Lexploria

Information Note on the Court’s case-law 233

October 2019

Ulemek v. Croatia - 21613/16

Judgment 31.10.2019 [Section I]

Article 13

Effective remedy

Effective preventive and compensatory remedies for inadequate conditions of detention: inadmissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to exhaust preventive remedies counterbalanced by Constitutional C ourt’s overall ruling on the merits in compensatory proceedings: preliminary objection dismissed

Six-month period

Application duly lodged with the Court after obtaining the decision of the Constitutional Court in compensatory proceedings: preliminary objec tion dismissed

Facts – The applicant had served a prison sentence in two detention facilities in Croatia, namely Zagreb Prison and Glina State Prison. The prison regime and conditions of detention in these two prison facilities differed. As to the conditions of detention in Z agreb Prison, the applicant did not avail himself of the preventive remedy before the prison administration and/or the sentence-execution judge, which the European Court had already found in its case-law to be effective. As to the conditions in Glina State Prison, the applicant had made use of that remedy but, once his complaints were dismissed, he failed to complain to the Constitutional Court. The European Court had already found that lodging a complaint with the Constitutional Court was an additional req uired step in the process of exhausting the preventive remedy for conditions of detention in Croatia. Nevertheless, after his release from Glina State Prison, the applicant began a civil action for damages for the allegedly inadequate conditions in both fa cilities. After the dismissal of his constitutional complaint on the merits, the applicant lodged an application with the European Court within six months of receiving the Constitutional Court’s decision. He mainly complained under Articles 3 and 13 of the Convention about the inadequate conditions of his detention in both prisons and about the lack of an effective remedy in that regard.

Law – Article 35 § 1

(a) Effective remedies under Article 13 of the Convention in general and specifically with respect to conditions of detention in the case-law of the European Court

The Court had recently examined the structural reforms in the systems of remedies of different countries. These reforms had been introduced in response to the Court’s pilot and leading judgme nts concerning inadequate conditions of detention. The Court had thereby reaffirmed its case-law, according to which the preventive and compensatory remedies in this context had to be complementary.

(b) Exhaustion of remedies and compliance with the six-month rule in cases concerning conditions of detention in the case-law of the European Court

Applicants who were still in detention under the circumstances of which they complained were obliged to exhaust the available and effective preventive remedy before bringing their complaints before the Court.

However, in cases where unsatisfactory conditions of detention had already ended, the use of a compensatory remedy, such as a civil action for damages, was nor mally an effective remedy for the purposes of Article 35, when there had not been a preventive remedy providing for an effective avenue which the applicants could and should have used during their confinement. Accordingly, where an applicant had already be en released when he or she lodged his application, a remedy of a purely compensatory nature could in principle have been effective and could have provided him or her with fair redress for the alleged breach of Article 3. By contrast, for countries where th ere had been an effective preventive remedy, the Court had considered the effectiveness of the compensatory remedy in combination with the use of an effective preventive remedy.

In this context, the use of a civil action for damages had not been an alterna tive to the proper use of the preventive remedy, irrespective of the fact that those remedies may be, as a whole, exercised through two separate sets of judicial proceedings. Moreover, it had not been unreasonable to require a prisoner to use the available and effective preventive remedy as a precondition for his or her use of the compensatory remedy, aimed at obtaining damages for inadequate conditions of detention in the past. Indeed, an effective preventive remedy was capable of having an immediate impac t on an applicant’s inadequate conditions of detention. In the case of the compensatory remedy, this could only provide redress for the consequences of an applicant’s allegedly inadequate conditions of detention.

From the perspective of the State’s duty un der Article 13, the prospect of future redress could not legitimise particularly severe suffering in breach of Article 3 and unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirement s. Thus, given the close affinity between Articles 13 and 35 § 1 of the Convention, it would have been unreasonable to accept that once a preventive remedy had been established from the perspective of Article 13 – as a remedy found by the Court to be the m ost appropriate avenue to address the complaints of inadequate conditions of detention – an applicant could be dispensed from the obligation to use that remedy before bringing his or her complaint to the Court.

Thus, normally, before bringing their complai nts to the Court concerning the conditions of their detention, applicants were first required to use properly the available and effective preventive remedy and then, if appropriate, the relevant compensatory remedy.

However, there might be instances in whi ch the use of an otherwise effective preventive remedy would be futile in view of the brevity of an applicant’s stay in inadequate conditions of detention. In such a scenario, the only viable option would be a compensatory remedy opening up the possibility of obtaining redress for past placement in inadequate conditions. How short a period had to be that use of the preventive remedy was futile might depend on many factors related to the manner of operation of the domestic system of remedies and the nature o f the alleged inadequacy of an applicant’s conditions of detention.

Use of the compensatory remedy could not be unlimited in time: it normally had to be used within six months of the allegedly inadequate conditions of detention ceasing to exist. This was w ithout prejudice to the possibility that the relevant domestic law provided for different arrangements in the use of remedies or for a longer statutory time-limit for the use of a compensatory remedy, in which case the use of that remedy was determined by the relevant domestic arrangements and time-limits.

Where no effective remedy was available to the applicant, the period ran from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant. When it was clear from the outset that the use of a remedy could not be considered effective for an applicant’s complaints, the use of that remedy could not interrupt the running of the six-month time-limit. Where, therefore, an applicant a vailed him or herself of an apparently existing remedy and only subsequently became aware of circumstances which rendered the remedy ineffective, it might be appropriate to take as the start of the six-month period the date when the applicant first had bec ome or ought to have become aware of those circumstances.

Moreover, in the context of conditions of detention, a period of an applicant’s detention should have been regarded as a “continuing situation” where an applicant had been confined in different dete ntion regimes and/or facilities as long as the detention had been effected in the same type of detention facility in substantially similar conditions. Short absences, during which the applicant had been taken out of the facility for interviews or other pro cedural acts, would have no incidence on the continuous nature of the detention. However, the applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation”. The complaint about the conditions of detention had to be filed within six months of the end of the situation complained of or, if there had been an effective domestic remedy to be exhausted, within six months of the final decision in the process of exhaustio n.

(c) Preliminary remarks concerning the Croatian preventive and compensatory remedies

The Croatian legal system provided for both preventive and compensatory remedies. The preventive remedy was exercised by making a complaint to the prison administratio n and/or the sentence-execution judge directly, while the compensatory remedy related to the possibility of obtaining compensation in the form of damages before the relevant civil courts. In any event, in case of an unfavourable outcome in the use of the p reventive and/or compensatory remedy, an applicant could bring complaints before the Constitutional Court which also had the competence to order his or her release or removal from inadequate prison conditions.

Nevertheless the compensatory remedy, aimed at obtaining damages for the time the applicant had been detained in inadequate conditions of detention, had not been in itself effective. It was only in combination with an effective use of the preventive remedy, leading to an acknowledgment of a breach of the applicant’s rights and his or her removal from the inadequate conditions of detention, that civil proceedings could satisfy the requirements of effectiveness. Applicants had to use diligently the available preventive remedy and, in the event of an unfa vourable outcome, to lodge a constitutional complaint before the Constitutional Court.

Accordingly applicants were required, before bringing their complaints to the European Court, to afford the Croatian Constitutional Court the opportunity of remedying th eir situation and addressing the issues they wished to bring before the European Court. Where applicants had failed to comply with that requirement, the Court had declared their applications inadmissible for non-exhaustion of domestic remedies.

According t o the relevant practices of the domestic authorities, including the Constitutional Court, once the preventive remedy had been set in motion by first lodging a complaint before the prison administration and/or the sentence-execution judge directly, neither removal from inadequate conditions of detention nor release prevented the examination and finding of a breach of Article 3.

As regards the use of the compensatory remedy, the Constitutional Court had recently held that appellants were not required to use t he preventive remedy before the sentence-execution judge in order formally to be allowed to lodge a civil action for damages before the civil courts (which itself would also have allowed them, if needed, to bring their complaints before the Constitutional Court). However, where appellants lodged their constitutional complaints after their civil actions for damages (related to inadequate conditions of detention) had been dismissed, it seemed that the Constitutional Court approached cases in two ways. On the one hand, in several such cases the Constitutional Court had limited its examination to the procedural assessment of the civil courts’ duty to elucidate the circumstances of a former prisoner’s conditions of detention. On the other hand, in other cases the Constitutional Court itself had examined the (in)adequacy of detention conditions, and not just the procedural aspect of the complaints.

The above principles concerning the effective remedies had been found to be applicable to the complaints under Article 8 of the Convention concerning the conditions and regime of an applicant’s detention.

(d) Effectiveness of remedies in Croatia concerning allegations of inadequate conditions of detention

The European Court confirmed its case-law as to the existence of e ffective preventive and compensatory remedies in Croatia concerning allegations of inadequate conditions of detention.

(e) Whether the applicant had properly exhausted the domestic remedies and complied with the six-month time-limit

Regarding the applican t’s complaint about the inadequate conditions of detention, an issue that had to be considered was whether the applicant had properly exhausted the relevant domestic remedies (preventive and compensatory) for some of the periods of his imprisonment, as req uired under the Court’s case-law. There was consequently also the question of whether the applicant had complied with the six-month time-limit for bringing his complaints to the Court. The Constitutional Court, as the highest court in the country, had exam ined on the merits the applicant’s complaints of inadequate conditions of detention for the overall period of his confinement in Zagreb Prison and Glina State Prison, and the applicant had duly lodged his application with the European Court after obtaining that decision of the Constitutional Court. As the Constitutional Court’s case-law stood, the applicant’s complaints could not be dismissed for failure to exhaust domestic remedies and/or non‑compliance with the six-month time limit.

(f) Summing-up

In vie w of the above considerations, reiterating that there was nothing in the applicant’s arguments calling into question the general effectiveness of remedies in Croatia concerning allegations of inadequate conditions of detention, the Court found that the app licant’s complaint under Article 13 was manifestly ill-founded.

Conclusion : preliminary objections dismissed (exhaustion of domestic remedies).

The Court also found, unanimously, a violation of Article 3 in respect of the applicant’s conditions of detenti on in Zagreb Prison; but no violation of Article 3 as regards the applicant’s conditions of detention in Glina State Prison.

Article 41: EUR 1,000 in respect of non-pecuniary damage.

(See also Łomiński v. Poland (dec.), 33502/09, 12 October 2010, Information Note 134 ; Ananyev and Others v. Russia , 42525/07 and 60800/08, 10 January 2012, Information Note 148 : Torreggiani and Others v. Italy , 43517/09 et al., 8 January 2013, Information Note 159 ; Stella and Others v. Italy (dec.), 49169/09 et al., 16 September 2014, Information Not e 177 ; Varga and Others v. Hungary , 14097/12 et al., 10 March 2015, Information Note 183 ; Shishanov v. the Republic of Moldova , 11353/06, 15 September 2015, Information Note 188 ; Muršić v. Croatia [GC], 7334/13, 20 October 2016, Information Note 200 ; Domján v. Hungary (dec.), 5433/17, 14 November 2 017, Information Note 212 ; Draniceru v. the Republic of Moldova (dec.), 31975/15, 12 February 2019, Information Note 226 ; and the Factsheet on Detention conditions and treatment of prisoners )

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