ŠTITIĆ proti Chorvatsku

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29660/03
by Vladimir ŠTITIĆ
against Croatia

The European Court of Human Rights (First Section), sitting on 9 November 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 1 September 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vladimir Štitić, is a Croatian national who was born in 1967 and is presently serving his prison term in the Gospić Prison. He is represented before the Court by Mr D. Plavec, a lawyer practising in Zagreb.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Criminal proceedings against the applicant

By the Rijeka County Court (Županijski sud u Rijeci) judgment of 2 April 1996 the applicant was found guilty of abusing illegal drugs and sentenced to nine years’ imprisonment. The judgment was upheld by the Supreme Court on 22 October 1997.

On an unspecified date the applicant filed a request for the reopening of the criminal proceedings against him.

The applicant was apprehended on 25 May 2001 and incarcerated in the Lepoglava State Prison.

By its decision of 9 July 2001 the Rijeka County Court allowed the reopening of the criminal proceedings against the applicant. By its decision of 23 July 2001 the same court terminated the applicant’s serving of the prison sentence, but ordered his detention on remand. Pursuant to that decision the applicant was transferred to the Rijeka County Prison on 23 October 2001.

After the retrial the Rijeka County Court found the applicant guilty of abusing illegal drugs and on 11 March 2002 sentenced him to eight years’ imprisonment.

Upon the applicant’s subsequent appeal the Supreme Court on 27 August 2002 reduced the sentence to seven years and six months’ imprisonment. The applicant then filed a constitutional complaint about the fairness of the proceedings alleging that the lower courts had rejected some of his evidence and had wrongly established the relevant facts concerning his criminal responsibility.

On 11 November 2002 the applicant was again sent to serve the sentence in the Lepoglava State Prison (Kazneni zavod Lepoglava – “the LSP”).

On 19 February 2003 the applicant’s constitutional complaint in respect of the fairness of the criminal proceedings conducted against him was dismissed as being manifestly ill-founded.

2. The applicant’s stay in the LSP

a. The applicant’s complaint about the conditions in the LSP

On an unspecified date the applicant filed a request for “judicial protection” (zahtjev za sudsku zaštitu) with the Varaždin County Court execution judge (sudac izvršenja) complaining about the prison conditions and requesting damages in that respect.

On 17 December 2003 the Varaždin County Court execution judge accepted the applicant’s complaint in respect of the prison conditions. The judge held that the applicant was placed with three other inmates in a cell measuring 11,725 m² of which 1,95m² comprised a toilet area, whereas an adequate cell for four inmates should measure at least 16 m². Thus, the judge ordered the LSP to transfer the applicant to a cell fulfilling the conditions of the domestic regulations concerning prison conditions, namely Section 74 §§ 3, 4, 5 and 6 of the Act on the Execution of Prison Sentences (Zakon o izvršavanju kazne zatvora), within fifteen days.

The prison authorities complied with the execution judge’s order.

The judge, however, dismissed the applicant’s claim for damages due to lack of jurisdiction. This claim was found to be of a civil law nature and the applicant was advised to apply to a competent civil court.

On 22 July 2004 the applicant filed his request for damages with the State Attorney’s Office asking that a settlement be reached in the matter.

The State Attorney’s Office informed the applicant’s attorney on 5 November 2004 that no settlement was possible.

b. Disciplinary proceedings against the applicant while detained in the LSP

While serving his sentence in the LSP, the prison authorities instituted disciplinary proceedings against the applicant on an unspecified date. The hearings were held on 10 and 13 October 2003. Both the applicant and his counsel were present at the hearings. The applicant was heard in person as well as four witnesses. The Head of the Disciplinary Proceedings pronounced his decision on 14 October 2003. It was established that on 19 July 2003 the applicant had closed the door of cell no. 9 and had thus prevented an officer from entering the cell and performing his duties. The applicant’s conduct was found to be in breach of Section 145 § 3 (10) of the Act on the Enforcement of Prison Terms (Zakon o izvršavanju kazne zatvora). The applicant was given a conditional sentence of seven days of solitary confinement with a probation period of three months.

The decision was served on the applicant on 17 October 2003 at 2:45 p.m. It was also served on his counsel on an unspecified date.

The applicant’s counsel filed an appeal against the decision on Monday, 20 October 2003.

By a decision of 27 October 2003 the Varaždin County Court execution judge declared the appeal inadmissible as being out of time. The judge held that the time-limit for an appeal was 48 hours and that the time-limit had expired on 19 October 2003 at 2.45 p.m. despite the fact that this day was a Sunday. The time-limit could not be extended to the first working day, since the time-limit was fixed in hours.

3. The applicant’s stay in the Gospić Prison

Sometime in June 2004 the applicant was transferred to the Gospić Prison. He was placed in the so-called “semi-open” prison regime.

a. General conditions in the Gospić Prison

The applicant was first placed in cell no. 5 in the Unit I. He alleges the room was very damp and moist, mattresses old and torn so that bare wire stuck out. The bed-sheets and pillowcases were dirty and the blankets old and stinky. There was no access of daylight into the cell so that the electric light had to be switched on all day. The heating was inadequate and food was of law quality. No toiletry was provided to the applicant and there was no permanent doctor available in the Prison. Only one doctor (a paediatrician) came once in a while for an hour.

c. Remedies used by the applicant

On 14 September 2004 the applicant filed an application with the Gospić County Court execution judge complaining about the prison conditions and also alleging that a package sent to him by his parents on 30 August 2004, containing three packages of cigarettes, two magazines on motor cars and one notebook, had never been delivered but was instead returned to his parents who informed the applicant about it.

On 21 September 2004 the Gospić County Court execution judge requested the Gospić Prison authorities to comment on the complaint concerning the alleged non-delivery of the package.

By letter of 24 September 2004 sent to the Prison authorities the execution judge recalled that a prison director was allowed temporarily to deprive a prisoner from receiving packages for health and security reasons, but that the prisoner in question should be informed about such a decision and the reasons thereof. The applicant received a copy of the letter.

The applicant filed another application with the Gospić County Court execution judge on 21 October 2004, again complaining about the prison conditions and further asserting that six to eight letters sent by him to various persons had never been delivered.

The Gospić County Court execution judge replied to the applicant’s allegations by letter of 8 November 2004 stating that the Gospić Prison authorities had informed him that all letters had been properly forwarded and instructed the applicant to send letters in the future via registered mail only.

As to the applicant’s complaints concerning the prison conditions, the execution judge expressly stated that he had no jurisdiction to supervise the prison.

d. Disciplinary proceedings against the applicant while detained in the Gospić Prison

During his stay in the Gospić Prison the prison authorities opened disciplinary proceedings against the applicant. The prison authorities found that the applicant had attempted to introduce illegal drugs into the Prison via a letter sent to him by his girlfriend, which constituted a disciplinary offence under Section 145 § 3(11) of the Act on Enforcement of Prison Term. By decision of 2 November 2004 the Head of Disciplinary Proceedings ordered a disciplinary measure against the applicant depriving him of movement inside the prison and of frequent contacts with the outside world for three months, starting from 2 November 2004.

In his subsequent appeal of 16 November 2004 the applicant, inter alia, alleged that he had not attended the final hearing before the prison disciplinary authorities because his attorney had not been present. The applicant also alleged that the notes of that hearing had not been served on him.

On 18 November 2004 the Gospić County Court execution judge dismissed the appeal. The decision analysed in some detail the evidence presented in the disciplinary proceedings but made no mention of the procedural defects complained of by the applicant.

e. The applicant’s solitary confinement

On 17 March 2006 the applicant was placed in solitary confinement following the Gospić Prison Director’s decision of the same day ordering the placement of the applicant to the so-called “closed” prison regime due to an alleged incident which occurred between the applicant and another inmate. The Director also ordered the institution of disciplinary proceedings against the applicant in relation to that incident.

On an unspecified date the applicant appealed against that decision alleging that he had been attacked by another inmate who had struck him twice in the head. The applicant further alleged that he had been taken to a doctor to whom he had complained about general sickness, dizziness and heavy thirst. However, the doctor had only prescribed painkillers and had not made any further examinations. The applicant had asked to be taken for an X-ray at his own expense, but it had been refused. He further alleged that he had a visible haematoma under his left eye and that the disciplinary measure against him was a consequence of his previous complaints about the prison conditions.

On 23 March 2006 the Gospić County Court execution judge dismissed the applicant’s appeal finding that the decision to place the applicant under the closed prison regime was based in law and a consequence of his conduct which endangered the order and security in the Prison. There was no comment about the applicant’s allegations concerning the lack of adequate medical assistance.

