficult to vote in favour of a violation of the right to an effective remedy where the need for such remedy was obviated to some extent by the outcome or staying of the proceedings.

[1] 1. The Public Committee against Torture in Israel et al v. The Government of Israel et al , Supreme Court of Israel sitting as the High Court of Justice, Judgment, 11 December 2006, H CJ 769/02, paragraph 40, available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM