FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64674/01 by Milenko TOTH against Croatia

The European Court of Human Rights (First Section) , sitting on 9 July 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 16 October 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 Milenko Toth, is a Croatian citizen, who was born in 1962 and presently serves a prison term in the Lepoglava State Prison ( Kazneni zavod Lepoglava - hereinafter the “LSP”) . The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.

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

(a) Treatment concerning the applicant’s health

Following his conviction for murder in 1995 the applicant was sent to serve his prison term in the LSP.

It appears from the medical documentation submitted by the Government that since 7 May 1997 the applicant has suffered from various health complications including problems with his teeth, gastritis, rheumatism and swollen joints.

According to the Government, from May 1997 the applicant often sought medical help in the Prison’s dental clinic. He complained about toothache. Two dentists working there, D.K. and A.M., provided the applicant with necessary care, including implantation of fillings. In spite of that treatment, the applicant continued to complain about toothache and three of his teeth were pulled out.

On 10 and 27 February 1998 Ceporex pills (antibiotic) were prescribed to the applicant. The expiry date of the pills was October 2001.

The applicant still continued to complain about toothache and asked that some other teeth be pulled out. Having doubts as to the applicant’s allegations, A.M. sent the applicant to an oral surgeon on 20 March 1998. He decided that there was no need to pull out more teeth. After that the applicant stopped visiting the dental clinic.

According to the applicant he did not receive proper dental care. Instead, he had continuously been given wrong medication and treated with medication which was useless and old. Due to this improper treatment he suffered immense pain and had to have four teeth removed.

He once received Ceporex pills and once Amoxil pills (both antibiotics). After he took that medication he suffered strong abdominal pain. In April 1998 he went to a hospital in Zagreb where he was diagnosed with gastritis. There, he also had two teeth pulled out.

When he returned to the LSP the dentists A.M. and D.K. refused to see him again.

In the summer of 1999 a new dentist arrived to the Prison dental clinic and he pulled out three other of his teeth. Altogether the applicant had nine teeth pulled out.

(b) Proceedings instituted by the applicant in respect of medical treatment

On 18 March, 1 April, 23 April and 6 May 1998, respectively, the applicant filed a criminal complaint with the Ivanec Municipality Public Prosecutor’s Office ( Općinsko državno odvjetništvo u Ivancu ) against D.K. and A.M., dentists in the LSP, alleging that they had administered him medication whose date of use had already expired. As a consequence he had suffered strong pain and also contracted gastritis. He alleged further that S. K., the director of the LSP, had abused his office and official authority in so far as he had allowed that the inmates in the LSP receive unhealthy food of low quality.

The Public Prosecutor’s Office interviewed D.K. and A.M., examined the applicant’s medical documentation and on 6 July 1998 dismissed the above complaint, stating that the applicant had failed to show a reasonable suspicion for his allegations. The applicant was instructed that he might takeover the prosecution.

On 14 July 1998 the applicant lodged a request for an investigation with the Varaždin County Court Investigations Department ( Istražni Odjel Županijskog suda u Varaždinu ), with the same allegations. The investigating judge of that court instructed the applicant that for the offence allegedly committed by D.K. and A.M. he had to file a motion for prosecution ( optužni prijedlog ) with the competent municipal court. Concerning the allegations against S.K. the investigation judge examined the reports on the control of the quality of food served to the inmates in the LSP and did not find inadequacy in the quality of food. He expressed his disagreement with the applicant’s request and forwarded the case-file to the panel of the Varaždin County Court ( Županijski sud u Varaždinu ) to decide thereon.

On 15 July 1998 the applicant repeated some of his allegations in a letter to the Varaždin County Court Criminal Investigations Department, stating that the dentists in the LSP had administered wrong medication to him.

On 20 October 1999 the applicant filed a criminal complaint with the Ministry of Justice ( Ministarstvo pravosuđa Republike Hrvatske ), alleging that dentist D. K. had poisoned him with wrong medication which had caused him gastritis. He alleged further that he was given the wrong medication and medical treatment by other medical personnel in the prison and was not provided with an adequate diet.

On 29 October 1999 the above complaint was forwarded to the Varaždin County Court.

On 29 November 1999 the applicant filed with the Ministry of Justice a request for damages caused to him due to the wrong medical treatment and inadequate diet in the LSP.

By letter of 21 December 1999 the Ministry of Justice informed the applicant that it had no jurisdiction to decide upon the above request and instructed him to file his request for damages against the Republic of Croatia with a regular civil court.

On 28 December 1999 the Varaždin County Court accepted the investigating judge’s disagreement with the applicant’s request for an investigation of 14 July 1998. It stated that in respect of the applicant’s allegations against the medical personnel of the LSP for the offence of medical malpractice the applicant was not entitled, according to the relevant provisions of the Criminal Procedure Act, to request an investigation but, instead, had to file a motion to indict with the competent court. As regards the applicant’s allegations against the director of the LSP the court accepted the report submitted by the investigating judge who had found, based on the reports of the inspection regularly conducted in the LSP, that the quality of food for the inmates was adequate.

