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FIRST
SECTION
CASE OF ŠTITIĆ v. CROATIA
(Application
no. 29660/03)
JUDGMENT
STRASBOURG
8
November 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 Štitić 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,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29660/03) 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 Vladimir Štitić
(“the applicant”), on 1 September 2003.
- The
applicant, who had been granted legal aid, was represented by Mr D.
Plavec, a lawyer practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- The
applicant alleged, in particular, that two sets of disciplinary
proceedings against him, one conducted in Lepoglava State Prison, and
the other in Gospić Prison, had been unfair, that the general
conditions in Gospić Prison and the lack of adequate medical
care for an injury he had sustained there had amounted to degrading
treatment, that his right to respect for his correspondence had been
violated and that he lacked an effective remedy in respect of his
Article 3 complaints.
- On
9 November 2006 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
fairness of the disciplinary proceedings conducted against the
applicant in Lepoglava State Prison and in Gospić Prison, the
complaint concerning the general conditions in Gospić Prison and
the alleged lack of adequate medical care for his injury, and the
complaints concerning the applicant's right to respect for his
correspondence and the lack of an effective remedy in respect of his
Article 3 complaints to the Government. 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 1967 and is presently serving a prison term in
Šibenik Prison.
- Following
a series of criminal convictions for drug abuse, the applicant was
sent to serve the sentence in Lepoglava State Prison (Kazneni
zavod Lepoglava) on 11 November 2002. On 29 July 2004 he was
transferred to Gospić Prison.
A. Disciplinary proceedings against the applicant
1. In Lepoglava State Prison
- While
the applicant was serving a prison term in Lepoglava State Prison,
the prison authorities instituted disciplinary proceedings against
him on an unspecified date. The hearings were held on 10 and 13
October 2003. Both the applicant and his counsel were present at the
hearings. The applicant and four witnesses gave evidence in person.
In the Head of the Disciplinary Proceedings' decision of 14 October
2003 it was established that on 19 July 2003 the applicant had held
closed the door of cell no. 9 and had thus prevented a member of the
prison staff from entering the cell and performing his duties. The
applicant's conduct was found to be in breach of section 145 §
3(10) of the Enforcement of Prison Sentences Act (Zakon o
izvršavanju kazne zatvora) and he was sentenced to seven
days' solitary confinement suspended for three months. The decision
was served on the applicant on 17 October 2003 at 2.45 p.m. It was
also served on his counsel on an unspecified date. The applicant's
counsel lodged an appeal against the decision on Monday, 20 October
2003.
- In
a decision of 27 October 2003 the VaraZdin County Court judge
responsible for the execution of sentences declared the appeal
inadmissible as being out of time. The judge held that the time-limit
for an appeal was forty-eight hours and that the time-limit had
expired on 19 October 2003 at 2.45 p.m. despite the fact that this
day had been a Sunday. The time-limit could not be extended to the
first working day, since it had been fixed in hours.
2. In Gospić Prison
- During
his stay in Gospić Prison the prison authorities opened
disciplinary proceedings against the applicant. The prison
authorities found that on 16 August 2004 the applicant had attempted
to smuggle illegal drugs into the prison via a letter sent to him by
his girlfriend, which constituted a disciplinary offence under
section 145 (3)(11) of the Enforcement of Prison Sentences Act. In
his decision of 2 November 2004 the Head of Disciplinary Proceedings
imposed on the applicant a disciplinary measure consisting of a
restriction on his movement inside the prison and frequent contacts
with the outside world for a period of three months, including a ban
on receiving postal parcels, starting from 2 November 2004.
- In
an appeal of 16 November 2004 the applicant, inter alia,
alleged that he had not attended the final hearing before the prison
disciplinary authorities because his lawyer had not been present. The
applicant also alleged that the notes of that hearing had not been
served on him. He further stated that his counsel would elaborate on
these issues in a separate appeal. On 16 November 2004 counsel lodged
a separate appeal whereby he contested the findings of the
applicant's guilt and the severity of the disciplinary measure
imposed. On 18 November 2004 the Gospić County Court judge
responsible for the execution of sentences dismissed the appeal. The
decision analysed in some detail the evidence presented in the
disciplinary proceedings but made no mention of the procedural
defects complained of by the applicant.
B. The applicant's stay in Gospić Prison
1. General conditions of the applicant's stay in Gospić
Prison
(a) The applicant's submissions
- The
applicant submitted that he had firstly been put in cell no. 5 in
Unit 1. However, later on he had been moved to Unit 2. He alleged
that the room had been very damp, and the mattresses old and torn so
that bare wire stuck out. The bed sheets and pillowcases had been
dirty and the blankets old and foul smelling. No daylight entered the
cell and the electric light had to be switched on all day. He had
been locked in his cell for twenty-one hours per day, with no contact
with other prisoners or the outside world. He had been allowed two
one-hour walks and one hour of exercise in a gym per day, both
without the presence of any other prisoner. The rest of the time he
had had to spend locked alone in his cell. He had not had regular
access to a bathroom or running water and his access to sanitary
facilities had been left to the discretion of the prison guards. The
heating had been inadequate and the food of low quality. No
toiletries had been provided to the applicant and no permanent doctor
had been on duty in the prison. Only one doctor (a paediatrician) had
come once in a while for an hour at a time.
