28 April 2010

THIRD SECTION

SABIC and 8 others against Slovenia (see the attached table)

STATEMENT OF FACTS

THE FACTS

1 . The applicants are current or previous prisoners in Ljubljana Prison. For their personal data, see the attached table. They were represented before the Co urt by Odvetniška Družba Matoz o.p . d.o.o ., a law firm practising in Koper .

A. The circumstances of the case

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

1. Occupancy level and the size of the cells

3 . Ljubljana Prison holds sentenced prisoners, remand prisoners and prisoners in administrative detention Accor ding to the 2008 Annual Report by the Administration for th e Execution of Penal Sentences , i t has an official capacity of 128 inmates. In 2008 its average occupancy level was 251 inmates, which was 97% beyond its designated capacity.

4 . All the applicants are or were held in cells measuring 17 sq. m, shared by five inmates (3.4 sq. m of personal space per inmate). The personal space available to each applicant includes a bed, and also one wardrobe per cell.

5 . Each cell has access to one lavatory and one washbasin. Showers are situated in the corridors and are shared by a large number of inmates.

6 . F or further details see the attached table .

2 . Other aspects of physical conditions in Ljubljana Prison

7 . As out-of-cell time is limited to four hours per day, the inmates spend at least twenty hours per day in their cells confined to their beds. They have almost no recreation available. Owing to overcrowding, the ventilation is inadequate, temperatures are often extreme , and hygiene is lacking. The inmates suffer from constant disturbance from other s , which extends overnight, and they cannot enjoy a minimum level of privacy. The fact that the prison is severely understaffed seriously affects the security and medical and psychological assistance available to prisoners. Several requests have been made by the prisoners for a transfer to another room or section, but to no avail as the prison operate s beyond the official capacity. Because of this, there is no proper system in operation that would allow drug users to be separated from the rest of the prison population and in particular from those who have been treated or are undergoing treatment for drug abuse. Contact with the outside world through the use of a phone or visits is severely limited.

B. Relevant domestic law

1. General rules concerning living space available to prisoners

8 . The relevant parts of sections 42 and 43 of the Execution of Penal Sentences Act (“the EPSA” – Zakon o izvrševanju kazenskih sankcij , Official Gazette No. 22/2000) provide as follows:

Section 42

“ ...

(2) A prisoner should normally be held in a single cell. Shared cells should not have more than eight beds.

... ”

Section 43

“A prisoner should be provided with the possibility of spending a minimum of two hours per day outdoors.”

9 . Rule 27 of the Rules on Execution of Sentences of Imprisonment ( Pravilnik o izvrševanju kazni zapora , Official Gazette no. 102/2000) provides:

“Cells must be bright, dry, airy, and sufficiently large. Each prisoner should have at least 9 sq. m of space in a single cell, and 7 sq. m of space in a shared cell.”

2. Remedies

10 . Domestic legislation provides for several remedies or supervisory mechanisms which , to a greater or lesser extent, could be applicable in respect of improper conditions of detention. However, at this stage there is little material available to show how these remedies work in practice and in the circumstances to which the applicants refer.

(a) Request for judicial protection

11 . Section 83 of the EPSA reads as follows:

“(1) A prisoner who claims to have suffered torture or other cruel forms of inhuman or degrading treatment may lodge a request for judicial protection.

(2) The prison authorities shall also forward to the public prosecutor any request made under the preceding paragraph.”

(b) Administrative complaint

12 . A formal manner of dealing with prisoners ’ complaints is established within the administrative procedure whereby complaints are dealt with by the prison governor. An appeal can then be lodged with the Ministry of Justice (which is the ministry responsible for prisons). Section 85 of the EPSA provides:

“(1) If a prisoner alleges a violation of other rights or any irregularities which are not subject to judicial protection, the prisoner may complain to the prison governor.

(2) If the prisoner does not receive a reply to such a complaint within thirty days or is dissatisfied with the decision, he or she may lodge an application with the Ministry of Justice.

