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DOLENEC v. CROATIA - 25282/06 [2009] ECHR 1946 (26 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1946.html
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[2009] ECHR 1946
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FIRST
SECTION
CASE OF DOLENEC v. CROATIA
(Application
no. 25282/06)
JUDGMENT
STRASBOURG
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,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
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:
PROCEDURE
The
case originated in an application (no. 25282/06) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Branko Dolenec (“the
applicant”), on 19 May 2006.
The
applicant, who had been granted legal aid, was represented by Mr M.
Ramušćak, a lawyer practising in VaraZdin. The Croatian
Government (“the Government”) were represented by their
Agent, Mrs Š. StaZnik.
On
11 December 2007 and 17 December 2008 the President of the First
Section decided to communicate the complaints under Article 3 of the
Convention concerning the general conditions of the applicant’s
detention, the alleged lack of adequate medical care and the alleged
attacks on the applicant by prison personnel; the complaints under
Article 5 §§ 1 and 3 of the Convention concerning the
applicant’s deprivation of liberty between 2 and 30 March
2005; the complaint under Article 8 of the Convention concerning the
applicant’s allegations that he was placed in a cell with
smokers; the complaints under Article 6 § 3 (b) and (c)
concerning his inability to engage the services of a defence counsel
at the hearing held on 1 April 2005 and afterwards and the
alleged lack of possibility to consult the case file to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and is at present serving a prison term in
Gospić Prison.
1. Criminal proceedings against the applicant
On
an unspecified date an investigation was opened in respect of the
applicant, who was suspected of having committed a number of thefts
and aggravated thefts.
On
20 February 2004 a VaraZdin County Court investigating judge
(istraZni sudac Zupanijskog suda u VaraZdinu) issued a warrant
for the search of the applicant’s flat. The search was carried
out by the police on 23 February 2004 and a number of items were
seized.
The
applicant was arrested on 23 February 2004 at 10 p.m. but was
released on 24 February 2004 at 6.00 p.m.
On
1 March 2004 the applicant was indicted in the Prelog Municipal Court
(Općinski sud u Prelogu) on numerous counts of theft and
aggravated theft. He was represented in these proceedings by an
officially appointed defence counsel.
He
was arrested again on 2 March 2004 and placed in pre-trial detention
in VaraZdin Prison (Zatvor VaraZdin) and later on in other
prison facilities (see below).
During
the criminal proceedings against him, the applicant was examined by a
psychiatrist and, in a psychiatric report of 16 May 2004, it was
established that the applicant suffered from post-traumatic stress
disorder (PTSD).
In
a judgment of the Prelog Municipal Court of 26 August 2004 the
applicant was found guilty of twenty counts of theft and aggravated
theft and sentenced to six years and six months’ imprisonment.
The applicant appealed against the judgment to the Čakovec
County Court (Zupanijski sud u Čakovcu) complaining about
the outcome of the proceedings and also that his defence rights had
been violated in that he had not been informed of the hearings in
time to prepare his defence and that he had not had sufficient
contact with the officially appointed defence counsel.
On
1 October 2004 the applicant was taken to the Prelog Municipal Court,
where he examined the case file. His request that certain documents
be copied for him was complied with.
The
first-instance judgment of 26 August 2004 was quashed on 14 January
2005 by the Čakovec County Court which extended the applicant’s
detention at the same time. The first-instance judgment was quashed,
inter alia, on the grounds that the applicant had not been
informed of the hearings in time to prepare his defence and that he
had not had sufficient contact with the officially appointed defence
counsel.
On
30 January 2005 the applicant lodged a request with the Prelog
Municipal Court seeking permission to contact his officially
appointed defence counsel and some other persons. On 2 February the
Municipal Court allowed the applicant unrestricted telephone
communication with his defence counsel.
At
a hearing held on 3 February 2005 the applicant challenged the
presiding judge for bias. The defence counsel opposed the challenge.
The hearing was adjourned pending the decision on the applicant’s
objection. In his submission of the same date the defence counsel
requested to be relieved of his duties.
On
4 February 2005 the President of the Prelog Municipal Court dismissed
the applicant’s challenge to the presiding judge as unfounded.
On the same day the presiding judge relieved the officially appointed
defence counsel of his duties and the president of the court
appointed a new defence counsel. The applicant was allowed
unrestricted telephone communication with his new counsel.
On
14 February 2005 the applicant informed the presiding judge that his
attempts to contact his newly appointed defence counsel had remained
unsuccessful, since there had been no answer to his calls, and
requested a visit from his defence counsel in prison since the next
hearing had been scheduled for 17 February 2005. On the same day the
presiding judge allowed an unlimited number of visits to the
applicant’s sister and mother but made no decision about the
request concerning the defence counsel. However, the hearing
scheduled for 17 February 2005 was adjourned on the oral request of
the defence counsel, in order to prepare the defence. The next
hearing was scheduled for 10 March 2005.
In
the meantime, on 11 February 2005, the Prelog Municipal Court further
extended the applicant’s detention. A subsequent request by the
applicant that his detention be lifted was dismissed on 23 March 2005
by the Prelog Municipal Court. The applicant appealed against this
decision.
On
7 March 2005 the applicant lodged a request with the presiding judge
for leave to consult the case file. He alleged that on 1 October
2004, when he had been brought to the Prelog Municipal Court, he had
not had sufficient time to consult the entire file and that not all
copies he had requested had been given to him and that at that time
the case file had not yet been completed. This request remained
unanswered.
At
the beginning of the hearing of 10 March 2005 the applicant insulted
the presiding judge and was removed from the courtroom, followed by
his defence counsel. Soon afterwards counsel returned and challenged
the presiding judge, and the hearing was adjourned. On 14 March 2005
the President of the Prelog Municipal Court dismissed the challenge
as unfounded.
Upon
the appeal by the applicant against the decision of 23 March 2005, on
30 March 2005 the Čakovec County Court quashed the
first-instance decision and ordered the applicant’s immediate
release. It found that, pursuant to the relevant provisions of the
Criminal Procedure Act, the statutory time-limit for the applicant’s
detention had expired on 2 March 2005 and that therefore there had
been no grounds for keeping him in detention after that date.
The
applicant was released on 30 March 2005. On 31 March 2005 the
presiding judge relieved the applicant’s officially appointed
defence counsel of his duties.
The
next hearing before the Prelog Municipal Court was held on 1 April
2005. The applicant was present in person, but legally unrepresented.
The transcript of the hearing shows that the applicant expressly
stated that he did not want a defence counsel and decided to remain
silent. The applicant did not sign the transcript of the hearing. In
a judgment adopted on the same day, the first-instance court again
found the applicant guilty of twenty counts of theft and aggravated
theft and sentenced him to six years and six months’
imprisonment. Immediately after the hearing the applicant was
detained and placed in VaraZdin Prison. On the same day the same
defence counsel was officially assigned to the applicant.
The
applicant appealed against the first-instance judgment on 4 and 22
April 2005, alleging that his defence rights had been violated in
that he had not been given an opportunity to consult the case file.
He alleged that on 1 October 2004 he had been brought to the Prelog
Municipal Court in order to consult the case file. However, owing to
the large volume of documents in the case file, the time allowed for
that purpose had not permitted him to consult all the documents he
had wished to. It had therefore been agreed that the requested
documents would be copied and sent to him in prison. However, this
request had only partially been complied with and he had never had an
opportunity to read the whole case file. He further alleged that he
had complained about this at the hearing held on 1 April 2005 but
that his allegations had been ignored. He further complained that the
search of his premises had been carried out in contravention of the
relevant provisions of the Code of Criminal Procedure because the
requirement that two witnesses be constantly present had not been
complied with. He also complained about the qualification of some of
the offences as aggravated theft instead of theft and about the
severity of the sentence.
On
18 April 2005 the officially appointed defence counsel also lodged an
appeal, referring to the factual findings of the first-instance
court.
On
an unspecified date the applicant asked the Prelog Municipal Court if
he could consult the case file. In its letter of 28 April 2005
addressed to the Head of Prison Administration at the Ministry of
Justice, a copy of which was also forwarded to the applicant, the
president of that court allowed the applicant’s request. The
applicant then requested that a date be fixed for consulting the case
file. The President of the Prelog Municipal Court replied that the
consultation was not possible because the case had been forwarded to
the Čakovec County Court upon an appeal against the
first-instance judgment. In a letter of 13 May 2005 a judge of the
same court informed the applicant that his request had been granted
and that the case file had been forwarded to the Čakovec County
Court.
On
17 May 2005 the Čakovec County Court allowed the applicant’s
appeal in the part concerning the qualification of certain offences
and reduced the sentence to six years and four months’
imprisonment while dismissing the remainder of his complaints. The
relevant parts of the appeal judgment read as follows:
“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
applicant then lodged a request for extraordinary review of a final
judgment.
In
response to repeated requests by the applicant to consult the case
file, the President of the Municipal Court informed him in a letter
of 7 November 2005 that his request could not be granted because the
case file had been forwarded to the Supreme Court.
On
22 November 2005 the Supreme Court (Vrhovni sud Republike
Hrvatske) dismissed the applicant’s request for
extraordinary review of a final judgment. The relevant parts of the
judgment read as follows:
“.. 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
reply to a further request to consult the case file, lodged by the
applicant on 23 January 2006, the President of the Prelog Municipal
Court informed the applicant that his request could not be granted
because the case file had been forwarded to the VaraZdin Municipal
Court (Općinski sud u VaraZdinu).
A
constitutional complaint subsequently lodged by the applicant was
declared inadmissible on 23 February 2006 by the Constitutional Court
(Ustavni sud Republike Hrvatske) on the grounds that the
impugned decision, namely the Supreme Court’s judgment of 22
November 2005, had not concerned the merits of the case. The relevant
part of the decision reads:
“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
medical documentation submitted by the parties shows that the
applicant has been diagnosed as suffering from PTSD and a personality
disorder.
The applicant’s stay in VaraZdin Prison
The
applicant was arrested on 23 February 2004 at 10 p.m. and released on
24 February 2004 at 6.00 p.m. He was arrested again on 2 March 2004
and placed in pre-trial detention in VaraZdin Prison. As to the
latter, the applicant alleges that the cells were overcrowded, that
he was placed in a smoking cell and that he was only allowed to spend
fifteen to twenty minutes a day in the fresh air. On 11 June 2004 the
applicant was transferred to Zagreb Prison Hospital further to his
complaint that he suffered from being placed in a cell with smokers.
The discharge letter of 15 June 2004 shows that no lung disease had
been established. The applicant was returned to VaraZdin Prison.
In
a complaint of 7 July 2004 addressed to the Prison Administration of
the Ministry of Justice (Uprava za zatvorski sustav Ministartsva
pravosuđa), the applicant complained about his placement in
a cell with smokers. In a letter of 12 July 2007 of the VaraZdin
Prison authorities, addressed to the above Administration, it was
explained that, owing to overcrowded conditions in that prison, it
was not possible to place the applicant in a cell with non-smokers
only. This information was forwarded to the applicant in a letter of
the Prison Administration of the Ministry of Justice of 16 July 2004.
In
his complaint of 12 October 2004 addressed to the VaraZdin County
Court, the applicant complained, inter alia, about the
conditions in detention and, in particular, that he was placed in a
cell with smokers and was allowed only fifteen to twenty minutes
daily outdoor exercise. The applicant’s complaints remained
unanswered.
In
October 2004 the applicant was released.
The
applicant was again detained in January 2005 and placed in VaraZdin
Prison until 30 March 2005, when he was released.
On
1 April 2005, after his conviction by the Prelog Municipal Court, the
applicant was arrested and again placed in VaraZdin Prison. He was
placed in cell no. 15, measuring 10.26 square metres, together with
one other inmate, a non-smoker.
On
1 May 2005 the applicant made a commotion in his cell by banging
chairs and his bed and verbally insulting the prison personnel. He
was taken out of his cell and strapped down in a special cell. There
is no written record of this measure or its exact duration.
During
an outdoor walk on 13 May 2005 an attempt by the applicant to hit
another inmate was prevented by a prison guard. The applicant was
strapped down in a special cell and returned to his regular cell the
same day. There is no written record of this measure or its exact
duration. The same day the applicant attempted to attack a prison
guard. As a consequence, he was strapped to his bed. There is no
written record of this measure or its exact duration. Furthermore,
the same day the applicant was transferred to Zagreb Prison Hospital.
The relevant part of the discharge letter of 25 May 2005 reads:
“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.”
He
was returned to VaraZdin Prison to the same cell. The medical record
shows that he refused food from 12 to 23 May 2005, but did take
liquids and vitamin pills.
On
8 June 2005, following an incident in which the applicant started
breaking furniture in his cell, he was sent to the prison doctor.
However, he verbally insulted the doctor and other medical personnel
and was strapped down in cell no. 16. There is no written record of
this measure or its exact duration.
The applicant’s stay in Zagreb Prison from 13
June to 6 July 2005
On
13 June 2005 the applicant was transferred to Zagreb Prison, where he
was placed in the Department for Diagnostics and Programming (Odjel
za dijagnostiku i programiranje). A report on the general
examination of the applicant, in so far as relevant, reads as
follows:
“...
DIAGNOSTIC INFORMATION
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.
...
WORKING CAPACITY
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”
The
relevant part of the applicant’s medical record during his stay
in Zagreb Prison reads:
“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 ...
...”
On
6 July 2005 the applicant was transferred to Lepoglava State Prison.
The applicant’s stay in Lepoglava State Prison
from 6 July 2005 to 14 October 2006
From
July to September 2005 the applicant was placed in cell no. 5,
measuring 9.12 square metres, together with three other inmates.
Adjacent to the cell and for the exclusive use of the inmates
occupying the cell was a tiled area measuring 2.15 square metres.
From September to December 2005 the applicant was placed in cell no.
9, measuring 9.82 square metres, together with three other inmates.
He was able to use a bathroom and toilet area measuring 20.9 square
metres.
On
1 September 2005 the applicant petitioned the VaraZdin County Court
judge responsible for the execution of sentences (sudac izvršenja
Zupanijskog suda u VaraZdinu), complaining about conditions in
Lepoglava State Prison. He explained that he had been continually
placed in a cell with smokers and that he was detained in overcrowded
conditions. He further complained that he had not been receiving any
treatment for his psychiatric ailments, in particular the PTSD, and
that he was being given no psychiatric treatment at all. He also
complained that the examination by a doctor, who had seen him on 8
July 2005 in order to establish his fitness to work in prison, had
lasted two minutes. In a letter of 11 October 2005 the judge found
that the applicant was allowed to use some of his personal items,
that he had complained about his placement in a smoking cell, that he
had adequate medical care, and that he had been on hunger strike
between 2 and 14 September 2005.
Although
upon his arrival the applicant was assigned to a non-working group,
there were subsequently several attempts to include him in working
activities. For a month, starting on 28 October 2005, the applicant
worked in a storehouse. Since his work there was found to be
unsatisfactory, on 30 November 2005 he was offered work in a
therapeutic workshop and placement in a non-smoking cell. However,
the applicant refused this offer.
On
2 December 2005 the applicant was placed in the Department with
increased supervision for a period of three months.
From
7 to 20 December 2005 the applicant was on hunger strike. He was
subsequently returned to work in a storehouse.
On
7 December 2005 the applicant again complained to the VaraZdin County
Court judge responsible for the execution of sentences about the
conditions in prison. The report of the Lepoglava State Prison
authorities of 13 December 2005 state, inter alia, that
the applicant had been included in the programme for persons
suffering from PTSD, without any further details. The applicant’s
complaints remained unanswered by the competent judge.
On
an unspecified date the applicant complained about the prison
conditions and in particular the lack of adequate medical treatment
to the Ministry of Justice. On 2 February 2006 the Ministry asked the
Lepoglava Prison authorities to submit their report on the matter.
The report of 24 February 2006, in so far as relevant, reads as
follows:
“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.
In
April and May 2006 the applicant had a number of arguments with other
inmates, which culminated on 10 May 2006 in a fight with another
inmate. The applicant was transferred to the Department with
increased supervision, owing to which he refused to take food. He
also refused a psychiatric examination scheduled for 11 May 2006.
In
his appeal of 16 May 2006 against a decision of the Lepoglava State
Prison authorities to place him in a Strict Supervision Department,
addressed to the VaraZdin County Court judge responsible for the
execution of sentences, the applicant complained, inter alia,
that he had not been regularly receiving the prescribed
pharmacotherapy. He also alleged that on 8 May 2006 he had been
attacked by his cellmate, who had allegedly attempted to strangle
him. The applicant further complained that he had been forced to
share the cell with that inmate although he had complained to the
prison authorities that later on that inmate had threatened him and
had been allowed to keep a knife in the cell. The applicant also
alleged that on 9 May 2006 he had been denied the prescribed
pharmacotherapy and had therefore asked one of the guards to take him
to the medical ward. The guard, however, had refused and threatened
to crush the applicant, following which the applicant had inflicted
self-injuries by cutting his veins, whereupon he had been taken to
the medical ward within the prison. The applicant also alleged that
on 10 May 2006, during breakfast, he had been attacked by another
inmate who bit his finger. In the report of 26 May 2006, addressed to
the judge responsible for the execution of sentences, the Lepoglava
State Prison authorities stated that the applicant had not complied
with the House Rules for a longer period. A report of the incident of
10 May 2006 was enclosed. This report stated that on 10 May 2006
during breakfast the applicant had thrown a plate at inmate M.B., who
had been washing the dishes, whereupon M.B. had jumped on the
applicant and bit his finger. The applicant had been taken to the
medical ward, while M.B. had no injuries. The report did not address
any of the incidents described by the applicant. The competent judge
did not answer the applicant’s complaint.
On
30 May 2006 the applicant wrote to the Ombudsman’s Office
(Pučki pravobranitelj). In a letter of 6 June 2006
addressed to the Head of the Prison Administration, the Deputy
Ombudsman reiterated the applicant’s allegations that he had
been attacked by other inmates on two occasions at the beginning of
May and that no steps had been taken against the perpetrators, as
well as further allegations that the applicant, although suffering
from PTSD, had not received any treatment for over a month and had
been placed in a smoking cell.
From
30 May to 21 June 2006 the applicant was transferred to Zagreb Prison
Hospital. The relevant part of the discharge letter of 21 June 2006
reads:
“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 ...”
During
the period the applicant spent in Lepoglava State Prison in May and
June 2006 he was placed in cell no. 4, measuring 10.13 square metres,
together with one other inmate, and sharing an adjacent toilet area
of 1.79 square metres. From June to September 2006 the applicant was
placed in cell no. 1, measuring 13.72 square metres, together with
three other inmates, also sharing an adjacent toilet area of 2.3
square metres. During this period the applicant spent two
non-consecutive days in solitary confinement in a cell (no. 13)
measuring 8.97 square metres.
On
1 August 2006 the applicant again petitioned the VaraZdin County
Court judge responsible for the execution of sentences, complaining
about being placed in a smoking cell. The judge replied in a letter
of 11 September 2006 that the applicant’s transfer to
another prison would be considered.
On
18 September 2006 an incident involving the use of force against the
applicant occurred. The two guards involved in the incident gave oral
statements on the same day to the Head of Security Division within
the prison. These statements and several written reports of 18 and 19
September 2006 by the Lepoglava State Prison personnel, submitted to
the prison governor, all concur that on 18 September 2006 at 12.50
p.m. the applicant had started to shout at some of them and requested
to be immediately taken to the prison doctor. One of the prison
guards had asked him to wait since the doctor had been with another
inmate, but he had continued to shout and hit the walls and metal
bars. After he had ignored warnings to calm down, he had lifted a
chair and thrown it at the prison guards and continued throwing
objects. Another guard had arrived, whereupon one of the guards had
taken the applicant by the left hand and the other by the right hand,
twisted them behind the applicant’s back and handcuffed him.
The applicant had continued to utter shouts and threats and had
therefore been taken to a special cell where he had been strapped
down. He had also refused the prison doctor’s attempt to
examine him.
Further
to these reports the Government submitted that the applicant had
refused to be examined by the prison doctor or to give a statement
about the incident. The Head of Security Division heard the two
guards involved in the incident separately. In the next two days the
applicant again refused to see the prison doctor. One of the guards
made a report on the applicant’s refusal to see the prison
doctor on 19 and 20 September 2006.
From
20 to 29 September 2006 the applicant was placed in Zagreb Prison
Hospital. The relevant part of the discharge letter of 27 September
2006 reads:
“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.“
Meanwhile,
on 25 September 2006 the applicant again petitioned the VaraZdin
County Court judge responsible for the execution of sentences,
complaining about his placement in a smoking cell. He also referred
to the incident of 18 September 2006, alleging that he had been
beaten up while in solitary confinement and that his request to see
the prison doctor had been ignored. On 6 October 2006 the judge asked
the Lepoglava State Prison authorities whether it was possible to
place the applicant in another penal institution. The applicant’s
allegations about the attack of 18 September 2006 were ignored.
During
the periods when the applicant did not work his daily regime was as
follows:
7
a.m. – 7.30 a.m. – wake up, personal hygiene, cleaning of
cells
30
a.m. – 7.45. a.m. – distribution of medicines
45
a.m. – 8.15 a.m. – breakfast
15
a.m. – 9.45 a.m. – outdoor exercise, stay in cells or
TV-room, making telephone calls
30
a.m. – 11.45 a.m. – medical treatment
45
a.m. – 12. 15. p.m. – lunch
15
p.m. – 2.00 p.m. – outdoor exercise, sport activities
00
p.m. – 3.00 p.m. – return to cells, washing and personal
hygiene
00
p.m. – 5.00 p.m. – stay in cell or in TV-room or making
telephone calls
00
p.m. – 5.15 p.m. – distribution of medicines
15
p.m. – 5.45 p.m. – dinner
45
p.m. – 7.00 p.m. – stay in cell or TV-room
00
p.m. – line-up
00
p.m. – 7.30 p.m. – cleaning of corridors, stairs,
sanitary facilities and disposal of garbage
00
p.m. – optional stay in cells
00
p.m. – lights out
45
p.m. – television sets switched off
During
the period the applicant worked his daily regime was as follows:
00
a.m. – 6.30 a.m. – wake up, personal hygiene, cleaning of
cells, distribution of medicines
30
a.m. – 6.50 – a.m. – breakfast
50
a.m. – 7.00 a.m. – departure for work
00
a.m. – 3.00 p.m. – work (with a meal break from 10.00
a.m. to 10.30 a.m.)
p.m.
– 5.15. p.m. – lunch, outdoor exercise, optional stay in
cell or TV-room, washing, making telephone calls
30
p.m. – 6.00 p.m. – distribution of medicines, personal
hygiene
00
p.m. – line-up
00
p.m. – optional stay in TV-room
00
p.m. – optional stay in cell
00
p.m. – lights out
45
p.m. - television sets switched off
During
his stay at the Department with increased supervision the applicant’s
daily regime was as follows:
00
a.m. – 8.00 a.m. – wake up, personal hygiene, cleaning of
cells
00
a.m. – 8.15. a.m. – distribution of medicines
15
a.m. – 8.45 a.m. – breakfast
45
a.m. – 9.a.m. – personal hygiene
00
a.m. – 11.00 a.m. – outdoor exercise for one group while
the other group stays in TV-room
00
a.m. – 11.45. a.m. – personal hygiene of the group that
went outdoors
45
a.m. – noon – distribution of medicines
Noon
– 12.30 p.m. – lunch
00
p.m. – 2.00 p.m. – personal hygiene
00
p.m. – 2.00 p.m. – stay in cells
00
p.m. – 4.00 p.m. – outdoor exercise for one group while
the other group stays in TV-room
00
p.m. – 5.00 p.m. – personal hygiene of the group which
went outdoors
00
p.m. – 5.45 p.m. – stay in cells
00
p.m. – 6.30 p.m. – dinner
30
p.m. – 7.00 p.m. – personal hygiene
00
p.m. – line up
00
p.m. – 7.30 p.m. – cleaning of corridors, stairs,
sanitary facilities and disposal of garbage
00
p.m. – optional stay in cells
00
p.m. –lights out
45
p.m. – television sets switched off
The
Government submitted that at his arrival at Lepoglava State Prison
the applicant had been included in the programme for prisoners
suffering from PTSD and that in addition he had been continuously
monitored by a psychiatrist. Later on, owing to the applicant’s
ill-adapted behaviour and conflicts with other prisoners he had been
offered the possibility of joining a different therapy workshop,
which he had refused. The Government did not specify, however, the
dates of the applicant’s group or individual therapy sessions.
The
Government submitted the Lepoglava State Prison programme of therapy
for inmates suffering from PTSD. The programme included one-hour
weekly meetings of three small groups (five to twelve persons) who
met on their own in order to discuss their problems. Each group was
led by a member of the prison personnel. The qualifications or
occupation of these persons was not specified; nor was it specified
whether they attended the group meetings or not. The therapists met
once a month with two psychiatrists in and outside the prison clinic
and once a month in the prison. Participation in therapy groups was
voluntary.
The
relevant part of the applicant’s medical record during his stay
in Lepoglava State Prison reads:
“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.
...”
