FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73270/01 by Vitali PIHLAK against Estonia

The European Court of Human Rights (Fourth Section), sitting on 20 January 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , judges , Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 8 August 2000,

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

The applicant, Mr Vitali Pihlak , is an Estonian national who was born in 1972 and lives in Harjumaa . He was represented before the Court by Ms K. Mägi , a lawyer practising in Tallinn. The respondent Government were represented by their Agents, Ms M. Hion and E. Harremoes .

A. The circumstances of the case

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

1. The applicant’s arrest and detention on remand

On 12 September 1998 the applicant was taken into police custody on suspicion of having committed burglary with three other persons.

The next day the applicant’s arrest was approved by a judge of the Tallinn City Court ( Tallinna Linnakohus ) who authorised the applicant’s detention for 10 days, i.e. until 22 September 1998. The court noted that the applicant had a prior criminal conviction and that he was suspected of having committed a new crime at the time when he had been released on bail in another criminal case against him which was pending before it.

On 22 September 1998 the applicant was formally charged with burglary. On the same day the City Court prolonged the applicant’s detention until 22 November 1998 on the ground that the applicant had a prior criminal conviction and could re-offend, if released.

In his appeal against the decision the applicant argued that the reasons referred to by the court were inadequate to justify his detention. He had a fixed place of residence and there was no reason to believe that he could commit new offences. Moreover, the reference to his prior conviction was irrelevant as his criminal record was no longer valid.

On 13 October 1998 the Tallinn Court of Appeal ( Tallinna Ringkonnakohus ) dismissed the applicant’s appeal. It considered that, although the applicant’s criminal record had been expunged, the fact of his conviction of theft in 1995 was still a factor relevant to his character. It also found it significant that the applicant had allegedly committed a new offence while he had been released on bail in other charges.

On 19 November 1998 the City Court extended the applicant’s detention until 22 January 1999 for the reasons identical to those contained in its previous prolongation order of 22 September 1998.

Following the completion of the preliminary investigation on 13 January 1999, the City Court, by a decision of 20 January 1999 committed the applicant for trial and left unchanged the preventive custody measure. It joined to this case another criminal case against the applicant which concerned further acts of burglary, committed in a group of persons, as well as falsification of a document and unlawful possession of a firearm.

At the hearing before the City Court on 19 February 1999 the applicant requested his release from custody, arguing that his health had deteriorated and that he had difficulty eating without proper dentures which had been broken by a police officer at the time of his arrest (see below, sub-heading 2). His request was refused on the ground of the danger of his re-offending if released.

As one of the co-defendant’s had fallen ill, the City Court adjourned the hearing.

At the hearing on 12 April 1999 the City Court refused another request by the applicant for release from custody, referring to the applicant’s prior criminal conviction and his continued criminal activity when he had been released on bail in another criminal case against him. There was thus reason to believe that the applicant would further commit offences if released. The court adjourned the hearing due to the ill-health of one of the co-defendants which prevented him from attending.

The applicant’s further requests for release were rejected by the City Court on the same grounds by decisions of 26 May 1999, 22 September 1999, 1 December 1999, 2 February 2000, 30 March 2000 and 31 May 2000. The hearings held on these dates were all adjourned due to the absence of victims, witnesses or the co-defendants.

On 4 October 2000 the City Court granted the applicant’s request for release, noting that the applicant had already been in custody for over two years, that he had a fixed place of residence and that the parties had not agreed to sever the charges against the applicant from the rest of the case.

In March 2003 the case was still pending before the City Court.

2. Alleged ill-treatment by the police

The applicant submits that, when he was arrested by the Tallinn police on 12 September 1998, one police officer hit him in the face breaking his dentures. He was taken to the Tallinn police prefecture ( Tallinna Politseiprefektuur ) for questioning where he was further beaten by police officers. On the same day the applicant’s broken dentures were recorded in the medical journal of the police detention facility ( Arestimaja nr. 1 ).

On 16 January 1999 the applicant filed a complaint with the Office of the Tallinn Public Prosecutor ( Tallinna Prokuratuur ) submitting that he had been ill-treated by the police.

On 20 January 1999 the Public Prosecutor requested the Tallinn police prefecture to carry out an internal investigation into the alleged ill-treatment of the applicant.

By a decision of 17 March 1999 the Tallinn Public Prosecutor refused to initiate criminal proceedings against the four police officers involved in the arrest and questioning of the applicant on the ground of the absence of evidence that a crime had been committed. The decision referred to the results of the internal investigation carried out in the Tallinn police prefecture. The police officers who were questioned about the allegation of ill-treatment had denied the use of force in respect of the applicant. The entry relating to the broken dentures in the medical journal of the detention facility had been made at the request of the applicant. The inspector making the entry had not noticed any signs of use of force on the applicant’s face - the lips were undamaged and all the teeth were in place. The police investigator who saw the applicant after his arrest had also observed no external injuries. Following his placement in the police detention facility, the applicant had made no complaints about his health to a doctor who was visiting the facility on a daily basis.

On an unspecified date the State Public Prosecutor ( Riigiprokurör ) revoked the decision of the Tallinn Public Prosecutor of 17 March 1999 and requested that a further investigation be carried out.

By a decision of 5 May 1999 the Tallinn Public Prosecutor, following an additional investigation, refused again to initiate criminal proceedings against the police officers concerned.

On 10 May 1999 the State Public Prosecutor confirmed the decision.

On 18 November 1999 and 24 December 1999 the applicant filed further complaints about his ill-treatment on 12 September 1998. In her response, dated 22 November 1999 and 28 December 1999, respectively, the State Public Prosecutor stated that the matter had already been investigated and referred to her previous decision.

On 17 July 2000 the State Public Prosecutor refused the applicant’s request to re-open the investigation.

3. Conditions of detention

From 11 December 1998 to 4 October 2000 the applicant was detained in Tallinn Prison ( Tallinna vangla ). He was kept in a cell with four beds, although in March 2000 two more beds were added.

The applicant submits that his health deteriorated during his detention and that he had constantly to turn to a doctor. He did not receive adequate treatment for his broken dentures as such treatment was not paid for by the state and he had no means to pay for it himself. According to the applicant’s medical records, he was examined by a doctor nearly every month of his detention, in particular in connection with stomach problems, headaches and a skin disease on his feet. The records also state that the applicant received treatment for these medical conditions. Following his release from prison, the applicant had his dentures fixed.

In March-July 2000 the applicant wrote repeatedly to various authorities, complaining that due to the low pressure in the water-pipes there was an inadequate supply of both cold and hot water in prison, reducing possibilities for washing.  In June 2000, apparently because of repair works, hot water was temporarily cut off in the living quarters of inmates, and was only available in the sauna.

The cells lacked a device enabling inmates to regulate the temperature in their overheated cells in winter. The food in prison was of poor quality.

On 28 June 2000 the applicant was subjected to disciplinary punishment in the form of a reprimand. On 8 August 2000 he was placed in a disciplinary cell for 5 days for failing to obey the order of the prison administration concerning his transfer to another cell.

B. Relevant domestic law and practice

1. The State Liability Act ( Riigivastutuse seadus ) was adopted on 2 May 2001 and entered into force on 1 January 2002.

According to its Article 7(1), a person whose rights are violated by the unlawful activities of a public authority in a public law relationship may claim compensation for damage caused to the person if that damage could not be prevented and cannot be eliminated by the protection or restoration of rights.

Article 8 provides for compensation in respect of pecuniary damage and for reimbursement of expenses incurred as a result of a bodily injury or damage to health.

Article 9 stipulates that a person may claim financial compensation for non-pecuniary damage for wrongful affront to his dignity, damage to health, deprivation of liberty, violation of the inviolability of home or private life or the confidentiality of messages or defamation of the honour or the good name of the person. Non-pecuniary damage will be awarded in proportion to the gravity of the offence.

2) The new Code of Administrative Court Procedure ( Halduskohtumenetluse seadustik ) was adopted on 25 February 1999.

According to an amendment of the Code, which took effect on 1 August 2002, the administrative court is empowered to award compensation for damage caused in public law relationships (Article 6, section 3(2)).

3) Practice of the Supreme Court referred to by the Government

The Supreme Court has repeatedly found that the Convention is directly applicable before the Estonian courts and that it takes precedence over legislation (for example, decision of the Constitutional Review Chamber of 11 June 1997 in the case no. 3-4-1-1-97).

In an administrative case the Supreme Court held that, in the absence of specific time-limits, a public law institution was required to act on a lawful request within a reasonable time and that an unjustified delay in fulfilling its obligation was unlawful (decision of the Administrative Chamber of 14 June 1997, case no. 3-3-1-18-97).

C. Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

On 30 October 2002 the CPT published a report of its visit to Estonia in July 1997 which contains the following findings and recommendations concerning Tallinn Prison.

“...

62. Tallinn Prison, which was originally designed to hold sentenced prisoners, was located in a compound which included a number of decommissioned workshops and industrial production facilities. Two new blocks had subsequently been constructed for remand prisoners, who now made up two-thirds of Tallinn Prison’s population of approximately 600 inmates. In addition, the establishment was accommodating 187 sentenced prisoners and 30 immigration detainees. The delegation was informed that, in the near future, a further 200 remand prisoners would be accommodated in Tallinn Prison.

...

71. In Tallinn Prison, the delegation observed that certain members of the custodial staff carried batons in full view of inmates. This is not conducive to developing positive relations between staff and inmates. If it is considered necessary for prison officers to carry truncheons, the CPT recommends that they be hidden from view.

...

77. ... The above-mentioned blocks at Tallinn Prison offered far better material conditions of detention than those ... in [Central Prison]. Inmates were accommodated four to a cell, in cells measuring 15 m² (Block 1) or 18 m² (Block 2), inclusive of a fully partitioned 2 m² sanitary annexe. The cells as a whole were adequately furnished, benefited from good access to natural light, and were in a satisfactory state of repair and cleanliness. As for ventilation, it was good in some cells but poor in others. At the time of the delegation’s visit, none of the cells were accommodating more than four inmates. However, it was observed that many of them were equipped with six lockers and some of them with six beds.

As regards the regime for remand prisoners at Tallinn Prison ... no work, education or sports activities were offered to remand prisoners, and there were no facilities for prisoner association. In the same way as remand prisoners at the Central Prison, they were subjected to a 23 hour-a-day in-cell regime. Further, the daily one hour of outdoor exercise was taken in yards which were too small (13 m²) to allow prisoners to exert themselves physically, and more generally offered a miserable environment. Their only redeeming feature was a small roof-level ledge which offered protection against inclement weather.

...

79. ... the CPT recommends that no more than four prisoners be held per cell in Blocks 1 and 2 of Tallinn Prison.

80. ... The CPT recommends that steps be taken as a matter of urgency to improve radically the regime activities for remand prisoners at ... Tallinn Prison; the aim should be to ensure that all such prisoners in Estonia are able to spend a reasonable part of the day (i.e. eight hours or more) outside their cells, engaged in purposeful activities of a varied nature (group association activities; work, preferably with vocational value; education; sport).

...

117. Estonian law provides for the disciplinary sanctions of a reprimand, suspension of visits and placement in a disciplinary cell. ...

The maximum periods of placement in a disciplinary cell and of confinement in a locked cell which can be imposed for any one offence varies according to the security category of the establishment/prisoner involved; in closed establishments such as the Central and Tallinn Prisons, those periods are respectively 20 days and six months.

118. ... The disciplinary cells at Tallinn Prison were furnished with folding beds, a table and benches, and a lavatory. However, ... they had limited access to natural light and their ventilation was deficient. ...[T]he cells were equipped to accommodate more than one prisoner - four inmates in 8 to 10 m² and two in 5 to 7 m². Such occupancy levels are not acceptable.

The CPT recommends that the above-mentioned material deficiencies be rectified and that the permitted occupancy levels in the disciplinary cells in Tallinn Prison be reduced.

119. Inmates placed in a disciplinary cell were provided with bedding (including a mattress) at night and were allowed to have some clothes and hygiene products. However, no other items were permitted; in particular, reading matter was forbidden. The CPT recommends that persons placed in a disciplinary cell be allowed to have access to reading matter.

120. The outdoor exercise facilities in the disciplinary unit at Tallinn Prison were not fit for that purpose. They consisted of five cubicles, measuring 5 m² each, with a grilled roof and rough walls. All inmates accommodated in a disciplinary cell were compelled to spend one hour every day together in one of those areas; consequently, up to four persons would have to share the 5 m² space, where even leaning against the wall was an unpleasant experience. The CPT recommends that steps be taken to improve - and more particularly to enlarge - the outdoor exercise facilities for inmates placed in the disciplinary unit at Tallinn Prison.

COMPLAINTS

1. The applicant complained that he was ill-treated by the police on 12 September 1998 and that the authorities failed to conduct an effective investigation into this event. He relied on Articles 3 and 13 of the Convention.

2. The applicant also complained under Article 3 of the Convention of his conditions of detention. In particular, he submitted that his health deteriorated during the detention, that he did not get adequate treatment and that the disciplinary punishments imposed on him were unjust. He also maintained that that his rights in prison were not respected: he was not allowed to have certain objects, such as a tape recorder, in his cell and, on one occasion, a package sent to him was delivered to him damaged.

3. Invoking Article 5 § 3 of the Convention the applicant complained about the length of his pre-trial detention.

THE LAW

1. The applicant complained under Articles 3 and 13 of the Convention that on 12 September 1998 he was subjected to ill-treatment by the police and that the investigation of his complaint by the authorities was inadequate.

Article 3 of the Convention reads as follows:

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

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in this 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.”

The Court recalls that under the terms of Article 35 § 1 of the Convention it can only deal with a matter within a period of six months from the date on which the final decision was taken.

It notes that, following an additional investigation of the applicant’s allegation of ill-treatment, the Tallinn Public Prosecutor decided on 5 May 1999 not to institute criminal proceedings against the police officers involved in the applicant’s arrest on the grounds of a lack of evidence of a crime. The decision was confirmed by the State Public Prosecutor on 10 May 1999, which was a final decision in respect of the alleged police acts. The applicant, however, introduced his complaint on 8 August 2000, that is more than six months later. His subsequent unsuccessful request to review the matter could not be taken into account as it was not a remedy affecting the running of the six-months rule laid down in Article 35 § 1 of the Convention.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant also complained under Article 3 of the Convention about his conditions of detention.

The Court recalls that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland , judgment of 16 December 1997, Reports of Judgments and Decisions , 1997-VIII, pp. 2821-22, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece , no. 28524/95, § 74, ECHR 2001-III). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudla v. Poland [GC], no. 30210/96, § 92-94, ECHR 2000-XI).

When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece , no. 40907/98, § 46, ECHR 2001-II).

In the present case, the Court notes that the applicant was held in Tallinn Prison from 11 December 1998 to 4 October 2000, that is nearly one year and ten months. The cell in which he was detained measured either 15 m² or 18 m². It normally accommodated four inmates, although in March 2000 two additional beds were added. For most of the time there was thus 3,75 m² or 4,5 m² of space per inmate in the applicant’s cell. Such accommodation, while certainly not ideal, was nevertheless not unacceptable, as shown by the report of the CPT who recommended that no more than four prisoners be held per cell in Tallinn Prison (paragraph 79 of the report).

The Court observes that, according to the CPT report, the cells in the prison were adequately furnished, had good access to natural light and were sufficiently clean; they were also equipped with a fully partitioned sanitary area (paragraph 77 of the report). While water supply in the detention facility appears to have been at times inadequate and was a source for concern for the applicant, the Court does not find it established that this deprived him of the opportunity to keep himself clean to a degree which might be incompatible with Article 3.

However, it notes with concern the absence of purposeful activities and the limited freedom of movement for remand prisoners, including the applicant, who were allowed outdoor exercise only for one hour a day, according to the CPT report (paragraph 77).

As regards the applicant’s condition of health, the Court observes that the applicant was regularly examined by a doctor and that he received treatment for his ailments, except for his broken dentures for which he was asked to pay.  The failure to provide this dental service free of charge, although regrettable, does not however disclose a breach of the State’s obligation to provide a detainee with the requisite medical assistance.

In sum, in light of the above, the Court considers that despite the absence of adequate out-of-cell activities, the applicant’s general conditions of detention did not attain the minimum level of severity that could amount to degrading treatment within the meaning of Article 3 of the Convention.

As regards the two disciplinary punishments imposed on the applicant – a reprimand and placement in a disciplinary cell for 5 days – the Court notes the findings of the CPT that the size of the disciplinary cells in Tallinn Prison was inadequate for designed occupancy levels and that the outdoor exercise facilities were unfit (paragraph 118 of the CPT report). However, the applicant, who complained that the punishments were unjust, has presented nothing to show that he suffered any pain or distress as a result of the disciplinary penalties beyond the inevitable element of suffering or humiliation connected with legitimate forms of treatment or punishment, such as disciplinary sanctions against prisoners to secure good order in prisons. The Court considers that the penalties at issue did not attain the level of severity amounting to treatment contrary to Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Articles 35 §§ 3 and 4 of the Convention.

3. The applicant complained about the length of his pre-trial detention, relying on Article 5 § 3 of the Convention, which provides in the relevant part:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government submitted that the applicant had not exhausted domestic remedies. It was open to him to file a compensation claim for damage caused in public law relationships under the relevant provisions of the State Liability Act and Article 6 of the Code of Administrative Procedure. In those proceedings he could have relied on the provisions of the Convention which is directly applicable before Estonian courts. Moreover, the Supreme Court had already in 1997 recognised the possibility of challenging the unreasonable length of administrative proceedings, although the filing of compensation claims became possible only after the enactment of the above-mentioned laws.

The Court recalls that the remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are 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; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).

The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Baumann v. France , judgment of 22 May 2001, Reports 2001-V, § 47).

In the present case, the Government referred to the opportunity, which was not used by the applicant, to claim compensation for the allegedly unreasonable length of his pre-trial detention under the State Liability Act and the Code of Administrative Procedure. The Court notes however that the provisions, relied on by the Government, became effective only on 1 January 2002 and 1 August 2002, respectively, whereas the applicant introduced his complaint on 8 August 2000. It also observes that the complaint does not concern a situation continuing beyond 1 January 2002 as the applicant’s detention came to an end on 4 October 2000.

Moreover, the right to secure the ending of a deprivation of liberty is to be distinguished from the right to receive compensation for such deprivation. Paragraph 3 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter (see Yağci and Sargin v. Turkey , judgment of 8 June 1995, Series A no. 319-A, § 44, and Tomasi v. France , judgment of 28 July 1992, Series A no. 241-A, § 79)

The Court notes that the applicant requested his release on several occasions. It finds that the Government have not shown that the applicant had available other remedies which would have satisfied the requirements of Article 35 of the Convention. Accordingly, the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.

As to the merits, the Government argued that there were sufficient reasons to justify the applicant’s detention, which remained within the limits of reasonable time. The criminal case was complex and the authorities showed sufficient diligence in handling it.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaint is therefore not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of his detention on remand under Article 5 § 3 of the Convention;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President