(3) Prisoners also have the right to complain of a violation of their rights or of any irregularities referred to in subsection (1) above to other bodies responsible for the supervision of the prison.”

13 . This remedy does not in principle involve the participation of the complainant. The decision ultimately given in this procedure can then be challenged before the Administrative Court by means of an application for review. In this connection Article 157 of the Constitution of the Republic of Slovenia ( Ustava Republike Slovenije – “the Constitution” ) is of relevance. It provides:

“A court with jurisdiction to review administrative decisions shall [have jurisdiction to] determine the legality of final individual decisions by State or local authorities or holders of public office concerning the rights or obligations or legal entitlements of individuals and organisations, if no other legal protection is specifically provided.

If no other legal protection is provided, the court with jurisdiction to review administrative decisions shall also [have jurisdiction to] determine the legality of individual acts and decisions which encroach upon the constitutional rights of the individual.”

More specifically, section 4 of the Administrative Disputes Act (Official Gazette No. 105/2006) provides:

“(1) The courts in administrative proceedings shall also decide on the legality of decisions and acts which interfere with individuals ’ human rights and fundamental freedoms, if no other judicial protection is provided ... ”

(c) Civil claim

14 . Article 26 of the Constitution provides:

“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a State or local authority or as a holder of public office. ...”

15 . More specifically, section 84 of the EPSA reads as follows:

“If a prisoner has suffered damage as a result of treatment referred to in the preceding section [see paragraph 14 above], he or she may claim compensation directly from the person responsible in accordance with the applicable laws.”

16 . Compensation can normally be claimed under the general rules of the Code of Obligations 2001 ( Obligacijski zakonik , Official Gazette no. 83/2001 ).

(d) Constitutional appeal

17 . As regards a constitutional appeal, it can only be used once all other remedies have been exhausted. In decision no. Up-863/04 of 22 February 2005, which concerned the alleged ill-treatment of a detainee, the Constitutional Court dismissed the appeal, finding that the appellant had failed to make use of the following remedies: a claim provided for in section 4 of the Administrative Disputes Act; a criminal complaint against those responsible or a subsidiary prosecution; and a complaint to the prison governor .

(e) Supervision of prisons by the Ministry of Justice and the district court judge

18 . Section 212 of the EPSA, in so far as relevant, provides:

“(1) Supervision of the lawfulness of the treatment of prisoners shall be carried out by the Ministry and the judge of the district court ... [They] shall acquaint themselves with how prisoners are treated and whether their rights are respected. This shall be done in the absence of prison staff, if so requested by the prisoner.

(2) If the Ministry and the judge of the district court establish that the rights of prisoners have been violated, they shall do everything necessary for the protection of those rights.

(3) The supervision referred to in the first paragraph may also be carried out by the Ombudsman for Human Rights ... and by international bodies for the protection of human rights and the prevention of torture and inhuman and degrading treatment and punishment.”

C. Relevant international standards

19 . The relevant extracts from the 2nd General Report by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) ( CPT / Inf (92) 3) read as follows:

“46. Overcrowding is an issue of direct relevance to the CPT ’ s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.

47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P] risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...

48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...

49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...

50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.”

20 . The CPT ’ s 7th General Report ( CPT / Inf (97) 10) contains the following passage:

“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee ’ s mandate (cf. CPT / Inf (92) 3, paragraph 46).

An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.

The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”

21 . The CPT ’ s 11th General Report ( CPT / Inf (2001) 16) contains the following passages:

“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...

29. In a number of countries visited by the CPT , particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions...

Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.

30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E] ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”

22 . The relevant extracts from the Recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules ( Rec (2006)2, adopted on 11 January 2006 at the 952nd meeting of the Ministers ’ Deputies) read as follows:

“...

1. All persons deprived of their liberty shall be treated with respect for their human rights.

...

3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.

4. Prison conditions that infringe prisoners ’ human rights are not justified by lack of resources.

5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.

6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.

...

18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.

18.2 In all buildings where prisoners are required to live, work or congregate:

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;

b. artificial light shall satisfy recognised technical standards ...

