FIFTH SECTION
DECISION
Application no. 6904/10
Maks KOVAČIČ
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 11 March 2014 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
1. The applicant, Mr Maks Kovačič, is a Slovenian national, who was born in 1978 and lives in Leskovec Pri Krškem. He was represented before the Court by Odvetniška Družba Matoz O.P. d.o.o., a law firm practising in Koper.
2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant served his prison sentence in the semi-open section of Ljubljana prison from 15 July 2009 to 27 November 2009. From 27 November 2009 to 21 January 2010 he was held in the open section Ig, Ljubljana prison. From 21 January 2010 to 2 September 2010 he was held in the open and closed sections of Ljubljana prison, the Section Novo mesto (hereinafter the Section Novo mesto).
5. From 15 July 2009 to 27 November 2009 he was held in the semi‑open section of Ljubljana prison in cell 146, measuring 18.8 square metres (including a separate 1.72 square metre sanitary facility) and containing, apart from furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held there during his detention. The Government, however, submitted that the number varied between four and five. The cell had one 107 x 110 cm double casement window, which could freely be open or closed by prisoners.
6. As regards the general characteristics of the cells in the semi-open section, material conditions inside the cells therein, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.
7. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.
8. From 27 November 2009 to 21 January 2010 the applicant was held in the open section Ig, Ljubljana prison in cell 3 measuring 40 square metres, which contained six sleeping places. The Government submitted that four prisoners were held in that cell during the applicant’s detention.
9. In the open section cells were open twenty-four hours per day and prisoners could, except when sleeping, move around freely, inside the open section (in a dining room, classroom, recreation room) and in outdoor areas (a park and sports ground). Further, the prisoners were allowed to exercise for four hours per day, they could do shopping in a shop outside the prison, their visits were unsupervised and their correspondence with people from outside the prison and the use of a telephone were not limited and supervised. The open section had a capacity for twenty seven prisoners in five cells. The prisoners shared sanitary facilities with five showers, five washbasins in the lavatory, three toilets on the ground floor and four toilets on the first floor of the section and a laundry room with a washing machine and a drier, which prisoners could freely use. Prisoners in the open section were also entitled to unsupervised visits outside prison for five hours during weekends, unsupervised leave and annual leave if working in Ljubljana prison.
10. From 21 January 2010 to 2 September 2010 he was held in the Section Novo mesto, first he was held under the open regime and after being suspected of committing a crime during his leave, he was held under the closed regime. During his detention in the Section Novo mesto the applicant was held in unit 4 measuring 58.51 square metres and including four separate rooms, namely an ante-chamber measuring 11.55 square metres, a sanitary facility measuring 1.27 square metres, a larger room measuring 30.74 square metres with six beds and a smaller room measuring 15.22 square metres with three beds, where the applicant was held with two other prisoners. In the ante-chamber prisoners could watch television and prepare hot beverages. Prisoners held there could move freely in the unit twenty‑four hours per day as the inner doors were unlocked. From 3.30 p.m. to 10.00 p.m. they could move freely also in the shared corridor of the Section Novo mesto and recreation areas. The applicant spent twelve hours per day out of the unit; eight hours at work, two hours outdoors in an area of 300 square metres, two hours in a shared corridor of 108.64 square metres or in shared living quarters of 59.04 square metres. The applicant could also move in an outdoor recreation yard for two hours per day. The difference between the open and the closed regime was only the number of privileges awarded to prisoners outside the prison (i.e. as regards unsupervised leave, visits etc.).
11. During his imprisonment the applicant had twenty-one consultations with a general practitioner. He did not request a dental appointment or a session with a psychiatrist. He did not attend sessions with a psychologist.
12. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.
B. Relevant domestic law and practice
13. For the relevant domestic law and practice as well as relevant international documents see Štrucl and Others, cited above, §§ 33-56.
COMPLAINTS
14. The applicant complained that the conditions of his detention in Ljubljana 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 out-of-cell time, high temperatures in the cells, inadequate health care and psychiatric support and exposure to violence from other inmates due to insufficient security.
15. Citing Articles 3 and 8 of the Convention, the applicant also complained of restrictions on telephone conversations and correspondence.
16. Lastly, the applicant 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
17. In Jevšnik v. Slovenia, no. 5747/10, §§ 25 – 26, 9 January 2014, the Court found that the conditions in which the applicant was held in the semi‑open section in Ljubljana prison, personal space (about 3.3 or 3.4 square metres) taken together with the time he could spend outside the cell (from Monday to Thursday fifteen hours and forty five minutes per day, on Fridays eighteen hours, on Saturdays fifteen hours and a half and on Sundays thirteen hours and fifteen minutes), could not be considered as to be contrary to Article 3 of the Convention, as the restricted space in the sleeping facilities was compensated by the freedom of movement enjoyed by the applicant during the day-time. As regards the temperatures in cells in the summer of 2009, the Court found that although the applicant was imprisoned also in the second half of July and August 2009, his situation during that period could not be considered as being further exacerbated by high temperatures as he was held in the semi-open section and could therefore spent a considerable amount of time outside the cell.
18. In the present case, the applicant was held in the semi-open section with 3.4 square metres of personal space and enjoyed the same out-of-cell time as the applicant in the case of Jevšnik v. Slovenia. As the conditions of the applicant’s detention in the semi-open section were the same as those of the applicant in the case of Jevšnik v. Slovenia, this part of the application should be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
19. The Court reaches the same conclusion regarding the applicant’s detention in the Section Novo mesto. There he was held under the open and closed regime, which differ only as regards the number of privileges awarded to prisoners outside the prison (i.e. as regards unsupervised leave, visits etc.). The prisoner was held in a unit measuring 58.51 square metres. The unit included a larger room measuring 30.74 square metres with six beds (each of six prisoners held there had 5.1 square metres of personal space) and a smaller room measuring 15.22 square metres with three beds, where the applicant was held with two other prisoners (each of three prisoners held there had 5.1 square metres of personal space). The prisoners could also use an ante-chamber measuring 11.55 square metres and a sanitary facility measuring 1.27 square metres, both part of the unit. The applicant could move freely in the unit twenty-four hours per day as the inner doors were unlocked and from 3.30 p.m. to 10.00 p.m. he could move freely also in the shared corridor of the Section Novo mesto and recreation areas. He spent twelve hours per day out of the unit; eight hours at work, two hours outdoors in an area of 300 square metres, two hours in a shared corridor of 108.64 square metres or in shared living quarters of 59.04 square metres. The applicant could also move in an outdoor recreation yard for two hours per day. The Government argued that the applicant did not seem to be complaining also as regards his detention in sections of Ljubljana prison, the Section Novo mesto. However, the Court finds that the applicant complained about the detention in Ljubljana prison and the Section Novo mesto is a section of Ljubljana prison and in any event the conditions of detention there are not contrary to the Convention standards. Therefore, this part of the application must also be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
20. Lastly, also the part of the application regarding the applicant’s detention in the open section needs to be rejected as being manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. There, the applicant had at least 6.7 square metres of personal space (or 10 square metres of personal space if sharing the cell with three other prisoners) and where the cells were open twenty-four hours per day, so that he could, except when sleeping, move around freely, inside the open section and in outdoor areas. The Government argued that the applicant did not seem to be complaining also as regards his detention in the open section. However, the Court finds that the applicant complained about the detention in Ljubljana prison and the open section Ig is a section of Ljubljana prison and in any event the conditions of detention there are not contrary to the Convention standards.
21. Further, for the same reasons the Court considers that the situation in which the applicant was detained does not give rise to an issue under Article 8 of the Convention. Therefore, this part of the application should also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
22. As to the lack of effective remedy, having declared the complaints under Articles 3 and 8 of the Convention inadmissible, the Court concludes that the applicant has no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov v. Ukraine, no. 32362/02, §§ 74‑5, 20 May 2010). It follows that this part of the application should be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) 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