FIFTH SECTION
DECISION
Applications nos. 35539/13 and 48166/13
Roman BRAJDIČ and Jani ŽIVEC
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 14 October 2014 as a Committee composed of:
Angelika Nußberger, President,
Boštjan M. Zupančič,
Vincent A. De Gaetano, judges
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on 25 May 2013 and 19 July 2013 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicant in the first case, Mr Roman Brajdič, is a Slovenian national, who was born in 1980 and lives in Koper. He was represented before the Court by Mr D. Ljubič, a lawyer practising in Ljubljana.
The applicant in the second case, Mr Jani Živec, is a Slovenian national, who was born in 1985. He was represented before the Court by Odvetniška Družba Matoz o.p. d.o.o., a law firm practicing in Koper.
The Slovenian Government (“the Government”) were represented by their Agents, Mrs Andreja Vran and Mrs Nataša Pintar Gosenca, State Attorneys.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were detained in the remand section of Ljubljana prison.
The applicant Mr Brajdič was detained from 23 November 2012 to 3 April 2013. The applicant Mr Živec was detained from 7 October 2012 to 16 May 2013.
At the time of lodging their applications to the Court they had not been in Ljubljana prison any longer. They had already been transferred to Dob prison, however they complained solely about the conditions of detention in Ljubljana prison.
B. Relevant domestic law and practice
For the relevant domestic law and practice see Bizjak v. Slovenia (dec.), no. 25516/12, 8 July 2014, §§ 6-11.
COMPLAINTS
The applicants complained that the conditions of their detention in Ljubljana prison amounted to a violation of Article 3 of the Convention.
Under Article 13 of the Convention the applicants complained that they had not had at their disposal any effective domestic remedy for their complaints under Article 3.
THE LAW
As the applications are similar in terms of both fact and law, the Court decides to join them.
A. Complaint under Article 3 of the Convention
The applicants complained that the conditions of their detention had been inhuman and degrading. They invoked 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 applicants alleged, in particular, that they had suffered from severe overcrowding, inadequate ventilation during the summer and excessive restrictions on out-of-cell time.
The Government, relying on the same arguments as in the case of Bizjak (cited above, §§ 17-22), pleaded non-exhaustion of domestic remedies. They argued that the applicants had an effective remedy at their disposal, a claim for compensation under Article 179 of the Civil Code, which they had failed to use.
The applicants maintained that a claim for compensation could not be considered effective as the domestic proceedings had been lengthy.
As regards the relevant principles on the rule on exhaustion of domestic remedies, the Court refers to paragraphs 24‑26 of its decision in the case of Bizjak, where it has already assessed the effectiveness of a claim for compensation in respect of allegedly inadequate conditions of detention. In Bizjak, the applicant had already been released from Ljubljana prison at the time of lodging his application to the Court.
The Court concludes that the remedy at issue should in principle be used as from 8 July 2014 by a person in the applicant’s situation who intends to claim that his or her prison conditions were incompatible with Article 3 of the Convention (see Bizjak, cited above, § 34).
The factual background in the present case is similar to the one in the case of Bizjak. At the time of lodging of their applications to the Court the applicants in the present case were no longer detained in Ljubljana prison. They had been transferred to Dob prison for which the Court found that the conditions there were not incompatible with the Convention (see 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). In any event, the applicants complained merely about the conditions of detention in Ljubljana prison.
Furthermore, the applicants’ objection as to the ineffectiveness of the remedy regarding the length of domestic compensation proceedings is based on the same arguments as those adduced by the applicant in Bizjak (cited above, § 23). Those allegations were not accepted in Bizjak (cited above, §§ 35-36) nor were the allegations regarding the amount of compensation awarded at domestic level (see Bizjak, cited above, §§ 37-44) and the Court sees no reasons that would lead it to reach a different conclusion in the present case.
As the situation of the applicants in the present case is similar to the one of the applicant in the case of Bizjak and as the Court sees no reason to depart from the findings in that case, it concludes, as in Bizjak, that the applicants were obliged, under Article 35 of the Convention, to pursue the remedy under Article 179 of the Civil Code, which they have not done.
Therefore, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 13 of the Convention
The applicants complained that they did not have any effective remedy at their disposal as regards the conditions of their detention. They relied on Article 13 of the Convention, which reads as follows:
“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.”
As in Bizjak (cited above, § 48), the Court concludes that, even assuming that Article 13 is applicable, it has already found that a claim for compensation under Article 179 of the Civil Code would have provided the applicants with a potentially effective remedy for their complaints under Article 3 of the Convention and that that finding is valid also in the context of the complaint under Article 13 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy