CENBAUER v. CROATIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73786/01
by Miroslav CENBAUER
against Croatia

The European Court of Human Rights (First Section), sitting on 5 February 2004 as a Chamber composed of:

MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrsF. Tulkens,
MrsN. Vajić,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 14 January 1997,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Miroslav Cenbauer, is a Croatian national who was born in 1971 and lives in Viljevo, Croatia. He is represented before the Court by Mr Ivica Adamović, a lawyer practising in Donji Miholjac. The respondent Government are represented by their Agent Ms Lidija Lukina Karajković.

A.  The circumstances of the case

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

1.  Prison conditions

On 15 December 1993 the applicant was found guilty of several criminal offences, including murder, and sentenced to twelve years’ imprisonment. He started serving his prison sentence on 4 January 1995 in the Lepoglava State Prison (hereinafter “the LSP”) (Kazneni zavod Lepoglava).

He stayed there until 27 September 1995 when he was transferred to the Pula Prison (Zatvor u Puli), staying there until 30 June 1997 when he was transferred to the Glina Penitentiary (Kaznionica u Glini).

The applicant was imprisoned there until 30 December 1998 when for the second time he was transferred to the LSP.

On 4 October 1999 the applicant was transferred again to the Glina Penitentiary where he stayed until 5 April 2000, before being transferred to the Požega Penitentiary (Kaznionica u Požegi). During his stay there the applicant was granted various privileges, including the right to short periods of leave. After committing a criminal offence (burglary and theft) while on leave, the applicant was again transferred on 21 September 2000 to the LSP. He was placed in B wing.

On 22 August 2003 the applicant was discharged as he had served his time in prison.

The LSP is a building comprising five wings; A, B, C, D and E. All wings, with the exception of B, have been renovated.

According to the applicant’s submissions, the cell where he was placed in the LSP was small and he had neither sanitary facilities nor running water. There was no heating and the cell walls were damp and moist. There were general problems with water supply in the prison.

Toiletries and other personal hygiene products were provided every four to five months.

The food served to the inmates was insufficient and of low quality.

In general, the prison was overcrowded. The prison buildings, built about two hundred years ago, were in a very poor state of repair.

As the prison guards did not wear badges with their number or name, the inmates could not know their identities.

The prisoners were made to line up as many as ten times a day, even when it rained. They also had to go on outdoor walks daily in slippers, even when it rained or snowed.

Cases of ill-treatment by the guards were allegedly not uncommon.

On 12 January 2001 the applicant swallowed a metal spoon measuring 15 cm. The applicant alleged that the physician working in the LSP refused to send him to the surgery although the spoon was endangering his health.

According to the Government, B wing was due to undergo renovation in the course of 2003. The applicant’s cell was a double-occupancy cell. Most of the time the applicant shared it with another inmate, and only for a short period of about two months was he alone in the cell. The cell was 3.50 m long, 1.60 m wide and 3.05 m high. It had natural light (window) and one artificial lighting unit. It did not have sanitary facilities, but the applicant had permanent access to sanitary facilities, and he could use a shower in accordance with his needs and the Penitentiary’s house rules.

Inmates were provided with toothpaste, soap, shaving cream, disposable razors, shampoo and toilet paper on a monthly basis. Other toiletries, such as tooth brush, shoe polish, nail clippers, hand and face cream and a comb were provided for the inmates depending on the lifetime of the particular items, ranging from two months to one year.

The food served to the inmates was of the prescribed caloric value and in general the inmates had no complaints in this respect.

The inmates were lined up several times a day before having meals. The inmates who worked were also lined up when going to and coming from work and before and after the break. Inmates were lined up outdoors when the weather so permitted and they were dressed appropriately. In bad weather inmates were lined up inside the prison building.

