CASE OF MANDIĆ AND JOVIĆ v. SLOVENIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
6. The applicants were born in 1959 and 1963 and live in Ljubljana and Trbovlje respectively. 7. The applicants were detained in Ljubljana prison pending their trial. Mr Mandić was detained in the period between 10 July 2009 and 2 February 2010 and Mr Jović in the period between 5 June 2009 and 13 January 2010. 8. Ljubljana prison is the third largest prison in Slovenia. It holds sentenced prisoners, remand prisoners and prisoners in administrative detention. It has an official capacity of 128 inmates, which includes 55 places designated for prisoners on remand, who by law must be held in a separate section of the prison. In principle there are two types of cells in which the prisoners are held. Small cells measuring about 7.5 square metres (8.8 square metres including the sanitary annex) and normally containing two sleeping places, and large cells measuring 16.28 square metres (18 square metres including the sanitary annex) and normally containing six sleeping places. The windows of the cells face either west or east. Remand prisoners are held on the ground floor, which contains sixteen small and five large cells, and on the first floor, which has fourteen cells, including three small and eleven large cells. On the second floor, which contains fifteen cells, thirteen of which are large cells, both remand prisoners and sentenced prisoners are held. In the loft, which contains fourteen large cells, only sentenced prisoners seem to be held. 9. According to the Government, plans for constructing the new prison to replace Ljubljana prison were in progress. However, completion depended on financial resources and no definite date could be given. 10. The applicants were both detained in cell no. 100, which was situated on the first floor. 11. The cell, with a ceiling 2.88 metres high, measured 16.28 square metres. It was equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. The cell had four windows measuring 91x57 centimetres each, which the prisoners were free to open and close. According to the applicants, six prisoners were held in the cell in the period of their detention. The Government, however, submitted that the number varied between five and six. 12. The cell had no artificial ventilation. It was aired by opening the windows and, also, opening the doors in the summer when the detainees were out. During the summer, the detainees were also allowed to bring in ventilators, but they rarely did so. The cell was also equipped with a functioning radiator, which the detainees were free to regulate. 13. The applicants were allowed to bring in a small TV or, with the approval of the prison governor, radios or other electronic devices. In addition, they could borrow books from the prison library and read them in their cells. 14. According to the data provided by the Government, the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 was approximately 28 oC, exceeding 30 oC on seven days. 15. The applicants received their meals in their cell. 16. A sanitary annex, measuring 1.72 square metres, was attached to cell no. 100. It was a room with floor-to-ceiling walls and a door, equipped with one basin with warm and cold water, a toilet, a drain and a mirror. It had a functioning artificial ventilation system. 17. The applicants had access to the shower room situated on the same floor and containing five showers with partitions. According to the Government, the applicants could use the shower for ten minutes every day in accordance with the daily schedule. 18. Detergents and products for personal hygiene were distributed to the detainees on a weekly basis. Their bed linen was washed once a week and they were given a clean blanket on arrival at the prison. Regular everyday cleaning and thorough weekly cleaning was carried out by the prisoners under the supervision of the prison staff. 19. In the remand section of the prison the cells were locked throughout the day. The applicants could leave the cell only for scheduled activities, such as visits, phone calls, exercising, cleaning, etc. 20. According to the information supplied by the Government, the applicants were allowed to spend by average two hours and a half out of their cell per day. In particular, they could spend two hours per day in the outside yard, which measured 610 square metres and was not covered by any roof. It was usually used by less than 30 prisoners at a time. In addition, they could use a recreation room, measuring around 17 square metres, twice a week for one hour and also for one hour every third Sunday. This room was equipped with two benches, two exercise mats and some weights. The room had natural light. It was usually used by four prisoners simultaneously. 21. A medical office operated in the prison subject to the general regime of the national health-care system. It was open for six hours, three times a week. A dental-care office was open once a week for six hours. A psychiatric clinic was open twice a week for half a day. The prison also employed two psychologists. All detainees underwent a medical examination upon their arrival. Detainees who were using intravenous drugs received vaccinations against hepatitis B following the standard protocol used in such cases. 22. The prison provided the detainees with the possibility to undergo testing for hepatitis B and C and HIV. In 2009 107 detainees were tested. Five were diagnosed with Hepatitis C; other tests were negative, but one person was diagnosed with TBC. 23. According to the prison records, none of the applicants required special medical treatment. Mr Mandić, however, visited the medical office sixteen times, including three visits to a psychiatrist. He also received dental care. Mr Jović only underwent a general medical examination upon arrival at the prison. 24. Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows: “No one may be subjected to torture, or inhuman or degrading punishment or treatment. ...” 25. The Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/1994 with amendments) regulates, inter alia, the right of a remand prisoner to a two-hour recreation in the open air and the regime of visits, correspondence and other contact with the outside world. It reads, in the relevant part, as follows: “(1) A remand prisoner shall have the right to an uninterrupted rest of eight hours within twenty-four hours. In addition to the above he must be given at least a twohour recreation in the open air every day. ...” “(1) With the authorisation of the investigating judge who is conducting the investigation and under his supervision, ..., within the limits of the Prison Rules, a remand prisoner may be visited by his close relatives and, upon his/her request, also by doctors and others. Certain visits may be prohibited if they might be to the detriment of the [criminal] proceedings. ... (4) A remand prisoner may have correspondence with other persons outside prison. If required ... the investigating judge ... may order the verification of items of correspondence ...” 26. The Regulation on the Execution of Remand (Pravilnik o izvrševanju pripora, Official Gazette no. 36/1999 with amendments) regulates the treatment of remand prisoners in more detail. 27. Section 2 lays down rules for the allocation of remand prisoners. It states that a person whose detention on remand is ordered by the Ljubljana or Kranj District Court should be placed in Ljubljana prison. Until 27 February 2009, when the Regulation was amended (Official Gazette no. 16/09), it had provided that if the prison in which the remand prisoner was to be placed under the aforementioned rule was overcrowded, the court could order the placement of the remand prisoner in another facility with available space. The prison governors were then under obligation to send information concerning occupancy levels to the presidents of Slovenia’s district courts. 28. Other relevant provisions of the Regulation on the Execution of Remand read as follows: “... (2) Sleeping quarters of remand prisoners may be single or shared, with up to four beds, exceptionally more if so required because of the lack of space in a prison.” “(1) Within 48 hours of admittance to prison, every remand prisoner shall be examined by a doctor... (2) If, upon the admittance of a remand prisoner, there is a reasonable suspicion that he is physically injured or has a contagious disease, he must immediately be examined by a prison doctor.” “(1) A remand prisoner who is taken ill or injured shall be given medical assistance in a prison health clinic. (2) If a remand prisoner needs to undergo medical treatment in a medical institution outside the prison, such treatment shall be ordered by a competent court on the proposal of a prison doctor. ...” “(1) As a rule, close relatives may visit a remand prisoner once a week. (2) The Prison Rules may provide for more frequent visits by close relatives, but not more than three visits a week. ... (4) At the request of a remand prisoner, the competent court may allow visits by other persons as well. ...” “To contact persons outside the prison, a remand prisoner may use a prison telephone at his own expense. The Prison Rules shall lay down the times when calls may be made and their duration. ...” 29. The Rules concerning Remand Prisoners in Ljubljana Prison (Hišni red o izvrševanju pripora v zavodu za prestajnje zapora Ljubljana, adopted on 1 January 2005) regulate the regime in the remand section of the prison in more detail. They provide, in so far as relevant: “(1) As a rule, cells occupied by remand prisoners are kept locked ... ...” “(1) Remand prisoners shall spend time in the open air in the recreation yard in accordance with the daily schedule. The time spent in the open air shall be organised in groups and shall be in two parts, with each group spending one hour in the morning and one hour in the afternoon in the open air. Sports and recreational activities may be practised in the recreation yard. (2) The prison shall provide an opportunity for remand prisoners to use the recreation room three times a week, in accordance with the daily schedule.” “Remand prisoners shall shower in shared bathrooms every