On
14 October 2006 the applicant was transferred to Gospić Prison.
The applicant’s stay in Gospić Prison from
14 October 2006 to 6 January 2007
The
applicant was placed, together with one other inmate, in a cell
measuring 13.13 square metres with an adjacent toilet area measuring
3.2 square metres. The cell was furnished with two beds, two
cupboards, a table and two chairs. A bathroom was available to the
applicant the whole day. He did not work.
During
his stay in this prison the applicant did not work and did not
receive any treatment for his PTSD. His daily regime was as follows:
30
a.m. – wake up
30
– 7.00 a.m. – personal hygiene
00
– 7.30 p.m. – breakfast
30
– 8.30 – possibility to see prison doctor
One
hour between 8.30 a.m. and 1.00 p.m. – outdoor exercise
00
p.m. – 1.30 p.m. – lunch
One
hour between 1.30 p.m. – 5.00 p.m. – exercise in the
sports hall
00
p.m. – 6.00 p.m. – leisure time, one-hour outdoor
exercise
00
p.m. – 6.30 p.m. – dinner
30
p.m. – 8.00 p.m. – leisure time
00
p.m. – 10.00 p.m. – stay in TV-room or reading
00
p.m. – bed-time
On
6 November 2006 the applicant complained to the Head of the Prison
Administration about the conditions in prison. He was answered in a
letter of 30 November 2006 stating that his treatment had been
humane, professional and in accordance with the legislative
standards.
On
6 January 2007 the applicant was transferred to Pula Prison
The applicant’s stay in Pula Prison from 6
January to 5 November 2007
Initially,
he was placed, together with another inmate, a non-smoker, in a cell
measuring 10.2 square metres, furnished with two beds, two cupboards,
a table and two chairs, with an adjacent toilet area measuring 3.98
square metres. The cell was heated by a radiator. The applicant did
not work, had the possibility of spending time outdoors every day
between noon and 2 p.m. and again between 6.30 p.m. and 8.30 p.m.
During his leisure time the applicant was involved in the computer
group.
On
21 January 2007 an incident occurred involving the use of force
against the applicant. According to the Government, at 8 p.m. that
day two prison guards, E.L. and I.O., were distributing
pharmacotherapy to the inmates in their cells. The applicant had
refused to take the prescribed medication. At 10 p.m. he had taken
the prescribed medication but also asked for the medicine he had
refused to take at 8 p.m.. His request had been refused. After the
guards in charge had left his cell the applicant had started shouting
and banging. The guards had returned and the applicant had made an
attempt to kick one of them. The guards had taken the applicant,
pushed him to the floor and handcuffed his hands behind his back. The
applicant had continued resisting, hitting and shouting. Two other
guards had arrived and the applicant was tied down in a separate
cell. One of the guards had noticed a laceration next to the
applicant’s right eye and asked if he wished to see the prison
doctor, which the applicant had refused, demanding to see a
psychiatrist. He also refused to sign the report on the incident and
the statement that he had not wished to see the prison doctor.
On
the same day the guard on duty, N.B., made a report on the incident,
which was submitted to the Head of Security. The guards E.I. and I.O.
also made their reports on the incident. On 24 January E.I. and I.O.
gave their oral statements to the officer in charge.
On
an unspecified date the applicant wrote to the Ministry of Family,
War Veterans and Inter-Generational Solidarity, which forwarded his
complaint about the conditions in Pula Prison to the Head of the
Prison Administration on 26 January 2007. The complaint remained
unanswered.
On
8 February 2007 the applicant was transferred to a single occupancy
cell measuring 8.73 square metres, with an adjacent toilet area.
According to the Government, the cell had a window measuring 0.9
square metres and was heated by a radiator. The applicant was
provided with a television set. He was able to use a common bathroom
on request.
On
17 February 2007 another incident occurred. According to the
applicant, he had been placed in solitary confinement and one of the
guards thumped him several times on the left side of his chest.
On
21 and 22 February the applicant was examined by a doctor. The
relevant part of the medical report reads:
“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.”
On
26 February 2007 the applicant was heard by a judge responsible for
the execution of sentences of the Pula County Court. He stated that
on 21 January 2007 at around 8 p.m. two prison guards, I.O. and E.L.,
had been administering pharmacotherapy to the inmates in Pula Prison.
The applicant had complained that he had to take his therapy at 10
p.m. The guards had replied that they would make a note that the
applicant had refused therapy. The applicant had then opened a
cupboard in his cell in order to show them his medical documentation
confirming his allegations. Since the guards had left, the applicant
had stamped in order to make them return since there was no other way
of drawing their attention. The guards had returned and opened the
applicant’s cell. One of them had stamped on the applicant’s
foot and the other had hit him in the head, while shouting at him. He
further stated that, on 17 February 2007, while he had been placed in
solitary confinement, four guards had arrived and strapped him to the
bed, which he had not resisted. One of the guards had hit him several
times on the left side of his body. The applicant had begged him to
stop since he had heart problems. The same guard had also threatened
to leave the applicant strapped down for twenty-four hours.
The
Pula Prison authorities filed a report with the Pula County Court on
9 March 2007. The relevant part of the report reads:
“...
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.
...”
In
a letter of 23 March 2007 the judge responsible for the execution of
sentences of the Pula County Court replied to the applicant that the
report submitted by the prison authorities showed that on 21 January
2007 the prison guards had acted in accordance with the law and that
on 17 February 2007 he had been placed in solitary confinement
because he had threatened to inflict self-injuries and that neither
coercive measures had been applied not any threats made against him.
The relevant part of the letter reads:
“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.”
On
27 March 2007 the applicant objected to the findings of the judge
responsible for the execution of sentences and reiterated that on 17
February 2007 he had been strapped down for twelve hours in solitary
confinement and beaten up by a prison guard. He further complained of
lack of treatment for PTSD. On 16 May 2007 the judge replied to the
applicant by letter, stating that his objections were unfounded.
On
24 May 2007 the applicant was assigned to work in the prison shop.
According to the Government, until 6 August 2007 his comportment was
fully satisfactory, when he suddenly started to verbally insult the
prison personnel and other inmates. Owing to such frequent incidents
and his exacerbated psychiatric condition, on 24 August 2007 he had
again been assigned to a non-working group.
From
24 September to 3 October 2007 the applicant worked in the prison
library. On the latter date he again started verbally insulting and
attempting to physically attack the prison personnel because he was
dissatisfied with the prospect of being placed in a cell with another
inmate.
On
4 October 2007, owing to his worsening psychiatric condition and the
self-infliction of injuries, the applicant was transferred to Zagreb
Prison Hospital. The relevant part of the discharge letter of 18
October 2007 reads as follows:
“Diagnosis: Personality disorder
PTSD
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.”
On
19 October 2007 the applicant was returned to Pula Prison and placed
in a single-occupancy cell identical to the one in which he had
stayed prior to his transfer to the hospital. The Government
submitted that although there had been group therapy for inmates
suffering from PTSD in Pula Prison since 5 October 2007, the
applicant, owing to his mental condition which included impulsive
behaviour, emotional instability and tendency towards aggressive
behaviour, had not been included in that therapy. However, they
submitted that psychiatric supervision had been carried out as
needed, without any further details.
The
relevant part of the applicant’s medical record during his stay
in Pula Prison reads:
“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.
...”
On
5 November 2007 the applicant was transferred back to Lepoglava State
Prison.
The applicant’s stay in Lepoglava State Prison
from 5 November 2007 to an unspecified date in 2008
The
relevant part of the applicant’s medical record during his
second stay in Lepoglava State Prison reads:
“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
On
an unspecified date in 2008 the applicant was transferred to VaraZdin
Prison where he stayed until 27 April 2009 when he was transferred to
Zadar Prison. On 8 June 2009 he was transferred to Pula Prison and on
28 July 2009 to Zagreb Prison.
3. Civil proceedings instituted by the applicant
against the State
As
to the twenty-eight days of his unlawful detention between 2 and 30
March 2005, on 28 October 2005 the applicant applied to the Ministry
of Justice (Ministarstvo Pravosuđa) for compensation in
the sum of 500 Croatian kunas (HRK) per day and HRK 5,500 for lost
earnings. Since he received no reply, the applicant brought a civil
action against the State in the Prelog Municipal Court, seeking the
above amounts in connection with his unlawful detention. He also
complained that since 2 March 2004 he had been detained in
inadequate, small and overcrowded cells and only allowed to spend
fifteen to twenty minutes a day in the fresh air, and also that he
had been detained with smokers, minors and convicts between 14 July
and 26 September 2004. He further complained of inadequate conditions
in the prison hospital and Lepoglava State Prison, as well as
inadequate medical care. In this connection he alleged that he had
not been provided with eye glasses and that an examination of his
head had been carried out late, while an examination of his spine had
not been carried out at all, and that he had not been provided with
the requisite psychiatric treatment although he suffered from PTSD.
He also alleged that he had been strapped to his bed and forced to
spend long periods confined in the same room with smokers, all of
which resulted in immense physical and mental suffering. The
applicant complained in addition that he had had no opportunity to
consult the case file during the criminal proceedings against him. He
sought HRK 469,500 under all the above heads.
On
24 April 2006 the Prelog Municipal Court declared the applicant’s
action inadmissible on the grounds that he had failed to firstly seek
compensation with the competent State Attorney’s Office. The
first-instance decision was quashed by the Čakovec County Court
and the case was remitted to the Municipal Court for fresh
examination. On 7 November 2008 the Municipal Court again declared
the applicant’s claim inadmissible on the same grounds. The
applicant lodged an appeal and the appeal proceedings are still
pending.
II. RELEVANT DOMESTIC LAW
Article
23 of the Croatian Constitution (Ustav Republike Hrvatske)
provides:
“No one shall be subjected to any form of
ill-treatment ...”
The relevant part of section 62 of the Constitutional
Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni
zakon o Ustavnom sudu Republike Hrvatske) reads as follows:
Section 62
“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.
...”
The
relevant part of the Code of Criminal Procedure (Official Gazette
nos. 62/2003 – Zakon o kaznenom postupku) provides as
follows:
Article 4
“(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.”
Article 5
“(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.”
Article 13
“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.”
Article 65
“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.”
Article 104
“(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.”
Article 105
“(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.
Article 114
“(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.”
Article 164
“...
(5) The defendant has the right to consult and copy the
case file and items intended for the assessment of facts in the
proceedings.
...”
Article 425
“(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.
...”
Article 427
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 ...
Article 498
“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 ...”
Article
217 of the Criminal Code (Osnovni krivični zakon,
Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001
and 111/2003), imposes, inter alia, a sentence of up to five
years’ imprisonment for aggravated theft.
The
relevant part of section 186(a) of the Civil Procedure Act (Zakon
o parničnom postupku, Official Gazette nos. 53/91, 91/92,
58/93, 112/99, 88/01 and 117/03 reads as follows:
“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.
...”
The
relevant provisions of the Enforcement of Prison Sentences Act (Zakon
o izvršavanju kazne zatvora, Official Gazette
nos. 128/1999 and 190/2003) read as follows:
PURPOSE OF A PRISON TERM
Section 2
“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
Section 13
“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].”
COMPLAINTS
Section 15
“(1) Inmates shall have the right to complain
about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with
a prison governor, a judge responsible for the execution of sentences
or the Head Office of the Prison Administration. Written complaints
addressed to a judge responsible for the execution of sentences or
the Head Office of the Prison Administration shall be submitted in an
envelope which the prison authorities may not open ...”
JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE
PRISON ADMINISTRATION
Section 17
“(1) An inmate may lodge a request for
judicial protection against any acts or decisions unlawfully denying
him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be
decided by the judge responsible for the execution of sentences.”
INDIVIDUAL PROGRAMME FOR THE ENFORCEMENT OF A PRISON
TERM
Section 69
(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 ...)
...”
HEALTH PROTECTION
Section 103
“(1) Inmates shall be provided with medical
treatment and regular care for their physical and mental health...”
OBLIGATORY MEDICAL EXAMINATION
Section 104
“...
(2) A doctor shall examine a sick or injured inmate ...
and undertake all measures necessary to prevent or cure the illness
and to prevent deterioration of the inmate’s health.”
SPECIALIST EXAMINATION
Section 107
“(1) An inmate has the right to seek a specialist
examination if such an examination has not been ordered by a prison
doctor.
...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
The
relevant part of the Report to the Croatian Government on the visit
to Croatia carried out by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment from 4 to
14 May 2007 reads:
“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.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 and 8 OF THE CONVENTION
The
applicant complained about the general conditions of his detention in
various prisons and alleged that the prison authorities had failed to
secure him adequate medical care for his psychiatric condition, in
particular PTSD. He further complained that on several occasions he
had been attacked by prison personnel and other inmates and that no
steps had been taken in this respect. The applicant also complained
of the fact that he had been placed in a cell with smokers. He relied
on Articles 3 and 8 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested these arguments.
