FIFTH SECTION
DECISION
Application no. 33095/14
Mladenko KUNIĆ
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 31 March 2015 as a Committee composed of:
Angelika Nußberger, President,
Boštjan M. Zupančič,
Vincent A. De Gaetano, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 24 April 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Mladenko Kunić, is a national of Bosnia and Herzegovina, who was born in 1984. He was represented before the Court by Mrs Darja Roblek, a lawyer practising in Kranj.
The Slovenian Government (“the Government”) were represented by their Agent, Mrs Andreja Vran, State Attorney.
The Government of Bosnia and Herzegovina were informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), however they did not avail themselves of that right.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was detained in the remand section of Novo mesto prison from 9 March 2013 to 11 November 2013.
He submitted that during his detention he had suffered from severe overcrowding, inadequate ventilation during the summer and excessive restrictions on out-of-cell time.
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 applicant complained that the conditions of his detention in the remand section of Novo mesto prison amounted to a violation of Article 3 of the Convention.
Under Article 13 of the Convention the applicant complained that he had not had at his disposal any effective domestic remedy for his complaints under Article 3.
THE LAW
A. Complaint under Article 3 of the Convention
The applicant complained that the conditions of his detention had been inhuman and degrading. He 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 applicant alleged, in particular, that he had suffered from severe overcrowding, inadequate ventilation during the summer and excessive restrictions on out-of-cell time.
The Government pleaded non-exhaustion of domestic remedies. They relied on the case of Bizjak v. Slovenia (cited above) when arguing that a claim for compensation under Article 179 of the Civil Code is an effective remedy in cases as the present one, where an application to the Court was lodged after the applicant had been released.
The applicant maintained that a claim for compensation could not be considered effective in view of the domestic practice.
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 (cited above, § 34) the Court concluded that the remedy at issue should in principle be used by a person who intended to claim, after the release, that his or her prison conditions had been incompatible with Article 3 of the Convention.
The factual background in the present case is similar to the one in the case of Bizjak. At the time of lodging of his application to the Court the applicant in the present case was no longer detained.
As regards the applicant’s objections as to the ineffectiveness of the domestic compensatory remedy, they are based on the same arguments as adduced by the applicant in Bizjak (cited above, § 23). Those allegations were not accepted in Bizjak (cited above, §§ 35-44), and the Court sees no reasons that would lead it to reach a different conclusion in the present case.
The Court therefore concludes that the applicant was obliged, under Article 35 of the Convention, to pursue the remedy under Article 179 of the Civil Code, which he has 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 applicant complained that he did not have any effective remedy at his disposal as regards the conditions of his detention. He 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.”
Even assuming that Article 13 is applicable, the Court notes that it has already found that a claim for compensation under Article 179 of the Civil Code would have provided the applicant with a potentially effective remedy for his complaint under Article 3 of the Convention. 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,
Declares the application inadmissible.
Done in English and notified in writing on 23 April 2015.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy