FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62912/00 by Darko BENZAN against Croatia

The European Court of Human Rights, sitting on 16 May 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 S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 2 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 Darko Benzan , is a Croatian national, who was born in 1951 and is presently serving a prison sentence in the Lepoglava State Prison (hereinafter the “LSP”). The applicant is represented by Ms Ružica Paradiš , a lawyer practising in Zagreb . The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković .

A. The circumstances of the case

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

1. Prison conditions

In 1994 the applicant was found guilty on one account of murder and sentenced to ten years’ imprisonment. Since 3 March 2000 he has been in the LSP where he is placed in the B wing.

The LSP consists of a radial building comprising four wings, each of four storeys, and a two-storey annex. Three wings were renovated, wing E is currently under renovation. B-wing has not yet been renovated.

According to the applicant his cell is 3,5 meters long and 1,5 meters wide. He shares it with another inmate. There are no sanitary facilities, no running water or electric sockets. The electric light is provided for two hours daily. There is no heating and the cell walls are damp and moist.

The applicant states that the food served to the inmates is insufficient and of low quality.

Medical assistance is provided once a week, on an assigned day, regardless of his health. The applicant cannot address himself to the social services. There is no entertainment or other activities in the prison.

In general, the prison is overcrowded. The prison buildings were built about two hundred years ago and are in a very poor state.

Cases of ill-treatment by the guards are allegedly not uncommon.

The applicant alleges further that the halls where the inmates work are cold.

According to the Government the B-wing will soon undergo renovation.

The food served to the inmates complies with the prescribed calories value. In general, the inmates have not complained about the quality of food, nor were there objections in this respect in the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Report (hereinafter the “CPT Report”).

Medical assistance is provided according to the needs of each inmate. The conditions have improved after the CPT Report in so far as one general practitioner and one dentist have been employed full time. If there is a need, specialist treatment is available in the Hospital for prisoners or in any regular hospital.

The inmates have an opportunity to work if they wish. There are wood and metal processing plants as well as some service-providing jobs. About 50% of the inmates work. The applicant expressed a wish not to work.

The inmates are allowed to watch television, use a library, exercise or choose among several other activities such as art work, barrel-making, literature or music classes. On Sundays and public holidays there are film projections; sometimes concerts and theatre plays are organised.

The applicant is involved in therapeutic sessions concerning inmates suffering from post-traumatic stress disorder and outdoor exercising.

On 12 February 2001 the applicant filed a request with the Ministry of Justice ( Ministarstvo pravosuđa ) to be transferred to another prison. On 7 March 2001 his request was denied.

On 13 March 2001 the applicant requested from the Ministry of Justice to be provided with a cell 6 meters long and 3 meters wide, with television set, running water, electricity and sanitary facilities. The letter was addressed to the “Ministry of Inquisition, Sadism, Crime and Corruption”. The Ministry decided that there was no ground to comply with the applicant’s request.

2. Correspondence

On 26 February 2001 the applicant attempted to send a letter to his lawyer asking him to submit a claim against some prison guards and the prison director. However, one of the guards opened the letter and returned it to the applicant threatening him with solitary confinement if he again attempted to send such a letter.

B. Relevant domestic law

The relevant provisions of the Croatian Constitution ( Ustav Republike Hrvatske ) provide as follows:

Section 23

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

Section 36

Freedom and secrecy of correspondence and all other forms of communication is guaranteed and shall not be violated. Restrictions necessary for the protection of State security or conduct of criminal proceedings must be prescribed by law.

Section 59 (1) of the 1999 Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske ) :

Every person or legal entity may file a constitutional complaint with the Constitutional Court if they consider that judicial or administrative decision or decision issued by bodies empowered with public authority has violated their constitutionally guaranteed freedoms or rights of man and citizen (hereinafter “the constitutional rights”).

The relevant provisions of the amended Act on Enforcement of Prison Terms ( Zakon o izvršavanju kazne zatvora - amendments as of 1 July 2001) provide as follows:

Fundamental Rights and Their Restrictions

Section 3

(1) Inmates shall enjoy the protection of their fundamental rights guaranteed by the Constitution, international agreements and this Act.