A. Admissibility
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
The
Government firstly argued that in respect of the period the applicant
had spent in VaraZdin Prison from March 2004 until 30 March 2005 the
application had been lodged with the Court outside the six-month
time-limit.
The
applicant made no comments.
The
Court notes that the applicant’s first pre-trial detention in
VaraZdin Prison ended on 30 March 2005, when he was released. Thus,
the six-month period in respect of the conditions of the applicant’s
detention in that period started to run on 31 March 2005. As regards
the applicant’s stay in Zagreb Prison, the Court notes that it
ended on 6 July 2005.
However,
the applicant lodged his application with the Court on 19 May 2006,
more than six months later.
It
follows that the part of the application concerning the applicant’s
complaints about this stay in VaraZdin Prison from March 2004 to 30
March 2005 and in Zagreb Prison from 13 June to 6 July 2005 has been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
2. The applicant’s detention from 6 July 2005 to
5 November 2007
The
Government requested the Court to declare the complaints under
Article 3 of the Convention inadmissible for failure to exhaust
domestic remedies. They submitted that the 1999 Enforcement of Prison
Sentences Act envisaged a number of remedies for the protection of
the rights of persons deprived of liberty, including judicial
protection against proceedings and decisions of the prison
administration. The applicant should have firstly addressed his
complaints to the prison administration. The applicant had, however,
addressed only some of his complaints directly to a judge responsible
for the execution of sentences.
The
applicant argued that he had exhausted all available remedies.
According
to the Court’s established case-law, where an applicant has a
choice of domestic remedies, it is sufficient for the purposes of the
rule of exhaustion of domestic remedies that that applicant make use
of the remedy which is not unreasonable and which is capable of
providing redress for the substance of his or her Convention
complaints (see, inter alia, Hilal v. the United Kingdom
(dec.), no. 45276/99, 8 February 2000, and Krumpel and Krumpelová
v. Slovakia, no. 56195/00, § 43, 5 July 2005).
Indeed, where an applicant has a choice of remedies and their
comparative effectiveness is not obvious, the Court interprets the
requirement of exhaustion of domestic remedies in the applicant’s
favour (see Budayeva and Others v. Russia, nos. 15339/02,
21166/02, 20058/02, 11673/02 and 15343/02, § 110, ECHR
2008-... (extracts), and the cases cited therein). Once the applicant
has used such a remedy, he or she cannot also be required to have
tried others that were also available but probably no more likely to
be successful (see Ivan Vasilev v. Bulgaria, no. 48130/99,
§ 56, 12 April 2007 and the cases cited therein).
As
to the remedies available to the applicant under the Enforcement of
Prison Sentences Act, the Court notes that section 5(2) of that Act
clearly provides that complaints shall be lodged orally or in writing
with a prison governor, a judge responsible for the execution of
sentences or the Head Office of the Prison Administration of the
Ministry of Justice. It follows that the applicant could have
addressed his complaints to any of these authorities (see Štitić.v.
Croatia, no. 29660/03, § 27, 8 November 2007).
In
this connection the Court notes that on 1 September and 7 December
2005 the applicant made complaints to the VaraZdin County Court judge
responsible for the execution of sentences about the conditions in
Lepoglava State Prison and the lack of adequate psychiatric
treatment. The latter complaint he repeated to the Ministry of
Justice. Again, in his appeal of 16 May 2006 against the decision of
the Lepoglava State Prison authorities to place him in a Strict
Supervision Department, addressed to the VaraZdin County Court judge
responsible for the execution of sentences, the applicant complained
of the lack of adequate medical treatment and his conflicts with
other inmates. The applicant’s complaint of 30 May 2006,
addressed to the Ombudsman’s Office, was forwarded to the Head
of Prison Administration. In his further complaint to the VaraZdin
County Court judge responsible for the execution of sentences, of 25
September 2006, the applicant complained of the use of force against
him on 18 September 2006.
During
his stay in Gospić Prison, on 6 November 2006 the applicant
complained to the Head of the Prison Administration.
A
complaint about conditions in Pula Prison was sent to the Ministry of
Family, War Veterans and Inter-Generational Solidarity, which
forwarded it to the Head of the Prison Administration on 26 January
2007. The applicant also complained about the incidents in Pula
Prison of 21 January and 17 February 2007 in his oral statement given
before the Pula County Court judge responsible for the execution of
sentences.
It
follows that the applicant did complain both to the competent judges
responsible for the execution of sentences and to the Prison
Administration. In the Court’s view this choice was in
conformity with the domestic legislation. However, the judges did not
institute any proceedings upon the applicant’s complaints; nor
did they issue a decision on them. Instead, they replied to the
applicant by letters.
The
Court finds that the applicant, by complaining to the competent
judges responsible for the execution of sentences and the Prison
Administration, made adequate use of the remedies provided for in the
domestic law that were at his disposal in respect of his complaints
concerning the inadequate prison conditions and the lack of adequate
medical assistance as well as the alleged attacks on him by the
prison guards on three separate occasions. Accordingly, the
complaints concerning the applicant’s stay in Lepoglava State
Prison from 6 July 2005 to 14 October 2006, in Gospić Prison
from 14 October 2006 to 6 January 2007 and in Pula Prison from 6
January to 5 November 2007, cannot be dismissed for failure to
exhaust domestic remedies (see Štitić.v. Croatia,
cited above, § 30).
The
Court finds that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
3. The applicant’s further detention from 5
November 2007 on
As
regards the applicant’s stay in various detention facilities
after 5 November 2007, the Court notes that the applicant has not
shown that he has exhausted available domestic remedies. It follows
that this part of the application must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
B. Merits
1. The parties’ submissions
The
applicant made global complaints about his overall detention. He
maintained that he had been placed in overcrowded cells, mostly with
smokers, although he did not smoke. He further argued that although
he had been suffering from post-traumatic stress disorder, he had not
received any treatment in this connection. The applicant also alleged
that on three separate occasions, namely, on 18 September 2006 and 21
January and 17 February 2007, he had been beaten up by prison
personnel and that no adequate steps had been taken by the relevant
domestic authorities to investigate these allegations.
The
Government also submitted global arguments as regards the overall
period of the applicant’s detention. They argued that the
conditions of the applicant’s detention had not amounted to
inhuman treatment within the meaning of Article 3 of the Convention.
They maintained that he had had adequate cell space and that he had
been able to have at least two hours’ fresh air daily. As
regards the working opportunities and leisure activities, the
Government submitted that during his detention after conviction the
applicant had had a possibility to work and it had depended on him to
benefit from it. He had also been able to undergo computer training,
watch television or read.
As
regards the psychiatric treatment, the Government argued that none of
the experts had established that the applicant’s mental
condition had been incompatible with serving a prison term in a
regular prison. The applicant had been under constant psychiatric and
medical supervision. Whenever his condition had worsened, he had been
placed in a hospital or his treatment had been adjusted. He had been
administered the prescribed pharmacotherapy. He had been involved in
PTSD group-therapy sessions while in Lepoglava State Prison. While
in Pula Prison such group sessions had also been provided and the
applicant had initially been included. However, owing to his frequent
conflicts with other inmates and his general disruptive behaviour his
further participation was terminated. There was no indication
that his medical condition had worsened during his stay in prison.
As
regards the alleged assaults on the applicant by the prison
personnel, the Government argued that none of them reached the
required level of severity under Article 3 of the Convention. On each
occasion the use of force against the applicant had been necessary
and undertaken solely with the aim of preventing the applicant from
attacking others or inflicting self-injuries. On 18 September 2006
the force was used by the prison personnel in order to protect the
prison guards from the chair thrown by the applicant at prison
guards; that use of force against the applicant had been justified.
Although the prison doctor had been immediately summoned, the
applicant had refused to be examined. He had made no complaints about
the incident. Likewise, as regards the incidents of 21 January and 17
February 2007, the applicant had refused to be examined by a doctor
immediately after the incidents and subsequent medical reports showed
no injuries on the applicant’s body. On each occasion the
guards in question were heard by the prison authorities and had made
reports on the incidents. As regards the incidents of 21 January and
17 February 2007, the competent judge responsible for the execution
of sentences had heard the applicant and obtained the reports from
the Pula Prison authorities and concluded that the applicant’s
allegations were unfounded.
2. The Court’s assessment
(a) Scope of the issues for consideration
The
Court notes that the applicant’s complaints under Article 3 and
8 of the Convention mainly concern three issues:
- 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.
As
regards the first and the third issue, the Court notes that the
period to be examined starts with the applicant’s first
placement in Lepoglava State Prison on 6 July 2005 and ends on 5
November 2007 when he was again transferred from Pula Prison to
Lepoglava State Prison. As regards the period of the applicant’s
detention prior to 6 July 2005, it is to be noted, as concluded above
(see paragraph 110) that that part of the application was lodged with
the Court out of the six-month time-limit. As regards the period
after the applicant was transferred from Pula Prison back to
Lepoglava State Prison on 5 November 2007, it is to be noted that the
applicant has not exhausted domestic remedies as regards any
complaints concerning his detention following that transfer (see
paragraph 121 above).
Before
addressing further issues as to the applicant’s above
complaints, the Court notes that it is
the master of the characterisation to be given in law to the facts of
the case; it does not consider itself bound by the characterisation
given by an applicant or a government. A complaint is characterised
by the facts alleged in it and not merely by the legal grounds or
arguments relied on (see Powell
and Rayner v. the United Kingdom,
21 February 1990, § 29, Series A no. 172, and Guerra
and Others v. Italy,
19 February 1998, § 44, Reports
1998 I).
In
this connection the Court stresses that its case-law does not
exclude that treatment which does not reach the severity of Article 3
may nonetheless breach Article 8 in its private-life aspect where
there are sufficiently adverse effects on physical and moral
integrity (see Costello-Roberts v. the United Kingdom,
judgment of 25 March 1993, Series A no. 247-C, § 36). In
the present case the Court will consider the applicant’s
complaints concerning the general conditions of his detention and the
alleged attacks on him under Article 3 of the Convention, while the
remaining complaints, concerning the alleged lack of adequate
psychiatric treatment, will be examined under Article 8 of the
Convention.
A. COMPLAINTS TO BE EXAMINED UNDER ARTICLE 3 OF THE
CONVENTION
1. General principles enshrined in the case-law
As
the Court has held on many occasions, Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim’s behaviour (see Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV).
The
Court reiterates that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level is, in the
nature of things, 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 (see Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III). Although the
purpose of such treatment is a factor to be taken into account, in
particular whether it was intended to humiliate or debase the victim,
the absence of any such purpose does not inevitably lead to a finding
that there has been no violation of Article 3 (ibid., § 74).
2. Application in the present case
a. General conditions of the applicant’s
detention
One
of the characteristics of the applicant’s detention that
requires examination is his allegation that the cells were
overpopulated. In this connection the Court observes that the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) has set 4 sq. m per prisoner
as an appropriate, desirable guideline for a detention cell (see, for
example, the CPT Report on its visit to Latvia in 2002 –
CPT/Inf (2005) 8, § 65). This approach has been confirmed
by the Court’s case-law. The Court notes that in the Peers
case a cell of 7 sq. m for two inmates was noted as a relevant aspect
in finding a violation of Article 3, albeit that in that case the
space factor was coupled with an established lack of ventilation and
lighting (see Peers v. Greece, no. 28524/95, §§
70–72, ECHR 2001-III). In the Kalashnikov case the
applicant had been confined to
a space measuring less than 2 sq. m. In that case the Court held that
such a degree of overcrowding raised in itself an issue under Article
3 of the Convention (see Kalashnikov v. Russia, no. 47095/99,
§§ 96–97, ECHR 2002-VI). The Court reached a
similar conclusion in the Labzov case, where the applicant was
afforded less than 1 sq. m of personal space during his 35-day period
of detention (see Labzov v. Russia, no. 62208/00,
§§ 41-49, 16 June 2005), and in the Mayzit
case, where the applicant was afforded less than 2 sq. m during nine
months of his detention (see Mayzit v. Russia, no. 63378/00,
§ 40, 20 January 2005).
By
contrast, in some other cases no violation of Article 3 was found, as
the restricted space in the sleeping facilities was compensated for
by the freedom of movement enjoyed by the detainees during the
daytime (see Valašinas, cited above, §§
103-107, and Nurmagomedov v. Russia (dec.), no. 30138/02,
16 September 2004).
(i) Lepoglava State Prison from 6 July 2005 to
October 2006
According
to the Government from July to September 2005 the applicant shared a
cell measuring 9.12 square metres with three other inmates; from
September to December 2005 he shared a cell measuring 9.82 square
metres with three other inmates; in May and June 2006 he shared a
cell measuring 10.13 square metres with one inmate; from July to
September 2006 he shared a cell measuring 13.72 square metres with
three other inmates. In all cells there was a separate toiled area.