day.” “(1) All meals shall be served to remand prisoners in their cells in accordance with the daily schedule. ... ...” “(1) Visits to remand prisoners shall take place on days and at times determined in the daily schedule. (2) Remand prisoners who receive visits from close family members very rarely because they live a long way away may request an extension of the period allowed for visits and also a change of the day assigned for visits, which shall be permitted by the prison governor, who shall also take into consideration the space available in the prison.” “(1) Remand prisoners shall be allowed to make telephone calls in telephone booths located in the remand section of the prison. Remand prisoners may call people outside the prison twice a week. The timetable for telephone calls by remand prisoners is determined in the daily schedule. Remand prisoners shall be allowed to use telephone for at least 10 minutes. Requests to make telephone calls shall be made to a guard during the morning roll-call.” ...” 30. The Daily Schedule (dnevni red) is annexed to the rules and determines the timetable of activities in the remand section of the prison. 31. Since 1 January 2009, the Health Care and Health Insurance Act (Zakon o zdravstvenem varstvu in zdravstvenem zavarovanju, Official Gazette no. 9/1992 with amendments) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system. They can exercise their rights under the Act with certain exceptions. For example, they cannot choose their own general practitioner but are, as regards general health care, limited to the medical service provided in the prison establishment. However, the prisoners are also entitled to medical services for which other insured persons have to pay a supplementary insurance. 32. The relevant provisions of the Criminal Procedure Act read as follows: “... (3) For the purpose of guaranteeing safety, order and discipline or the successful and economical conduct of criminal proceedings, the competent court may transfer a remand prisoner from one prison to another at the proposal of the governor of the prison in which the remand prisoner is placed.” “(1) The indictment shall be served on an accused person who is at liberty without delay; if the person is on remand it shall be served within 24 hours following its receipt. (2) If detention is ordered for the accused person by a decision of the panel (Section 212) the accused person shall, at the time of imprisonment, be served an indictment together with a decision ordering detention. (3) If an accused person who has been deprived of liberty is not in any of the prisons in the territory of the court at which the main hearing should be held, the president of the panel shall order the accused person to be brought immediately to such a prison, where he shall be served the indictment.” 33. The relevant provisions of the Regulation on the Execution of Remand provide: “An accused person whose detention has been ordered shall be transferred by the prison governor on the basis of an order issued by the president of the panel referred to in the third paragraph of Section 273 of the ZKP. In the prison located in the territory of the court where the main hearing will be held, the remand prisoner shall be placed in a cell for remand prisoners. In the prison referred to in the preceding paragraph, a protected person must be separated from other remand prisoners and sentenced prisoners in accordance with the instructions of the unit.” “For the purpose of guaranteeing safety, order and discipline, for reasons of overcrowding or to secure the successful and economical conduct of criminal proceedings, a remand prisoner may be transferred from one prison to another. The transfer may be temporary or for the whole duration of the detention. The competent court shall decide on the said transfer at the proposal of the prison governor. The written proposal referred to in the preceding paragraph shall contain the reasons for the transfer. The competent court shall decide on the proposal by an order which shall be served on the remand prisoner, the prison in which the remand prisoner is on remand and the prison to which the remand prisoner has been transferred. ...” 34. The Administrative Disputes Act (Zakon o upravnem sporu, Official Gazette no. 105/2006 with amendments) provides in so far as relevant: “(1) In an administrative dispute the court shall also decide on the legality of individual acts and actions by which the authorities infringe the human rights and fundamental freedoms of an individual if no other judicial protection is provided. (2) If actions of public authorities are challenged in an administrative dispute, the provisions of this Act referring to the challenging of an administrative act shall apply.” “... (3) For the reasons referred to in the preceding paragraph, the plaintiff may also request the issue of an interim order for the provisional regulation of the situation with regard to the disputed legal relationship, if such regulation, in particular in still existing legal relationships, proves necessary. (4) The interim order referred to in the preceding paragraphs shall be issued by the court competent for the decision on the dispute (5) The court shall decide on the request for the issue of an interim order within 7 (seven) days following the receipt of the request... (6) The parties may lodge an appeal against the decision referred to in the preceding paragraph within 3 (three) days. The appeal shall not stay the execution of the issued interim order. The competent court shall decide on the appeal against the decision without delay, but no later than 15 days after receiving the appeal.” “... (2) A claim may be filed against the violation of human rights and fundamental freedoms under this Act seeking: – to annul, issue or amend an individual act, – to declare that an action infringed a human right or fundamental freedom of the plaintiff, – to prohibit further action, – to undo the consequences of an action.” “(1) In the administrative dispute referred to in the first paragraph of section 4 of the Act the court may establish the illegality of an act or action, prohibit the continuation of an individual action, decide on the plaintiff’s request for compensation for damage and order whatever is necessary to eliminate the infringement of human rights and fundamental freedoms and restore lawfulness. (2) The court shall decide without delay on putting an end to the continuation of actions, and on measures aimed at restoring lawfulness if an unlawful action is still ongoing; an appeal is admissible against the decision within three days. The Supreme Court shall adjudicate on the appeal within 3 (three) days following its receipt. (3) If the court cannot decide without delay in the case referred to in the preceding paragraph, it may issue an interim order of its own motion in accordance with section 32 of this Act.” 35. According to the Constitutional Court’s decision of 2 April 2009 (no. Up-1618/08), the conditions for admission of a claim to an Administrative Court on the basis of the first paragraph of section 4 of the Administrative Disputes Act are as follows: it must allege a violation of a human right or fundamental freedom; there must be a causal link between the violation and the action of the state body; the result of the action must be unlawful hindrance or limitation of the enjoyment of the human right or fundamental freedom or the prevention of such an enjoyment; there should be no other judicial protection available; and the victim must lodge an action for protection from such unlawful action (ibid., §7). 36. The relevant parts of the Civil Code (Obligacijski zakonik, Official Gazette, no. 83/2001 with amendments) read as follows: “(1) Every person shall have the right to request the court or any other competent authority to order the termination of an action infringing the integrity of the human personality, private and family life, or any other personal right, to prevent such action or remedy its consequences. (2) The court or another competent authority may order that the offender terminate his or her action, failing which he or she may be obliged to pay the injured party a certain amount assessed in total or with regard to a unit of time.” “(1) For physical pain endured, for psychological anguish resulting from a general loss of the ability to perform life functions, disfigurement, defamation (injuring a person’s good name and reputation), or infringement of personal freedom or personal rights, or for the death of a next-of-kin, and for fear experienced, the injured party may, if it is established that the circumstances of a case, and in particular the degree of pain and fear and their duration, justify it, be awarded just monetary compensation irrespective of any compensation for material damage, and even if there is no material damage. (2) The amount of compensation for non-pecuniary damage shall depend on the importance of what was at stake and the objective of such compensation; it should, however, not nurture aspirations that are not consistent with its nature and objective.” 37. Section 213.d of the Criminal Procedure Act provides: “(1) Supervision of the treatment of remand prisoners is carried out by the president of a district court. (2) The president of the court or any other judge appointed by the president must visit the remand prisoners at least once per week and must, in the absence of prison guards if necessary, ask them about their treatment. He is required to take the necessary steps to resolve any irregularities observed during the visit. The judge appointed should not be the investigating judge. (3) A president of a court and an investigating judge may visit a remand prisoner at any time, talk to him and hear complaints. “ 38. The relevant extracts from the 2nd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.” 39. The CPT’s 7th General Report (CPT/Inf (97) 10) contains the following passage: “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” 40. The CPT’s 11th General Report (CPT/Inf (2001) 16) provides: “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large-capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.” 41. The CPT visited Ljubljana prison in 1995 and 2001. During its most recent visit in 2006 the CPT visited the remand section of Ljubljana prison. 42. In 1995 the number of prisoners held in the prison was 188 prisoners, which is significantly lower than it is currently (see document CPT/Inf (96) 18). Following the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36): “ii. Ljubljana prison 59. ... the CPT reiterates its recommendation that efforts be made to reduce to a maximum of four the number of prisoners held in the cells measuring 18 m², and to accommodate only one prisoner in each cell measuring 8 m².” 43. Following the visit in 2006, the following observations were made to the Slovenian authorities in respect of the remand section of Ljubljana prison (CPT/Inf (2008) 7): “48. The objective of the 2006 follow-up visit to the Ljubljana Prison was to examine measures taken by the Slovenian authorities aimed to implement the CPT’s recommendations with respect to remand prisoners. It should be stated from the outset that the CPT is concerned by the lack of progress as regards remand prisoners’ conditions of detention. 49. With an official capacity of 73, the remand section of the Ljubljana prison was accommodating 123 persons (including three juveniles) at the time of the visit [the whole establishment was accommodating 238 prisoners (with an official capacity of 128)]. Prisoners continued to be accommodated under cramped conditions, with generally five persons in 18 m² cells and two persons in cells measuring 8 m² (including the sanitary annexe). Naturally, this situation had negative repercussions for all aspects of life, both for prisoners and staff. The CPT calls upon the Slovenian authorities to implement its long-standing recommendation to reduce cell occupancy rates at Ljubljana prison. Cells measuring 18 m² should not accommodate more than four prisoners, and the 8 m² cells should preferably not accommodate more than one prisoner. ... 50. At the time of the 1995 and 2001 visits, Ljubljana prison was not in a position to offer remand prisoners anything which remotely resembled a programme of activities. Apart from two hours of daily outdoor exercise and access to a recreation room twice a week, the vast majority of those prisoners spent up to 22 hours a day confined to cramped cells, their only distraction being watching television, listening to the radio or reading books or newspapers. Regrettably, the situation observed in 2006 was hardly any different. The only positive developments concerned increased access to the recreation room (one-hour sessions three times a week) and the installation of a table tennis table in the exercise yard. Only five prisoners were provided with work and two had access to education. The CPT reiterates its recommendation that the Slovenian authorities intensify their efforts to develop a programme of activities for remand prisoners at Ljubljana prison. As stressed by the Committee in previous visit reports, the aim should be to ensure that those prisoners are able to spend a reasonable part of the day outside their cells engaged in purposeful activities of a varied nature (work; education; sport; recreation/association) ... ... 86. In respect of remand prisoners, the CPT is pleased that the Slovenian authorities have implemented its recommendation made in the 2001 visit report, enabling remand prisoners to receive open visits from their relatives (e.g. without a glass partition). However, material conditions in the visiting facilities at Ljubljana prison remained unsatisfactory; especially, they offered little privacy to inmates and visitors and were insufficient for the number of prisoners held. ... 88. At all the establishments visited, sentenced prisoners had adequate access to telephones. The situation was less favourable in respect of remand prisoners. Although entitled to a 10-minute conversation every week, a number of them complained that their calls were in practice shorter. The CPT reiterates the recommendation made in the 2001 visit report (paragraph 93, CPT/Inf (2002) 36) that the Slovenian authorities seek ways of improving opportunities for telephone contact for remand prisoners.” 44. According to the Annual reports issued by the Administration for the Execution of Penal Sentences, the remand section of Ljubljana prison held on average 148 remand prisoners in 2009 (2009 Report, 9. 31) and 139 remand prisoners in 2010 (2010 Report, p. 31). 45. In the chapter concerning the living conditions in Slovenian prisons, the reports include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals, which is 9 square metres for a single occupancy cell and 7 square metres per person in a shared cell. According to the 2009 and 2010 reports nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. The Ljubljana prison was the most overcrowded prison in Slovenia in 2009 and 2010. With an official capacity of 128 prisoners, it held 261 and 245 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 204 and 191 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 200 and 196 percent respectively (p. 98). These figures include both sentenced and remand prisoners. 