18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.

18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.

18.5 Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.

18.6 Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other.

...

19.1 All parts of every prison shall be properly maintained and kept clean at all times.

19.2 When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean.

19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.

19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.

19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy.

19.6 The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.”

D. Relevant international and domestic reports

1. Reports by the CPT

23 . The CPT visited Ljubljana Prison in 1995 and 2001. During its most recent visit in 2006 the CPT visited the remand section of Ljubljana Prison.

24 . In 1995 the number of prisoners held in the prison was significantly lower than it is currently , namely 188 prisoners ( see document CPT/ Inf (96) 18). Following the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/ Inf (2002) 36):

“ ii. Ljubljana Prison

59. ... the CPT reiterates its recommendation that efforts be made to reduce to a maximum of four the number of prisoners held in the cells measuring 18 m², and to accommodate only one prisoner in each cell measuring 8 m².”

25 . Following the visit in 2006, the following observations were made to the Slovenian authorities in respect of the remand section of Ljubljana Prison (CPT/ Inf (2008) 7):

“ 49. With an official capacity of 73, the remand section of the Ljubljana Prison was accommodating 123 persons (including three juveniles) at the time of the visit [ the whole establishment was accommodating 238 prisoners (with an official capacity of 128) ] . Prisoners continued to be accommodated under cramped conditions, with generally five persons in 18 m² cells and two persons in cells measuring 8 m² (including the sanitary annexe). Naturally, this situation had negative repercussions for all aspects of life, both for prisoners and staff. The CPT calls upon the Slovenian authorities to implement its long-standing recommendation to reduce cell occupancy rates at Ljubljana Prison. Cells measuring 18 m² should not accommodate more than four prisoners, and the 8 m² cells should preferably not accommodate more than one prisoner.

...

50. At the time of the 1995 and 2001 visits, Ljubljana Prison was not in a position to offer remand prisoners anything which remotely resembled a programme of activities. Apart from two hours of daily outdoor exercise and access to a fitness room twice a week, the vast majority of those prisoners spent up to 22 hours a day confined to cramped cells, their only distraction being watching television, listening to the radio or reading books or newspapers. Regrettably, the situation observed in 2006 was hardly any different. ”

2. The 2008 Report by the Administration for the Execution of Penal Sentences

26 . In the chapter concerning the living conditions in Slovenian prisons, the Administration for the Execution of Penal Sentences stated the following (p. 98):

“ ... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia , Dob, Ljubljana and Maribor . The urgency of improving living conditions has been stressed by the Ombudsman for Human Rights, the CPT and other institutions.

... It is understandable that such living conditions adversely affect prisoners ’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners ’ rights. In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem.”

3. Report by the Slovenian Ombudsman for Human Rights

27 . On 17 and 18 February 2009 the Ombudsman for Human Rights conducted a visit to Ljubljana Prison in his capacity as a national preventive mechanism under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or De grading Treatment or Punishment . The report published following the meeting reads as follows:

“ Official capacity is still 128 prisoners . This includes 55 places designated for prisoners on remand, 65 places for sentenced prisoners and 8 places for prisoners in administrative detention. On the day of the visit, the prison held 254 prisoners (126 prisoners on remand, 126 sentenced prisoners and two prisoners in administrative detention). The official capacity was therefore exceeded by 98%.

... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... The Ministry has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison, the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ...

We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ...

... In the light of the critical overcrowding and all the consequences which relate to it, we consider the conditions unacceptable.

...

Prisoners on remand are locked in their cells for on average more than 21 hours a day. The only everyday activity outside cells is an exercise in the small internal courtyard ... Likewise, a roof has still not been constructed to allow the use of the courtyard in bad weather as well. ...

Our proposal to allow prisoners on remand more out-of-cell time was rejected [by the prison administration] with the explanation that the conditions do not allow this.”

