Rajko LALIC v Slovenia - 5711/10 [2011] ECHR 1620 (27 September 2011)

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Application no. 5711/10
Rajko LALIĆ against Slovenia
and 9 other applications
(see list appended)

The European Court of Human Rights (Fifth Section), sitting on 27 September 2011 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above applications lodged on the dates indicated in the annex,

Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, Mr Rajko Lalič, Mr Roman Tivadar, Mr Drago Prajner, Mr Albin BoZičnik, Mr Sašo Tuksar, Mr Jasmin Kostevc, Mr Zoran Dedić, Mr JoZe Kac, Mr Nebojša Šegota, and Mr Damir Glavica, whose birthdates are indicated in the annex, are Slovenian nationals. They were represented before the Court by Odvetniška DruZba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Zitko, State Attorney.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants served, or are currently serving, sentences in the closed section of Dob Prison. This prison, which is the largest in Slovenia, mainly accommodates adult male prisoners who have been sentenced to a term of imprisonment of no less than eighteen months. It has an official capacity of 233 inmates, but held 435 and 412 prisoners in 2009 and 2010 respectively. The closed section of the prison consists of four independent buildings (Blocks 1 to 4). Block 1 contains a reception area for new prisoners, hospital cells and cells subject to a stricter regime. Blocks 2, 3 and 4 contain large and small cells and are very similar in terms of their facilities and regime.

A typical large cell measures slightly less than 60 square metres and contains a bed, a wardrobe and a chair for each of the inmates, as well as a table and radiators. After obtaining prior approval, any inmate may also bring in a television, a cooker or other electronic devices, including a computer. The cells also have shades on the windows and a ceiling fan. It transpires from the prison plan that one wing typically contains two large cells. The cells share a hallway measuring about 40 square metres and a TV room measuring about 26 square metres. A lavatory, measuring about 9 square metres, is attached to each cell. It has a window measuring 140 x 80 centimetres. The lavatory contains two washbasins, a foot washbasin, a urinal and a shower with a partition, as well as a toilet, which is screened off in a separated area, the door to which can be locked. A typical large cell has three windows measuring 170 x 170 centimetres each. The TV room and hallway have the same number and size of windows. Inmates are free to open and close the windows. Smoking is prohibited in the cell but not in the hallway, which contains a smoke extraction machine.

1. Length and material conditions of detention in the applicants’ cells and auxiliary areas

The applicant was held in Dob Prison between 19 September 2007 and 11 February 2011. He was held in Unit 3 of the prison, in cell no. 6, which measured 59.25 square metres and accommodated fifteen prisoners. The personal space available to him was therefore almost 4 square metres.

Other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described above with regard to a typical large cell.

The applicant has been held in Unit 4 of Dob Prison since 5 January 2009. His term of imprisonment ends on 5 July 2012. Until 2 August 2010, the applicant was held in cell no 3, which measured 59.57 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 6, which measures 59.25 square metres and has accommodated fifteen inmates (3.9 square metres of personal space available to each inmate).

Other aspects of the conditions in the cells, lavatories and common areas are almost identical to those described above with regard to a typical large cell.

The applicant has been held in Block 4 of Dob Prison since 24 July 2007. His term of imprisonment ends on 13 September 2013. He has been held in cell no. 3, which measures 59.57 square metres and has accommodated seventeen inmates (3.5 square metres of personal space available to each inmate).

Other aspects of the conditions in the cell, lavatory and common areas are almost identical to those described above with regard to a typical large cell.

The applicant has been held in Dob Prison since 25 July 2007. His term of imprisonment ends on 4 November 2012. He has been held in Block 2, in cell no. 1, which measures 59.89 square metres and has accommodated sixteen inmates (3.7 square metres of personal space available to each inmate). However, during the period between 1 July and 7 December 2009 the applicant was placed under a stricter regime in Block 1 in cell no. 34, which measured 32.22 square metres and held four inmates (8 square metres of personal space available to each inmate).

As regards cell no. 1 in Block 2, other aspects of the conditions in the cell, lavatory and common areas are almost identical to those described with regard to a typical large cell. As regards cell no. 34 in Block 1, it had four windows measuring 170 x 130 centimetres each and access to a hallway of about 50 square metres. A lavatory, measuring about 6.5 square metres, was attached to the cell. It had a window of the same size as that of the cell and contained two wash basins and a shower with a partition, as well as a toilet in a separate closed area. As with all cells in Block 1, the inmates could upon prior approval bring in a television, a cooker or other electronic devices, including a computer.

