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FIRST
SECTION
DECISION
Application no.
29597/10
Zdravko BUČKAL
against Croatia
The
European Court of Human Rights (First Section), sitting on
3 April 2012 as a Chamber composed of:
Anatoly
Kovler, President,
Nina
Vajić,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque, judges,
and
Søren Nielsen, Section
Registrar,
Having
regard to the above application lodged on 6 May 2010,
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 Zdravko Bučkal, is a Croatian national who was
born in 1968 and is currently serving a prison term in Lepoglava
State Prison. The Croatian Government (“the Government”)
were represented by their Agent, Ms Š. StaZnik.
- The
facts of the case as submitted by the parties may be summarised as
follows.
The circumstances of the case
- On
an unspecified date criminal proceedings were instituted against the
applicant on charges of theft. He was detained in the Zagreb Prison
Hospital (Bolnica za osobe lišene slobode; hereinafter
“the ZPH”) in the period between 28 September 2009 and 27
November 2009 when he was transferred to the Zagreb Prison (Zatvor
u Zagrebu). On 29 December 2009, following several convictions
for theft, the applicant was transferred to the Lepoglava State
Prison (Kaznionica u Lepoglavi; hereinafter: the “LSP”)
where he is serving his prison term and is expected to remain until
30 April 2013.
1. The applicant’s stay in the Zagreb Prison
Hospital
- In
the period between 28 September 2009 and 27 November 2009 the
applicant was placed in the ZPH, in a room measuring 21 square
metres, with five other inmates.
- According
to the applicant, there were no sanitary facilities in the room and
it was locked during the night. For that reason, to urinate at night
the inmates had to use a plastic bottle. When they needed to defecate
at night they had to ring for a guard to be able to go to the toilet.
However, the guards would not always answer these calls and then the
inmates had to use a plastic bag, in full view of the other inmates
in the same room. These bags of faeces were then thrown out of the
window.
According
to the Government, the sanitary conditions in the ZPH were good. The
room where the applicant was accommodated did not have sanitary
facilities but whenever an inmate had a need for personal hygiene he
was able to call the security guards, who then escorted him to the
sanitary facilities. Other general conditions of the accommodation
were also good. The room had windows which provided fresh air and
natural light; the inmates were served regular meals and they had the
opportunity to walk around in the hospital hallways and in the fresh
air for two hours during the day.
2. The applicant’s stay in Lepoglava State Prison
- On
29 December 2009 the applicant was transferred to the LSP, where he
has been an inmate ever since. He was first placed in a cell
measuring 16 square metres, with six other inmates, where he remained
until 1 February 2010, when he was transferred to another cell,
measuring 33 square metres, with eleven other inmates.
- On
16 June 2010 the applicant complained to the sentence-execution judge
of the VaraZdin County Court (Zupanijski sud u VaraZdinu)
about the conditions of his detention in the LSP. He alleged that his
cell was inadequate and contrary to the guarantees offered by the
Enforcement of Prison Sentences Act.
- On
15 March 2011 the sentence-execution judge of the VaraZdin County
Court found that the conditions of the applicant’s detention in
the LSP were inadequate as regards the individual space offered to
the applicant in a cell measuring 33 square metres and accommodating
twelve inmates, and ordered the LSP to take the necessary measures to
remedy the situation.
- On
an unspecified date in March 2011 the LSP lodged an appeal against
that decision with a three-judge panel of the VaraZdin County Court.
- On
19 March 2011 a three-judge panel of the VaraZdin County Court
dismissed the LSP’s appeal and upheld the decision of the
sentence-execution judge.
- On
13 April 2011 the LSP authorities offered the applicant a move to
another cell. The applicant informed a security guard that he did not
want to move from his current cell. He also provided a handwritten
statement in which he reiterated that he did not want to leave his
cell, because it had never been locked and he was satisfied with the
accommodation there. He asked to be placed in a semi-open prison
regime, which was refused.
Relevant domestic law and practice
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
PRISON ADMINISTRATIONS
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 a 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 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, ensure effective protection of the rights
and interests of the prisoner concerned. ... The judge shall allow
the parties to submit observations about the facts [presented by] and
allegations put forward by the opponent, and to present new facts and
call for evidence.
(3) Parties to 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 ...”
COMPLAINT
- The
applicant complained under Article 3 of the Convention about the
conditions of his detention, both in the Zagreb Prison Hospital and
in the LSP.
THE LAW
- The
applicant made dual complaints, about the conditions in the Zagreb
Prison Hospital where he was placed between 28 September and
27 November 2009, as well as his conditions in the LSP where he
has been an inmate since 29 December 2009. He relied on Article 3 of
the Convention, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The complaint concerning the conditions in the
Zagreb Prison Hospital
1. The parties’ arguments
- The
Government argued that the applicant had not exhausted domestic
remedies, since he had failed to use any of the remedies available in
the domestic legal system. The Government particularly emphasised
that the applicant had failed to bring his complaints before the
Constitutional Court, although he had been able to do so under the
domestic law.
- The
applicant made no comments in this respect.
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 to 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 (see Šimunovski v. Croatia
(dec.), no. 42550/08, 21 June 2011, Srbić v. Croatia
(dec.), no. 4464/09, 21 June 2011, Peša v.
Croatia, no. 40523/08, §§ 78-80, 8 April 2010, and
Šebalj v. Croatia, no. 4429/09, §§
173-177, 28 June 2011).
- 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 (see Šimunovski,
cited above; Srbić, cited above; and Šebalj v.
Croatia, cited above, § 177).
- The
Court notes that the applicant never complained about the conditions
of his detention in the Zagreb Prison Hospital before any of the
competent domestic authorities, including to a sentence-execution
judge of the relevant county court, although he was able to do so
under the domestic law.
- Therefore
the Court notes that the applicant failed to comply with the
principle of subsidiarity before bringing his complaint to the Court.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
B. The complaint concerning the applicant’s
conditions in Lepoglava State Prison
1. The parties’ arguments
- The
Government argued that the applicant had lost his victim status in
that the sentence-execution judge of the VaraZdin County Court had
found a violation in respect of the conditions of the applicant’s
detention and ordered the LSP to remedy the situation. However, when
the LSP authorities had offered the applicant accommodation in
another cell he had expressly refused to move. The Government also
argued that the applicant had failed to exhaust all domestic legal
remedies, since he had not lodged a constitutional complaint before
the Constitutional Court.
- The
applicant made no comments in this respect.
2. The Court’s assessment
- The
Court notes that the applicant made use of remedies available in the
domestic legal system by lodging a complaint with the
sentence-execution judge of the VaraZdin County Court. This remedy
was successful, since the sentence-execution judge found a violation
of his right for an appropriate accommodation in detention and
ordered the LSP to take necessary measures to remedy the situation.
- However,
when the LSP authorities, in execution of the order of the
sentence-execution judge, offered the applicant a move to another
cell, the applicant expressly waived that right, noting that he was
satisfied with his accommodation. He also asked to be placed in a
semi-open prison regime, which was refused. In this connection the
Court considers that the protection afforded under Article 3 of the
Convention cannot be understood to guarantee placement in a specific
prison regime, save on medical or other strong grounds, the existence
of which the applicant failed to demonstrate either before the
national authorities or before the Court.
- In
these circumstances, the Court considers that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Anatoly Kovler
Registrar President
