CASE OF MURŠIĆ v. CROATIA
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1987 and lives in Kuršanec. 6. By a judgment of the Čakovec County Court (Županijski sud u Čakovcu) of 19 June 2008, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 3 February 2009, the applicant was sentenced to two years’ imprisonment for robbery. 7. On 2 July 2010 the Čakovec Municipal Court (Općinski sud u Čakovcu) sentenced him to one year’s imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010. 8. Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account the above two convictions and sentenced him to a single sentence of two years and eleven months’ imprisonment. 9. On 16 October 2009 the applicant was transferred from Turopolje State Prison (Kaznionica u Turopolju) to Bjelovar Prison (Zatvor u Bjelovaru) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 6 above). 10. He remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin Prison (Zatvor u Varaždinu) following a decision by the Ministry of Justice Prisons Administration (Ministarstvo pravosuđa, Uprava za zatvorski sustav) on 11 March 2011. 11. According to the applicant, he spent eleven months with seven other inmates in a cell measuring 18 square metres including the sanitary facilities. The cell was badly maintained, dirty and insufficiently equipped with enough lockers and chairs for all inmates. Moreover, he was not given any opportunity to engage in prison work, and in general was not provided sufficient access to recreational and educational activities. 12. According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 square metres of personal space. He was detained in four different cells, the conditions of which are detailed in the table below: 13. The Government also submitted that each cell had a toilet fully separate from the living area, each with its own air ventilation system. All cells had access to drinking water, and had windows allowing in natural light and fresh air. During the winter, cells were heated by a central heating system. They were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, 2009 and 2010, which the Government substantiated with photographs, floor plans and other relevant documentation. Furthermore, the inmates were provided with all the necessary hygiene and sanitary facilities. The nutrition was based on the assessment of experts and the quality of the food was constantly monitored by the competent state authorities, which the Government substantiated with the relevant documentation. 14. The Government also explained that for three hours per day, between 4 and 7 p.m., the applicant had been allowed to move freely outside his cell. In addition, he had been able to use the gym, which had been open between 8 a.m. and 12.30 p.m. and 2 and 6 p.m., and the basketball court, which had been open on working days between 3 and 6 p.m. and at the weekends both in the morning and afternoon. The prison had also been equipped with a badminton court, ping-pong tables and chessboards, all of which had been available to the applicant. He could have also borrowed books from the Bjelovar library, which provided its services to the prison, and he had been allowed to watch TV and borrow films. 15. On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons. 16. On 26 April 2010 he complained to the Ministry of Justice Prisons Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored, and that the prison food had been inadequate. 17. The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons. 18. On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant’s complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family, that he had not been engaged in any work because there had been an insufficient number of working positions in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor. 19. On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court. He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, inter alia, that his request to engage in prison work had not been answered, and that he was being detained with seven other inmates in cell no. 8, which measured 18 square metres in total and was inadequately equipped and maintained. 20. Following the applicant’s complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention. 21. After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant was not detained in inadequate conditions of detention, that he was provided with sufficient hygiene and sanitary facilities, and that was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison. 22. On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge’s decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 actually accommodated eight inmates. 23. On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standards for personal space under the Enforcement of Prison Sentence Act, namely 4 square metres, should in principle be respected, but that there could be no automatic violation of a prisoner’s rights if such a standard was temporarily not complied with. 24. On 8 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months since arriving at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 square metres, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 square metres. He had then been placed in another cell, also marked “cell no. 8”, which again measured 17.13 square metres, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates. 25. On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison. 26. On 26 November 2010 the applicant complained to the Ombudsman (Pučki pravobranitelj) that he had not been granted a transfer to the prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate. 27. By a letter of 7 December 2010 the Ombudsman invited the applicant to further substantiate his complaints. 28. The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted the 4 square metres of personal space in detention required under the Enforcement of Prison Sentences Act. 29. On 12 April 2011 the Ombudsman replied to the applicant’s letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsman also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that just like ninety-two other inmates the applicant had not been engaged in prison work, as there had been an insufficient number of working positions for all prisoners. 30. On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint (see paragraph 25 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads: “In his constitutional complaint, the appellant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on ... “ 31. The Constitutional Court’s decision was served on the applicant’s representative on 18 June 2012.