(b) The Government's submissions
- According
to the Government, the main building of the Gospić Prison was
built in 1878 and renovated in 1995. It comprised two units. The
first (“Unit 1”) consisted of five-bed cells and the
other (“Unit 2”) of two-bed cells, each equipped with a
toilet. Inmates shared a communal bathroom. Unit 1 had a communal
living-room. Disinfection and rat extermination were performed
regularly. Inmates' clothes and bed sheets could be washed in the
prison laundry every day. The bed sheets were changed once a week.
- On
29 July 2004 the applicant had arrived at Gospić Prison. He had
been put in Unit 1, under the “semi-open” prison regime
until 24 September 2004 when he had been moved to Unit 2, under a
higher security regime, to a cell measuring 3.75 x 3.5 metres and
sanitary facilities measuring 2 x 1.6 metres, which he had shared
with another inmate. In November 2005 he had been moved back to Unit
1 to a cell measuring 7.15 x 3.7 metres with sanitary facilities
measuring 1.6 x 1.5 metres, which he had shared with three to four
inmates at times. He had stayed there until 17 March 2006 when he had
been moved back to Unit 2 due to an incident involving a fight with
another inmate. He had stayed there until May 2006 when he had been
transferred to Pula Prison. During his stay in Unit 2 the applicant
had been locked in his cell save for one hour in the mornings when he
had been allowed to go out in the courtyard and for two hours between
8 and 10 p.m. when he had been allowed to watch television, read or
play games in a common room. During his stay in Unit 1 the applicant
worked for four hours per day.
2. Medical assistance provided to the applicant
(a) The applicant's submissions
- According
to the applicant, on 17 March 2005 he had been injured by another
prisoner who had struck him twice on the head. He had been taken to a
doctor to whom he had complained of general sickness, dizziness and
heavy thirst. However, the doctor had only prescribed painkillers and
had not made any further examinations. The applicant had asked that
an X-ray examination be carried out at his own expense, but this had
been refused. He further alleged that he had a bruise under his left
eye.
(b) The Government's submissions
- According
to the Government the applicant had been seen by the prison doctor
the very same day and the following day. The doctor had prescribed
painkillers. Following the applicant's further complaints of
backache, he had been taken to the Gospić General Hospital and
seen by a specialist. An X-ray examination had been carried out but
no fractures had been identified. The applicant had been prescribed
further painkillers to be taken orally and a soothing gel. The
Government submitted a copy of the medical report from the Gospić
General Hospital to confirm their submissions.
3. Remedies used by the applicant
- On
14 September 2004 the applicant petitioned the Gospić County
Court judge responsible for the execution of sentences, complaining
about the prison conditions and also alleging that a postal parcel
sent to him by his parents on 30 August 2004, containing three
cartons of cigarettes, two magazines on motor cars and one notebook,
had never been delivered but had instead been returned to his
parents, who had informed the applicant about it.
- On
21 September 2004 the judge requested the Gospić Prison
authorities to comment on the complaint concerning the alleged
non-delivery of the parcel. In his letter to the prison authorities
of 24 September 2004, the judge noted that a prison governor was
allowed to temporarily prohibit a prisoner from receiving parcels for
health and security reasons and that the prisoner in question should
be informed about such a decision and the reasons for it. The
applicant received a copy of the letter.
- The
applicant again petitioned the Gospić County Court judge
responsible for the execution of sentences on 21 October 2004,
repeating his complaints about the prison conditions and further
asserting that six to eight letters he had sent to various persons
had never been delivered. The judge replied to the applicant's
allegations by letter of 8 November 2004 stating that the Gospić
Prison authorities had informed him that all his letters had been
properly forwarded and instructed the applicant to send future
letters via registered mail only. As to the applicant's complaints
concerning the prison conditions, the judge expressly stated that he
had no jurisdiction to supervise the running of prisons.
- Following
the incident of 17 March 2006, the applicant was moved back to Unit
2, and the Prison Governor ordered that disciplinary proceedings be
instituted against him. On an unspecified date the applicant appealed
against that decision, alleging that he had been attacked by another
inmate who had struck him twice on the head. The applicant further
complained that the medical assistance provided to him had been
insufficient since the doctor had only prescribed him painkillers and
had not made any further examinations. His request that an X-ray
examination be carried out at his own expense had been refused. On 23
March 2006 the Gospić County Court judge responsible for the
execution of sentences dismissed the applicant's appeal on the ground
that the decision to place the applicant under the “closed
prison regime” had been based in law and was a consequence of
his conduct, which had endangered the order and security in the
prison. No comment was made about the applicant's allegations
concerning the lack of adequate medical assistance.
