FIFTH SECTION

CASE OF PRAZNIK v. SLOVENIA

( Application no. 6234/10 )

JUDGMENT

STRASBOURG

28 June 2012

FINAL

28/09/2012

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision .

In the case of Praznik v. Slovenia ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Dean Spielmann , President, Mark Villiger , Karel Jungwiert , Boštjan M. Zupančič , Ganna Yudkivska , Angelika Nußberger , André Potocki , judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 5 June 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 6234/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Matja ž Praznik (“the applicant”), on 24 December 2009 .

2 . The applicant was re pre sented by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper . The Slovenian Government (“the Government”) were represented by their Agents, Mrs T. Mihelič Žitko and Mrs A. Pešec , State Attorneys.

3 . The applicant alleged, in particular, that the conditions of his detention in Ljubljana prison amounted to a violation of Articles 3 and 8 of the Convention , and that he had no effective remedy in this regard as required by Article 13 of the Convention.

4 . On 27 April 2010 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1) and to give priority to it under Rule 41 of the Rules of the Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1970 and lives in Ljubljana .

6 . The applicant served his prison sentence in t he closed section of Ljubljana p rison in the period between 3 April 2009 and 3 March 2010. From 3 to 11 April 2009 he was held in cell 123 (second floor) measuring 16.28 square metres. The cell , apart from the furniture, contained six sleeping places (three bunk beds). According to the applicant, six prisoners were being held in the cell during his detention. The Government, however, submitted that the number varied between five and six. He was subsequently move d to cell. 1 on the third floor , where he stayed until the end of his sentence on 3 March 2010. The cell measured 16.68 sq uare metres. The cell contained, apart from the furniture, five sleeping places (two bunk beds and a single bed). According to the Government the number of prisoners varied between four and five.

7 . During his detention t he applicant received six visits from a friend. Between 28 April and 1 June 2009 the applicant ’ s visit s took place through a glass partition , as he had been suspected of r eceiving drugs from his visitor . The same decision was made with regard to the period between 27 August 2009 and 3 March 2010. The applicant received ninety-four letters and sent out eighty-nine . E nvelopes were opened on fourteen occasions to check on enclosed items. The applicant did not appeal against this measure.

8 . According to the prison records, the applicant was receiving methadone maintenance treatment during his imprisonment. In addition, h e had ten consultations with a general practitioner and five dental appointments .

9 . As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care , see the judgment in Å trucl and O thers v. Slovenia , nos. 5903/10, 6003/10 and 6544/10 , §§ 21 to 32 , 20 October 2011. As to the out-of-cell time , the Court found in the aforementioned judgment that the sentenced prisoners held in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room . There was , however , only one 50 ‑ square-metre recreation room per floor, which was to be used by ten inmates at most ( ibdi ., § 86) . As regards the cell temperature, the data provided by the Government show ed 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.

II. RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INT E RNATIONAL DOCUMENTS

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

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

11 . The applicant complained that the conditions of his detention in Ljubljana prison amounted to a violation of Article 3 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 psych iatric support , and exposure to violence from other inmates due to insufficient security.

12 . He submitted that the situation amounted to a structural problem, and that this has been acknowledged by the domestic authorities.

13 . The applicant also complained about restrictions on visits, telephone conversations and correspondence. However, these complaints fall to be examined under Article 8 of the Convention only.

14 . Article 3 of the Convention reads as follows:

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

A. Admissibility

1. Complaint relating to physical conditions of detention

15 . T he Government raised an objection of non-exha ustion of domestic remedies , rel ying on the same arguments as in the case of Štrucl and O thers (cited above) . In the latter case the Court joined the issue of exhaustion of domestic remedies to the merits of the complaint under Article 13 of the Convention. After finding a violation of the latter provision it rejected the Government ’ s objection (§§ 62 and 98-113) . The Court sees n o reason to r each a different conclusion in the present case. It further fi n ds that t his complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor is it inadmissible on any other grounds . It should therefore be declared admissible.

2. Complaints relating to inadequate health care and psych iatric support and insufficient security measures

16 . The Court notes that the parties adduced the same arguments as in the case of Štrucl and O thers (cited above) , where the Court found the part of the application concerning inadequate health care, psych iatric support and insufficient security measures manifestly ill-founded ( §§ 63-69 ). In the absence of any reasons that would lead the Court to reach a different conclusion in the present case, the Court find s these complaints to be manifestly i ll-founded and should therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

17 . The parties relied on the same arguments as in the case of Štrucl and O thers (cited above, §§ 70-79 ) .

18 . As regards the relevant principles , the Court refers to paragraphs 72 ‑ 76 of its judgment in the case of Mandić and Jović v. Slovenia , nos. 5774/10 and 5985/10 , 20 October 2011.

19 . The Court notes that the applicant was held for eleven months in the closed section of Ljubljana prison. During the first week of his imprisonment he was held in a cell with five other inmates , with about 2.7 square met r es of personal space. However, f or most of the period of his detention he was held in a cell with four other inmates , in which he had about 3.3 square met re s of personal space. This space was further reduced by the amount of furniture ( see Modarca v. Moldova , no. 14437/05, § 63, 10 May 2007) . As regards the Government ’ s suggestion that not all the beds in the cells were occupied all the time , the Court has already rejected it , finding that no official documents indicating the exact number of prisoners being held in a particular cell had been provided to substantiate it ( Štruc l and O thers , cited above, § 81)

20 . The Co urt notes that while the personal space available to the applicant was slightly larger than the space available to the prisoners in Štrucl and O thers , who for most of their detention shared their cell with five other inmates , it still fell short of the recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see Štrucl and O thers , cited above, §§ 51 and 140). Moreover, t he applicant ’ s situation was further exacerbated by the very limited time which could be spent outside the cell (ibid . § 86) as well as by high temperatures in the cell in the summer ( ibid. § 87) .

21 . Having regard to the cumulative effects of the aforementioned conditions of the applicant ’ s detention , the Court considers that the hardship he endured appears to have exceeded the unavoidable level inherent in detention , and finds that the resulting suffering went beyond the threshold of severity un der Article 3 of the Convention (see, mutatis mutandis , Szél v. Hungary , no. 30221/06 , § 18, 7 June 2011 , and Peers v. Greece , no. 28524/95, § 75, ECHR 2001 ‑ III ).

22 . The Court therefore finds that the conditions of detention of the applicant were contrary to Article 3 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

23 . The applicant complained that his allegations in respect of Article 3 also gave rise to a violation of Article 8 of the Convention. In addition, he complained about restrictions on visits and telephone calls. As regards the latter, the applicant submitted that he had had the right to use a telephone only twice a week and that he had often been under pressure from other inmates to terminate his telephone conversations before the allotted time had expired. He also alleged that his correspondence had been limited to certain identified people .

24 . Article 8 of the Convention 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.”

25 . The Court notes that in so far as the complaints under Article 8 overlap with those under Article 3 they should be for the same reasons and to the same extent declared admissible. However, in view of the applicant ’ s submissions and having regard to the finding relating to Article 3, the Court considers that no separate issue arises under Article 8 in this regard (see Orchowski v. Poland , no. 17885/04 , § 198, ECHR 2009 ‑ ... (extracts) ).

26 . As regards the applicant ’ s complaints concerning his contact with persons outside the prison , the Court notes that the parties adduced the same arguments as in the case of Štrucl and O thers . In the latter case the Court found that these complaints were unsubstantia ted (cited above, §§ 96-97) . The Court sees no reason to reach a different conclusion in the present case. These complaints should therefore be rejected as manifestly ill-fou nded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

27 . The applicant complained that owing to the systemic nature of the inadequate prison conditions he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention. In any event, there is no evidence that the remedies which were available in theory could work effectively in practice when it came to prison conditions and the treatment of prisoners. He cited Article 13 of the Convention, which reads as follows:

“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.”

A. Admissibility

28 . In so far as the applicant ’ s complaint under Article 13 of the Convention refers to the lack of effective remedies in respect of inadequate physical conditions of detention, the Court finds that this aspect of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

29 . As to the lack of effective remedies in respect of the allegedly inadequate medical and psychological care, inadequate security measures and the restrictions on maintaining contact with people outside the prison, having declared the relevant issues under Articles 3 and 8 of the Convention inadmissible, the Court concludes that the applicants have no arguable c laim 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 aspect of the applicant ’ s complaint under Article 13 of the Convention should be rejected as manifestly ill ‑ founded , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

30 . The partie s ’ arguments are identical to those in the case of Å trucl and O thers (§§ 101-117) in which the Court found that none of the remedies relied on by the Government could be regarded with a sufficient degree of certainty as constituting an effective remedy for the applicants (ibid. , §§ 118 ‑ 33) . Since there appear to be no reason s to reach a different conclusion in the present case , the Court finds that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant ’ s complaints i n respect of the conditions of his detention .

I V. APPLICATION OF ARTICLE 46 OF THE CONVENTION

31 . Article 46 of the Convention provides:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

32 . T he applicant argued that his allegations related to a structural problem of overcrowding in Slovenian prisons. This assertion was disputed by the Government.

33 . Referring to the considerations set out in Štrucl and O thers , the Court would again emphasi s e the need for the Slovenian authorities to take steps to improv e conditions in Ljubljana prison. It would also reiterate its call on the State to develop an effective instrument which would provide a speedy reaction to complaints concerning inadequate conditions of detention (ibid. , §§ 137- 1 41).

V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

34 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

35 . The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.

36 . The Government disputed the claim

37 . The Court awards the applicant EUR 7 ,000 in respect of non-pecuniary damage.

B. Costs and expenses

38 . The applicant also claimed EUR 1,520 for costs and expenses incurred before the Court. This sum consisted of EUR 1,500 in lawyers ’ fees, which he claimed were calculated on the basis of st atutory domestic rates, and EUR 20 for material expenses.

39 . The Government argued that this claim was excessive. They also argued that the Court should take into account the fact that the applicant ’ s representative was represent ing a number of other applicants before the Court and had submitted almost identical pleadings in all these cases.

40 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. With regard to an applicant ’ s Convention costs, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many other authorities, Gaspari v. Slovenia , no. 21055/03 , § 83, 21 July 2009, and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV). In the present case, regard being had to the information in its possession and in particular the fact that the law firm representing the applicant has already been reimbursed in five other cases for preparation of submissions almost identical to the present ones ( see Mandić and Jović , cited above, §§ 133-35 , and Štrucl and O thers , cited above, §§ 146-48 ), the Court considers it reasonable to award the sum of EUR 500 to cover the costs of the proceedings before the Court .

C. Default interest

41 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the physical conditions of detention under Articles 3 and 8 of the Convention , as well as the complaint under Article 13 of the Convention relating to the complaint concerning the physical conditions of detention , admissible and the remainder of the applicatio n inadmissible;

2 . Holds that there has been a violation of Article 3 of the Convention;

3 . Holds that there is no need to examine the complaint concerning the physical conditions of detention under Article 8 of the Convention;

4 . Holds that there has been a violation of Article 13 of the Convention;

5 . Holds

(a) that the respondent State is to pay the applicant , within three months of the date on which the judgment becomes fina l in accordance with Article 44 § 2 of the Convention, the following amounts:

( i ) EUR 7 ,000 ( seven thousand euros ), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 500 ( five hundred euros ), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 28 June 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Dean Spielmann Registrar President