The applicant was held in Block 4 of Dob Prison between 13 May 2009 and 7 September 2011. He was held in cell no. 8, which measured 58.94 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate).

Other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell.

The applicant was held in Block 2 of Dob Prison in the period between 23 July 2008 and 23 December 2009. Until 23 June 2009, he was held in cell no. 5, which measured 59.25 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 7/1, which measured 20.67 square metres and held four inmates (5.2 square metres of personal space available to each inmate).

As regards cell no. 5, other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. Cell no. 7/1 differed in that the inmates shared a lavatory, measuring about 9 square metres, with inmates from two smaller cells situated in the same wing, which also contained a common area of about 10 square metres to which all three cells had access. The cell had one window measuring 170 x 170 centimetres. There was no TV room available to inmates held in cell no. 7/1.

The applicant was held in Block 2 of Dob Prison between 9 June 2009 and 31 December 2010. Until 8 June 2010 he was held in cell no. 1, which measured 59.89 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 8/3, which was designated a special drug-free cell and which measured 20.67 square metres and accommodated four inmates (5.2 square metres of personal space for each inmate).

As regards cell no. 1, other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. Cell no. 8/3 differed in that the inmates shared the lavatory with inmates from four smaller cells situated in the same wing, which also contained a common area of about 10 square metres to which all five cells had access. The cell had one window measuring 170 x 170 centimetres. There was no TV room available to inmates held in cell no 8/3.

The applicant was held in Block 3 of Dob Prison in the period between 3 May 2006 and 3 August 2010. Until 7 August 2009 he was held in cell no. 2, which measured 59.89 square metres and held fourteen inmates (4.3 square metres of personal space for each inmate). Subsequently, the applicant was transferred to cell no. 7, which was designated a special drug-free cell and which measured 59.25 square metres and accommodated eleven inmates (5.4 square metres of personal space for each inmate).

Other aspects of the conditions in the cells, lavatories and common areas were almost identical as those described with regard to a typical large cell.

The applicant has been held in Block 3 of Dob Prison since 3 July 2008. His term of imprisonment ends on 15 November 2015. Until 2 June 2010 he was held in cell no. 3, which measured 59.89 square metres and held sixteen inmates (3.7 square metres of personal space for each inmate). Subsequently, the applicant was transferred to cell no. 9, which measures 33.23 square metres and has accommodated four inmates (8.3 square metres of personal space available to each inmate).

As regards cell no. 3, other aspects of the conditions in the cells, lavatories and common areas were almost identical to those described with regard to a typical large cell. As regards cell no. 9, it is situated in the non-smoking wing, in which smoking is also prohibited in the hallway. It has three windows measuring 160 x 100 centimetres each, access to a hallway of 54 square metres, a lavatory measuring 4.68 square metres and containing a toilet in an area separated by a door, two washbasins and a shower with a partition. The lavatory also has a window measuring 140 x 80 square metres.

The applicant has been held in Dob Prison since 23 August 2004. His term of imprisonment ends on 30 January 2013. Until 2 November 2005 he was held in Block 4 in cell no. 7, which measured 58.94 square metres and accommodated fifteen inmates (3.9 square metres of personal space for each inmate). In the period between 3 November and 1 December 2005, he was held in Block 1 in cell no. 20, where he was undergoing detoxification as part of a programme of treatment to which he had agreed. The cell, in which he was detained by himself, measured 7.39 square metres. Subsequently, the applicant was transferred to cell no. 6 in Block 4, which measures 59.25 square metres and has accommodated fifteen inmates (3.9 square metres of personal space for each inmate).

As regards cells nos. 6 and 7, other aspects of the conditions in the cells, lavatories and common areas were almost identical to those described with regard to a typical large cell. As regards cell no. 20 in Block 1, it had one window measuring 100 x 130 centimetres and contained a bed, wardrobe, table and a chair, as well as a toilet and a basin. The applicant had access to a shower room measuring about 7 square metres, which he shared with thirteen inmates held in other single-occupancy cells.

