FIFTH SECTION

CASE OF FAGANEL v. SLOVENIA

(Application no. 6687/10)

JUDGMENT

STRASBOURG

6 November 2014

This judgment is final but it may be subject to editorial revision.
In the case of Faganel v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Angelika Nußberger, President,
	Boštjan M. Zupančič,
	Vincent A. de Gaetano, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 14 October 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 6687/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Anže Faganel (“the applicant”), on 18 December 2009.
2.  The applicant was represented by Odvetniška Družba Matoz O.P. D.O.O., a law office practicing in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs N. Pintar Gosenca, State Attorney.
3.  The applicant alleged, in particular, that the conditions of his detention in the remand section of Ljubljana prison amounted to a violation of Articles 3 and 8 of the Convention, and that he had no effective remedy in this regard as required by Article 13 of the Convention.
4.  On 14 November 2013 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1977 and lives in Ljubljana.
6.  The applicant was detained in the closed section of Ljubljana prison from 5 May 2009 to 26 May 2009, in the remand section from 25 August 2009 to 11 February 2010, from 11 March 2011 to 22 March 2011 and from 8 June 2011 to 11 January 2012 and again in the closed section from 24 August 2012 to 4 December 2012.
7.  On 25 August 2009 he was held in cell 90 measuring 18.07 square metres (not including a separate 1.75 square metre sanitary facility), shared with four other detainees and with 3.2 square metres of personal space. From 26 August 2009 to 11 February 2010 he was held in cell 50 measuring 8.07 square metres (not including a separate 1.23 square metre sanitary facility) and cell 52 measuring 8.04 square metres (not including a separate 1.25 square metre sanitary facility), alone with almost 7 square metres of personal space or with another detainee with 3.4 square metres of personal space.
8.  The cell for two detainees, where the applicant was held in the remand section, contained one bunk bed, one bigger and one smaller table, two chairs, two wardrobes and two 89 x 54 cm windows, which detainees could freely open or close.
9.  As regards the general characteristics of the cells in the remand section of Ljubljana prison, material conditions inside the cells and sanitary conditions, see the judgment in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 10 to 23, 20 October 2011.
10.  As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (Mandić and Jović, cited above, § 78). The Government stated that from 9 February 2011 on detainees could spend three hours per day outdoors.
11.  On 18 December 2009 the applicant lodged the application complaining about the prison conditions of his detention from 25 August 2009. In the supplement to his application of 17 September 2013, he complained also about the conditions of his detention from 5 May 2009 to 26 May 2009, from 11 March 2011 to 22 March 2011, from 8 June 2011 to 11 January 2012 and from 24 August 2012 to 4 December 2012.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12.  For the relevant domestic law and practice as well as relevant international documents see Mandić and Jović, cited above, §§ 24-37.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
13.  The applicant complained that the conditions of his detention in the remand section of Ljubljana prison amounted to a violation of Article 3 of the Convention. In particular, he complained of severe overcrowding which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restriction on out-of-cell time and high temperatures in the cells.
14.  He submitted that the situation amounted to a structural problem, and that this had been acknowledged by the domestic authorities.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
15.  The Government submitted that the applicant first lodged the application on 18 December 2009 complaining only about the period of detention which started on 25 August 2009. As he complained about the two other periods of detention from 11 March 2011 to 22 March 2011 and from 8 June 2011 to 11 January 2012 and two other periods of imprisonment from 5 May 2009 to 26 May 2009 and from 24 August 2012 to 4 December 2012 only in the supplement of 17 September 2013, he had failed to comply with the six-month time‑limit laid down in Article 35 § 1 of the Convention and his complaint about these periods should be declared inadmissible.
16.  The applicant did not comment on these allegations.
17.  The Court considers that those separate periods cannot be assessed as a whole (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 129, 22 May 2012).
18.  The complaint in respect of each separate period must therefore comply with the six-month rule. However, the complaints were introduced only on 17 September 2013, whereas the last of the separate periods ended on 4 December 2012. Thus, the applicant’s complaint regarding those periods should be rejected as not complying with the six-month rule within the meaning of Article 35 § 3 (a) of the Convention.
19.  As regards the part of the application regarding the detention from 26 August 2009 to 11 February 2010 for the period where the applicant had almost 7 square metres of personal space, it should be rejected for being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, as the conditions of his detention in which he was held in that period did not attain the level of severity required to fall within the scope of Article 3 of the Convention.
20.  As for the part of the application regarding the detention from 25 August 2009 to 11 February 2010 for the period where the applicant had 3.2 or 3.4 square metres of personal space, the Court finds that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor is it inadmissible on any other grounds. It should therefore be declared admissible.
B.  Merits
21.  The parties relied on the arguments similar to those in the case of Mandić and Jović (cited above, §§ 63-71). The Government further argued that the applicant, when held in a cell for two detainees, had more than 4 square metres of personal space.
22.  The Court refers as regards the relevant principles to paragraphs 72‑76 of its judgment in the case of Mandić and Jović.
23. The Court notes that on 25 August 2009 the applicant had 3.2 square metres of personal space. In the period from 26 August 2009 to 11 February 2010, when he was held in two cells for two detainees, the applicant had 3.4 square metres of personal space when sharing the cell with another detainee, and 6.84 or 6.79 square metres of personal space when held there alone. The Court also notes that the Government did not provide any information indicating the exact number of days the applicant spent in those cells alone. Further, the applicant’s personal space in the cells was reduced by the amount of furniture (see Modarca v. Moldova, no. 14437/05, § 63, 10 May 2007).
