ZIVULINSKAS v. LITHUANIA
Inadmissible
The applicant is a Lithuanian national who was born in 1964 and lives in Kaunas. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 December 1996 the Kaunas Regional Court convicted the applicant of aggravated murder, sentencing him to 14 years’ imprisonment. On 1 February 2002 a search of the applicant’s belongings was carried out at the Vilnius Sniego Prison. The applicant alleges that cash, in the amount of LTL 300 (about EUR 87), and a packet of washing powder were removed. The prison administration considered that the possession of these items was prohibited by the Prison Code and the Prison Interim Rules. On 4 February 2002 the prison administration, having obtained a prosecutor’s approval, ordered that the confiscated money be transferred to the State’s account. On 7 February 2002 a special disciplinary commission of the prison decided to impose on the applicant a disciplinary penalty, namely the deprivation of the right to receive or send a parcel on one occasion, and to purchase food in the prison shop for a month. The applicant brought a court action, contesting the search and the penalty. In particular, he complained that the above decisions had been taken in his absence, in breach of his defence rights. The applicant also alleged that he had suffered double jeopardy by way of the confiscation of his money as well as the imposition of the disciplinary penalty on 7 February 2002. He requested that the money be returned to him. In the context of the action, the applicant was granted free legal assistance for his representation before a court. On 6 June 2002 the Vilnius Regional Administrative Court examined the case in the presence of the applicant. The lawyer assigned to represent him failed to appear. The court rejected the applicant’s request to adjourn the examination of the case, having found that the applicant’s lawyer had been duly informed of the hearing. The applicant’s action was dismissed. The court first held that the applicant’s money had been confiscated and transferred to the State’s account in accordance with Article 41 of the Prison Code. That measure was not deemed a “penalty” under domestic law since it was not included in the exhaustive list of disciplinary penalties (Article 69 of the Prison Code). The court dismissed the applicant’s allegation that he had been punished twice. It was furthermore established that, prior to the search, the prison inspectors had proposed that the applicant voluntarily show them any possibly illicit items. Had the applicant shown the cash, it would not have been confiscated but returned to him, in accordance with Article 83 of the Prison Interim Rules. However, the applicant had failed to do so. The court also noted that the law (providing for the confiscation of any cash held in the prison) was justified in the public interest. It was also established that the penalty of 7 February 2002 was imposed in accordance with Article 61 of the Prison Code for a breach of prison discipline. The court noted, however, that the disciplinary proceedings had been conducted in breach of Article 419 of the Prison Interim Rules, which guaranteed to the accused the right to be heard by a special disciplinary commission of the prison before the decision on a disciplinary penalty was taken. Nevertheless, the court considered that that irregularity had not rendered the proceedings as a whole unfair, since the applicant had been afforded the opportunity to submit his explanations to the commission in writing, in accordance with Article 356 of the Prison Interim Rules. There was no evidence that the applicant had intended to present any new arguments in addition to those indicated in his written explanations, as he had not submitted any new statements to the court. The applicant appealed, complaining that the case had been examined in the absence of his lawyer. He was again granted free legal aid for his representation before the appellate court. On 3 September 2002 the Supreme Administrative Court examined the case in the presence of the applicant and his lawyer, dismissing the applicant’s appeal. The appellate court upheld the reasoning of the lower court. The applicant brought another court action against the administration of the Vilnius Sniego Prison, complaining about the lack of space in dormitory no. 5, where he had been sleeping from 17 January 1997 until 10 October 2002. The applicant alleged that the overcrowding resulted in a lack of fresh air at night, causing him insomnia and headaches, and that it had had a very negative impact on his physical and mental health. The applicant claimed non-pecuniary damages in the amount of LTL 5,000 (about EUR 1,448). On 20 December 2002 the Vilnius Regional Court essentially accepted the applicant’s claim, the applicant being present. The court held inter alia: “It is undisputed that the official hygienic norms (HN 76:1999) guarantee the minimum space of 3 square metres for each inmate. The conditions in the [Sniego Prison] are not in compliance with the above norm, since the number of inmates exceeds that fixed by the order of 6 February 2001 by the Director of the Prison Department of the Ministry of Justice. While the order establishes 124 places in the [prison], as a matter of fact about 150 inmates are held there at any one time. ... [T]he Civil Code foresees three conditions for civil liability: [a] the unlawful actions or inaction of the respondent [State institution] or its employees, [b] damage, and [c] the causal link between the actions (inaction) and the damage. It is for the applicant who seeks civil damages to demonstrate the existence of all these elements.” The Court concluded that the applicant had not shown that he had suffered non-pecuniary damage as a result of the slight overcrowding. The applicant appealed, stating that the prison administration had not submitted any evidence to show that it had requested additional finances from the Prison Department or the Government. The applicant also pointed out that the lack of space in the Sniego Prison had been acknowledged as a fact. On 12 February 2003 the Supreme Administrative Court examined the case in the applicant’s presence, dismissing the appeal and upholding the reasoning of the lower court. From the medical reports submitted by the applicant, it appears that from 13 January 2000 to 1 August 2001 the applicant had consulted the prison doctor eight times. On several occasions he was diagnosed with a number of minor illnesses. The medical report of 30 September 2002 indicated that the applicant should be relieved from work and allowed to stay in bed, without specifying any reasons. Several medical reports dating from 2002 to 2005 also indicated that the applicant had sought consultations due to headaches, hypertension and certain psychological disorders. On 6 April and 4 November 2004, the Vilnius Regional Court upheld the decisions of the Vilnius City Third District Court to refuse the request of the prison administration for the applicant’s release on licence. On 28 April 2005 the Vilnius City Third District Court granted the request of the prison administration, ordering the applicant’s conditional release. The applicant was released on 4 May 2005. Article 21 of the Constitution prohibits inhuman and degrading treatment. The Prisons Code (as then in force) provided: Article 1 § 2: “Punishment is not intended to cause physical suffering or degrade human dignity.” Article 41 § 2 “Searches of inmates shall be carried out.” Article 41 § 4 “Convicts are not permitted to keep money in cash ... Any cash found shall be seized and transferred to the State’s account by a reasoned decision of the head of the prison administration, upon approval by a prosecutor.” Article 61 § 1 “Convicts breaching the prison regime shall be punished ... by the deprivation of the right to receive or send a parcel on one occasion, and to purchase food in a prison shop during one month.” Article 70 § 9 “Convicts have the right to appeal against a disciplinary punishment.” Until 1999, Article 77 § 1 of the Prison Code established the minimum floor-space per inmate at 2 square metres. From 1999 this norm was increased to 3 square metres, in accordance with Sanitary Standard HN:1999 (approved by the order of the Minister of Health on 22 October 1999). Article 83 of the Prison Interim Rules provided that any items belonging to a detainee, which have been surrendered to the prison administration voluntarily, shall be put into storage and returned to the owner upon release. Article 419 of the Prison Interim Rules provided a right for an inmate to be present before a special disciplinary commission of the prison. Article 6.271 of the Civil Code (in force from 1 July 2001): “1. Damage caused by the unlawful acts of public institutions shall be compensated by the State from the budget, irrespective of the fault of an actual civil servant ... 3. For the purposes of this Article, the term “action” shall be taken to mean any action (active action or failure to act) of a public institution or its employees, which directly affects the rights, liberties or interests of persons ... . 4. The civil liability of the State ... shall arise if employees of public institutions fail to act in accordance with the law.” Article 6.273 of the Civil Code provides that, in cases where the State is liable to cover the damage, it shall be represented by the Government or an institution authorised by the Government.