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Cite as: [2007] Prison LR 403, (2007) 44 EHRR 49, [2006] ECHR 210

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FIRST SECTION

CASE OF CENBAUER v. CROATIA

(Application no. 73786/01)

JUDGMENT

STRASBOURG

9 March 2006

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 Cenbauer 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 F. TULKENS,

Mr P. LORENZEN,

Mrs N. VAJIć,

Mr D. SPIELMANN,

Mr S.E. JEBENS, judges,

and Mr S. NIELSEN, Section Registrar,

Having deliberated in private on 14 February 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 73786/01) against the Republic of Croatia lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Miroslav Cenbauer (“the applicant”), on 14 January 1997.

2. The Croatian Government (“the Government”) were represented by their Agents, first by Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik.

3. The applicant complained, in particular, that the conditions of his detention at Lepoglava State Prison (“the LSP”) amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

6. By a decision of 5 February 2004, the Court declared the application partly admissible.

7. The Government, but not the applicant, filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

8. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Outline of events

9. The applicant was born in 1971 and lives in Viljevo, Croatia.

10. On 15 December 1993 the applicant was found guilty of several criminal offences, including murder, and sentenced to twelve years’ imprisonment. He started serving his prison sentence on 4 January 1995 at Lepoglava State Prison (Kazneni zavod Lepoglava).

11. The LSP is a building comprising five wings: A, B, C, D and E. All wings have now been renovated. The B wing was the last to be renovated; its renovation was finished in December 2003.

12. The applicant remained at LSP until 27 September 1995 when he was transferred to another prison. He was admitted to LSP for the second time on 30 December 1998.

13. On 4 October 1999 the applicant was transferred to Glina Penitentiary where he remained until 5 April 2000. Then he was transferred to Požega Penitentiary. During his stay in that institution, the applicant was granted various privileges, including the right to short periods of leave. After committing criminal offences (burglary and theft) while on leave, the applicant was again transferred to LSP on 21 September 2000. On 3 January 2001 he was placed in B wing.

14. On 8 April 2003 the applicant was transferred to a cell in the renovated part of B wing.

15. On 22 August 2003 the applicant was released as he had served his time in prison.

B. The parties’ accounts

16. The applicant gave the following account of the detention conditions in B wing of LSP.

17. The cell where he was placed was small and there were neither sanitary facilities nor running water. There was no heating and the cell walls were damp and mouldy. The cell was dirty and the bed sheets were not changed for very long periods of time. In order to urinate at night and at other times when he was confined to his cell, the applicant had to use a four-litre plastic container in the shape of a bottle, because the guards refused to unlock his cell and let him use the toilet. Toiletries and other personal hygiene products were provided only every four to five months. The food served to the inmates was of insufficient quantity and poor quality; the inmates were served only carbohydrates, without any vegetables and hardly any meat. In general, the prison was overcrowded. The prison buildings, built about two hundred years ago, were in a very poor state of repair. As the prison guards did not wear badges with their number or name, the inmates did not know their identities. The prisoners were made to line up as many as ten times a day, even when it rained. They also had to take outdoor exercise daily in slippers, even when it rained or snowed.

18. The Government provided the following account of the applicant’s detention conditions at LSP.

19. The applicant’s cell was a double-occupancy cell. Most of the time the applicant shared it with another inmate and only for a period of about two months was he alone in the cell. The cell was 3.50 m long, 1.60 m wide and 3.05 m high. It had an 80x80 cm window and one artificial light. There was no toilet in the cell although the applicant had permanent access to common sanitary facilities and could use a shower. Inmates were provided with toothpaste, soap, shaving cream, disposable razors, shampoo and toilet paper on a monthly basis. The food served to the inmates was of the prescribed caloric value and in general the inmates had no complaints in that respect. The inmates were lined up several times a day before meals. The inmates who worked were also lined up when going to and coming from work and before and after their break. Inmates were lined up outdoors when the weather so permitted and they were dressed appropriately. In bad weather inmates were lined up inside the prison building. The inmates were afforded large outdoor exercise area and were able to attend film shows on Sundays.

20. The Government submitted that the renovation of B wing had been completed on 5 December 2003. It had been freshly painted and every cell had been provided with a toilet and a washbasin. The cells now have parquet flooring, new furniture and radiators, new electric sockets and new ceiling lights. There are now four showers used by 35-40 inmates.

