FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4464/09
by Krešimir SRBIĆ
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,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 6 January 2009,
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 Krešimir Srbić, is a Croatian national who was born in 1966 and lives 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 is a follower of the Hare Krishna movement.
Following a criminal conviction for robbery, the applicant began serving a seven-year prison term on 13 January 2003 in Sisak Prison.
During 2006 he was transferred to Lepoglava State Prison. On 21 April 2008 the applicant was transferred to Turopolje Prison and on 22 July 2008 he was transferred to Zagreb Prison.
On 20 September 2008 he was transferred back to Sisak Prison. He alleged that between 24 November and 19 December 2008 he was placed in a cell without heating and that on 13 December 2008 ten bottles of water were taken from him. On 12 January 2009 the applicant was placed in a cell with smokers, although his doctor had recommended that he be placed in a non-smoking cell.
According to the applicant, he is a vegetarian but for the first six months of his incarceration there was no possibility of receiving vegetarian meals in Sisak Prison. Furthermore, although the applicant was able to buy grains, oats and similar food from the prison canteen, he was not allowed to have a spoon, so he was unable to consume such food. The food provided to him by the prison authorities consisted almost entirely of carbohydrates.
Furthermore, he suffered from a cyst in his mouth and although surgery was recommended by a prison doctor, this recommendation has not yet been followed. The applicant submitted a medical certificate dated 16 October 2009 showing that on 20 September 2008 when he arrived in Sisak Prison he weighted 97 kilograms but by 16 October 2009 he weighed only 81 kilograms.
On 27 October 2009 the applicant handed over a letter addressed to the Court to a prison officer. On 28 October 2009 he was told that letters had to be handed over unsealed. On 29 October 2009 a copy of the Convention and registration details concerning his case pending before the Court were taken from the applicant.
On 12 January 2010 the applicant was transferred to Zagreb Prison. He alleges that upon arrival all his personal belongings were taken from him, including his glasses, contact lenses and the following golden jewellery: three diamond earrings; a necklace; a diamond ring; and a Hare Krishna rosary with a swastika on it which he had previously been allowed to keep. When he attempted to ask for his glasses or contact lenses to be returned to him, two prison guards took him out of the cell and hit and kicked him several times all over his body. Later on the same date, the applicant complained to the prison’s medical personnel but they refused to provide him with any medical care. The applicant alleges that he complained about the incident to the Head Office of the Prisons Administration of the Ministry of Justice but that no steps have been taken in relation to his complaint.
When a sentence-execution judge of the Zagreb County Court was visiting the prison, the applicant complained of his rosary being taken away from him. Her response was that his religious symbols were not allowed. When he later checked whether his golden jewellery was still in the prison safe, he discovered that his property was no longer there. He complained to the Head Office of the Prisons Administration and on 10 May 2010 received an answer that these objects had never been recorded as having been taken from him.
The applicant alleges that the prison authorities requested that he hand over all letters addressed to the Court and to the national authorities unsealed.
B. Relevant domestic law
The relevant provisions of the Service of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
JUDICIAL REVIEW OF ACTS AND DECISIONS OF THE PRISONS ADMINISTRATION
Section 17
“(1) An inmate may lodge a request for judicial review of any acts or decisions unlawfully refusing him, or limiting, any of the rights guaranteed by this Act.
(2) Requests for judicial review shall be decided by the sentence-execution judge.”
Section 42
(1) A sentence-execution judge protects the rights of prisoners, supervises the legality of the execution of a prison term and ensures equality of prisoners before the law.
(2) A sentence-execution judge takes acts and decides in respect of:
...
2. Judicial review of [prisoners’] rights by deciding on appeals lodged against a decision of a prison governor in cases prescribed by this Act;
...”
PROCEEDINGS BEFORE A SENTENCE-EXECUTION JUDGE
Section 44
“(1) Proceedings before a sentence-execution judge are initiated at first instance upon a request by a party or by a judge and at second instance upon an appeal.
(2) A sentence-execution judge acts so as to, according to basic principles, ensure 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 the prisoner and the prison or penal institution.
(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 penal institution concerned and establish the relevant facts in any other manner.
(7) A sentence-execution judge may hold a hearing in appropriate premises of a prison or penal institution.”
PROCEEDINGS UPON AN APPEAL AGAINST A DECISION OF A PRISON GOVERNOR
Section 45
“A prisoner may lodge an appeal against decisions of a prison governor to a sentence-execution judge within eight days ...”
Appeal against a decision of a sentence-execution judge
Section 46
(1) Parties to the proceedings, a prisoner’s representative and the persons listed in Article 380 §§ 1 and 2 of the Code of Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted at 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
Under Article 3 of the Convention the applicant complained about the general conditions of his detention; that he had not been provided with adequate medical care; and that he had been beaten by the prison guards.
Under Article 8 of the Convention the applicant complained that his right to respect for his correspondence had been violated.
Under Article 9 of the Convention the applicant complained of a prohibition on keeping religious objects in his cell.
Under Article 1 of Protocol No. 1 to the Convention the applicant complained that the prison authorities had denied that upon his arrival at Zagreb Prison he had handed over several items of golden jewellery.
THE LAW
The relevant provisions, invoked by the applicant, 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 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
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.”
The Government argued that the applicant had not exhausted domestic remedies. As regards the complaints about the general conditions of his detention and the alleged lack of adequate medical care, he had not submitted those complaints to a sentence-execution judge. As regards the alleged beating, he had not submitted any such complaint to any of the competent authorities.
The applicant argued that he had exhausted all available remedies.
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).
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 brining 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.
1. Complaints under Article 3 of the Convention
The applicant in the present case has not shown that he made any written complaint to a competent sentence-execution judge as regards the material conditions of his detention and the alleged lack of adequate medical care during his detention in any of the prisons in Croatia in which he was detained.
Further, there is no indication that the applicant submitted a complaint about the alleged beating by prison guards in any form to any of the national authorities. He has thus deprived these authorities of an opportunity to investigate this allegation.
2. Complaints under Articles 8 and 9 of the Convention
The applicant failed to make clear and comprehensible complaints concerning his allegations in respect of Articles 8 and 9 of the Convention to a competent sentence-execution judge.
The fact that he made an oral complaint about the taking away of his Hare Krishna rosary cannot be considered as proper exhaustion of domestic remedies.
The applicant should have lodged a written complaint to a sentence-execution judge, and use further available remedies, including a constitutional complaint.
3. Complaints under Article 1 of Protocol No. 1 to the Convention
The applicant failed to make clear and comprehensible complaints concerning his allegations in respect of Article 1 of Protocol No. 1 to a competent sentence-execution judge. Likewise, he never instituted any civil proceedings in order to have his property returned to him. In such proceedings the national courts would have been required to establish the relevant facts surrounding the circumstances of the applicant’s possessions being taken and deposited with the prison authorities and to assess the evidence. Without initiating the appropriate proceedings, the applicant did not give an opportunity to the national authorities to remedy the situation he complained of before the Court, contrary to the principle of subsidiarity.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenAnatoly Kovler
RegistrarPresident
Full & Egal Universal Law Academy