Medical assistance was available to all inmates as necessary and no cases had been reported where medical help had been refused. In respect of the situation described in the Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 20 to 30 September 1998 (hereinafter “the CPT report”), the medical assistance had been improved. There were two doctors employed full time; a general practitioner and a dentist; a dental technician, five health technicians and a pharmacist were employed full time as well. The general practitioner worked either in the morning or in the afternoon shift while in his absence there were medical technicians. Certain specialists (internalist, surgeon, psychiatrist, pulmonologist, otorhinolaryngologist, ophthalmologist) were available for consultation once a week. If there was a need, special treatment was available in the Hospital for Persons Deprived of Liberty (Bolnica za osobe lišene slobode) or in any other regular hospital. Besides the psychiatrist who came once a week, the LSP had a contract with another psychiatrist who came to the LSP when necessary.

The Government submitted that during the applicant’s second stay in the LSP he had swallowed small items or made false allegations that he had swallowed them on several occasions. On all these occasions the applicant had been examined by a doctor, and on three occasions, when the examinations established that he had indeed swallowed an item, he had been hospitalised. Besides the examinations mentioned and the hospital treatment, in the last two years the applicant had been medically examined on more than sixty occasions, including various specialist examinations.

2.  The ill-treatment to which the applicant alleges that he was subjected in the Zagreb Hospital for Persons Deprived of Liberty

2.1.  The impugned treatment

On 7 August 1999 at 2.55 a.m. the applicant was transferred from the LSP to the Psychiatric Department of the Zagreb Hospital for Persons Deprived of Liberty allegedly for having attempted to commit suicide by hanging and by swallowing pills.

The applicant alleged that, upon his arrival at the hospital, two police officers stripped him naked and kicked him several times on his head, lifted him in the air, dropped him on the floor and then punched him in the forehead and genitals. During this treatment he had lost consciousness and the policemen had splashed him with cold water and continued to hit him all over his body. After that they had handcuffed him and tied his hands to the bed corners, while his legs were tightly tied with a belt. He had been left in that position for twenty-four hours.

Contrary to the applicant’s allegations, the Government alleged that the applicant had been admitted to the hospital in a state of prostration and that he had been examined by the duty doctor upon his arrival at the Hospital for Persons Deprived of Liberty.

According to the report submitted by a policeman who was on duty in the hospital in the night from 6 to 7 August 1999, the applicant had been taken to the hospital at 2:55 in the morning. He had been in a state of prostration and carried to the reception area where he had been examined by the duty doctor. After examination the applicant had been carried to a room by the policemen and nurses where he had been dressed in pyjamas. Since the doctor had suspected that the applicant might again attempt suicide the applicant was restrained in bed. No other measures had been taken against the applicant.

According to the doctor’s report, the applicant had been conscious, with no visible injuries on the neck and without any signs of intoxication. The applicant had refused to communicate. After examination the applicant had been dressed in pyjamas and taken to a room where he had been restrained in bed until the next morning for safety reasons. In the morning he had woken up normally.

The applicant stayed in the hospital until 4 October 1999. During his stay there it had been established that his suicide attempt had been false and that he had done it in order to be transferred to another penal institution.

During his stay in the hospital the applicant underwent numerous medical examinations and dental interventions, and none of the examinations was carried out in respect of any physical injury that might have occurred as a result of ill-treatment. According to the discharge note of 4 October 1999, the applicant was discharged from the hospital in a satisfactory physical and mental state. The discharge note also stated that although there were no indications that the applicant suffered from psychosis he was a psychopatological person with tendencies to pathological interpretations and hidden conflicts and aggression.

The applicant was then transferred to another prison, the Glina Penitentiary.

2.2.  The nature of the investigation carried out

On 21 April 2000 the applicant lodged a criminal complaint with the Public Prosecutor, Zagreb Office (Županijsko državno odvjetništvo u Zagrebu), against unknown perpetrators in respect of the above mentioned ill-treatment.

