CASE OF STRUCL AND OTHERS 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
5. The applicants were born in 1985, 1974 and 1977 and live in Kamnik, Zagoraje ob Savi and Kranj respectively. 6. The applicants served their sentence in the closed section of Ljubljana prison, which 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. 7. According to the Government, plans for constructing a new prison to replace Ljubljana prison were in progress. However, completion depended on financial resources and no definite date could be given. 8. The applicant served his sentence in Ljubljana prison in the period between 15 June 2009 and 15 June 2010. He was held in the following cells: - Between 15 June and 17 November 2009 and between 10 May and 15 June 2010 he was held in cell no. 119 measuring 16.28 square metres. The cell contained six sleeping places (three bunk beds). According to the applicant, six prisoners were held in the cell in the period of his detention. The Government, however, submitted that the number varied between five and six. - Between 17 November 2009 and 26 February 2010 the applicant was held in cell no. 5 measuring 16.28 square metres. The cell contained five sleeping places (two bunk beds and a single bed). The number of prisoners held in this cell varied between four and five. - Between 26 and 28 February 2010 the applicant was held in cell no. 132 measuring 16.28 square metres. The cell contained five sleeping places (two bunk beds and a single bed). Three prisoners were held in this cell. - Between 28 February and 23 March 2010 the applicant was held in cell no. 129 measuring 7.5 square metres. The cell contained one bunk bed and the applicant was alone in the cell as he had been placed under a high security regime (see paragraph 10 below), after attacking another inmate. - Between 23 March and 10 May 2010 the applicant was held in cell no. 123 measuring 16.28 square metres. The cell contained six sleeping places (three bunk beds). According to the applicant, six prisoners were held in the cell in the period of his detention. The Government, however, submitted that the number varied between five and six. 9. Cells no. 119 and 123 had four windows measuring 91x57 centimetres each. Cell no. 132 had two such windows. Cell no. 5 had one window measuring 107x110 centimetres and cell no. 129 had two windows measuring 89x54 centimetres each. 10. In the period between 28 February and 23 March 2010 the applicant was placed in a cell under a high security regime which implied that he could only have two hours of outdoor exercise and was not allowed to spend time in the recreation room. He ate his meals in the cell and was allowed to receive visits two hours a week and use the telephone no more than twenty minutes a week. 11. According to a personal plan set up on 26 February 2010 it was anticipated that the applicant would enrol in a catering and hotel services training programme. However, there is no information in the file indicating if and when he attained this training course. According to the prison records the applicant was also involved in certain work activities in the period between 1 July 2009 and 31 December 2009; however, there is no indication as to what kind of work this was and where it took place. 12. According to the prison records, the applicant had an opioid dependency and was undergoing methadone maintenance treatment during his detention. He had visited a general practitioner forty times. According to the Government the reasons for these visits related to common health problems such as flu and attempts to obtain anti-anxiety and sleeping medication and analgesics. In addition, the Government submitted that the applicant had had seven appointments at the psychiatric office, five of which he had actually attended. The prison records, however, state that he underwent four examinations at the psychiatric office. Likewise, the report given by the psychiatrist mentions four sessions attended by the applicant in August and October 2009 and in February and March 2010. The psychiatrist also mentioned in his report that the applicant refused to undergo urine testing and consultations in the period before August 2009 and in the period between October and February 2010. 13. The applicant served his sentence in the closed section of Ljubljana prison in the period between 22 June 2009 and 18 February 2010 and between 2 April and 3 July 2010. In the period between 18 February and 2 April 2010 the applicant was held in Maribor prison, to which he was temporarily transferred further to a decision issued on 16 February 2010 by the director-general of the Administration for the Execution of Penal Sentences of the Republic of Slovenia (hereinafter referred to as “the General Administration”). The latter decision was issued at the request of the governor of Ljubljana prison and cited overcrowding as grounds for transfer. On 2 April 2010 the applicant was transferred back to Ljubljana prison, further to a court order, to serve another pending sentence of imprisonment. The applicant’s complaints relate to the conditions of detention in Ljubljana prison only. 14. During his detention in Ljubljana prison the applicant was held in the following cells: - Between 22 June and 2 July 2009 the applicant was held in cell no. 124 measuring 7.5 square metres. The cell contained two sleeping places (one bunk bed) and two prisoners were held therein. It had two windows measuring 98x54 centimetres each. - Between 2 and 7 July 2009 the applicant was held in cell no. 120 measuring 16.28 square metres. The cell contained six sleeping places (three bunk beds). It had four windows measuring 91x57 centimetres each. According to the applicant, six prisoners were held in the cell in the period of his detention. The Government, however, submitted that the number varied between five and six. - Between 7 July 2009 and 21 January 2010 the applicant was held in cell no. 119, in which the material conditions were the same as in cell no. 120 (see above). - Between 21 and 28 January 2010 the applicant was held in cell no. 132 measuring 16.28 square metres. The cell contained five sleeping places (two bunk beds and a single bed) and, according to the Government, four prisoners were held therein. It had two windows measuring 91x57 centimetres each. - Between 28 January and 18 February 2010 the applicant was held in cell no. 121, in which the material conditions were the same as in cell no. 120 (see above). - Between 2 and 20 April 2010 the applicant was held in cell no. 117, in which the material conditions were the same as in cell no. 120 (see above). - Between 20 April and 22 June 2010 the applicant was held in cell no. 5 measuring 16.28 square metres. The cell had one window measuring 107x110 centimetres. The cell contained five sleeping places (two bunk beds and a single bed). According to the Government, the number of prisoners held in this cell varied between four and five. - Between 22 June and 3 July 2010 the applicant was held in cell no. 46, measuring 7.5 square metres. The cell contained two sleeping places (one bunk bed) and two inmates stayed therein. It had two windows measuring 98x54 centimetres each. The applicant was placed under a high security regime after he had attacked another inmate. 15. During the time the applicant spent under the high security regime, he could only have two hours of outdoor exercise per day and was not allowed to spend time in the recreation room. He ate his meals in the cell and was allowed to receive visits two hours a week and use the telephone no more than twenty minutes a week. On 29 June 2010 the prison governor decided that the applicant’s visits should be carried out behind a glass partition, since he had been suspected of receiving drugs from his visitors. This decision was entered into his personal plan and he was informed of the possibility to appeal against it to the director-general of the General Administration. The applicant did not appeal. 16. According to the prison records, the applicant had an opioid dependency and underwent methadone maintenance treatment during his imprisonment. He made one request for consultation with a psychologist, which was also carried out. He had nine consultations with a psychiatrist and visited a general practitioner a number of times. 17. The applicant served his sentence in the closed section of Ljubljana prison in the period between 29 June and 19 November 2009. On the latter date he was transferred to Celje prison, where he stayed until his conditional release on 9 December 2009. The transfer was made on the basis of a decision issued by the director-general of the General Administration at the request of the governor of Ljubljana prison. The decision referred to amendment no. 62/2008 (see paragraph 42 below) and cited overcrowding as grounds for transfer. The applicant’s complaints relate to the conditions of detention in Ljubljana prison only. 18. During his detention in Ljubljana prison the applicant was held in cells nos. 119 and 121. Each cell measured 16.28 square metres and contained six sleeping places (three bunk beds). It had four windows measuring 91x57 centimetres each. According to the applicant, six prisoners were held in each of the cells in the period of his detention. The Government, however, submitted that the number varied between five and six. 19. The applicant received one visit during his detention, namely on 21 July 2009. On 24 July 2009 the prison governor decided that the applicant’s visit should be carried out behind a glass partition since he had been suspected of receiving drugs from his visitors. This decision was entered into his personal plan and he was informed of the possibility to appeal against it to the director-general of the General Administration. It was stated in the decision that the situation would be reviewed at the end of August. The applicant did not appeal. 20. According to the prison records, the applicant had an opioid dependency and underwent methadone maintenance treatment during his imprisonment. He made one request for consultation with a psychologist, which was also carried out. He had two consultations with a psychiatrist and visited a general practitioner a number of times. 21. All the cells contained one large and one small table, a number of chairs depending on the number of beds and a set of cupboards for each of the detainees. The prisoners were free to open and close the windows. 22. The prisoners 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. 23. The cells had no artificial ventilation. They were 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 cells were also equipped with functioning radiators, which the detainees were free to regulate. 24. 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. 25. A sanitary annex measuring 1.72 square metres was attached to each of the large cells. As regards the smaller cell no. 129, a sanitary annex of 1.3 square metres was attached to it. The sanitary annex 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. 26. The applicant had access to the shower room situated on the same floor and containing five showers with partitions. According to the Government, the applicant could use the shower for ten minutes every day in accordance with the daily schedule. 27. Detergents and products for personal hygiene were distributed to the prisoners 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. 28. In the closed section of the prison the cells were locked throughout the day. The prisoners could leave the cell for the purpose of taking part in scheduled activities. The Government explained that out-of-cell time consisted of the following: - The applicants could have their meal in the prison canteen for thirty minutes three times a day. - Twice a day the applicants could use the telephone booth, which was situated on the corridor. - Every day between 10 a.m. and midday the applicants could visit the recreation room (see paragraph 30 below). - Twice a week they were allowed to visit the prison shop. - Between 7.30 p.m. and 9.45 p.m. and on Fridays and Saturdays until midnight the applicants could watch TV in the aforementioned recreation room - On Saturdays and Sundays they could receive visits lasting no longer than two hours. - Between 3.30 p.m. and 5.30 p.m. and during weekends between 2.30 p.m. and 5.30 p.m. the applicants could use the outside yard which measured 1,740 square metres and allowed for the possibility to play basketball, football and bowling. It was not covered by a roof. In bad weather, the prisoners were instructed to use the recreation room. 29. According to the Government the applicants could spend nine hours and fifteen minutes out of their cells per day. On Fridays, Saturdays and Sundays even more time was allowed. 30. The Government further submitted that sentenced prisoners could use the recreation room for the purpose of playing table tennis every day between 10 a.m. and 12 a.m. and for the purposes of gym exercise between midday and 1.30 p.m. During the week, in the afternoon the recreation room was used for the purpose of gym exercise by those inmates who worked in the morning. There was one recreation room on each floor, measuring 50 square metres, which was supposed to be available to all the inmates accommodated on that floor. At a time, ten inmates were allowed to use the room; however, in practice, the average number was six. In addition, there was a creativity room of 12 square metres, a library of 25 square metres and a room used for reading and lecturing of 20 square metres at the prison. 31. 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 prisoners underwent a medical examination upon their arrival. Prisoners who were using intravenous drugs received vaccinations against hepatitis B in conformity with the standard protocol applied in such cases. 32. The prison provided the prisoners with the possibility to undergo testing for hepatitis B and C and HIV. In 2009 107 prisoners were tested. Five were diagnosed with Hepatitis C; the other tests were negative, but one person was diagnosed with TBC. 33. 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. ...” 34. The Enforcement of Criminal Sanctions Act (Zakon o izvrševanju kazenskih sankcij, Official Gazette, nos. 22/2000, since amended, hereinafter referred to as “the ECS Act”) regulates, inter alia, the rights of sentenced prisoners and the conditions of their detention. The relevant provisions read as follows: “... (2) A sentenced prisoner shall be allocated to a single cell in accordance with the space available in the prison. Shared cells shall not have more than eight beds. ...” “A sentenced prisoner must be provided with an opportunity to spend at least two hours in the open air each day.” “(1) A sentenced prisoner shall be allowed unrestricted correspondence with immediate family members. A sentenced prisoner may exchange letters with others if his or her personal plan allows it. The decision shall be made by the governor at the sentenced prisoner’s request. ... 3) Sentenced prisoners must be guaranteed privacy of correspondence and communication.” “(1) Inspection of mail shall only be allowed if there is suspicion that objects which a sentenced prisoner is not allowed to have in his or her possession are being brought in or taken out. ...” “(1) A sentenced prisoner must be allowed visits from immediate family members, foster parents or guardians at least twice a week. A sentenced prisoner may also be visited by other persons with the permission of the prison governor. A visit may not be restricted to less than one hour. ...” “(1) Visits to sentenced prisoners shall take place in suitably equipped internal or external premises and may be either supervised or unsupervised, whereby supervised visits may be carried out behind glass partitions. The method of visits shall be decided by the prison governor. The decision on the method of visits shall be entered in the sentenced prisoner’s personal plan. ...” “(1) A sentenced prisoner must be given an opportunity to hold telephone conversations with immediate family members, his authorised representative, a consular... ...” 35. The Regulation on the Execution of Prison Sentences (Pravilnik o izvrševanju kazni zapora, Official Gazette no.102/2000 with amendments, hereinafter referred to as “the Regulation”) regulates the treatment of sentenced prisoners in more detail. The relevant provisions read as follows: “Dormitories must be bright, dry, well ventilated and big enough. There must be 9 sq. m of surface area available for every sentenced prisoner in a single cell and at least 7 sq. m of surface area for every sentenced prisoner in a cell with multiple beds.” “Supervised visits may last no longer than two hours and unsupervised visits no longer than three hours.” “Sentenced prisoners shall be allowed to make telephone calls to immediate family members at least twice a week. ...” “The standards provided in section 27 of this regulation shall apply to newly built facilities or, where possible, following the renovation of existing facilities.” 36. The Rules concerning Sentenced Prisoners in Ljubljana Prison (Hišni red Zavoda za prestajanje kazni zapora Ljubljana, hereinafter referred to as “the Prison Rules”) regulate the regime in the closed section of the prison in which sentenced prisoners are held. They provide that on work days, sentenced prisoners are woken up at 5.45 a.m. and on nonworking days at 8.15 a.m. and retire for the night at 9.45 p.m. As a rule, prisoners are expected to leave for work, go to the canteen, events or clinics in an organised manner. Meals, except for breakfast, must be eaten in the prison canteen in accordance with the daily schedule. As regards telephone conversations, the Rules provide that they should not exceed ten minutes and may exceptionally be longer, subject to conditions in prison. 37. The Daily Schedule (dnevni red) is annexed to the rules and determines the timetable of activities in the closed section of the prison. 38. 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 take out supplementary insurance. 39. The ECS Act regulates the transfer of sentenced prisoners from one prison to another prison or section of a prison. The relevant provisions read as follows: “1) A sentenced prisoner may be transferred from one prison or section of a prison to another prison or section on the territory of the Republic of Slovenia if this is necessary in order to implement his or her personal plan or the prison’s work programme, is necessary for reasons of security, is in the interest of maintaining order and discipline in the prison, has been proposed by the unit responsible for the protection of persons whose security is at risk in compliance with the Act governing protection of witnesses in order to ensure the security of the sentenced prisoner. ...” “(1) The procedure for transfer shall begin at the proposal of the prison governor or the head of the prison unit responsible for the protection of persons at risk in compliance with the Witness Protection Act or at the request of the sentenced prisoner or his immediate family members, foster parent or guardian. (2) A decision to transfer a sentenced prisoner within the same prison shall be made by the prison governor after obtaining an opinion from the head of the section, whereas a decision on transfer from one prison to another prison shall be made by the director-general of the Administration for the Execution of Penal Sentences of the Republic of Slovenia [hereinafter referred to as “the General Administration”] after receiving opinions from the prison in which the sentenced prisoner is serving the sentence of imprisonment and from the prison to which the sentenced prisoner is to be transferred. (3) If a sentenced prisoner is transferred within the same prison in compliance with section 80 of this Act, this shall be recorded in his or her personal plan. ... (5) If a sentenced prisoner is transferred at his or her request or that of his or her immediate family members, the cost of the transfer shall be borne by the sentenced prisoner himself; in other cases, the cost shall be borne by the prison from which he or she has been transferred. (6) An appeal against a decision on the transfer shall be allowed. An appeal against a decision referred to in section 79 of this Act shall not stay its execution. (7) A request for transfer for the same reasons may be repeated after the expiry of six months from the day the decision on the earlier request was taken. ...” 40. Section 8 of the ECS Act prescribes the use of the Administrative Procedure Act in respect of the procedure under section 81 of the Act. It also provides: “... (2) The ministry responsible for justice shall decide on admissible appeals against decisions issued at first instance by the General Administration. The director-general shall decide at second instance on matters on which the prison governor decides at first instance. (3) Authorities responsible for deciding on matters according to the provisions of the first paragraph of this section shall decide in a summary proceeding without hearing the parties. (4) The entry of the decision in the personal plan based on this Act shall replace a written decision. A sentenced prisoner shall have the right to appeal against a decision entered in his personal plan to the director-general of the General Administration within eight days of being informed of the decision. ...” 41. Section 84 of the Regulation provides that the proposal of the prison governor for the transfer of a sentenced prisoner from one prison to another under sections 79 and 80 of the Act must be duly reasoned. The decision of the director-general of the Administration for the Execution of Penal Sentences (“the General Administration”) shall be served on the sentenced prisoner. Furthermore, section 85 provides: “The petitioner shall lodge a request for transfer to another prison or section under Section 81 of the ECS Act with the prison in which the sentenced prisoner is serving the sentence. The prison or section shall send the request within no more than eight days to the General Administration together with the personal file of the sentenced prisoner, the report on the sentenced prisoner’s behaviour and work and the opinion on the merits of the request and the suitability of transfer. The prison or section to which the sentenced prisoner should be transferred must send its opinion to the director-general within eight days at the latest. ...” 42. In the period between 21 June 2008 and 14 March 2009 an amendment published in Official Gazette no. 62/2008 was in force. It obliged prison governors to immediately request transfer of a prisoner if the occupancy level of the prison exceeded the average occupancy level of prisons in Slovenia by ten percent or more. This provision was abolished by the amendment published in Official Gazette no. 19/2009. 43. The ECS Act contains a special chapter which concerns the exercise and protection of sentenced prisoners’ rights. The Act distinguishes between two types of treatment, that is, “torture or other cruel forms of inhumane or degrading treatment” and “other violations of rights or other irregularities for which judicial protection is not guaranteed”. The relevant provisions read as follows: “(1) A sentenced prisoner who believes that he has been subjected to torture or other cruel forms of inhumane or degrading treatment may apply for judicial protection by means of a request. (2) The prison must also forward the request referred to in the preceding paragraph to the competent state prosecutor.” “If a sentenced prisoner has suffered harm as a result of actions referred to in the first paragraph, he or she may request compensation directly from the person who caused the harm, in accordance with the law.” “(1) If other violations of rights or other irregularities are involved, for which no judicial protection is guaranteed, the sentenced prisoner may lodge a complaint with the director-general of the General Administration. ...” 44. For the relevant domestic legislation concerning proceedings under the Administrative Disputes Act and proceedings for injunction and damages under the Civil Code, see Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 34-36, 27 September 2011. 45. Sections 4 and 33 of the Administrative Disputes Act, referred to in paragraph 125 below, read as follows: “(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.” “... (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.” 46. The ECS Act provides in so far as relevant: “(1) Supervision of the legality of the treatment of sentenced prisoners shall be exercised by the ministry responsible for justice and the president of the district court in whose territory a prison or its section is located. An authorised official from the ministry responsible for justice or the president of the district court shall, at the request of sentenced prisoners also without the presence of prison staff, interview sentenced prisoners about the treatment they are receiving and about the exercise of their rights. (2) If the ministry ... or the president of the district court ... establishes in the course of supervision that sentenced prisoners’ rights have been violated, they shall take all measures necessary to ensure [respect for] sentenced prisoners’ rights. (3) In accordance with the Human Rights Ombudsman Act and international legal acts, the Human Rights Ombudsman and authorised bodies responsible for the protection of human rights and the prevention of torture, inhumane and degrading treatment or punishment, shall also be enabled to exercise supervision referred to in the first paragraph of this section. ... (5) Expert supervision and administrative supervision of the provision of health care services in the prison shall be exercised in accordance with the law governing health care services.” 47. The Regulation sets out in more detail the supervision of the conditions in prisons by the president of a district court: “If the sentenced prisoner files a complaint to the president of the competent district court exercising supervision under section 212 of the Act, the latter shall examine it and if he or she considers it well-founded, shall order the necessary measures; the president of the district court may also inform the prison governor thereof together with instructions, if necessary, or [inform] the General Administration writing.” “The president of the district court ... shall exercise supervision under section 212 of the Act at least once a month. If the president of the district court establishes in the course of supervision that sentenced prisoners’ rights have been violated, he shall inform the prison governor in whose prison he exercised supervision, the General Administration and the Ministry of Justice thereof.” 48. The relevant extracts from the general reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are set out in Mandić and Jović, cited above, §§ 38-40. 49. 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. 50. 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.” 51. Following the visit in 2006 of the remand section of Ljubljana Prison, the following recommendations were made to the Slovenian authorities which are relevant also to the situation of sentenced prisoners (CPT/Inf (2008) 7): “49. ... 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. ... 88. At all the establishments visited, sentenced prisoners had adequate access to telephones.” 52. 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 personal space requirement for sentenced individuals in prison, which is 9 square metres for a single occupancy cell and 7 square metres per person in a shared cell (see paragraph 35 above). 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. Ljubljana prison was the most overcrowded prison in Slovenia. 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. 53. 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 prisons. 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 ...” 54. 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 ...” 55. 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 ... ...” 56. 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.”