Case of European Court of Human Rights, October 31, 2019 (case ULEMEK v. CROATIA)

Defense:CROATIA
Resolution Date:October 31, 2019
SUMMARY

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Effective domestic remedy;(Art. 35-1) Six-month period;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - ... (see full summary)

 
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FIRST SECTION

CASE OF ULEMEK v. CROATIA

(Application no. 21613/16)

JUDGMENT

Art 35 § 1 • Relationship between preventive and compensatory remedies in poor conditions of detention cases • Exhaustion of domestic remedies • Six-month period • Effectiveness of preventive and compensatory remediesArt 3 • Degrading treatment

STRASBOURG

31 October 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ulemek v. Croatia,

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

Krzysztof Wojtyczek, President,Ksenija Turković,Aleš Pejchal,Armen Harutyunyan,Tim Eicke,Jovan Ilievski,Raffaele Sabato, judges,and Abel Campos, Section Registrar,

Having deliberated in private on 8 October 2019,

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

PROCEDURE

  1. The case originated in an application (no. 21613/16) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Dušan Ulemek (“the applicant”), on 15 April 2016.

  2. The applicant, who had been granted legal aid, was represented by Ms L. Horvat, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

  3. The applicant alleged, in particular, inadequate conditions of detention and lack of an effective remedy in that respect.

  4. On 28 June 2016 notice of the application was given to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1982.

  6. By a judgment of the Zagreb County Court (Županijski sud u Zagrebu) of 2 March 2010 the applicant was sentenced to one year and six months’ imprisonment on charges of aiding and abetting robbery.

  7. The applicant served his prison sentence in Zagreb Prison from 12 May until 8 June 2011, when he was transferred to Glina State Prison. He was released on parole on 28 September 2012.

    1. The applicant’s detention in Zagreb Prison

  8. The applicant alleged that he had been placed together with seven, and at times eight, people in a cell with 21.10 square metres (sq. m) of floor space. A sanitary facility measuring 1.57 sq. m had also been placed in the cell. The sanitary facility had been only partially partitioned from the remainder of the cell. Food had been served in the cell although there was a constant smell coming from the sanitary facility. The inmates had been allowed to have one hour’s walk outside the cell and the remainder of time they had spent locked in the cell. Moreover, the inmates had not been provided with adequate hygiene and sanitary facilities, such as showering, and no recreational or vocational activities had been organised in Zagreb Prison. The cell was not air conditioned and had only very limited access of daylight.

  9. According to the information provided by the Government, which is largely based on a report by the Ministry of Justice Prison Service of 20 September 2016, the applicant had been placed in a cell measuring 21.10 sq. m of floor space and containing a sanitary facility measuring 1.57 sq. m together with five-six and sometimes seven prisoners. The sanitary facility was partitioned from the remainder of the cell by a wall 1,80 metres high. Food had been served in the cells. The inmates had been allowed to take two hours of outdoor exercise. They had been provided with all the relevant hygiene and sanitary facilities and the hygiene in the cell had been adequate.

  10. During his stay in Zagreb Prison the applicant did not make a complaint to the prison administration or to the relevant sentence-execution judge concerning the conditions of his detention.

    1. The applicant’s detention in Glina State Prison

  11. Conditions of the applicant’s detention in Glina State Prison

  12. According to the applicant, he had been placed in several cells differing in size and the number of prisoners placed there. The cells had been overcrowded and the out-of-cell activities had not been properly organised. Moreover, the prisoners had lacked basic hygiene and sanitary facilities. He had not been offered any vocational activities. He had been harassed and attacked by other inmates, so he had been separated from them and kept in isolation. He had not been allowed to visit his sick family members and had not been allowed conjugal visits until he married his partner. Although he had been in need of urgent dental treatment, it had been unjustifiably delayed for five months.