46. The 2010 Report noted that in respect of Ljubljana prison the maximum number of prisoners allowed was set at 245; if this number was exceeded the prison administration was required to institute a transfer procedure (p. 100). The report also noted (p. 100): “... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia, Dob, Ljubljana and Maribor. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman the CPT and other institutions. ... It is understandable that such living conditions adversely affect prisoners’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners’ rights (work, exercise and recreation, religious ceremonies). In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem ...” 47. On 17 and 18 February 2009 the Human Rights Ombudsman conducted a visit to Ljubljana prison in her capacity as a “national preventive mechanism” under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“the Optional Protocol”). The report published following the visit reads as follows: “Official capacity is still 128 prisoners. This includes 55 places designated for prisoners on remand, 65 places for sentenced prisoners and 8 places for prisoners in administrative detention. On the day of the visit, the prison held 254 prisoners (126 prisoners on remand, 126 sentenced prisoners and two prisoners in administrative detention). The official capacity was therefore exceeded by 98%. ... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... The Ministry has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison, the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ... We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ... ... In the light of the critical overcrowding and all the consequences which relate to it, we consider the conditions unacceptable. The prison still does not have a special drug-free unit. ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit. The administration estimated that about 50% of the prison population have drugrelated problems. ... Smoking is allowed only in the cells, whereas the prison does not have permanent smoking or non-smoking cells. Efforts are made to separate the smoking and nonsmoking prisoners, but due to overcrowding this is often very difficult or impossible. ... Prisoners on remand are locked in their cells for on average more than 21 hours a day. The only everyday activity outside cells is exercise in the small internal courtyard ... However, a roof has still not been constructed to allow the use of the courtyard in bad weather as well. This has not been improved due to lack of financial means. Other activities which allow remand prisoners to spend time out of their cells include fitness (twice a week), visits (one hour per week), use of telephone (ten minutes twice a week), short visits to the prison shop (three times a week) and showering (ten minutes per day). The remand prisoners are also allowed to participate in general cleaning on Saturdays, which is welcomed, but insufficient. Our request to allow remand prisoners to spend more time out of their cells was rejected by the prison administration with the explanation that special conditions do not in principle allow for this. ...” 48. In her report concerning her activities under the Optional Protocol in 2009, the Human Rights Ombudsman also noted: “The problem of overcrowding in prisons is one of the most critical and complex problems in the area of enforcing criminal sanctions, especially when it comes to detention on remand. It seems that virtually everything that was possible was done to resolve this problem, by means of the reasonable transfer of prisoners between prisons or their departments. ... A critical point has obviously been reached when it will be necessary to consider more systemic solutions if the country is to meet its [domestic and international] obligations at all ... ... With regard to remand detainees a presumption of innocence applies and therefore it is wrong that they serve the measure imposed in an even worse situation than sentenced persons who are serving a prison sentence. In addition to poor material conditions, the overcrowding has an impact on several other aspects of serving and executing detention (problems with organising activities, access to showers, providing an escort outside the institution when necessary, etc.).” 49. As regards the temperatures in the cells, the following was noted in the 2007 Annual report of the Human Rights Ombudsman: “... During the visit to Ljubljana prison the official capacity was exceeded by almost 95 percent ... At the time of the visit it was ... typically summer weather, therefore the air in the cells was hot and humid. On the third day of the visit (19 July 2007) we measured, at around noon, 31.9 degrees Celsius in some cells. By using their own ventilators and by means of putting shades on the windows, the prisoners tried to lessen the effect of the scorching ... heat, as their rooms were locked and the air could not circulate. We considered that the living conditions, as observed by us during the summer, were inhuman.”