CASE OF LONGIN v. CROATIA
(Application no. 49268/10)
6 November 2012
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 Longin v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Anatoly Kovler, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“I have been imprisoned in Zagreb Prison since 1 October 2009 in Department no. 7 where I am serving a four years and three months’ prison sentence. I have already served more than three years and I still have less than a year to serve ...
I suffer from asthma. My human rights, provided inter alia under the Sentence Execution Act, are violated in Zagreb Prison. I have been placed in a room with six other inmates. The room has less than requested four square meters per person and I am confined in the room for twenty-two hours. It does not have sufficient access of daylight nor appropriate artificial light and access of fresh air, what makes my health condition to deteriorate day by day.
The toilet is not separated from the same room where we are accommodated and where we eat and drink. It is only divided with two walls of a height up to the half of the room. The doors are lifted from the ground for forty centimetres and the sanitary facilities are rusted. The smell from the toilet, especially during the night while we sleep, is unbearable. Therefore the room is full of cockroaches which scroll during the night on me, on the table where we eat, on our food, ect.
The prison administration and the Head of treatment in the Department no. 7 and the Head Office of the Prison Administration have been informed about the bad conditions but nobody reacts, nobody cares that this problem be resolved.
Because of my health problems I have asked for more appropriate accommodation, namely to be placed in isolation but so far this has not been granted. I am lodging this complaint because of the violation of my human rights under Article 3 of the Convention for the Protection of Human Rights and I hope that the Zagreb State Attorney’s Office will be able to sanction this or at least that my complaint will be answered so that I can take further legal actions.”
“Concerning your complaint about your medical treatment of your asthma diagnosis, we reply as follows:
Since 1 October 2009 you have been serving your prison sentence in Zagreb Prison where you are placed in a closed department. You are not performing any work. In execution of the program of execution of the prison sentence you have been awarded grade “satisfactory”.
The medical report reveals that you are a drug addict for years and that you have hepatitis C and bronchial asthma which is the result of your allergy on dust.
Under the recommendation of the lung diseases specialist you have been granted use of drugs “Alvesco” and Ventolin spray.
During your stay in Zagreb Prison you have been seen by a psychiatrist and you have been treated for the respiratory infect (received antibiotic and ...).
On more occasions you have been granted use of the antihistaminic in tablets as well as vitamin B and a neutral crčme.
The above shows that you have an appropriate and expert medical treatment and that your diagnosis and the drug addiction have been appropriately treated under the supervision of the specialised physicians and regular controls of the [prison] doctors. Therefore, your complaint is ill-founded.”
“ On 30 April 2010 you have lodged an objection with this Head Office against the reply concerning your complaint of 11 March 2010.
Everything to what you have complained in your letter of 11 March 2010 has been fully examined as required under Section 15 § 3 of the Sentence Execution Act and you have received a detailed reply on 26 April 2010.
Therefore, since in your objection you are reiterating your previous arguments ... we can only refer to our reply of 26 April 2010.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“No one shall be subjected to any form of ill-treatment ...”
“All detainees and convicted persons shall be treated in a human manner and with respect for their dignity.
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided about his or her rights and obligations, or about 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) ...”
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one’s name and privacy of personal and family life, freedom et alia.
“Damage is ... infringement of the right to respect for one’s personal dignity (non-pecuniary damage).”
“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.
“Damage caused to a citizen, legal entity or any other party by an illegal or irregular act of the state administration body, local administration body or any legal entity with public powers when exercising authorities of the state administration, shall be redressed by the Republic of Croatia.”
“(1) Inmates shall have the right to complain about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...”
JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
“(1) The [function of the] sentence-execution judge shall be established within the territorially competent County Court.
“(1) The sentence-execution judge protects the rights of prisoners, oversights the lawfulness of execution of the sentences of imprisonment and secures equality of the prisoners before the law.
ACCOMMODATION OF PRISONERS
“(3) Premises in which the prisoners dwell shall be clean, dry and sufficiently spacious. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory.
“The detention of the applicant made the meetings between the mother and her child impossible and thus it represented an interference with her right to respect for family life within the meaning of Article 35 of the Constitution and Article 8 of the Convention. ...
Even in such circumstances, however, the competent bodies are obliged to secure meetings of a detained mother ... and her child in accordance with the law, having in mind the legitimate aim (protection of family life of the mother and the child), with possibility to restrict such meetings to a degree which is necessary in a democratic society.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Exhaustion of domestic remedies
(a) The parties’ arguments
(b) The Court’s assessment
1. The parties’ arguments
2. The Court’s assessment
(a) General principles
(b) Application of these principles to the present case
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
A. The parties’ arguments
B. The Court’s assessment
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant was not represented in the proceedings before the domestic authorities and that his claim for costs and expenses relates only to the legal representation before the Court. Therefore, making its assessment on an equitable basis and in the light of its practice in comparable cases, the Court considers it reasonable to award the applicant, who was legally represented before the Court, the sum of EUR 1,000, plus any tax that may be chargeable to the applicant on these amounts.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the general conditions of the applicant’s detention in Zagreb Prison admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the general conditions of the applicant’s detention in Zagreb Prison;
(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, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Anatoly