CASE OF POZAIĆ v. CROATIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1977 and lives in Zagreb. 6. By a judgment of the Zagreb County Court (Županijski sud u Zagrebu) of 4 July 2005, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 15 October 2008, the applicant was sentenced to one year and seven months’ imprisonment on charges of drug abuse. 7. Basing its judgment on the applicant’s convictions by the Zagreb County Court of 12 December 2006 and the Zagreb Municipal Criminal Court of 19 February 2007 on charges of robbery and drug abuse, on 17 July 2008 the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) sentenced the applicant to a single prison term of one year and three months. 8. On 2 September 2010 a three-judge panel of the Zagreb County Court took into account the above convictions and sentenced the applicant to a single prison term of two years and eight months. 9. The applicant started to serve his prison sentence, which had originally been imposed by the Zagreb County Court on 4 July 2005 (see paragraph 6 above), in Bjelovar Prison (Zatvor u Bjelovaru) on 22 March 2010. 10. Following a request by the Bjelovar Prison administration of 17 December 2010 and a decision by the Prison Administration of the Ministry of Justice (Ministarstvo pravosuđa, Uprava za zatvorski sustav) of 30 December 2010 the applicant was transferred to Zagreb Prison (Zatvor u Zagrebu) on 5 January 2011. 11. During his stay in Bjelovar Prison the applicant was accommodated in four different cells. 12. According to the applicant, three of the cells measured 17.13 square metres, including the sanitary facilities, and he had shared those cells with seven other persons (cell no. 5 between 22 March and 4 August 2010); four other persons (cell no. 4 between 4 and 10 August 2010); and five other persons (cell no. 1 from 3 September 2010 until 5 January 2011). The fourth cell, no. 11, measured 6.24 square metres and he had had to share it with one other person between 10 August and 3 September 2010. Those cells had open sanitary facilities, were dirty and did not have sufficient lockers for all inmates. Moreover, he had not been provided with sufficient medical care, which had caused him additional distress. 13. According to the Government, during his stay in Bjelovar Prison the applicant had on average 3.46 square metres of personal space. In particular, he stayed in cell no. 5/I, measuring 21.75 square metres, for 141 days with four to seven other persons. He then spent twenty-two days in cell no. 11/1, measuring 9.72 square metres, together with one other person. He was then placed in cell no. 1/O, measuring 19.7 square metres, where he stayed for 125 days; and cell no. 4/O, measuring 22.36 square metres, where he spent two days. The Government did not provide information about the exact number of inmates placed together with the applicant in the two latter cells. 14. The Government also submitted that cells nos. 5/I, 1/O and 4/O had toilets that were completely separated from the living area, and that the toilets were equipped with their own ventilation systems. In cell no. 11/1 the toilet was separated from the living area by a wall measuring 168 centimetres in height and the cell had its own ventilation system. All the cells had installations providing access to drinking water, and all had windows allowing access to daylight and fresh air. During the winter, the cells were heated through a central heating system. They were constantly maintained and in 2007, 2009 and 2010 the necessary refurbishment and improvement of the prison facilities was carried out, which the Government substantiated with photographs. 15. The Government also explained that for three hours per day, between 4 p.m. and 7 p.m. the applicant had been allowed to circulate freely outside his cell. In addition, he had had the opportunity to use a gym, which had been open from 8 a.m. to 12.30 p.m. and from 2 p.m. to 6 p.m., and a basketball court, which had been open on working days from 3 p.m. to 6 p.m. and at weekends both in the morning and in the afternoon. The prison was equipped with a badminton court, table-tennis tables and chess boards, which the applicant had also been able to use. He could also have borrowed books from Bjelovar library, which provided its services to the prison, and he had been allowed to watch television and to borrow films. 16. As to the applicant’s medical care, the Government submitted that on 17 February 2010, before his transfer to Bjelovar Prison, the applicant had claimed that he had no serious health issues. He had confirmed this when examined by a doctor in Bjelovar Prison on 1 June 2010. On 29 September 2010, at his request, the applicant was examined by a psychiatrist, to whom he complained of problems with sleeping but refused to accept any treatment. On 5 October 2010 the applicant again refused to accept treatment. During his stay in Bjelovar Prison the applicant was provided with dental treatment eight times and examined by a prison doctor six times. In support of their arguments, the Government provided the applicant’s relevant medical records. 17. On 14 September 2010 the applicant complained to the Government’s Office for Human Rights (Ured za ljudska prava Vlade Republike Hrvatske) about the conditions of his detention. He alleged in particular that Bjelovar Prison had been overcrowded, that the cells had been dirty and poorly ventilated, that they had not been appropriately equipped, and that the medical treatment had been inadequate. The applicant’s complaint was forwarded to the Prison Administration of the Ministry of Justice, as the body competent to deal with the matter. 18. On the same day, citing the inadequate conditions of his detention, the applicant invited the Bjelovar Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Bjelovaru) to make a friendly settlement agreement before he lodged a civil action with the competent court. 19. On 21 September 2010 the applicant complained to a sentence-execution judge of the Bjelovar County Court (Županijski sud u Bjelovaru, sudac izvršenja) about the conditions of his detention, reiterating his arguments. 20. On 10 December 2010 the Bjelovar Municipal State Attorney’s Office declined the applicant’s request for a friendly settlement on the grounds that it had not found any violation of his rights concerning the conditions of his detention. 21. On 11 October 2010 the sentence-execution judge of the Bjelovar County Court dismissed the applicant’s complaints as ill-founded. She explained that the information received from Bjelovar Prison did not suggest that the applicant had been placed in overcrowded cells, and that, as regards the general conditions of Bjelovar Prison, she had herself visited the prison facilities and had found that in general they had not been inappropriate. She also emphasised that every cell had a sanitary facility which was clean and well maintained, and the cells were equipped with fresh water taps. The judge also emphasised that the applicant had been examined by a dentist several times and had also been provided with psychiatric care. Lastly, the judge pointed out that the applicant had been given sufficient opportunity to practise sport and free access to outdoor areas. 22. The applicant appealed against that decision to a three-judge panel of the Bjelovar County Court on 18 October 2010. 23. On 21 October 2010 the three-judge panel of the Bjelovar County Court examined the applicant’s appeal and, endorsing the reasoning of the sentence-execution judge, considered that in essence the applicant’s rights had not been breached. 24. On 5 November 2010 the Prison Administration of the Ministry of Justice replied to the applicant in respect of his complaints of 14 September 2010 (see paragraph 17 above). It explained that during his stay in Bjelovar Prison he had been placed in four cells: nos. 5/1, 4/0, 2/0 and 1/0, which had measured 21.2 square metres, 19.8 square metres, 6.3 square metres and 17.2 square metres. It did not specify any further details. It accepted that there had been an issue of overcrowdings in general, but said that any problem in that regard had been compensated for by allowing inmates freedom of movement and the opportunity to participate in daily activities. Furthermore, it argued that the Bjelovar Prison facilities had been regularly maintained and renovated, notably in 2008 and 2009. The inmates were provided with sufficient outdoor exercise, namely a variety of sports activities and free access to outdoor areas for three hours per day, between 4 p.m. and 7 p.m. In addition, it emphasised that the applicant had been examined by the prison doctor six times, by a psychiatrist once and by a dentist eight times. 25. On 9 November 2011 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel of 21 October 2010 (see paragraph 23 above). 26. On 22 November 2011 the applicant also lodged a constitutional complaint before 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, and complaining of inadequate medical treatment and lack of personal space in Bjelovar Prison, as well as discrimination following the alleged misinterpretation of the relevant law by the Bjelovar County Court. 27. On 30 December 2010 the applicant lodged a request with the Bjelovar Prison administration to continue with his education while serving his prison sentence. 28. On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint 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.” 29. The decision of the Constitutional Court was served on the applicant’s representative on 20 June 2012.