24. As regards the detention when the applicant had 3.2 or 3.4 square metres of personal space, the Court notes that while the personal space available to the applicant was slightly larger than the space available to the prisoners in Mandić and Jović, who for most of their detention had 2.7 square metres of personal space, it still fell short of the recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see Mandić and Jović, cited above, §§ 43 and 127). Moreover, the applicant’s situation was further exacerbated by the very limited time which could be spent outside the cell (ibid. § 78).
25.  Having regard to the cumulative effects of the aforementioned conditions of the applicant’s detention, the Court considers that the hardship he endured exceeded the unavoidable level inherent in detention, and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention (see, mutatis mutandis, Szél v. Hungary, no. 30221/06, § 18, 7 June 2011, and Peers v. Greece, no. 28524/95, § 75, ECHR 2001‑III).
26.  The Court therefore finds that the conditions of detention of the applicant when he had 3.2 or 3.4 square metres of personal space were contrary to Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
27.  The applicant complained that his allegations in respect of Article 3 also gave rise to a violation of Article 8 of the Convention.
28.  Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
29.  As already found in Mandić and Jović, the Court notes that in so far as the complaints under Article 8 overlap with those under Article 3 they should be for the same reasons and to the same extent declared admissible. However, in view of the applicant’s submissions and having regard to the finding relating to Article 3, the Court considers that no separate issue arises under Article 8 in this regard (see Orchowski v. Poland, no. 17885/04, § 198, ECHR 2009‑... (extracts)).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
30.  The applicant complained that owing to the systemic nature of the inadequate prison conditions he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention. In any event, there is no evidence that the remedies which were available in theory could work effectively in practice when it came to prison conditions and the treatment of detainees. He cited Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A.  Admissibility
31.  As already found by the Court in Mandić and Jović the complaint under Article 13 of the Convention about the lack of effective remedies in respect of inadequate physical conditions of detention in the remand section, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
32.  Relying on the same arguments as in the case of Bizjak v. Slovenia (dec.), no. 25516/12, §§ 17-22, 8 July 2014, the Government argued that the applicant had an effective remedy at his disposal, a claim for compensation under Article 179 of the Civil Code, which he had failed to use.
 33.  The Court recalls that in the case of Bizjak it found that a remedy existed in respect of prison conditions where an alleged violation no longer continues. The question therefore arises whether the findings in that case can be transposed to the present one. First, at the time of lodging of his application the applicant was still in detention. Later, he was held in Ljubljana prison three more times and was released in March 2011, January 2012 and December 2012. Throughout all this period the case-law, that none of the remedies relied on by the Government could be regarded with a sufficient degree of certainty as constituting an effective remedy for the applicants, was still as set out in the case of Mandić and Jović (§§ 106‑20) and the decision in the case of Bizjak was given only in July 2014. There appear to be no reasons to reach a different conclusion in the present case from the case of Mandić and Jović. The Court therefore finds that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34.  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
35.  The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.
36.  The Government contested the claim.
37.  The Court awards the applicant EUR 2500 in respect of non-pecuniary damage.
B.  Costs and expenses
38.  The applicant also claimed EUR 1,520.00 for costs and expenses incurred before the Court. This sum consisted of EUR 1,500 in lawyer’s fees, which he claimed were calculated on the basis of statutory domestic rates, EUR 20 for material expenses and the tax thereon.
39.  The Government argued that this claim was excessive. They also argued that the Court should take into account the fact that the applicant’s representative was representing a number of other applicants before the Court and had submitted almost identical pleadings in all these cases.
40.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. With regard to an applicant’s Convention costs, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many other authorities, Gaspari v. Slovenia, no. 21055/03, § 83, 21 July 2009, and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV). In the present case, regard being had to the information in its possession and in particular the fact that the law firm representing the applicant has already been reimbursed in other cases for preparation of submissions almost identical to the present one (see Mandić and Jović, cited above, §§ 133-35, Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 146-48, 20 October 2011 and Praznik v. Slovenia, no. 6234/10, §§ 38-40, 28 June 2012), the Court considers it reasonable to award the sum of EUR 500 to cover the costs of the proceedings before the Court.
C.  Default interest
41.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaint concerning the conditions of detention on 25 August 2009 and detention from 26 August 2009 to 11 February 2010 when the applicant had 3.2 or 3.4 square metres of personal space under Articles 3 and 8 of the Convention, as well as the complaint under Article 13 of the Convention relating to the complaint concerning the conditions of detention in that period, admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds that there is no need to examine the complaint under Article 8 of the Convention;

4.  Holds that there has been a violation of Article 13 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts:
(i)  EUR 2500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Angelika Nußberger 	Deputy Registrar	President