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Cite as: [2010] ECHR 1150
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
26611/08
by Vlado JULARIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 24 June 2010 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 regard to the above application lodged on 6 May 2008,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vlado Jularić, is a Croatian national who was born in 1960 and lives in Zagreb. He was represented before the Court by Mr D. Bučanac, a lawyer practising in Velika Gorica. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. StaZnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was placed in pre-trial detention in Zagreb Prison (Zatvor u Zagrebu) on 17 June 2001 following the institution of criminal proceedings against him on charges of double murder.
Incident of 20 August 2001
The applicant alleged that, on 20 August 2001, he had been severely beaten in Zagreb Prison by Z.P., a prison guard.
The Government alleged that, on 20 August 2001, the applicant had first been taken to Zagreb Prison Hospital (Bolnica za osobe lišene slobode, hereinafter “the ZPH”) where he had undergone a psychiatric examination. After he had been taken back to his cell, the applicant had called Z.P. and asked to be given a tranquilizer injection in the prison medical unit. Z.P. had taken the applicant to the medical unit where the applicant had started to shout and had ignored warnings to stop. Even after he had received the injection, the applicant had continued to shout and insult Z.P. and a member of the prison health care staff, Z.P., who was present at the scene. He had then started walking towards the toilets and had smashed the glass in one of the windows with his hand.
Z.P. had followed the applicant and caught him in the toilets, where a fight between them had broken out. The applicant had punched Z.P. and struck him whilst pinning him against a wall.
Meanwhile, Z.P. had called the prison officer on duty. Two officers, I.T. and M.P., had arrived at the scene and found the toilet doors stuck. After I.T. had forcefully opened the doors, he had seen the applicant striking Z.P. whilst pinning him against a wall. The applicant had ignored warnings by the officers to stop and had continued to shout and push Z.P. I.T., and then Z.P., had used force in order to restrain the applicant. They had struck the applicant four or five times on the back and five or six times on the legs all with rubber truncheons. Because the incident had occurred in a small closed area, the applicant had also received some head wounds which had not been caused by rubber truncheon blows.
The applicant had then been examined by the prison doctor and taken to hospital.
The medical file showed that he had suffered bruising to his face, chest, shoulders, back, left upper leg and both knees. He was prescribed rest, pain killers and Heparin gel.
The applicant complained to the prison authorities, the Ministry of Justice and the Zagreb County Court (Zupanijski sud u Zagrebu).
On the same day Z.P., I.T. and M.P. submitted their reports on the incident to the prison governor. Further to this, Z.P. and the prison doctor, G.Š., who had examined the applicant, gave their statements. A statement was also taken from the applicant.
On 21 August 2001 the Head of the Prison Security Service submitted his report on the incident to the prison governor who, in turn, submitted a report to the Ministry of Justice Administration for the Execution of Criminal Sanctions.
On 22 August 2001 the prison governor told the Zagreb County Court about the incident, because the criminal proceedings against the applicant were still pending before that court.
Further statements were taken from the applicant, Z.P., and I.T. before an employee of the Ministry of Justice.
On 3 September 2001 disciplinary proceedings were instituted against Z.P., I.T. and the Head of the Prison Security Service. On 25 January 2002 the proceedings were terminated on the grounds that they had been instituted on the basis of the statements given by the prison officers, which were considered to be unlawful evidence.
The applicant's medical treatment
In the criminal proceedings against him, on 24 May 2002 the applicant was found guilty of murder and causing grievous bodily harm. He was sentenced to fourteen years' imprisonment. On 13 January 2003 the applicant was transferred to Lepoglava State Prison (Kaznionica u Lepoglavi, hereinafter “the LSP”).
Treatment by the prison doctor
The applicant's medical record from the LSP shows that in 1991, during the Homeland War in Croatia, he had suffered from a gunshot wound to his heart and lungs. Afterwards, on several occasions, he suffered from pericarditis (inflammation of the pericardium, the membrane forming the outer covering of the heart), the last time he suffered from this was in 1997. Since 1992 he has been receiving treatment for post-traumatic stress disorder (“PTSD”).
Since his arrival at the LSP the applicant has regularly been examined by the ZPH doctor. Thus, he was examined by the doctor on seventeen occasions in 2003, on thirty occasions in 2004, on thirty-four occasions in 2005, on thirteen occasions in 2006, on seventeen occasions in 2007, on six occasions in 2008 and on two occasions in 2009. He was also treated for PTSD (with pharmacotherapy); hemorrhoids; gingivitis (inflammation of the gums); dermatitis; chronic pericarditis; acute rhinopharyngitis; acute conjunctivitis; acute laryngitis; influenza; angina pectoris; umbilical hernia; chronic gastritis; neck pain; chest-wall tumour; and lumboischialgia (back pain).
Treatment in Zagreb Prison Hospital
The applicant stayed in the ZPH from 17 June to 13 July 2001 and was treated for PTSD with pharmacotherapy. The discharge letter indicates that he did not show signs of psychosis or suicidal intentions.
He was again treated in the ZPH from 20 August to 23 August 2001 in connection with the injuries he had suffered on 20 August 2001 (see above). Subsequently, from 23 August to 1 October 2001 he was treated at the Neuropathology Ward.
On 10 May 2002 he was examined by the ZPH doctor in connection with pericarditis. Laboratory tests were taken, as well as lung and heart X-ray examinations and an electrocardiogram. On 17 December 2002 he was again examined by the ZPH doctor and was prescribed pharmacotherapy in connection with the PTSD.
The applicant was hospitalised in the ZPH from 27 April to 31 May 2004 and was treated for chronic gastritis, liver lesions, hyperlipidemia (increased cholesterol), fibrothorax (fibrosis of the pleural space surrounding the lungs), PTSD and heartburn.
From 26 August to 8 September 2009 he was treated for angina pectoris, gastritis, hyperlipidemia and post-thoractomry syndrome (post-operative chest pain).
Treatment in other medical institutions
On 28 January 2003 the applicant was taken to VaraZdin General Hospital (Opća bolnica VaraZdin) in connection with heart pain. He was prescribed medication.
On an unspecified date he was examined by an otorhinolaryngologist in the Šalata Clinical Centre in Zagreb (Klinički bolnički centar Šalata).
On 19 July 2004 he was taken to the Ivanec Medical Centre in connection with pharyngitis (inflammation of the throat). He was examined by a psychiatrist from the Ivanec Medical Centre on 20 January 2005 and by another doctor on 26 May 2005 (for heart problems).
The applicant was treated by a cardiologist at VaraZdin General Hospital on 17 February and 6 October 2005.
He was examined by a radiology and neuroradiology specialist at the Radiology, Neurology and Cardiology Clinic in Zagreb on 9 March 2007.
On 21 March 2007 he was examined by a neurosurgeon and generalist at VaraZdin General Hospital.
Decisions upon requests by the applicant for temporary release on health grounds
On 1 March 2007 the applicant petitioned the VaraZdin County Court judge responsible for the execution of sentences (sudac izvršenja Zupanijskog suda u VaraZdinu), seeking his temporary release on health grounds. He explained that he had been wounded in the heart and lungs which had had permanent and life-threatening consequences. Furthermore, he had suffered from severe back and neck pain. The judge ordered the opinion of a medical expert, who established that the applicant was totally disabled. The applicant suffered from heart disease, permanent degenerative deterioration of his spine and various chronic ailments. His opinion was that there were no indications that surgery was necessary and he recommended physiotherapy. There was no worsening of the applicant's chronic medical condition.
On 4 May 2007 the VaraZdin County Court judge responsible for the execution of sentences refused the applicant's request. This decision was upheld by a three-judge panel of the VaraZdin County Court on 5 June 2007.
On 27 June 2007 the applicant again petitioned the VaraZdin County Court judge responsible for the execution of sentences, seeking his temporary release on health grounds. The judge asked staff at the ZPH whether they were able to provide the applicant with adequate medical care and the answer was affirmative. The judge further found that VaraZdin General Hospital was able to provide the applicant the required physiotherapy.
On 15 January 2008 the applicant again petitioned the VaraZdin County Court judge responsible for the execution of sentences, seeking his temporary release on health grounds. The request was granted and the applicant's prison term was stayed from 23 April to 21 June 2008 on health grounds. It was established that the medical treatment being provided to the applicant had not led to any improvement in his health and that a further recommendation, which suggested a three-weeks course of physiotherapy at a health spa was not possible under prison conditions. On 11 June 2008 the judge extended the applicant's temporary release until 21 August 2008 on the grounds that the applicant was to undergo hernia and sinus surgery. On 19 August 2008 the judge extended the applicant's temporary release until 18 November 2008 in order for him to undergo psychiatric treatment. On 6 November 2008 the judge extended the applicant's temporary release until 18 January 2009 on the grounds that the applicant had to undergo nose surgery and treatment at a health spa.
On 14 January 2009 the judge extended the applicant's temporary release until 18 April 2009 on the grounds that the applicant had to undergo tumour-related surgery and physiotherapy.
On 27 April 2009 the judge extended the applicant's temporary release until 15 June 2009. On 4 June 2009 the judge extended the applicant's temporary release until 20 June 2009.
