FOURTH SECTION
FINAL DECISION
Application no. 11123/04
by Fikret HADŽIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MrJ. Borrego Borrego,
MsL. Mijović, judges,,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 17 March 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Fikret Hadžić, is a national of Bosnia and Herzegovina, who was born in 1959. He is currently detained in the Zenica Prison Forensic Psychiatric Annexe, in Bosnia and Herzegovina.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 May 2002 the applicant killed three persons.
On 23 September 2002 the Tuzla Cantonal Court found the applicant guilty of manslaughter (due to his significantly diminished responsibility) and of possessing a firearm without a licence. The court imposed an aggregate sentence of 21 years in prison and a concurrent measure of compulsory placement and psychiatric treatment in a health-service institution (a hospital order) pursuant to section 63 of the Criminal Code 1998 of the Federation of Bosnia and Herzegovina.
On 30 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina increased the prison sentence from 21 to 24 years and upheld the remainder of the first instance judgment of 23 September 2002.
On 6 June 2003, on 19 November 2003 and on 4 June 2004 the Tuzla Cantonal Court dismissed the applicant’s applications for pardon.
On 26 March 2004 the Tuzla Cantonal Court rejected his application to end his compulsory placement and treatment. The court relied on an expert’s report of 15 March 2003 which indicated that the applicant suffered from paranoia and was therefore dangerous.
On 18 May 2004 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the first instance decision of 26 March 2004.
On an uncertain date the applicant complained to the Ministry of Justice of the Federation of Bosnia and Herzegovina that he was not receiving appropriate health care. On 3 August 2004 that Ministry informed the applicant that it was not competent to deal with such complaints and forwarded his complaint to the prison manager.
On 2 September 2004 another prisoner, N.R., hit the applicant and broke his cheekbone. Between 3 September and 7 September 2004 the fracture was treated at a hospital in Zenica.
On 6 September 2004 the applicant filed a complaint with the prison manager. He maintained that he was not the first one to be beaten by N.R. and that he had asked on several occasions before 2 September 2004 to be separated from N.R. but that the prison authorities had not taken any steps.
On an unknown date the applicant complained about the conditions of his detention to the Human Rights Ombudsman of Bosnia and Herzegovina and to the Ombudsman Institution of the Federation of Bosnia and Herzegovina.
B. Relevant international and domestic law and practice
1. Criminal Code 1998 of the Federation of Bosnia and Herzegovina (Krivični zakon Federacije Bosne i Hercegovine; published in the Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH” – no. 43/98 of 20 November 1998; amendments published in OG FBH nos. 2/99 of 18 January 1999, 15/99 of 30 April 1999, 29/00 of 4 August 2000, 59/02 of 28 November 2002 and 19/03 of 13 May 2003)
This Code was in force from 28 November 1998 until 1 August 2003. The following were the relevant provisions:
Section 63
“1. The court shall order compulsory placement and psychiatric treatment in a health-service institution as regards a perpetrator who at the time of committing a criminal offence was insane or had significantly diminished responsibility, when it determines that, if set free, the perpetrator might commit serious offences against the person or against property and that his or her placement and treatment in such an institution are necessary to avert such danger.
2. The court shall discontinue application of the measure referred to in the first paragraph of this section when it determines that further placement and treatment in a health-service institution is not necessary.
3. The time a perpetrator, who has committed a criminal offence in a state of significantly diminished responsibility and who has been sentenced to imprisonment, has spent in a health-service institution shall be counted as service of the prison sentence. If this time is shorter than the prison sentence, the court may decide that the perpetrator serve the remaining time in prison, or be released on parole. In deciding whether to grant parole, the court shall take into special consideration the convicted person’s response to the treatment, his or her health, the time he or she has spent in the health-service institution and the remainder of the prison sentence he or she still has to serve.”
2. Execution of Criminal Sanctions Act 1998 of the Federation of Bosnia and Herzegovina (Zakon o izvršenju krivičnih sankcija u Federaciji Bosne i Herzegovine; published in OG FBH no. 44/98 of 23 November 1998; amendments published in OG FBH no. 42/99 of 19 October 1999)
This Act has been in force since 1 December 1998. The relevant part reads as follows:
Section 2
“The rights and freedoms of the persons to whom sanctions are applied may be restricted only insofar as it is necessary to achieve the purpose for which sanctions have been imposed, in pursuance of law.”
Section 167
“The measure of compulsory placement and psychiatric treatment in a health-service institution shall be implemented in a special health-service institution established exclusively for that purpose or in a separate ward of a health-service institution (hereinafter “separate ward”).”