  13. According to the Government, relying on the report by the Ministry of Justice Prison Service (see paragraph 9 above) and an additional report on the conditions in Glina State Prison of 30 January 2017, the details of the applicant’s accommodation were the following:

    - between 8 June and 1 August 2011 the applicant had been placed in a cell measuring 32 sq. m of living space (without the sanitary facility) together with five other persons. The cell was located in the old part of the Glina State Prison building (called “Internat”). The cell had a sanitary facility of 2,20 sq. m, which was separated from the rest of the cell by a door. The cell also had access to fresh air and daylight. Inmates had been obliged to stay in the cell only in the period between 11 p.m. and 7 a.m. Otherwise they had been free to leave the cell and to take part in relevant recreational activities. Food had been served in the cells;

    - between 1 August and 20 September 2011 the applicant had been placed in the newly built part of Glina State Prison in a cell measuring 22.30 sq. m of living space together with five other persons. The cell had a sanitary facility of 2,20 sq. m separated from the rest of the cell by a partition. The cells in the newly built part had been locked between 11 p.m. and 7 a.m. and between 6 p.m. and 7 p.m. Otherwise, inmates had been free to leave the cell and to take part in relevant recreational activities. The cell provided access to fresh air and daylight and was equipped with under-floor heating. Food had been served in the cells;

    - between 20 September and 19 December 2011, at his own request related to his fear of alleged attacks by other prisoners (see paragraph 16 below), the applicant had been placed alone in a cell for special treatment measuring 11.70 sq. m. The cell had a sanitary facility separated from the rest of the cell by a partition. It also provided access to fresh air and daylight. The applicant had a daily opportunity of one hour outdoor exercise in the morning. In that period he had also been taken to see the dentist;

    - between 19 December 2011 and 18 July 2012 the applicant had been placed in the newly built part of Glina State Prison in a cell measuring 22.30 sq. m of living space together with five other persons. It had a separated sanitary facility of 2,20 sq. m. Other conditions in all cells in the new part of the building were the same as described above;

    - between 18 July and 19 September 2012 the applicant had been placed in another cell in the newly built part of Glina State Prison. The cell had 22.30 sq. m of floor surface and he had been placed there together with five other persons. Other conditions were the same as in the previous cell;

    - the period between 19 and 28 September 2012 the applicant had spent in a cell for prisoners preparing for release which was located in the Internat. The cell measured 17.37 sq. m and he had been placed there with seven other persons. It had a sanitary facility separated from the rest of the cell by a door but showers were not in the same cell. This cell was never locked. During his stay there, the applicant was involved in various activities where he was prepared for the life outside prison.

  14. The Government also submitted that throughout his stay in Glina State Prison, the applicant had been provided with sufficient sanitary and hygiene amenities and had had adequate recreational and educational (library) activities at his disposal. In particular, prisoners had been allowed to have two hours of outdoor exercise and had been engaged in various sport activities. Moreover, the applicant had been provided with adequate medical treatment. As of 4 October 2011 he had seen a dentist nine times during his imprisonment and had been provided psychiatric treatment, particularly since he had had a history of psychiatric treatment even before his imprisonment.

  15. The Government also explained that the applicant had been given the possibility of receiving parcels and visits while in prison. The only restriction in this respect had been placed upon the visits of his current wife, who, at the time of the applicant’s imprisonment, had not been able to prove that they had been partners and the police had provided information to the prison authorities that she had been registered as perpetrator of an offence. However, at the applicant’s request, the prison authorities had allowed the applicant to marry the person in question and afterwards he had been allowed to have conjugal visits by her on several occasions. The Government also explained that the applicant’s initial requests for temporary release to make visits outside the prison had been restricted due to the fact that three separate sets of criminal proceedings against him were still pending. However, by the end of his term of imprisonment, he had been allowed short visits outside the prison to see his family.

  16. In support of the above arguments, the Government provided the applicant’s prisoner’s file.

  17. It follows from the applicant’s file that on 9 and 27 June and 7 and 16 August 2011 he asked for an interview with the prison guards concerning his fear of other prisoners. Each time he was interviewed but refused to provide further details concerning his fear and simply refused to move to the new part of the building. As this led to disciplinary sanctioning, the applicant...

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