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JIRSAK v. THE CZECH REPUBLIC - 8968/08 [2012] ECHR 591 (5 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/591.html
Cite as:
[2012] ECHR 591
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FIFTH
SECTION
CASE OF JIRSÁK v. THE CZECH REPUBLIC
(Application
no. 8968/08)
JUDGMENT
STRASBOURG
5
April 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 Jirsák v.
the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Mark
Villiger,
Ann
Power-Forde,
Ganna
Yudkivska,
André
Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 6 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8968/08) against the Czech
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Czech national, Mr Zdeněk Jirsák
(“the applicant”), on 13 February 2008.
The
applicant was represented by Mr W. Firla, a lawyer practising in
Havířov. The Czech Government (“the Government”)
were represented by their Agent, Mr Vít A. Schorm, of the
Ministry of Justice.
The
applicant alleged, in particular, that the conditions of his
detention were inhuman and degrading in violation of Article 3 of the
Convention.
On
10 January 2011 the President of the Fifth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Zdeněk Jirsák, is a Czech national who was
born in 1953 and is currently serving a sentence in Karviná
Prison.
A. The conditions of the applicant’s of detention
and his injury
The
applicant served his prison sentence in Valdice Prison in Sections C
and D between 2000 and 2005.
Between
10 November 2000 and 29 January 2001, he shared cell no. 223, of
a total surface area of 35.816 sq. m.,
with nine other prisoners. The cell was rectangular in
shape with bunk beds along both of the longer walls. Next to the
entrance, which was at one end of the cell, was a separate room with
a toilet. At the opposite end of the cell were two large windows,
measuring 1.44 sq. m each. One window and half of the second one
could be opened. Yellow translucent pieces of fibreglass covered them
from the outside at a distance of approximately 1.5 m. It was up to
the detainees how and when the windows were opened. The cell was
equipped with ten lockers, two tables and ten chairs.
During
the whole period of his detention in cell no. 223 the applicant was
employed in the prison laundry where he spent nine hours every
working day. He was allowed to spend one hour a day outside in the
yard. He could also watch television or take part in other
recreational activities outside his cell. The applicant could take a
hot shower twice a week and wash after work. He was guaranteed one
warm meal per day and two hot meals four times a week. He had access
to a range of cultural and sports activities, books, newspapers and
magazines.
On
28 January 2001 at 7.30 p.m. the applicant broke his ankle in his
cell while climbing down from his bunk bed. According to him, he fell
because he was dizzy due to the stuffy air in the cell. He did not
call for medical assistance as he thought that his ankle was just
sprained. He took some pills containing Ibuprofen as a painkiller. In
the morning, he was unable to walk due to a severe pain in his ankle,
so his cell mates took him to the prison infirmary.
The
prison doctor visually examined the applicant and considered him to
be heavily intoxicated with medicaments, although he did not conduct
a medical test. The doctor did not send him for an x-ray, because the
person operating the prison’s x-ray machine was on holiday and
due to the applicant’s alleged intoxication, his transfer to a
hospital was, in his view, impossible. The applicant, having been
proclaimed intoxicated, was sent to solitary confinement.
On
the next day, 30 January 2001, the applicant was x-rayed and it was
found that his ankle was broken. He was transferred to a prison
hospital in Prague. The record shows that the applicant fully
cooperated with the medical staff and was operated on at the hospital
on 31 January 2001. He then stayed in Prague Prison, where he
was treated until 20 March 2001. He was subsequently transferred to
Brno Prison, where he continued his treatment, including
physiotherapy. The treatment lasted for seven months overall, but the
applicant has continued to see a doctor afterwards as he has
developed arthritis in his broken ankle.
On
26 March 2001 the applicant was found guilty of the disciplinary
offence of self-intoxication. He was sentenced to five days under the
“closed prison” regime (uzavřené
oddělení). He did not appeal.
He
was also dismissed from his prison job because it was considered that
on 29 January 2001 he had been absent from work due to his
self-intoxication.
B. Complaints against the prison authorities
In
November 2001 the applicant lodged a criminal complaint against the
director of Valdice Prison alleging inadequate treatment of his
injury.
On
1 February 2002 the Hradec Králové Regional
Prosecutor’s Office informed him that his complaints were
unjustified.
On
22 August 2002 the High Prosecutor’s Office expressed doubts
about the conduct of the prison authorities towards the applicant and
forwarded the complaints to the Ministry of Justice, Department of
Prison Inspections (odbor generální inspekce,
oddělení vězeňství) to investigate
the matter. The prosecutor noted with concern that even though a
medical report had found that the applicant had no longer been
intoxicated at 3.10 p.m. on 29 January 2001, he still had not been
sent for an x-ray but had been kept in solitary confinement until the
next day; that the applicant had been dismissed from his prison job
during the time of his injury; that he had not been paid sickness
benefit; and that he had been subjected to disciplinary punishment
for intoxication without any consideration to his claim that he had
taken painkillers due to the injury he had suffered. The applicant
did not inform the Court about the outcome of this investigation.
On
13 February 2004, in reply to another complaint by the applicant
alleging overcrowding in the prison, the High Prosecutor’s
Office informed him that it was aware of the fact that some sections
in Valdice Prison were overcrowded and that the competent prosecutor
had been taking steps to remedy the situation.
On
20 October 2005 the applicant sent another complaint challenging his
treatment on 29 and 30 January 2001 to the Prison Directorate General
(Generální ředitelství Vězeňské
sluZby) which, on 29 November 2005, found it
unsubstantiated.
C. Civil proceedings for damages against the State
The
applicant instituted civil proceedings against the Czech Republic
claiming compensation in respect of pecuniary damage arising from his
injury, which had been caused by the unsatisfactory conditions of
detention in cell no. 223 in Valdice Prison and inadequate treatment
of the injury by the prison doctor.
In
a judgment of 7 April 2005 the Jičín District Court
(okresní soud) rejected his action, finding that at the
material time the applicant had been held together with nine other
inmates in a cell measuring 35.816 sq. m. (or 107,448 cubic metres)
including a toilet, which was in accordance with Order of the
Minister of Justice no. 20/1977 in force at the relevant time, which
had required a minimum of 7 cubic metres
per prisoner. The court based its findings on the
testimony of the applicant, two of his cellmates at the time of the
injury, other witnesses and several documents. The information about
the cell dimensions was based on a report by the prison authorities
and the court did not consider it necessary to measure the cell
itself, as requested by the applicant. It did not find any illegality
in the prison doctor’s conduct. It dismissed the applicant’s
request to admit additional evidence as unnecessary.
The
applicant appealed, arguing that the conditions of his detention had
been unsatisfactory. He claimed that the court had rejected his
request to admit in evidence a medical expert report to assess the
conditions of his detention and his request that the court measure
the cell itself and not rely on the prison report.
On
19 October 2005 the Hradec Králové Regional Court
(krajský soud) upheld the first-instance judgment
endorsing the District Court’s opinion.
On
10 May 2007 the Supreme Court (Nejvyšší soud)
dismissed the applicant’s appeal on points of law (dovolání).
It upheld the conclusions of the lower courts that the conditions of
the applicant’s detention, including the dimensions of his
cell, complied with domestic law.
The
applicant lodged a constitutional appeal (ústavní
stíZnost) complaining about the conditions of his
detention and violations of his right to a fair trial in the
precedent proceedings.
The
Constitutional Court (Ústavní soud) sent the
appeal to the lower courts that had previously been involved in the
case for comments.
On
24 October 2007 the Constitutional Court dismissed the applicant’s
constitutional appeal as manifestly ill-founded, holding that the
applicant had merely disagreed with the outcome of the proceedings.
It added that the decisions of the ordinary courts had been logical
and sufficiently reasoned without any appearance of arbitrariness.
The court did not refer in its reasoning to the written observations
submitted by the lower courts. It appears from the decision that the
District Court maintained, in a short submission, that its
decision had not violated the applicant’s constitutional rights
and that the Regional Court referred only to the text of its
judgment. None of these observations were sent to the applicant, the
court finding that they did not bring anything new to the case.
D. Other proceedings instituted by the applicant
In
2007 the applicant instituted proceedings against the prison doctor
who treated him on 29 January 2001, for the protection of his
personality rights. On 3 December 2010 the claim was dismissed on the
ground that the doctor had been acting in his official capacity and
therefore it was the State which should have been sued. At the same
time, the prescription period for the claim had already expired.
On
22 July 2010 the applicant instituted proceedings for damages against
the State before the Prague 2 District Court (obvodní soud)
under the State Liability Act for inhuman conditions of detention for
the whole period of his sentence. Those proceedings are pending.
II. RELEVANT DOMESTIC LAW
A. The Civil Code (Act no. 40/1964)
Under
Article 11, natural persons have the right to protection of their
personality rights (personal integrity), in particular their life and
health, civil and human dignity, privacy, name and personal
characteristics. Under Article 13 § 1, natural persons have the
right to request that any unjustified infringement of their
personality rights be ended and that the consequences of such
infringement be eliminated. They also have the right to appropriate
just satisfaction. Paragraph 2 provides that, in cases where the
satisfaction obtained under paragraph 1 is insufficient, in
particular because the injured party’s dignity or social
standing has been considerably diminished, the injured party is also
entitled to financial compensation for non-pecuniary damage. Under
Article 16 if pecuniary damage was caused by unjustified interference
with personality rights the liability of the perpetrator is governed
by the provisions of the Civil Code on liability for damage.
Articles
420 et seq. regulate civil liability for causing damage. Everybody is
liable for damage caused by his or her unlawful conduct. Only
pecuniary damage can be claimed under those provisions
B. Act no. 82/1998 on State liability for damage caused
in the exercise of public authority by an irregularity in a decision
or the conduct of proceedings (as in force at the material time)
Section
13 provided that the State is liable for damage caused by an
irregularity in the conduct of proceedings, including non-compliance
with the obligation to perform an act or give a decision within the
statutory time-limit. A person who has suffered loss on account of
such an irregularity was entitled to damages under section 31.
C. Execution of Prison Sentences Act (no. 169/1999)
Section
16(2) provides that each prisoner must have a bed and a place to
store his personal belongings. Under section 16(5) a prisoner has the
right to medical care in accordance with a special law, subject to
the limitations associated with the aim of the punishment. Section
26(1) provides that a prisoner has a right to file complaints and
requests to the competent authorities in order to enforce those
rights and interests protected by law. Such complaints and requests
must be made without delay.
D. Rules on the Execution of Prison Sentences (Decree
of the Ministry of Justice no. 345/1999) as in force at the relevant
time
Section
17 regulated the accommodation of prisoners, but did not specify cell
dimensions. Under section 5 cells had to have a toilet and a sink,
separated from the rest of the room by a non-transparent curtain.
E. The Amendment to the Rules on the Execution of
Prison Sentences (Act no. 378/2004), which entered into force on
1 July 2004
The
amendment provides that there must be at least 4 sq. m
of cell surface per each inmate. Placing a person in a
multiple occupancy cell that will result in less then 4 sq. m for an
inmate is permitted only when the total nationwide number of
prisoners exceeds the capacity of that type of prison, rendering it
impossible to satisfy the minimum surface requirement. Under section
17(7) bunk beds can be used only if the distance between the two
storeys is at least 80 cm and the cell has at least 7 cubic metres
of space per prisoner.
F. Order of the Minister of Justice no. 20/1977 as in
force at the relevant time
Section
24 regulated the accommodation of prisoners. It stipulated the
minimum cell space per prisoner as 7 cubic metres
and the minimum height of the cell as 2.8 m. Bunk beds
were allowed if the distance between the two storeys was at least 100
cm.
III. RELEVANT
INTERNATIONAL DOCUMENTS
A. Report
to the Czech Government on the visit to the Czech Republic carried
out by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) from 21 to 30
April 2002 (CPT/Inf (2004) 4)
The
CPT stated, inter alia, as follows:
“60. Recent legislative changes concerning remand
imprisonment have resulted in a substantial decrease of
prisoners in Czech prisons. However, the delegation’s findings
during the 2002 visit indicated that there was still a lack of
sufficient living space for many prisoners in Czech prisons.
In this connection, the CPT was concerned to learn that
the already modest standard of 3.5 m² per person, which had been
criticized by the Committee (cf. paragraph 47 of the report on the
1997 visit), had recently been formally abolished. The CPT recommends
that an official standard be re-established in the Czech prison
system, guaranteeing at least 4 m² per prisoner in multiple
occupancy cells.
[T]he CPT invites the Czech authorities to continue to
pursue their efforts to bring about a permanent end to overcrowding;
success in this area will require inter alia that full use be made of
existing possibilities for non-custodial sanctions.
61. ...Valdice Prison is located on the premises of a
seventeenth-century monastery, which was converted into a prison some
140 years ago. Its official capacity had been more than halved since
the 1980s (from 2,700 to 1,280 prisoners); at the time of the visit,
the prison was accommodating 1,387 male inmates (an occupancy rate of
108%).”
B. Report to the Czech Government on the visit to the
Czech Republic carried out by the CPT from 27 March to 7 April 2006
and from 21 to 24 June 2006 (CPT/Inf (2007) 32)
The
CPT stated, inter alia, as follows:
“30. The Committee was pleased to note that the
amendments to the Confinement Act and to the Remand Act in 2004
introduced the norm of a minimum of 4m² per prisoner in
multi-occupancy cells. However, an exemption to this rule was
introduced and, as the Czech authorities noted in their follow-up
response of 14 April 2005 (cf. CPT/Inf (2005) 5), ‘based on a
minimum accommodation area of 4m² per prisoner, most prisons are
significantly overcrowded’.
Valdice Prison, described in paragraph 61 of the 2002
CPT visit report (cf. CPT/Inf (2004) 4), has a capacity of 1,094 and
held 1,197 sentenced prisoners, of whom 629 were under the high
security regime (Category D).”
C. Concluding Observations of the Human Rights
Committee on the Czech Republic, 27 August 2001 (CCPR/CO/72/CZE)
The
Committee observed, inter alia, as follows:
“19. The Committee is concerned about overcrowding
in prisons (art. 10). The State party should take measures to
overcome overcrowding in prisons and to ensure compliance with the
requirements of article 10. Information should be provided on prison
capacity and the actual prison population so as to permit the
Committee to assess the level of overcrowding.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the conditions of his detention in cell no.
223 in Valdice Prison had been inhuman and degrading and that his
medical treatment had been inadequate, contrary to what is required
by Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
A. Admissibility
The
Government argued that the two complaints must be considered
separately and that the applicant had failed to exhaust domestic
remedies for his complaint about the conditions of his detention.
They maintained that in the civil proceedings the applicant had
instituted before the Jičín District Court he had claimed
damages only for the alleged inadequate medical care. Regarding his
claim of unsatisfactory conditions of detention, he should have
instituted separate civil proceedings for protection of personality
rights against the State or proceedings for damages against the State
under Act no. 82/1998.
They
added that if the Court found that none of the remedies proposed by
the Government could be considered effective, the application had in
any case been lodged outside the six-month time-limit because the
applicant’s detention in cell no. 223 had ended on 29 January
2001.
The
applicant disagreed.
The
Court reiterates that under Article 35 § 1 it may only deal with
a matter after all domestic remedies have been exhausted.
Applicants must have provided the domestic courts with the
opportunity, in principle intended to be afforded to Contracting
States, of preventing or putting right the violations alleged against
them. That rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available in the domestic system in
respect of the alleged breach. The only remedies which Article 35 §
1 requires to be exhausted are those that relate to the breach
alleged and are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness: it falls to the respondent State to establish that
these conditions are satisfied. Moreover, an applicant who has
exhausted a remedy that is apparently effective and sufficient cannot
be required also to have tried others that were available but
probably no more likely to be successful (see McFarlane v. Ireland
[GC], no. 31333/06, § 107, 10 September 2010, and T.W.
v. Malta [GC], no. 25644/94, § 34, 29 April 1999).
In
cases regarding unsatisfactory conditions of detention that have
already ended a civil action for damages is an effective remedy for
the purposes of Article 35 of the Convention (see Łomiński
v. Poland (dec.), no. 33502/09, § 72, 12 October 2010).
Turning
to the present case, the Court observes that the applicant instituted
civil proceedings against the State before the Jičín
District Court claiming compensation for pecuniary damage under
Articles 420 et seq. of the Civil Code on account of his injury
caused by the inadequate conditions of his detention. The domestic
courts rejected his claim based on the lack of any unlawfulness on
the part of the Government and the compliance of the conditions of
the applicant’s detention with domestic law. Accordingly, they
scrutinised both parts of the applicant’s present complaint
before the Court.
The
Court considers that the remedy chosen by the applicant, who
considered that he had suffered primarily pecuniary damage, can be
considered an effective remedy. If he had been successful with his
claim, he would have been compensated for his injury, which, in his
view, was caused by unsatisfactory conditions of detention.
It
might be true, as maintained by the Government, that the applicant
could also have lodged an action against the State for protection of
personal rights under Articles 13 and 16 of the Civil Code seeking
compensation for both pecuniary and non-pecuniary damage.
However,
given that the remedy pursued by the applicant must be considered an
effective remedy for his present complaints before the Court, he
cannot be required to have had recourse to another available remedy
which, moreover, did not offer a better prospect of success. Here the
Court notes that the remedy suggested by the Government requires the
claimants to prove the unlawfulness of the defendant’s conduct
in the same way as the remedy the applicant pursued. In fact, Article
16 of the Civil Code, which regulates claims for compensation for
pecuniary damage within the framework of the protection of personal
rights, expressly states that such claims are regulated by the
general provisions on claims for damages, which are to be found in
Articles 420 et seq. of the Civil Code. Consequently, this kind of
claim would be governed by the same rules as the claim made by the
applicant
The
same conclusion is valid in respect of a possible action against the
State under the State Liability Act, being just an alternative avenue
at that time for claiming compensation in respect of pecuniary damage
against the State which would also require a finding of illegality in
the conduct of the State in order to be successful.
Accordingly,
the Court dismisses the Government’s objection of
non-exhaustion of domestic remedies.
It
adds that as far as the applicant can be understood to be complaining
about the conditions of his detention in other cells in Valdice
Prison, as seems to be the case in his reply to the Government’s
observations, such a complaint would be inadmissible for
non-exhaustion of domestic remedies under Article 35 § 1 of the
Convention, because he did not include that complaint in the civil
proceedings he instituted before the Jičín District Court
for damages against the State, and the proceedings instituted in 2010
before the Prague 2 District Court are pending.
Regarding
the Government’s objection that the complaint concerning the
inadequate conditions of the applicant’s detention was
introduced too late, the Court has no reason to doubt the
effectiveness of the civil remedy pursued by the applicant, which was
terminated by the decision of the Constitutional Court on 24 October
2007. It therefore dismisses this objection as well.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
The
applicant maintained that overcrowding in prisons was a systemic
problem in the Czech Republic and that it was the cause of his
injury. He argued that the conditions of his detention in cell no.
223 had reached the threshold of inhuman and degrading treatment in
that the cell had been overcrowded, there had been no ventilation
system and only one toilet for ten people. In his reply to the
Government’s observations he maintained that the temperature in
the cell had been between 10 and 14 degrees Celsius.
He
further maintained that his injury had not been treated promptly and
that instead of an appropriate and timely treatment having been
provided to him, he had been sent to solitary confinement.
The
Government maintained that the conditions of the detention of the
applicant in cell no. 223 had not reached the minimum level of
severity to fall within the scope of Article 3. Actually, even though
the floor space per person in the applicant’s cell had been
only 3.6 sq. m, the other conditions had been wholly satisfactory and
there had been other factors that militated against the conditions
being described as inhuman or degrading.
They
held that a lack of personal space could to a certain extent be
compensated for by the large overall space of a cell, which in the
present case had been 36 sq. m. The applicant had only been detained
in the cell for two and a half months and he had spent nine hours a
day outside the cell while working in the laundry room, and had been
able to spend another hour every day outside in the exercise yard.
Additionally, he had been able to take part in other cultural or
sport activities outside the cell, although at the material time he
had limited himself to watching television.
Regarding
the other conditions, the Government maintained that the two large
windows, which could be opened at any time, had guaranteed the
availability of fresh air and sufficient daylight despite fibreglass
panels that had been installed about 1.5 metres from the outside of
the windows to prevent visual contact with a neighbouring residential
house. The temperature in the cell had been between 20 and 22 degrees
Celsius.