According to the Prison Rules, detainees are woken at 6 a.m. and lights out is at 9.45 p.m. However, according to the Government, cells are only locked at 11 p.m., remaining so until 6 a.m. in all blocks with the exception of Block 1, where cells are locked all the time. Moreover, the cells in Blocks 2, 3, and 4 remain open longer during the weekend in order to allow inmates to continue watching TV late in the evening. When the cells are unlocked, inmates can freely move around all areas to which they have access, namely the hallway, TV room, lavatory and other cells in the same wing.

The inmates in Blocks 2, 3, and 4 may spend two hours per day during the week and three hours per day during weekends in the outdoor yard, which, prior to 10 November 2009, measured 8,000 square metres. Afterwards, due to construction work on new prison facilities, the outdoor area available to inmates has been reduced to 1,880 square metres. However, the prisoners have been, since the aforementioned date, using the yard in shifts. The yard includes, inter alia, football and basketball courts, benches, shower facilities with warm water and a small roof measuring 12 square metres.

In Block 1 the cells are locked throughout the day. The inmates are allowed to leave their cells for only two hours a day for outdoor exercise and three hours a week for indoor exercise. The outdoor yard measures 1,379 square metres and is divided into four areas, each of which may be used by two inmates simultaneously. 66 square metres of the yard is covered by a roof. The yard includes a small basketball court, benches and tables.

Each block of the prison also has a gym, measuring about 60 square metres. In Block 1 every prisoner may, in principle, use the gym for three hours a week. In other blocks prisoners may use the gym every day upon their request.

The prison provides courses for, inter alia, primary education and secondary education, such as food preparation and catering classes. Prisoners also have the opportunity to work at the Pohorje Public Institute (agricultural activities and metal work) or within the prison. If unfit for work, prisoners may attend work therapy sessions. In 2008 and 2009 about 180 prisoners worked in the aforementioned institute and about fifty worked within the prison. About forty and fifty prisoners, respectively, participated in work therapy.

According to the information submitted by the Government, the applicants Mr Lalić and Mr Tivadar worked at the Pohorje Public Institute for eight hours per day since 19 November 2007 and 12 January 2009 respectively. Mr Lalić attended food preparation and catering courses since February 2008. Mr Tuksar worked for the aforementioned institute for four hours per day since 5 October 2009 and had taken yoga classes in the prison. Mr BoZičnik took part in leisure activities (playing the accordion) every day. Mr Dedić attended primary education classes in the prison for two hours per day since October 2009. Mr Kac worked in the prison bakery for eight hours per day in the period between 13 June 2006 and 3 August 2010. Mr Šegota participated in leisure activities (clay modelling) in the period between 26 November 2008 and 12 January 2009 once a week for three hours. Since the latter date, he has worked for eight hours per day at the Pohorje Public Institute. Mr Glavica has attended work therapy sessions for five hours daily.

Prisoners who work or who attend work therapy also earn personal leave, which they are able to spend in special apartments in the prison which include a kitchen and a television. During their personal leave, they are subject to a more lenient regime as regards waking hours and have broader access to leisure activities.

An infirmary operates in the prison and is subject to the general regime of the national health-care system. It operates four days a week. A dental surgery operates two days a week. A psychiatric clinic operates two days a week. During the relevant time, there had been no waiting period for an appointment at the infirmary or the psychiatric clinic, but there had been, except for urgent cases, a waiting period of two to three months for an appointment with the dentist.

All prisoners undergo a medical examination upon their arrival. On the basis of this examination, prisoners may be referred to a hospital to undergo a test to ascertain whether they have been infected with hepatitis B and C and/or HIV.

The prison also provides for psychological assistance. Consultations are carried out during the first week upon the arrival of a new prisoner and later depending on need. The waiting period for a consultation is three to four days, except for urgent cases. Drug users are offered medical (including methadone substitution) treatment and therapeutic help in accordance with a specialised drug treatment programme. Prisoners who successfully undergo methadone substitution treatment are able to undergo detoxification, which normally takes three to four weeks. Further rehabilitation of previous drug users is provided in the drug-free sections of the prison, in which only those prisoners who are no longer dependant on drugs and who are no longer undergoing opiate replacement therapy may be allocated.

Prisoners are entitled to receive visits from their family members lasting no less than one hour at least twice a week. They are entitled to make telephone calls, lasting ten minutes, twice a week. Until 20 November 2009, when new telephone booths were installed, one telephone was available for use by all the prisoners from one block (namely, up to about 130 prisoners). However, after that date almost every wing of the four blocks has had one telephone booth, which is only used by the prisoners held in that wing (up to about thirty prisoners).

For relevant domestic law and practice see paragraphs 33-35 and 38-47 of Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, 27 September 2011, and paragraphs 34-36 of Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 27 September 2011. In addition, the judgment of the Grosuplje Local Court delivered on 9 September 2010 is relevant to the present case. In that judgment, the aforementioned court rejected a claim under section 179 of the Civil Code concerning damage allegedly sustained due to inadequate living conditions in Dob Prison. The claim was lodged by a prisoner who was held in Block 3 in a cell of about 60 square metres together with 16 inmates. The court, which also heard a number of witnesses from the prison, found as established that the claimant, apart from his cell and the lavatories, also had access to the TV room and hallway during the day, between 6 a.m. and 11 p.m. It also found that chairs and tables were situated in the hallway and that about half of the prison population was working eight hours a day, which reduced the number of those who stayed in the cells during that time. The court acknowledged that the situation as regards overcrowding (number of inmates held in the cells) was in breach of the domestic regulation providing that no more than eight prisoners should be held in one cell, and found that the State, by virtue of paragraph 1 of section 148 of the Civil Code, would be responsible to prisoners for any damage sustained on that account. However, the court, referring to, inter alia, Sulejmanovic v. Italy, no. 22635/03, 16 July 2009, concluded that the situation, though difficult, was not such as to violate the claimant’s personal rights. No legally recognized damage had therefore been sustained by the claimant. The court also assessed the claimant’s allegations concerning sanitary conditions, access to the telephone, nutrition and cohabitation with persons affected by transmissible diseases. These aspects of the prison’s conditions were found not to be in breach of the law.

The Ljubljana Higher Court upheld the above judgment on 23 March 2011. It found that the claimant’s claim contained allegations of torture and breach of one’s right to dignity. It endorsed the lower court’s legal qualification and factual findings. The Higher Court also referred to the CPT’s report of 2002, which, in its opinion, did not point to serious violations. Acknowledging that the situation was not perfect and could cause discomfort to the claimant, the Higher Court concluded that, in the aggregate, the conditions did not amount to undignified treatment or torture.

The relevant extracts from the general reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are set out in Mandić and Jović, cited above, §§ 38-40.

The CPT visited Dob Prison in 1995 and 2001. In 1995 the number of prisoners held in Dob Prison was significantly lower than it currently is. 208 prisoners were held in the closed section of Dob Prison (see document CPT/Inf (96) 18). After the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36):

56. ... The CPT recommends that efforts be made to reduce the occupancy rate of the 60 m² dormitories, having regard to the new minimum standards for prison accommodation. Further, the Committee wishes to reiterate that smaller accommodation units for prisoner[s] are far preferable to large units such as the 60 m² dormitories seen in Dob Prison.

In the chapter concerning the living conditions in Slovenian prisons, Annual Reports by the Administration for the Execution of Prison Sentences include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals, which is 9 square metres for a single-occupancy cell and 7 square metres per person in a shared cell. According to the 2009 and 2010 reports, nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. Dob Prison, with an official capacity of 233 prisoners, held on average 435 and 412 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 187 and 177 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 170 and 190 percent respectively (p. 98). The 2010 Report also noted (p. 100):

“... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia: Dob, Ljubljana and Maribor prisons. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman, the CPT and other institutions.

... It is understandable that such living conditions adversely affect prisoners’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners’ rights (work, exercise and recreation, [attending] religious services). In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem...”

On 17 and 18 March 2009 the Ombudsman for Human Rights conducted a visit to Dob Prison under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and issued a report, which, as far as relevant, reads as follows:

“... the official capacity is still 296 prisoners, including 233 prisoners in the closed section, 40 prisoners in the semi-open section and 23 prisoners in the open section. At the time of our visit, the establishment held 497 prisoners, including 433 in the closed section, which is 200 beyond the official capacity. The prison administration has stressed that it has previously been faced with an even higher occupancy rate. During a certain period in 2008, the prison held 526 prisoners...

We found that since our last visit the overcrowding has only intensified. This raises concerns. The prison administration has agreed with this finding and stressed that it is of particular concern that the overcrowding cannot be reduced by placing prisoners in other establishments, as the number of prisoners is rising everywhere. On the other hand, we welcome the fact that preparatory work on the renovation and expansion of the prison has finally started. The capacity of the prison should be increased to 522 beds and the inmates should be accommodated in single or three-bed cells. Large multi-occupancy cells should be abandoned. The office [of the Ombudsman for Human Rights] expects and hopes that the progress of the renovation of the prison will lead to an improvement in the living conditions therein.

We have again stressed that in most cases the furniture in the rooms was outdated and urgent repairs and replacements were therefore needed

According to the prison administration, illegal drugs present a serious problem. About half of the prisoners are addicted to drugs or alcohol... The prison administration further explained that the operation of the drug-free section, [one of] which was located in every block (except Block 1), was also restricted due to the fact that there was only one therapist responsible for the programme ...”

“In the closed section of Dob Prison there are still only 31 single cells and only a few cells with two or three beds available. Large multi-occupancy cells are [the norm], in particular those measuring 60 square metres and accommodating up to 17 prisoners. Each inmate has only 3.5 square metres of personal space, which falls short of the standard of 7 square metres.... It is true that this standard was intended for new facilities or renovations, where possible. However, as many years have already passed since the adoption of the Regulation on the Execution of Prison Sentences [providing the aforementioned standard], there should be a commitment that this standard is also complied with in the largest prison in the country. Likewise, one cannot ignore section 42 of the Enforcement of Criminal Sanctions Act, which states that inmates should in principle be accommodated in a single cell, and that shared cells should have eight beds at most. The prison conditions in which the prisoners live are therefore unacceptable and in breach of the law.

The shared cell with seventeen beds has only one lavatory.... During the morning rush, this (the facilities in the lavatory) is insufficient for the number of inmates whom it is intended to serve. The number of inmates simultaneously using the lavatory is also restricted by its size. [The ombudsman’s office] was therefore not surprised to hear complaints that inmates had to wait two hours to use the shower and 45 minutes to use the toilet, which we believe is also inhumane.”

The applicants complained that the conditions of their detention in Dob Prison amounted to a violation of Articles 3 and 8 of the Convention. In particular, they complained of severe overcrowding, which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restrictions on out-of-cell time, high temperatures in the cells, inadequate health care and psychological assistance, inadequate measures as regards the rehabilitation of drug addicts and exposure to violence from other inmates due to insufficient security. They also submitted that the situation amounted to a structural problem which had been acknowledged by the domestic authorities.

Citing Articles 3 and 8 of the Convention, the applicants also complained of restrictions on visits, telephone conversations and correspondence.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“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 applicants lastly complained under Article 13 that they did not have any effective remedy at their disposal as regards their complaints under Articles 3 and 8 of the Convention.

“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.”

Given the similarity of the applications, both as regards facts and law, the Court deems it appropriate to join them under Rule 42 § 1 of the Rules of the Court.

The Government argued that the complaints should be rejected for non-exhaustion of domestic remedies. Alternatively, the complaints relating to physical conditions of detention made by the applicants Mr Kostevec and Mr Glavica should be rejected for non-compliance with the six-month rule as regards the part of their applications concerning the period prior to their placement in cells in which they had 5 square metres of personal space or more, namely prior to 23 June 2009 and 3 November 2005 respectively. Regardless of the foregoing, the Government argued that the complaints were unsubstantiated.

The Government maintained that the living space allocated to the applicants had been sufficient and should also be viewed in the light of the fact that the applicants had been free to move around the whole wing for at least 17 hours a day, when their cells had been unlocked. In addition, the applicants had been able to use the outside yard and gym and had been able to take part in a number of leisure activities, work and follow educational courses.

No complaints had been made by the applicants to the prison authorities or monitoring bodies as regards temperatures in the cells during the summer, which in any event had not been excessively high. All windows had had shades that protected the detainees from direct sunlight and ceiling fans had been installed in all large cells. Moreover, the prison was located in an area which is not typically very hot. No information was available as regards the exact room temperature during summer, as no need to examine this issue had been shown. All cells had been sufficiently well ventilated.

The applicants had had daily access to the shower and had been able to use the toilet in private. Personal hygiene products and detergents had been distributed to them on a regular basis. The Government emphasized that many inmates had worked during the week and that the common areas, including lavatories, had as a result been less frequented during that time. Sanitation had also been adequate and measures, including education, had been taken with a view to preventing the transmission of diseases, such as hepatitis B and C and HIV.

In support of their arguments concerning the living conditions in the prison, the Government referred to the findings of the Grosuplje Local Court of 9 September 2010 (see “Relevant domestic law and practice” above).

The Government further argued that the complaints relating to inadequate health care and psychological assistance and insufficient security measures were wholly unsubstantiated. The applicants had never reported any conflict with other inmates and had not asked to be transferred to another cell on that account. They had also not shown that any request on their part for any kind of medical assistance had been refused or had remained unanswered. Likewise, they had not shown that their health had deteriorated on account of the prison conditions. There had been several measures in place to ensure the safety of detainees and the prison had provided adequate medical care and psychological support to inmates, including those who had been dependant on opiates.

The Government additionally maintained that the domestic authorities should not be considered to have acknowledged a violation of Article 3 of the Convention. They had only affirmed that the situation in certain Slovenian prisons had not complied with national statutory requirements, which were higher than those set by the Court’s case-law relating to Article 3.

Lastly, the Government submitted that two new buildings in the Dob Prison complex with a total capacity of 174 inmates would be available in 2011 and provided photographs taken in September 2010 showing the new buildings under construction. Moreover, the renovation of the entire Dob Prison complex envisaged the construction of seven new buildings. Ninety-two percent of the new cells would be single cells with a sanitary annex attached.

The applicants argued that they had been held in multi-occupancy cells as one of fourteen to seventeen inmates detained in such a cell. The living space available to them had been too small to allow for a dignified life and had been further reduced by various items of furniture. What is more, due to overcrowding they had been confined to their cells for twenty hours a day. They had not had any privacy, which had affected their mental state. There had been only one lavatory, with one toilet, available for use by all the inmates held in one cell. Sanitation had been inadequate and they had felt exposed to transmissible diseases. There had been no functional ventilation system in the cell. The solutions relied on by the Government had, in practice, been ineffective because of high temperatures in the summer and low temperatures in the winter.

As regards their complaints relating to inadequate health care and psychological assistance and insufficient security measures, the applicants argued that the inadequacies in providing health care and safety had mainly resulted from insufficient staffing. In particular, they alleged that they had had several conflicts with other inmates and that they had had no choice but to share their cells with drug users. As regards the latter, they also submitted that drug rehabilitation in the prison had been unsuccessful due to overcrowding conditions and lack of staffing. Lastly, they submitted that they had asked to be transferred to other cells but that this had been impossible due to overcrowding.

Lastly, the applicants pointed to difficulties in obtaining evidence in support of their allegations. However, they alleged that the conditions to which they referred had been proved by the official reports describing the severe overcrowding in the prison.

The Court does not find it necessary to examine the Government’s objections concerning the issue of exhaustion of domestic remedies and compliance with the six-month rule, as the applications should in any event be declared inadmissible for the reasons set out below.

The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. Although the question of 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 conclusively rule out a finding of a violation of 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 emphasised on many occasions that the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, and 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 (see Valašinas v. Lithuania, cited above, § 102, and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by an applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, 7 April 2005). In its previous cases where applicants had less than 3 square metres of personal space at their disposal, the Court has found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many other authorities, Sulejmanovic v. Italy, no. 22635/03, § 51, 16 July 2009, and Lind v. Russia, no. 25664/05, § 59, 6 December 2007). By contrast, in other cases where overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, the Court has noted other aspects of physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements have included, in particular, the availability of ventilation, access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements and the possibility of using the toilet in private (see case-law cited in Orchowski v. Poland, no. 17885/04, § 122, 22 October 2009).

As regards evidence relating to the physical conditions of detention, the Court notes that such information often falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Still, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010).

Turning to the present case, the Court notes that the applicants complained about the conditions of their detention in multi-occupancy cells in the closed section of Dob Prison, where they were held in accordance with the normal prison regime. Having regard to the detailed information supplied by the Government and not disputed by the applicants, the Court finds it established that most of the cells in which the applicants were held measured 60 square metres and accommodated between eleven and seventeen inmates. Personal space available to the applicants in these cells was therefore never less than 3.5 square metres. The cells contained adequate furniture and did not lack air or light. For a certain period of time, the applicants Mr Kostevc and Mr Dedić were held in smaller cells measuring 20.26 square metres and the applicant Mr Šegota has been held in a cell measuring 33.23 square metres. Only four inmates were held in this type of cell and the space allocated to each of the applicants was 5.2 and 8.3 square metres respectively. There is no indication that these cells were not adequately furnished or that they lacked air or light.

The Government further submitted that the cells had been unlocked for most of the day and that the applicants had enjoyed freedom of movement around the wing between being woken up at 6.00 a.m. and lock-in at 11 p.m. The Court notes that this information was corroborated by the findings of the Grosuplje Local Court in its judgment of 9 September 2010 (see “Relevant domestic law and practice” above) and that the applicants, who had maintained in their applications that they had only been able to spend four hours per day outside their cells, did not contest the information supplied by the Government in respect of the locking of the cells. The Court further observes that according to the prison plan all the large cells had access to a hallway, a TV room, and a sanitation area located in the same wing, while the smaller cells in which the applicants Mr Kostevc, Mr Dedić, Mr Šegota were held for a while had access to a hallway that connected the cells in the same living quarters or wing. In the absence of any evidence to the contrary, the Court sees no reason to doubt that the applicants’ cells were unlocked from 6 a.m. to at least 11 p.m. and that during that time the applicants had access to the aforementioned common premises. Furthermore, the Court notes that it was undisputed that the applicants had the chance to use an outside yard for at least two hours per day. In view of the foregoing, the Court finds that the situation as regards personal space allocated to each applicant in his cell and restrictions on his movement outside the cell was not such as to raise an issue under Article 3 of the Convention (see mutatis mutandis, Valašinas v. Lithuania, cited above, §§ 103-11, and Sulejmanovic v. Italy, cited above, § 43-52). The Court also notes that, according to the information supplied by the Government and not contested by the applicants, all of the applicants, except for two of them, worked, some of them doing so for eight hours per day, or were engaged in other educational or leisure activities. This, apart from providing them with purposeful occupation, further reduced the time they spent in their cells.

The Court notes that the applicants Mr BoZičnik and Mr Glavica, who spent a certain period of time in Block 1, where the cells were locked throughout the day, did not complain about the conditions therein. The Court would nevertheless note that inmates could be placed in Block 1 for a limited period of time for various reasons that required a special regime. Having regard to the fact that the applicants had considerably more personal space available to them while placed in Block 1, namely 8 and 7.39 square metres respectively, and had the opportunity to use the outside yard for two hours every day, these conditions were also not inadequate vis-à-vis the standards required by Article 3.

As regards other aspects of the physical conditions of the applicants’ detention, the Court does not find any indication that the sanitation in and ventilation of the cells and common arrears was incompatible with Article 3 of the Convention. Likewise, there is no indication in the file that the temperature in the cells was excessively high during the summer. Having regard to the possibility of opening the windows and doors, as well as using ceiling fans and shades on the windows, the Court finds these complaints to be unsubstantiated. Furthermore, while the fact that all the prisoners held in one large cell have to share one toilet might have caused a certain discomfort, it has not been shown by the applicants that the situation was so severe as to raise an issue under Articles 3 or 8 of the Convention.

As regards the allegations relating to inadequate health care and psychological assistance and insufficient security measures, the Court notes that they were formulated as general statements. While it is aware of the fact that overcrowding can adversely affect services within a prison, including prison security and health care, the Court cannot ignore the fact that the applicants failed to provide any information about any incident involving violence or the threat of violence which might have affected them, nor did they give details of any inadequately satisfied need for medical or psychological assistance. Likewise, the applicants failed to show how their personal situation was affected by the fact that their co-inmates were dependant on opiates or by the alleged lack of effective drug rehabilitation (see, for example, Visloguzov, cited above, §§ 48-9; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 49, 27 March 2007; and Valašinas, cited above, §§ 105 and 110). In view of the foregoing, the Court considers that these complaints have also not been substantiated by the applicants.

In conclustion, the Court understands that the living conditions in Dob Prison were adversely affected by the fact that the prison’s official capacity was considerably exceeded, a problem of which the authorities were aware and which is being dealt with by the construction of new prison facilities. However, having regard to its above findings, the Court concludes that the situation in which the applicants were detained was not such as to be incompatible with the State’s obligations deriving from Article 3 of the Convention. Likewise, it does not consider that it has given rise to an issue under Article 8 of the Convention.

Therefore, this part of the applications should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

The Government argued that the restrictions on prisoners’ contact with the outside world provided for in the domestic regulations were necessary to maintain order and were reasonable. As regards the use of the telephone, the applicants had been given the opportunity to call their family members every second day for ten minutes. The Government submitted that, though the situation had never been unsatisfactory, it had significantly improved since 26 November 2009 when new telephone booths had been installed, one in every wing. As regards visits and written correspondence, the Government argued that the applicants had merely stated that the prison authorities had not taken proper care to ensure their contact with the outside world. The applicants had thus failed to substantiate their complaints, which had also not been concrete enough.

The applicants, on the other hand, submitted that they had had the right to use the telephone only twice a week and that they had often been under pressure from other inmates to end their telephone conversations before the allotted time had expired. The applicants further argued that one telephone had been shared among 140 inmates, which had excessively restricted their ability to call their relatives. In addition, in their written observations of 22 April 2011 the applicants submitted that their correspondence had been limited to certain identified individuals and that it had often been opened or had not reached them.

The Court notes that these complaints fall to be examined under Article 8 only. It reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a detainee’s right to respect for his family life that the authorities enable him or, if need be, help him to maintain contact with his close family. Restrictions such as limitations imposed on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visiting arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision. Nevertheless, any restriction of that kind must be applied “in accordance with the law”, must pursue one or more of the legitimate aims listed in paragraph 2 and, in addition, must be justified as being “necessary in a democratic society” (see, among other authorities, Moiseyev v. Russia, no. 62936/00, § 246, 9 October 2008).

In the present case, the Court notes that the restrictions on phone calls, written correspondence and the number and duration of visits, which were provided for in the relevant legislation, do not appear to be unreasonable in themselves, given the necessity to uphold the prison regime (see, mutatis mutandis, A.B. v. the Netherlands, no. 37328/97, §§ 92 and 93, 29 January 2002, and Boyle and Rice v. the United Kingdom, 27 April 1988, § 74, Series A no. 131). In so far as the applicants may be understood as complaining that their contact with other people by telephone had been restricted more than had been required by legislation, the Court finds that the applicants have not submitted any evidence or concrete information which would indicate that they had been unable to use the facilities in question in accordance with the law. Likewise, their allegations concerning interference with their written correspondence, as well as their dissatisfaction with visiting arrangements, are not substantiated by any piece of evidence or at least a detailed account of the events which allegedly gave rise to a violation. This part of the applications is therefore not substantiated and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

The Court notes that it has found the applicants’ complaints under Articles 3 and 8 to be manifestly ill-founded. Therefore, the Court concludes that the applicants have no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov, § 74-5, cited above). It follows that the complaints under Article 13 of the Convention should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

No	Application No	Applicant’s name and date of birth	Lodged on
1.	5711/10	Rajko LALIČ 15/03/1961	24/12/2009
2.	5719/10	Roman TIVADAR 26/12/1974	24/12/2009
3.	5754/10	Drago PRAJNER 13/04/1971	18/11/2009
4.	5803/10	Albin BOZIČNIK 30/01/1966	18/12/2009
5.	5956/10	SašoTUKSAR 19/09/1967	18/12/2009
6.	5958/10	Jasmin KOSTEVC 11/08/1974	18/12/2009
7.	5987/10	Zoran DEDIĆ 12/11/1981	24/12/2009
8.	6091/10	Joze KAC 17/04/1965	18/12/2009
9.	6647/10	Nebojsa ŠEGOTA 10/02/1969	18/12/2009
10.	6893/10	Damir GLAVICA 30/01/1974	18/12/2009

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You are here: BAILII >> Databases >> European Court of Human Rights >> Rajko LALIC v Slovenia - 5711/10 [2011] ECHR 1620 (27 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1620.html Cite as: [2011] ECHR 1620