- The
applicant appealed against the judge's decision on 27 March 2006 to a
three-judge panel of the Gospić County Court. In his appeal he
complained about the conditions in Unit 2 (see paragraph 11 above).
The panel dismissed the applicant's appeal on 28 March 2006 on the
ground that the only way to prevent further unacceptable behaviour on
his part had been his isolation. They made no remarks concerning the
applicant's complaint about the conditions in Unit 2.
II. RELEVANT DOMESTIC LAW
- Article
23 of the Croatian Constitution (Ustav Republike Hrvatske)
provides:
“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
about 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 lodge 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.”
PROCEDURE FOR PERSONAL OBJECTS
Section 60
“...
(3) Objects suspected of being connected to a criminal
offence shall be forfeited and a record thereof drawn up. These
objects shall be handed over to the competent authority. Objects
suspected of being designed to facilitate escape from a prison or
endangering order and security and objects that may endanger health
shall be forfeited, destroyed or handed over to the competent
authority. A record of these acts shall be drawn up.”
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 CARE
Section 103
“(1) Inmates shall be provided with medical
treatment and regular care for their physical and mental health ...”
OBLIGATORY MEDCIAL EXAMINATION
Section 104
“...
(2) A doctor shall examine a sick or injured inmate ...
and undertake all measures necessary to prevent or cure the illness
and to prevent deterioration of the inmate's health.”
SPECIALIST EXAMINATION
Section 107
“(1) An inmate has the right to seek a specialist
examination if such an examination has not been ordered by a prison
doctor.
...”
POSTAL PARCELS
Section 126
“(1) An inmate has the right to receive a postal
parcel containing authorised items at least once a month and during
public holidays.
(2) The sender shall enclose a list of contents with the
parcel.
(3) The parcel shall be opened and examined by a prison
official in the presence of the inmate concerned.
(4) Unauthorised, stale and dangerous items shall be
treated in the manner prescribed by section 60 (3) of this Act.
(5) The Prison Governor may temporarily ban reception of
parcels for reasons of health or safety, of which the inmate
concerned shall be informed. The inmate has the right of appeal to a
judge responsible for the execution of sentences. The appeal does not
have suspensive effect.”
DISCIPLINARY OFFENCES, MEASURES AND PROCEEDINGS
Section 145
“...
(2) Minor disciplinary offences are:
...
10) preventing an official or any other person involved
in the implementation of the programme of execution [of prison
sentences] from performing their duties;
...
(3) Grave disciplinary offences are:
...
11) possession or intake of any narcotic or psychoactive
substance;
...”
DISCIPLINARY MEASURES
Section 146
“(1) Disciplinary offences are punishable with
disciplinary measures.
(3) Disciplinary measures are:
1) an admonition;
2) restriction or prohibition on using money inside the
prison for up to three months;
3) restriction or temporary deprivation of some or all
privileges enumerated in sections 129 and 130 of this Act;
5) solitary confinement for up to twenty-one days during
free time or during night and day;
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the general conditions in the Gospić
Prison and alleged that the prison authorities had failed to secure
him adequate medical care after he had sustained injuries to his head
caused by another inmate on 17 March 2006. 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government requested the Court to declare these complaints
inadmissible for failure to exhaust domestic remedies. They submitted
that the 1999 Enforcement of Prison Sentences Act envisages a number
of remedies for the protection of the rights of persons deprived of
liberty, judicial protection against proceedings and decisions of the
prison administration included. The applicant should have firstly
addressed his complaints to the prison administration. Those
complaints should have been clearly specified. The applicant had,
however, addressed them directly to a judge responsible for the
execution of sentences. The judge instructed the applicant to firstly
make his complaints to the prison administration. Furthermore,
assuming that the applicant's letter to the judge responsible for the
execution of sentences and the judge's letter in reply might be
regarded as first-instance proceedings, the applicant could have
lodged an appeal with a three-judge panel of the competent County
Court. Finally, the applicant could have filed a constitutional
complaint in respect of the prison conditions and all the other
decisions taken in any of the disciplinary proceedings against him.
- The applicant submitted that he had exhausted all
remedies available within the domestic legal system in respect of the
alleged violations.