COMPLAINTS

28 . The applicants complain that the conditions of thei r detention in Ljubljana Prison amounted to a violation of Articles 3 and 8 of the Convention. In particular, they complain o f severe overcrowding, which le d to a lack of personal space, poor sanitary conditions, insufficient ventilation, deprivation of privacy, excessive restrictions on out-of-cell time , an inadequate level of heath care and psychological assistance, and reduced security.

29 . They also submit that the situation amount ed to a structural problem, which has been acknowledged by the domestic authorities.

30 . In addition, the applicants complain that owing to the systemic nature of the violation, they do not have any effective remedy at their disposal. In any event, there is no evidence that the remedies which are available in theory could work effectively in practice when it comes to prison conditions and treatment of prisoners. They i nvoke Article 13 on that account.

QUESTIONS TO THE PARTIES

1. In respect of each applicant and each cell in which he was held , t he Government are requested to comment on the following points.

(a) Indicate the cell number and the dates of the applicant ’ s stay.

(b) What was the floor surface of the cell (in square metres)?

(c) How many beds were available in the cell at the time of the applicant ’ s stay?

(d) How many detainees were held in the cell at the time of the applicant ’ s stay ? Indicate the maximum number of detainees, not the average.

(e) Was the cell equipped with a functioning ventilation system at the time of the applicant ’ s stay ?

(f ) For each applicant , indicate the duration of out-of-cell time available to him per day and the area available for this purpose.

(g ) For each applicant, indicate the frequency and the duration of outdoor exercise, the surface area of the exercise yard (in square metres) he can use during exercise and the type of the roof above the yard (metal bars, solid roof, netting, etc.).

(h) What were the sanitary conditions in respect of the cells in which the applicants were held?

Where applicable, the Government are requested to provide the above information also as regards the period following the lodging of the applications.

2. As regards each applicant, did the conditions of his detention amount to treatment prohibited by Article 3 of the Convention?

3. Has there been an unjustified interference with each applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

4. Do these cases reveal the existence of a structural problem? Does this situation amount to “a practice incompatible with the Convention” (see Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999 ‑ V)?

5 . Did the applicants have effective domestic remedies available – as required by Article 13 of the Convention – for their complaint about the inhuman and degrading conditions of their detention? In particular, was there an effective mechanism, sufficiently established in law and practice, that would have allowed the authorities to put an end to the continuing violation of the applicants ’ rights under Article 3 while they were still in detention, and/or to grant them adequate compensation for non-pecuniary damage after their detention had already ended?

6 . W hat is the time frame within which the construction project concerning the Ljubljana Prison will be completed?

APP.NO.

FIRST NAME

SURNAME

NATIONALITY

BIRTH DATE

INTRODUCTION DATE

SIZE OF CELL/OCCUPANCY LEVEL

EST. LENGTH OF STAY

5738/10

Milan

Šabić

Slovene

15/08/1963

18/12/2009

17m²/5 (3,4m²)

11/08 - 03/10

5741/10

Sanel

Šemić

Slovene

17/01/1985

18/12/2009

17m²/5 (3,4m²)

07/09 - 06/10

5747/10

Marko

Jevšnik

Slovene

15/01/1985

18/12/2009

17m²/5 (3,4m²)

07/09 - 09/10

5995/10

Želko

Kovačič

Slovene

01/01/1979

24/12/2009

17m²/5 (3,4m²)

11/08 - 05/10

6011/10

Ferdinand

Å trukelj

Slovene

11/02/1964

24/12/2009

17m²/5 (3,4m²)

03/09 - 12/09

6120/10

Darko

Slemenšek

Slovene

29/12/1970

24/12/2009

17m²/5 (3,4m²)

02/08 - 09/10

6625/10

Nenad

Beganović

Slovene

21/07/1986

18/12/2009

17m²/5 (3,4m²)

07/09 - 05/10

6904/10

Maks

Kovačič

Slovene

12/06/1978

18/12/2009

17m²/5 (3,4m²)

07/09 - 06/10

7054/10

Božo

Četić

Slovene

03/01/1957

18/12/2009

17m²/5 (3,4m²)

05/09 - 03/10