FIFTH SECTION
DECISION
Application no. 7009/10
Mirko MAČEK
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 13 November 2014 as a Committee composed of:
Angelika Nußberger, President,
Boštjan M. Zupančič,
Vincent A. De Gaetano, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 29 December 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mirko Maček, is a Slovenian national, who was born in 1974 and lives in Mozirje. 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 N. Pintar Gosenca, 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 closed and semi-open sections of Ljubljana prison.
5. In the period from 9 June 2009 to 14 June 2009 he was held in the closed section: for three days in cell 117, measuring 17.66 square metres (not including a separate 1.68 square metre sanitary facility) shared with three to five other inmates and with 2.66 to 3.99 square metres of personal space and for three days in cell 121 measuring 18.17 square metres (not including a separate 1.69 square metre sanitary facility) with 3.3 square metres of personal space.
6. In the period between 15 June 2009 and 19 November 2009 he was held in the semi-open section in cell 146, measuring 16.89 square metres (not including a separate 1.76 square metre sanitary facility), with 3 to 3.7 square metres of personal space when shared with three or four other inmates and with 5 square metres of personal space when shared with two other inmates.
7. As regards the general characteristics of the cells in the closed and semi-open sections, 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.
8. 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.
9. 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
10. For the relevant domestic law and practice as well as relevant international documents see Štrucl and Others, cited above, §§ 33-56.
COMPLAINTS
11. The applicant complained that the conditions of his detention in Ljubljana prison amounted to a violation of Articles 3 and 8 of the Convention.
12. Citing Articles 3 and 8 of the Convention, the applicant also complained of restrictions on telephone conversations.
13. 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
A. Complaint under Article 3 of the Convention
14. The applicant complained that the conditions of his detention in Ljubljana prison amounted to a violation of Article 3 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 restriction 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. He submitted that the situation amounted to a structural problem, and that this has been acknowledged by the domestic authorities.
16. The applicant also complained about restrictions on telephone conversations. However, this complaint falls to be examined under Article 8 of the Convention only.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
17. The Court considers that the part of the application regarding the detention in the closed section from 9 June 2009 to 14 June 2009 is a separate period (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 129, 22 May 2012) and the complaint in respect of each separate period must comply with the six-month rule. As the complaint was introduced only on 29 December 2009, this part of the application should be rejected as not complying with the six-month rule within the meaning of Article 35 § 1 and 4 of the Convention.
18. As regards the detention in the semi-open section from 15 June 2009 to 19 November 2009, 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 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.
19. In the present case, the applicant was held in the semi-open section with 3 to 5 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 similar as those of the applicant in the case of Jevšnik v. Slovenia, this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 (a) and 4 of the Convention.
B. Complaint under Article 8 of the Convention
20. The applicant complained that his allegations in respect of Article 3 also gave rise to a violation of Article 8 of the Convention. In addition, he complained about restrictions on telephone calls. As regards the latter, the applicant submitted that he had often been under pressure from other inmates to terminate his telephone conversations before the allotted time had expired.
21. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
22. As regards the complaints under Article 8 concerning contact with persons outside the prison, the Court has already rejected these complaints as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention in Štrucl and Others (cited above, § 96). As the applicant adduced the same arguments as the applicants in Štrucl and Others, the Court sees no reasons to reach a different conclusion in the present case.
23. As regards the rest of the complaints under Article 8, the Court considers that the situation in which the applicant was detained has not given 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.
C. Complaint under Article 13 of the Convention
24. The applicant complained that owing to the systemic nature of the inadequate prison conditions he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention. In any event, there is no evidence that the remedies which were available in theory could work effectively in practice when it came to prison conditions and the treatment of prisoners. He cited 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.”
25. 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 Phillips Angelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy