FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42550/08
by Zdenko ŠIMUNOVSKI
against Croatia
The European Court of Human Rights (First Section), sitting on 21 June 2011 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 14 August 2008,
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 Zdenko Šimunovski, is a Croatian national who was born in 1951 and lives in Lepoglava. He was represented before the Court by Mr R. Čogurić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1951 and is currently serving a prison term in Lepoglava State Prison (Kaznionica Lepoglava “the LSP”).
In March 2005 the applicant was placed in pre-trial detention following the institution of criminal proceedings against him on numerous charges of sexual intercourse with several minors. On 21 March 2006 the Osijek County Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment. The applicant was sent to begin serving his sentence. On 14 February 2007 the Supreme Court upheld the first-instance judgment.
During the trial the applicant was placed in Osijek Prison, where he stayed until 30 May 2007, when he was sent to Zagreb Prison. He stayed there until 28 June 2007, when he was sent to the LSP.
1. The applicant’s first stay in the LSP
The applicant was in the LSP between 28 June 2007 and 22 February 2008.
By a decision of 14 September 2007 the LSP Governor intercepted a letter by the applicant addressed to the editor-in-chief of the Večernji list, a Croatian daily, and decided to hold it in the applicant’s file. By a decision of 17 September 2007 the LSP Governor decided the same in respect of a letter by the applicant addressed to a journalist of the Jutarnji list, a Croatian daily.
The applicant lodged an appeal against these decisions.
By a decision of 20 November 2007 the LSP Governor intercepted the applicant’s letters addressed to a cardinal and T.C., a Croatian singer, and decided to hold them in his file. On 26 November 2007 the applicant lodged an appeal.
On 4 December 2007 a judge responsible for the execution of Varaždin County Court sentences upheld the decisions of 14 and 17 September 2007 in so far as they prevented the applicant from addressing the media.
On 18 December 2007 the applicant complained to a Varaždin County Court sentence-execution judge that his letter addressed to the Court and the European Commission for Democracy through Law had had to be handed over unsealed and that his letters addressed to Cardinal B. and T.C. had been intercepted.
On 8 January 2008 the Varaždin County Court sentence-execution judge quashed the decision of 20 November 2007.
On 9 January 2008 the Varaždin County Court sentence-execution judge answered the applicant’s complaint of 18 December 2007 by letter. As regards the letters addressed to the Court he explained that unmonitored correspondence was allowed with a lawyer, State authorities and the international organisations for the protection of human rights of which Croatia was a member. He further stated that the letters addressed to T.C., to the Jutarnji list and Večernji list dailies, and to the journalist K.T. and Cardinal B. had been intercepted lawfully. The letter was forwarded to the LSP the same day.
By a decision of 11 January 2008 the LSP Governor intercepted another letter by the applicant addressed to the singer T.C. On 18 February 2008 a sentence-execution judge of the Varaždin County Court quashed that decision.
By a decision of 31 January 2008 the LSP Governor intercepted a letter by the applicant addressed to D.J., one of the minors in respect of whom he had been convicted, to Cardinal B., the singer T.C. and a non-governmental organisation in Croatia. This decision was upheld by a sentence-execution judge of the Šibenik County Court on 27 March 2008. The applicant’s subsequent appeal was declared inadmissible since no appeal was allowed in respect of the decisions of a sentence-execution judge adopted in his or her appeal capacity. Only when such a judge was deciding in the first instance was an appeal to a three-judge panel of a competent County Court allowed.
2. The applicant’s first stay in Šibenik Prison
Between 23 February 2008 and 21 August 2008 the applicant was in Šibenik Prison.
On 7 May 2008 the applicant complained to a sentence-execution judge of the Šibenik County Court that no programme had been implemented in his respect.
3. The applicant’s time as an inmate in Varaždin Prison
Between 21 August and 19 November 2008 the applicant was in Varaždin Prison.
By a decision of 25 September 2008 the Varaždin Prison Governor intercepted a letter by the applicant addressed to a sentence-execution judge of the Šibenik County Court. On 23 October 2008 a sentence-execution judge of the Varaždin County Court upheld that decision on the ground that the letter contained numerous insulting remarks.
The applicant lodged an appeal. On 30 October 2008 a sentence-execution judge of the Varaždin County Court declared the appeal inadmissible on the ground that no appeal was allowed against a decision of such a judge where that judge was acting in an appeal capacity in respect of decisions adopted by a prison administration.
By a decision of 27 October 2008 the Varaždin Prison Governor deprived the applicant of the use of his personal computer on the ground that the instruction the prison had received from the Ministry of Justice on 2 October 2008 was that prisoners were not allowed to have personal computers. This decision was upheld by a sentence-execution judge of the Varaždin County Court on 4 November 2008.
4. The applicant’s second stay in Šibenik Prison
Between 19 November 2008 and 23 April 2009 the applicant was again an inmate in Šibenik Prison.
5. The applicant’s stay in the Zagreb Prison hospital
Between 23 April and 7 May 2009 the applicant was a patient in the Zagreb Prison hospital.
6. The applicant’s third stay in Šibenik Prison
Between 7 May and 5 June 2009 the applicant was again an inmate in Šibenik Prison.
In his letters of 12, 20 and 21 January 2009 sent to the Šibenik County Court the applicant complained in general terms that the conditions in prison were bad, without specific details, that his complaints had not been answered. He also made general complaints of corruption.
The applicant received no reply to these complaints.
7. The applicant’s second stay in the LSP, after 5 June 2009
Since 5 June 2009 the applicant has been an inmate in the LSP.
By a decision of 19 June 2009 the LSP Governor ordered the applicant’s placement in the strict supervision unit for three months, on the ground that he had been in possession of prescription drugs without permission and that he had insulted prison staff.
On 23 June 2009 the applicant lodged an appeal and on 14 August 2009 he sent further submissions to the Varaždin County Court sentence-execution judge. He complained that he had been placed in solitary confinement, in a dark, damp and airless cell measuring three square metres, with a toilet which was only partly private. The floor was cement. The walls were covered in mould, the only window measuring 40 x 40 centimetres, and the window pane was covered in a thick iron net on the outside and therefore allowed only very limited light. Owing to such poor access to natural light, the electric light had to be kept switched on the whole day and it consisted of one low-voltage bulb which was constantly blinking. There was no electrical plug socket and the water and sewerage installations were not functioning. The mattress was smelly, old, torn, dirty and soiled and the blankets old, dirty, dusty and torn. The sink measured 27 x 35 centimetres with a tap pipe 25 centimetres long which caused the water to spill out of the sink each time it was used.
On 23 July, 3, 17, 18 and 24 August and 4 September 2009 the LSP Governor intercepted letters by the applicant addressed to V. and A. L.; V.V., M.B. and M. and J.K., and decided to hold them in the applicant’s personal file, on the ground that they contained allegations that certain individuals had committed criminal offences without providing any proof.
The applicant lodged an appeal against the decisions of 23 July and 24 August 2009 by which his letters addressed to V., to A. L. and to M.B. had been intercepted. On 31 August 2009 a sentence-execution judge of the Varaždin County Court quashed both those decisions.
On 28 October 2009 a sentence-execution judge of the Varaždin County Court dismissed the applicant’s appeal of 23 June 2009 and declared his further submissions of 14 August 2009 inadmissible as lodged out of time.
The applicant sent numerous letters to various institutions in Croatia complaining that there was widespread paedophilia in Croatia, that there was general corruption, and about the behaviour of the judicial and prison authorities.
B. Relevant domestic law
The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003), read as follows:
JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION
Section 17
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully refusing him, or limiting, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the sentence-execution judge.”
Section 42
(1) A sentence-execution judge protects the rights of prisoners, supervises lawfulness in respect of the execution of a prison term and ensures equality of the prisoners before the law.
(2) A sentence-execution judge takes actions and decisions in respect of:
...
2. judicial protection of those rights by deciding on appeals lodged against a decision by a prison governor in cases prescribed by this Act;
...”
PROCEEDINGS BEFORE A JUDGE RESPONSIBLE FOR THE EXECUTION OF SENTENCES
Section 44
“(1) Proceedings before a sentence-execution judge are initiated in the first instance at the request of a party or a judge and in the second instance upon an appeal.
(2) A sentence-execution judge acts so as to, according to the basic principles, ensures the effective protection of the rights and interests of the prisoner concerned. ... The judge shall allow the parties to submit their observations about the facts [presented by] and allegations put forward by the opponent, and to present new facts and call for evidence.
(3) The parties to the proceedings are a prisoner and a prison or other penal institutions.
(4) A prisoner has the right to a lawyer of his or her own choice. Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings. When a prisoner does not ensure legal representation within twenty-four hours, the proceedings shall continue without legal representation.
(5) A prisoner may ask for a legal-aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests.
(6) A sentence-execution judge may consult all official documents concerning a prisoner, pay a visit to the prison or other penal institution concerned and establish the relevant facts in any other manner.
(7) A sentence-execution judge may hold a hearing within appropriate and adequate premises in a prison or other penal institution.”
PROCEEDINGS UPON AN APPEAL AGAINST A DECISION BY A PRISON GOVERNOR
Section 45
“A prisoner may lodge an appeal to a sentence-execution judge against decisions of a prison governor within eight days ...”
Appeal against a decision of a sentence-execution judge
Section 46
(1) Parties to the proceedings, a representative of a prisoner and persons listed in Article 380 §§ 1 and 2 of the Code on Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted in the first instance ...
(2) The appeal shall be lodged with a sentence-execution judge, who shall immediately forward it to a judicial panel of a county court. That panel shall decide within eight days ...”
COMPLAINTS
The applicant complained under Article 3 of the Convention about the general conditions of his detention.
The applicant also complained under Article 8 of the Conventions that a number of his letters, both private ones and those addressed to various State institutions and the Court, had been intercepted by the prison authorities; and that he was often required to hand his letters to the authorities, including those addressed to the Court, unsealed. He also complained about the refusal of private conjugal visits and the use of a laptop computer and printer.
The applicant complained under Article 10 of the Convention that he had not been provided with any newspapers.
The applicant complained under Article 1 of Protocol No. 1 that he was not able to draw his pension, which was paid into his bank account.
He further complained under Article 6 of the Convention that no relevant procedures existed capable of addressing his various complaints, such as the conditions of his detention, the opening of his correspondence, lack of an individual programme, and refusal of private conjugal visits and the use of a laptop computer and printer, and to the fact that he could not draw his pension from his bank account.
Lastly, the applicant complained that there was corruption in various State institutions.
THE LAW
As to the compliance with the six-month rule
The Court notes that the applicant’s pre-trial detention in Osijek Prison ended on 30 May 2007, when he was sent to Zagreb Prison. Thus, the six-month period in respect of the conditions of the applicant’s detention in that period started to run on 31 May 2007. As regards the applicant’s stay in Zagreb Prison, the Court notes that it ended on 28 June 2007 and therefore the six-month period started to run on 29 June 2007.
However, the applicant lodged his application with the Court on 14 August 2008, more than six months later.
It follows that the part of the application concerning any complaints about the applicant’s stay in Osijek Prison between 9 February 2005 and 30 May 2007 and in Zagreb Prison between 30 May and 28 June 2007 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As to the exhaustion of domestic remedies
The applicant complained under Article 3 of the Convention about the general conditions of his detention in various prisons.
The applicant further complained under Article 8 of the Convention that his right to respect for his correspondence had been violated; and that he had been denied both private conjugal visits and the right to use his personal computer.
The applicant also complained under Article 10 of the Convention and under Article 1 of Protocol No. 1 that no newspapers had been provided to prisoners and that he was not able to draw his pension, which had been paid into his bank account.
The relevant provisions read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“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.”
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ arguments
The Government argued that in connection with his complaints concerning various aspects of the prison conditions and his rights as a prisoner the applicant had failed to use all available domestic remedies. He had not addressed detailed and comprehensible complaints to the relevant authorities, such as a sentence-execution judge and the Constitutional Court. They also maintained that he had not lodged a compensation claim against the State before the civil courts.
The applicant argued that he had exhausted all available remedies.
2. The Court’s assessment
(a) General principles
The Court reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the functioning authorities of their countries and are better placed to assess the opportunities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 50, Series A no. 20; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007-II).
As to the exhaustion of domestic remedies, the Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A, and Remli v. France, 23 April 1996, § 33, Reports 1996-II). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would be to duplicate the domestic process with proceedings before the Court, which would hardly be compatible with the subsidiary character of the Convention (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).
(b) Application of these principles in the present case
As regards the remedies available in connection with the conditions of detention in Croatia and other rights of detained persons, under the Enforcement of Prison Sentences Act, the Court notes that section 5 (2) of that Act provides that complaints shall be lodged orally or in writing with a prison governor, a sentence-execution judge or the Head Office of the Prison Administration of the Ministry of Justice.
However, only a complaint with a competent sentence-execution judge entails judicial protection and is susceptible to a further appeal with a three-judge panel of a competent County Court and a constitutional complaint.
In order to comply with the principles of subsidiarity the applicants, before bringing their complaints to the Court, have first to afford the Croatian Constitutional Court, as the highest Court in Croatia, the opportunity of remedying their situation and addressing the issues they wish to bring before the Court.
(i) Complaints under Article 3 of the Convention
The Court notes that, as regards his incarceration until 5 June 2009, when he was transferred to the LSP for the second time, the applicant did not submit detailed and specific complaints concerning the material conditions of his detention to any of the competent judges.