No information was submitted either by the Government or the
applicant for the period between December 2005 and May 2006. It
follows that the applicant was confined in a space below the
standards set by the CPT in the following periods: from July to
September 2005 the applicant was confined to a space measuring 2.28
square metres; from September to December 2005 to 2.45 square metres;
and from July to September 2006 to 3.43 square metres.
The
applicant’s daily regime during the periods when he did not
work allowed for his movement out of cell during the entire day save
for the period from 10.45 p.m. to 7.00 a.m. During the daytime he was
allowed to either stay in the cell or in a TV-room or to make
telephone calls. He was also allowed optional outdoor exercise of an
hour and a half twice a day. In the periods when he worked, the
applicant was allowed out of the cell from 6 a.m. to 10.45 p.m. After
his work ended at 3 p.m., the applicant was allowed optional
activities until 5.15 p.m., including an outdoor exercise. In the
Court’s view, the scarce space of the applicant’s cells
was compensated for by the freedom of movement allowed. The Court
finds no other aggravating circumstances of the applicant’s
detention in Lepoglava State Prison.
The
fact that, during his incarceration, the applicant was at times
placed in cells with smokers cannot in itself amount to treatment
contrary to Article 3 of the Convention because no specific
consequences have been cited, such as an established serious effect
on the applicant’s health.
The
foregoing considerations are sufficient for the Court to conclude
that there has been no violation of Article 3 of the Convention on
account of the general conditions of the applicant’s detention
in Lepoglava State Prison in the period from 6 July 2005 to 14
October 2006.
(ii) Gospić Prison from 14 October 2006 to 6
January 2007
From
14 October 2006 to 6 January 2007 the applicant shared a cell
measuring 12.12 square metres with one other inmate. Thus, he was
confined to personal space measuring 6.06 square metres, which is in
conformity with the standards set by the CPT. The Court finds no
other aggravating circumstances of the applicant’s detention in
Gospić Prison.
The
Court concludes that the information submitted by the applicant does
not suffice for it to find a violation of Article 3 of the Convention
on account of the general conditions of the applicant’s
detention in Gospić Prison in the period from 14 October 2006 to
6 January 2007.
(iii) Pula Prison from 6 January to 5 November 2007
From
6 January 2007 to 8 February 2007 he shared a cell measuring 10.02
square metres with one other inmate; and from 8 February 2007 to 5
November 2007 he shared one measuring 8.73 square metres with another
inmate, save for the period from 4 to 19 October 2007 when he was in
Zagreb Prison Hospital. Thus he was confined to personal space
between 5.01 and 4.36 square metres, which is in conformity with the
standards set by the CPT.
The
Court finds no other aggravating circumstances of the applicant’s
detention in Pula Prison and concludes that the information submitted
by the applicant does not suffice for it to find a violation of
Article 3 of the Convention on account of the general conditions of
the applicant’s detention in Pula Prison in the period from 6
January to 5 November 2007.
(iv) Conclusion
In
conclusion the Court finds that there has been no violation of
Article 3 of the Convention as regards the general conditions of the
applicant’s detention from 6 July 2005 to 5 November 2007.
b. Alleged assaults on the applicant in prison
The
Court reiterates that where an individual is taken into police
custody in good health but is found to be injured at the time of his
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused, failing which a clear
issue arises under Article 3 (see Selmouni v. France [GC], no.
25803/94, § 87, ECHR 1999 V, and Satık and Others
v. Turkey, no. 31866/96, § 54, 10 October 2000).
In
the Court’s opinion, the same principle extends to detainees in
a prison having regard to the fact that they are deprived of their
liberty and remain subject to the control and responsibility of the
prison administration. In respect of a person deprived of his
liberty, recourse to physical force which has not been made strictly
necessary by his own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 (see
Tekin v. Turkey, 9 June 1998, Reports 1998-IV, §§
52 and 53).
Where an individual raises an arguable claim that he
or she has been seriously ill-treated by the state authorities in
breach of Article 3, that provision, read in conjunction with the
State’s general duty under Article 1 of the Convention to
“secure to everyone within their jurisdiction the rights and
freedoms defined in ... [the] Convention”, requires by
implication that there should be an effective official investigation.
This investigation should be capable of leading to the identification
and punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see Assenov and Others, cited above, §
102; Labita v. Italy [GC], no. 26772/95, § 131, ECHR
2000-IV; and Muradova v. Azerbaijan, no. 22684/05, § 100,
2 April 2009). The minimum standards as to effectiveness defined by
the Court’s case-law also include the requirements that the
investigation must be independent, impartial and subject to public
scrutiny, and that the competent authorities must act with exemplary
diligence and promptness (see, for example, Menesheva v. Russia,
no. 59261/00, § 67, ECHR 2006 III).
The
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
of their decisions (see Assenov and Others, cited above, §
103 et seq.). They must take all reasonable steps available to them
to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony and forensic evidence (see Tanrıkulu
v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et
seq., and Gül v. Turkey, no. 22676/93, §
89, 14 December 2000). Any deficiency in the investigation which
undermines its ability to establish the cause of injuries or the
identity of the persons responsible will risk falling foul of this
standard.
(i) Incident of 18 September 2006
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof beyond reasonable doubt.
However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000 VII, and Dedovskiy and Others v.
Russia, no. 7178/03, § 74, 15 May 2008).
It
is not disputed between the parties that on 18 September 2006 force
was used against the applicant by prison guards. However, the course
of the incident is differently described by the applicant and by the
Government. While the applicant asserted that the prison guards had
beaten him, the Government, relying on several written reports by the
Lepoglava State Prison personnel submitted to the prison governor,
alleged that force was used against the applicant strictly for the
purposes of responding to his violent behaviour and handcuffing him
and strapping him to the bed.
The
Court notes that the prison doctor arrived immediately afterwards to
examine the applicant. In the applicant’s medical record the
doctor described the applicant as being anxious, verbally aggressive,
dissatisfied with being handcuffed and banging against the bed with
the handcuffs. The doctor recorded no wounds or any other traces of
physical injuries.
In
view of the above, the Court considers that these indications are
insufficient to substantiate the ill-treatment described by the
applicant. Thus the Court finds that there is insufficient evidence
to support the applicant’s allegation that on 18 September 2007
he was beaten by prison guards. Therefore, there has been no
substantive violation of Article 3 of the Convention as regards the
said incident.
The
Court reiterates that Article 3 of the Convention also requires the
authorities to investigate allegations of ill-treatment when they are
“arguable” and “raise a reasonable suspicion”
(see Gök and Güler v. Turkey,
no. 74307/01, § 38, 28 July 2009). In the present case
the Court has not found it proved, on account of lack of evidence,
that the applicant was ill-treated. Nevertheless, as it has held in
previous case, that does not preclude his complaint in relation to
Article 3 form being “arguable” for the purposes of the
positive obligation to investigate (see Böke
and Kandemir v. Turkey, nos. 71912/01,
26968/02 and 36397/03, § 54, 10 March 2009).
The
Court notes that it is undisputed that on 18 September 2006 an
incident took place in Lepoglava State Prison where physical force
was used against the applicant by the prison guards. Furthermore, in
his complaint of 25 September 2006 addressed to the VaraZdin County
Court judge responsible for the execution of sentences, the applicant
alleged, inter alia, that on 18 September 2006 he had been
beaten up in Lepoglava State Prison by prison guards. In view of
particularly vulnerable position of detained persons and the
requirement that any use of physical force by the state officials
must be confined to the level of strictly necessary, the Court
considers that the above facts called for an investigation into the
applicant’s allegations of ill-treatment in order to establish
all relevant circumstances of the use of physical force against the
applicant. However, the applicant’s allegations were ignored.
As
to the Government’s argument that the prison personnel involved
in the incident made written reports to the prison governor, the
Court reiterates that it may generally be regarded as necessary for
the persons responsible for and carrying out the investigation to be
independent from those implicated in the events (see, mutatis
mutandis, Güleç v. Turkey, 27 July 1998,
Reports 1998-IV, §§ 81-82; Öğur v.
Turkey, [GC] no. 21954/93, ECHR 1999-III, §§
91-92; and McShane v. the United Kingdom, no. 43290/98, §
95, 28 May 2002). This means not only a lack of hierarchical or
institutional connection, but also a practical independence (see,
mutatis mutandis, Ergi v. Turkey, 28 July 1998, Reports
1998-IV, §§ 83-84).
In
the present case the written reports and oral statements of the
guards involved were made within the prison and were subject to
scrutiny by the prison governor, who was the hierarchical superior of
the persons implicated in the incident. Furthermore, neither the
prison governor nor any other official has issued any decision as to
the applicant’s allegations. This cannot be seen as a thorough
and effective investigation into the applicant’s allegations of
ill-treatment by the prison personnel carried out by independent and
impartial bodies. In the Court’s view, the onus was primarily
on the VaraZdin County Court judge responsible for the execution of
sentences, to whom the applicant submitted his complaint of
ill-treatment, or other independent prosecuting or judicial
authority, to examine the available evidence, such as taking
statements from the applicant, the officers involved and the prison
doctor, and carrying out an independent assessment of the facts.
However, the judge ignored the applicant’s allegations.
Having
regard to the above findings, the Court finds that the inquiry
carried out into the applicant’s allegations of ill-treatment
was not independent, thorough, adequate or efficient. There has
accordingly been a violation of Article 3 of the Convention under its
procedural limb.
(ii) Incident of 21 January 2007
Again,
it is not disputed between the parties that on 21 January 2007 force
was used against the applicant by prison guards. However, the course
of the incident is differently described by the applicant and by the
Government. While the applicant asserted that one of the prison
guards had stamped on his foot and the other had hit him on the head,
the Government, relying on several written reports by the Pula Prison
personnel, alleged that the force was used against the applicant
strictly for the purpose of responding to his violent behaviour and
handcuffing him and strapping him to the bed.
The
Court notes that there is no medical documentation or any other
evidence supporting the applicant’s allegations of
ill-treatment. Therefore, the Court considers that there is
insufficient evidence to support the applicant’s allegation
that on 21 January 2007 he was ill-treated by prison guards.
Therefore, there has been no substantive violation of Article 3
of the Convention as regards the said incident.
As
to the procedural aspect of Article 3 of the Convention, and
especially in the context of detained persons, the Court refers to
the principles stated above in paragraphs 150 and 151. In his
statement given before the Pula County Court judge responsible for
the execution of sentences on 26 February 2007, the applicant
alleged, inter alia, that on 21 January 2007 one of the prison
guards had stamped on his foot while the other had thumped him on the
head. The judge requested the report from the Pula Prison
authorities, which report was filed on 9 March 2007, briefly
describing the event in question. In a letter of 23 March 2007 the
judge dismissed the applicant’s allegations. The Court notes
that the judge did not hear any of the guards involved in person. As
to the report submitted by the Pula Prison authorities, the Court
notes that it did not describe the details of the incident, but only
briefly stated that a special measure of maintaining order and
security had been applied to the applicant because he had previously
threatened to inflict self-injuries.
As
to the Government’s argument that the prison personnel involved
in the incident submitted written reports to the prison governor, the
Court refers to the findings as regards the incident of 18 September
2006 (see paragraphs 152 and 153 above).
In
sum, the Court considers that there was no thorough, effective and
independent investigation into the applicant’s allegations of
ill-treatment by the prison personnel. There has accordingly been a
violation of Article 3 of the Convention under its procedural limb.
(iii) Incident of 17 February 2007
As
regards the incident of 17 February 2007, the applicant alleged that
while being strapped to the bed in solitary confinement one guard had
thumped him on the left side of his chest. The Government denied that
any force had been used against the applicant that day.
The
Court notes that four days after the alleged incident, on 21 February
2007, the applicant was examined by the Pula Prison doctor who drew
up a report stating that the applicant complained of pain in the left
hemithorax and that trauma was not excluded, though the doctor found
no visible signs of trauma or haematoma. While breathing, the
applicant spared the left side and expressed pain at palpation of the
left upper ribs. He was sent for an x-ray examination, which was done
on 22 February 2007 and did not reveal any signs of rib-related
trauma or lung alteration.
In
the Court’s view, the above medical report does not suffice to
conclude beyond reasonable doubt that the applicant had been hit on
the left side of his chest. While it is true that he expressed pain
on being touched in that area, neither the examination by the prison
doctor, nor the x-ray examination revealed any sign of injury.
Therefore, the Court considers that there is insufficient evidence to
support the applicant’s allegation that on 17 February 2007 he
was ill-treated by prison guards. Therefore, there has been no
substantive violation of Article 3 of the Convention as regards the
said incident.
As
to the procedural aspect of Article 3 of the Convention, the Court
first notes that in his statement given before the Pula County Court
judge responsible for the execution of sentences on 26 February 2007,
the applicant alleged, inter alia, that on 17 January 2007 one
of the prison guards had thumped him on the left side of his chest
while the applicant had been strapped to a bed in solitary
confinement. It follows that the applicant duly informed the relevant
national authorities of the substance of his complaints under Article
3 of the Convention. A question now arises as to whether in the
specific circumstances of the incident at issue an obligation arose
for the relevant State authorities to investigate the applicant’s
allegations of ill-treatment. In this connection the Court observes
that the judge requested the report from the Pula Prison authorities,
which report was filed on 9 March 2007 stating that no force had been
used against the applicant.
The
Court finds that because of the lack of clear medical findings that
the applicant had any injuries coupled with the lack of any conducive
evidence that physical force was used against the applicant, his
assertion of ill-treatment against him by the prison guards allegedly
occurred on 17 February 2007 lacked credibility and therefore did not
entail a procedural obligation under Article 3 of the Convention
to investigate the applicant’s allegations.
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
Private life” is a broad term not susceptible
to exhaustive definition. The Court has already held that mental
health must also be regarded as a crucial part of private life
associated with the aspect of moral integrity. The preservation of
mental stability is in that context an indispensable precondition to
effective enjoyment of the right to respect for private life (see
Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR
2001 I).
The Court further reiterates that, while the
essential object of Article 8 is to protect the individual
against arbitrary interference by the public authorities, it does not
merely compel the State to abstain from such interference: in
addition to this negative undertaking, there may be positive
obligations inherent in an effective respect for private (see Van
Kück v. Germany, no. 35968/97, § 70, ECHR
2003 VII). However, the boundaries between the State’s
positive and negative obligations under Article 8 do not lend
themselves to precise definition. The applicable principles are
nonetheless similar. In determining whether or not such an obligation
exists, regard must be had to the fair balance which has to be struck
between the general interest and the interests of the individual; and
in both contexts the State enjoys a certain margin of appreciation
(see, for instance, Keegan v. Ireland, 26 May 1994, Series A
no. 290, § 49; Sheffield and Horsham v. the United
Kingdom, 30 July 1998, § 52, Reports of Judgments and
Decisions 1998 V and Mikulić v. Croatia, no.
53176/99, § 57, ECHR 2002 I).
The
Court firstly notes that it has been established by appropriate
experts that the applicant suffers from a personality disorder, PTSD
and various other mental ailments. On 13 June 2005 the applicant was
placed in the Department for Diagnostics and Programming of Zagreb
Prison with a view to assessing his condition in order to decide on
which prison he should be placed in and his individual programme. A
report drawn up for that purpose indicated that he was impulsive and
emotionally unstable, easily lost control of his behaviour, with
evident low tolerance towards frustrations, a high tendency to react
aggressively, a significantly reduced capacity to maintain
self-control and a high likelihood that he would reoffend.
Psychiatric supervision, as needed, was recommended (see § 44
above).
This
indication was reinforced several times. Thus, the discharge letter
of Zagreb Prison Hospital drawn up on 25 May 2005 recommended
psychiatric supervision of the applicant as needed and more intensive
engagement on the part of the treatment services (see paragraph 41
above). The report of 24 February 2006 drawn up by the Lepoglava
State Prison authorities indicated that the applicant’s
diagnosis included depression, paranoia, elements of PTSD and low
tolerance on frustrations (see paragraph 53 above). A further
discharge letter of the Zagreb Prison Hospital drawn up on 18 October
2007 indicated PTSD as the applicant’s diagnosis and
recommended his regular psychiatric supervision (see paragraph 88
above).
The
facts of the case also show that the applicant was prone to conflicts
with other inmates and the prison personnel, that he was of
aggressive behaviour and that he often went on hunger strike. On
several occasions he also inflicted self-injuries. In the Court’s
view, the above circumstances show that the applicant was indeed in
need of a psychiatric supervision.
The
case therefore raises the question whether the State authorities have
taken necessary measures to secure adequate psychiatric supervision
of the applicant. In this connection the fact that the applicant is a
detainee is of paramount importance since as such he is under the
control of the State authorities and is not able of securing the
psychiatric supervision on his own but is in that respect dependable
on the actions of the relevant prison authorities. Undeniably,
detained persons who suffer from a mental disorder are more
susceptible to the feeling of inferiority and powerlessness. Because
of that an increased vigilance is called for in reviewing whether the
Convention has been complied with. While it is for the authorities to
decide, on the basis of the recognised rules of medical science, on
the therapeutic methods to be used to preserve the physical and
mental health of patients who are incapable of deciding for
themselves, and for whom they are therefore responsible, such
patients nevertheless remain under the protection of Article 8 (see,
mutatis mutandis, Sławomir Musiał v.
Poland, no. 28300/06, § 96, 20 January 2009).
As
to the case at issue, the Court agrees with the Government that there
was no indication in the applicant’s medical record at any
stage that called into question his placement in a regular penal
institution. It is not for the Court to challenge this record. The
Court further notes that none of the psychiatrists who examined the
applicant recommended any specific treatment, save for
pharmacotherapy, for the applicant’s mental condition.
It
is undisputed that the applicant was prescribed and given
pharmacotherapy for his mental condition during his stay in prisons.
Furthermore, there is no indication in the documents submitted by the
applicant that the conditions of his detention led to a deterioration
of his mental health.
As
regards some other, optional, treatment, the Government submitted
that inmates suffering from PTSD were involved in group therapy
specifically tailored to their needs. As regards the three penal
institutions at issue, such groups were founded in Lepoglava State
Prison and Pula Prison.
As
regards the applicant’s stay in Lepoglava State prison, the
Government maintained that during his stay there the applicant had
initially, from the day of his arrival, been involved in a
therapeutic programme for inmates suffering from PTSD. The applicant
alleged that he had not been informed of the group sessions and had
not attended them. The Court notes that the Government failed to
provide any further information on the exact duration and frequency
of any therapeutic treatment of the applicant. For that reason the
Court is not able to assess whether the applicant did or did not
attend any such sessions.
While
in Pula Prison, from 6 January to 5 November 2007, the applicant
initially had been included in group therapy for inmates suffering
from PTSD, but was soon excluded. According to the Government, this
was because of the applicant’s frequent conflicts with other
inmates and his disruptive behaviour at the sessions.
The
Court does accept that, as stated in the medical documents in the
file, the applicant is a person prone to conflict and aggressive
behaviour (as indeed indicated in his medical record and the opinions
of the psychiatrists) and that accordingly his involvement in
therapeutic groups might be difficult if at all possible. The Court
also observes that the psychiatrists have never specifically
recommended that the applicant undergo group therapy.
As
regards the applicant’s psychiatric treatment during his stay
in Lepoglava State Prison, the Court notes that during the period of
one year and three months that the applicant spent there, he was seen
by a psychiatrist on six occasions and once refused to see the prison
psychiatrist. He was also hospitalised twice in Zagreb Prison
Hospital in connection with his mental condition, first for a period
of twenty days from 30 May to 21 June 2006 and then for a period of
nine days from 20 to 29 September 2006. During his entire stay in
Lepoglava State Prison the applicant received prescription drugs for
his mental condition.
It
transpires from the file that during his stay in Gospić Prison
from 14 October 2006 to 6 January 2007 the applicant did not receive
any treatment for his psychiatric condition.
During
the applicant’s stay in Pula Prison from 6 January to 5
November 2007 he received prescription drugs. He was twice seen by a
psychiatrist and sent to Zagreb Prison Hospital for fourteen days
from 4 to 18 October 2007.
The
Court observes that the applicant received pharmacotherapy as
prescribed and was regularly seen by a psychiatrist. He was
hospitalised on three occasions, owing to the worsening of his mental
condition. In the Court’s view, the applicant received the
treatment prescribed by the psychiatrist and was under regular and
adequate psychiatric supervision. His psychiatric condition was thus
adequately addressed by the relevant prison authorities.
There
has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 5 OF
THE CONVENTION
The
applicant complained that his detention between 2 and 30 March 2005
was unlawful and that he had not obtained redress in that respect. He
relied on Article 5 §§ 1 and 5 of the Convention, which, in
so far as relevant, read:
“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.”
The
Government argued that the applicant did not have victim status
because, in a decision of 30 March 2005, the Pula County Court found
that the applicant’s detention from 2 to 30 March 2005 had been
unlawful and because the applicant had the possibility of bringing a
civil action against the State in order to obtain compensation for
his unlawful detention. In the alternative, they argued that this
part of the application had been lodged outside the six-month
time-period because the applicant’s detention had ended on 30
March 2005, whereas the application had been lodged with the Court on
19 May 2006. Furthermore, the applicant had failed to exhaust
domestic remedies because his civil action against the State had been
pending.
As to the applicant’s victim status, the Court
reiterates that an applicant may lose his victim status if two
conditions are met: first, the authorities should acknowledge the
alleged violations either expressly or in substance and, second,
afford redress (see, for example,
Eckle v. Germany,
15 July 1982, Series A no. 51, §§ 69; Dalban
v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI;
Guisset v. France, no. 33933/96, §§ 66-67,
ECHR 2000-IX; and Stephens
v. Malta (no. 1), no. 11956/07, § 58, 21 April 2009). A
decision or measure favourable to the applicant is in principle not
sufficient to deprive him of his status as a “victim” in
the absence of such acknowledgement and redress (see Constantinescu
v. Romania, no. 28871/95, § 40, ECHR 2000-VIII).
As to the question of exhaustion of domestic
remedies, the Court has already held that where the applicant’s
complaint of a violation of Article 5 § 1 of the Convention is
mainly based on the alleged unlawfulness of his or her detention
under domestic law, and where this detention has come to an end, an
action capable of leading to a declaration that it was unlawful and
to a consequent award of compensation is an effective remedy which
needs to be exhausted if its practicability has been convincingly
established. To hold otherwise would mean to duplicate the domestic
process with proceedings before the Court, which would be hardly
compatible with its subsidiary character (see Gavril Yosifov v.
Bulgaria, no. 74012/01, § 42, 6 November 2008).
Turning
to the present case, the Court notes that the Čakovec County
Court, in a decision of 30 March 2005, expressly acknowledged that,
pursuant to the relevant provisions of the Criminal Procedure Act,
the statutory time-limit of the applicant’s detention had
expired on 2 March 2005 and that there had therefore been no ground
for keeping him in detention after that date and that consequently
the applicant’s detention from 2 to 30 March 2005 had been
contrary to the relevant law (see paragraph 20 above). Furthermore,
under Article 498 of the Code of Criminal Procedure, the applicant
has the right to compensation for the period he was kept in detention
after the statutory time-limit had expired. The applicant is entitled
to bring a civil action against the State in that respect. Under
section 186(a) of the Civil Procedure Act, he is firstly required to
submit a request for a settlement with the competent State Attorney’s
Office. In the Court’s view, a civil action against the State
provided for under domestic law is a remedy to be exhausted since is
specifically designed to allow persons who have been unlawfully
detained to obtain redress from the State. The Court notes that the
applicant did lodge a civil action for damages and that these
proceedings are at present pending before the appellate court.
It
follows that this part of the application is premature and therefore
must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
In view of this conclusion, the Court considers that at this stage it
absorbs any further issue as to the applicant’s victim status.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION TAKEN TOGETHER WITH ARTICLE 6 § 3
The
applicant complained of a violation of his right to a fair trial in
the criminal proceedings against him on account of his inability to
engage the services of a defence counsel at the hearing held on 1
April 2005 and afterwards and the alleged inability to consult the
case file. He also alleged that the identification of objects to be
used as evidence was not carried out in compliance with the relevant
procedural rules because two witnesses were not continually and
simultaneously present. He relied on Article 6 §§ 1 and 3
of the Convention, the relevant parts of which read as follows:
“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
Government contested that argument.
A. Admissibility
The parties’ arguments
The
Government argued that the applicant had not properly exhausted
domestic remedies in that, instead of lodging a request for
extraordinary review with the Supreme Court, he should have lodged a
constitutional complaint against the judgment of the Čakovec
County Court of 17 May 2005. Therefore, his application had also been
lodged outside the six-month time-limit since the final decision in
the criminal proceedings against the applicant was the
above-mentioned judgment of the Čakovec County Court.
The applicant argued that he had properly exhausted
all available remedies and that the request for extraordinary review
of a final judgment was the remedy which would address the violation
of which he had complained in respect of the criminal proceedings.
The Court’s assessment
The
Court observes that the requirements contained in Article 35 § 1
concerning the exhaustion of domestic remedies and the six-month
period are closely interrelated, since not only are they combined in
the same Article, but they are also expressed in a single sentence
whose grammatical construction implies such correlation (see
Hatjianastasiou v. Greece, no. 12945/87, Commission
decision of 4 April 1990, and Berdzenishvili v. Russia (dec.),
no. 31697/03, ECHR 2004 II (extracts).
The
Court observes further that the purpose of the six-month rule is to
promote security of the law and to ensure that cases raising issues
under the Convention are dealt with within a reasonable time.
Furthermore, it ought also to protect the authorities and other
persons concerned from being under any uncertainty for a prolonged
period of time. Finally, it should ensure the possibility of
ascertaining the facts of the case before that possibility fades
away, making a fair examination of the question at issue next to
impossible (see Kelly v. the United Kingdom, no. 10626/83,
Commission decision of 7 May 1985, Decisions and Reports (DR)
42, p. 205, and Baybora and Others v. Cyprus (dec.), no.
77116/01, 22 October 2002).
In
the present case the Court notes that the applicant’s
conviction was upheld by the Čakovec County Court on 17 May
2005. The applicant subsequently lodged a request for extraordinary
review of a final judgment with the Supreme Court. This request was
dismissed on 22 November 2005. The applicant then lodged a
constitutional complaint and on 23 February 2006 the Constitutional
Court declared it inadmissible.
The
application to the Court was introduced on 16 May 2006, that is, less
than six months from the date of the decisions of the Supreme Court
and the Constitutional Court, but more than six months after the date
of the Čakovec County Court’s judgment. It follows that
the Court may only deal with the application if a request for
extraordinary review of a final judgment and a constitutional
complaint against the decision of the Supreme Court dismissing the
applicant’s request are considered remedies within the meaning
of Article 35 § 1 of the Convention, in which case the six-month
period provided for in that Article should be calculated from the
date of the decision of the Constitutional Court.
The
Court notes that it has jurisdiction in every case to assess in the
light of the particular facts whether any given remedy appears to
offer the possibility of effective and sufficient redress within the
meaning of the generally recognised rules of international law
concerning the exhaustion of domestic remedies and, if not, to
exclude it from consideration in applying the six-month time-limit.
The
Court reiterates that, according to its established case-law, the
purpose of the domestic-remedies rule contained in Article 35
§ 1 of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
before they are submitted to the Court. The Court notes that the
application of this rule must make due allowance for the context.
Accordingly, it has recognised that Article 35 § 1 must be
applied with some degree of flexibility and without excessive
formalism (see Akdivar and Others v. Turkey, 16 September
1996, Reports 1996-IV, § 69).
The Court reiterates that an applicant is required to
make normal use of domestic remedies which are effective, sufficient
and accessible. It also observes that, in the event of there being a
number of remedies which an individual can pursue, that person is
entitled to choose a remedy which addresses his or her essential
grievance (see Croke v. Ireland (dec.), no. 33267/96, 15
June 1999). In other words, when a remedy has been pursued, the use
of another remedy which has essentially the same objective is not
required (see Moreira Barbosa v. Portugal (dec.), no.
65681/01, ECHR 2004-V, and Jeličić v. Bosnia and
Herzegovina (dec.), no. 41183/02, 15 November 2005).
The
Court firstly notes that the applicant made use of an extraordinary
remedy - a request for extraordinary review of a final judgment.
Under domestic law, several remedies against final judgments exist
both in respect of civil and criminal proceedings. So far, the Court
has dealt with a number of Croatian cases where an appeal on points
of law to the Supreme Court against a final judgment adopted in the
course of civil proceedings has been regarded as a remedy to be
exhausted (see, for example, Blečić v. Croatia,
no. 59532/00, §§ 22-24, 29 July 2004; Debelić v.
Croatia, no. 2448/03, §§ 10 and 11, 26 May
2005; and Pitra v. Croatia, no. 41075/02, § 9,
16 June 2005). The same has been applied in cases against Bosnia
where an identical remedy exists (see Jeličić v.
Bosnia and Herzegovina, no. 41183/02, § 17, ECHR
2006 ...). As to the criminal-law remedy at issue, the Court has
in a previous case (see Kovač v. Croatia (no. 503/05, 12
July 2007)) taken into consideration proceedings before the Supreme
Court concerning a request for extraordinary review of a final
judgment by a defendant in a criminal case.
A
request for extraordinary review of a final judgment is available
only to the defendant (the prosecution is barred from its use) and
may be filed within one month following the service of the judgment
on the defendant in respect of strictly limited errors of law that
operate to the defendant’s detriment. The applicant in the
present case lodged such a request on account of, inter alia,
an alleged infringement of his defence rights at the main hearing,
which is, under Article 427, one of the statutory grounds for lodging
such a request. The Court therefore considers that in the present
case precisely this remedy afforded the applicant an opportunity to
address the alleged violation at issue. The Court notes that in this
case this remedy afforded the applicant an opportunity to complain of
the alleged violation. Therefore, and notwithstanding the
Constitutional Court’s finding that the Supreme Court’s
decision following such a request did not concern the merits of the
case, the Court considers that the applicant made proper use of the
available domestic remedies and complied with the six-month rule.
As
to the applicant’s subsequent constitutional complaint, the
Court notes that, under section 62 of the Constitutional Court Act,
anyone who deems that an individual act of a State body determining
his or rights and obligations, or a suspicion or accusation of a
criminal act, has violated his or her human rights or fundamental
freedoms may lodge a constitutional complaint against such act. The
applicant in the present case, both in his request for extraordinary
review of a final judgment and in his constitutional complaint,
alleged an infringement of his defence rights at the main hearing in
the criminal proceedings against him. Without questioning the
decision of the Constitutional Court as to the relevant criteria for
assessing the admissibility of constitutional complaints, the Court
considers that from the wording of section 62 of the Constitutional
Court Act, the applicant had reason to believe that his
constitutional complaint against the Supreme Court’s decision
dismissing his request for extraordinary review of a final judgment,
whereby he complained of the violation of his right to a fair trial,
was a remedy to be exhausted.
In
view of the Court’s conclusions that in the present case the
request for extraordinary review of a final judgment was a remedy to
be exhausted and notwithstanding the Constitutional Court’s
finding that the decision adopted upon such a request by the Supreme
Court did not concern the merits of the case, the Court finds that
the applicant made proper use of available domestic remedies and
complied with the six-month rule. The Government’s objections
in that regard must therefore be rejected.
The
Court finds that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The parties’ arguments
The
applicant complained under Article 6 §§ 1 and 3(b) and (c)
of the Convention that he had not had a fair trial in the criminal
proceedings against him. He maintained that although during his
pre-trial detention he had been officially assigned several defence
lawyers, he had had no real opportunity to communicate with them and
prepare his defence. Furthermore, he had not been able to have
sufficient access to his case file or to obtain a copy of all
relevant documents in it. Although his requests to that effect had
been formally allowed, he had actually exercised that right only
once, before his conviction. He also argued that on 30 March 2005 his
officially appointed defence counsel had been automatically
discharged since he had been released from pre-trial detention that
day. The next hearing had been held on 1 April 2005 and his request
that the hearing be adjourned so that he would have time to find a
new defence counsel had been denied. Although he had then stated that
he would not present his defence since he had had no defence counsel,
the court conducting the proceedings had wrongly noted that the
applicant had waived his right to be legally represented and had
decided to remain silent. It had proceeded with the hearing and
concluded the trial, finding the applicant guilty.
The
Government argued that the applicant had been officially assigned a
defence counsel throughout his pre-trial detention, as required under
the relevant provisions of the Code of Criminal Procedure and had had
ample time and opportunity to prepare his defence. At the hearing
held on 30 March 2005 the applicant had expressly waived his right to
be legally represented, as had been recorded in the record of the
hearing.
The Court’s assessment
Bearing
in mind that the requirements of paragraph 3 (b) and (c) of Article 6
of the Convention amount to specific elements of the right to a fair
trial guaranteed under paragraph 1, the Court will examine all the
complaints under both provisions taken together (see, in particular,
Hadjianastassiou v. Greece, 16 December 1992, § 31,
and G.B. v. France, no. 44069/98, § 57, ECHR
2001 X).
The
Court reiterates that Article 6 of the Convention, read as a whole,
guarantees the right of an accused to participate effectively in a
criminal trial. The concept of “effective participation”
in a criminal trial includes the right to compile notes in order to
facilitate the conduct of the defence, irrespective of whether or not
the accused is represented by counsel. Indeed, the defence of the
accused’s interests may best be served by the contribution
which the accused makes to his lawyer’s conduct of the case
before the accused is called to give evidence (see Matyjek
v. Poland, no. 38184/03, § 59, ECHR 2007-..., and
Pullicino v. Malta (dec.), no. 45441/99, 15 June
2000).
The
Court reiterates further that, according to the principle of equality
of arms, as one of the features of the wider concept of a fair trial,
each party must be afforded a reasonable opportunity to present his
or her case under conditions that do not place the individual at a
substantial disadvantage vis-à-vis the opponent (see, for
example, Bulut v. Austria, 22 February 1996, § 47,
Reports of Judgments and Decisions 1996 II, and Foucher
v. France, 18 March 1997, § 34, Reportss
1997 II). The Court further observes that, in order to ensure
that the accused receives a fair trial, any difficulties caused to
the defence by a limitation on its rights must be sufficiently
counterbalanced by the procedures followed by the judicial
authorities (see Doorson v. the Netherlands, 26 March 1996,
§ 72, Reports 1996 II, and Van Mechelen and
Others v. the Netherlands, 23 April 1997, § 54, Reports
1997 III).
The Court points out that Article 6 § 3 (b)
guarantees the accused “adequate time and facilities for the
preparation of his defence” and therefore implies that the
substantive defence activity on his behalf may comprise everything
which is “necessary” to prepare the main trial. The
accused must have the opportunity to organise his defence in an
appropriate way and without restriction as to the possibility to put
all relevant defence arguments before the trial court and thus to
influence the outcome of the proceedings (see Connolly v. the
United Kingdom (dec.), no. 27245/95, 26 June 1996, and Mayzit
v. Russia, no. 63378/00, § 78, 20 January 2005).
Furthermore, the facilities which everyone charged with a criminal
offence should enjoy include the opportunity to acquaint himself for
the purposes of preparing his defence with the results of
investigations carried out throughout the proceedings (see C.G.P.
v. the Netherlands, (dec.), no. 29835/96, 15 January 1997;
Foucher, cited above, §§ 26-38; and Galstyan v.
Armenia, no. 26986/03, § 84, 15 November
2007). The issue of adequacy of time and facilities afforded to an
accused must be assessed in the light of the circumstances of each
particular case.
In
the instant case, several considerations are of crucial importance.
The Court notes firstly that the charges against the applicant
consisted of more than twenty counts of theft and aggravated theft
and that the applicant was liable to an unconditional prison
sentence. The case file, a copy of which was submitted by the
Government, was quite voluminous.
The
Court observes that the judgment adopted by the Prelog Municipal
Court on 26 August 2004 in the criminal proceedings against the
applicant was quashed by the appellate court on 14 January 2005 on
the grounds that, inter alia, the applicant’s defence
rights had been violated. The case was then remitted to the court of
first instance. The Court will therefore examine whether the
proceedings after 14 January 2005 complied with the requirements of
Article 6 of the Convention.
The
Court notes that the applicant was represented by various officially
appointed defence lawyers throughout the proceedings, save from 30
March to 1 April 2005. The ground for appointing defence counsel was
the fact that the applicant was detained during the trial, since
under Article 65 of the Code of Criminal Procedure all detainees
must be legally represented, irrespective of the gravity of the
charges against them.
In
the fresh proceedings before the Prelog Municipal Court a new defence
counsel was appointed to the applicant on 4 February 2005, following
the request of the previous counsel to be relieved of his duties
owing to disagreements with the applicant. Although the applicant was
allowed unrestricted telephone communication with his new counsel, it
appears that there was no such contact at least until 14 February
2005, when the applicant complained to the presiding judge that he
had not been able to contact counsel because there had been no answer
to his calls to the number given to the applicant as that of counsel.
The applicant further requested permission for a visit to the prison
from his counsel, but there was no answer to this request. However,
it is true that the hearing scheduled for 17 February 2005 was
adjourned at counsel’s oral request in order to enable him to
prepare the applicant’s defence. There is no evidence that
counsel actually visited the applicant at all. In the Court’s
view, bearing in mind that the applicant was in pre-trial detention,
it would have been expected of the relevant authorities to keep a
record of the appointed counsel’s visits to the applicant in
prison in order to make sure that the defence rights of the accused
were respected.