The applicant appealed against the execution judge’s decision on 27 March 2006 to the Gospić County Court three-judge panel. In his appeal he stated that he had been put in isolation, locked in his cell for 21 hours per day, with no contact with other prisoners or the outside world. He had been allowed two one-hour walks per day and an one-hour exercise in a gym per day, both without the presence of any other prisoner. The rest of the time he spent locked alone in his cell. He had no regular access to a bathroom or running water, which was left to the discretion of the prison guards. He had to beg prison guards to let him use the shower or brush his teeth and had to wait until there was no one else in the bathroom. Finally, he submitted that although a measure of solitary confinement had to be monitored by a doctor, the applicant had not been seen by a doctor.

The Gospić County Court’s three-judge panel dismissed the applicant’s appeal on 28 March 2006 finding that the only way to prevent the applicant from further unacceptable behaviour was his isolation. They made no remarks concerning the applicant’s complaint about the conditions of solitary confinement.

It appears that certain disciplinary proceedings against the applicant are still pending. He seems to be at present in solitary confinement.

B. Relevant domestic law

The Act on the Enforcement of Prison Terms (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) - “the Act”) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:

Section 17

“1. An inmate may file 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.”

Section 74

“1. The accommodation of the inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.

2. Inmates shall as a general rule be accommodated in separate rooms...

3. Inmates’ rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 m² and 10 m³ of space in the room.

4. Every room... must have daylight and artificial light...

5. Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.

6. Inmates shall have drinking water at their disposal at all times.”

Section 77

“1. The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.”

Section 78

“3. Inmates shall be served at least three meals daily with a caloric value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.”

Correspondence

Section 124

(1) An inmate has the right to unlimited mailing at his own expense.

(2) In a prison, closed penitentiary and the penitentiary’s closed units the correspondence of inmates shall be monitored.

(3) The prison director may deprive an inmate of his right to send and receive letters for security reasons, of which he has to inform the inmate and the letters to be forfeited shall be filed in the inmate’s personal file. Against the prison’s director’s decision an inmate may appeal to an execution judge.

...

(4) Where a suspicion exists that an inmate is receiving or sending illegal substances or objects via letters, a letter addressed to the inmate shall be opened in his presence. A letter sent by the inmate may also be opened in his presence. ...

Packages

Section 125

(1) An inmate has the right to receive a package containing permitted objects at least once a month and an additional package on a bank holiday.

(2) The sender of a package is obliged to enclose a list of objects in the package.

(3) A package is to be opened by an official in the inmate’s presence.

...

(5) A prison director may temporarily suspend delivery of a package for health or security reasons, of which the inmate shall be informed. The inmate may appeal against the director’s decision to an execution judge. ...

Relevant parts of the Act on Enforcement of Prison Terms concerning disciplinary offences, as in force at the material time, read as follows:

“HEAD XXI

DISCIPLINARY OFFENCES, MEASURES AND PROCEEDINGS

Section 145

...

(2) Minor disciplinary offences are:

...

10) preventing an official or any other person involved in the implementation of the programme of execution [of prison sentences] from performing their duties

...

(3) Grave disciplinary offences are:

...

11) possession or intake of any narcotic or psychoactive substance

...”

COMPLAINTS

1. The applicant made two separate complaints under Article 6 § 1 of the Convention: he firstly complained about the fairness of the disciplinary proceedings conducted against him during his stay in the Lepoglava State Prison; secondly he complained about the fairness of the disciplinary proceedings conducted against him during his stay in the Gospić Prison.

2. The applicant made two different complaints under Article 3 of the Convention: he firstly complained about the prison conditions in the Lepoglava State Prison; secondly he complained about general conditions in the Gospić Prison and about conditions of his solitary confinement in that same Prison as well as about the lack of adequate medical treatment for his injuries.

3. The applicant also complained under Article 8 of the Convention about the failure of the prison authorities to deliver a package sent to him by his parents and to forward some six to eight of his letters.

4. Finally, the applicant complained about the lack of an effective remedy in respect of his complaints under Article 3 of the Convention.