C. The findings of The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

21. The CPT visited Croatia between 20 and 30 September 1998. Its findings with regard to LSP were as follows (extract from the report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment from 20 to 30 September 1998, CPT/Inf. (2001) 4):

“a. Material Conditions

58. ... the two unrenovated wings, B and E, accommodating mainly unemployed prisoners, offered very poor conditions of detention. Prisoners in these wings were being held under cramped conditions, typically two to three persons in cells measuring between 5,5 to some 6,5 m². The CPT must emphasise that cells of such size are only suitable for individual occupancy. Further, the cells were dirty and in a poor state of repair, and a number of them had poor access to natural light and/or dim or artificial lighting. In addition, they were not equipped with integral sanitation; as a result, at night inmates had to comply with the needs of nature using a plastic container in their cell. As for the communal sanitary facilities, they were in a generally woeful state of repair (some of them with hazardous flooded floors.) It is also noteworthy that several prisoners in these two wings complained that they were not able to obtain necessary toiletries. The director informed the delegation that the renovation of the whole establishment was planned, but that difficulties were being encountered in obtaining the necessary resources. The CPT must stress that the prevailing material conditions in B and E wings are quite unacceptable.

Consequently, the Committee recommends that the renovation of these wings, including installation of in-cell sanitation following the model of D wing, be treated as a matter of high priority.

Moreover, the CPT recommends that steps be taken immediately to ensure that all prisoners at Lepoglava State Prison are able to obtain personal hygiene products (toilet paper, soap, toothpaste, etc.) as well as the necessary means to maintain their cells and communal sanitary facilities in a clean and hygienic state.

59. Further, as already indicated in paragraphs 56 and 58, the closed unit was overcrowded at the time of the visit. This was particularly the case in the unrenovated wings...

The CPT recommends that serious efforts be made to reduce cell occupancy levels in the closed unit at Lepoglava State Prison ...

b. Regime

61. According to section 19 of the Law on Execution of Sentences, sentenced prisoners must be provided, to the extent possible given an establishment’s facilities and resources, with various types of work appropriate to their abilities and skills.

62. Of the 660 prisoners in the closed and semi-open sections at Lepoglava State Prison, approximately 300 were engaged in various types of work activities, including woodworking and furniture production (employing 150 inmates), metalwork (20), arts and crafts, as well as a variety of posts involving the day-to-day operations of the prison (laundry, cooking, gardening, etc.).

63. Nevertheless, the fact remains that at the time of the visit, the majority of the prisoners in the establishment’s closed unit - 324 out of 532 - were not working. 110 prisoners were on a waiting list for work. Further, 83 prisoners had been categorised as permanent non-workers, either through choice or disability, though many such prisoners interviewed by the delegation advanced that they did in fact wish to work.

The situation of the non-workers was rendered all the more unsatisfactory by the scarcity of other regime activities at the prison. Although the establishment was equipped with good educational facilities, only about 50 prisoners - including some who already worked - were attending classes. Further, there was little evidence of therapeutic (i.e. offence-focused) programmes and no organised sport activities. To sum up, almost two thirds of the prisoners accommodated in the closed unit were subject to an impoverished regime; the typical daily programme for a non-working prisoner was found to consist of little else besides watching television in an association area and outdoor exercise.

64. ... For the majority of prisoners in the establishment’s closed unit, there was no positive regime in place which might encourage them to address their offending behaviour.

The CPT recommends that the Croatian authorities take the necessary steps to ensure that all prisoners at Lepoglava State Prison have access to an appropriate range of work, educational, sports and recreational activities.”

D. Report of the Fact-Finding Mission to Lepoglava State Prison

22. On 1 July 2002 a delegation of the Court visited LSP in connection with the Benzan case (see Benzan v. Croatia (friendly settlement), no. 62912/00, 8 November 2002). Its findings in respect of the general conditions at LSP were as follows:

“Meeting with the LSP Governor

The Prison Governor informed the delegation that the only unrenovated wing is B wing. He further informed the delegation that the prison held 683 inmates. He admitted that the prison was overcrowded, especially B wing.

