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FIRST
SECTION
CASE OF
TESTA v. CROATIA
(Application
no. 20877/04)
JUDGMENT
STRASBOURG
12 July 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Testa v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 21 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20877/04) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mrs Ksenija Testa (“the
applicant”), on 28 April 2004.
- The
applicant was represented by Mrs V. Kučić, a lawyer from
the Law Office HanZeković and Radaković, practising in
Zagreb. The Croatian Government (“the Government”) were
represented by their Agent, Mrs Š. StaZnik.
- On
14 September 2006 the Court decided to communicate to the Government
the complaints concerning the conditions in PoZega Penitentiary and
the interference by the prison authorities with the applicant's right
to respect for her correspondence. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and is presently serving a prison sentence
in PoZega Penitentiary.
1. Criminal proceedings against the applicant
- On
24 April 2001 the PoZega Municipal Court (Općinski sud u
PoZegi) convicted the applicant of fraud and sentenced her to
eight months' imprisonment. The court also ordered her to pay 44,000
Croatian kunas (HRK) in damages to the injured party. The
first-instance judgment was upheld by the PoZega County Court
(Zupanijski sud u PoZegi) on 21 November 2001.
- The
applicant served the sentence in PoZega Penitentiary from 10 January
until 29 August 2003, when she was conditionally released. Her
conditional release expired on 10 September 2003.
- On
22 November 2001 the Zagreb Municipal Court (Općinski sud u
Zagrebu) convicted the applicant on eight counts of fraud,
sentenced her to four years' imprisonment and confiscated HRK 210,782
from her, which it attributed to the proceeds from her criminal
activity. The court also ordered her to pay HRK 359,416.17 in
damages to various injured parties. The sixth count of the
applicant's conviction was identical to the offence for which the
applicant had been sentenced by the PoZega Municipal Court on 24
April 2001. The judgment was upheld on 8 July 2003 by the Zagreb
County Court (Zupanijski sud u Zagrebu), sitting as
an appellate court.
- On
6 April 2005 the applicant started to serve her sentence.
- On
21 October 2005 the applicant lodged an application for a retrial,
claiming that she had been sentenced twice for the same offence. On
15 February 2006 the Zagreb Municipal Court granted the application.
On 12 April 2006 the Zagreb Municipal Court acquitted the applicant
on the charge of fraud in respect of which she had already been
convicted by the PoZega Municipal Court and upheld her other
convictions of 22 November 2001 the court sentenced her to three
years' imprisonment and confiscated HRK 166,782 from her on
account of her criminal activity.
2. The applicant's health condition
- The
medical documentation submitted by the applicant shows that since
1996 she has been suffering from chronic hepatitis (Hepatitis C) with
a very high level of viremia (presence of viruses in the blood). She
has unsuccessfully undergone interferon treatment. Due to the effects
of that disease her liver is damaged and her general health condition
is very bad. People with hepatitis C usually suffer from constant
exhaustion; pain in the abdomen, joints and muscles; general sickness
and weakness; and often depression. A low-fat diet is required in
order to reduce liver damage. The disease is potentially fatal. On an
unspecified date the applicant also contracted hepatitis A. In
addition to that, she suffers from endometriosis.
3. The applicant's first stay in PoZega Penitentiary
and the prison hospital
- During
her first stay in PoZega Penitentiary, from 10 January to 29 August
2003, the applicant was put on a low-calorie diet as a punishment for
her attempts to complain about the conditions in the prison. She was
first given the job of handling dissolvent without any protection and
later made to work full time on shovelling pebbles. As a consequence,
she collapsed and was transferred to the prison hospital (Bolnica
za osobe lišene slobode, hereafter “the hospital”)
where she spent about two and half months. She was transferred in a
van, accompanied by a driver, a nurse and a policewoman. The transfer
took several hours and they had several coffee breaks and a lunch
break, during which they left the applicant in a closed van, without
food or water and with the windows shut.
- In
the hospital the applicant shared a hospital room with five other
inmates, most of whom were suffering from various mental disorders or
epilepsy. The room had no sanitary facilities. The common sanitary
facilities were shared by male and female inmates of the same floor.
There were six female and fifteen male inmates on the applicant's
floor. Access to toilets was allowed only in the company of a prison
warden. The prison wardens were all male. Requests to be accompanied
to the toilet were often ignored for prolonged periods of time. There
was no access to the toilet during the night and the inmates had to
use a common chamber pot (one for six inmates). The rooms were
unlocked for an hour per day when the inmates were allowed to go out
into the corridor, take a shower or wash their clothes. If an inmate
urinated or threw up in the room, it had to be cleaned by the other
inmates.
- After
her return to PoZega Penitentiary, the applicant was again given the
job of handling dissolvent, without any protection. After she had
collapsed again, she was assigned another job.
- The
applicant was discharged on 29 August 2003. Her conditional release
expired on 10 September 2003.
4. The applicant's second stay in prison
- Following
a fresh criminal conviction, on 6 April 2005 the applicant was taken
by police to Remetinec Centre for Psychosocial Diagnostics (Centar
za psihosocijalnu dijagnostku Remetinec), a detention centre in
Zagreb, where she stayed for two weeks.
a. The applicant's submissions
- According
to the applicant, she had not been allowed to write to the Court. The
prison authorities had repeatedly questioned her as to what she had
written to the Court about her previous stay in PoZega Penitentiary
and the hospital. After she had refused to reply she had been
transferred to PoZega Penitentiary and placed in the high-security
unit where she had been ever since.
- PoZega
Penitentiary consisted of four buildings that were old and in a bad
state of repair. The walls were damp, windows broken and the heating
facilities old and insufficient. As a result, it was often very cold
in the cells and in the other prison areas. On rainy days the water
leaked through the roof into the bedrooms. The sewage and water
installations often broke down and when this happened the inmates
were deprived of running water for days.
- PoZega
Penitentiary was divided into three sections: an open section with
the lowest security regime, a semi-open section with a medium
security regime and a closed section with the highest security
regime. The applicant had been assigned to the latter one. She had
been put in a cell measuring twelve square metres with five other
inmates. The beds were old and partly broken, and the mattresses were
torn and soiled. There were approximately two toilets on average for
thirty inmates. The inmates were not allowed to use the toilets at
night. The applicant had been put in the same cell as an inmate who
took heavy sedatives and therefore soiled her bed almost every night,
which created an unbearable smell in the cell. The penitentiary
lacked sufficient sanitary facilities, so inmates were occasionally
sent to take showers in the basement. The showers there were mouldy
and there were often mice, cockroaches, rats and cats running around.
The inmates were not allowed to wash their civilian clothes in the
penitentiary laundry room but had to wash them by hand and dry them
in a very small room, which created an unbearable smell.
- Before
every meal the inmates were lined up in the courtyard where,
regardless of the weather conditions and often for a prolonged period
of time, they waited to be allowed access to the canteen. The
applicant found it increasingly difficult to bear such line-ups on
account of her illness.
- Inmates
were made to work about fifteen hours per day. From 12 May to 25
November 2005 the applicant had not worked because of her health
condition, but later on she had volunteered to work in order to earn
at least some money to buy vitamins and some food. The applicant
earned between HRK 300 and 400 per month, HRK 100 of which she was
obliged to save. She worked as a seamstress. She was allowed one
hour's rest in her bed per day. The bedrooms were locked for the rest
of the day. If she needed more rest she had to seek the doctor's
permission each time. The applicant found it almost unbearable not to
be able to stay in her bed for longer periods during the day since
she suffered from tiredness associated with hepatitis C.
- Although
a low-fat diet for her liver disease had been prescribed, the
applicant was served food cooked in pig fat. In general the food
served to the inmates was insufficient and of poor quality. The bread
was often stale and the food had often gone off. Breakfast often
consisted of a spoon of bare pig fat.
- She
had seen a doctor once, on 21 February 2006. The medical
documentation stated only that the test for hepatitis C was positive
and that her viremia was 2.556.220 units/ml of serum. Apart from
that, the applicant had not been sent for any other medical check-ups
despite having a serious disease which required regular tests and
check-ups. Since her arrival at PoZega Penitentiary the applicant had
not been seen by a hepatologist. She stated that she had not asked to
be sent to the prison hospital because the conditions there were even
worse than in PoZega Penitentiary.
- All
letters sent and received by the inmates were subject to censorship.
On several occasions the applicant was told to shorten her letters
addressed to her family and not to write about the conditions in the
prison. Mail was received with up to twenty days' delay. Mail sent
without a request for acknowledgment of receipt often did not reach
its destination at all. The inmates had to bear all the postage
costs. All telephone calls were screened. The inmates apparently had
to bear the costs of the telephone calls they made. The applicant
stated that she had not been informed that she was entitled to any
visits.
b. The Government's submissions
- According
to the Government, the penitentiary had been built in 1915 and had
been adapted to the life and accommodation of inmates so as to comply
with the conditions set out in the relevant legislation. It was able
to accommodate 157 inmates, yet on 5 October 2006 there had been
72 inmates. Each section comprised bedrooms, sanitary premises, a
living room, a tea-kitchen, a smoking area, an area for leisure
activities, a library with computer equipment and premises for
religious worship. The inmates were allowed to use the toilet and
other sanitary facilities at any time and for an unlimited period.
Each living room was equipped with a television set and a DVD or
video recorder. Inmates were allowed to watch television until 11
p.m. on working days and until midnight on Saturdays and Sundays.
- As
to the applicant's personal circumstances, the Government submitted
that after her initial one-week stay at the Reception Unit, she had
been placed in the high-security unit and assigned to a non-working
group on account of her health condition. The applicant had been
qualified as having minor adaptability problems as most of the time
she had been without any obvious occupation, just listening to music.
Occasionally she had got into arguments with other inmates. She had
lacked the motivation for more active participation in her individual
programme, remaining passive and inert, with no insight into her own
behaviour and uncritical in respect of her criminal conviction.
However, with time the applicant's attitude had altered for the
better. She had expressed a higher level of motivation for completing
her daily duties and had satisfactorily participated in her
counselling sessions, distancing herself from negative events in the
section, and concentrating on herself. She had also expressed a wish
to work and, as of 23 November 2005, had been working in the laundry
service where she had been given less demanding tasks.
- As of 1 June 2006 the applicant had been labelled
“successful”, which had resulted in her removal to a
semi-open section from 2 August 2006. Ever since then she had
benefited from the following privileges: unsupervised
use of telephone in her free time; unlimited correspondence at her
own expense; the right to receive a package once a month and during
public holidays; an additional package once every two months; the
right to supervised one-hour visits twice a month and during
public holidays; and an unsupervised three-hour monthly visit.
- As
to the medical care provided to the applicant, they submitted that
one doctor and three nurses were employed in the penitentiary. During
her second stay in the penitentiary the applicant had been allowed to
stop work until she herself had asked to work again. She was also
prescribed a liver and vitamin diet and offered fresh cheese and
dairy products. On 4 January 2006 she underwent a qualitative and
quantitative test for chronic hepatitis virus and was informed of the
results. Since 5 May 2005 she had seen the prison doctor on 43
occasions.
- As
to the applicant's right to respect for her correspondence, they
submitted that she had been able to send and receive letters at her
own expense without any limitation. During her stay in the
high-security section she had had to hand over her letters –
opened – while the letters addressed to a legal representative,
State authorities and international organisations for the protection
of human rights had to be handed over sealed. Packages could be sent
any day.
5. Remedies used by the applicant
- It
appears that the applicant complained to the prison authorities, the
Ministry of Justice and the President of Croatia. She did not submit
copies of the letters she had sent to these authorities, stating that
she had not made any. However, she submitted a letter of 5 September
2005 sent to her by the Ministry of Justice, Central Prison
Administration, the relevant part of which read as follows:
“The Ministry of Justice, Central Prison
Administration, has received your complaint of 17 August 2005 in
which you expressed your dissatisfaction with the accommodation
arrangements with other inmates, the approach of the prison
officials, the health care and the manner of using your free time.”
The
applicant's complaints were declared unfounded.
- Furthermore,
the Government submitted a complaint lodged by the applicant in a
letter of 28 September 2005, lodged with the PoZega County Court
judge responsible for the execution of sentences (Zupanijski sud u
PoZegi), alleging, inter alia, that she suffered from
chronic hepatitis and that, on account of her illness, she was not
able to comply with the prison regime. Although the judge held an
interview with the applicant on 19 October 2005, he did not adopt a
formal decision on her complaints. The interview and subsequent
action had concentrated solely on giving advice to the applicant
about applying for a retrial (see paragraph 9 above).
II. RELEVANT NON-CONVENTION MATERIAL
1. Relevant domestic law
- Article
23 of the Croatian Constitution (Ustav Republike Hrvatske)
provides:
“No one shall be subjected to any form of
ill-treatment...”
The
Enforcement of Prison Sentences Act (Zakon o izvršavanju
kazne zatvora, Official Gazette no. 128/1999 of 30 November
1999, and no. 190/2003 of 3 December 2003 (consolidated
text) - “the Act”) came into force on 1 July 2001, and
the provisions concerning the judge responsible for the execution of
sentences came into force six months later, on 1 January 2002. The
relevant provisions of the Act read as follows:
COMPLAINTS
Section 15
“(1) Inmates shall have the right to complain
about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with
a prison governor, a judge responsible for the execution of sentences
or the Head Office of the Prison Administration. Written complaints
addressed to a judge responsible for the execution of sentences or
the Head Office of the Prison Administration shall be submitted in an
envelope which the prison authorities may not open...”
JUDICIAL PROTECTION
AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION
Section 17
“(1) An inmate may file a request for
judicial protection against any acts or decisions unlawfully denying
him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be
decided by the judge responsible for the execution of sentences.”
ACCOMODATION, FURNISHINGS AND NUTRITION
Section 74
“(1) The accommodation of inmates shall
meet the required standards in terms of health, hygiene and space,
including climatic conditions.
(2) Inmates shall as a general rule be
accommodated in separate rooms...
(3) Inmates' rooms shall be clean, dry and of
adequate size. Each inmate shall have at least 4 square metres and 10
cubic metres of space in the room.
(4) Every room ... must have daylight and
artificial light...
(5) Penitentiaries and prisons must be
equipped with sanitary facilities allowing inmates to meet their
physiological needs in clean and adequate conditions, whenever they
wish to do so.
(6) Inmates shall have drinking water at
their disposal at all times.”
Section 77
“1. The penitentiary or prison shall supply the
inmates with underwear, clothes and bed linen appropriate to the
climatic conditions.”
Section 78
“3. Inmates shall be served at least
three meals daily with a caloric value of at least 3,000 kcal per
day. The content and the nutritional value of the food shall be
supervised by a doctor or other medically qualified person.”
HEALTH PROTECTION
Section 103
“(1) Inmates shall be provided with medical
treatment and regular care for their physical and mental health...”
CORRESPONDENCE
Section 124
“(1) Inmates shall have the right to unlimited
correspondence at their own expense.
...
(4) Inmates shall have the right to correspond with
their lawyer, the State authorities or international organisations
for the protection of human rights without any restrictions or
supervision of the content of such letters...”
2. Relevant reports
- The
relevant part of the Report on the Minister of Justice's visit to
PoZega Penitentiary on 7 April 2006, published on the Ministry of
Justice official internet page, reads as follows:
“...Minister of Justice was informed about the
situation in the PoZega Penitentiary by its director Slavko
Orešković. 'Our needs are fairly high as the roof, outer
walls and installations are in need of repair as well as the other
things, for which we would need about two million kunas' said
Orešković.”
- The
relevant part of the Government's Report on the State and Operation
of Prisons, Penitentiaries and Correctional Institutions in 2005
submitted to Parliament on 21 December 2006 (Izvješće
o stanju i radu kaznionica, zatvora i odgojnih zavoda za 2005.
godinu, koji je predsjedniku Hrvatskoga sabora dostavila Vlada
Republike Hrvatske, aktom od 21. prosinca 2006. godine) reads as
follows:
“... state of repair of the buildings of the
Zagreb Prison Hospital and the PoZega Women's Penitentiary is highly
unsatisfactory as regards the mains installations (gas, water,
electricity, canalisation/sewage), construction of buildings (unsafe
static, woodwork falling apart, the state of repair of the roof) ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of her two separate prison
terms.
a.
She complained firstly about the conditions of her stay in PoZega
Penitentiary and the prison hospital from 10 January to 29 August
2003.
b.
Secondly, she complained about the general conditions in PoZega
Penitentiary during her second stay there from May 2005 onwards. She
complained, in particular, about the lack of adequate medical
treatment and necessary medical check-ups for her illness (chronic
hepatitis), the lack of adequate diet in this respect, and the lack
of sufficient opportunity to take necessary rest, due to which she
had lost control over her health condition resulting in feelings of
anxiety, hopelessness and depression. She relied on 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
Government contested the applicant's arguments.
A. Admissibility
1. The applicant's stay in PoZega Penitentiary and the
Zagreb Prison Hospital from 10 January to 29 August 2003
- The
Court notes that the applicant was released on 29 August 2003, and
that her first letter to the Court was sent on 28 April 2004.
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
2. The applicant's stay in PoZega Penitentiary from May
2005 onwards
- The
Government requested the Court to declare this complaint inadmissible
for failure to exhaust domestic remedies. They submitted that, under
sections 15 and 17 of the Enforcement of Prison Sentences Act, the
applicant could have lodged a complaint about the general conditions
of her detention and the alleged lack of adequate medical treatment.
However, she had not lodged such a complaint either with the prison
authorities, the Central Prison Administration, or the judge
responsible for the execution of sentences.
- The
applicant submitted that she had exhausted all remedies available
within the domestic legal system in respect of the alleged
violations.
- The
Court notes that the documents submitted by the parties show that the
Ministry of Justice, Central Prison Administration, in its letter of
5 September 2005 to the applicant, acknowledged that the applicant
had lodged a complaint whereby she expressed dissatisfaction with her
accommodation and the lack of adequate health care (see paragraph 29
above). Furthermore, the Government submitted a copy of the
applicant's complaint lodged with the PoZega County Court judge
responsible for the execution of sentences on 28 September 2005
whereby she expressly complained that she suffered from chronic
hepatitis and that, due to her illness, she was not able to comply
with the prison regime. The Court considers that these documents
clearly show that the applicant used the remedies at her disposal and
thus made the domestic authorities sufficiently aware of her
grievances. However, her complaints remained unanswered since the
judge did not adopt a formal decision on her complaints (see
paragraph 30 above). In these circumstances the applicant could not
make use of the possibility to appeal. Thus, the Government's
objection must be rejected.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other ground. It
must therefore be declared admissible.
B. Merits
1. General principles enshrined in the case-law
- The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of a democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy, judgment of 6 April
2000, Reports of Judgments and Decisions 2000-IV, § 119).
- According to the Court's case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3 of the Convention. The assessment of this minimum level
is relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see,
among other authorities, Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, § 162).
Although the purpose of such treatment is a factor to be taken into
account, in particular the question of whether it was intended to
humiliate or debase the victim, the absence of any such purpose does
not inevitably lead to a finding that there has been no violation of
Article 3 (Peers v. Greece, no. 28524/95, § 74, ECHR
2001-III, and Valašinas v. Lithuania, no. 44558/98, §
101, ECHR 2001-VIII).
- The
Court has consistently stressed that the suffering and humiliation
involved must in any event exceed the inevitable element of suffering
or humiliation connected with a legitimate deprivation of liberty.
Nevertheless, in the light of Article 3 of the Convention, the State
must ensure that a person is detained under conditions which are
compatible with respect for human dignity, that the manner and method
of the execution of the measure do not subject the individual to
distress or hardship exceeding the unavoidable level of suffering
inherent in detention, and that, given the practical demands of
imprisonment, the person's health and well-being are adequately
secured (see Kudła v. Poland [GC], no. 30210/96, §§
92-94, ECHR 2000-XI), with the provision of the requisite medical
assistance and treatment (see, mutatis mutandis, Aerts v.
Belgium, judgment of 30 July 1998, Reports 1998-V, p.
1966, §§ 64 et seq.). When assessing conditions of
detention, account has to be taken of the cumulative effects of these
conditions, as well as the specific allegations made by the applicant
(see Dougoz v. Greece, no. 40907/98, § 46, ECHR
2001-II).
- In exceptional cases, where the state of a detainee's
health is absolutely incompatible with the detention, Article 3 may
require the release of such person under certain conditions (see
Papon v. France (no. 1) (dec.), no. 64666/01, CEDH 2001-VI, and
Priebke v. Italy (dec.), no. 48799/99, 5 April 2001)
There are three particular elements to be considered in relation to
the compatibility of the applicant's health with her stay in
detention: (a) the medical condition of the prisoner, (b) the
adequacy of the medical assistance and care provided in detention and
(c) the advisability of maintaining the detention measure in view of
the state of health of the applicant (see Mouisel v. France,
no. 67263/01, §§ 40-42, ECHR 2002-IX).
- However, Article 3 cannot be construed as laying down
a general obligation to release detainees on health grounds. It
rather imposes an obligation on the State to protect the physical
well-being of persons deprived of their liberty. The Court accepts
that the medical assistance available in prison hospitals may not
always be at the same level as in the best medical institutions for
the general public. Nevertheless, the State must ensure that the
health and well-being of detainees are adequately secured by, among
other things, providing them with the requisite medical assistance
(see Kudła, cited above, § 94, ECHR 2000-XI;
see also Hurtado v. Switzerland, judgment of 28 January 1994,
Series A no. 280-A, opinion of the Commission, pp. 15-16, §
79, and Kalashnikov v. Russia, no. 47095/99, §§ 95
and 100, ECHR 2002-VI). Furthermore, if the authorities decide to
place and maintain a seriously ill person in detention, they shall
demonstrate special care in guaranteeing such conditions of detention
that correspond to his special needs resulting from his disability (
see Farbtuhs v. Latvia, no. 4672/02, § 56,
2 December 2004)
2. Scope of the issues for consideration
- The
Court notes that the applicant's complaints under Article 3 of the
Convention mainly concern two issues:
- first,
whether the conditions of the applicant's detention were compatible
with that provision; and
- second,
whether the applicant was provided with the necessary medical
treatment and assistance.
The
Court has, however, examined these issues together.
a. The parties' submissions
- The
Government did not comment on all of the applicant's complaints under
Article 3 of the Convention. Instead, they commented only on a few
issues she raised, concentrating mainly on the applicant's attitude
towards her prison sentence and the prison environment (see
paragraphs 25 and 26 above). In particular they submitted that the
penitentiary premises were adequately furnished, ventilated and
clean; the inmates' hygienic needs were satisfactorily ensured; the
time was adequately organised both for working and non-working
inmates; the penitentiary had a library, a fitness hall and computer
equipment; and the applicant was provided with an adequate diet and
medical assistance (see paragraph 27 above).
- In
support of their submissions the Government forwarded to the Court a
number of photographs allegedly taken on the premises of PoZega
Penitentiary on an unspecified date. The photographs depict a
courtyard and inner premises such as the sleeping areas, dining room,
toilets, showers and halls.
- The
applicant maintained her allegations. She claimed that her
description of the conditions of detention was accurate (see
paragraphs 17 and 18 above). She claimed that she received no
adequate medical treatment for her disease and that she had been
subjected to unnecessary hardships incompatible with her state of
health (see paragraphs 19-22 above).
b. The Court's assessment
- The
Government did not appear to dispute that the applicant suffered from
a very serious form of chronic hepatitis – a potentially fatal
disease – and that during her second stay in PoZega
Penitentiary from May 2005 onwards, she had not been seen by a
hepatologist, a specialist for her disease. It is further undisputed
that the only medical assistance provided to the applicant in respect
of her chronic hepatitis was a test done on 4 January 2006 which
confirmed that she had contracted the hepatitis C virus and showed
the number of viruses in her blood.
- The
Court notes that chronic hepatitis is an illness that primarily
attacks the liver and with time can lead to liver cirrhosis, liver
cancer and death. In this connection the Court considers that it is
essential that the applicant undergo an adequate assessment of her
current health state in order to be provided with adequate treatment.
Such an assessment could be obtained from a liver biopsy and relevant
blood tests. However, the applicant has not been provided with
appropriate diagnostic treatment and has been left without relevant
information in respect of her illness, thus keeping her in dark about
her health condition and depriving her of any control over it, which
must have caused her perpetual anguish and fear. In this respect the
Court considers irrelevant the Government's submission that the
applicant had seen a prison doctor on more than fifty occasions since
these visits did not provide the applicant with the medical care and
assistance indispensable for her particular health condition. As a
consequence of the lack of adequate medical examinations, due to
which the exact effect of chronic hepatitis on the applicant's health
has not been established, the applicant cannot have been provided
with proper medical assistance.
- Furthermore,
although chronic hepatitis is associated with constant exhaustion and
reduced physical ability, the applicant has been obliged to line up
every day in the penitentiary's courtyard, irrespective of the
weather conditions. She has also been unable to rest when she has
felt weak without obtaining a special permit from the prison doctor
each time, which explains the large number of visits that the
applicant has made to him. In the Court's view, such additional
hardship placed on the applicant in her present state of health has
been unnecessary and has gone beyond the inevitable element of
suffering or humiliation connected with a legitimate deprivation of
liberty.
- As
to the conditions of detention, the excessive number of persons in
the cell and the lack of proper hygiene, heating or appropriate clean
bedding, plus the general state of repair, the Court has examined
them as a whole on the basis of the applicant's submissions and the
lack of relevant comments from the Government.
- The
Court notes that the Government have sent, in support of their
submissions, some photographs allegedly showing the conditions of
detention in PoZega Penitentiary. Since it is impossible to ascertain
when and in what circumstances these images were created, the Court
does not consider it possible to take them into consideration.
- One
of the characteristics of the applicant's detention that requires
examination is her allegation that the cells were overpopulated. She
submitted that she had been placed in a cell measuring 12 square
metres with five other inmates. The Government have submitted that
the penitentiary was able to accommodate 157 inmates, whereas on 5
October there had been 72 inmates, but as they have not provided any
further details of the applicant's current circumstances they have
failed to refute her allegations. It follows that the applicant has
been confined to a space measuring 2.4 square metres.
- In this connection the Court recalls that the European
Committee for the Prevention of Torture and Inhuman or Degrading
treatment or punishment (CPT) has set 4 sq.m per prisoner as an
appropriate, desirable guideline for a detention cell (see, for
example, the CPT Report on its visit to Latvia in 2002 –
CPT/Inf (2005) 8, § 65). This approach has been confirmed
by the Court's case law. The Court recalls that in the Peers
case a cell of 7 sq. m for two inmates was noted as a relevant aspect
in finding a violation of Article 3, albeit that in that case the
space factor was coupled with an established lack of ventilation and
lighting (see Peers v. Greece, no. 28524/95, §§
70–72, ECHR 2001-III). In the Kalashnikov case the
applicant had been confined to
a space measuring less than 2 sq. m. In that case the Court held that
such a degree of overcrowding raised in itself an issue under Article
3 of the Convention (see Kalashnikov v. Russia, no. 47095/99,
§§ 96–97, ECHR 2002-VI). The Court reached a
similar conclusion in the Labzov case, where the applicant was
afforded less than 1 sq. m of personal space during his 35-day period
of detention (see Labzov v. Russia, no. 62208/00,
§§ 41-49, 16 June 2005), and in the Mayzit
case, where the applicant was afforded less than 2 sq. m during nine
months of his detention (see Mayzit v. Russia, no. 63378/00,
§ 40, 20 January 2005).
- By contrast, in some other cases no violation of
Article 3 was found, as the restricted space in the sleeping
facilities was compensated for by the freedom of movement enjoyed by
the detainees during the day time (see Valašinas, cited
above, §§ 103, 107, and Nurmagomedov v. Russia
(dec.), no. 30138/02, 16 September 2004).
- As regards the question of how many hours per day the
applicant was confined to her cell, the Court observes first that the
applicant's illness requires her to take frequent rests, thus
necessitating her prolonged stay in her cell. Therefore, the actual
prison regime in this respect is of no relevance for the applicant's
situation. The Court also takes note of the applicant's allegations,
uncontested by the Government, that the beds were old and partly
broken, the mattresses were torn and soiled and that another inmate
in the same cell who took heavy sedatives soiled her bed almost every
night, which created an unbearable smell in the cell. In these
circumstances, the Court considers that the lack of space combined
with these additional factors weighs heavily as an aspect to be taken
into account for the purpose of establishing whether the impugned
conditions of detention were “degrading” from the
standpoint of Article 3.
