Communicated on 17 May 2017

FOURTH SECTION

Application no. 60503/15 Jure TRUNK against Slovenia lodged on 2 December 2015

STATEMENT OF FACTS

1. The applicant, Mr Jure Trunk, is a Slovenian national who was born in 1982 and lives in Ljubljana. He is represented before the Court by a law firm Marković, based in Ljubljana.

A. The circumstances of the case

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

3. On 4 November 2013 the applicant was charged with three criminal offences against public order.

4 . On 8 January 2014 the applicant signed an agreement with the public prosecutor whereby he pleaded guilty to the alleged crimes and the prosecutor committed to seeking a sentence of two years and six months ’ imprisonment, a term which would be served in so-called “weekend prison”. This is an alternative to a full-time prison sentence, whereby a prisoner can stay at home and go to work on working days, and stay in the prison facility only during weekends and holidays (see paragraphs 21 and 22 below).

5 . On 13 January 2014 the applicant was convicted and sentenced in accordance with the above agreement.

6 . On 28 March 2014 the applicant started serving the sentence in Dob pri Mirni Prison. Over the following two months he served his sentence by spending Saturdays and Sundays in the semi-open section of the prison, and spending the rest of the week at home.

7 . On 3 April 2014 the prison director issued a decision under section 12(5) of the Enforcement of Criminal Sanctions Act (see paragraph 22 below). The decision noted that, while serving his sentence, the applicant should maintain and, if so ordered, prove his abstinence from alcohol and drugs. The applicant also signed a statement agreeing to take urine tests for drugs. He was informed of the prison rules that a refusal to take the tests would be considered to equate to a positive result.

8 . On 26 May 2014 the applicant was invited to take the test at the prison clinic. He arrived on time. Following officers ’ instructions, he got undressed and his genitals were examined by the officers. In accordance with internal regulations, prisoners were to urinate in the presence of officers, though not facing them. When asked to take the test, the applicant was unable to urinate. He explained that he needed more time. After a couple of minutes he was asked to try again, but was still unable to do it, and he was therefore allowed to leave. He was not asked any questions concerning his inability to urinate, and was not offered any alternative means to prove his abstinence from drugs. The memo drawn up by the officers only states that the applicant was unable to produce a urine sample despite being given two chances, and gives no further details.

9 . On 30 May 2014, relying on section 12 of the Enforcement of Criminal Sanctions Act, the prison director delivered a decision suspending the applicant ’ s weekend prison arrangement, and made an application to the court for the applicant to serve the rest of the sentence under a full-time prison regime, that is without being able to work and stay at home during working days. The decision noted that the applicant had failed to give a urine sample and had mentioned to the prison officers that he had smoked marijuana in February 2014. The decision was served on the applicant on 31 May 2014 when he returned to prison for the weekend, and he was subsequently placed in a closed section of the prison, where he remained until the end of his prison term. He lost his job as a result, and visits from his family were conducted through a glass partition from 31 May 2014 onwards.

10 . On 3 June 2014 the applicant lodged an appeal against the above decision with the Ljubljana District Court.

11 . On 9 June 2014 the Ljubljana District Court delivered a decision concerning the prison director ’ s application of 30 May 2014 (see paragraph 9 above). Referring to the applicant ’ s failure to give a urine sample, and to section 12(7) of the Enforcement of Criminal Sanctions Act, the court allowed the prison director ’ s application and ordered that the applicant serve the rest of his sentence under the full-time prison regime. The court noted that the applicant had violated his obligations set out in the decision of 3 April 2014 (see paragraph 7 above) by not providing a urine sample, and had thereby violated the terms of the weekend prison regime.

12 . Following requests by the applicant, he was summoned to undergo the urine test again on 23 June 2014 and 28 July 2014. He produced a urine sample on both occasions, and the results both times were negative for drugs. Notwithstanding that, he stayed in the same closed section under the full-time prison regime.

13. In the meantime, on 24 June 2014 the applicant had appealed against the court decision of 9 June 2014 (see paragraph 11 above), arguing that he had not refused to undergo the test, but had been unable to give the urine sample, which had also been stated on the memo.

14 . On 16 July 2014 the Ljubljana Higher Court dismissed the applicant ’ s appeal, finding that he had failed to prove that he had been unable to give urine sample for objective reasons. The court also noted that the applicant had been informed that a failure to undergo the drug tests would lead to the presumption of a positive result, and found that the burden of proving his abstinence was on the applicant, and that therefore he should have ensured that he produced the urine sample. Lastly, it noted that the legal basis for the decision was to be found in section 12(7) of the Enforcement of Criminal Sanctions Act, which did not require that there should be a serious violation of the terms of the regime. Such a requirement was contained in section 12(8), but did not apply to this case.

15 . An application by the applicant for the protection of legality, which was based on the same arguments as his appeal, was rejected by the Supreme Court on 11 December 2014. The court found that his application did not raise any legal question of significance with regard to jurisprudence.