As regards the conditions of the applicant’s detention in the LSP since 5 June 2009, in his submissions of 14 August 2009 the applicant petitioned a Varaždin County Court sentence-execution judge, complaining about the material conditions of his detention. He described his cell in detail and alleged that he had been in solitary confinement. The complaint was seen as an appeal against the LSP Governor’s decision of 23 June 2009 and was declared inadmissible as lodged out of time on 28 October 2009.
The applicant failed to lodge a constitutional complaint against the decision of 28 October 2009.
(ii) Complaints under Article 8 of the Convention
(α) The applicant’s correspondence
The Court notes that in respect of the decisions, concerning his correspondence, of a Varaždin County Court sentence-execution judge of 4 December 2007 and 23 October 2008, as well as the decision of a Šibenik County Court sentence-execution judge of 27 March 2008, the applicant did not lodge a constitutional complaint.
In respect of the decisions by the LSP Governor of 3, 17 and 18 August and 4 September 2009 by which he prevented the applicant from sending letters to V.V., M. and J.K., the applicant did not lodge an appeal with a sentence-execution judge.
(β) Refusal of private conjugal visits during the applicant’s time as an inmate in Šibenik Prison
The applicant complained that the Head of Prison Administration had granted him conjugal visits but that the Šibenik Prison personnel had denied him that right.
The applicant however did not present the Court with proof that he had complained to a sentence-execution judge of the Šibenik County Court about refusal of private conjugal visits during his time as an inmate in Šibenik Prison.
(γ) Deprivation of the use of personal computer
The Court notes that the applicant failed to lodge a constitutional complaint against decision by a sentence-execution judge of the Varaždin County Court of 4 November 2008.
(iii) Complaints under Article 10 of the Convention and Article 1 of Protocol No. 1
The Court notes that the applicant failed to make clear and comprehensible complaints concerning his allegations in respect of Article 10 of the Convention and Article 1 of Protocol No. 1 to a competent sentence-execution judge.
It follows that in respect of all the above complaints the applicant failed to properly exhaust available domestic remedies. Thus contrary to the principle of subsidiarity, he has not afforded the national authorities to remedy the situation he is complaining of before the Court.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
As to whether the complaints are well founded
1. Complaints under Article 6 § 1 of the Convention
The applicant complained that no relevant procedures existed capable of addressing his various complaints. He relied on Article 6 § 1 of the Convention the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Assuming applicability of Article 6 of the Convention, the Court notes that in respect of any complaints the applicant had as regards any aspect of the conditions of his detention he could have lodged a complaint with a competent sentence-execution judge. An appeal to a three-judge panel of a county court with jurisdiction is allowed against a decision issued by a sentence-execution judge and against a decision of a three-judge panel, the applicant could have lodged a constitutional complaint.
As regards any of the decisions adopted by the prison authorities, the applicant is able to lodge an appeal with a competent sentence-execution judge. While no further appeal is possible against a decision of such a judge when acting in his or her appeal capacity, the applicant could lodge a constitutional complaint.
Against this background, the Court considers that in Croatia adequate procedures exist capable of addressing all issues raised by the applicant. However, the fact that he did not use these procedures properly cannot amount to a violation of Article 6 of the Convention.
2. Complaints concerning the applicant’s correspondence
The Court notes that in a decision of 11 January 2008 the LSP Governor prevented the applicant from sending letters to singer T.C. and in his further decisions of 23 July and 24 August 2009 the LSP Governor prevented the applicant from sending letters to V., A.L. and M.B. The applicant lodged appeals.
A sentence-execution judge of the Varaždin County Court quashed all the impugned decisions on 18 February 2008 and 31 August 2009, respectively. Therefore, as regards any possible complaints in respect of these decisions, the applicant is no longer a victim.
The Court notes further that in his complaint of 18 December 2007 to a sentence-execution judge of the Varaždin County Court, the applicant complained that he had to hand over to the prison authorities his letters addressed to the Court, unsealed. The judge replied by letter on 9 January 2008, explaining that unmonitored correspondence was allowed with the international organisations for the protection of human rights of which Croatia was a member.
The applicant did not submit any specific complaints concerning his correspondence with the Court after the letter by the sentence-execution judge and thus has not sufficiently substantiated his complaints.
3. Complaints about general corruption
Lastly, the applicant complained that there was corruption in various State institutions.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that all the above complaints are 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 the application inadmissible.
Søren NielsenAnatoly Kovler
RegistrarPresident
Full & Egal Universal Law Academy