The
Court notes further that on 7 March 2005 the applicant lodged a
request to consult the case file, but received no answer. The hearing
of 10 March 2005 was adjourned because the applicant had insulted the
presiding judge when it started. The applicant was released on 30
March 2005 since the maximum time for his detention had expired. At
that time his defence counsel was relieved of his duties since, under
domestic law, the ground for obligatory legal representation of the
applicant in the criminal proceedings had ceased to exist. Thus, at
the hearing held on 1 April 2005 before the Prelog Municipal Court
the applicant was legally unrepresented. The applicant’s and
the Government’s account of what happened at the hearing differ
in some significant respects. While the Government asserted that the
applicant, after having been properly informed of his rights, waived
his right to be legally represented and decided to remain silent, the
applicant contended that his objection to the effect that he had not
been able to prepare his defence since his request to consult the
case file had not been properly complied with had remained completely
ignored.
The
Court notes that on 2 April 2005, even before having received a
written copy of the judgment pronounced on 1 April 2005, the
applicant lodged an appeal alleging, inter alia, that his
defence rights had been violated in that he had not been able to
prepare his defence since he had had no real opportunity to consult
the case file. In his appeal the applicant also complained that his
objections to that effect at the hearing had been completely ignored.
In view of such a prompt complaint by the applicant and the fact that
the transcript of the hearing held on 1 April 2005 was not signed by
the applicant, the Court cannot give decisive importance to the
record in the transcript that the applicant had waived his right to
be legally represented and decided to remain silent. While it is
established that the applicant did not make any defence submissions
at that hearing, it cannot be unreservedly accepted that he did so
because he did not wish to defend himself. In this connection the
applicant’s assertion that he could not defend himself since he
had never been given proper access to the case file bears some
significance.
As
to the circumstances surrounding the applicant’s request to
consult the case file, the Court notes that during his entire trial,
save for two days between 30 March and 1 April 2005, the applicant
was in detention and thus not in a position to freely consult his
case file. He was brought to the Municipal Court conducting the
criminal trial against him on 1 October 2004, when he examined the
case file and copied certain documents. However, the judgment adopted
on 26 August 2004 was quashed on 14 January 2005 on the grounds,
inter alia, that the applicant had neither had sufficient
contact with his defence counsel nor sufficient time to prepare his
defence. Furthermore, on 7 March 2005, in the resumed proceedings
before the Municipal Court, the applicant made a further request to
consult the case file. He explained that on 1 October 2004 he had had
insufficient time to consult the case file – which had been
voluminous – and that not all requested documents had been
copied. However, his request remained unanswered. The applicant
reiterated his complaints about not being given a real opportunity to
consult the case file in his appeal against the first-instance
judgment of 1 April 2005. Thus, the fact that the applicant did
consult the case file on 1 October 2004 cannot be regarded as
satisfying the requirement that the applicant be afforded adequate
means and facilities for the preparation of his defence. In this
connection the Court observes that the Convention “is intended
to guarantee not rights that are theoretical or illusory but rights
that are practical and effective; this is particularly so of the
rights of the defence in view of the prominent place held in a
democratic society by the right to a fair trial, from which they
derive” (see Artico v. Italy, 13 May 1980, § 33,
Series A no. 37).
The
applicant’s further request to consult the case file, made
during the appellate proceedings; was allowed by the president of the
Prelog Municipal Court, but when asked to fix the date for that
purpose the president answered that the case file had been sent to
the appellate court. It appears that no contact was made between the
trial and the appellate courts in order to facilitate compliance with
the applicant’s request. After the appellate court upheld the
first-instance judgment on 17 May 2005, the applicant made several
further requests to consult the case file. In view of the possibility
of using further remedies in the criminal proceedings against him,
the Court considers that the applicant had a legitimate interest in
studying the case file. However, his requests were denied on the
grounds that the case file had been forwarded to the Supreme Court.
In the Court’s view, however, the fact that the case file was
with the Supreme Court, does not in itself justify denying the
applicant’s request.
Even
after the Supreme Court upheld the lower courts’ judgment, the
applicant still had the possibility of lodging a constitutional
complaint, and thus his interest in consulting the case file
remained. However, his further request to that effect of 23 January
2006 was again denied, this time on the grounds that the case file
had been sent to the VaraZdin Municipal Court. The Court cannot see
how the fact that the case was at the latter court could in itself
justify refusing the applicant’s request.
The
Court has already found that unrestricted access to the case file and
unrestricted use of any notes, including, if necessary, the
possibility of obtaining copies of relevant documents, were important
guarantees of a fair trial in criminal proceedings (see Matyjek,
cited above, §§ 59 and 63; Luboch v. Poland, no.
37469/05, §§ 64 and 68, 15 January 2008; and Moiseyev
v. Russia, no. 62936/00, § 217, 9 October 2008). As the
applicant in the present case did not have such access, he was unable
to prepare an adequate defence and was not afforded equality of arms
(see Foucher, cited above, § 36). Regard being had to all
the circumstances of the case, the Court finds that the applicant’s
defence rights in the criminal proceedings against him taken as a
whole were infringed to such a degree that it constitutes a violation
of Article 6 § 1 of the Convention taken together with Article 6
§ 3.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 51,793 euros (EUR) in respect of non-pecuniary
damage and EUR 7,655.17 in respect of pecuniary damage. As to the
latter, he explained that the amount of EUR 758.62 referred to lost
income during his unlawful incarceration from 2 to 30 March 2005 and
the remaining amount referred to the value of the items taken from
him during the criminal proceedings on the grounds that they had been
stolen from third parties.
The
Government deemed the applicant’s request in respect of
pecuniary damage unfounded and his request in respect of
non-pecuniary damage excessive.
The Court notes that it has found that the
applicant’s rights guaranteed by Articles 3 and 6 of the
Convention have been violated. In particular, it has found that there
was no required investigation into his allegations of ill-treatment
in respect of two separate incidents and that in the criminal
proceedings against him his defence rights were violated. These facts
have indisputably caused him some physical and mental suffering.
Consequently, ruling on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant EUR 1,000 under
this head, plus any tax that may be chargeable to him. On the other
hand, the Court does not discern any causal link between the
violations found and the pecuniary damage alleged: it therefore
rejects this claim
B. Costs and expenses
The
applicant also claimed HRK 24,400 for his legal representation before
the Court.
The
Government deemed the claim excessive.
The
Court considers that the amount claimed is not excessive in the light
of the nature of the dispute, particularly given the complexity of
the case. It therefore considers that the applicant’s costs and
expenses should be met in full and thus awards him EUR 3,400 less the
EUR 850 already received in legal aid from the Council of
Europe, plus any tax that may be chargeable to him.
C. Default interest
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
Declares unanimously admissible the complaints
concerning:
- 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;
Holds unanimously that there has been no
violation of Article 3 of the Convention on account of the general
conditions of the applicant’s detention from 6 July 2005 to 5
November 2007;
Holds unanimously that there has been no
violation of the substantive aspect of Article 3 of the Convention on
account of the alleged assaults on the applicant by prison personnel;
Holds unanimously that there has been a
violation of the procedural aspect of Article 3 of the Convention on
account of the lack of an effective and thorough investigation by
independent bodies in respect of the applicant’s allegations
that he had been assaulted by prison guards on 18 September 2006 and
21 January 2007 and no such violation in respect of the incident of
17 February 2007.
Holds by four votes to three that there has been
no violation of Article 8
of the Convention on account of the lack of adequate and continuous
treatment for the applicant’s psychiatric condition;
Holds unanimously that there has been a
violation of Article 6 §§ 1 and 3 of the Convention;
Holds
(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;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
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
Registrar President
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.
C.L.R.
S.N.
JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN
AND JEBENS
We
are unable to agree that there has been no violation of Article 8 of
the Convention on account of the lack of adequate and continuous
treatment for the applicant’s psychiatric condition.
Being
the master of the characterisation to be given in law to the facts of
the case, the Court decided to examine this issue under Article 8 of
the Convention and did not exclude the possibility that treatment
which does not reach the severity of Article 3 may nonetheless breach
Article 8 in its private-life aspect where there are sufficiently
adverse effects on physical and moral integrity.
In
our view, the facts disclose that the applicant suffers from a number
of serious mental ailments, and that he was in great need of
psychiatric treatment (see paragraphs 167-169 of the judgment). We
furthermore find that the State authorities have not provided the
applicant with sufficient treatment, bearing in mind that he, as a
detained person, was particularly vulnerable (see paragraph 170 of
the judgment).
It
is our submission that the State authorities have not taken necessary
measures to secure adequate psychiatric supervision of the applicant,
notwithstanding the fact that in two penal institutions, specific
treatment, tailored to the needs of people suffering from PTSD, is
provided (see paragraph 173 of the judgment).
Admittedly,
the applicant has been prescribed and given pharmacotherapy for his
mental condition during his imprisonment. But this, in the particular
circumstances of the case, does not suffice. The applicant was
impulsive and emotionally unstable, easily lost control of his
behaviour, with evident low tolerance towards frustration, a high
tendency to react aggressively, a significantly reduced capacity to
maintain self-control and a high likelihood of reoffending.
Psychiatric supervision was clearly needed. The facts of the case
also show that the applicant was prone to conflicts with other
inmates and the prison personnel, that he was aggressive and that he
often went on hunger strikes. On several occasions he also inflicted
injuries on himself and attempted to commit suicide. These
circumstances, together with the clear recommendations that the
applicant receive psychiatric treatment, show that the applicant was
indeed in need of such treatment. In view of the applicant’s
diagnosis and mental problems, such a programme appears to have been
all the more necessary.
The
applicant has been detained since 1 April 2005. Although the relevant
provisions of the Enforcement of Prison Sentences Act require that an
individual programme be devised for each inmate, the Government have
not shown that any such programme was devised in respect of the
applicant. In view of the applicant’s diagnosis and his mental
problems, such a programme appears to have been all the more
necessary.
The
Government submitted that inmates suffering from PTSD were involved
in group therapy specifically tailored to their needs. As regards the
three penal institutions at issue, such groups were founded in
Lepoglava State Prison and Pula Prison. However, the applicant did
not benefit from any such therapy.
During
his stay in Pula Prison from 6 January to 5 November 2007, the
applicant was not included in any group therapy for inmates suffering
from PTSD and was seen by a psychiatrist only once, on 24 August
2007.
As
regards the applicant’s stay in Lepoglava State Prison, the
Government alleged that during his time there he had initially, on
arrival, been involved in a therapeutic programme for inmates
suffering from PTSD. The applicant, however, submitted that he had
not been included in any therapy for persons suffering from PTSD. It
is therefore regrettable that the Government failed to provide any
further information on the exact duration or frequency of any of the
alleged therapeutic treatment of the applicant. It could reasonably
have been expected of the prison authorities to keep a record of the
psychiatric and other therapeutic sessions attended by the applicant
and to carry out regular assessment of his participation and
condition. It is unclear what treatment, if any, was provided to the
applicant in such groups, and on what basis, or what personnel was
involved in the conduct of these groups.
It
is undisputed that during his stay in Gospić Prison, from 14
October 2006 to 6 January 2007, the applicant did not receive any
treatment for his psychiatric condition.
In
the course of the applicant’s continual placement in penal
institutions since 1 April 2005, his examinations by a psychiatrist,
though frequent, have always been connected with incidents or hunger
strikes concerning him rather than being planned as part of a
well-designed therapeutic process with specific aims. In this
connection we would stress that providing adequate professional
treatment for convicts suffering from psychiatric conditions, and in
particular PTSD, is not only beneficial to the individual convict but
also to the well-being of society as a whole. In short, the attitude
of the authorities has been purely reactive and not, as it should
have been, proactive.
We
are also mindful of the fact that there was a recommendation by
doctors who examined the applicant, including psychiatrists, that he
be placed in a non-smoking cell, and that this was not complied with.
An
aggravating circumstance is the frequency of the applicant’s
transfers to various detention facilities. He has been a prisoner “in
orbit”. Indeed, the applicant has so far spent about four years
in various penal institutions in Croatia, during which period he has
not been provided with adequate psychiatric supervision for his PTSD
and has at times been placed in overcrowded cells with smokers. In
view of the gravity of his psychiatric problems, the constant change
in the applicant’s placement, which has then necessarily
entailed a change in his therapists and therapeutic conditions, can
hardly be conducive for improvement in his mental health.
In
our view, the foregoing considerations are sufficient to conclude
that the relevant prison authorities have not secured the applicant
adequate supervision for his mental problems. They have therefore
failed in their positive obligations under Article 8 of the
Convention, namely to secure to the applicant the “respect”
for his private life to which he is entitled under the Convention.