The Government alleged that the Public Prosecutor’s Office had carried out a thorough and effective investigation; inter alia, medical documentation was examined and the hospital staff who had taken care of the applicant were requested to submit observations.

On 5 December 2000 the Public Prosecutor, Zagreb Office, rejected the criminal report on the ground that the facts established did not disclose any appearance of the offence of ill-treatment in the performance of official duties or the exercise of public authority. It also stated that the person who had allegedly ill-treated the applicant was not employed at the hospital and that medical documentation did not indicate that the applicant had been injured either upon his arrival at the hospital or during his stay there. The applicant was advised about his right to continue prosecution by lodging a motion to indict with the Zagreb Municipal Court (Općinski sud u Zagrebu) within eight days following receipt of the notice.

The applicant alleges that he lodged another criminal complaint in connection with the same matter, asking to identify the perpetrators, and that his request was denied.

B.  Relevant domestic law

The relevant provisions of the Croatian Constitution (Ustav Republike Hrvatske) provide as follows:

“Section 23

No one shall be subjected to any form of ill-treatment...”

Section 59 (1) of the 1999 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske):

“Every person or legal entity may file a constitutional complaint with the Constitutional Court if they consider that a judicial or administrative decision or a decision issued by a body invested with public authority has violated their constitutionally guaranteed freedoms or human or civic rights (hereinafter (the constitutional rights)).”

Section 17 of the amended Act on Enforcement of Prison Terms (Zakon o izvršavanju kazne zatvora - amendments as of 1 July 2001) provides as follows:

Judicial protection against acts and decisions of the prison administration

Section 17

(1) An inmate may file a request seeking judicial protection against acts or decisions unlawfully restricting or depriving him of any right guaranteed in this Act.

(2) The request shall be dealt with by a judge responsible for supervising the execution of sentences.

Section 200 (1) of the Civil Obligations Act provides as follows:

Courts may award compensation for non-pecuniary damage on account of:

-physical or mental pain suffered;

–reduced vital activities;

-disfigurement;

-violation of honour, freedom or a personal right;

-the death of a close relative;

-and/or fear,

where they find it justified under the circumstances of the case, especially in terms of the intensity and duration of pain or fear suffered, irrespective of any sum awarded for pecuniary damage and even if there is no award.”

C. 1.  The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

The CPT visited Croatia from 20 until 30 September 1998. Its findings with regard to the LSP were as follows (extract from the report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 20 to 30 September 1998, CPT/Inf. (2001) 4):

“a. material conditions

“58.  ... the two unrenovated wings, B and E, accommodating mainly unemployed prisoners, offered very poor conditions of detention. Prisoners in these wings were being held under cramped conditions, typically two to three persons in cells measuring between 5,5 to some 6,5 m². The CPT must emphasise that cells of such size are only suitable for individual occupancy. Further, the cells were dirty and in a poor state of repair, and a number of them had poor access to natural light and/or dim or artificial lighting. In addition, they were not equipped with integral sanitation; as a result, at night inmates had to comply with the needs of nature using a bucket in their cell. As for the communal sanitary facilities, they were in a generally woeful state of repair (some of them with hazardous flooded floors.) It is also noteworthy that several prisoners in these two wings complained that they were not able to obtain necessary toiletries. The director informed the delegation that the renovation of the whole establishment was planned, but that difficulties were being encountered in obtaining the necessary resources. The CPT must stress that the prevailing material conditions in B and E wings are quite unacceptable.

Consequently, the Committee recommends that the renovation of these wings, including installation of in-cell sanitation following the model of D wing, be treated as a matter of high priority.

Moreover, the CPT recommends that steps be taken immediately to ensure that all prisoners at Lepoglava State Prison are able to obtain personal hygiene products (toilet paper, soap, toothpaste, etc.) as well as the necessary means to maintain their cells and communal sanitary facilities in a clean and hygienic state.

59.  Further, as already indicated in paragraphs 56 and 58, the closed unit was overcrowded at the time of the visit. This was particularly the case in the unrenovated wings...

