(Application no. 25282/06)
26 November 2009
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 Dolenec v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 5 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Criminal proceedings against the applicant
“In his personal appeal the defendant complains of serious breaches of the provisions regulating criminal proceedings, [these being] his inability to consult the case file; reliance of the impugned judgment on evidence under Article 9, paragraph 2, of the Code of Criminal Procedure, namely, the written record of the search of his flat and other premises, and the allegation that the identification of items (as potential evidence) by the injured parties had not been carried out in accordance with Article 243 (a) of the Code of Criminal Procedure.
The officially appointed defence counsel also alleges in his appeal that there was a serious breach of the provisions regulating criminal proceedings in the reliance of the first-instance judgment on illegally obtained evidence, because the search of the defendant’s premises had been carried out without the simultaneous presence of two witnesses.
The search of the defendant’s flat and other premises at the address Donji Kraljevec, Gornji kraj no. 13, was carried out by the police pursuant to search warrant no. Kir-75/04-02, issued by a VaraZdin County Court investigating judge on 20 February 2004 and served on the defendant beforehand, as can be seen from a receipt on page 18 of the first-instance [court] case file. The report of the search of the [defendant’s] flat and other premises of 23 February 2004 shows that the search was carried out in the presence of the defendant and two witnesses. On that occasion objects, which were enumerated in the certificates on temporarily seized items, were found and temporarily seized from the defendant. The defendant’s assertion that the witnesses were not simultaneously and continually present during the search is unfounded and uncorroborated, since neither the defendant nor the present witnesses put forward any objections. As the search was carried out in compliance with Articles 211 and 214 of the Code of Criminal Procedure, the report in question and the certificates regarding the items temporarily seized from the defendant constitute fully valid and legal evidence.
The defendant’s assertion that the first-instance court breached the provisions of the Code of Criminal Procedure [regulating] identification of certain objects in that the injured parties were shown the objects for identification without previously being asked to describe those objects is unfounded. Article 243(a) of the Code of Criminal Procedure requires that a defendant or a witness be asked beforehand to describe a person or an object [to be identified] and describe their distinguishing marks only when necessary; following which the person or the object [to be identified] are to be shown to the defendant or a witness, together with other persons unknown to them, or with similar objects. It follows that this provision does not oblige the court or the police authorities to present the persons identifying [objects as potential evidence] with similar objects at each instance but [this requirement applies] only where possible. In the present case, where a large number of different objects were [to be identified], the police officers were not obliged to act in the manner the defendant argued they were in his appeal and therefore, in the view of this court, the identification of objects [as potential evidence] was carried out in accordance with the law. Therefore, the reports on identification in the present case constitute valid evidence, especially since some of the injured parties emphatically stated at the main hearing that the objects they had been presented with were theirs, which in any event – save for a few of [these objects] – the defendant did not deny in his initial defence.
As regards the [alleged] inability of the defendant to consult the case file, it is to be noted that the [documents] from the case file show that the first-instance court allowed the defendant to consult the case file on 1 October 2004 (page 520) and that the requested copies of material evidence were served on the defendant in detention on 14 October 2005 (page 572).
The defendant complains that his written request of 7 March 2005 to consult the case file while he was in detention was not granted.
On the basis of the above [considerations], this court considers that in the present case there was no breach of Article 367, paragraph 3, of the Code of Criminal Procedure, since the defendant regularly attended the hearings, where he was able to consult the case file, copy the documents thereof and [examine] the objects aimed at establishing the facts of the case. Furthermore, during practically the entire first-instance proceedings the defendant had an officially appointed defence counsel. Thus, this court finds that there was no breach of his defence rights within the meaning of Article 367, paragraph 3, of the Code of Criminal Procedure.
As regards the [allegations] that the facts of the case were wrongly established and incomplete, both appeals allege the same fact: that the first-instance court’s refusal to hear evidence from the witnesses to the search resulted in a failure to establish whether the search of the applicant’s house and adjoining courtyard had been carried out in accordance with the law.
This court considers that the first-instance court correctly and completely established all the relevant facts, including those concerning the question whether the carrying out of the search on the applicant’s flat and other premises was in accordance with the law. In this connection the first-instance court gave valid reasons for its decision not to accept the above-mentioned defendant’s request [that two witnesses be heard], which reasons this court entirely endorses ...”
“.. the defendant ... alleges that the impugned judgment rests on unlawfully obtained evidence, namely the report on the search of his flat, and that his defence rights were violated because he was not allowed to consult the case file before presenting his defence.
The report on the search of the [defendant’s] flat and other premises shows that the search was carried out pursuant to VaraZdin County Court search warrant no. Kir 75/04-2 of 20 February 2004; and that two witnesses were present who were instructed at the outset to observe the procedure for carrying out [the search] and informed of their right to make objections before signing the report if they considered its contents to be inaccurate. The defendant was also present. All of these persons signed the report after it had been read to them, without making any objections, thus expressing their agreement with the content of the report.
Such a report is lawful evidence because it shows that the search was carried out in accordance with Articles 213 and 214 of the Code of Criminal Procedure.
The defendant’s assertion that the witnesses were not constantly present during the search is an objection to the established facts and cannot be accepted as a valid ground for lodging this extraordinary remedy.
This court may consider the veracity of decisive facts only if a suspicion in that regard arises when it examines a request lodged under Article 427 of the Code of Criminal Procedure. In the present case, bearing in mind the content of the report on the search of the [defendant’s] flat and other premises, this panel does not find any reasons to suspect that the search was not carried out in accordance with Articles 213 and 214 of the Code of Criminal Procedure.
Under Article 427(3) a request for extraordinary review of a final judgment may also be lodged [on the allegation that] the defendant’s rights were violated at a main hearing.
At the main hearing held on 1 April 2005, when the first-instance judgment was adopted and pronounced, the defendant’s rights were not violated. The transcript of the hearing shows that the hearing started anew with a deputy State Attorney reading out the indictment. The defendant was informed of his right to a defence counsel under Article 320, paragraphs 2 and 4, of the Code of Criminal Procedure, but he decided neither to exercise that right nor to present his defence, and remained silent.
The defendant did not object to the procedure followed by the court or ask for the hearing to be adjourned in order to prepare his defence.
The defendant’s allegation that the court denied him the right to consult the case file while in detention is irrelevant for the examination of this request because he was informed of his rights at the main hearing, after which he chose not to submit his defence.
“In accordance with [section 62 of the Constitutional Court Act], only a decision in which a competent court has decided on the merits of a case, namely, on the suspicion or indictment in respect of a criminal offence committed by the applicant, is an individual act within the meaning of section 62(1) of the Constitutional Court Act in respect of which the Constitutional Court, in proceedings instituted upon a constitutional complaint, is competent to protect human rights and fundamental freedoms of the applicant guaranteed by the Constitution of the Republic of Croatia.
In the proceedings before the Constitutional Court it has been established that the impugned judgment of the Supreme Court of the Republic of Croatia no. Kr-83/05 of 22 November 2005 is not an individual act within the meaning of section 62(1) of the Constitutional Court Act in respect of which the Constitutional Court is competent to give constitutional protection to the applicant.”
2. Conditions of the applicant’s detention
The applicant’s stay in VaraZdin Prison
“The patient was brought from VaraZdin Prison in reactive exacerbation of his mental condition. He was agitated on arrival, with no manifest psychotic or suicidal symptoms. He said that he had been refusing food since 12 May.
... He has continued to refuse food until 23 May, but has been taking liquids and vitamin pills. He has not received any other treatment. He is in a good general condition ... Elements of PTSD. Depressive-paranoid syndrome. Histrionic personality. ...
Recommended treatment: Apaurin ..., psychiatric supervision and more intensive engagement on the part of the treatment services.”
