CENBAUER v. CROATIA – COMMUNICATED CASE1
FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 73786/01
by Miroslav CENBAUER
against Croatia
The European Court of Human Rights (First Section), sitting on 5February2004 as a Chamber composed of:
MrC.L.Rozakis, President,
MrP.Lorenzen,
MrG.Bonello,
MrsF.Tulkens,
MrsN.Vajić,
MrsE.Steiner,
MrK.Hajiyev,judges,
and Mr S.Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 14 January 1997,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Miroslav Cenbauer, is a Croatian national who was born in 1971 and lives in Viljevo, Croatia. He is represented before the Court by Mr Ivica Adamović, a lawyer practising in Donji Miholjac. The respondent Government are represented by their Agent Ms Lidija Lukina Karajković.
A.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.Prison conditions
On 15 December 1993 the applicant was found guilty of several criminal offences, including murder, and sentenced to twelve years’ imprisonment. He started serving his prison sentence on 4 January 1995 in the Lepoglava State Prison (hereinafter “the LSP”) (Kaznenizavod Lepoglava).
He stayed there until 27 September 1995 when he was transferred to the Pula Prison (Zatvor u Puli), staying there until 30 June 1997 when he was transferred to the Glina Penitentiary (Kaznionica u Glini).
The applicant was imprisoned there until 30 December 1998 when for the second time he was transferred to the LSP.
On 4 October 1999 the applicant was transferred again to the Glina Penitentiary where he stayed until 5 April 2000, before being transferred to the Požega Penitentiary (Kaznionica u Požegi). During his stay there the applicant was granted various privileges, including the right to short periods of leave. After committing a criminal offence (burglary and theft) while on leave, the applicant was again transferred on 21 September 2000 to the LSP. He was placed in B wing.
On 22 August 2003 the applicant was discharged as he had served his time in prison.
The LSP is a building comprising five wings; A, B, C, D and E. All wings, with the exception of B, have been renovated.
According to the applicant’s submissions, the cell where he was placed in the LSP was small and he had neither sanitary facilities nor running water. There was no heating and the cell walls were damp and moist. There were general problems with water supply in the prison.
Toiletries and other personal hygiene products were provided every four to five months.
The food served to the inmates was insufficient and of low quality.
In general, the prison was overcrowded. The prison buildings, built about two hundred years ago, were in a very poor state of repair.
As the prison guards did not wear badges with their number or name, the inmates could not know their identities.
The prisoners were made to line up as many as ten times a day, even when it rained. They also had to go on outdoor walks daily in slippers, even when it rained or snowed.
Cases of ill-treatment by the guards were allegedly not uncommon.
On 12 January 2001 the applicant swallowed a metal spoon measuring 15 cm. The applicant alleged that the physician working in the LSP refused to send him to the surgery although the spoon was endangering his health.
According to the Government, B wing was due to undergo renovation in the course of 2003. The applicant’s cell was a double-occupancy cell. Most of the time the applicant shared it with another inmate, and only for a short period of about two months was he alone in the cell. The cell was 3.50 m long, 1.60 m wide and 3.05 m high. It had natural light (window) and one artificial lighting unit. It did not have sanitary facilities, but the applicant had permanent access to sanitary facilities, and he could use a shower in accordance with his needs and the Penitentiary’s house rules.
Inmates were provided with toothpaste, soap, shaving cream, disposable razors, shampoo and toilet paper on a monthly basis. Other toiletries, such as tooth brush, shoe polish, nail clippers, hand and face cream and a comb were provided for the inmates depending on the lifetime of the particular items, ranging from two months to one year.
The food served to the inmates was of the prescribed caloric value and in general the inmates had no complaints in this respect.
The inmates were lined up several times a day before having meals. The inmates who worked were also lined up when going to and coming from work and before and after the break. Inmates were lined up outdoors when the weather so permitted and they were dressed appropriately. In bad weather inmates were lined up inside the prison building.
Medical assistance was available to all inmates as necessary and no cases had been reported where medical help had been refused. In respect of the situation described in the Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 20 to 30September 1998 (hereinafter “the CPT report”), the medical assistance had been improved. There were two doctors employed full time; a general practitioner and a dentist; a dental technician, five health technicians and a pharmacist were employed full time as well. The general practitioner worked either in the morning or in the afternoon shift while in his absence there were medical technicians. Certain specialists (internalist, surgeon, psychiatrist, pulmonologist, otorhinolaryngologist, ophthalmologist) were available for consultation once a week. If there was a need, special treatment was available in the Hospital for Persons Deprived of Liberty (Bolnica za osobe lišene slobode) or in any other regular hospital. Besides the psychiatrist who came once a week, the LSP had a contract with another psychiatrist who came to the LSP when necessary.
