ECHR judgment of October 31, 2019 in the case of Ulemek v. Croatia (application No. 21613/16).
In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated by Croatia.
The case has successfully examined an application about the effectiveness of preventive and compensatory remedies against inappropriate conditions of detention. The case has violated the requirements of Article 3 of the Convention for the Protection of Rights and Fundamental Freedoms.
Circumstances of the case
The applicant was serving a sentence of imprisonment in two correctional institutions in Croatia, namely in the prison of Zagreb and the state prison of Glina. The prison regime and conditions in these two institutions were different. As regards the conditions of detention in the Zagreb prison, the applicant did not take the preventive remedy - the opportunity to appeal to the prison administration and / or to a court authorized to resolve the execution of the sentence. The Court has previously found this remedy effective. As regards the conditions of detention in the Glina State Prison, the applicant used this remedy, but after his complaints were dismissed, he did not appeal to the Constitutional Court. The Court has previously found that applying to the Constitutional Court was an additional necessary step in the process of exhausting preventive remedies in relation to conditions in Croatia. Nevertheless, after being released from the State Prison in Glina, the applicant filed a lawsuit in the court for damages caused to him in connection with inappropriate conditions of detention in both institutions. After the Constitutional Court examined the applicant’s complaint on the merits and dismissed it, the applicant appealed to the European Court within six months after receiving the decision of the Constitutional Court. He mainly complained about the alleged violation of Articles 3 and 13 of the Convention in connection with the inadequate conditions of his detention in both prisons and the lack of effective remedies in this regard.
QUESTIONS OF LAW
(a) The effective remedies provided for in Article 13 of the Convention, as a whole and in relation to the conditions of detention in the case-law of the Court. The Court has already considered structural reforms in the system of remedies in different countries. These reforms were carried out in response to the pilot and leading judgments of the European Court on the issue of inappropriate conditions of detention. The European Court reaffirmed its case-law, according to which preventive and compensatory remedies in this area should complement each other.
(b) Exhaustion of domestic remedies and compliance with the six-month rule for filing a complaint in cases concerning conditions of detention in the case-law of the European Court. The applicants, who were still detained in the conditions of which they complained, were required to exhaust available and effective preventive remedies before filing a complaint with the Court.
However, in cases in which improper conditions of detention have already ceased, the use of a compensatory remedy, such as filing a civil claim for damages, was generally found to be effective for the purposes of Article 35 of the Convention in the absence of a preventive remedy which the applicants could and should have used in the time of their detention. Consequently, when the applicant was already released by the time he lodged a complaint with the Court, a remedy of a purely compensatory nature, as a rule, could be effective and provide the applicant with just satisfaction for the alleged violation of Article 3 of the Convention. At the same time, for countries where an effective preventive remedy existed, the Court considered the effectiveness of a compensatory remedy in conjunction with the use of an effective preventive remedy.
In this context, the use of a civil claim for damages was not an alternative to the proper use of a preventive remedy, irrespective of the fact that these remedies could be generally used in two separate proceedings. Furthermore, it was not unreasonable to require a prisoner to use an affordable and effective preventive remedy as a prerequisite for the use of a compensatory remedy aimed at obtaining compensation in connection with improper conditions of detention in the past. An effective preventive remedy was able to directly affect the applicant’s inappropriate conditions of detention. As regards the compensatory means, it could only provide compensation for the consequences of the alleged inadequate conditions of the applicant's detention.
In terms of State obligations under Article 13 of the Convention, the prospect of redress in the future could not legitimize the particularly grievous suffering that violated Article 3 of the Convention, and unacceptably weakened the legal obligations of the state to bring its standards of detention in line with the Convention. Thus, given the close relationship between Article 13 and Article 35 § 1 of the Convention, it would be unreasonable to consider that as soon as a preventive remedy has been introduced for the purposes of Article 13 of the Convention (a remedy which the Court considers most appropriate to examine complaints about improper conditions of detention), the applicant could be exempted from the obligation to use this tool before filing a complaint with the European Court.
Therefore, as a general rule, before filing complaints with the European Court about improper conditions of detention, applicants must first of all properly use an affordable and effective preventive remedy, and then, if necessary, an appropriate compensatory remedy.
However, there may be cases in which the use of a remedy that is effective in other cases seems futile due to the short-term detention of the applicant in unsatisfactory conditions. In such cases, the only reliable alternative is a compensatory remedy that provides an opportunity to receive compensation for inappropriate conditions in the past. How short detention should be in order for a preventive remedy to be useless may depend on many factors related to how the domestic remedy system works and the nature of the alleged inappropriate conditions of detention.
The use of a compensatory remedy cannot be unlimited in time: as a rule, it should be used within six months after the end of the period when the applicant was held in allegedly inappropriate conditions, without prejudice to the possibility of establishing different rules in the relevant legislation for the use of remedies or a longer period in order to resort to a compensatory remedy, in which case the use of this remedy elyaetsya relevant provisions of the domestic law of those rules and terms.
If the applicant did not have an effective remedy, the relevant period begins from the moment the actions or measures complained of by the applicant, or from the date the applicant became aware of the action or its consequences, or from the moment the damage was caused to the applicant. When it was clear from the very beginning that the use of a remedy could not be considered effective in relation to the applicant's complaints, his use could not be interrupted for a period of six months. Thus, when the applicant took advantage of a formally existing remedy and only then found out about the circumstances that made him ineffective, it might be worth starting the six-month period from the moment when the applicant found out or should have learned about these circumstances.
