FIFTH SECTION
DECISION
Application no. 5831/10
Haris AJDAROVIĆ
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 2 April 2013 as a Committee composed of:
Ann Power-Forde, President,
Boštjan M. Zupančič,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 18 December 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Haris Ajdarović, is a Slovenian national, who was born in 1983 and lives in Trbovlje. He is represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a lawyer practising in Koper.
The Slovenian Government (“the Government”) are represented by their Agent, Mrs N. Aleš Verdir, State Attorney.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was serving a sentence in the closed section of Dob Prison from 24 August 2007 to 1 July 2010.
As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011.
From 28 August 2007 to 1 July 2010 the applicant was held in a cell no 4, Block 4 which measured 59.57 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate).
According to the Government’s submissions dated 23 December 2010 the applicant was employed at Pohorje Mirna Public Utility Institute (JGZ Pohorje) since 1 October 2007 following an assessment of his working ability and according to his wish to work in the foundry plant. For work outside the prison a contract is concluded between the prison and an employer to determine mutual rights and obligations, including the employer’s obligation to ensure safety at work and control at the work place. Further, JGZ Pohorje signed a contract with a company for ensuring safety at work, including periodical examination, tests of work equipment and the preparation of instructions for safe work. On 16 April 2008 the applicant sustained an accident at work, which led to an amputation of the third and the fourth finger on his left hand at the second knuckle and injury of the tip of his second finger on the left hand. The applicant was assembling joints when he placed his left hand below the working tool, which suddenly triggered and tore off the lower knuckles of his ring and middle fingers on the left hand. He was immediately taken to hospital. The applicant had been working for three weeks with the machine prior to the accident. The accident occurred due to sudden change in the way the machine operated, which has not been explained, although the machine was regularly controlled and worked properly at the time of the accident. The applicant had a certificate confirming that he had passed an examination of competence in safe work practices for the workplace in which he was engaged during the period concerned. He was also acquainted with the legal provisions, underwent a preventive medical examination and took a practical training course for his specific workplace. Also the instructions to be followed to ensure safety at work were displayed at the workplace. Further, according to the Government’s submissions dated 17 June 2011 the applicant was first treated in the prison clinic upon his arrival, on 29 August 2007 and since then he received medical treatment on fifty occasions, never mentioning any psychological problem. The applicant was also treated by a psychiatrist on five occasions and on one occasion he even declined the treatment. He underwent psychotherapy sessions and medical therapy with antidepressants, anxiolytics and sedatives. He received psychological treatment on twenty-eight occasions. He also received individual psychological treatment for his criminal offence, however his motivation for the participation fluctuated.
B. Relevant domestic law and practice
For the relevant domestic law and practice, see paragraphs 33-35 and 38‑47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011) and Ferenc v. Slovenia (no. 6682/10, 13 March 2012).
COMPLAINTS
The applicant complained that the conditions of his detention in Dob Prison amounted to a violation of Articles 3 and 8 of the Convention. In particular, he complained of severe overcrowding, which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restrictions on time spent outside the cell, high temperatures in the cells, inadequate health care and psychological assistance, inadequate measures as regards the rehabilitation of drug addicts, and exposure to violence from other inmates owing to insufficient prison security. He further submitted that the situation amounted to a structural problem, which had been acknowledged by the domestic authorities.
In addition, the applicant complained that due to inadequate working conditions he had sustained serious injuries while he had been working in the prison’s plant. He alleged that the prison had failed to comply with health and safety at work regulations and had not ensured appropriate conditions for safe work, which had resulted in an accident in which he had lost two fingers and had been left disabled. He also complained that he had not received adequate medical treatment for his psychological problems.
Citing Articles 3 and 8 of the Convention, the applicant also complained of restrictions on visits, telephone conversations and correspondence.
The applicant lastly complained, under Article 13, that he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention.
THE LAW
As regards the complaint about the injuries the applicant suffered while working at the prison work plant the Government objected that the applicant had not exhausted domestic remedies, that the complaint did not comply with the six-month rule and that it was not compatible ratione personae and ratione materiae with the provisions of the Convention or its Protocols. The Court agrees with the Government as regards the non-exhaustion objection, therefore it does not find it necessary to examine other objections.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports of Judgments and Decisions 1998-VIII).
The Court further notes that it is up to the applicant to prove that an appropriate and effective domestic remedy was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case (see for example, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V), or that there existed special circumstances absolving the applicant from the requirement (see for example, Sejdovic v. Italy [GC], no. 56581/00, § 55, ECHR 2006-II).
Turning to the present case, the Court notes that the Government, pleading non-exhaustion of domestic remedies, stated that an action for compensation was available for the applicant under Article 131 et seq. of the Code of Obligations for claiming pecuniary and non-pecuniary damages. As regards the effectiveness of the remedy the Government relied on the Court’s findings in Lukenda v. Slovenia, no. 23032/02, ECHR 2005‑X.
The Court considers that the applicant had at his disposal an action for compensation which is a remedy used for claiming pecuniary and non‑pecuniary damages and which cannot be assumed, a priori, to have been ineffective. Moreover, the applicant did not dispute or even comment on the Government’s allegations about the existence of the remedy or its effectiveness. Furthermore, the applicant did not refer to any special circumstances, which might have amounted to reasons absolving him from exhausting the remedy.
As the applicant did not exhaust an action for compensation as regards the complaint about his work injuries, this part of the application must be rejected on the ground that the effective remedy available under domestic law has not been exhausted as required by Article 35 § 1 of the Convention.
As regards the rest of the complaints the Court does not find it necessary to examine the Government’s objections concerning the issue of exhaustion of domestic remedies and compliance with the six-month rule, as these complaints should in any event be declared inadmissible for the reasons set out below.
As regards the applicant’s complaint that he did not receive adequate medical assistance, the Court recalls that Article 3 imposes an obligation on the States to ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). The Court would further note that information relating to detention often falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Still, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see, mutatis mutandis, Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010; Mešić v. Slovenia, cited above; and Ferenc v. Slovenia, cited above).
Turning to the circumstances of the present case, the Court notes that the applicant provided no evidence or details as regards his additional allegation and that he did not dispute or at least comment on the Government’s submissions that he had been on fifty occasions treated in the prison clinic and had never mentioned any psychological problem or the submissions about psychological and psychiatric treatment he received. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
As regards the remainder of the applicant’s complaints on general conditions of detention in the closed section of Dob Prison, the Court notes that these complaints are identical to those of the applicants in the case of Lalić and Others (cited above). In that case the Court found the general conditions of detention in the closed section of Dob Prison, including the medical and psychological care provided to the prisoners held therein, as well as the arrangements concerning security measures, and the restrictions on maintaining contact with people outside the prison to be adequate vis‑à‑vis the Convention standards. It accordingly rejected the applicant’s complaint under Article 13 of the Convention, as no arguable claim for the purpose of the aforementioned provision had been established.
The Court takes note of the similar factual background of the aforementioned case and the present application, including the fact that the present applicant always had sufficient personal space in the cell in which he was detained. It follows that these complaints are 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.
Stephen PhillipsAnn Power-Forde
Deputy RegistrarPresident
Full & Egal Universal Law Academy