On 11 January 2000 the applicant appealed against the above decision to the Supreme Court.

On 13 January 2000 the applicant filed with the Ivanec Municipal Court ( Općinski sud u Ivancu ) a motion to indict D. K. and A. M., dentists in the prison, and S. K., the director of the prison. He repeated his allegations against them.

On 28 February 2000 the Varaždin Municipal Court ( Općinski sud u Varaždinu ) dismissed various of the applicant’s motions to indict four judges of the Varaždin County Court, the director of the LSP, a member of the prison personnel and two prison dentists. In respect of the allegations against the prison director, a member of the prison personnel and two dentists, the court found that the applicant had previously filed a criminal complaint and a request for an investigation with the public prosecutor, which were dismissed, of alleged medical malpractice and abuse of the office and official authority, while in his motion to indict he had alleged that they had accepted a bribe. Accordingly, he had to file a criminal complaint with the competent public prosecutor for alleged bribing.

On 2 March 2000 the applicant filed a criminal complaint with the Ivanec Municipality Public Prosecutor’s Office against the medical personnel in the LSP for “the brutal treatment of the wounded, sick and prisoners of war and medical malpractice” alleging that they had administered to him wrong medication and failed to provide him with adequate medical treatment for his various illnesses. He also requested compensation for physical and mental suffering caused to him by ill-treatment in prison.

On 8 March 2000 the applicant appealed against the Varaždin Municipal’s Court decision of 28 February 2000 to the Varaždin County Court.

On 17 July 2000 the applicant wrote to Parliament alleging, inter alia , that the LSP authorities had been depriving him of medical assistance.

On 19 September 2000 the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the Varaždin County Court’s decision of 28 December 1998 accepting the investigating judge’s disagreement with the applicant’s request for an investigation.

On 9 October 2000 the applicant lodged a constitutional complaint against the Supreme Court’s decision.

On 6 December 2000 the Constitutional Court ( Ustavni sud Republike Hrvatske ) rejected the applicant’s complaint as inadmissible.

On 4 January 2001 the Varaždin County Court rejected the applicant’s appeal against the Varaždin Municipal Court’s decision of 28 February 2000. The applicant then filed a constitutional complaint against that decision. On 11 April 2001 the Constitutional Court rejected the complaint as inadmissible.

(c) Allegations of torture

On 1 February 2000 the LSP director adopted a disciplinary measure against the applicant, ordering solitary confinement for twenty-one days, for using obscene and insulting language against the prison personnel in his letter of 21 January 2000 sent to the Ivanec Municipal Court.

On 2 February 2000 the applicant filed a motion with the Ivanec Municipal Court to indict S. K., the prison director, his deputy and three other members of the prison personnel alleging that the deputy director had ordered solitary confinement against him for twenty-one days and that he had threatened to kill the applicant if he continued to file criminal complaints against him. The applicant alleged also that the members of the prison personnel had tortured him, attempted to poison him and prevented him from receiving medical treatment.

On 20 February 2000 the applicant sent a letter to the president of Croatia repeating his allegations against the prison personnel.

On 21 February 2000 the applicant appealed to the LSP director against the decision ordering disciplinary measure against him.

On 28 February 2000 the LSP director dismissed the applicant’s appeal.

On 1 March 2000 the applicant was placed in solitary confinement for twenty-one days.

According to the Government, before he was placed in solitary confinement, the applicant had been examined by a doctor who found that the applicant’s health condition apart from slight digestive problems and minor back-pain was well.

According to the applicant his health was not well because he suffered pain in his joints which were broken.

On 3 March 2000 the Minister of Justice visited the applicant in solitary confinement. He talked to the applicant for about twenty minutes and the applicant did not complain about his treatment in solitary confinement.

On 6 March 2000 the applicant filed with the Ivanec Municipal Court additional submissions to his previous motions to indict the director of the LSP and four other members of the prison authorities. He alleged, inter alia , that the prison authorities had placed him in a solitary confinement for 21 days although he was seriously ill and prevented him from using his bed during daytime. In addition he maintained his allegation that the deputy director had threatened to kill him if he continued with his allegations against the prison authorities. The submissions were sent to the Ivanec Public Prosecutor’s Office.

The applicant was medically examined once again two weeks after being released from solitary confinement, on 13 April 2000 because he complained that he had breathing problems. The doctor stated that the applicant had for years been suffering from breathing problems through nose, from nose secretion and headache.

On 15 March 2000 the applicant sent a letter to the Red Cross Committee alleging that he had been tortured in the LSP.