The Government submitted that during the applicant’s second stay in the LSP he had swallowed small items or made false allegations that he had swallowed them on several occasions. On all these occasions the applicant had been examined by a doctor, and on three occasions, when the examinations established that he had indeed swallowed an item, he had been hospitalised. Besides the examinations mentioned and the hospital treatment, in the last two years the applicant had been medically examined on more than sixty occasions, including various specialist examinations.
2.The ill-treatment to which the applicant alleges that he was subjected in the Zagreb Hospital for Persons Deprived of Liberty
2.1.The impugned treatment
On 7 August 1999 at 2.55 a.m. the applicant was transferred from the LSP to the Psychiatric Department of the Zagreb Hospital for Persons Deprived of Liberty allegedly for having attempted to commit suicide by hanging and by swallowing pills.
The applicant alleged that, upon his arrival at the hospital, two police officers stripped him naked and kicked him several times on his head, lifted him in the air, dropped him on the floor and then punched him in the forehead and genitals. During this treatment he had lost consciousness and the policemen had splashed him with cold water and continued to hit him all over his body. After that they had handcuffed him and tied his hands to the bed corners, while his legs were tightly tied with a belt. He had been left in that position for twenty-four hours.
Contrary to the applicant’s allegations, the Government alleged that the applicant had been admitted to the hospital in a state of prostration and that he had been examined by the duty doctor upon his arrival at the Hospital for Persons Deprived of Liberty.
According to the report submitted by a policeman who was on duty in the hospital in the night from 6 to 7 August 1999, the applicant had been taken to the hospital at 2:55 in the morning. He had been in a state of prostration and carried to the reception area where he had been examined by the duty doctor. After examination the applicant had been carried to a room by the policemen and nurses where he had been dressed in pyjamas. Since the doctor had suspected that the applicant might again attempt suicide the applicant was restrained in bed. No other measures had been taken against the applicant.
According to the doctor’s report, the applicant had been conscious, with no visible injuries on the neck and without any signs of intoxication. The applicant had refused to communicate. After examination the applicant had been dressed in pyjamas and taken to a room where he had been restrained in bed until the next morning for safety reasons. In the morning he had woken up normally.
The applicant stayed in the hospital until 4 October 1999. During his stay there it had been established that his suicide attempt had been false and that he had done it in order to be transferred to another penal institution.
During his stay in the hospital the applicant underwent numerous medical examinations and dental interventions, and none of the examinations was carried out in respect of any physical injury that might have occurred as a result of ill-treatment. According to the discharge note of 4October 1999, the applicant was discharged from the hospital in a satisfactory physical and mental state. The discharge note also stated that although there were no indications that the applicant suffered from psychosis he was a psychopatological person with tendencies to pathological interpretations and hidden conflicts and aggression.
The applicant was then transferred to another prison, the Glina Penitentiary.
2.2.The nature of the investigation carried out
On 21 April 2000 the applicant lodged a criminal complaint with the Public Prosecutor, Zagreb Office (Županijsko državno odvjetništvo uZagrebu), against unknown perpetrators in respect of the above mentioned ill-treatment.
The Government alleged that the Public Prosecutor’s Office had carried out a thorough and effective investigation; inter alia, medical documentation was examined and the hospital staff who had taken care of the applicant were requested to submit observations.
On 5 December 2000 the Public Prosecutor, Zagreb Office, rejected the criminal report on the ground that the facts established did not disclose any appearance of the offence of ill-treatment in the performance of official duties or the exercise of public authority. It also stated that the person who had allegedly ill-treated the applicant was not employed at the hospital and that medical documentation did not indicate that the applicant had been injured either upon his arrival at the hospital or during his stay there. The applicant was advised about his right to continue prosecution by lodging a motion to indict with the Zagreb Municipal Court (Općinski sud uZagrebu) within eight days following receipt of the notice.
The applicant alleges that he lodged another criminal complaint in connection with the same matter, asking to identify the perpetrators, and that his request was denied.
B.Relevant domestic law
The relevant provisions of the Croatian Constitution (Ustav Republike Hrvatske) provide as follows:
“Section 23
No one shall be subjected to any form of ill-treatment...”
Section 59 (1) of the 1999 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske):
“Every person or legal entity may file a constitutional complaint with the Constitutional Court if they consider that a judicial or administrative decision or a decision issued by a body invested with public authority has violated their constitutionally guaranteed freedoms or human or civic rights (hereinafter (the constitutional rights)).”