The applicant’s stay in Zagreb Prison from 13 June to 6 July 2005
In the intellectual capacity tests his results are above average. He adequately cooperates during the interview, apologising for having to go on a hunger strike in order to safeguard his rights. Actually, he is highly anxious and over-sensitive, everything bothers him. In terms of his personality, he is impulsive and emotionally unstable. He easily loses control of his behaviour and acts in an emotionally impulsive and inadequate manner. The low tolerance of frustrations is evident, which leads to irritability and accentuated touchiness. His tendency to react aggressively is marked and he has a significantly lowered capacity to maintain self-control and self-protection, which makes him prone to undertake activities involving a high level of risk. He has no insight into his motives and feelings and is uncritical. The likelihood that he will reoffend is high.
He is capable for all types of work without restrictions.
PROPOSAL AS TO THE INDIVIDUAL PROGRAMME FOR THE ENFORCEMNT OF THE PRISON TERM
The prison term is to be continued in closed conditions. It is to be expected that his behaviour will be excessive (conflicts, disobedience, refusal of food ...). He may be assigned to a work place according to the needs of the institution. Psychiatric supervision as needed.”
RECOMMENDATION OF THE INSTITUTION WHERE THE PRISON TERM IS TO BE CONTINUED
Lepoglava State Prison”
“13 June 2005 ...
In May 2005 [he was] treated at the psychiatric ward of Zagreb Prison Hospital. Pharmacotherapy: Apaurin... At present [he is] agitated, complaining of chest pain ...
Treatment: Apaurin ..., Fluzepan ...
The applicant’s stay in Lepoglava State Prison from 6 July 2005 to 14 October 2006
“Upon his arrival at the prison the inmate was assigned to a non-working group, and involved in leisure activities and the programme for persons suffering from PTSD as well as to the programme for a computer operator...
The prison doctor saw him on twenty-three occasions and he was twice examined by a psychiatrist. His diagnosis includes depression, paranoia, elements of PTSD and low tolerance towards frustrations. He has regularly been receiving sleeping pills and tranquilisers (Apaurin and Cerson)....”
It was also stated that the applicant had worked for a certain period but had stopped, owing to some conflicts. The applicant sent his reply to the report, in which he stated that he had actually seen a psychiatrist on three or even four occasions, but each time at his insistence although a discharge letter from Zagreb Prison Hospital of 25 May 2005 requested that he receive regular psychiatric supervision. He further asserted that he had not been able to attend group therapy sessions for persons suffering from PTSD because he had had no access to information about the time of these sessions. No decision was taken upon the applicant’s complaint.
“The patient was admitted due to the hunger strike he had started on 10 May 2006 because he had been dissatisfied with his treatment in prison.
During the first days of his hospitalisation the patient refused food, and [he was] hostile and manipulative; on several occasions during the interviews with a psychiatrist he requested a solution to his problems in connection with the conditions in the prison, being unwilling to correct his behaviour.
While in hospital the patient started to take food. He is discharged in a partially better condition ...”
“The patient was admitted because of suicide threats.
... He expressed dissatisfaction with his treatment in the prison.
During hospitalisation he has been calm, neither suicidal nor productive. He has refused food in order to have his paramedical problems resolved. He does not consider himself as ill. He insists on being discharged.
Since the patient is not in vital danger, [and he is] productive, against suicide, he is to be discharged and it is recommended that he be placed in a day-care department.“
7 a.m. – 7.30 a.m. – wake up, personal hygiene, cleaning of cells
Noon – 12.30 p.m. – lunch
“1 September 2005
Psychiatric examination at the medical ward of Lepoglava State Prison. During the current examination he is neither psychotic nor suicidal. He says that he has not been taking food for a week. He asks to be placed in a non-smoking cell and to be given treatment for headaches and sleep deprivation.
Treatment: Fortevit ..., Apaurin ..., Fluzepan
7 December 2005
Psychiatric examination: conscious, well-orientated, no signs of psychosis, [he] is not suicidal, [he is] very tense, has very low level of tolerance towards frustrations
20 April 2006
He saw a psychiatrist at the medical ward of the Lepoglava State Prison.
Treatment: Apaurin ..., Sanval ...
He is currently on hunger strike.
10 May 2006
Alleges fight with another inmate, who allegedly bit his finger.
D[ia]g[nosis]: Vulnus morsum? [a wound by biting]? Indicis m.l.sin. [marks on middle left finger], Regio ph. Medialis [middle zone].
Alleges that he will go on hunger strike.
20 July 2006
Psychiatric examination: [he is] neither psychotic nor suicidal, [he is] anxious, tense with low level of tolerance, allegedly worried, asks for hospitalisation which is unfounded.
20 July 2006
Hospitalisation was ordered, but he refused to go to Zagreb Prison Hospital.
He returned to the medical ward at 5.40 p.m., revolted, wanting to go to the hospital today although at 2 p.m. he had refused it. He took out a razor blade and made a few cuts on the surface of his left forearm. ...
[He] made threats of inflicting further self-injuries if not taken to the hospital today. Hospitalisation was ordered, but there was no capacity in the hospital to admit him. ...
21 July 2006
Sent to Zagreb Prison Hospital.
24 July 2006
The admission report from Zagreb Prison Hospital of 21 July 2007: ‘... [the patient] is shouting, threatening to beat other patients, asking to be placed in a non-smoking room, making threats against the hospital personnel because there is only one bed available and there is no separate room for non-smokers. He does not want to stay in the hospital because he cannot get desired accommodation. He refuses to take Apaurin in his veins. He is very unpleasant, uttering threats and blackmail. Since his condition is not life-threatening and given that the patient is refusing the treatment offered, he shall be returned to prison.
Started eating so as not to be removed form Division 8 of the Prison.
18 September 2006
... he has been placed in solitary confinement, handcuffed to a bed. He is anxious, verbally aggressive, dissatisfied with being handcuffed, bangs on the bed with his handcuffs and asks to be released. [He] is not psychotic or suicidal ... It has not been possible to examine him because he is very restless and is banging on the bed with his handcuffs, so that it has not been possible to approach the inmate in bed.
5 October 2006
[He] refused to see a psychiatrist.
The applicant’s stay in Gospić Prison from 14 October 2006 to 6 January 2007
One hour between 8.30 a.m. and 1.00 p.m. – outdoor exercise
One hour between 1.30 p.m. – 5.00 p.m. – exercise in the sports hall
The applicant’s stay in Pula Prison from 6 January to 5 November 2007
“21 February 2007
[The inmate is] complaining about pain in the left hemithorax, trauma not excluded. I have not found visible signs of trauma or haematoma. While breathing he spares left side, pain on palpation of left upper ribs. Sent for an X-ray.
22 February 2007
Pain in the left-rib area. The X-ray examination shows that there are no signs of rib-related trauma or lung alteration. He does not present allergy to medication.”
We have already examined the allegations of the said inmate about the acts of the prison guards of 21 January 2007. The guards involved made their reports and also gave their oral statements. The inmate Branko Dolenec was also interviewed.
It has been established that the guards acted in accordance with the law and that the inmate Branko Dolenec had attempted to diminish his responsibility by saying that he had not been given the prescribed treatment at the right time. He did not wish to give a written statement of the incident. Disciplinary proceedings have been instituted against the inmate Branko Dolenec for disciplinary offences under section 145(2)(8) and 145(3)(8) of the Enforcement of Prison Sentences Act in respect of which there is a reasonable suspicion that he committed them on 21 January 2007 to the detriment of the guards about whose acts he was complaining.
It is true that on 17 February 2007 a special measure of keeping order and security under section 135(6) was applied because there was a danger that he would inflict self-injuries. Beforehand, on the same day he had threatened to inflict self-injuries and repeated warnings had produced no results. In accordance with section 138(2), the applied measure lasted from 8.25 a.m. to 6 p.m. We have no information that on that occasion any of the guards used force against the inmate, or that anyone threatened to keep him tied down for twenty-four hours.
“As regards the event of 21 January 2007, according to the report of the Pula Prison Administration, the guards acted in accordance with the law while you, in order to diminish your personal responsibility, asserted that you had not received the prescribed medication at the right time.
Furthermore, the information submitted by Pula Prison does not show any indication that on 17 February 2007 any force was used against you or that any of the prison personnel threatened to tie you down for twenty-four hours.”
“Diagnosis: Personality disorder
The patient was admitted ... because of self-inflicted injuries. On arrival he was upset and in corresponding mood, with accelerated and widened thought processes, querulous and with a number of projections but without clear psychotic indications. He did not show aggressive or further auto-aggressive drives. His complaints about his treatment in Pula Prison included allegations that he had been placed in the pre-trial detention ward in a cell with smokers. He also asserted that he had been beaten up a few days prior to his arrival at the hospital. Lacerations and older haematomas on his back and a haematoma in regression on his thigh were visible on arrival. There were no visible injuries to his head.
During his stay in the hospital he was demanding, querulous, upset, constantly insisting on the alleged injustice done to him. There were no psychotic signs or aggressive or auto-aggressive drives. Only after his treatment had been altered did he become somewhat calmer and more willing to co-operate, although still persisting in his demand for “the just”.
There are no indications for hospital treatment. Placement in a calmer and non-smoking cell is recommended together with stricter supervision and stronger efforts on the part of the treatment services as well as regular pharmacotherapy: Haldol ..., Akineton ..., Fluzepan ... and Brufen ... with regular psychiatric supervision, starting in two weeks.”
“24 April 2007
An interview. [He] announces a hunger strike as of today and [expresses an intention to inflict] self-injuries. [He is] upset, communication is not possible ...
Stricter supervision measures for seven days [are recommended]. Therapy: none.
24 August 2007
At 4 a.m. today he was taken to a psychiatrist at Pula General Hospital ... Hospitalisation in the Psychiatric Ward of Zagreb Prison Hospital was recommended. Treatment: Apaurin ..., Fluzepan ...
He could not be admitted to Zagreb Prison Hospital owing to the lack of space. He was calm during the second interview [with a psychiatrist], there was no further indication for hospitalisation in Zagreb Prison Hospital. Placement in a separate non-smoking cell was recommended.
4 October 2007
Yesterday [he inflicted] self-injuries ... [there is] redness on his neck and back and several lacerations measuring approximately 2 cm, haematoma measuring 2 to 8 cm. [He is] upset, tense, anxious, expresses suicidal thoughts and intentions. Given Prazine ... and it was recommended [to take him to] the Psychiatric Ward of Zagreb Prison Hospital.
25 October 2007
[He] is not taking the treatment prescribed.
The applicant’s stay in Lepoglava State Prison from 5 November 2007 to an unspecified date in 2008
“16 November 2007
Psychiatric examination in Lepoglava State Prison: [he is] conscious, well orientated, [he is] not suicidal, [there are] no signs of psychosis, [there is] low frustration tolerance, [he is] dissatisfied with his placement, treatment and other. Placement in a smaller, non-smoking cell is recommended. [He] refuses the treatment offered (Haldol). Treatment: Apaurin ..., Fluzepan ..., stronger involvement on the part of the treatment services. D[ia]g[nosis]: Personality disorder, PTSD. [Next] check in a month.
28 November 2007
Psychiatric examination in Lepoglava State Prison by a psychiatrist from Zagreb Prison Hospital.... Placement in a smaller non-smoking cell is recommended.... Patient [is] motivated to work. It is recommended that he works if possible, which would also be curative. Psychiatric supervision as needed. D[i]g[anosis]: the same. Treatment: the same. ...
4 December 2007
Psychiatric examination in Lepoglava State Prison ... Allegedly the patient is not eating because the recommendations by psychiatrists have not been followed. We request that these recommendations be followed. On examination he is neither psychotic nor suicidal. Psychiatric supervision as needed.
18 December 2007
Psychiatric examination in Lepoglava State Prison ... tolerance towards frustrations still low, [he is] dissatisfied with treatment, [but is] motivated to work. Placement in a smaller, non-smoking cell is recommended as well as including him in the PTSD group.
Treatment: Apaurin ..., Sanval ...
Psychiatric supervision as needed.
15 January 2008
Psychiatric examination in Lepoglava State Prison ... somewhat better in view of his new job and a smaller cell, which had so far been the biggest problem. Ventilation interview. Treatment: Apaurin ..., Sanval.”
The applicant’s further transfers
3. Civil proceedings instituted by the applicant against the State
II. RELEVANT DOMESTIC LAW
“No one shall be subjected to any form of ill-treatment ...”
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after this remedy has been exhausted.
“(1) The defendant shall be informed of any charge against him and the grounds thereof from the time of the first interview.
(2) The defendant shall have the opportunity to give his or her statement on all incriminating facts and evidence, as well as facts and evidence favourable to him.
(3) The defendant is obliged neither to present his or her defence nor to answer any question. It is forbidden and punishable to extort a confession or any other statement from the defendant or any other person participating in the proceedings.”
“(1) The defendant has the right to defend himself or herself in person or through legal counsel of his or her own choosing from among the members of the Bar. Where prescribed by this Code, defence counsel shall be officially appointed in order to ensure [the right to] defence of a defendant who has declined to appoint a defence counsel.
(2) Under the conditions set out in this Code, a defendant who, owing to the lack of means to pay for legal assistance, has not chosen a defence counsel shall be provided, at his or her request, with a defence counsel at the expense of the court [conducting the proceedings].
(3) The court or another authority participating in the proceedings shall inform the defendant of his or her right to a defence counsel from the time of the first interview.
(4) The defendant shall have adequate time and facilities for the preparation of his or her defence.”
“The court [conducting the criminal proceedings] shall inform a defendant ... of his or her rights guaranteed under this Code and the consequences of failure to undertake a step required therein.”
“A defendant in pre-trial detention shall have access to a defence counsel as soon as a decision [to place him or her in] detention has been adopted and as long as the detention lasts.”
“(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention measure shall immediately be lifted.”
“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
The relevant provisions regulating the duration of detention read as follows:
Article 110 provides, inter alia, that detention ordered by an investigating judge may last one month and may be extended, for justified reasons, by a three-member judicial panel for two more months and after that for another three months. However, the maximum duration of detention during investigation shall not exceed six months.
Article 111 provides, inter alia, that following indictment detention may last until the judgment becomes final and after that until the decision imposing a prison sentence becomes final. In that period a judicial panel of three members shall assess every two months whether the conditions for detention still exist.
“(1) Prior to adoption of the first-instance judgment pre-trial detention may last for a maximum of:
2. one year for offences carrying a sentence of a statutory maximum of five years’ imprisonment;
(2) In cases where a judgment has been adopted but has not yet become operative, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one fourth of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.
(3) Where the first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.
(4) Following the adoption of the second-instance judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.
(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is sent to prison, but for no longer than the duration of his prison term.”
(5) The defendant has the right to consult and copy the case file and items intended for the assessment of facts in the proceedings.
“(1) A defendant finally sentenced to a prison term ... may lodge a request for extraordinary review of a final judgment on account of infringements of laws in circumstances prescribed by this Act.
A request for extraordinary review of a final judgment may be lodged on account of:
3. infringement of the defence rights at the main hearing ...
“Compensation may be awarded to a person who
3. owing to an error or unlawful action by a State authority ... has been kept in detention after the statutory time-limit had expired ...”
“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney’s Office.
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
PURPOSE OF A PRISON TERM
“The main purpose of a prison term, apart from humane treatment and respect for personal integrity of a person serving a prison term ... is development of his or her capacity for life after release in accordance with the laws and general customs of society.”
PREPARATION FOR RELEASE AND ASSISTANCE AFTER RELEASE
“During the enforcement of a prison sentence a penitentiary or prison shall, together with the institutions and other legal entities in charge of assistance after release, ensure that a prisoner is prepared for his or her release [from prison].”
“(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
“(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.”
INDIVIDUAL PROGRAMME FOR THE ENFORCEMENT OF A PRISON TERM
(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and facilities of a particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.
(2) The enforcement programme shall be devised by a prison governor on the proposal of a penitentiary or a prison’s expert team ...
(3) The enforcement programme shall contain information on ... special procedures (... psychological and psychiatric assistance ... special security measures ...)
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”
OBLIGATORY MEDICAL EXAMINATION
(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.”
“(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
“84. The provision of adequate psychiatric care was problematic at Lepoglava Prison. Efforts to employ a full-time psychiatrist had not been successful, due to the fact that remuneration and other working conditions fell short of those offered in health establishments; instead, two psychiatrists attended the establishment for a total of six hours a week, and a third from Zagreb Prison Hospital was involved in various programmes for different categories of patients (e.g. drug-addicts, inmates with post-traumatic-stress-disorder (PTSD), sexual offenders).
The CPT recommends that steps be taken to:
- significantly increase the hours of attendance of psychiatrists at Lepoglava Prison;
- ensure that prisoners at Lepoglava, Osijek and Rijeka Prisons benefit from the services of a psychologist.”
I. ALLEGED VIOLATIONS OF ARTICLE 3 and 8 OF THE CONVENTION
“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.”
1. The applicant’s stay in VaraZdin Prison from March 2004 to 30 March 2005 and in Zagreb Prison from 13 June to 6 July 2005
2. The applicant’s detention from 6 July 2005 to 5 November 2007
3. The applicant’s further detention from 5 November 2007 on
1. The parties’ submissions
2. The Court’s assessment
(a) Scope of the issues for consideration
- first, whether the general conditions of the applicant’s detention in various prison facilities were compatible with that provision;
- second, whether adequate steps were taken in connection with the applicant’s allegations of attacks on him by the prison personnel and other inmates; and
- third, whether the applicant received adequate medical care for his psychiatric condition.
A. COMPLAINTS TO BE EXAMINED UNDER ARTICLE 3 OF THE CONVENTION
1. General principles enshrined in the case-law
2. Application in the present case
a. General conditions of the applicant’s detention
(i) Lepoglava State Prison from 6 July 2005 to October 2006
(ii) Gospić Prison from 14 October 2006 to 6 January 2007
(iii) Pula Prison from 6 January to 5 November 2007
b. Alleged assaults on the applicant in prison
(i) Incident of 18 September 2006
(ii) Incident of 21 January 2007
(iii) Incident of 17 February 2007
There has accordingly been no violation of Article 3 of the Convention under its procedural limb.
B. COMPLAINTS TO BE EXAMINED UNDER ARTICLE 8 OF THE CONVENTION
There has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 5 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 6 § 3
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
The parties’ arguments
The Court’s assessment
The parties’ arguments
The Court’s assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
- the general conditions of the applicant’s detention from 6 July 2005 to 5 November 2007;
- the alleged assaults on the applicant by the prison personnel and the lack of an effective and thorough investigation into those allegations;
- the lack of adequate psychiatric care during the applicant’s detention; and
- the applicant’s right to a fair hearing in the criminal proceedings against him; and declares
- the remainder of the application inadmissible;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant;
(ii) EUR 2,550 (two thousand five hundred fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 26 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Rozakis, Spielmann and Jebens is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN AND JEBENS