On 17 July 2000 the applicant wrote to Parliament alleging that the LSP authorities had been confiscating his letters, torturing him and depriving him of medical assistance.

On 18 July 2000 the Ivanec Public Prosecutor’s Office informed the applicant that it found no ground to institute criminal proceedings against the LSP personnel. It also pointed out that the applicant had not submitted any evidence in support of his allegations.

On 1 September 2000 the applicant filed yet another motion with the Ivanec Municipal Court to indict the prison director and four other members of the prison authorities, repeating his previous allegations.

On 26 November 2000 the applicant sent a letter to the Ministry of Justice alleging that he had been physically attacked by inmates and prison guards and requesting to be taken to another department.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention alleging that he was administered wrong medication and given an inadequate diet and in general received inadequate medical treatment which amounted to inhuman and degrading treatment. He also complains that he was ill-treated during 21 days of solitary confinement.

2. The applicant complains further under Article 13 of the Convention that he had no effective remedy at his disposal in respect of inadequate medical treatment in the Lepoglava State Prison.

THE LAW

The applicant complains that he was not given proper medical treatment and adequate diet for his health problems. In addition, he alleges that he was ill-treated in the LSP in that he was allegedly beaten up by the prison guards during the 21 days of his solitary confinement. In addition he was allegedly not allowed to use his bed during the daytime and was placed in a cold cell and left without any medical attention although, according to the prison rules, a physician should have visited him every day during his solitary confinement. Furthermore, the deputy prison director allegedly threatened to kill him. In this respect he also complains about the lack of an effective domestic remedy against inadequate medical treatment in prison. The relevant Convention provisions of Article 3 and 13 read as follows:

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

“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.”

1. The Government firstly argue that the applicant failed to exhaust domestic remedies. In this respect they emphasise that the applicant only filed various criminal complaints against the LSP personnel, but did not use remedies available within the prison framework. Firstly, he was able to file a complaint with the LSP director and the Ministry of Justice, which would then investigate his allegations and if needed, undertake adequate measures for the applicant’s protection.

Secondly, the applicant was able to file a civil claim for damages in connection with his allegations about inadequate medical treatment.

The applicant submits that he did exhaust domestic remedies because he filed a number of well-founded criminal complaints against the LSP personnel.

As to the allegations about the inadequate medical treatment the Government submit that, according to the Court’s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. Furthermore, the notion of inhuman treatment covers at least such treatment which deliberately causes severe suffering, mental or physical, while treatment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his own will or conscience. They rely on the Treholt v. Norway decision (see, Treholt v. Norway, Commission decision no. 14610/89, 9 July 1991, unreported).

They contend that the applicant’s allegations about inadequate medical treatment are not true. The applicant received all necessary medical treatment. The applicant’s allegations about inadequate dental treatment were processed by the relevant authorities which conducted interviews with the medical personnel involved and examined the applicant’s medical file. The investigation showed that the applicant’s allegations were unfounded.

Contrary to the applicant’s submissions, physical pain was not caused intentionally by the dentists. The dental treatment was aimed at helping the applicant with his problems.

The Government argue that the treatment concerning the applicant’s health did not disclose a violation of Article 3 of the Convention in any respect.

The applicant alleges that he started to suffer severe toothache after he had been placed in the LSP. He insists that the prison dentists administered him wrong medication whose date of use had already expired and that they in general did not provide him with proper care which resulted in agonising pain and removal of four of his teeth. Furthermore, taking old medication caused him severe stomach problems.

As to the applicant’s allegations about ill-treatment during twenty-one days of his solitary confinement the Government submit that the applicant was placed into solitary confinement on 1 March 2000 and kept there for twenty-one days. They state that the applicant filed a motion with the Ivanec Municipal Court to indict S. K., the prison director, his deputy and three other members of the prison personnel on 2 February 2000, before he had been placed in solitary confinement.

He filed additional submissions to that motion on 6 March 2000, writing at the time when he was in solitary confinement. His allegations about torture in solitary confinement were specified only in so far as he wrote that he had been placed in solitary confinement although he had been seriously ill and that he was not able to use his bed during daytime.

The Government insist that the applicant’s allegation about his bad health are untrue because the doctor who examined the applicant immediately before he was placed in solitary confinement and again after two days and once again two weeks after the applicant had been released from solitary confinement did not find that the applicant suffered from any serious illness.

The Government admit that the applicant was not able to use his bed during daytime when he was in solitary confinement. However, he was able to sit, read and write. Furthermore, he was able to exercise outdoors every day.

The Government argue that, taking into account all the circumstances of the applicant’s condition in the solitary confinement, the facts established by the CPT concerning the solitary confinement regime in the LSP as well as the Court’s case-law according to which removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment, there has been no violation of Article 3 of the Convention in the present case. In this respect they assert that the applicant was not in complete isolation because apart from having the possibility to frequently converse with the prison personnel, he was also visited by a physician and the Minister of Justice. Furthermore, he was not exposed to treatment which would provoke physical or mental pain of any kind.

The Government further argue that the applicant’s allegations about ill-treatment were thoroughly investigated, in the circumstances, by the domestic authorities. Firstly, the applicant’s allegations were expressed in general terms without substantiation. The applicant complained about his treatment in solitary confinement only in the above-mentioned submissions of 6 February 2000. In addition to allegations of torture the applicant accused a number of the LSP personnel of a wide range of criminal activities. His allegations were investigated and at the end of the day dismissed as unfounded and unsubstantiated.

The applicant asserts that, although being severely ill, he was placed in solitary confinement where he was tortured.

The Court does not find it necessary to determine whether the applicant has fulfilled the condition of exhaustion of domestic remedies because the application is in any event inadmissible for the following reasons.

As to the applicant’s complaints about medical treatment and torture during his solitary confinement, the Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], § 121, ECHR 2000-IV).

In the instant case, the ill-treatment complained of by the applicant consisted of, on the one hand, inadequate medical treatment and, on the other, allegations that he was placed in solitary confinement despite his bad health and that he was not able to use his bed during daytime and that he was beaten up by prison personnel during his solitary confinement.

The Court notes that, as the Government submit, the applicant has not produced any conclusive evidence in support of his allegations of ill-treatment or supplied a detailed account of the abuse to which the prison personnel allegedly subjected him, particularly during his solitary confinement between 1 and 21 March 2000.

Indeed, the only concrete evidence as to the applicant’s health, the applicant’s medical file furnished by the Government, shows that the applicant was treated for toothache and various other illnesses such as headache, constipation and complications with breathing. In this connection the applicant was administered various medication, examined by relevant specialists and at one point placed in hospital for further diagnosis and treatment. Thus, there is nothing in the prison medical register to show that the problems the applicant had with his teeth and health in general were caused by treatment in prison. Nor is there any evidence that he suffered any injuries as a result of being beaten up during his solitary confinement.

In these circumstances, the Court considers that the material it has before it regarding the applicant’s assertion that he was subjected to physical and mental ill-treatment in the Lepoglava State Prison does not constitute sufficient evidence to support that conclusion.

As to the applicant’s allegation that he was not able to use his bed during daytime while he had been in solitary confinement, the Court reiterates that 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. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517-18, §§ 52 and 53, and the Labita v. Italy judgment, cited above, § 120).

The Court notes that the applicant was kept in solitary confinement for twenty-one days. Before being placed there he was examined by a doctor who found the applicant as being in good health. The Court notes that the Government submit that the applicant, although he was not allowed to use his bed in daytime, was able to sit in his cell. The applicant does not contest this statement. In the Court’s view the sole fact that the applicant was prevented from laying on his bed during daytime for twenty-one days of his solitary confinement did not have such physical and/or mental effect on the applicant as to render such treatment contrary to Article 3 of the Convention.

In conclusion, the evidence before it does not enable the Court to find beyond all reasonable doubt that the applicant was subjected to treatment that attained a sufficient level of severity to come within the scope of Article 3 of the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. As to the applicant’s complaint under Article 13 of the Convention the Government submit that, according to the then valid Act on Enforcement of Sanctions for Criminal and Economic Offences and Misdemeanours ( Zakon o izvršavanju sankcija izrečenih za krivična djela , privredne prijestupe i prekršaje ), the applicant was able to file a complaint with the prison director and the Ministry of Justice, which would have investigated his allegations and had it been established that the allegations were well founded the Ministry would have, ex officio , filed a criminal complaint.

He was also able to file a criminal complaint with a competent Public Prosecutor’s office if he deemed that the alleged inadequate medical treatment represented a criminal offence. Had the Public Prosecutor established that the applicant’s complaint was unfounded the applicant could have taken over the prosecution.

In addition, he was able to file a civil action for damages in connection with allegedly inadequate medical treatment, even if such a treatment did not represent an offence.

Finally, the applicant also had a possibility to complain to the Constitutional Court.

The applicant argues that he did not have an effective remedy at his disposal because the relevant authorities to whom he filed his criminal complaints did not undertake criminal prosecution of the perpetrators.

The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision (see e.g. Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54-55). In the present case the applicant complains under Article 3 of the Convention about the lack of adequate medical treatment and his conditions in solitary confinement. However, the Court notes also that this part of the application does not disclose a violation of Article 3 of the Convention and is manifestly ill-founded for the reasons explained above. The Court considers, therefore, that the applicant does not have, as regards the treatment in the Lepoglava State Prison, an arguable claim under Article 3 of the Convention.

It follows that the applicant’s complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos R OZAKIS Registrar President