16 . On 9 March 2015 the applicant lodged a constitutional appeal, invoking the principle of legality, the presumption of innocence, defence rights, the principle of proportionality, the equal protection of rights, the right to judicial protection, the right to a legal remedy, the prohibition of torture, and the principle of res judicata .

17 . On 2 June 2015 the Constitutional Court dismissed the applicant ’ s constitutional complaint, referring to section 55.b of the Constitutional Court Act (see paragraph 20 below).

18 . In the meantime, on 11 May 2015 the Ljubljana District Court had rejected the applicant ’ s appeal against the prison director ’ s decision to suspend his weekend prison regime (see paragraphs 9 and 10 above), finding that the decision was rightly based on section 12(8) of the Enforcement of Criminal Sanctions Act. The court found that the applicant ’ s non-compliance with the obligations set out in the decision of 3 April 2014 (see paragraph 7 above) constituted a serious disciplinary violation. It noted that the applicant had been aware of his obligation to prove his abstinence from drugs, and had consciously disregarded it. The applicant lodged a constitutional appeal against that decision. The Constitutional Court dismissed the appeal on 14 September 2015, finding that the applicant lacked legal interest to pursue the proceedings.

19 . On an unknown date the applicant wrote to the Slovenian Human Rights Ombudsman, asking for her intervention. Subsequently, the Ombudsman ’ s Office undertook a number of activities with a view to clarifying the circumstances, establishing whether there had been any applicable protocols concerning urine testing, and urging the prison authorities and the Ljubljana District Court to deal with the applicant ’ s legal remedies in a timely manner. On 12 August 2015 the Ombudsman ’ s Office sent a twenty-four-page letter to the applicant, explaining the activities it had undertaken and its findings. It also included the applicant ’ s case in its annual report. The Ombudsman ’ s main findings can be summarised as follows:

– The change of prison regime from weekend prison to the closed section amounted to a new instance of deprivation of liberty. Having regard to the serious consequences of the regime change on the applicant ’ s life, this change should be determined in proceedings respecting full due process rights and the principle of proportionality.

– The procedural safeguards concerning guilty plea arrangements were devoid of meaning if the prison authorities were free to interfere with what the court had decided.

– While the decisions referred to the fact that the applicant had had sufficient time to produce a urine sample, there was no indication in the file that this was in fact the case. The applicant had only been allowed to wait a couple of minutes, while another prisoner was giving a sample, and this could not be considered sufficient time.

– The legislation and regulations adopted at national level did not contain any detailed protocol concerning urine testing, and this matter was left to each prison ’ s administration. The Ombudsman recommended that regulations be adopted which would explicitly provide that a prisoner who was unable to provide a urine sample on his first attempt should be afforded a second reasonable opportunity, that is after at least an hour. If, within that time, the prisoner did not provide a urine sample and claimed to have done his best, he should be given a second appointment, and only after such protocol was followed could the prisoner suffer any consequences owing to the presumption of positive testing.

– The memo concerning the applicant ’ s urine testing had not contained all the required information. Among other things, it did not indicate the time when it was drawn up, and there was no signature of the officer who had drawn it up.

– In accordance with section 12(10) of Enforcement of Criminal Sanctions Act, the Ljubljana District Court should have decided the applicant ’ s appeal against the prison director ’ s decision to suspend the weekend prison regime at the same time as the prison director ’ s application. However, the court had only taken the decision on the applicant ’ s appeal later, and only after repeated interventions by the Ombudsman.

– For the prison director ’ s decision to suspend the applicant ’ s weekend prison regime to be lawful, it would have to be shown that such suspension was necessary in the public interest. The fact that the applicant had been allowed to leave after his failed attempt to provide a urine sample, and had then been served with the decision suspending his weekend prison a week later when he had returned to prison as usual, ran contrary to the argument that there was an urgency requiring suspension of the regime prior to the court ’ s decision. It was therefore questionable whether the period of the applicant ’ s detention in the closed section between the prison director ’ s decision and the court ’ s decision could be considered in accordance with law. The General Office of the National Prison Administration ( Generalni urad UIKS) had also agreed with the conclusion that the suspension of the weekend prison regime prior to the court ’ s decision had been unwarranted and had lacked any legal basis.

– The court decisions concerning the regime change were not properly reasoned, and merely reiterated what had been submitted by the prison authorities.

B. Relevant domestic law

20 . Section 55b(2) of the Constitutional Court Act provides as follows:

“(2) A constitutional complaint shall be accepted for consideration: – if there has been a violation of human rights or fundamental freedoms which has had serious consequences for the complainant;

or – if it concerns an important constitutional question which exceeds the importance of the particular case in question.”

21 . Criminal Code, Official Gazette 50/2012 (official consolidated version), in so far as relevant, reads as follows:

Article 86

“(1) Convicted persons serve their sentences in prisons which are determined by law.

(2) Convicted persons are allocated to different prisons depending on how much limitation on their liberty is required.