The Government maintained that the applicant had received entirely
appropriate treatment for his injury, including treatment in
specialised clinics, an operation on his foot, regular check-ups and
physiotherapy, which had led to a full recovery. Admittedly, there
had been a delay in the treatment, but it had been for several hours
only and moreover it had been caused by the applicant himself, as an
experienced doctor had concluded that the applicant’s immediate
transfer to hospital was not possible due to his intoxication. In
their view, the delay had not been serious enough to amount to a
violation of Article 3 of the Convention.
2. The Court’s assessment
The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 of the
Convention. The assessment of this minimum 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 or mental effects
and, in some cases, the sex, age and state of health of the victim
(see Ireland v. the United Kingdom, 18 January 1978, § 162,
Series A no. 25, and M.S.S. v. Belgium and Greece [GC],
no. 30696/09, § 219, 21 January 2011).
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 by,
among other things, providing him with the requisite medical
assistance. When assessing conditions of detention, account has to be
taken of the cumulative effects of those conditions, as well as the
specific allegations made by the applicant (see Kudła v.
Poland [GC], no. 30210/96, § 94, ECHR 2000 XI, and
Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002 VI).
a) Complaints about the conditions of the applicant’s
detention in cell no. 223
The
Court reiterates that it cannot decide, once and for all, how much
personal space should be allocated to a detainee in terms of the
Convention. That depends on many relevant factors, such as the
duration of detention in particular conditions, the possibilities for
outdoor exercise, the physical and mental condition of the detainee,
and so on. This is why, whereas the Court may take into account
general standards in this area developed by other international
institutions, such as the CPT, these cannot constitute a decisive
argument (see Trepashkin v. Russia, no. 36898/03, § 92,
19 July 2007).
Nevertheless,
if the personal space available to a prisoner is in the range of 3 to
4 sq. m, other aspects of the physical conditions of detention must
be examined to assess the compliance of the detention with Article 3
of the Convention. Such elements include, in particular, the
possibility of using the toilet in private, ventilation, access to
natural light and air, adequacy of heating arrangements, and
compliance with basic sanitary requirements (see, for example,
Moiseyev v. Russia, no. 62936/00, § 123 , 9 October
2008, and Sulejmanovic v. Italy, no. 22635/03, § 42,
16 July 2009). Furthermore, a scarce space in relative
terms can be compensated for by the large size in absolute terms of
the dormitories, as well as the freedom of movement allowed (see
Valašinas v. Lithuania, no. 44558/98, § 107,
ECHR 2001 VIII).
Turning
to the present case, the Court notes at the outset that the applicant
complained of overcrowding only. The Court will not, therefore,
examine other factors relevant for compatibility of conditions of
detention with Article 3 of the Convention (see Valašinas,
cited above, § 108-111) which, moreover, do not seem to give
rise to any issue under that provision in the present case.
Regarding
the conditions in cell no. 223, the Court first observes that the
applicant was detained there for two and a half months, which is
a considerable time (see, for example, Trepashkin, cited
above, § 94, where the relevant period of detention was about
five weeks). The total space of the cell, which housed ten prisoners,
was 36 sq. m, that is, 3.6 sq. m per inmate. The Court must therefore
scrutinise the conditions carefully.
It firstly notes that the total space of the cell, 36
sq. m, allowed for enough movement, and it cannot be said that the
applicant would be practically confined to his bed during the times
when he was in the cell (see, a contrario, Peers v. Greece,
no. 28524/95, § 75, ECHR 2001 III). The Court also
considers it highly significant that the applicant spent nine hours
of each working day outside the cell at his workplace and an
additional hour outside in the exercise yard. Furthermore, it was
open to him to undertake other recreational activities outside his
cell.
The
cell was equipped with two large windows, which could be opened any
time. Admittedly, the windows were blocked by a fibreglass barrier at
a distance of 1.5 m outside the windows. Nevertheless, the Court does
not consider that this prevented fresh air from entering the cell.
The applicant himself maintained that the reason for the lack of
fresh air in the cell had been the rather cold weather outside. Yet
the truth remains that the applicant, together with his co-detainees,
could open the windows at anytime.
The
Court accepts that the translucent fibreglass barrier must have
somehow hindered the inflow of natural light into the cell.
