PARTLY DISSENTING OPINION OF JUDGE POWER-FORDE

I do not share the majority ’ s view that there has been no violation of Article 3 of the Convention in this case. To my mind, the judgment fails to address, sufficiently and convincingly, the question of the adequacy of the medical treatment which the applicant received whilst detained. In addition, I consider that it departs from previous case law wherein the Court has found it degrading to deprive a prisoner suffering from eye problems of his glasses in circumstances where these have been medically prescribed and are, clearly, necessary for his general well being.

The applicant ’ s numerous medical problems were confirmed and diagnosed by the medical personnel of the SIZO Unit wherein she was detained (§ 42) . She suffered from hypertension (stage 2), hypertensive angiopathy, second stage encephalopathy , ventricular arrhythmia, chronic gall-bladder disease and chronic pancreatitis. She was also diagnosed with amblyopia, retinopathy and atrophy of the nerves to the right eye (§ 37).

The Court ’ s jurisprudence on the right of prisoners to medical treatment whilst in detention is well established. The right to health in prison was developed at the same time as the right to humane conditions of detention. The State is under an obligation not only to provide some form of medical assistance to an ill prisoner, but to provide, the ‘ requisite medical assistance. [1] In Kudla v. Poland the Court summarised the obliga tions incumbent upon the State:

‘ Article 3 compels the State to ensure that a person is detained in conditions that are compatible with respect for his human dignity, that is the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding an unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well being are adequately secured, by among other things, providing him with the requisite medical assistance. ’ [2]

Thus, whilst the applicant in the instant case was not entitled to “ state of the art ” medical assistance she was entitled to and ought to have received requisite medical assistance for the numerous and relatively serious conditions from which she suffered in order to have her health and well being secured. Visits by or consultations with a prison doctor are not, in themselves, sufficient to discharge the State ’ s obligations under Article 3.

My difficulty with the majority ’ s finding under Article 3 is two fold. Firstly, the judgment contains many general references to the fact that the applicant was seen by ‘ various specialists ’ and underwent ‘ various medical examinations and procedures ’ (§ 66). It also refers , in very general terms , to the fact that the applicant ‘ was prescribed treatment for her illnesses ’ . However, such broad and general references are made without any attempt to identify the actual treatment prescribed for each of the illness es diagnosed thus making it impossible to determine whether such treatment, if administered, was either requisite or adequate. The judgment notes, for example, that the applicant was diagnosed with, inter alia , chronic gall-bladder disease and chronic pancreatitis whilst in prison . However, it contains no consideration of whether she received any treatment, specifically, for these conditions and, if so, whether that treatment was adequate. This level of generality and vagueness when dealing with such a fundamentally important right under the Convention is not sufficient to enable me to conclude that the State ’ s obligation to provide ‘ requisite medical treatment ’ to the applicant has been discharged.

Secondly, I find it difficult to reconcile the majority ’ s approach in this case with earlier case law on similar complaints. The applicant claimed that her eyesight deteriorated while she was in detention and that she was unable to read. She further claimed that , being without glasses, she required the assistance of her cell-mates to help her to write her complaints and to read aloud to her any correspondence she received, including, correspondence in relation to the charges against her. These specific claims are not denied by the respondent State. Indeed, it confirms that the applicant was diagnosed with, inter alia , severe myopic astigmatism and retinal angiosclerosis and was advised to wear glasses as of August 2005, a fact noted by the majority (§ 67). Notwithstanding this uncontested medical diagnosis and advice, on the Government ’ s own submission, it took the authorities some eight months (April 2006) to conduct a ‘ selection ’ of spectacles for the applicant. It is not known whether any glasses were actually selected and, if so, whether they were adequate or, indeed, whether they were ever even supplied to the applicant (§ 67). Nevertheless, the majority finds no violation of the obligation to provide requisite medical care to the applicant in this regard .

The majority ’ s position in this regard stands in marked contrast to the Court ’ s judgment in Slyusarev v. Russia – a case which also concerned a detainee who needed glasses. [3] In that case, t he Court considered that even if being deprived of his glasses had no permanent effect on th at applicant ’ s health, he must have suffered because of it (§ 36). Being diagnosed with myopia of medium severity, the applicant, without glasses, was able to attend to himself and move around but, clearly, could not read or write normally. The Court accepted that being without his own glasses for two and a half months and being deprived of new glasses which had been prescribed for him for a further two and half months , must have created a lot of distress in the applicant ’ s everyday life and must have given rise to a feeling of insecurity and helplessness. It found that the degree and duration of suffering involved had been degrading and that there had, therefore, been a violation of Article 3.

I find, likewise, in the instant case.

[1] . McGlinchey and Others v. the United Kingdom , no. 50390/99, § 46, ECHR 2003 ‑ V; Mouisel v. France , no. 67263/01, § 40, ECHR 2002 ‑ IX; Aerts v. Belgium , 30 July 1998, § 64, Reports of Judgments and Decisions 1998 ‑ V .

[2] . KudÅ‚a v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI .

[3] . Slyusarev v. Russia , no. 60333/00, 20 April 2010 .