(3) If the prisoner satisfies the conditions set out in the law concerning the enforcement of criminal sanctions, and if his sentence is of a term no longer than three years, except for a criminal offence concerning sexual integrity, the sentence can be executed in such a manner that the prisoner continues to study or work and live at home, except on non-working days, in principle at the end of week, when he should be in prison. More detailed conditions concerning the execution of the sentence should be determined by the prison.”

22 . The relevant provisions of the Enforcement of Criminal Sanctions Act, Official Gazette nos. 110/206 and 109/2012, read as follows:

Section 12

“(1) Under the conditions set out in the Criminal Code, and following the procedure set out in the Criminal Procedure Act, a prison sentence can be executed in such a manner that the prisoner continues to study or work and live at home, except for on non-working days, in principle at the end of week, when he should be in prison (hereinafter referred to as ‘ weekend prison ’ ). A prisoner can benefit from [such a regime] if his personal conditions are such that he can be trusted not to abuse such a manner of serving his sentence, and if the prisoner is at the time of the decision:

– employed in the territory of the Republic of Slovenia...

...

(4) The prison director shall, within one month of receiving the final decision allowing the prison sentence to be executed by way of weekend prison, [and] after consulting the prisoner and his employer or education provider, issue a decision determining particular conditions under which weekend prison should be carried out. Until such a decision is issued, the prisoner should remain in prison.

(5) The decision mentioned in the preceding paragraph should determine:

– the time and day of the [prisoner ’ s] departure and return to prison

...

– other obligations of the prisoner, his employer ...

...

(6) Following the procedure set out in subsection 4 of this section, the prison director can change the particular conditions under which weekend prison should be carried out if the circumstances underpinning such conditions have changed.

(7) If the prisoner is abusing the weekend prison regime, or no longer satisfies the conditions concerning his employment or education ..., the court can, following an application by a prison director, decide that the prisoner should serve the rest of his sentence in prison.

(8) If the prisoner abuses the weekend prison regime by acts which have elements of a criminal offence or a serious disciplinary offence under this Act, or he commits such an offence while in prison, the prison director can temporarily suspend the weekend prison regime until the first-instance court ’ s decision ..., if the circumstances show that the conditions for weekend prison no longer exist. The court shall make a decision about the application within eight days at most.

(9) Temporary suspension of weekend prison detailed in the preceding paragraph should be ordered orally, and a written decision should be served on the prisoner no later than twenty-four hours from [the time of the decision]. The prisoner can appeal within three days of receiving the decision. The appeal does not have a suspensive effect.

(10) The court should decide on the appeal described in the preceding paragraph at the same time as the prison director ’ s application for the prisoner to serve the remainder of the sentence in prison.”

Section 63

“(1) If there is a reasonable suspicion that a prisoner is under the influence of illegal drugs, and in relation to those [persons] following a drug rehabilitation programme, a test for ascertaining the presence of psychotropic substances in the body or in bodily fluids can be carried out.

...”

COMPLAINTS

23. The applicant ’ s complaints can be summarised as follows:

– Under Article 5, the applicant complains that he was deprived of his liberty unlawfully, submitting that the change of prison regime from weekend prison to the full-time prison regime on the basis of his inability to produce urine lacked any legal basis.

– Under Article 6, the applicant complains that the decisions failed to address in any detail his argument concerning his inability to produce urine and that he was not allowed a real possibility to defend himself.

– Under Article 7, the applicant complains that a new penalty was imposed on him without a proper legal basis.

– In substance, under Article 8, the applicant complains that the change in the prison regime based on his failure to produce a urine sample on one occasion was disproportionate to the aim pursued.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?

In particular, having regard to the Slovenian Human Rights Ombudsman ’ s findings in the present case, was the applicant ’ s detention during the period between 31 May 2014 and 9 June 2014 ordered “in accordance with a procedure prescribed by law”? Did the applicant exhaust domestic remedies in respect of this complaint?

Furthermore, having regard to the alleged lack of sufficiently clear regulation of the urine testing of prisoners and consequences relating to the inability to produce a urine sample, did the applicant ’ s detention ordered by the domestic court ’ s decision of 9 June 2014 comply with the requirement of lawfulness (see Del Río Prada v. Spain [GC], no. 42750/09 , § 130, ECHR 2013-VI)?

2. Was Article 6 § 1 of the Convention applicable to the proceedings concerning the change of prison regime in the present case, either under its civil or under its criminal head?

If so, did the applicant have a fair hearing, in accordance with Article 6 § 1 of the Convention? In particular, were the impugned decisions duly reasoned ?

3. Has there been a violation of Article 7 of the Convention? In particular, having regard to the fact that the “weekend prison” had been imposed on the applicant by the judgment convicting him, did the subsequent change to the full-time prison regime amount to a modification of the scope of the penalty?

If so, was this modification based on a sufficiently clear and foreseeable legal basis ( Del Río Prada , cited above, §§ 78-93 )?

4. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention, on account of the change of his prison regime?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see, mutatis mutandis , Gülmez v. Turkey , no. 16330/02, §§ 49-52, 20 May 2008)?