THE LAW

1. The applicant made two separate complains concerning two different sets of disciplinary proceedings conducted against him.

a. The applicant firstly complained about the fairness of the disciplinary proceedings conducted against him in the Lepoglava State Prison. He alleged in particular that the time-limit for an appeal against the prison authorities’ decision imposing disciplinary sanctions against him, being 48 hours only, was too short in itself, and further that the Varaždin County Court execution judge had erred in his reasoning that a time-limit fixed in hours and expiring on a Sunday had not have to be extended until the first working day.

b. The applicant also complained that in the disciplinary proceedings conducted against him by the Gospić Prison authorities he had not attended the final hearing because his defence lawyer had not been present. The notes on the hearing had not been served on him The applicant complained that although he had raised the same issues in his appeal against the Prison authorities’ decision of 2 November 2004 imposing a disciplinary sanction against him, the Gospić County Court execution judge, acting in his appellate capacity, in his decision of 18 November 2004, had not made any reference to these complaints.

The applicant relies on Article 6 § 1 of the Convention, the relevant parts of which read as follows:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complained about the conditions in the two prisons where he had been accommodated.

a. He firstly complained about the conditions in the Lepoglava State Prison.

b. Secondly, the applicant complained about the general conditions in the Gospić Prison and about the conditions of his solitary confinement in that prison. He also complained about the failure of the prison authorities to secure him adequate medical care after he had sustained injuries to his head by another inmate on 17 March 2006. He relied on Article 3 of the Convention which reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

a. As to the applicant’s complaint about the conditions in the Lepoglava State Prison, the Court notes that the applicant made the same complaints to the Varaždin County Court execution judge and that the judge accepted the applicants complaint and on 17 December 2003 ordered that the Prison authorities place the applicant in an adequate cell and ensure to him adequate conditions.

The applicant confirms that the prison authorities complied with the above order.

The judge also denied his jurisdiction in respect of the applicant’s claim for damages finding that such a claim was of a civil law nature and had to be filed with a competent civil court. After that the applicant, pursuant to the domestic law, filed a request with the State Attorney’s Office asking that a settlement be reached. However, the proposal was denied.

The applicant then failed to institute regular civil proceedings against the State for the damages in respect of the prison conditions found by the execution judge to be in contravention with the domestic rules governing the matter.

The Court, therefore, finds that the applicant’s situation in prison was remedied by the execution judge’s decision and the following replacement of the applicant in an adequate cell pursuant to that decision.

Furthermore, as to any remaining redress to be obtained by the applicant for the period that he had actually spent in the inadequate prison conditions, the applicant had an option to seek damages in regular civil proceedings, but he failed to do so.

In the Court’s view a combination of the two above-mentioned proceedings represent effective remedies in respect of inadequate prison conditions.

The execution judge is able to take an urgent decision by which he orders the prison authorities to undertake an instant action and thus to remedy with an immediate effect the actual conditions of an individual applicant serving his prison term.

While this immediate betterment of a prisoner’s conditions serves him well from then on, it has no effect to the suffering caused by the inadequate prison conditions that he had already endured.

However, in respect of that suffering a prisoner has a possibility of instituting civil proceedings against the State whereby he is able to claim damages.

While the institution of civil proceedings for damages in itself cannot be regarded as an effective remedy for addressing the adverse prison conditions, such proceedings in combination with an urgent decision of an execution judge with an immediate effect on the actual conditions of an individual applicant, in the circumstances of the present case, do satisfy the requirements of effectiveness.

Therefore, as the applicant failed to use the remedy at his disposal it follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b. As to the applicant’s complaints about the general conditions in the Gospić Prison and the conditions of his solitary confinement in that Prison, as well as about the lack of adequate medical care for his injury, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant also complained that a package sent to him to the Gospić Prison by his parents was never delivered to him and that some six to eight letters sent by him from the Prison were never forwarded. He relied on Article 8 of the Convention, the relevant parts of which read as follows:

Article 8

“1. Everyone has the right to respect for 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant finally complained about the lack of an effective domestic remedy in respect of his Article 3 complaint, relying on Article 13 of the Convention which reads as follows:

Article13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning:

- the fairness of the disciplinary proceedings conducted against him in the Lepoglava State Prison and the disciplinary proceedings conducted against the applicant in the Gospić Prison;

- general conditions in the Gospić Prison and the conditions of the applicant’s solitary confinement and the lack of adequate medical care for his injury;

- the applicant’s right to respect for correspondence; and

- the lack of an effective remedy in respect of his Article 3 complaint.

Declares the remainder of the application inadmissible.

Søren Nielsen Christos ROZAKIS
Registrar President