The CPT recommends that serious efforts be made to reduce cell occupancy levels in the closed unit at Lepoglava State Prison ...

b. regime

(...)

63.  ... The situation of the non-workers was rendered all the more unsatisfactory by the scarcity of other regime activities at the prison. Although the establishment was equipped with good educational facilities, only about 50 prisoners - including some who already worked - were attending classes. Further, there was little evidence of therapeutic (i.e. offence-focused) programmes and no organised sport activities. To sum up, almost two thirds of the prisoners accommodated in the closed unit were subject to an impoverished regime; the typical daily programme for a non-working prisoner was found to consist of little else besides watching television in an association area and outdoor exercise.

64.  ... For the majority of prisoners in the establishment’s closed unit, there was no positive regime in place which might encourage them to address their offending behaviour.

The CPT recommends that the Croatian authorities take the necessary steps to ensure that all prisoners at Lepoglava State Prison have access to an appropriate range of work, educational, sports and recreational activities.

(...)

d. medical care

69.  Health care staff resources at Lepoglava State Prison were manifestly insufficient at the time of the visit.

According to regulations issued on 27 June 1994, the prison’s full-time health care staff should consist of a head doctor, a psychiatrist, a general practitioner, a dentist, four nurses, a pharmacist, and three assistants (dental, laboratory and radiology). Such a team could be considered as adequate for an establishment accommodating some 650 prisoners. However, the actual staffing levels fell far short of those specified in the regulations. The post of head doctor, psychiatrist, general practitioner and dentist were all vacant and the full-time health care team numbered a mere six persons: a health technician, a pharmacist, a dental assistant and three nurses. To make up for the absence of a full-time doctor, the ad hoc solution adopted was to employ an outside doctor (cardiologist) for one or two hours each morning on weekdays. The only other doctors to visit the prison were certain specialists (a psychiatrist, a pulmonologist, a surgeon, and specialists in gastroenterology and internal medicine) who were available for consultations for a few hours every two weeks.

Such a state of affairs is inadmissible in an establishment as large as Lepoglava. It is totally unrealistic to expect one doctor to be able to respond adequately to even the basic demands of a prison population of such a size in the space of a daily session of two hours or less or to expect one psychiatrist to provide adequate services during a comparably short session every two weeks. It is therefore scarcely surprising that the standard of health care provided to prisoners was found to display serious shortcomings.

70.  It should be noted, however, that the material facilities for health care were quite satisfactory. In particular, the prison’s infirmary was found to be clean, spacious, well-ventilated and properly equipped, and the dental care facilities were also of a high standard. Further, the prison’s pharmacy was well-equipped, and there were apparently no problems in obtaining all medicines required. In other words, the basic infrastructure for a fully satisfactory health care service exists. In addition, the confidentiality of medical data was guaranteed.

71.  In the light of the above remarks, the CPT recommends that the Croatian authorities take immediate steps to provide the equivalent of at least one full-time doctor at Lepoglava State Prison, as well as to reinforce the provision of psychiatric and dental care at the establishment. Further, it recommends that, at the earliest opportunity, the health care staffing levels be brought fully into conformity with those foreseen by the prison’s regulations on staffing issued on 27 June 1994.

72.  The CPT was also concerned to learn that no member of the health care team was present on the prison’s premises from 10 p.m. to 7 a.m. A 24-hour presence of a member of the health care team would be most desirable, bearing in mind the number of prisoners held in the establishment and that a number of sick inmates are regularly held in the prison’s infirmary (ten at the time of the visit). In case of emergency, a prisoner could be taken at night to a health care service situated some ten kilometres from the prison; however, as things stand at the moment, there might be no one present with the necessary knowledge to give immediate care.

