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FIRST
SECTION
CASE OF NOVAK v. CROATIA
(Application
no. 8883/04)
JUDGMENT
STRASBOURG
14
June 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Novak v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8883/04) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Boris Novak (“the
applicant”), on 1 March 2004.
- The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
- On
14 September 2006 the Court decided to communicate to the Government
the applicant's complaints concerning the conditions in VaraZdin
Prison and his right to respect for his correspondence. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Ludbreg.
A. Criminal proceedings against the applicant
- Following a conviction for a dangerous activity, the
applicant was incarcerated in Lepoglava State Prison during an
unspecified period in 1999 and 2000.
- In
a judgment of 4 July 2002 the Zagreb Municipal Court convicted the
applicant of fraud and gave him a suspended sentence of ten months'
imprisonment. In addition, it ordered him to undergo compulsory
psychiatric treatment as he had been diagnosed as suffering from
post-traumatic stress disorder (PTSD). It appears that the suspension
of the sentence was lifted because the applicant was again sent to
Lepoglava State Prison from 17 May 2002 until 17 April 2003.
- In
a judgment of 17 February 2003 the VaraZdin Municipal Court convicted
the applicant of fraud and gave him a suspended sentence of ten
months' imprisonment. However, on an appeal by the State Attorney, on
24 September 2003 the VaraZdin County Court altered the sentence
to six months' unconditional imprisonment.
- On
18 December 2003 a judge of the VaraZdin County Court with
responsibility for the execution of sentences ordered the applicant
to start serving his prison sentence in VaraZdin Prison on 28 January
2004. The applicant applied for the order to be postponed on account
of his PTSD condition. On 12 January 2004 a VaraZdin County Court
judge responsible for the execution of sentences dismissed the
application because the applicant had failed to submit medical
documentation concerning his condition.
- The
applicant appealed against that decision and on 22 January 2004 the
VaraZdin County Court dismissed his appeal. It found, firstly, that
the medical documentation subsequently submitted by the applicant was
outdated since it originated from 1991, 1998 and 2001, and, secondly,
that during his prison term the applicant would be provided with
adequate medical care.
B. General conditions in VaraZdin Prison
- The
applicant started to serve his sentence on 26 February 2004 in
VaraZdin Prison. He was placed in cell no. 8, measuring four by five
metres, with thirteen beds. The number of inmates ranged from fifteen
to twenty, so that some inmates had to sleep on the floor or on the
table. The table in the cell was designed to accommodate four
persons, so that the inmates had to eat on the beds or on the floor.
There was one window in the cell, covered with wire so that light and
air hardly reached the cell.
- On
11 March 2004 the applicant was removed from cell no. 8 and placed in
cell no. 5, measuring 21.87 square metres, which he shared with four
other inmates.
- The
applicant's correspondence with the Court was opened.
C. The applicant's medical treatment in prison
- The
medical documentation presented by the applicant shows that he was
examined on 26 February 2004 by the prison physician, who found that
the applicant had suffered from PTSD since 1995 and also from a
personality disorder. The prison doctor prescribed medication, a drug
called Fluval.
- On
15 March 2004 the applicant was transferred to Zagreb Prison Hospital
but was sent back to VaraZdin Prison the same day because the
psychiatrist at the hospital found no reason to keep him there. The
applicant's treatment was changed to drugs named Amyzol and Xanax. On
16 March 2004 the applicant complained that the drugs prescribed were
“too heavy”. On 17 March 2004 the medication prescribed
to the applicant was again changed to Fluval. No psychiatric
treatment was provided.
D. Remedies used by the applicant
- On
8 March 2004 the applicant applied for a transfer to another prison
or the immediate termination of his prison sentence on account of the
lack of adequate treatment for PTSD in VaraZdin Prison. He further
complained about the overcrowded conditions in the cell where he was
being held. On 19 March 2004 a VaraZdin County Court judge
responsible for execution of sentences dismissed the application,
finding that the applicant was not in need of any additional
treatment. However, as to the overcrowded conditions, the judge
found:
“... the prisoner's allegations concerning the
number of inmates placed in one cell are true. However, such
placement of prisoners is due to the considerable fluctuation in
their number because persons sentenced to up to six months'
imprisonment serve their sentences in [VaraZdin] Prison.
The VaraZdin Prison authorities shall remove the said
insufficiencies so as to afford enough space to inmates ...”
- The
applicant appealed against that decision, but his appeal was
dismissed by a three-judge panel of the same court on 30 March 2004.
- On
an unspecified date the applicant filed an application for early
release from the prison because he had not received adequate
treatment for PTSD. On 26 May 2004 the VaraZdin County Court
dismissed the application.
- On
an unspecified date the applicant contacted the Croatian Helsinki
Committee to complain about the inhuman conditions in VaraZdin
Prison, alleging that he was being held in a cell measuring 4 by 5
metres with thirteen beds and that the number of inmates in the cell
surpassed the number of beds. He alleged that such cramped conditions
had had an adverse effect on his health since he was suffering from
PTSD. Furthermore, he complained that there was insufficient daylight
in the cell.
- In
a letter of 17 June 2004 the Committee informed the Department for
the Enforcement of Sanctions (Uprava za izvršenje sankcija)
about the applicant's allegations and sought an answer from it. On 6
July 2004 the Prison Administration of the Ministry of Justice
(Uprava za zatvorski sustav Ministartsva pravosuđa)
answered the Committee's enquiry. As to the applicant's health
condition, it was stated that he had been diagnosed with PTSD and
therefore sent to the psychiatric ward of Zagreb Prison Hospital on
15 March 2004. However, a psychiatrist from that hospital had found
that there had been no indications requiring the applicant's
hospitalisation. Furthermore, the applicant himself had asked not to
be kept in the hospital. During his detention in VaraZdin Prison he
had been administered drugs. As to the applicant's allegations about
the inhuman conditions in his cell, it was stated that the conditions
of the execution of his sentence complied with the standards
prescribed in Part XI of the Enforcement of Prison Sentences Act and
that each cell had access to daylight.
- In
a decision of 12 July 2004 the VaraZdin Prison Administration
released the applicant on licence. His licence expired on 26 August
2004.
E. Findings of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT)
- The
CPT visited Croatia between 20 and 30 September 1998. Its findings
with regard to Zagreb Prison Hospital were as follows (extract from
the report to the Croatian Government on the visit to Croatia from
20 to 30 September 1998, CPT/Inf. (2001) 4):
“157. ... However, occupancy rates in
the psychiatric ward were rather high, a drawback which was
exacerbated by the fact that patients tended to spend most of the day
in their rooms...
In all wards, the general atmosphere in the patients'
rooms was rather drab; efforts should be made to provide a more
positive therapeutic environment. The practice observed in the
hospital of having patients wear pyjamas/nightgowns continuously
should also be reviewed. As regards, in particular, psychiatric
patients, this practice is not conducive to strengthening personal
identity and self-esteem; individualisation of clothing should form
part of the therapeutic process.
...
159. ... The delegation was less impressed by
the quality of psychiatric treatment, which was limited essentially
to pharmacotherapy (though there were no indications of the misuse of
medication). The hospital's doctors acknowledged that there was a
clear need to develop rehabilitative and other therapeutic activities
(occupational therapy, group therapy, individual psychotherapy, etc.)
for the establishment's psychiatric patients; however, they commented
that limited staff resources and the very nature of the establishment
hindered progress in this area.
160. The CPT recommends that serious
efforts be made to develop rehabilitative and other therapeutic
activities for psychiatric patients at the hospital; the present
state of affairs is untenable from a therapeutic standpoint. ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
23 of the Croatian Constitution (Ustav Republike Hrvatske)
provides as follows:
“No one shall be subjected to any form of
ill-treatment...”
- The
Enforcement of Prison Sentences Act (Zakon o izvršavanju
kazne zatvora, Official Gazette no. 128/1999 of 30 November
1999, and no. 190/2003 of 3 December 2003 (consolidated
text) – “the Act”) came into force on 1 July 2001,
whereas the provisions concerning the judge responsible for the
execution of sentences came into force six months later, on 1 January
2002. The relevant provisions of the Act read as follows:
COMPLAINTS
Section 15
“(1) Inmates shall have the right to complain
against an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with
a prison governor, a judge responsible for the execution of sentences
or the Head Office of the Prison Administration. Written complaints
addressed to a judge responsible for the execution of sentences or
the Head Office of the Prison Administration shall be submitted in an
envelope which the prison authorities may not open...”
JUDICIAL PROTECTION
AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION
Section 17
“(1) An inmate may file a request for
judicial protection against any acts or decisions unlawfully denying
him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be
decided by the judge responsible for the execution of sentences.”
ACCOMODATION, FURNISHINGS AND NUTRITION
Section 74
“(1) The accommodation of inmates shall
meet the required standards in terms of health, hygiene and space,
including climatic conditions.
(2) Inmates shall as a general rule be
accommodated in separate rooms...
(3) Inmates' rooms shall be clean, dry and of
adequate size. Each inmate shall have at least 4 square metres and 10
cubic metres of space in the room.
(4) Every room ... must have daylight and
artificial light...
(5) Penitentiaries and prisons must be
equipped with sanitary facilities allowing inmates to meet their
physiological needs in clean and adequate conditions, whenever they
wish to do so.
(6) Inmates shall have drinking water at
their disposal at all times.”