Nevertheless, it did not block the natural light altogether and in
any case the applicant has not made any special complaints in this
respect.
Regarding
the temperature in the cell, the Government maintained that it was
kept between 20 and 22 degrees Celsius. The applicant, in his reply
to the Government’s observations, alleged that it had only been
between 10 and 14 degrees Celsius. The Court notes that this was the
first time that the applicant made such an allegation, including
before the domestic authorities. The Court considers it hard to
believe that, had it indeed been the case, the applicant would not
have complained about such a serious issue before in his
numerous complaints to the domestic authorities or in his application
to the Court. Moreover, his allegation is not corroborated by any
other evidence, and therefore the Court cannot give any weight to it.
The
Court accepts that the presence of a single toilet in a cell where
ten people were held could have at times caused an inconvenience to
the applicant. On the other hand, it observes that the toilet was in
a separate room with a functioning door, and therefore offered an
adequate sense of privacy.
The
cell was also equipped with a washbasin with running cold water at
all times. It is true that the applicant did not have access to hot
showers at all times but it does not seem that this limitation
deprived him of the opportunity to keep himself clean to a degree
which might have been incompatible with Article 3, as he was
able to wash everyday after work (see Valašinas, cited
above, § 108).
In
light of the above considerations, the Court considers that the
conditions of the applicant’s detention did not attain the
minimum level of severity amounting to degrading or inhuman treatment
within the meaning of Article 3 of the Convention
b) Complaints about the lack of medical treatment of
the applicant’s injury
The
Court notes at the outset that the key issue in the present case of
which the applicant complains is the alleged delay in treating his
injury.
The
Court reiterates that the authorities are under an obligation to
protect the health of persons deprived of liberty. The lack of
appropriate medical care may amount to treatment contrary to Article
3 (see Keenan v. the United Kingdom, no. 27229/95, § 111,
ECHR 2001 III). Part of the appropriateness of the treatment is
also its promptness (see Paladi v. Moldova, no. 39806/05,
§ 81, 10 July 2007 upheld by the Grand Chamber in Paladi v.
Moldova [GC], no. 39806/05, § 72, 10 March 2009). Leaving
a detained person without essential medical treatment as
prescribed by medical experts over a substantial period of time and
without satisfactory explanation amounts to inhuman and degrading
treatment in breach of Article 3 of the Convention (see Mikhaniv
v. Ukraine, no. 75522/01, § 74, 6 November 2008).
Delays that have been found incompatible with the Convention as far
as illnesses are concerned have generally been a matter of weeks (see
Koval v. Ukraine, no. 65550/01, § 81, 19 October 2006,
and Mikhaniv, cited above, § 72) or even months (see
Paladi, cited above, § 79). Moreover, in Gavriliţă
v. Romania (no. 10921/03, § 35, 22 June 2010) a two-week
long delay in adequate treatment of tuberculosis was not found to
constitute a violation of the Convention.
Regarding
injuries, a six-day delay in treating a broken rib was found to be a
violation of Article 3 by the Commission in Hurtado v. Switzerland
((dec.), no. 17549/90,§ 80, 8 July 1993). Under Article 2 of the
Convention a delay of two hours in treating a fractured skull, which
eventually led to death, was found incompatible with the obligation
to provide timely medical care (Anguelova v. Bulgaria, no.
38361/97, § 130, ECHR 2002 IV).
In Răducu v. Romania (no. 70787/01, §
59-62, 21 April 2009), the Court, when concluding that the State
could not be held responsible under Article 2 of the Convention for
the applicant’s death despite a two-week delay in dispensing
appropriate medical treatment for his numerous serious illnesses,
took into account the good quality of medical treatment he
subsequently received and which stabilised his condition.
In
the present case the Court notes that the applicant broke his ankle
on the evening of 28 January 2001 but reported the accident to the
prison authorities only the next morning. Following a visual
examination, the prison doctor found the applicant to be intoxicated
and thus unfit for transport to hospital for an x-ray. Consequently,
the applicant’s foot was x-rayed only on the following day and
the treatment of his injury started afterwards.
The
Court is not persuaded by the reasons put forward for the delay by
the State authorities. Neither the prison authorities nor the
Government provided a convincing explanation as to why the
applicant’s transfer to the hospital on 29 January 2001 was not
possible. The reasons that were advanced, such as, the applicant’s
allegedly intoxicated state or the radiographer’s absence on
holiday, are wholly unacceptable since the applicant was in the
custody of the respondent State and it owed him a duty of care.
Consequently, it remains the case that there was a one-day delay in
treating his injury that is attributable to the State authorities.
However,
not every delay in medical treatment of detainees is incompatible
with Article 3 of the Convention. What is decisive from the point of
view of that provision is whether the suffering resulting from
delayed treatment reached the minimum level of severity required by
Article 3 of the Convention (see, for example, Sarban v.
Moldova, no. 3456/05, § 84-87, 4 October 2005,
Paladi, cited above, § 81 and Hummatov v. Azerbaijan,
nos. 9852/03 and 13413/04, § 121, 29 November 2007).
Turning
to the present case, although the Court accepts that the applicant
must have suffered some pain, it cannot speculate on its intensity.
It also notes that as of 30 January 2001 he received adequate
treatment for his injury, including an operation in a specialised
hospital, regular check-ups and physiotherapy. Moreover, he did not
complain about the quality of the subsequent treatment, but
maintained that he continued to suffer adverse health consequences as
a result of his injury. He did not submit any evidence as to whether
the continuing problems with his ankle are a consequence of the
belated treatment or the injury itself. Under these circumstances the
Court cannot conclude that the adverse consequences are a result of
the belated treatment.
Regarding
the applicant’s argument that his injury was in the first place
a result of the overcrowding in the prison, the Court refers to the
conclusion made above that the conditions of his detention were in
compliance with Article 3 of the Convention.
In
view of those considerations, the Court considers that the one-day
delay in treating his injury did not reach the necessary minimum
level of severity to amount to inhuman or degrading treatment.
c) Overall assessment
The
Court notes that in some cases it has considered issues of alleged
inadequate conditions of detention and medical assistance separately
(see, for example, Gladkiy v. Russia, no. 3242/03, 21 December
2010, or Buzychkin v. Russia, no. 68337/01, 14 October 2008).
On the other hand, in numerous cases it has made an overall
evaluation of whether the conditions of detention, including
overcrowding, together with inadequate medical care amounted to
degrading treatment (see Melnik v. Ukraine, no. 72286/01,
§ 111, 28 March 2006, Koval v. Ukraine, no.
65550/01, § 82, 19 October 2006, or Gavriliţă
v. Romania, no. 10921/03, § 35-38, 22 June 2010).
In
any case, the Court considers that even taking into account the
cumulative effect of the conditions of the applicant’s
detention in cell no. 223 and the delay in treating his injury,
they do not reach the minimum level of severity required for a
violation of Article 3 of the Convention.
The foregoing considerations are sufficient to enable
the Court to conclude that there has not been a violation of Article
3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying
on Articles 6 and 13 of the Convention the applicant further
complained that the courts had not conducted their own investigation
of the facts surrounding his injury, that they had rejected his
requests for additional evidence and that their decisions had been
wrong. He finally complained that he could not reply to the
observations of the other parties to the proceedings before the
Constitutional Court.
Regarding
the complaint of lack of adversarial proceedings before the
Constitutional Court, the Court observes that in Holub v. the
Czech Republic ((dec.), no. 24880/05, 14 December 2010), it
declared a similar complaint under Article 6 of the Convention
inadmissible because the applicant had not suffered a significant
disadvantage within the meaning of Article 35 § 3 (b) of the
Convention. It based its decision on the fact that the
non-communicated observations had not contained anything new or
relevant to the case and the decision of the Constitutional Court had
not been based on them.
Turning
to the present case, the Court considers that the applicant did not
suffer a significant disadvantage when the Constitutional Court
failed to communicate to him the submissions of the other parties to
the proceedings. It follows that this complaint must be declared
inadmissible in accordance with Article 35 § 3 (b) of the
Convention, as amended by Protocol No. 14.
Having
examined the other complaints submitted by the applicant, the Court,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that these
complaints must be rejected as being manifestly ill-founded, pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 3 of the
Convention concerning the conditions of the applicant’s
detention in cell no. 223 and the lack of medical treatment of his
injury admissible and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 5 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