The CPT recommends that immediate steps be taken to ensure that someone qualified to provide first aid (preferably with a nursing qualification) is always present at Lepoglava State Prison, including at night.  Further, it recommends that the possibility be explored of providing a 24-hour presence of a nurse or doctor from the establishment’s health care team.

(...)

74.  The delegation found evidence of grossly overloaded sick parades. Health care staff stated that the doctor would see some 30 to 40 prisoners during his daily two-hour visit to the establishment. With such a workload, it is highly questionable whether there will be sufficient time for an adequate diagnosis and treatment of each prisoner’s health problems. Further, the delegation met several inmates, in particular in the unit for increased supervision, who were in need of psychiatric/psychological care, but who were not receiving it. Following remarks made by the delegation, one of those inmates was taken to a doctor outside the hospital for examination, who ordered that he be transferred immediately to the Prison Hospital in Zagreb on the grounds of his suicidal state of mind.

More generally, the inadequate staff resources inevitably meant that the health care service was overwhelmed by day-to-day requests for medical attention; it had no time to develop and pursue a health policy of a preventive nature. Further, the lack of a full-time doctor meant that other health care staff was not receiving the guidance they required. It is noteworthy in this regard that the consultation of the medical files of several patients in the prison’s infirmary revealed inadequacies in the recording of medical data and in the carrying out of standard medical procedures (monitoring of temperature, pulse, blood pressure; blood/urine analyses, etc.).

The aforementioned shortcomings can only be resolved via the implementation of the recommendations concerning staff resources set out in paragraph 71 above.”

D. Report of the Fact-Finding Mission to the Lepoglava State Prison

On 1 July 2002, a delegation of the Court visited the Lepoglava State Prison for purposes of the Benzan case (see Benzan v. Croatia, no. 62912/00, 8 November 2002). Its findings in respect of the general conditions in the LSP are as follows:

Meeting with the LSP Governor

The Prison Governor informed the delegation that the only unrenovated wing is B wing. He further informed the delegation that the prison held 683 inmates. He admitted that the prison was overcrowded, especially B wing.

Tour of the LSP

B wing

We found cell 17 situated next to the communal bathroom. It measured 3,50 metres by 1,60 metres. There were no in-cell sanitary facilities. There were two non-working electrical sockets. There was a dim light on the ceiling. The window on the wall opposite the door measured 80 cm². There was one wooden chair and a metal locker. There was one set of bunk beds. The mattresses were dirty and bloodstained. The cell smelled strongly of moisture. The cement walls were damp to the touch.

Shower, toilet and laundry area

There were three toilets and two showers for 60 inmates. There was no heating in the toilet. In the shower there was one radiator. There was no toilet paper. Next to the showers there was a laundry area equipped with long basins for inmates to wash their clothes. The laundry area was accessible for one hour per day.

The indoor entertainment and recreation area

Next we visited a TV-room where we found one television, about 20 chairs and 7 tables. It served 60 inmates.

There was also a social room with 6 tables, each with 4 chairs, serving 44 inmates. We saw chess-boxes on the tables. Inside, there was one stove with two electric hotplates and one sink.

On each floor we saw table-tennis equipment, each serving 44 inmates.

Renovated wing

Here we visited a cell which measured 11 m². There were two sets of bunk beds. There was a separate bathroom with toilet and sink, but with no shower or bathtub. However, there were communal showers on the same floor. There was one electric socket, three lights on the ceiling, two metal lockers, two wooden chairs, one table and one shelf on the wall. There were two windows (80x80 centimetres). The room was freshly painted and had parquet floor. It was very clean.

Outdoor recreation area

We saw a large walking area, with benches and trees and an asphalt playground of large proportions.

The Canteen

The canteen where the inmates eat is a huge room, separated from the other prison areas. It can accommodate 200 persons at a time. The inmates eat in shifts. Food is cooked on the premises and there is also a bakery.

Working area

The working area comprises several large workshops for wood-processing, production of chess-boards, picture-framing, a bookbinding shop and book-press and an art studio including a visual arts section.