Tour of the LSP

B wing

We found cell 17 situated next to the communal bathroom. It measured 3,50 metres by 1,60 metres. There were no in-cell sanitary facilities. There were two non-working electrical sockets. There was a dim light on the ceiling. The window on the wall opposite the door measured 80 cm². There was one wooden chair and a metal locker. There was one set of bunk beds. The mattresses were dirty and bloodstained. The cell smelled strongly of moisture. The cement walls were damp to the touch.

Shower, toilet and laundry area

There were three toilets and two showers for 60 inmates. There was no heating in the toilet. In the shower there was one radiator. There was no toilet paper. Next to the showers there was a laundry area equipped with long basins for inmates to wash their clothes. The laundry area was accessible for one hour per day.

The indoor entertainment and recreation area

Next we visited a TV-room where we found one television, about 20 chairs and 7 tables. It served 60 inmates.

There was also a social room with 6 tables, each with 4 chairs, serving 44 inmates. We saw chess-boxes on the tables. Inside, there was one stove with two electric hotplates and one sink.

On each floor we saw table-tennis equipment, each serving 44 inmates.

Renovated wing

Here we visited a cell which measured 11 m². There were two sets of bunk beds. There was a separate bathroom with toilet and sink, but with no shower or bathtub. However, there were communal showers on the same floor. There was one electric socket, three lights on the ceiling, two metal lockers, two wooden chairs, one table and one shelf on the wall. There were two windows (80x80 centimetres). The room was freshly painted and had parquet floor. It was very clean.

Outdoor recreation area

We saw a large walking area, with benches and trees and an asphalt playground of large proportions.

The Canteen

The canteen where the inmates eat is a huge room, separated from the other prison areas. It can accommodate 200 persons at a time. The inmates eat in shifts. Food is cooked on the premises and there is also a bakery.

Working area

The working area comprises several large workshops for wood-processing, production of chess-boards, picture-framing, a bookbinding shop and book-press and an art studio including a visual arts section.

The bookbinding shop where the applicant works has large windows, a desk and a chair.

The interviews

The applicant

The applicant informed the delegation that he had been placed in cell no. 17 in B wing sometime in May 2000 and had stayed there until August or September 2001. He reported that at the time of his arrival there had been no glass on the window, but that it had been repaired in a few days. The paint on the walls had been peeling off and the cell had been very damp. Sometime in 2001 the walls had been re-painted in the entire wing. He further reported that although there had been a radiator in cell, there had been no heating until the end of the winter 2001, when the radiators had been repaired, but that even after that the heating had been insufficient. The applicant stressed that the toilets in B wing had been renovated to a certain degree and that they had been in a much worse state of repair. He said that there had been mould on the walls which was covered over with paint.

The applicant’s daily routine is as follows:

7 a.m. - wake up

8-9 a.m. - breakfast and walk

10.30. - 11. 30 a.m. - locked in cell

11.30 a.m. - lunch

12.30. - 1. 30. p.m. - walk

3.00- 5.00 p.m. - locked in cell

5.30 p.m. - dinner

from 7. p.m. - locked in cell

9. p.m. - lights off

The applicant complained that the inmates were always pressed for time for lunch and dinner because there were too many people, divided into several shifts. He also said that the food was of low quality, badly prepared, badly cooked and that the only edible food was bread. He said that most of the time he was hungry. The inmates are dressed in jeans and shirts that are replaced every two years. They are also provided with shoes, underwear and a jacket.

The applicant complained that the bed-sheets were dirty, greasy and too short. The blankets were old, dirty and not having been washed for seven years. The mattress in his cell was old, rotting, blood-stained and soiled. The applicant also stated that medical assistance was only available once weekly on Mondays and that consultations with physician were superficial, lasting for one minute.

The prison director

The prison director admitted that there were two deaths from cardiac arrest this year and that a number of inmates suffered from hepatitis, though they were not placed in any special unit. He admitted further that in the whole area there was water shortage because of the problems with water pressure. However, the bathrooms were open from 9.30 to 11.30 a.m and from 4 to 5.30 p.m. As to the medical staff, he said that one physician, a specialist in general medicine, and a dentist, were employed full-time. There was at least one nurse on the premises at all times. Once a week physicians of different specialisation visited the prison (a lung specialist, a surgeon, an internist and an ophthalmologist).

He also reported that about 50% of inmates currently worked in the prison.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

23. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows:

“No one shall be subjected to any form of ill-treatment...”