Moreover, in the context of the conditions of detention, the period of the applicant's detention should be considered as an “ongoing situation” during which the applicant is held in various institutions and / or regimes while the detention is carried out within the same type of institution, essentially in similar conditions. Brief periods of absence, when the applicant is taken away from the institution for interrogation or other procedural actions, does not affect the continued nature of his detention. However, the release of the applicant or his transfer to a different type of detention facility both inside and outside the facility means ending the “ongoing situation”. A complaint about the conditions of detention should have been filed within six months from the end of the situation complained of by the applicant, or, if there is an effective remedy that must be exhausted, within six months from the date the final decision was made as part of the exhaustion procedure.
(c) Preliminary observations regarding the preventive and compensatory remedies available in Croatia. The Croatian legal system provides for both preventive and compensatory remedies. A preventive remedy is used by sending a complaint to the prison administration and / or to a court authorized to decide on the enforcement of the sentence, and a compensatory remedy is related to the possibility of obtaining compensation in the relevant civil courts. In any case, if the use of a preventive and / or compensatory means leads to an unfavorable result, the applicant may appeal to the Constitutional Court, which also has the right to make a decision on release from improper conditions of detention.
However, a compensatory remedy aimed at obtaining redress for the period during which the applicant was detained in inadequate conditions was not in itself effective. Only in conjunction with the effective use of a preventive measure, which led to the recognition of a violation of the applicant’s rights and his transfer from inappropriate conditions of detention, could the civil process meet the requirements of effectiveness. The applicants should diligently use the preventive remedy available to them and, in the event of an adverse outcome, apply to the Constitutional Court.
Consequently, the applicants were obliged, before filing a complaint with the European Court, to provide the Croatian Constitutional Court with the opportunity to rectify the situation and consider the issues that the applicants intended to submit to the European Court. If the applicants did not comply with this requirement, the Court declared their complaints inadmissible on the merits for failure to exhaust domestic remedies.
According to the relevant practice of the Croatian authorities, including the Constitutional Court, after sending the first complaint to the prison administration and / or to the court, authorized to resolve the issues of execution of the sentence, through the use of preventive remedies, neither the applicant’s transfer from inappropriate conditions of detention, nor his The release did not exclude the consideration of the case and the finding of a violation of Article 3 of the Convention.
Regarding the use of a compensatory remedy, the Constitutional Court recently found that complainants were not required to use a preventive remedy by sending a complaint to a court authorized to resolve sentencing issues so that they could officially file a compensation claim with a civil court (which , in turn, would allow them to apply to the Constitutional Court if necessary). However, when the applicants applied to the Constitutional Court after refusing to satisfy their claim for compensation in connection with inadequate conditions of detention, it appears that the Constitutional Court treated their cases in two ways. On the one hand, in several cases, the Constitutional Court limited the consideration of the case to a procedural assessment of the fulfillment by civil courts of their obligation to ascertain the circumstances of the conditions in which the former prisoner was detained. On the other hand, in other cases, the Constitutional Court considered the (un) proper nature of the conditions of detention, and not just the procedural aspects of the complaints.
The above-mentioned principles concerning effective remedies were found to be applicable to complaints of an alleged violation of Article 8 of the Convention in connection with the conditions and regime of the applicant's detention.
(d) The effectiveness of the remedies in Croatia in relation to complaints of inappropriate conditions of detention. The Court has reaffirmed its case-law with regard to the existence of effective preventive and compensatory remedies in Croatia in relation to complaints of inappropriate conditions of detention.
(e) Whether the applicant duly exhausted domestic remedies and whether he complied with within six months. As regards the applicant’s complaint about inadequate conditions of detention, the issue to be considered was whether the applicant had adequately exhausted the relevant domestic remedies (preventive and compensatory) in respect of certain periods of his detention, as required by case law European Court of Justice. In this connection, the question also arose as to whether the rule of six months for filing a complaint with the European Court had been respected. The Constitutional Court, as the highest court of Croatia, examined on the merits the applicant’s complaint about inadequate conditions of detention regarding the entire period of the applicant’s detention in the Zagreb prison and the State Clay prison, and the applicant duly applied to the European Court after receiving a decision of the Constitutional Court. In view of the case-law of the Constitutional Court at that time, the applicant's complaints could not be dismissed due to the failure to exhaust domestic remedies and / or the six-month deadline for filing a complaint.
(f) Conclusion. In view of the foregoing, recalling that nothing in the applicant's allegations cast doubt on the effectiveness of the remedies available in Croatia as a whole in respect of complaints of inappropriate conditions of detention, the Court concludes that the applicant's complaint about the alleged violation of Article 13 of the Convention manifestly unfounded.
A preliminary argument by the Croatian authorities (on non-exhaustion of domestic remedies) was rejected.
The Court also unanimously concluded that there had been a violation of Article 3 of the Convention in respect of the conditions of the applicant's detention in Zagreb prison and no violation of the conditions of the applicant's detention in Glina prison.
In application of Article 41 of the Convention. The Court awarded the applicant EUR 1,000 in respect of non-pecuniary damage.