- As
to the sanitary conditions, the Court notes that the Government did
not expressly contest the applicant's allegations that there were
approximately two toilets on average for thirty inmates and that she
had occasionally been sent to take a shower in the basement where the
showers were mouldy and mice, cockroaches, rats and cats were often
running around.
- As
to the general state of repair, the Court notes that the applicant's
allegations that the buildings were old and in a very bad state of
repair, including malfunctioning heating facilities and damaged
roofing which resulted in the prison premises being cold and rain
leaking into them, are corroborated by the Government's Report of 21
December 2006 (see paragraph 33 above).
The
Court considers that these facts demonstrate that the applicant has
been detained in an unsanitary and unsafe environment.
- As
to the Government's contentions regarding the applicant's behaviour
and attitude, the Court reiterates that it does not accept the
argument that the conditions of imprisonment could be determined
according to whether an inmate showed a passive attitude and lacked
initiative to participate in the prison activities, since all inmates
should be afforded prison conditions which are in conformity with
Article 3 of the Convention (see, mutatis mutandis,
Cenbauer v. Croatia, no. 73786/01, § 47,
ECHR 2006-...).
- In
the Court's view, the lack of requisite medical care and assistance
for the applicant's chronic hepatitis coupled with the prison
conditions which the applicant has so far had to endure for more than
two years diminished the applicant's human dignity and aroused in her
feelings of anguish and inferiority capable of humiliating and
debasing her and possibly breaking her physical or moral resistance.
In the light of the above, the Court considers that the nature,
duration and severity of the ill-treatment to which the applicant was
subjected and the cumulative negative effects on her health can
qualify the treatment to which she was subjected as inhuman and
degrading (see Egmez v. Cyprus, no. 30873/96, § 77,
ECHR 2000-XII; Labzov v. Russia, cited above, § 45;
Mayzit v. Russia, cited above, § 42; and Koval v.
Ukraine, no. 65550/01, § 82, 19 October 2006).
- There
has accordingly been a violation of Article 3 of the Convention in
the circumstances of the present case.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained about the opening of all her
correspondence by the prison authorities and about the supervision of
all her telephone calls both during her stay in the Remetinec
Detention Centre and her stay in PoZega Penitentiary. She relied on
Article 8 of the Convention, which 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.”
- The
Government contested that argument and also submitted that the
applicant had not exhausted domestic remedies because she had not
addressed this complaint to the domestic authorities such as the
PoZega Prison administration or the judge responsible for the
execution of sentences.
- The
applicant made no comments on the Government's observations on this
point.
- The
Court notes that the applicant did not address a complaint concerning
the opening of her correspondence and screening of her telephone
conversations to any domestic authority, although under section 15(2)
of the Enforcement of Prison Sentences Act she could have lodged such
a complaint with either a prison governor, a judge responsible for
the execution of sentences or the Head Office of the Prison
Administration.
69. It
follows that in respect of this complaint the applicant has not
exhausted domestic remedies and that therefore this complaint must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 4 of Protocol No. 7 that she
had been convicted twice for the same offence. Lastly, she invoked
Articles 5, 6 and 7 of the Convention, Article 1 of Protocol No. 4
and Article 2 of Protocol No. 7 without further substantiation.
- In
the light of all the material in its possession, and in so far as the
matters complained of were within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of any of the above Articles of the Convention. It
follows that these complaints are inadmissible under Article 35 §
3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 110,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government made no comments in this respect.
- The Court notes that it has found that the applicant's
rights guaranteed by Article 3 of the Convention have been violated.
In particular, it has found that while serving her prison term the
applicant has not received adequate medical treatment and has been
held in unsanitary and unsafe conditions. That fact has indisputably
caused her severe physical and mental suffering over a long period of
time (more than two years). Consequently, ruling on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant EUR 15,000 (fifteen thousand euros) under this
head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant, who was granted legal aid, also asked the Court to award
her the expenses of representation in the proceedings before it in an
amount determined in accordance with the Court's case-law.
- The
Government made no comments in this respect.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
her costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 3,200 in respect of the Convention
proceedings in addition to the amount already granted for legal aid
plus any tax that may be chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of the applicant's detention in PoZega Penitentiary from May 2005
onwards admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts which are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i)
EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary
damage;
(ii) EUR
3,200 (three thousand two hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