- As to the remedies available to the applicant under
the Enforcement of Prison Sentences Act, the Court notes that section
5 (2) of that Act clearly provides that 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 of the Ministry of Justice. It follows that the
applicant could have addressed his complaints to any of these
authorities. In fact, he chose to address his complaints to a judge
responsible for the execution of sentences. In the Court's view this
choice was in conformity with the domestic legislation. However, the
judge did not institute any proceedings upon the applicant's
complaint nor did he issue a decision upon it. Instead, he replied to
the applicant by letters, the first of 24 September 2004 and the
second of 8 November 2004. As to the Government's contention that the
applicant could have lodged an appeal against the decision of the
judge responsible for the execution of sentences, the Court notes
that the latter did not issue any decision and that it is not
possible to lodge an appeal against a letter.
- As
to the possibility of lodging a constitutional complaint about the
conditions in prison, 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 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. 1210-11, §§ 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 prison conditions is not a remedy whose existence
has been established with sufficient certainty.
- The
Court finds that the applicant, by complaining to the competent judge
responsible for the execution of sentences, made adequate use of the
remedies provided for in the domestic law that were at his disposal
in respect of his complaints concerning the inadequate prison
conditions and the lack of adequate medical assistance. Accordingly,
these complaints cannot be dismissed for failure to exhaust domestic
remedies.
- The Court notes that theses complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
A. The parties' submissions
- The
Government submitted that each cell in Gospić Prison had a
toilet and each section had a communal bathroom. Therefore, the
applicant's allegation that he had been accommodated in a cell
without a toilet was unfounded. The bed sheets had been changed once
a week. In the Government's opinion that was sufficient and the
applicant's allegations about the dirty sheets were therefore also
unfounded. As to the food provided, the applicant's complaint was of
a general nature and unsubstantiated. The Government asserted that
the food was prepared according to a normal diet. A representative of
prisoners was included in drawing up the menu. There had been no
complaints from other inmates about the food quality and therefore
the applicant's complaint in that connection was also unfounded. As
regards toiletries, the Government acknowledged that these had not
been provided to the applicant. However, during his stay in Unit 1 of
Gospić Prison he had worked and received some income, and
therefore had been able to purchase the necessary toiletries. As to
the applicant's general complaints about the lack of adequate medical
care in prison, the Government submitted that a doctor had been on
call every day. As to the applicant's specific allegations that he
had not received adequate medical assistance for his injury, the
Government emphasised that the medical records submitted showed that
the applicant had been seen by a doctor on the same day and adequate
treatment had been prescribed. The doctor had seen the applicant
again the very next day and three days after the incident the
applicant had been sent to a hospital to be examined by a specialist.
On that occasion an X-ray examination had also been carried out and
it had showed no fractures.
- The
applicant maintained his allegations. He claimed that his description
of the conditions of detention and lack of medical assistance was
accurate (see paragraphs 11, and 14 above).
B. The Court's assessment
(a) Scope of the issues for consideration
- The
Court notes that the applicant's complaints under Article 3 of the
Convention mainly concern two issues:
- first,
whether the conditions of the applicant's detention were compatible
with that provision; and
- second,
whether the applicant was given adequate medical care for the injury
sustained on 17 March 2006.
(b) General principles enshrined in the
case-law
- As
the Court has held on many occasions, Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy [GC], no. 26772/95, §
119, ECHR 2000-IV).
- The
Court further reiterates that, according to its case-law,
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3 of the Convention. The assessment
of this minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and
state of health of the victim. Furthermore, in considering whether a
treatment is “degrading” within the meaning of Article 3,
the Court will have regard to whether its object is to humiliate and
debase the person concerned and whether, as far as the consequences
are concerned, it adversely affected his or her personality in a
manner incompatible with Article 3 (see Peers v. Greece,
no. 28524/95, §§ 67-68, 74, ECHR 2001-III, and Valašinas
v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
- 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 by,
among other things, providing him with the requisite medical
assistance (see Kudła v. Poland [GC], no.
30210/96, §§ 92-94, ECHR 2000-XI, and McGlinchey and
Others v. the United Kingdom, no. 50390/99,
§ 46, ECHR 2003 V).
(c) Application in the present case
(i) General conditions in Gospić
Prison
- The
Court notes that in the present case the parties have disputed the
actual conditions of the applicant's detention in Gospić Prison.
However, in the present case the Court does not consider it necessary
to establish the truthfulness of each and every allegation of the
parties, because it may find a violation of Article 3 on the basis of
the facts that have been presented or undisputed by the respondent
Government, for the following reasons.
- The
Court notes that it transpires from the Government's observations
that in a period of about fifteen months (from 29 September 2004
until November 2005 and again from March to May 2006) the applicant
was held in Unit 2 of Gospić Prison where he had been locked in
a cell with another inmate save for one hour in the morning, when he
had been allowed to go outside, and two hours in the evening, when he
had been allowed to watch television, read or play games.
Furthermore, the Government did not dispute the applicant's
allegations that the cell had been very damp, the mattresses old and
torn so that bare wire stuck out, the heating inadequate and the cell
devoid of natural light. It is also undisputed that the applicant
received no toiletries.
- The
Court does not find it necessary to examine further the conditions of
the applicant's detention as the above considerations are sufficient
to find a violation of Article 3 of the Convention.
- The
Court accepts that in the present case there is no indication that
there was a positive intention of humiliating or debasing the
applicant. However, although the question whether the purpose of the
treatment was to humiliate or debase the victim is a factor to be
taken into account, the absence of any such purpose cannot exclude a
finding of violation of Article 3 (see Peers, cited
above, § 74, and Romanov v. Russia,
no. 63993/00, § 80, 20 October 2005). The Court
considers that the above described conditions of detention in which
the applicant was held for about fifteen months, must have had a
harmful effect on the applicant's human dignity. In the light of the
above, the Court finds that the applicant's conditions of detention,
in particular the fact that he had been locked in a damp cell with no
access to natural light for about twenty hours per day must have had
a detrimental effect on the applicant's well-being and that these
conditions, combined with the length of the period during which the
applicant was detained in such conditions, amounted to degrading
treatment.
- Accordingly,
there has been a violation of Article 3 of the Convention concerning
the applicant's detention in Unit 2 of Gospić Prison.
(ii) Lack of adequate medical assistance
for the applicant's injury
- The
Court notes at the outset that it is undisputed that the applicant
was injured on 17 March 2005. The parties disagree, however, over
whether the medical assistance provided to the applicant following
the injury was adequate and sufficient. The Court observes that the
medical records submitted show that on the very same day the
applicant saw a prison doctor and complained of dizziness and a
headache. The doctor prescribed painkillers. The same doctor saw the
applicant again the next day. On 20 March 2005 the applicant was
taken to the Gospić General Hospital since he complained of
backache. An X-ray examination was carried out and it showed no
fractures. The applicant was prescribed further painkillers and a
soothing gel.
- In
the Court's view the medical assistance provided to the applicant was
adequate and sufficient. In this respect the Court points out in
particular that the applicant complained that he had requested an
X-ray examination, which had been denied to him. However, the medical
records clearly show that an X-ray examination was carried out. Since
no fractures were identified the treatment was confined to
painkillers, which appears adequate, particularly bearing in mind the
fact that the applicant made no further complaints about his health.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been no violation of Article 3 of the
Convention concerning the medical assistance provided to the
applicant for the injury sustained on 17 March 2005.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant made two separate complaints concerning two different sets
of disciplinary proceedings against him. The applicant firstly
complained about the fairness of the disciplinary proceedings
conducted against him in Lepoglava State Prison. He alleged in
particular that the time-limit for an appeal against the prison
authorities' decision imposing disciplinary sanctions on him, being
forty-eight hours only, had been too short, and further that the
VaraZdin County Court judge responsible for the execution of
sentences had erred in his reasoning that a time-limit fixed in hours
and expiring on a Sunday did not have to be extended until the first
working day. The applicant also complained that in the disciplinary
proceedings conducted against him by the Gospić Prison
authorities for the alleged possession of illegal drugs, he had not
attended the final hearing because his defence lawyer had not been
present. The notes on the hearing had not been served on him. The
applicant complained that although he had raised the same issues in
his appeal against the prison authorities' decision of 2 November
2004 imposing a disciplinary sanction on him, the Gospić County
Court judge's decision of 18 November 2004 had not made any reference
to these complaints.
The
applicant relied on Article 6 § 1 of the Convention, the
relevant parts of which read as follows:
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
- The
Government argued that under domestic law the proceedings in question
undoubtedly fell within the scope of disciplinary matters. The
disciplinary offences enumerated in section 145 of the Enforcement of
Prison Sentences Act were a mixture of illegal acts that might amount
to violations of the prison disciplinary rules and also those that
might amount to criminal offences. As regards the sanctions
prescribed, they were purely disciplinary in nature. In conclusion,
they submitted that Article 6 was not applicable to the disciplinary
proceedings conducted against the applicant.
- In
the alternative and as regards the proceedings conducted in
connection with the offence committed during the applicant's stay in
Lepoglava State Prison, they maintained that the applicant had not
shown that either he or his counsel had attempted to lodge an appeal
on a Sunday. The applicant had been in Lepoglava State Prison, where
he could have handed his appeal to a member of the prison staff at
any time. Under domestic law this would have sufficed to comply with
the prescribed time-limit.
- As
regards the proceedings conducted against the applicant on charges of
possession of drugs in Gospić Prison, the Government contended
that the decisions taken in those proceedings had been adequately and
sufficiently reasoned. They further stressed that in his appeal the
applicant had only briefly mentioned that he had not been present at
the final hearing and stated that his counsel would elaborate on this
issue in a separate appeal. However, counsel had not done so.
- The
applicant made no submissions on the applicability of Article 6 but
reiterated his initial complaints as regards the fairness of both
sets of disciplinary proceedings against him.
- The
Court firstly has to examine the issue of applicability
of Article 6 to both sets of proceedings. The Court
reiterates that under its constant case-law Article 6 of the
Convention does not apply in principle to disciplinary proceedings,
unless, having regard to the autonomy of the concept "criminal
charge", a disciplinary offence belongs to the criminal sphere
(see Engel and Others v. the Netherlands, judgment of 8 June
1976, Series A no. 22, pp. 33-35, § 80-82; Campbell and Fell
v. the United Kingdom, judgment of 28 June 1984, Series A no. 80,
pp. 34-38, §§ 66- 73; and Ezeh and Connors v. the United
Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR
2003-X).
- In
order to determine whether Article 6 § 1 is applicable under its
"criminal" head, the Court has to have regard to the three
alternative criteria laid down in its case-law, namely the legal
classification of the offence under domestic law, the nature of the
offence and the nature and degree of severity of the penalty (see
Campbell and Fell, cited above, pp. 34 et seq., §§
67 et seq.).
- In
the first-mentioned respect it is clear that, in Croatian law, the
offences with which the applicant was charged both in Lepoglava State
Prison and in Gospić Prison belong to disciplinary law.
- In
respect of the Lepoglava State Prison proceedings, the Court notes
that Section 145 (2)(10) of the Enforcement of Prison Sentences Act
states that conduct of that kind on the part of a prisoner is a minor
disciplinary offence. The Court finds that this offence was
disciplinary in nature, given that it involved a violation of rules
governing the operation of the prison.
- As
to the penalty imposed the Court notes that the applicant was
punished with seven days' solitary confinement, which punishment was
to be implemented only if the applicant committed another
disciplinary offence within three months.
- The
Court recalls that in the Engel and Others judgment (cited
above, p. 35, § 82), it stated that deprivation of liberty
liable to be imposed as a punishment was, in general, a penalty that
belonged to the "criminal" sphere. However, in the present
case the legal basis for the applicant's deprivation of liberty was
his original conviction for criminal offences. Although the
disciplinary sanction added a new element – imposition of seven
days' solitary confinement – it did not in any way extend the
applicant's prison term. Furthermore, the seriousness of the sanction
was lessened by its conditional character. Therefore, the Court
considers that the penalty imposed was not of such nature and
severity that the matter would thereby have been brought within the
“criminal” sphere.
- In
respect of the proceedings conducted against the applicant in Gospić
Prison the Court notes that the applicant was charged with attempting
to introduce illegal drugs into the prison via a letter sent to him
by his girlfriend.
- As
to the nature of the offence, it is firstly to be noted that the
offence with which the applicant was charged belongs to disciplinary
law: section 145 (3)(11) of the Enforcement of Prison Sentences Act
states that conduct of that kind on the part of a prisoner is a grave
disciplinary offence. However, according to the Court's case law, the
indications so afforded by the national law have only relative value;
the very nature of the offence is a factor of greater importance (see
Campbell and Fell, cited above, p. 36, § 71).
- The
Court's case law affirms that it has to be borne in mind that
misconduct by a prisoner may take different forms; certain acts are
clearly no more than a question of internal discipline, whereas
others cannot be seen in the same light. Firstly, some matters may be
more serious than others. Secondly, the illegality of some acts may
not turn on the fact that they were committed in prison: certain
conduct which constitutes a disciplinary offence may also amount to
an offence under the criminal law. In the circumstance of the present
case, it corresponds to a crime of drug abuse under Article 173 of
the Croatian Penal Code which comprises also mere possession of the
illegal drugs.
- However,
the fact that the offence in question could have been the subject of
both criminal and prison disciplinary proceedings does not suffice
for the Court to conclude that Article 6 is applicable to these
proceedings. In this respect the Court notes that the national
authorities did not institute any criminal proceedings against the
applicant, but opted for disciplinary proceedings. Therefore, it is
necessary to turn to the third criterion: the nature and degree of
severity of the penalty that the applicant risked incurring (see
Engel and Others, cited above, pp. 34-35, § 82).
- The
Court notes that the sanction imposed restricted the applicant's free
movement inside the prison and his contact with the outside world for
a period of three months. In this respect the Court notes that at the
core of maintaining an adequate prison regime lies the need to impose
disciplinary sanctions for breaches of prison discipline. The Court
stresses the importance of preserving an effective system of order
and control in prison. The sanction imposed on the applicant for a
very serious breach of prison discipline did not extend the
applicant's prison term (see, a contrario, Ezeh and
Connors v. the United Kingdom [GC], nos. 39665/98
and 40086/98, ECHR 2003 X), nor did it seriously aggravate the
terms of the applicant's prison conditions. It restricted the
applicant's freedoms in prison for a limited period of time. In the
Court's view, this sanction stayed entirely within the “disciplinary”
sphere.
- Therefore,
the Court concludes that the penalty imposed was not of such nature
and severity that the matter would thereby have been brought within
the “criminal” sphere. Accordingly,
Article 6 of the Convention does not apply in the instant case.
63. It
follows that this part of the application is incompatible ratione
materiae with the
provisions of the Convention and therefore must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further made two complaints concerning his right to respect
for his correspondence. He firstly complained of the fact that a
postal parcel sent to him to Gospić Prison on 30 August 2004 by
his parents had never been delivered. Secondly, he complained that
some six to eight letters sent by him from the prison had never been
forwarded to the addressees. He relied on Article 8 of the
Convention, the relevant parts of which read as follows:
Article 8
“1. Everyone has the right to respect
for 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 contested these arguments.
(a) Postal parcel sent to the applicant by his parents
1. Admissibility
- 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.
2. Merits
- The
Government contended that the ban on receiving postal parcels for a
period of three months had been imposed by the prison authorities as
a disciplinary measure against the applicant for a grave breach of
the prison rules (smuggling of illegal drugs) and that there is no
indication that such an interference with the applicant's right to
respect for his correspondence had been disproportionate to the
legitimate aim pursued.
- The Court observes that on 2 November 2004 the
applicant was punished with a minor disciplinary reprimand –
restriction of movement inside the prison and contact with the
outside world for three months, which included the deprivation of the
right to receive parcels for the following three months (see
paragraph 9 above). The reason for that punishment, as confirmed
by the Gospić County Court, was the fact that the applicant had
attempted to smuggle illegal drugs into the prison in breach of
section 145 (3)(11) of the Enforcement of Prison Sentences Act. The
Court finds that this punishment constituted an interference with the
applicant's right to respect for his correspondence, within the
meaning of Article 8 § 1 of the Convention.
- The Court reiterates that any “interference by a
public authority” with the right to respect for correspondence
will contravene Article 8 of the Convention unless it is “in
accordance with the law”, pursues one or more of the legitimate
aims referred to in paragraph 2 of that Article and is “necessary
in a democratic society” in order to achieve them (see, among
many other authorities, the following judgments: Silver and Others
v. the United Kingdom, 25 March 1983, Series A no. 61,
p. 32, § 84; Campbell v. the United Kingdom,
25 March 1992, Series A no. 233, p. 16, § 34;
Niedbała v. Poland, no. 27915/95, § 78,
4 July 2000;and Klyakhin v. Russia, no. 46082/99,
§ 107, 30 November 2004).
- The
Court must first consider whether the interference was “in
accordance with the law”. This expression requires firstly that
the impugned measure should have some basis in domestic law; it also
refers to the quality of the law in question, requiring that it
should be accessible to the person concerned, who must moreover be
able to foresee its consequences for him, and be compatible with the
rule of law (see Kruslin v. France, judgment of 24 April
1990, Series A no. 176 A, p. 20, § 27;
Huvig v. France, Series A no. 176-B, p. 52, § 26; and
Dankevich v. Ukraine, no. 40679/98, § 152,
29 April 2003).
- The Court notes that the Enforcement of Prison
Sentences Act clearly provides that possession of drugs represents a
grave disciplinary offence and that disciplinary offences are
punishable, inter alia, with forfeiture of the right to
receive parcels for a period of up to three months. An inmate
punished with any of the disciplinary sanctions is able to lodge a
complaint with a judge responsible for the execution of sentences and
to appeal the judge's decision. The Act was published in the Official
Gazette. Therefore, the Court is satisfied that the domestic law at
issue in the present case was drafted with sufficient clarity and
precision so as to satisfy the requirement of being foreseeable, and
was furthermore accessible and appealable to a court. The
interference was thus compatible with the “lawfulness”
requirement in the second paragraph of Article 8. It is further
observed that the interference pursued the legitimate aim of the
prevention of disorder and crime.
- As
to the necessity of the interference, the Court considers that the
ordinary and reasonable requirements of imprisonment justify a system
of imposing disciplinary measures on inmates who breach the prison
rules. With that aim in mind, a measure imposing certain restrictions
of the prisoner's right to respect for his or her correspondence may
be called for and may not of itself be incompatible with the
Convention (see Silver and Others v. the United Kingdom,
Series A no. 61, judgment of 25 March 1983, p. 38, § 98, and, a
contrario, Jankauskas v. Lithuania, no. 59304/00, judgment
of 24 February 2005, §§ 21-22).
- As
to the present case the Court notes firstly that the measure in
question was applied in connection with finding the applicant guilty
of a very serious disciplinary offence, also amounting to criminal
activity (possession of illegal drugs) and that it lasted for a
limited period of time (three months). The Court notes, secondly,
that the applicant's complaints received a judicial review by the
Gospić County Court (see paragraph 10 above). Thirdly, the
applicant has failed to present any argument calling into question
the proportionality of the measure imposed. Fourthly, the penalty
imposed on the applicant was of a minor nature. In the specific
circumstances of the present case, the Court considers that the
authorities did not overstep their margin of appreciation in the
present case, and that the interference was proportionate and
necessary in a democratic society.
- There has thus been no breach of Article 8.
(b) Alleged failure of the prison authorities to
forward the applicant's letters to the addressees
- The
Government submitted that all letters handed by the applicant to the
prison authorities had been duly forwarded to a post office. They
further emphasised that the applicant had failed to produce any
details of the facts complained of.
- The
Court notes that the applicant failed to specify when and if the
letters had been handed to the prison authorities and to whom they
had been addressed. He also failed to provide any information on how
he had learned that the letters had not reached the addressees. In
these circumstances the Court considers that the alleged interference
has not been established with sufficient certainty.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that he had no effective remedy at his
disposal in respect of his complaint concerning the prison conditions
under Article 3 of the Convention, contrary to Article 13 of the
Convention which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- 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
- The
Government argued that under national law a number of remedies
provided for in the Enforcement of Prison Sentences Act were
available to persons deprived of liberty, such as filing a petition
with a prison administration, a judge responsible for the execution
of sentences or the Head Office of the Prison Administration.
Furthermore, the applicant could have lodged a constitutional
complaint.
- The
Court notes that under domestic legislation the applicant was able to
lodge a complaint concerning the conditions in prison and the lack of
adequate medical assistance and a complaint concerning the lack of
respect for his right to correspondence either with the prison
authorities, a judge responsible for the execution of sentences or
the Head Office of the Prison Administration, and that the applicant
actually made use of one of these possibilities, namely, he lodged a
complaint with the competent judge responsible for the execution of
sentences at the Gospić County Court.
- The
Court recalls that in its partial decision on admissibility in
respect of the present case (see Štitić v. Croatia
(dec.), no. 9660/03, 9 November 2006), it established that the
applicant, whose situation in Lepoglava State Prison had been
remedied by a decision of the VaraZdin County Court (Zupanijski
sud u VaraZdinu) 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.
- However,
as regards the applicant's complaints lodged on 14 September and
21 October 2004 with the Gospić County Court judge responsible
for the execution of sentences about the general conditions in Gospić
Prison (see §§ 16 and 18 above), the Court notes that in
his letter of 8 November 2004 the judge expressly stated that he had
no jurisdiction to supervise the running of prisons (see § 18
above).
- The
Court reiterates that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention
complaint and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
comply with their obligations under this provision (see Chahal v.
the United Kingdom, judgment of 15 November 1996, Reports
1996-V, pp. 1869-70, § 145). The remedy required by Article
13 must be “effective”, both in practice and in law.
However, such a remedy is required only for complaints that can be
regarded as “arguable” under the Convention (see
Metropolitan Church of Bessarabia and Others v. Moldova,
no. 45701/99, § 137, ECHR 2001-XII).
- In
the instant case, in view of the conclusion under Article 3 (see § 31
above), the Court considers that the applicant's complaint did raise
an issue of compliance with the Convention standards on the
conditions in which the applicant was held in Unit 2 of Gospić
Prison. The applicant could therefore have expected the Gospić
County Court judge responsible for the execution of sentences to deal
with the substance of his complaint and adopt a formal decision in
this respect, which the judge did not. Instead, he declined his
jurisdiction in the matter.
- Whilst
it is true that the fact that a remedy does not lead to an outcome
favourable to the applicant does not render a remedy ineffective (see
Kudła v. Poland [GC], no. 30210/96, § 157, ECHR
2000-XI), the Court concludes that the practice of the Gospić
County Court judge responsible for the execution of sentences in the
circumstances of the present case rendered an otherwise effective
remedy ineffective. This conclusion does not, however, call into
question the effectiveness of the remedy as such or the obligation of
an incarcerated person to petition a competent judge responsible for
the execution of sentences pursuant to sections 15 and 17 of the
Enforcement of Prison Sentences Act in order to exhaust domestic
remedies concerning complains about the conditions of imprisonment.
- However,
having regard to the circumstances of the present case, it follows
that there has been a violation of Article 13 of the Convention in
the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction or for any
costs and expenses incurred. Accordingly, the Court considers that
there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
conditions of the applicant's detention in Gospić Prison and the
alleged lack of adequate medical assistance for his injury as well as
the complaints concerning the violation of the applicants right to
respect for his correspondence in the part referring to the ban on
receiving postal parcels for a period of three months and the lack of
an effective remedy in respect of the complaint concerning the prison
conditions admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant's
detention in Unit 2 of Gospić Prison;
- Holds that there has been no violation of
Article 3 of the Convention on account of the alleged lack of
adequate medical assistance for the applicant's injury;
- Holds that there has been no violation of
Article 8 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
Done in English, and notified in writing on 8 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