The bookbinding shop where the applicant works has large windows, a desk and a chair.”

COMPLAINTS

1.  The applicant alleged that the general conditions in the LSP where he was serving his prison term amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.

2.  The applicant complained under Article 3 of the Convention claiming that he had been ill-treated by the policemen in the Hospital for Persons Deprived of Liberty in Zagreb.

THE LAW

1.  The applicant alleged that general conditions in the Lepoglava State Prison (hereinafter “the LSP”), where he was serving his prison term, amounted to inhuman and degrading treatment contrary to Article 3 of the Convention which reads as follows:

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

(a) The Government firstly contended that the applicant had failed to exhaust domestic remedies. They submitted that before 1 July 2001 he should have filed a complaint with the Ministry of Justice or the prison administration. Had he filed such a complaint, the Ministry of Justice would have been able to assess the relevant facts and undertake necessary measures to remedy the violation of the applicant’s rights or to institute relevant disciplinary proceedings.

After 1 July 2001 the applicant had been able to file a request with a judge responsible for the execution of sentences pursuant to Section 17 of the Act on Enforcement of Prison Terms.

Furthermore, the applicant could have instituted criminal proceedings if the violations complained of constituted criminal offences. He could also file a civil action for damages.

Finally, even if the applicant had failed to obtain redress in the ways mentioned above, he could have filed a constitutional complaint for protection of his constitutional rights pursuant to Section 59 (1) of the Constitutional Court Act.

The applicant submitted that there were no effective remedies available within the domestic legal system and that the state administration did not treat prisoners as human beings, but only as figures. He alleged that he had lodged many criminal complaints concerning violations of his rights in detention, but that he had received no reply from the Public Prosecutor’s Office.

The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that 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, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid.).

It recalls that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., p. 1211, § 68).

In addition, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up (ibid., § 69). Accordingly, the Court has recognised that Article 35 § 1 (formerly Article 26) must be applied with some degree of flexibility and without excessive formalism (see, for example, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see, for example, Van Oosterwijk v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar judgment cited above, p. 1211, § 69).

Although recourse to the administrative bodies could be considered an effective remedy in respect of complaints concerning the application or implementation of prison regulations (see, among other authorities, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 26, § 65), the Court considers that in the present case it has not been demonstrated that an appeal to the administrative bodies or to a judge responsible for supervising the execution of sentences offered the applicant the possibility of securing redress for his complaints. In particular, the Court notes that section 15 § 1 of the amended Act on Enforcement of Prison Terms refers to a complaint concerning the “acts or decisions of a prison employee” and accordingly does not provide a remedy in respect of complaints relating to the general conditions in prison. Furthermore, the Government did not produce before the Court any case-law to support their argument concerning the sufficiency and effectiveness of the remedies relied on. The Court therefore concludes that these remedies were not capable of providing redress in respect of the applicant’s complaint.

As regards the institution of criminal proceedings in respect of the prison conditions, the Court notes that these proceedings would have to be instituted not against any particular person, but against the State, which is not possible under Croatian legislation. In conclusion, this is not a remedy which has to be exhausted.

In the Court’s view, the institution of civil proceedings could not remedy the applicant’s situation. Even assuming that there exists a legal basis for seeking damages in respect of prison conditions, the outcome of such proceedings would be compensation awarded to the applicant, but it could not have any impact on the general prison conditions because the proceedings would have an effect upon the consequence, but not upon the cause. It follows that this was not a remedy which had to be exhausted.

Finally, as regards the lodging of a constitutional complaint, the Court notes that, according to the wording of section 59 (1) of the 1999 Constitutional Act on the Constitutional Court, it is impossible to complain about the conditions of detention because a constitutional complaint may be filed only against “a judicial or administrative decision or a decision issued by a body invested with public authority”. As there did not exist any kind of decision to be challenged, a constitutional complaint was not a remedy to be exhausted.

In conclusion, the Court finds that the applicant did not have at his disposal adequate remedies to deal effectively with his complaint. Accordingly, the applicant’s complaints cannot be rejected for failure to exhaust domestic remedies.

(b) As regards the merits of this part of the application, the Government asked the Court to conclude that the application did not disclose any appearance of a violation of Article 3 of the Convention.

The Government contended that the applicant’s complaints in respect of medical care were unfounded because in the last two years alone the applicant had been medically examined on more than sixty occasions, including various specialist examinations. The complaint concerning alleged refusal of medical assistance on 12 January 2001, when the applicant had swallowed a metal spoon, was equally ill-founded because the applicant had been treated in hospital in regard to that event.

The quality of the food served was under constant inspection and no insufficiency had been noted. In addition, inmates were regularly provided with toiletries.

The applicant’s allegations concerning lining up were also untrue. Inmates were required to line up before meals. In bad weather, inmates were lined up inside the prison building. In addition, when being lined up outdoors inmates were always appropriately dressed.

Concerning the applicant’s allegations that cases of ill-treatment by the guards were not uncommon, the Government pointed out that these allegations were not substantiated and that they did not disclose any conduct contrary to Article 3.

As to the applicant’s accommodation, the Government submitted that he had been held in an unrenovated wing. The cell that he shared with another inmate was 6 m² in area. Although there were no in-cell sanitary facilities, the applicant might use common sanitary facilities, a bathroom, showers with hot and cold water and central heating. Moreover, by September 2003 at the latest the conditions in B wing would be significantly improved.

The Government admitted that the conditions of detention in B wing were relatively unfavourable, but not to an extent that would have amounted to inhuman or degrading treatment within the meaning of Article 3 of the Convention.

The Government argued that, in assessing the conditions of the applicant’s detention, all circumstances of the case should be taken into consideration. In this connection they submitted that the applicant had been convicted of murder which was a serious crime. He had started serving his prison sentence in 1995 in the LSP, but on several occasions he had been transferred to other penal institutions. In 2000 the applicant had been serving his prison sentence in a semi-open institution in Požega and, while on leave, had committed another offence. Thus, he had forced the Croatian authorities to place him at the LPS. When the applicant had arrived there again, he had expressed a wish not to work. Since the inmates who did not work were placed in B wing, the applicant had been placed there.

The Government contended that the complaints raised by the applicant did not disclose any appearance of treatment contrary to Article 3 of the Convention. They requested that the Court reject that part of the application as manifestly ill-founded.

The applicant contended that, contrary to the Government’s submissions, the conditions in the part of the LSP where he was placed were so poor that they amounted to a violation of Article 3 of the Convention.

The Court considers, in the light of the parties’ submissions, that the substance of this part of the application also raises complex issues of law and of fact under the Convention. It concludes, therefore that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

2.  The applicant complained that on 7 August 1999 he had been subjected to ill-treatment by police officers in the Hospital for Persons Deprived of Liberty in Zagreb, which amounted to a violation of Article 3 of the Convention.

The Government firstly contended that the applicant had failed to exhaust domestic remedies although he had had several at his disposal.

They submitted that before 1 July 2001 the applicant had at his disposal the possibility of filing a complaint with the Ministry of Justice or the prison administration. After 1 July 2001 the applicant had been able to file a request with a judge responsible for supervising execution of sentences pursuant to section 17 of the Act on Enforcement of Prison Terms.

They further submitted that the applicant had had the possibility of lodging a criminal complaint against the persons responsible, if the violations of his rights amounted to a criminal offence.

Furthermore, the applicant could have instituted civil proceedings seeking compensation for pecuniary and non-pecuniary damage, if he had sustained any.

Finally, in the event of failure to obtain redress through the above-mentioned remedies, he could always have filed a constitutional complaint seeking protection from unlawful acts in so far as he had been unjustifiably unable to receive that protection in ordinary proceedings.

Nevertheless, the only proceedings instituted by the applicant were those originating in the criminal complaint against unknown perpetrators. Following the Public Prosecutor’s rejection of the complaint, the applicant had had the opportunity to continue prosecution, but he had failed to do so.

The applicant submitted that following the rejection of his criminal complaint he had lodged another one with the Public Prosecutor’s Office requesting to be granted leave to identify perpetrators, but he had not received any reply. Had he received a reply, he would certainly have continued prosecution. He alleged that he had lodged many criminal complaints against prison warders with the Public Prosecutor’s Office, but that he had not received any answer.

In the alternative, the Government invited the Court to conclude that the application did not disclose any appearance of a violation of Article 3 of the Convention and that that complaint was manifestly ill-founded. In this connection they submitted that the applicant had not proved that he had been subjected to ill-treatment. Furthermore, all the facts established showed that the applicant’s allegations were entirely false. The statements of the duty doctor and of the security officer on duty, who had been there at the time of the applicant’s admission to the hospital, corresponded exactly with each other. If the applicant had been ill-treated, the consequences of such treatment would have been visible on his body for some days, and the injuries which he had sustained would have required medical intervention. However, there was no indication in the medical records that the applicant had been treated for physical injury during his stay in the hospital.

Concerning the investigation in the present case, the Government alleged that the domestic authorities, and particularly the Public Prosecutor’s Office, had taken appropriate measures to ascertain whether the criminal complaint was well-founded: they had examined the applicant’s medical records and they had obtained the statements both from the persons who were in contact with the applicant upon his arrival at the hospital and from their supervisors. As nothing had suggested that the applicant’s allegations were accurate, the criminal complaint had been rejected. In the Government’s view that complaint was manifestly ill-founded as well.

The applicant alleged that he had submitted all the evidence which proved that he had been ill-treated. He had subsequently learnt that the warder who had beaten him the most was called I.J. He could also have identified all the perpetrators, especially I.J.

The Court does not have to address the issues concerning the exhaustion of domestic remedies because this part of the application is in any event inadmissible for the following reasons.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, Labita v. Italy, judgment of 6 April 2000, Reports 2000-IV, pp. 131, 132, § 121 and, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30).

In the present case, the ill-treatment complained of by the applicant allegedly consisted of being stripped naked by policemen and kicked several times on his head, lifted in the air, dropped on the floor, then punched in the forehead and genital and being restrained in bed.

The Court notes that, as the Government said, the applicant has not produced any conclusive evidence in support of his allegations of ill-treatment. Indeed, the only concrete evidence furnished on this issue, namely a medical report submitted by the doctor on duty at the material time at the Zagreb Hospital for Persons Deprived of Liberty and a discharge note, do not suffice to fill that gap. Thus, there is nothing in the medical documentation to show that the applicant had suffered physical ill-treatment, in particular on the night he was brought to the hospital after attempted suicide.

Furthermore, the discharge note of 4 October 1999 stated that, although there were no indications that the applicant suffered from psychosis, he was a psychopatological person with tendencies to pathological interpretations and hidden conflicts and aggression.

The Court recognises that it may prove difficult for prisoners to obtain evidence of ill-treatment by their prison warders. In that connection, it observes that the applicant has not suggested, for example, that he was ever refused permission to see a doctor. To the contrary he had seen a doctor on more than sixty occasions in a period of two years.

In these circumstances, the Court considers that the material it has before it regarding the applicant’s assertion that he was subjected to physical ill-treatment at the Zagreb Hospital for Persons Deprived of Liberty does not constitute sufficient evidence to support that conclusion.

It follows that this complaint is 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 admissible, without prejudging the merits, the applicant’s complaint concerning the conditions in the Lepoglava State Prison;

by a majority

Declares the remainder of the application inadmissible.

Søren NIELSENChristos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy