FIFTH SECTION

DECISION

Application no . 25516/12 Borut BIZJAK against Slovenia

The European Court of Human Rights ( Fifth Section ), sitting on 8 July 2014 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Ganna Yudkivska , Helena Jäderblom , Aleš Pejchal , judges, and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application lodged on 19 April 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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 Tja š a Miheli č Ž itko, State Attorney .

A. The circumstances of the case

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.

B. Relevant domestic law and practice

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 . E ven 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 personal ity 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 personal ity 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) . T he 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 2002 ‑ VI ), 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 metr e s for multi-occupancy cell s recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT ”) and provided for in s ection 27 of the Regulation on the Execution of Sentence s. It was therefore in breach of the plaintiff ’ s personal ity 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 personal ity 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 meal s at a table or use the telephone for at least ten minutes ( as provided for in the regulations ) . Th ose 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. I t 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 t he 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 t he Grosuplje Local Court , considering the Court ’ s case-law on prison conditions a nd the plaintiff ’ s personal c ircumstances, 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 P rison, on the ground s 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 201 0 concerning conditions in Dob p rison; three of them were dismissed for lack of a violation of the plaintiffs ’ personal ity 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 p rison ; 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 .

COMPLAINTS

12 . The applicant complained that the conditions of his detention in the remand section of Ljubljana prison amounted to a violation of Article 3 of the Convention.

13 . Under Article 13 of the Convention the applicant complained that he had not had at his disposal any effective domestic remedy for his complaints under Article 3 .

14 . Lastly, under Article 14 of the Convention the applicant complained of discrimination between prisoners with different financial situations . As the prices in a prison shop were higher than in the general marketplace , some prisoners could buy fewer goods than others.

THE LAW

A. Complaint under Article 3 of the Convention

15 . The applicant complained that the conditions of his detention had been inhuman and degrading. He invoked Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

16. The applicant alleged, in particular, that he had suffered from severe overcrowding, inadequate ventilation during the summer and excessive restrictions on out-of-cell time. The Government disputed that claim. They considered that the complaint under Article 3 should be declared inadmissible for non-exhaustion of domestic remedies.

1. The Government ’ s objection

18. T he Government maintained that the present case had to be distinguished from that of Mandić and Jović , cited above, in which a violation of Article 13 had been found on account of the lack of an effective and accessible remedy in respect of the allegedly inadequate conditions of detention.

19 . In that case, the applicants were still in detention when they lodged their applications with the Court; therefore, only a remedy capable of leading to the improvement of their situation could be regarded as a fully effective one. I n the present case the applicant had already been released from the remand section of Ljubljana prison when he lodged his application with the Court. Therefore, compensation under Article 179 of the Civil Code for a violation of his personal ity rights would have provided effective redress.

20 . Further more , the Government relied on the domestic court judgment of 9 May 2011 (see paragraph 7 above). They observed that i n Mandić and Jović the Court had found that a claim for compensation had not been sufficiently certain in practice, as the judgment of 9 May 2011 had been an isolated example and had not yet been reviewed by the higher courts. Moreover, had it become final, that judgment would have represented an important development in domestic case-law , particularly where an alleged violation had come to an end because the person had already been released . The Government pointed out that the judgment of 9 May 2011 had now become final, as indicated in paragraph 8 above.

21. T he Government also mentioned the two final judgments on allegedly inadequate prison conditions in Dob prison (see paragraph s 9 and 1 0 above ) and the eleven claims for compensation which had been lodged before domestic courts (five in 2009 and 2010 , and six in 2012 and 2013, the latter by plaintiffs already released from detention , see paragraph 11 above ).

2. The applicant ’ s reply

23. The applicant maintained that a claim for compensation could still not be considered effective and sufficiently certain in practice . He alleged that the domestic proceedings had been lengthy and that the amount of compensatio n awarded in the judgment of 9 May 2011 (EUR 2,290) was not comparable to the just satisfaction given in Mandić and Jović (EUR 8,000 for each applicant) .

3. The Court ’ s assessment

(a) General principles

24. Article 35 § 1 sets out the rule on exhaustion of domestic remedies , the purpose of which is to afford Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 – with which it has a close affinity – that there is an effective domestic remedy available in respect of the alleged breach of an individual ’ s Convention rights (see KudÅ‚a v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of J udgments and D ecisions 1996 ‑ IV).

25 . However, the obligation under Article 35 requires only that an applicant should have normal recourse to remedies likely to be effective, adequate and accessible (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). In particular, the only remedies which the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Dalia v. France , 19 Februa ry 1998, § 38, Reports 1998-I).

26 . Lastly, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once that burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case , or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others , cited above, § 68 , and Vučković and Others v. Serbia [GC], no. 17153/11 , § 77, 25 March 2014 ).

(b) Application of these principles to the present case

27 . Turning to the present case, the Court notes that the Government, pleading non-exhaustion of domestic remedies, stated that a claim for compensation had been available to the applicant , under Article 179 of the Civil Code, for the allegedly inadequate conditions of his detention. The applicant maintained that the effectiveness of that remedy was still not sufficiently certain in practice.

29. In Mandić and Jović (cited above, § 116 ), the Court also made reference to the judgment of 9 May 2011 ( see paragraph s 7 and 20 above) and held that once final , that judgment could represent an important development in domestic case-law , in particular as regards circumstances where an alleged violation had come to an end because the person had already been released. This was precisely the situation of the applicant in the present case. As indicated in paragraph 8 above, after the delivery of the Court ’ s judgment in Mandić and Jović , the judgment of 9 May 2011 was upheld on appeal and became final. It cannot but be seen as a significant step taken by the Slovenian authorities in order to recognise at the domestic level the effectiveness of prisoners ’ rights under Article 3 of the Convention .

30. Although, according to the latest information available to the Court, that judgment i s the only decision awarding compensation for conditions of detention, recent developments show that several similar claims have been lodged at the national level.

31. In 2013, the Trebnje Local Court decided on five claims for compensation lodged in 2009 and 2010 concerning the conditions in Dob prison. Three of those claims were finally dismissed as no violation of the plaintiffs ’ rights had been found (see paragraph 11 above). The Grosuplje Local Court decided likewise in its judgment of 9 September 2009 (see paragraph 9 above). The Court considers that th o se rejection decisions cannot be interpreted as pointing to the ineffectiveness of the remedy under Article 179 of the Civil Code, as it has also found that the conditions of detention in Dob prison were not incompatible with the Convention ( see Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 a nd 6893/10, 27 September 2011). In another three cases default judgments were issued (see paragraphs 10 and 11 above). The issuing of default judgments resulted from the plaintiffs ’ unjustified absence at the hearing and not from the domestic authorities ’ reluctance to examine the claims.

32. In any event, the Court reiterates that the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant (see Petkov and Others v. Bulgaria , nos. 77568/01, 178/02 and 505/02, § 74, 11 June 2009).

33. Furthermore, in 2012 and 2013 six claims for compensation regarding conditions of detention in Ljubljana prison were lodged. In one of them a settlement was reached with the plaintiff, and the other five were still pending before a first-instance court as of 17 April 2014 (see paragraph 11 above).

34. The Court is of the opinion that the above shows that former detainees are aware of the existence of and are using the remedy under Article 179 of the Civil Code, and that the domestic courts are ready to examine those claims on the merits. Under those circumstances, the Court can accept the Government ’ s argument that the remedy at issue should in principle be used by a person in the applicant ’ s situation who intends to claim that his or her prison conditions were incompatible with Article 3 of the Convention.

35. The applicant, however, has alleged that the remedy would have been ineffective in the particular circumstances of his case and that he was therefore absolved from his obligation to use it. His contention is based, essentially, on two elements: the excessive length of the proceedings concerning a claim under Article 179 of the Civil Code and the insufficiency of the sums awarded by the Slovenian courts (see paragraph 23 above ).

36. As to the first point, the Court notes that t he proceedings regarding the judgment of 9 May 2011 were finally concluded within approximately two years and three months at two instances and that t he proceedings regarding the judgment of 9 September 2009 were finally concluded in less than two years at two instances (see paragraph 22 above) . The length of th o se proceedings does not appear to be unreasonable and the Court cannot speculate about the duration o f pending or future proceedings .

37. As to the second point, the applicant observed that compensation awarded by a domestic court in the judgment of 9 May 2011 (EUR 2,290 for about seven months of detention) was not comparable to the amount of just satisfaction awarded by the Court in the case of Mandić and Jović (EUR 8,000 for each of the applicants for approximately the same duration of detention ).

38. T he Court reiterates that, subject to compliance with the requirements of the Convention, Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision (see Kudła v. Poland , cited above, § 154).

40. When determining the amount of compensation in the judgment of 9 May 2011 , the Ljubljana Local Court considered the Court ’ s case-law, in particular the case of Kalashnikov v. Russia , cited above . T he Ljubljana Higher Court took into account the standard of living in the Republic of Slovenia . I t held that the amount of compensation was fair as it approximately corresponded to the sum of two average monthly net salaries in the Republic of Slovenia in May 2011.

41. Moreover, the Court considers that the judgment of 9 May 2011 is an isolated case. It is, in fact, the only one in which, as of the date of the latest information provided by the parties, a final award has been made in response to a claim for compensation for inadequate conditions of detention. No general conclusions about the effectiven ess of the remedy under Article 179 of the Civil Code can be drawn from that one judicial decision. As already noted (see paragraph s 11 and 33 above) , five other cases, concerning conditions in Ljubljana prison, are still pending at the national level and it is not possible, at this point, to speculate about their future outcome or about the adequacy of a possible award.

44. Should the compensation granted at the domestic level be insufficient in comparison with the amounts awarded by the Court in similar cases, it would be open to the applicant to claim that he was still a “victim”, within the meaning of Article 34 of the Convention, of a violation of his Article 3 rights, and to introduce a fresh application before the Court. The Court also points out that it is ready to change its approach as to the potential effectiveness of the remedy in question, should the practice of the domestic courts show, in the long run, systematic inadequate awards and excessive duration of national proceedings (see, mutatis mutandis , Turgut and Others v. Turkey (dec.), no. 4860/09, § 57, 26 March 2013).

45. All of the above considerations lead the Court to the conclusion that the applicant was obliged, under Article 35 of the Convention, to try the remedy under Article 179 of the Civil Code, wh ich he has not done.

46. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Complaint under Article 13 of the Convention

47. The applicant complained that he did not have any effective remedy at his disposal as regards the conditions of his detention . He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

48. Even assuming that Article 13 is applicable, the Court has already found that a claim for compensation under Article 179 of the Civil Code would have provided the applicant with a potentially effective remedy for his complaint under Article 3 of the Convention. That finding is valid also in the context of the complaint under Article 13 of the Convention.

49. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint under Article 14 of the Convention

50. Lastly , the applicant complained of discrimination between prisoners with different financial situations. He alleged that, since the prices in the prison shop , notably for coffee, were higher than those in the general marketplace, some prisoners could buy fewer goods than others. He invoked Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

51. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Kurić and Others v. Slovenia [GC], no. 26828/06 , § 384, ECHR 2012 (extracts)).

52. It is noted that the applicant did not claim that he had been required to buy food in the prison shop in order to get adequate nutrition , but he alleged that the prices in the prison shop were higher than in the general marketplace . However, the Convention does not guarantee, as such, any right to a specific level of prices. Thus, the facts alleged by the applicant do not fall within the ambit of one or more of the substantive provisions of the Convention or its Protocols .

53. It follows that the complaint under Article 14 is incompatible ratione materiae with t he provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible .

             Stephen Phillips Mark Villiger Deputy Registrar President