BIZJAK v. SLOVENIA
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
1. The applicant, Mr Borut Bizjak, is a Slovenian national, who was born in 1981 and lives in Izola. He was represented before the Court by Mr J. Ahlin, a lawyer practising in Ljubljana. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs Tjaša Mihelič Žitko, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was detained in the remand section of Ljubljana prison on 6 September 2011. The Government submitted that he had been released on 19 or 20 March 2012. The applicant claimed that he had been released on 20 March. 5. From 6 September 2011 to 22 December 2011 the applicant was held in cell no. 41, measuring 17.74 square metres (including a separate 1.89 square metre sanitary facility). According to the Government, the number of detainees held in the cell fluctuated between four and six. On 22 December 2011 the applicant was held with another detainee in cell no. 53, measuring 8.6 square metres (including a separate 1.49 square metre sanitary facility). From 23 December 2011 until his release he was held in cell no. 91, measuring 17.35 square metres (including a separate 1.71 square metre sanitary facility). According to the Government, the number of detainees held in that cell fluctuated between three and five. The applicant alleged that he had shared the cells with five other detainees. 6. The relevant domestic law is resumed in Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, §§ 24-37, 20 October 2011), and Štrucl and others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, §§ 33-47, 20 October 2011). For the purposes of the examination of the present application, the Court points out that under Article 179 of the Civil Code, if it is established that the circumstances of a case, and in particular the degree of pain and fear, and their duration, justify it, an injured party may be awarded monetary compensation, irrespective of any compensation for material damage. Even if there is no material damage, he or she may be awarded damages for the physical pain endured; for psychological anguish resulting from a general loss of the ability to perform vital functions, disfigurement, defamation, or infringement of personal freedom or personality rights; for the death of a next-of-kin; and for the fear experienced. The latest observations submitted by the parties (dated 17 April 2014) summed up as follows the decisions of the domestic courts in response to claims for compensation for allegedly inadequate conditions of detention. 7. On 9 May 2011 the Ljubljana Local Court found that the plaintiff’s personality rights, as well as the prohibition of torture and inhuman or degradation treatment, had been violated on account of inadequate conditions in the remand section of Ljubljana prison (judgment no. I P 1725/2010). The plaintiff had spent about seven months (from July 2006 to March 2007) in Ljubljana prison as a remand prisoner. For most of that time he had been held together with five other detainees in a cell measuring about 18 square metres. The court found that all four elements of civil tort were established, namely: unlawful act, occurrence of damage, causal link and the defendant’s responsibility. The court noted that there was no case-law on the matter thus far and that that first judgment should establish principles for the future. Referring also to Kalashnikov v. Russia (no. 47095/99, ECHR 2002VI), the court noted that the rights guaranteed by the Convention represented a minimum standard and that the protection afforded by the national legislation should go beyond that minimum. It found that the personal space afforded to the plaintiff had been far below the standard of 7 square metres for multi-occupancy cells recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and provided for in section 27 of the Regulation on the Execution of Sentences. It was therefore in breach of the plaintiff’s personality rights. The court further observed that the overcrowding had had a negative effect on other aspects of the plaintiff’s detention. It found that the plaintiff’s personality rights had been breached also on account of poor ventilation, disturbances during the night, verbal and physical conflicts in the cell, and the fact that he could not eat his meals at a table or use the telephone for at least ten minutes (as provided for in the regulations). Those conditions amounted to a violation of Article 18 of the Slovenian Constitution, which prohibited torture or inhuman or degrading punishment or treatment. The plaintiff was awarded compensation for non-pecuniary damage in the amount of 2,290 euros (EUR) (see Mandić and Jović, cited above, § 103). When deciding on the amount of compensation, the court took into consideration the Court’s case-law, in particular as established in the case of Kalashnikov, cited above. 8. On 21 March 2012 the Ljubljana Higher Court dismissed an appeal lodged by the Republic of Slovenia (judgment no. II Cp 2360/2011) against the judgment of 9 May 2011. It held that the amount of compensation awarded was fair as it approximately corresponded to two average monthly net salaries in the Republic of Slovenia in May 2011. On 23 August 2012 the Supreme Court dismissed a request for an appeal on points of law lodged by the Republic of Slovenia (judgment no. II DoR 174/2012). 9. Previously, on 9 September 2010 the Grosuplje Local Court, considering the Court’s case-law on prison conditions and the plaintiff’s personal circumstances, had dismissed a claim for compensation regarding the detention conditions in Dob prison. That judgment had been upheld by the Ljubljana Higher Court on 23 March 2011. 10. The Grosuplje Local Court had also issued on 18 May 2010 a default judgment regarding prison conditions in Dob Prison, on the grounds that the plaintiff had not attended the hearing to which he had been duly summoned. 11. In 2013 the Trebnje Local Court decided on five claims for compensation lodged in 2009 and 2010 concerning conditions in Dob prison; three of them were dismissed for lack of a violation of the plaintiffs’ personality rights and in the other two cases default judgments were issued. In 2012 and 2013, six claims for compensation were lodged concerning conditions in Ljubljana prison; in one of the cases a settlement was reached with the plaintiff, and as of the date of the latest information available to the Court (17 April 2014), the other five cases were still pending before the domestic courts.