24. The Act on Enforcement of Prison Terms (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:

Section 17

“1. An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.

2. Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”

Section 74

“1. The accommodation of the 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 m² and 10 m³ 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.”

Section 77

“1. The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.”

Section 78

“3. Inmates shall be served at least three meals daily with a caloric value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.”

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

25. The Government maintained that the applicant had failed to exhaust domestic remedies as required by Article 35 of the Convention, the relevant part of which provides:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”

26. The Government argued that the applicant should have lodged a complaint with the judge responsible for the execution of sentences (sudac izvršenja) under section 17 of the Act. In this connection, they produced a copy of the Varaždin County Court’s decision (Županijski sud u Varaždinu) dated 17 December 2003, in which that court had accepted a similar complaint in the case of V.Š., an inmate serving his term at LSP. It had found that V.Š. had been in a cell smaller than the minimum size prescribed by law, that this fact violated his rights, and that he was to be transferred to another cell of appropriate size. With regard to his claim for damages, the Varaždin County Court had instructed V.Š. to institute civil proceedings against the State.

27. The Government considered that the above decision proved the effectiveness of a complaint under section 17 of the Act in respect of poor prison conditions. Since the submitted decision had been given shortly after the applicant had served his prison term, the Government claimed that the applicant should also have filed such a complaint prior to the lodging of his application.

28. The applicant disagreed with the Government. He maintained that the submitted decision was of no relevance to his case as it had in any event been given after he had been released from LSP.

29. The Court first has to ascertain whether the Government are estopped from submitting the non-exhaustion argument at this stage of the proceedings.

30. At the outset, the Court notes that the Government have already raised this objection at the admissibility stage. However, in its admissibility decision of 5 February 2004, the Court dismissed that argument, concluding that the wording of the Act was unclear and that the Government had failed to produce any convincing evidence to prove the effectiveness of a complaint to the judge responsible for the execution of sentences under section 17 of the Act.

31. Following the decision on admissibility, the Government submitted the above decision, given by the competent court on 17 December 2003, that is to say one and a half months before the Court’s admissibility decision. The Court does not attach particular importance to this lapse of time or to the fact that the Government failed to submit the decision prior to the decision on admissibility. In the Court’s view, one and a half months is a relatively short period of time, during which it is reasonable to assume that, the decision having been given by one of the lower courts in the country, the Government may not have taken cognisance thereof. In these circumstances, the Court considers that the Government are not estopped from submitting the new decision in support of their previously argued objection concerning the non-exhaustion of domestic remedies.

32. The Court has further to examine whether the submitted decision can influence the Court’s finding as to the effectiveness of the suggested remedy in the circumstances of the present case.

33. The Court recalls that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 68).

34. In the light of the decision in the case of V.Š., the Court will not exclude that such a complaint could be an effective remedy in respect of acts or decisions which allegedly violate an inmate’s rights guaranteed under the domestic law. In any event, the Government have not proved that the remedy at issue was available before 1 January 2002, when the provisions of the Act concerning the judge responsible for the execution of sentences came into force (see paragraph 24 above).

35. In the present case, the Court notes that the applicant complained about the conditions of his imprisonment at LSP in the period between January 2001 and April 2003. He had therefore already served one year at LSP, in the conditions complained of, before the new remedy was created. Moreover, he introduced his complaint regarding poor prison conditions with the Court before that date. In these circumstances, the Court does not accept that the applicant was required to exhaust the above remedy.

36. The Government’s preliminary objection must therefore be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant complained that the conditions at LSP, where he served part of his prison sentence, amounted to inhuman and degrading treatment contrary to Article 3 of the Convention, which provides:

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

38. The Government contested this view. They maintained that, while the conditions in B wing before its renovation had not been ideal, they had not amounted to inhuman or degrading treatment.

39. The Government claimed that the applicant had failed to undertake steps to make his stay at the LSP easier, since he had refused to work. The conditions of his imprisonment had been objectively better than those of Mr Benzan (cited above), because his cell had been situated further away from the common bathroom and had therefore been less damp.

40. Finally, the Government claimed that account must be taken of the fact that the State, within the limits of its financial capacity, had been continuously renovating LSP. They submitted that such positive intentions on the part of the Government distinguished the present case from the Peers case, in which the competent authorities had failed to undertake measures aimed at improving the objectively unfavourable conditions for serving prison sentences (see Peers v. Greece, no. 28524/95, § 75, ECHR 2001-III).

41. The applicant maintained that the conditions of his imprisonment had taken overall amounted to inhuman and degrading treatment.

42. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a 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. 26772/75/ § 119, ECHR 2000-IV).

43. This being said, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum 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 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. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision (see Peers v. Greece, cited above, §§ 67-68; and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).

44. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI).

45. The Court notes that in the present case the parties have disputed certain circumstances pertaining to the general conditions of detention at LSP. However, the Court considers that, even so, it can make its assessment of the case relying on the parties’ submissions, the findings of the CPT and the Court’s delegation outlined above (see paragraphs 19 and 20 above).

46. It is undisputed that the applicant was housed in B wing from 3 January 2001, shortly after he was admitted to LSP for the third time, until 8 April 2003, when he was transferred to the renovated part of the prison. During that time he shared a cell measuring 5.6 m² with another inmate, in other words, he was afforded 2.8 m² of space. During a period of two months he was alone in the cell. Although this space was not as small as in some other cases the Court has examined in the past (see, for example, Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002-VI), it must be noted that the space was smaller than 4 m², which is the minimum requirement for a single inmate in multi-occupancy cells under both the domestic law and the CPT standards (see, for example, the CPT Report on its visit to Latvia in 2002 – CPT/Inf (2005) 8, § 65).

47. The Government claimed that the applicant himself had been partly responsible for being placed in the B wing, because he had stated that he did not want to work. The applicant did not deny this fact. The Court does not accept the Government’s argument according to which the conditions of imprisonment could be determined based on the fact whether an inmate was working or not, since all inmates should be afforded prison conditions which are in conformity with Article 3 of the Convention.

48. It was further undisputed that there was no toilet or running water in the applicant’s cell. As to the possibility of using the common toilet, the Government argued that the inmates always had access to it. The applicant claimed that he had had no access to the toilet when he was confined to his cell or during the night. Instead, he had had to urinate in plastic containers and then dispose of their contents at a later time. The CPT and the Court’s delegation both observed the problem. The Court therefore accepts the applicant’s assertion and considers that such a practice was humiliating and contributed to the poor hygienic conditions in his cell.

49. The Court must further establish how many hours a day the applicant had been confined to his cell. The Government submitted that the prisoners were entitled to outside exercise twice a day and that their meals were served outside their cells. They also had a common TV room. However, both the Government and the applicant failed to specify the exact number of hours a day for which the non-working prisoners were confined to their cells. Taking into account the facts as established in the Benzan case (cited above), in particular the information obtained from Mr Benzan himself, the Court observes that the prisoners in B wing spent several hours a day outside their cells, having meals and taking outside exercise. However, it also appears that they were confined to their cells between 7 p.m. and 7 a.m. and for several hours during the day. The Court considers this period to be substantial.

50. The Court further takes note of the other complaints raised by the applicant, concerning mouldy walls, the dirtiness of his cell and the overall hygienic conditions, for which the Government have produced no convincing explanation. It considers that the established factors of insufficient space coupled with a lack of access to the toilet for over twelve hours a day are in themselves sufficient to cause the applicant hardship of an intensity exceeding the unavoidable level of suffering inherent to detention.

51. The Court recognises that, following the Benzan case, the Government have undertaken the necessary steps and renovated the wing in question. The foregoing proves that the Government have shown a willingness to comply with the recommendations of the Court and of other bodies of the Council of Europe, a fact that cannot be disregarded. On the other hand, it cannot exculpate the Government with regards to the events preceding the renovation.

52. In the instant case, the applicant spent about two years and three months in B wing prior to its renovation. During that time he was exposed to conditions as described above, which in the Court’s view amounted to degrading treatment contrary to Article 3.

53. There has therefore been a breach of that provision.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

54. 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.”

A. Damage

55. The applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary damages.

56. The Government found that amount excessive and unsubstantiated.

57. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of his detention in the described conditions. Making an assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

58. The applicant, who was granted legal aid, did not make any further claims in respect of costs and expenses. Accordingly, no award is made under this head.

C. Default interest

59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government’s preliminary objection;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amount which should be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;

(ii) any tax that may be chargeable on the above amount;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NIELSEN Christos ROZAKIS

Registrar President