Section 17 of the amended Act on Enforcement of Prison Terms (Zakon o izvršavanju kazne zatvora - amendments as of 1 July 2001) provides as follows:
Judicial protection against acts and decisions of the prison administration
Section 17
(1) An inmate may file a request seeking judicial protection against acts or decisions unlawfully restricting or depriving him of any right guaranteed in this Act.
(2) The request shall be dealt with by a judge responsible for supervising the execution of sentences.
Section 200 (1) of the Civil Obligations Act provides as follows:
Courts may award compensation for non-pecuniary damage on account of:
-physical or mental pain suffered;
–reduced vital activities;
-disfigurement;
-violation of honour, freedom or a personal right;
-the death of a close relative;
-and/or fear,
where they find it justified under the circumstances of the case, especially in terms of the intensity and duration of pain or fear suffered, irrespective of any sum awarded for pecuniary damage and even if there is no award.”
C. 1.The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
The CPT visited Croatia from 20 until 30 September 1998. Its findings with regard to the LSP were as follows (extract from the report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman and DegradingTreatment or Punishment (CPT) from 20 to 30 September 1998, CPT/Inf. (2001) 4):
“a. material conditions
“58.... the two unrenovated wings, B and E, accommodating mainly unemployed prisoners, offered very poor conditions of detention. Prisoners in these wings were being held under cramped conditions, typically two to three persons in cells measuring between 5,5 to some 6,5 m². The CPT must emphasise that cells of such size are only suitable for individual occupancy. Further, the cells were dirty and in a poor state of repair, and a number of them had poor access to natural light and/or dim or artificial lighting. In addition, they were not equipped with integral sanitation; as a result, at night inmates had to comply with the needs of nature using a bucket in their cell. As for the communal sanitary facilities, they were in a generally woeful state of repair (some of them with hazardous flooded floors.) It is also noteworthy that several prisoners in these two wings complained that they were not able to obtain necessary toiletries. The director informed the delegation that the renovation of the whole establishment was planned, but that difficulties were being encountered in obtaining the necessary resources. The CPT must stress that the prevailing material conditions in B and E wings are quite unacceptable.
Consequently, the Committee recommends that the renovation of these wings, including installation of in-cell sanitation following the model of D wing, be treated as a matter of high priority.
Moreover, the CPT recommends that steps be taken immediately to ensure that all prisoners at Lepoglava State Prison are able to obtain personal hygiene products (toilet paper, soap, toothpaste, etc.) as well as the necessary means to maintain their cells and communal sanitary facilities in a clean and hygienic state.
59.Further, as already indicated in paragraphs 56 and 58, the closed unit was overcrowded at the time of the visit. This was particularly the case in the unrenovated wings...
The CPT recommends that serious efforts be made to reduce cell occupancy levels in the closed unit at Lepoglava State Prison ...
b. regime
(...)
63.... The situation of the non-workers was rendered all the more unsatisfactory by the scarcity of other regime activities at the prison. Although the establishment was equipped with good educational facilities, only about 50 prisoners - including some who already worked - were attending classes. Further, there was little evidence of therapeutic (i.e. offence-focused) programmes and no organised sport activities. To sum up, almost two thirds of the prisoners accommodated in the closed unit were subject to an impoverished regime; the typical daily programme for a non-working prisoner was found to consist of little else besides watching television in an association area and outdoor exercise.
64.... For the majority of prisoners in the establishment’s closed unit, there was no positive regime in place which might encourage them to address their offending behaviour.
The CPT recommends that the Croatian authorities take the necessary steps to ensure that all prisoners at Lepoglava State Prison have access to an appropriate range of work, educational, sports and recreational activities.
(...)
d. medical care
69.Health care staff resources at Lepoglava State Prison were manifestly insufficient at the time of the visit.
According to regulations issued on 27 June 1994, the prison’s full-time health care staff should consist of a head doctor, a psychiatrist, a general practitioner, a dentist, four nurses, a pharmacist, and three assistants (dental, laboratory and radiology). Such a team could be considered as adequate for an establishment accommodating some 650 prisoners. However, the actual staffing levels fell far short of those specified in the regulations. The post of head doctor, psychiatrist, general practitioner and dentist were all vacant and the full-time health care team numbered a mere six persons: a health technician, a pharmacist, a dental assistant and three nurses. To make up for the absence of a full-time doctor, the ad hoc solution adopted was to employ an outside doctor (cardiologist) for one or two hours each morning on weekdays. The only other doctors to visit the prison were certain specialists (a psychiatrist, a pulmonologist, a surgeon, and specialists in gastroenterology and internal medicine) who were available for consultations for a few hours every two weeks.