(2) Fundamental rights may be restricted in the course of the execution of sentence only in so far as necessary for the purpose of punishment and in accordance with procedure prescribed by this Act.

(3) Fundamental rights may be restricted only exceptionally and when it is strictly necessary for the protection of order and security of the institution or the inmates.

(4) Restrictions of the fundamental rights shall be proportionate to the purpose of the restriction.

Complaints

Section 15

(1) Inmates may file a complaint concerning acts or decisions of a prison employee.

(2) The complaint shall be filed in writing or orally with a prison director, an execution judge or Ministry of Justice. Prison authorities shall not open the envelope containing complaint.

Judicial protection against acts and decisions of the prison administration

Section 17

(1) Inmates may file a request seeking judicial protection against acts or decisions unlawfully restricting or depriving him of any right guaranteed in this Act.

(2) The request shall be dealt with by an execution judge.

Section 200 (1) of the Civil Obligations Act provides as follows:

Courts may award non-pecuniary damage on account of:

-physical or mental pain suffered;

–reduced vital activities;

-disfigurement;

-violation of honour, freedom or personal right;

-death of a close relative;

-and/or fear,

where they find it justified under the circumstances of the case, especially intensity and duration of pain or fear suffered, irrespective of pecuniary damage awarded and even if there is no award.

Before the amendments of the Act on Enforcement of Prison Terms of 1 July 2001, the Lepoglava State Prison House Rules ( Kućni red Kaznenog Zavoda Lepoglava ) provided that the letters addressed to legal representatives must be delivered to the prison authorities in an open envelope.

C. The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

The CPT visited Croatia from 20 until 30 September 1998. Its findings with regard to the LSP were the following ( Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 20 to 30 September 1998 , CPT/Inf. (2001) 4, excerpt:

a. material conditions

“58. ... the two unrenovated wings, B and E , accommodating mainly unemployed prisoners, offered very poor conditions of detention. Prisoners in these wings were being held under cramped conditions, typically two to three persons in cells measuring between 5,5 to some 6,5 m². The CPT must emphasise that cells for such size are only suitable for individual occupancy. Further, the cells were dirty and in a poor state of repair, and a number of them had poor access to natural light and/or dim or artificial lighting. In addition, they were not equipped with integral sanitation; as a result, at night inmates had to comply with the needs of nature using a bucket in their cell. As for the communal sanitary facilities, they were in a generally woeful state of repair (some of them with hazardous flooded floors.) It is also noteworthy that several prisoners in these two wings complained that they were not able to obtain necessary toiletries. The director informed the delegation that the renovation of the whole establishment was planned, but that difficulties were being encountered in obtaining the necessary resources. The CPT must stress that the prevailing material conditions in B and E wings are quite unacceptable.

Consequently, the Committee recommends that the renovation of these wings, including installation of in-cell sanitation following the model of D wing, be treated as a matter of high priority.

Moreover, the CPT recommends that steps be taken immediately to ensure that all prisoners at Lepoglava State Prison are able to obtain personal hygiene products (toilet paper, soap, toothpaste, etc.) as well as the necessary means to maintain their cells and communal sanitary facilities in a clean and hygienic state.

59. Further, as already indicated in paragraphs 56 and 58, the closed unit was overcrowded at the time of the visit. This was particularly the case in the unrenovated wings...

The CPT recommends that serious efforts be made to reduce cell occupancy levels in the closed unit at Lepoglava State Prison ...

b. regime

(...)

63. ... The situation of the non-workers was rendered all the more unsatisfactory by the scarcity of other regime activities at the prison. Although the establishment was equipped with good educational facilities, only about 50 prisoners - including some who already worked - were attending classes. Further, there was little evidence of therapeutic (i.e. offence-focused) programmes and no organised sport activities. To sum up, almost two thirds of the prisoners accommodated in the closed unit were subject to an impoverished regime; the typical daily programme for a non-working prisoner was found to consist of little else besides watching television in an association area and outdoor exercise.

64. ... For the majority of prisoners in the establishment’s closed unit, there was no positive regime in place which might encourage them to address their offending behaviour.

