FIFTH SECTION

DECISION

Application no . 5995/10 Želko KOVAČIĆ against Slovenia

The European Court of Human Rights ( Fifth Section ), sitting on 11 March 2014 as a Committee composed of:

Ann Power-Forde, President, Boštjan M. Zupančič, Helena Jäderblom, judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 24 December 2009 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Želko Kovači č , is a Slovenian national, who was born in 1979 and lives in Trebnje . He was represented before the Court by Odvetniška Družba Matoz O.P. D.O.O. , a law firm practising in Koper .

2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Miheli č Ž itko , State Attorney.

A. The circumstances of the case

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

4. The applicant served his prison sentence in the semi-open and closed section s of Ljubljana prison from 27 November 2008 to 1 October 2009. From 1 October 2009 to 27 February 2010 he was held in the closed, semi ‑ open and open sections of Ljubljana prison, the Section Novo mesto (the Section Novo mesto).

5. From 27 November 2008 to 4 May 2009 he was held in the closed section in different cells measuring 16.8 or 18 square metres , respectively (including a separate 1.72 square metre sanitary facility).

6. From 4 May 2009 to 1 October 2009 he was held in the semi-open section in a cell measuring 18.8 square metres (including a separate 1.72 square metre sanitary facility) and containing, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held there during his detention. The Government, however, submitted that the number varied between four and five . The cell had one 107 x 110 cm double casement window, which could freely be open or close d by prisoners .

7. As regards the general characteristics of the cells in the closed and semi-open sections , material conditions inside the cells therein , sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia , nos. 5903/10 , 6003/10 and 6544/10 , §§ 21 to 32, 20 October 2011.

8. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres ), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.

9. From 1 October 2009 to 27 February 2010 he was held in the Section Novo mesto. From 1 October 2009 to 1 December 2009 he was held there in the closed section. From 1 December 2009 to 5 January 2010 he was held in the semi-open section. From 5 January 2010 to 27 February 2010 he was held in the open section. During his detention in the Section Novo mesto the applicant was held in unit 3 measuring 59 square metres and including four separate rooms, namely an ante-chamber measuring 13.46 square metres , a sanitary facility measuring 1.26 square metres , a smaller room measuring 14.77 square metres with three beds and a larger room measuring 29.52 square metres with five beds, where the applicant was held with three other prisoners. In the ante-chamber prisoners could watch television and prepare hot beverages. All together there were seven prisoners in unit 3. They could move freely in the unit twenty-four hours per day as the inner doors were unlocked. From 3.30 p.m. to 10.00 p.m. they could move freely also in the shared corridor of the Section Novo mesto and recreation areas. The applicant spent out of the unit twelve hours per day; eight hours at work, two hours outdoors in an area of 300 square metres , two hours in a shared corridor of 108.64 square metres or in shared living quarters of 59.04 square metres . The applicant could also move in an outdoor recreation yard for two hours per day. The difference between the closed, semi-open and open sections was only the number of privileges awarded outside the prison (i.e. as regards unsupervised leave, visits etc.)

10. During his imprisonment the applicant had ten consultations with a general practitioner and four dental appointments. He never requested treatment by a psychiatrist.

11 . As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 had been approximately 28 o C, exceeding 30 o C on seven days.

B. Relevant domestic law and practice

12. For the relevant domestic law and practice as well as relevant international documents see Štrucl and Others , cited above, §§ 33-56.

COMPLAINTS

13. The applicant complained that the conditions of his detention in Ljubljana prison amounted to a violation of Articles 3 and 8 of the Convention. In particular, he complained of severe overcrowding, which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restrictions on out-of-cell time, high temperatures in the cells, inadequate health care and psychi atric support and exposure to violence from other inmates due to insufficient security.

14. Citing Articles 3 and 8 o f the Convention, the applicant also complained of restrictions on telephone conversations and correspondence.

15. Lastly, the applicant complained under Article 13 that he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention.

THE LAW

16. In Jev Å¡ nik v . Slovenia , no. 5747/10, §§ 25 – 26, 9 January 2014 the Court found that the conditions in which the applicant was held in the semi ‑ open section in Ljubljana prison , personal space (about 3.3 or 3.4 square metres ) taken together with the time he could spend outside the cell ( from Monday to Thursday fifteen hours and forty five minutes per day, on Fridays eighteen hours, on Saturdays fifteen hours and a half and on Sundays thirteen hours and fifteen minutes ) , could not be considered as to be contrary to Article 3 of the Convention, as the restricted space in the sleeping facilities was compensated by the freedom of movement enjoyed by the applicant during the day-time . As regards the temperatures in cells in the summer of 2009 , the Court found that although the applicant was imprisoned also in the second half of July and August 2009, his situation during that period could not be considered as being further exacerbated by high temperatures as he was held in the semi-open section and could therefore spent a considerable amount of time outside the cell .

17. In the present case, the applicant was held in the semi-open section with 3.4 s quare metres of personal space and enjoyed the same out-of-cell time as the applicant in the case of Jev š nik v . Slovenia . As the conditions of the applicant ’ s detention in the semi-open section were the same as those of the applicant in the case of Jev š nik v . Slovenia , this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention .

18. The Court reaches the same conclusion regarding the applicant ’ s detention in the Section Novo mesto. There he was held in the closed, semi ‑ open and open sections, which differ only as regards the number of privileges awarded to prisoners outside the prison (i.e. as regards unsupervised leave, visits etc.). The prisoner was held in a unit measuring 59 square metres with six other prisoners. The unit included a smaller room measuring 14.77 square metres with three beds (each of three prisoners held there would have 4.9 square metres of personal space) and a larger room measuring 29.52 square metres with five beds (each of five prisoners held there would have 5.9 square metres of personal space). The prisoners held therein could also use an ante-chamber measuring 13.46 square metres and a sanitary facility measuring 1.26 square metres , both part of the unit. The applicant could move freely in the unit twenty-four hours per day as the inner doors were unlocked and from 3.30 p.m. to 10.00 p.m. he could move freely also in the shared corridor of the Section Novo mesto and recreation areas. He spent twelve hours per day out of the unit; eight hours at work, two hours outdoors in an area of 300 square metres , two hours in a shared corridor of 108.64 square metres or in shared living quarters of 59.04 square metres . The applicant could also move in an outdoor recreation yard for two hours per day. The Government argued that the applicant did not seem to be complaining also as regards his detention in sections of Ljubljana prison, the Section Novo mesto. However, the Court finds that the applicant complained about the detention in Ljubljana prison and the Section Novo mesto is a section of Ljubljana prison and in any event the conditions of detention there are not contrary to the Convention standards. Therefore, this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention .

19. As the Court rejected the part of the application regarding the applicant ’ s detention in the semi-open section from 4 May 2009 to 1 October 2009 and the detention in the Section Novo mesto from 1 October 2009 to 27 February 2010 as being manifestly ill-founded , the part of the application regarding the detention in the closed section from 27 November 2008 to 4 May 2009 should be rejected as not complying with the six-month rule within the meaning of Article 35 § 3 (a) of the Convention , as the application was lodged to the Court only on 24 December 2009.

20. Further, the Court consider s that the s ituation in which the applicant was detained has not given rise to an issue under Article 8 of the Convention. Therefore, this part of the application should also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

21. As to the lack of effective remedy , having declared the complaints under Articles 3 and 8 of the Convention inadmissible, the Court concludes that the applicant has no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov v. Ukraine , no. 32362/02 , §§ 74 ‑ 5 , 20 May 2010 ). It follows that this part of the application should be rejected as manifestly ill ‑ founded , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Ann Power-Forde Deputy Registrar President