On 23 June 2009 the applicant again petitioned the VaraZdin County Court judge responsible for the execution of sentences, seeking his temporary release on health grounds.
A further decision by the same judge to the same effect was adopted on 30 October 2009, allowing the applicant to be released on health grounds from 9 November to 13 December 2009.
Since the latter date the applicant has stayed in the LSP in a semi-open regime. He is placed in a cell measuring 20, 64 square metres together with three other inmates. He is confined to the cell between 11 p.m. and 6 a.m. and at 7 p.m. for a short period. Otherwise, he is free to spend his time in communal premises of outside in the prison's courtyard.
B. Relevant domestic law
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:
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 ...”
HEALTH PROTECTION
Section 103
“(1) Inmates shall be provided with medical treatment and proper care of 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.
...”
TEMPORARY RELEASE
Grounds for temporary release
...
(2) Temporary release may be allowed on the following grounds:
1) to an inmate suffering from a serious acute illness or whose chronic illness worsening and where his or her medical treatment is not possible in prison.
...”
COMPLAINTS
The applicant complained under Articles 2 and 3 of the Convention that he had been attacked by a prison guard on 20 August 2001 and that no investigation had been carried out in that connection.
He further complained under Articles 1, 2 and 3 of the Convention that he had not received adequate medical care in prison and that, owing to his health problems, being returned to prison had amounted to ill-treatment and had endangered his life.
THE LAW
The applicant complained under the substantive and procedural aspects of Articles 2 and 3 of the Convention that he had been ill-treated by a prison guard and that no effective investigation had been carried out in that connection. He further complained under Articles 1, 2 and 3 of the Convention that he had not received adequate medical care in prison and that, owing to his health problems, being returned to prison had amounted to ill-treatment and had endangered his life.
The Court considers that the applicant's complaints are to be examined under Article 3 of the Convention which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Alleged attack on the applicant on 20 August 2001
The Government argued that this part of the application had been lodged with the Court out of the six-month time-limit because the incident had taken place on 20 August 2001 and the disciplinary proceedings had been terminated on 25 January 2002.
The applicant did not submit any reply.
The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has finally been settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Aubrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).
The Court reiterates that where an act allegedly contravening Articles 2 or 3 of the Convention has occurred, the victim is expected to take steps to keep track of the investigation's progress, or lack thereof, and to lodge his or her application with due expedition once he or she is, or should have become, aware of the lack of any effective criminal investigation (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009 ...).
As to the present case, the Court notes firstly that no criminal investigation or criminal trial has ever been formally instituted against the alleged perpetrators. Furthermore, the disciplinary proceedings against the prison guards were terminated on 25 January 2002. The applicant must have been aware that no criminal prosecution had taken place because he, as the main witness and the victim of the alleged violent attack, had never been summoned before any judicial body in that respect. Therefore, he should have lodged his application so as to comply with the six-month time-limit.
However, he lodged his application with the Court on 6 May 2008, more than seven years after the alleged incident took place and more than six years after the termination of the disciplinary proceedings against the prison officers implicated.
It follows that any complaints concerning the events of 20 August 2001 have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant's medical treatment in prison
The Government argued that the applicant had failed to exhaust all available domestic remedies because he had not specifically complained to a judge responsible for the execution of sentences of the lack of adequate medical care in prison.
They further argued that the applicant had received adequate medical treatment and that all recommendations by various specialists had been followed.
The applicant did not submit any reply.
The Court does not have to address all issues raised by the Government, since the application is in any event inadmissible for the following reasons.
The Court notes firstly that the applicant, who has been detained since 2001, save for the period when he was temporarily released, does indeed suffer from various chronic and serious ailments, such as PTSD, perycarditis and chronic degenerative back condition. However, these elements do not in themselves raise issues constituting treatment contrary to Article 3.
The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Mathew v. the Netherlands, no. 24919/03, § 175, ECHR 2005 IX).
As to the present case the Court notes that the applicant complained that while incarcerated he had not been provided with adequate medical care. However, in his submissions to the Court he did not allege what exact treatment was being denied him and what exact treatment he needed.
The documents submitted show that the applicant's health was continually monitored by a prison doctor, that he was hospitalised in the ZPH whenever recommended and was also frequently treated in various other medical institutions. All recommendations by specialist physicians have been followed. Further to this, since 23 April 2008, for most of the time he has been granted temporary release on health grounds.
In these circumstances the Court finds that the applicant has been provided with adequate medical treatment during his time in the LSP and ZPH.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren
Nielsen Christos Rozakis
Registrar President