The CPT recommends that the Croatian authorities take the necessary steps to ensure that all prisoners at Lepoglava State Prison have access to an appropriate range of work, educational, sports and recreational activities.

(...)

d. medical care

69. Health care staff resources at Lepoglava State Prison were manifestly insufficient at the time of the visit.

According to regulations issued on 27 June 1994, the prison’s full-time health care staff should consist of a head doctor, a psychiatrist, a general practitioner, a dentist, four nurses, a pharmacist, and three assistants (dental, laboratory and radiology). Such a team could be considered as adequate for an establishment accommodating some 650 prisoners. However, the actual staffing levels fell far short of those specified in the regulations. The post of head doctor, psychiatrist, general practitioner and dentist were all vacant and the full-time health care team numbered a mere six persons: a health technician, a pharmacist, a dental assistant and three nurses. To make up for the absence of a full-time doctor, the ad hoc solution adopted was to employ an outside doctor (cardiologist) for one or two hours each morning on weekdays. The only other doctors to visit the prison were certain specialists (a psychiatrist, a pulmonologist, a surgeon, and specialists in gastroenterology and internal medicine) who were available for consultations for a few hours every two weeks.

Such a state of affairs is inadmissible in an establishment as large as Lepoglava . It is totally unrealistic to expect one doctor to be able to respond adequately to even the basic demands of a prison population of such a size in the space of a daily session of two hours or less or to expect one psychiatrist to provide adequate services during a comparably short session every two weeks. It is therefore scarcely surprising that the standard of health care provided to prisoners was found to display serious shortcomings.

70. It should be noted, however, that the material facilities for health care were quite satisfactory. In particular, the prison’s infirmary was found to be clean, spacious, well-ventilated and properly equipped, and the dental care facilities were also of a high standard. Further, the prison’s pharmacy was well-equipped, and there were apparently no problems in obtaining all medicines required. In other words, the basic infrastructure for a fully satisfactory health care service exists. In addition, the confidentiality of medical data was guaranteed.

71. In the light of the above remarks, the CPT recommends that the Croatian authorities take immediate steps to provide the equivalent of at least one full-time doctor at Lepoglava State Prison, as well as to reinforce the provision of psychiatric and dental care at the establishment. Further, it recommends that, at the earliest opportunity, the health care staffing levels be brought fully into conformity with those foreseen by the prison’s regulations on staffing issued on 27 June 1994.

72. The CPT was also concerned to learn that no member of the health care team was present on the prison’s premises from 10 pm to 7 am. A 24-hour presence of a member of the health care team would be most desirable, bearing in mind the number of prisoners held in the establishment and that a number of sick inmates are regularly held in the prison’s infirmary (ten at the time of the visit). In case of emergency, a prisoner could be taken at night to a health care service situated some ten kilometers from the prison; however, as things stand at the moment, there might be no one present with the necessary knowledge to give immediate care.

The CPT recommends that immediate steps be taken to ensure that someone qualified to provide first aid (preferably with a nursing qualification) is always present at Lepoglava State Prison, including at night.  Further, it recommends that the possibility be explored of providing a 24-hour presence of a nurse or doctor from the establishment’s health care team.

(...)

74. The delegation found evidence of grossly overloaded sick parades. Health care staff stated that the doctor would see some 30 to 40 prisoners during his daily two-hour visit to the establishment. With such a workload, it is highly questionable whether there will be sufficient time for an adequate diagnosis and treatment of each prisoner’s health problems. Further, the delegation met several inmates, in particular in the unit for increased supervision, who were in need of psychiatric/psychological care, but who were not receiving it. Following remarks made by the delegation, one of those inmates was taken to a doctor outside the hospital for examination, who ordered that he be transferred immediately to the Prison Hospital in Zagreb on the grounds of his suicidal state of mind.

More generally, the inadequate staff resources inevitably meant that the health care service was overwhelmed by day-to-day requests for medical attention; it had no time to develop and pursue a health policy of a preventive nature. Further, the lack of a full-time doctor meant that other health care staff were not receiving the guidance they required. It is noteworthy in this regard that the consultation of the medical files of several patients in the prison’s infirmary revealed inadequacies in the recording of medical data and in the carrying out of standard medical procedures (monitoring of temperature, pulse, blood pressure; blood/urine analyses, etc.).

The aforementioned shortcomings can only be resolved via the implementation of the recommendations concerning staff resources set out in paragraph 71 above.

(...)

COMPLAINTS

1. The applicant alleges that his conditions in the LSP where he is serving his prison term amount to inhuman and degrading treatment contrary to Article 3 of the Convention.

2. The applicant complains under Article 13 of the Convention that he has no effective remedy at his disposal in respect of this complaint concerning the prison conditions.

3. He complains also that he is deprived of his right to correspondence in so far as the prison authorities prevented him to contact his lawyer.

THE LAW

1. The applicant complains that his conditions in the LSP amount to inhuman and degrading treatment contrary to Article 3 of the Convention which reads as follows:

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

a. The Government firstly contend that the applicant has failed to exhaust domestic remedies. They submit that before 1 July 2001 he should have filed a complaint with the Ministry of Justice or the prison administration. Had he filed such a complaint the Ministry of Justice would have been able to assess the relevant facts and undertake necessary measures to remove the violation of the applicant’s rights or to institute relevant disciplinary proceedings.

After 1 July 2001 the applicant has been able to file a request with an execution judge pursuant to Section 17 of the Act on Enforcement of Prison Terms.

Furthermore, the applicant could have instituted criminal proceedings if the violations complained of represented criminal offences. He could have also filed a civil action for damages.

Finally, even if the applicant would not obtain redress in the previous proceedings, he could have filed a constitutional complaint for protection of his constitutional rights pursuant to Section 59 (1) of the Constitutional Court Act.

The applicant submits that there are no remedies available within the domestic legal system for the alleged violations.

The Court finds that the question of whether the requirement of the exhaustion of domestic remedies has been satisfied in the present case raises issues which are so closely related to the question of the existence of an effective remedy under Article 13 of the Convention that, to avoid prejudging the latter, both issues should be examined together. Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

b. In the alternative the Government invite the Court to conclude that the application does not disclose any appearance of a violation of Article 3 of the Convention. In this connection they submit that the applicant complains about conditions of detention in the LSP as a whole. The Government rely on the CPT report where it is stated that the conditions in the A, C and D wings completely satisfy the criteria of human execution of punishments. The same conditions will be provided in E wing which is currently under reconstruction.

The Government further contend that the applicant’s complaints concerning food quality, medical care and regime activities are without any grounds. The quality of the food is under constant inspection where no insufficiency has been noted.

Medical care is available according to the applicant’s needs. The facts submitted by the applicant do not reveal that he has ever been deprived of medical care.

The applicant’s allegations that there are no activities available in the prison are untrue. The applicant himself expressed a wish not to work and he spends most of the time in his room, although there is a range of opportunities at his disposal such as outdoor exercising, library, television, film projections, theatre plays and concerts. The applicant is included into sessions of person suffering from post-traumatic stress disorder.

As to the applicant’s accommodation, the Government submit that he is situated in an unrenovated wing. The cell that he shares with another inmate covers 6 m². Although there are no in-cell sanitary facilities, the applicant may use common sanitary facilities, bathroom, showers with hot and cold water and central heating. Moreover, there are attempts to improve the conditions in B wing even before it will undergo complete reconstruction when the financial possibilities allow it. The Government admit that the conditions of detention in B wing are relatively unfavourable, but not to the extent that would amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention.

The Government argue that in assessing the conditions of the applicant’s detention, all circumstances of the case should be taken into consideration. In this connection they submit that the applicant was convicted for a severe crime - a murder. Before he had been sent to the LSP, the applicant filed a request with the Ministry of Justice asking that he be placed in the Pula prison which is a semi -open prison. His request was allowed and the applicant was transferred to the Pula prison. After about a year while using annual leave the applicant escaped from Croatia. Thus, he forced the Croatian authorities to place him at the LPS . When he arrived there the applicant expressed a wish not to work. Since the inmates who do not work are placed in the B wing, the applicant was consequently placed there.

The Government contend that the complaints raised by the applicant do not disclose any appearance of treatment contrary to Article 3 of the Convention. They request that the Court reject this part of the application as manifestly ill-founded.

The applicant contends that, contrary to the Government’s submissions, the conditions in the part of LSP where he is placed are so poor that they amount to a violation of Article 3 of the Convention.

The Court considers, in light of the parties’ submissions, that the substance of this part of the application also raises complex issues of law and of fact under the Convention. It concludes, therefore that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

2. The applicant submits also that he has no effective remedy in relation to the complaint concerning his condition in prison. In his view, there has accordingly been a violation of Article 13 of the Convention, which provides:

“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.”

The Government repeat, in substance, their submissions concerning the issue of the exhaustion of domestic remedies.

The applicant disagrees and submits that the judicial system is not functioning and that the remedies that he might have had are only formal and theoretical.

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

3. The applicant also complains that there has been an interference with his right to respect for his correspondence in so far as the prison authorities prevented him to contact his lawyer in order to file complaints against certain of the prison personnel. He relies on Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

a. The Government firstly submit that the applicant failed to exhaust domestic remedies. In this connection they argue that the applicant could have filed a complaint with the LSP authorities or the Ministry of Justice. Furthermore, he could have filed a criminal report with the competent public prosecutor against the guard who opened the letter addressed to the applicant’s lawyer and returned it to the applicant threatening him with solitary confinement if he again attempted to send the letter. He could have also instituted civil proceedings seeking pecuniary or non-pecuniary damages.

The applicant submits that the Ministry of Justice does not function and is not effective in dealing with problems such as his. Furthermore, the judicial system is also ineffective and thus there was no point in bringing any complaints or instituting any proceedings for the protection of his rights.

The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid.).

It recalls that in the area of the exhaustion of domestic remedies there is 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 practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden 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 (ibid., p. 1211, § 68).

In addition, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up (ibid., § 69). Accordingly, the Court has recognised that Article 35 § 1 (formerly Article 26) must be applied with some degree of flexibility and without excessive formalism (see, for example, the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see, for example, the Van Oosterwijk v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar judgment cited above, p. 1211, § 69).

In the circumstances of the present case, having regard in particular to the domestic legislation, applicable at the material time, authorising the opening of the applicant’s correspondence, the Court considers that the Government have not shown that the applicant had at his disposal an adequate remedy to deal effectively with his complaints. It recalls that recourse to the administrative bodies could be considered an effective remedy in respect of complaints concerning the application or implementation of prison regulations (see, among other authorities, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 26, § 65, and the Silver and Others judgment of 25 March 1983, Series A no. 61, p. 43, § 116). It considers that it has not been demonstrated that an appeal to the administrative bodies, in a case such as the present, which challenged the compatibility of the relevant rules with the Convention, offered the applicant the possibility of securing redress for his complaints.

As regards an action before the ordinary courts or institution of the criminal proceedings against the prison officials, the Government have not produced before the Court any case-law to support their argument concerning the sufficiency and effectiveness of such a remedy. The existence of such remedies, therefore, has not been established with sufficient certainty (see, mutatis mutandis , Dalia v. France judgment of 19 February 1998, Reports 1998-I, pp. 87,88, § 38).

In these circumstances, the Court considers that the applicant’s complaints cannot be rejected for failure to exhaust domestic remedies.

b. As regards the merits of this part of the application the Government submit that since the letters addressed to legal representatives of inmates had to be presented to the prison authorities in open envelopes, pursuant to the then valid Lepoglava State Prison House Rules, it was possible that a member of the prison staff had opened and read the letter. However, it is not established that any staff member did read the applicant’s letter. Therefore, there was no interference with the applicant’s right to respect for his correspondence. Even if there was an interference, it was provided for in law (in the then valid LSP House Rules) and it was necessary for the protection of the prison security. However, the new legislation enacted as from 1 July 2001 provided that the letters addressed to legal representatives be handed over to the prison authorities in closed envelopes.

The applicant submits that his letter was opened and read by a prison guard and that he was prevented from contacting his lawyer in order to take necessary steps for the protection of his rights.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is 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 the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos R OZAKIS              Deputy Registrar President