FIRST SECTION

DECISION

Application no. 66942/09 Eduard MILJAK against Croatia

The European Court of Human Rights (First Section), sitting on 7 February 2012 as a Chamber composed of:

Anatoly Kovler , President, Nina Vajić , Elisabeth Steiner , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 30 November 2009,

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 Eduard Miljak, is a Croatian national who was born in 1978 and is currently serving a prison term in Lipovica Prison. He is represented before the Court by Mr S. Simić, a lawyer practising in Pula . The Croatian Government (“the Government”) are represented by their Agent, Ms Š. Stažnik.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

3 . On 8 April 1998 the applicant had a motor accident and suffered injuries to his spine. Following the accident, the applicant underwent several operations as well as other medical treatment and rehabilitation. He was diagnosed with vertebral fracture, tetraplegia and spastic paraplegia and is incontinent. He is classified as one hundred percent disabled.

4 . On 4 September 2008 the applicant was detained in Pula Prison in connection with a criminal investigation opened in respect of him. On 5 September 2008 the applicant was transferred to Zagreb Prison Hospital ( Bolnica za osobe lišene slobode - “the ZPH”). He was accommodated in a room measuring 18 square metres together with five other patients. With no assistance from staff, he could not wash or relieve himself unless his roommates helped him to do so. Owing to his disability, the applicant was unable to leave his bed because the space between the beds was not wide enough for the wheelchair. He alleges that the bathroom and toilet were in a poor state of repair and always dirty and smelly. During his stay in the ZPH the applicant did not leave the surgical ward .

5 . The medical documentation submitted confirms that the applicant is severely disabled and reliant on a wheelchair to move around. During his stay in the ZPH the applicant was diagnosed with hepatitis C.

6 . On 17 February 2009 the Pula County Court ( Županijski sud u Puli ) found the applicant guilty of trafficking in illegal substances and sentenced him to four years ’ imprisonment.

7 . On 18 November 2009 the applicant petitioned a sentence-execution judge of the Pula County Court and complained about the conditions in which he had been kept. He sought immediate transfer to an institution where he could be provided with adequate medical care. It appears that he received no reply.

8 . On 7 December 2009 the applicant lodged a constitutional complaint about the conditions of his detention in the ZPH.

9 . In a medical certificate of 15 December 2009 the head of the surgical ward of the ZPH stated that the ZPH had no adequate accommodation for the applicant and that they were not in a position to ensure that he could go outside.

10 . On 5 March 2010 the applicant was transferred to Lipovica Prison.

11 . According to the applicant the conditions of his detention in that prison, as regards the size of his cell and the time he spends outdoors, have ameliorated. However, he had to buy a wheelchair adapted for his needs at his own expense. He also needs an electric bed, which would be more suitable for his condition. The mattress he sleeps on is also inadequate. He does not have a cupboard or a table next to his bed. The medical personnel leave the prison premises every day at 3 p.m. and after that time he is dependent on the two other inmates who share his cell. Thus, they shower him, change his urinary sheath, transfer him from his bed to his wheelchair and clean him when he accidentally relieves himself in bed. Also, since his arrival at Lipovica Prison he has developed a bed sore on his foot and his cellmates change the bandages on that wound. They also help him change his clothes, cut his nails and shave him. In this respect he depends on their goodwill.

12 . According to the Government the applicant is held in a cell measuring twenty square metres, together with two other inmates who voluntarily help him in maintaining his personal hygiene and his physiological needs. The cell has central heating and is never locked. The applicant has the opportunity to spend time outdoors anytime between 6 a.m. and 10 p.m. He uses a toilet and shower adapted for wheelchair users and is under the constant supervision of a doctor, a nurse and a paramedic. He has his meals in the prison canteen or sometimes in his cell. In his free time he watches television on his own television set in his cell. He also often goes to a bowling alley adapted for people with disabilities. All the entrance areas at the prison are adapted for wheelchair users. The applicant has the right to go to a nearby town for four hours a month.

13 . On 29 May 2009 the applicant gave oral evidence before the Constitutional Court in the proceedings concerning the conditions in the ZPH (see paragraph 8 above) . He repeated his complaints as regards the conditions and lack of adequate medical care in the ZPH. He made no complaints as regards his placement in Lipovica Prison. The relevant part of the Constitutional Court decision referring to the applicant ’ s statement as regards Lipovica Prison reads:

“The applicant says that he was transferred to Lipovica Prison on 5 March 2010 and speaks well of the conditions in that institution.”

14 . On 3 November 2010 the Constitutional Court accepted the applicant ’ s complaint and found a violation of his constitutional right to humane treatment and respect for his dignity guaranteed under Article 25 of the Constitution. It found that the ZPH had no facilities for persons in the applicant ’ s condition and also ordered the Croatian Government to secure the “unhindered movement of prisoners with special needs” in the ZPH within three years. It did not make a decision as to where the applicant should be detained in the future.

15 . On an unspecified date the applicant filed a claim for damages with the Pula State Attorney ’ s Office, asking that a settlement be reached in the matter. The State authorities offered to pay him 70,000 Croatian kuna (HRK) in compensation, which he refused. On 6 July 2011 he brought a civil action against the State in the Pula Municipal Court ( Op ć inski sud u Puli ) seeking compensation in the amount of HRK 170,000. These proceedings are still pending.

B. Relevant domestic law

16 . The relevant articles of the Croatian Constitution ( Ustav Republike Hrvatske ) provide:

Article 23

“No one shall be subjected to any form of ill-treatment ...”

Article 25

“All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity.

...”

17 . Section 62(1) of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu , Official Gazette no. 29/2002) reads:

“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt ) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or with respect to a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional rights) ...”

18 . The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette nos. 35/2005 and 42/2008) read as follows:

Section 19

“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.

(2) The right to respect for one ’ s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one ’ s name and privacy of personal and family life, freedom, et alia .

...”

Section 1046

“Damage is ... infringement of the right to respect for one ’ s personal dignity (non ‑ pecuniary damage).”

19 . The relevant part of section 186(a) of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) reads as follows:

“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for settlement to the competent State Attorney ’ s Office.

...

Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.

...”

20 . The relevant provisions of the Service of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora , Official Gazette nos. 128/1999 and 190/2003) read as follows:

JUDICIAL REVIEW OF ACTS AND DECISIONS OF THE PRISONS ADMINISTRATION

Section 17

“(1) An inmate may lodge a request for judicial review of any acts or decisions unlawfully denying him, or limiting, any of the rights guaranteed by this Act.

(2) Requests for judicial review shall be decided by the sentence-execution judge.”

Section 42

(1) A sentence-execution judge protects the rights of prisoners, supervises the legality of the execution of a prison term and ensures equality of prisoners before the law.

(2) A sentence-execution judge takes acts and decides in respect of:

...

2. Judicial review of [prisoners ’ ] rights by deciding on appeals lodged against a decision of a prison governor in cases prescribed by this Act;

...”

PROCEEDINGS BEFORE A SENTENCE-EXECUTION JUDGE

Section 44

“(1) Proceedings before a sentence-execution judge are initiated at first instance upon a request by a party or by a judge and at second instance upon an appeal.

(2) A sentence-execution judge acts so as to, according to basic principles, ensure the effective protection of the rights and interests of the prisoner concerned. ... The judge shall allow the parties to submit their observations about the facts [presented by] and allegations put forward by the opponent, and to present new facts and call for evidence.

(3) The parties to the proceedings are the prisoner and the prison or penal institution.

(4) A prisoner has the right to a lawyer of his or her own choice. Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings. When a prisoner does not ensure legal representation within twenty-four hours, the proceedings shall continue without legal representation.

(5) A prisoner may ask for a legal-aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests.

(6) A sentence-execution judge may consult all official documents concerning a prisoner, pay a visit to the prison or penal institution concerned and establish the relevant facts in any other manner.

(7) A sentence-execution judge may hold a hearing in appropriate premises of a prison or penal institution.”

Appeal against a decision of a sentence-execution judge

Section 46

(1) Parties to the proceedings, a prisoner ’ s representative and the persons listed in Article 380 §§ 1 and 2 of the Code of Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted at first instance ...

(2) The appeal shall be lodged with a sentence-execution judge, who shall immediately forward it to a judicial panel of a county court. That panel shall decide within eight days ...”

SUSPENSION OF EXECUTION OF A PRISON TERM

Section 54

“(1) A sentence-execution judge, at the request of the convict ... may issue a decision on suspension of the execution of a prison term ...

(2) The sentence-execution judge shall adopt a decision under subsection (1) of this section within three days of conducting the proceedings where the reasons for suspension have been established.

(3) Suspension may be granted on the following grounds:

1. Serious illness or serious exacerbation of a chronic illness which cannot be treated in prison.

...

(4) The execution of a prison term on the ground under subsection 3(1) of this section may be suspended for as long as the illness lasts ...

(5) Overall suspension shall not exceed twenty months, save for [a suspension granted] on the ground under subsection 3(1) of this section.”

HEALTH PROTECTION

Section 103

“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ...”

CONDITIONAL RELEASE

Meaning

Section 157

“Conditional release is the release of a convict before his or her prison term has expired. ... ”

Section 158

Request

“(1) A request for conditional release may be lodged by the convict ...

...

(5) Exceptionally, a convict suffering from a serious illness may be conditionally released after one third of his or her prison term has expired where the prison regime does not provide conditions for his or her treatment.”

Deciding on conditional release

Section 159

“(1) A request ... for conditional release shall be decided on by a commission composed of a president and four members. The commission shall be appointed by the Minister of Justice. Two of its members shall be judges recommended by the Supreme Court, one of whom shall be the President of the Commission. One of its members shall be a Deputy State Attorney recommended by the State Attorney; and one shall be a sentence-execution judge appointed according to the location of the prison. One member shall be from the Central Prison Administration ... ”

COMPLAINT

The applicant complained under Articles 3 and 8 of the Convention that the conditions of his detention in the ZPH and in Lipovica Prison had failed to meet the standard required for persons in his state of health.

THE LAW

21 . The applicant complained that that the conditions of his detention in Zagreb Prison Hospital had been very poor and that he had not received adequate medical care, owing to which his health had deteriorated.

22 . He also complained that the conditions in Lipovica Prison failed to meet the standard required for persons in his state of health and that he was completely dependent on his cellmates. He relied on Articles 3 and 8 of the Convention, the relevant part of which reads as follows:

Article 3

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

Article 8

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. The parties ’ arguments

23 . The Government argued that in respect of the conditions in the ZPH , following the decision of the Constitutional Court of 3 November 2010, the applicant could no longer claim to be a victim of the violations alleged because the Constitutional Court had found a violation of those provisions. Furthermore, the national law had subsequently offered the applicant the possibility of seeking compensation in civil proceedings against the State.

24 . They also argued that as regards the conditions in Lipovica Prison, the applicant had not exhausted domestic remedies, because he had not complained to a sentence-execution judge, and in the case of a negative outcome could use further available remedies, including a fresh constitutional complaint.

25 . The applicant disputed these arguments.

2. The Court ’ s assessment

26 . The Court considers that the issues of the applicant ’ s victim status and the exhaustion of domestic remedies are intrinsically linked in the circumstances of the present case and should therefore be addressed together.

(a) General principles

27 . As to the applicant ’ s victim status, the Court reiterates that under Article 34 of the Convention it “may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia , no. 59498/00, § 30, ECHR 2002-III, and Trepashkin v. Russia , no. 36898/03, § 67, 19 July 2007 ).

28 . The Court also reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Such acknowledgment and redress are usually the result of the process of exhaustion of domestic remedies (see Koç and Tambaş v. Turkey (dec.), no. 46947/99, 24 February 2005).

29 . The Court further reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers ’ Union v. Sweden , 6 February 1976, § 50, Series A no. 20; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007 ‑ II ).

30 . As to the exhaustion of domestic remedies, the Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France , 22 September 1994, § 33, Series A no. 296-A, and Remli v. France , 23 April 1996, § 33, Reports 1996-II). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would mean to duplicate the domestic process with proceedings before the Court, which would be hardly compatible with the subsidiary character of the Convention (see Gavril Yosifov v. Bulgaria , no. 74012/01, § 42, 6 November 2008 ). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary , no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).

(b) Application of these principles to the present case

(i) The applicant ’ s stay in the ZPH

31 . The Court notes that in its decision of 3 November 2010 the Constitutional Court expressly found a violation of Article 3 of the Convention as regards the conditions of the applicant ’ s detention. It held that the general conditions of his detention amounted to degrading treatment. These findings of the Constitutional Court undoubtedly represent a decision in the applicant ’ s favour by which the relevant national authorities expressly acknowledged a breach of his right not to be subjected to treatment contrary to Article 3 of the Convention.

32 . As to the issue of redress, the Court notes that the right to respect for one ’ s “personal integrity” is protected under section 19 of the Civil Obligations Act and that any infringements of such a right are recognised as grounds for awarding damages under section 1046 of the same Act in respect of non-pecuniary damage. The Court also notes that the State authorities offered the applicant 70,000 Croatian kuna (HRK) in compensation, which he refused. Instead he lodged a civil action for damages against the State, seeking compensation in the amount of HRK 170,000. These proceedings are still pending.

(i i ) The applicant ’ s stay in Lipovica Prison

35 . The Court notes that in his i nitial application lodged on 30 November 2009 the applicant complained about the conditions in the ZPH. However, in his reply to the Government ’ s observations submitted on 18 July 2011, he made further complaints concerning the conditions in Lipovica Prison, where he had been transferred in the meantime.

36 . In his constitutional complaint of 7 December 2009 the applicant complained about the inadequacy of the prison regime in the ZPH and the medical care provided to him there. On 5 March 2010, before the Constitutional Court had reached its decision on the applicant ’ s complaint, the applicant was transferred to Lipovica Prison. The applicant gave oral evidence before the Constitutional Court on 29 May 2010 and made no complaints as to the conditions in Lipovica Prison. What is more, he spoke well of the conditions there (see paragraph 1 3 above). Before the Constitutional Court reached its decision of 3 November 2010 the applicant did not make any further written submissions complaining about the conditions in Lipovica Prison. In these circumstances the Court considers that the Constitutional Court was not called upon to make any assessment of the conditions of the applicant ’ s detention in that prison.

37 . As well as failing to make either oral or written complaints during the proceedings before the Constitutional Court as regards the conditions in Lipovica Prison, the applicant also failed to make any such complaints to a competent sentence-execution judge, whose decision would have been open to a further appeal to a three-judge panel of a competent County Court, as provided by sections 17, 42 and 46 of the Service of Prison Sentences Act.

38 . The Court also notes that the applicant could have applied both for the suspension of his prison term and for a conditional release on health grounds, as provided under sections 54, 157 and 158 of the same Act, none of which he has done.

39 . Therefore, contrary to the principle of subsidiarity, he failed to afford the national authorities the possibility of remedying the situation he has complained of to the Court.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Anatoly Kovler Registrar President