HEALTH PROTECTION
Section 103
“(1) Inmates shall be provided with medical
treatment and regular care for their physical and mental health...”
CORRESPONDENCE
Section 124
“(1) Inmates shall have the right to unlimited
correspondence at their own expense.
...
(4) Inmates shall have the right to correspond with
their lawyer, the State authorities or international organisations
for the protection of human rights without any restrictions or
supervision of the content of such letters...”
- Rule
13 of the VaraZdin Prison House Rules (Kućni red za
zatvorenike i kaZnjenike Zatvora u VaraZdinu) provided that
letters addressed to lawyers, State authorities or international
organisations for the protection of human rights were not to be
opened by the prison authorities.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions in the two prisons where he
had been incarcerated. He relied on Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Complaint in respect of Lepoglava State Prison
- The
applicant firstly complained about the conditions in Lepoglava State
Prison, where he had been incarcerated for an unspecified period
during 1999 and 2000, and again from 17 May 2002 until 17 April 2003.
- The
Court notes that the applicant was released from Lepoglava State
Prison on 17 April 2003, whereas his first letter to the Court was
sent on 1 March 2004, more than six months after he had been
released.
- It
follows that this complaint has been lodged out of time and must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
B. Complaint in respect of VaraZdin Prison
- Secondly,
the applicant complained about the conditions in VaraZdin Prison,
where he had been incarcerated from 26 February until 12 July 2004.
In particular he complained about the overcrowded conditions in cell
no. 8, where he had been detained, and the lack of adequate medical
treatment for his psychiatric condition, namely PTSD.
- The
Government contested those submissions.
1. Admissibility
- The
Government requested the Court to declare the application
inadmissible for failure to exhaust domestic remedies. They submitted
that under section 17 of the Enforcement of Prison Sentences Act the
applicant could have lodged a complaint concerning the conditions of
his detention in cell no. 8 at VaraZdin Prison. However, the
applicant had not lodged a specific complaint with the judge
responsible for execution of sentences, but had mentioned the prison
conditions only sporadically in his application of 8 March 2004 by
which he had sought a transfer to another prison or the termination
of his prison sentence owing to the lack of adequate treatment for
PTSD in VaraZdin Prison.
- As
to the lack of adequate medical treatment for the PTSD, the applicant
had failed to lodge a constitutional complaint against the appellate
decision of 30 March 2004.
- The
applicant submitted that he had exhausted all remedies available
within the domestic legal system in respect of the alleged
violations.
- Contrary
to the Government's first contention regarding the overcrowded
conditions in cell no. 8, the Court considers that the applicant did
apply to a competent judge for the execution of sentences since from
the decision of 19 March 2004 by the relevant judge of the VaraZdin
County Court it transpires that the judge examined a complaint on
that subject. Moreover, the judge accepted the applicant's complaint
concerning the overcrowded conditions in cell no. 8 and ordered the
VaraZdin Prison authorities to take measures to provide him with
adequate conditions. The prison authorities, however, had already
removed the applicant from cell no. 8 on 11 March 2004 and placed him
in cell no. 5, where there was an area of 4.47 square metres per
prisoner. In this connection the Court notes that in its decision in
Štitić v. Croatia ((dec.), no. 9660/03, 9 November
2006) it found that the applicant, whose situation in prison had been
remedied by a decision of a judge responsible for execution of
sentences and who, following such a decision, had been transferred to
an adequate cell, could have brought a civil action against the State
claiming damages for the suffering hitherto sustained. Whilst the
institution of civil proceedings for damages in itself could not be
regarded as an effective remedy for addressing adverse prison
conditions, such proceedings in combination with an urgent decision
of a judge responsible for execution of sentences, with an immediate
effect on the actual conditions of an individual applicant, did
satisfy the requirements of effectiveness. Since the applicant in
that case had failed to institute civil proceedings against the
State, his complaint under Article 3 of the Convention concerning the
prison conditions was declared inadmissible for non-exhaustion of
domestic remedies.
- The
Court sees no reason to take a different stance in the circumstances
of the present case. It follows that in respect of his complaint
concerning the overcrowded conditions in cell no. 8 the applicant has
not exhausted domestic remedies and that this complaint must
therefore be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
- It remains to be determined whether the applicant
exhausted domestic remedies in respect of his complaint concerning
the allegedly inadequate medical treatment for his PTSD.
- The
Court observes that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness.
It is incumbent on the Government claiming non-exhaustion to satisfy
the Court that the remedy was an effective one available in theory
and practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success. (see, among other authorities, Akdivar and Others
v. Turkey, judgment of 16 September 1996, Reports
of Judgments and Decisions 1996-IV, pp. 1210 and 1211, §§ 65
and 68).
- Turning
to the present case, the Court observes that the established practice
of the Constitutional Court is to declare inadmissible constitutional
complaints which do not concern the merits of a given case. Having
regard to such a practice and the failure of the Government to
produce before the Court any case-law supporting their argument
concerning the sufficiency and effectiveness of that remedy, and
leaving aside the question of the adequacy of a constitutional
complaint as a remedy capable of providing redress in respect of the
applicant's complaint, the Court concludes that a constitutional
complaint about the lack of adequate medical treatment in prison is
not a remedy whose existence has been established with sufficient
certainty.
- The
Court finds that the applicant, by complaining to the competent judge
for the execution of sentences and appealing in respect of that
judge's decision against him, made use of all the remedies that were
at his disposal in respect of his complaint concerning the inadequate
medical treatment for his PTSD while serving his prison sentence in
VaraZdin Prison. Accordingly, this complaint cannot be dismissed for
failure to exhaust domestic remedies.
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- As
to the merits of the applicant's complaint concerning the lack of
adequate medical treatment for his PTSD, the Government submitted
that the applicant had been sent to Zagreb Prison Hospital's
psychiatric ward. However, he himself had requested to be returned to
prison and had refused consultation with the prison doctor and the
psychiatrist from Zagreb Prison Hospital, insisting on having therapy
with a specific psychiatrist, which the State was not obliged to
provide. Upon his return to VaraZdin Prison, the applicant had
regularly received drugs prescribed for his condition and his mental
health had not deteriorated during his prison term.
- The
applicant argued that he had seriously suffered as a result of the
lack of adequate medical treatment for his psychiatric condition.
- The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is, in the nature of things, relative; it
depends on all the circumstances of the case (see Vilvarajah and
Others v. the United Kingdom, judgment of 30 October 1991, Series
A no. 215, p. 36, § 107).
- The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his liberty
may often involve such an element. Under this provision the State
must ensure that a person is detained in conditions which are
compatible with respect for his human dignity, that the manner and
method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands
of imprisonment, his health and well-being are adequately secured
(see Kudła v. Poland [GC], no. 30210/96, §§
93-94, ECHR 2000-XI).
- The
Court firstly notes that the CPT report, issued after the visit to
Zagreb Prison Hospital in 1998, indicates that psychiatric treatment
was limited to pharmacotherapy and that there were no rehabilitative
or other therapeutic activities (occupational therapy, group therapy,
individual psychotherapy, etc.). The Court notes that the Government
did not provide information indicating any improvement in this
respect and acknowledged the lack of such therapeutic options in
VaraZdin Prison or any other prison in Croatia. It is undisputed that
the applicant received prescription drugs only for his psychiatric
condition.
- The
Court finds it regrettable that the Croatian authorities have not yet
provided adequate treatment for prisoners suffering from PTSD, a very
serious and damaging psychiatric condition. However, in relation to
the circumstances of the present case the Court notes that the
applicant was incarcerated for a relatively short period of four
months and eighteen days and that, apart from a fourteen-day
placement in cell no. 8, he did not complain of the general living
conditions in VaraZdin Prison. Furthermore, there is no indication
from the documents submitted by the applicant that the conditions of
his detention had led to a deterioration of his mental health. The
lack of additional therapeutic treatment for PTSD does not seem to
have had such serious effects on his mental health as to be
classified as inhuman or degrading and hence to fall within the scope
of Article 3.
- In
conclusion, the Court considers that there has been no breach of
Article 3.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further alleged that the prison authorities had opened his
correspondence with the Court. He relied on Article 8 of the
Convention which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government firstly argued that the applicant had failed to exhaust
domestic remedies because he had not addressed this complaint to the
domestic authorities such as the VaraZdin Prison administration or
the judge responsible for the execution of sentences. They further
argued that the applicant had not specified the events of which he
was complaining.
- The
applicant made no comments on the Government's observations on this
point.
- The
Court notes that the applicant did not address a complaint concerning
the opening of his correspondence with it to any domestic authority,
although under section 15(2) of the Enforcement of Prison Sentences
Act he was able to lodge such a complaint with either the VaraZdin
Prison governor, a judge responsible for the execution of sentences
or the Head Office of the Prison Administration.
52. It
follows that in respect of this complaint the applicant has not
exhausted domestic remedies and that therefore this complaint must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 1 of the Convention
about the unfairness of the criminal proceedings against him and
under Article 7 of the Convention, without further substantiating
this complaint.
- In
the light of all the material in its possession, and in so far as the
matters complained of were within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of any of the above Articles of the Convention. It
follows that these complaints are inadmissible under Article 35 §
3 as being manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of
adequate medical treatment for the applicant's PTSD while he served
his sentence in VaraZdin Prison admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention;
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