Section 169
“As an exception to section 167 of this Act, the measure of compulsory placement and psychiatric treatment in a health-service institution may be implemented in a special ward of a prison (hereinafter “separate prison ward”).”
Section 171
“Only such restraints on movement and contact with other persons as are necessary for detaining and medically treating them or as are necessary for compliance with the Rules and with discipline in a health-service institution or in a separate ward shall be applied to persons sent to a health-service institution for compulsory placement and psychiatric treatment.
The Rules referred to in the first paragraph of this section shall be enacted by the manager of the health-service institution with the approval of [the Ministries of Justice and Health of the Federation of Bosnia and Herzegovina].”
Section 172
“The health-service institution to which a person has been sent for compulsory placement and psychiatric treatment shall inform the court which ordered the measure of the state of health of the person at least once a year.
When the psychiatric treatment ... has been completed, the health-service institution shall inform the court which ordered the measure and it may propose release on parole, if the prison term has not yet expired, pursuant to the Criminal Code of the Federation of Bosnia and Herzegovina.
If the court finds that further detention ... is unnecessary, it shall discontinue the application of the measure...”
Section 176
“Supervision of the execution of the measure of compulsory placement and psychiatric treatment in a health-service institution or in a separate prison ward shall be carried out by the Ministries of Justice and Health of the Federation of Bosnia and Herzegovina.
Supervision of the lawful and due treatment of persons referred to in the first paragraph of this section shall be carried out by the court which ordered the measure and the court in whose jurisdiction the health-service institution or the separate prison ward ... is located.”
Section 232 §§ 2 and 3
“All measures of compulsory placement and psychiatric treatment in a health-service institution passed in the territory of the Federation of Bosnia and Herzegovina shall be implemented in a separate ward of Zenica Prison until the Ministries of Justice and Health of the Federation of Bosnia and Herzegovina designate a health-service institution where this measure will be implemented.
The measure of compulsory placement and psychiatric treatment in a health-service institution shall be implemented in a separate ward [of Zenica Prison] until [1 December 2001] at the latest when the implementation shall have been organised in an institution referred to in section 167 of this Act.”
3. Protection of Mentally Ill Persons Act 2001 (Zakon o zaštiti osoba sa duševnim smetnjama; published in OG FBH no. 37/01 of 15 August 2001; amendments published in OG FBH no. 40/02 of 21 August 2002)
This Act has been in force since 16 August 2001. Pursuant to section 4, the rights and freedoms of mentally ill persons may be restricted only by law and insofar as it is necessary to protect their health or security or the security of others. Pursuant to section 11, mentally ill persons placed, with or without their consent, in a health-service institution have the right to send and receive mail at their own expense and without control and restrictions. Restrictions may be imposed only when there is a reason to suspect that a mentally ill person is endeavouring to obtain weapons or drugs or is arranging his or her escape or the commission of a criminal offence or when it is necessary to protect his or her health. The fact that restrictions have been imposed, together with the reasons for such restrictions, must be recorded in the medical records.
4. Criminal Code 2003 of the Federation of Bosnia and Herzegovina (Krivični zakon Federacije Bosne i Hercegovine; published in OG FBH no. 36/03 of 29 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 21/04 of 17 April 2004, 69/04 of 7 December 2004, and 18/05 of 23 March 2005)
This Act has been in force since 1 August 2003. The following are the relevant provisions:
Section 8
“In the application of a criminal sanction, certain rights of the perpetrator of a criminal offence may be denied or restricted but only to an extent commensurate with the nature and the content of the sanction, and only in a manner which provides for the respect of the perpetrator’s integrity and his or her human dignity in compliance with international law.”
Section 74
“1. The measure of compulsory psychiatric treatment shall be imposed on a perpetrator who has committed a criminal offence in a state of significantly diminished responsibility or diminished responsibility, if there is a danger that the causes of such a state may in the future induce the perpetrator to perpetrate another criminal offence.
2. The measure of compulsory psychiatric treatment may, under the conditions provided for in the first paragraph of this section, be applied along with a prison sentence...
3. The application of the measure of compulsory psychiatric treatment shall last until the termination of the reasons for which it has been imposed, but in any event no longer than service of the prison sentence...
...
5. Under the conditions provided for in the second paragraph of this section, after a convicted person has been released on parole, his compulsory psychiatric treatment may be continued outside the health-service institution...
...”
5. Criminal Procedure Code 2003 of the Federation of Bosnia and Herzegovina (Zakon o krivičnom postupku Federacije Bosne i Hercegovine; published in OG FBH no. 35/03 of 28 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004 and 28/05 of 11 May 2005)
This Act has been in force since 1 August 2003. The following are the relevant provisions:
Section 410
“1. If the suspected person has committed a criminal offence while insane, the prosecutor shall propose in the indictment that this be established by the court and that the court refers the case to the social welfare agency for the purpose of commencing the appropriate procedure.
2. If the evidence presented during the main trial indicates that the indicted person has committed a criminal offence with criminal responsibility, diminished responsibility or significantly diminished responsibility, the prosecutor shall abandon the proposal [referred to in the first paragraph of this section]. In case of diminished responsibility or significantly diminished responsibility, the prosecutor shall propose that the court order compulsory psychiatric treatment along with another criminal sanction.
3. In a case referred to in the first paragraph of this section, the suspected or indicted person who is detained in a detention centre or in a psychiatric institution, shall not be released. Instead, the court shall, on the proposal of the prosecutor, issue a decision of temporary detention of up to 30 days from the issuance of the decision. This decision may not be appealed.
4. After the proposal referred to in the first paragraph of this section has been filed, the suspected or indicted person shall have a defence attorney.”
Section 427
“1. An application to end security measures prescribed by the Criminal Code of the Federation of Bosnia and Herzegovina and other measures prescribed by law shall be submitted to the court.
2. A judge ... shall first establish whether the required period of time provided for by law has expired. The judge shall then schedule and conduct examinations in order to establish the facts on which the applicant has relied. The judge shall summon the prosecutor and the applicant.
...
4. If the application has been rejected, a new application may not be submitted before the expiry of one year from the day on which a decision rejecting the previous application became legally binding.”
6. Special report of the Ombudsman Institution of the Federation of Bosnia and Herzegovina of 28 January 2004
This report indicated that the prevailing conditions in the Zenica Prison Forensic Psychiatric Annexe were inhuman and that the implementation of the measure of compulsory psychiatric treatment in that Annexe was not in accordance with the nature of that measure and with the law.
7. Report on the visit to Bosnia and Herzegovina carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 27 April to 9 May 2003 (published on 21 December 2004)
This report pointed to serious deficiencies at the Zenica Prison Forensic Psychiatric Annexe: material conditions in which the patients were held did not meet hospital standards, staffing levels were totally inadequate and treatment for the vast majority of patients was limited to pharmacotherapy. The CPT recommended that the Zenica Prison Forensic Psychiatric Annexe be relocated.
COMPLAINTS
The applicant complained about the conditions of his detention and his medical treatment. He alleged that the Zenica Prison Forensic Psychiatric Annexe accommodated 60 persons in only two dormitories, that the Annexe was not an appropriate institution for the detention of psychiatric patients, that he could see a doctor only once every three months, that he had been seeking to have his tooth fixed for more than a year and that he had been threatened with injections of prohibited substances. He also pointed to an incident on 2 September 2004 when he had been beaten up by another prisoner, N.R. He maintained that the incident had been set up by A.D., a prison guard.
The applicant also complained that his incoming and outgoing correspondence was regularly opened and read by the prison personnel.
Lastly, he complained about the judgments of 23 September 2002 and of 30 April 2003. He submitted that the Criminal Code 2003 and the Criminal Procedure Code 2003, both of the Federation of Bosnia and Herzegovina, had rendered his detention unlawful.
THE LAW
On 14 July 2005 the Court received the following declaration on the Government’s behalf:
“I, Zikreta Ibrahimović, Attorney General (Pravobranilac Bosne i Hercegovine), declare that the Government of Bosnia and Herzegovina offer, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, to move all patients held in the Zenica Prison Forensic Psychiatric Annexe (including Mr Fikret Hadžić) to an adequate facility as soon as possible but no later than 31 December 2005 and to pay ex gratia EUR 9,000 to Mr Fikret Hadžić.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Bosnian markas at the rate applicable on the date of payment and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”
On 5 May 2005 the Court received the following declaration signed by the applicant:
“I, Fikret Hadžić, note that the Government of Bosnia and Herzegovina are prepared, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, to move all patients held in the Zenica Prison Forensic Psychiatric Annexe (including me) to an adequate facility as soon as possible but no later than 31 December 2005 and to pay me ex gratia the sum of EUR 9,000.”
The applicant went on to accept the above-described proposal and waived any further claims against Bosnia and Herzegovina in respect of the facts giving rise to this application.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the Court’s list of cases.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention; and
Decides to strike the application out of its list of cases.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy