Case: Muršić v. Croatia
Judgement date: 20 October 2016 (Grand Chamber)
Topic: Detention conditions and treatment of prisoners
Aspect: Personal space in multi-occupancy cell and prison overcrowding

Summary of the facts:
The applicant complained that he had been held in poor conditions at Bjelovar Prison. He alleged that he had disposed of less than 3 sq. m of personal space in his cell for a number of non-consecutive periods of a total duration of 50 days and personal space of between 3 and 4 sq. m in other periods. He also complained that the sanitary facilities, conditions of hygiene, food, the possibility of engaging in prison work and access to recreational or educational activities in the prison had been insufficient.

Summary of the Court's findings:
The Court confirmed that 3 sq. m of surface area per detainee in a multi-occupancy cell was the prevalent norm in its case-law, being the applicable minimum standard for the purposes of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. When that area fell below 3 sq. m, the lack of personal space was regarded as so serious that it gave rise to a strong presumption of a violation of Article 3. In the present case, having regard to the documents produced by the Croatian Government and to the applicant’s statements, the Court found that the conditions in which the applicant had been held in Bjelovar Prison were generally appropriate, but that there had been a violation of Article 3 of the Convention for the consecutive period of 27 days during which he had been confined in less than 3 sq. m of personal space. On the other hand, the Court held that there had been no violation of Article 3 in respect of the other, non-consecutive, periods of detention during which the applicant had less than 3 sq. m of personal space or in respect of the periods in which he had personal space of between 3 sq. m and 4 sq. m in Bjelovar Prison. It found in particular that the other periods during which he had disposed of less than 3 sq. m could be regarded as short and minor reductions of personal space, while at the same time the applicant had sufficient freedom of movement and activities outside the cell and was being held in a generally appropriate detention facility.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1987 and lives in Kuršanec.
A. Background to the case
10. In a judgment of the Čakovec County Court ( Županijski sud u Čakovcu ) of 19 June 2008, upheld by the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 3 February 2009, the applicant was sentenced to two years’ imprisonment for armed robbery.
11. On 2 July 2010 the Čakovec Municipal Court ( Općinski sud u Čakovcu ) sentenced him to one year’s imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010.
12. Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account those two convictions and sentenced him to a single term of two years and eleven months’ imprisonment.
B. Conditions of the applicant’s detention in Bjelovar Prison
13. On 16 October 2009 the applicant was transferred from a semi-open regime in Turopolje State Prison ( Kaznionica u Turopolju ) to Bjelovar County Prison ( Zatvor u Bjelovaru ) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 10 above). The reason for the transfer, as indicated in a report of Turopolje State Prison, was the applicant’s inappropriate behaviour and threats of escape.
14. The applicant remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin County Prison ( Zatvor u Varaždinu ) following a decision by the Ministry of Justice Prison Administration ( Ministarstvo pravosuđa, Uprava za zatvorski sustav ) of 11 March 2011.
15. According to the applicant, during his stay in Bjelovar Prison he was placed in overcrowded cells. He alleged in particular that for a period of fifty days in total he disposed of less than 3 square metres (sq. m) of personal space, including for a period of twenty-seven consecutive days. There were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 17 below).
16. The applicant further submitted that the cells in which he had been held were badly maintained, humid, dirty and insufficiently equipped with lockers and chairs for all inmates. The sanitary facilities were in the same room as the living area, from which they were not fully separated. Those facilities were about half a metre away from the dining table and there was a constant smell in the cell. Moreover, he had not been given any opportunity to engage in prison work and in general was not provided with sufficient access to recreational and educational activities. The prisoners were allowed to move freely outside the locked part of the prison between 4 and 7 p.m., and the out-of-cell facilities were inadequate and insufficient, particularly given that there was only an open recreation yard. The nutrition was poor and the hygiene conditions were inadequate, especially since the toilet was not separated from the living area. The inmates did not have sufficient access to hot water and were allowed to shower only once or sometimes three times per week.
17. According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 sq. m of personal space. He was held in four different cells, the conditions of which are detailed in the table below.
The measurements of the cells indicate their overall size (as provided by the Government) and with the in-cell sanitary facility deducted (based on the methodology enunciated in paragraph 114 below). That calculation is based on an approximate measurement of the sanitary facility (1.9 sq. m) according to the floor plans of Bjelovar Prison, which the Government provided to the Court and which are not disputed by the applicant.
Cell no.
Period of
detention
Total number of inmates
Overall surface area in
sq. m
Personal space in sq. m
Surface
minus
sanitary
facility
in sq. m
Personal space in
sq. m
1/O
16.10-15.11.2009
6
19.7
3.28
17.8
2.96
1/O
16.11-19.11.2009
5
19.7
3.94
17.8
3.56
1/O
20.11.2009-05.02.2010
6
19.7
3.28
17.8
2.96
1/O
06.02-08.02.2010
5
19.7
3.94
17.8
3.56
1/O
09.02-10.04.2010
6
19.7
3.28
17.8
2.96
1/O
11.04.-20.04.2010
5
19.7
3.94
17.8
3.56
8/O
21.04.2010
8
22.88
2.86
20.98
2.62
8/O
22.04-29.04.2010
7
22.88
3.27
20.98
2.99
8/O
30.04-02.05.2010
6
22.88
3.81
20.98
3.49
8/O
03.05-05.05.2010
5
22.88
4.58
20.98
4.19
8/O
06.05-07.05.2010
6
22.88
3.81
20.98
3.49
8/O
08.05-09.05.2010
5
22.88
4.58
20.98
4.19
8/O
10.05.-25.05.2010
6
22.88
3.81
20.98
3.49
8/O
26.05.2010
5
22.88
4.58
20.98
4.19
8/O
27.05-02.06.2010
6
22.88
3.81
20.98
3.49
8/O
03.06-04.06.2010
5
22.88
4.58
20.98
4.19
8/O
05.06-16.06.2010
6
22.88
3.81
20.98
3.49
8/O
17.06-19.06.2010
5
22.88
4.58
20.98
4.19
8/O
20.06-30.06.2010
6
22.88
3.81
20.98
3.49
8/O
01.07-02.07.2010
7
22.88
3.27
20.98
2.99
8/O
03.07-05.07.2010
8
22.88
2.86
20.98
2.62
8/O
06.07-17.07.2010
7
22.88
3.27
20.98
2.99
8/O
18.07-13.08.2010
8
22.88
2.86
20.98
2.62
14.08-17.08.2010 Period spent in the prison hospital
8/O
18.08-26.08.2010
7
22.88
3.27
20.98
2.99
8/O
27.08-30.08.2010
5
22.88
4.58
20.98
4.19
4/O
31.08-02.09.2010
8
22.36
2.80
20.46
2.55
4/O
03.09.2010
7
22.36
3.19
20.46
2.92
8/O
04.09-06.09.2010
6
22.88
3.81
20.98
3.49
8/O
07.09.2010
4
22.88
5.72
20.98
5.24
8/O
08.09-16.09.2010
5
22.88
4.58
20.98
4.19
8/O
17.09.2010
6
22.88
3.81
20.98
3.49
8/O
18.09.2010
5
22.88
4.58
20.98
4.19
8/O
19.09-01.10.2010
6
22.88
3.81
20.98
3.49
8/O
02.10-05.10.2010
5
22.88
4.58
20.98
4.19
8/I
06.10-07.10.2010
5
22.18
4.44
20.28
4.05
8/I
08.10-19.10.2010
4
22.18
5.55
20.28
5.07
8/I
20.10-21.10.2010
3
22.18
7.39
20.28
6.76
8/I
22.10-23.10.2010
4
22.18
5.55
20.28
5.07
8/I
24.10-25.10.2010
5
22.18
4.44
20.28
4.05
8/I
26.10-28.10.2010
6
22.18
3.70
20.28
3.38
8/I
29.10-30.10.2010
5
22.18
4.44
20.28
4.05
8/I
31.10-04.11.2010
6
22.18
3.70
20.28
3.38
4/O
05.11.2010
6
22.36
3.73
20.46
3.41
4/O
06.11-09.11.2010
5
22.36
4.47
20.46
4.09
4/O
10.11-13.11.2010
6
22.36
3.73
20.46
3.41
4/O
14.11-18.11.2010
7
22.36
3.19
20.46
2.92
4/O
19.11-26.11.2010
8
22.36
2.80
20.46
2.55
4/O
27.11-30.11.2010
7
22.36
3.19
20.46
2.92
8/O
01.12-03.12.2010
6
22.88
3.81
20.98
3.49
8/O
04.12-09.12.2010
7
22.88
3.27
20.98
2.99
8/O
10.12-12.12.2010
8
22.88
2.86
20.98
2.62
8/O
13.12-21.12.2010
7
22.88
3.27
20.98
2.99
8/O
22.12-24.12.2010
8
22.88
2.86
20.98
2.62
8/O
25.12-31.12.2010
7
22.88
3.27
20.98
2.99
8/O
01.01-16.01.2011
6
22.88
3.81
20.98
3.49
8/O
17.01-25.01.2011
7
22.88
3.27
20.98
2.99
8/O
26.01-27.01.2011
6
22.88
3.81
20.98
3.49
8/O
28.01-23.02.2011
7
22.88
3.27
20.98
2.99
8/O
24.02-25.02.2011
8
22.88
2.86
20.98
2.62
8/O
26.02-28.02.2011
7
22.88
3.27
20.98
2.99
8/O
01.03-15.03.2011
5
22.88
4.58
20.98
4.19
8/O
16.03.2011
6
22.88
3.81
20.98
3.49
18. The Government further explained that each cell in which the applicant had been accommodated had had windows allowing in natural light and fresh air. Artificial light was also secured and all cells were heated by a central heating system and equipped with a communication system enabling the inmates to contact prison staff immediately in case of need. All cells had a toilet fully separated from the living area and equipped with its own ventilation system. All cells had direct access to drinking water. The cells were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, July 2009 and May-July 2010, as well as in 2011, 2012 and 2013. Furthermore, the inmates were provided with all necessary hygiene and sanitary facilities. This included a shower three times per week and after sports activities. Every inmate was also regularly provided with the necessary toiletries and cleaning supplies for keeping the cells clean. The inmates were provided with clean bedding and bedspreads every fifteen days, or more often if necessary. In addition, the inmates were provided with the necessary clothing although they were allowed to use their own clothes. Nutrition was based on an assessment by experts and the quality of the food was constantly monitored by the competent State authorities. The inmates were provided with three meals per day meeting the necessary nutrition requirements, as supervised by the prison doctor. Meals could be taken to cells or eaten in a common room.
19. The Government also explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. Specifically, in the ordinary daily regime, the inmates would wake up at 7 a.m. on working days and at 7.30 a.m. on weekends and public holidays. They would then wash, tidy their beds, and have breakfast, followed by the morning cleaning of the cell. Leisure time was scheduled afterwards, until 1 p.m., when they had an opportunity to take part in a number of activities. Leisure time was followed by lunch served between 1 and 2 p.m. The period after lunch was usually set aside for various group activities and meetings with lawyers and prison staff. Between 4 and 7 p.m. all cell doors were opened again, enabling the inmates to move about within the prison and to use its facilities as they saw fit. Dinner was served from 7 p.m., followed by the evening tidying and cleaning of the cells and other rooms in the prison.
20. The Government submitted that Bjelovar Prison was equipped with a recreation area located in the courtyard, which, in addition to the asphalted parts, included a lawn. The surface area of the courtyard was 305 sq. m. There was also direct access to drinking water and artificial light as well as protection from inclement weather available in the recreation area. The gym was open between 8 a.m. and 12.30 p.m. and between 2 and 6 p.m., and the basketball court was open on working days between 3 and 4 p.m. and at the weekends in both the morning and the afternoon. The recreation area was also equipped with a badminton court and ping-pong tables. The inmates were able to borrow books and use other services of the Bjelovar library, which were regularly available in the prison. The prison administration also organised religious ceremonies and contacts with cultural and religious associations. Each cell was equipped with cable television, which could be watched between 7 a.m. and 11 p.m. during working days, and between 7.30 a.m. and midnight at weekends and on public holidays. There were also radio receivers in the cells and the possibility of borrowing and watching films from a collection available in Bjelovar Prison. In addition, the inmates were allowed to socialise by playing board games. There was also a room for spousal visits and the inmates were allowed to obtain various goods from outside the prison. Bjelovar Prison also offered a possibility of education in prison but the applicant had decided not to avail himself of that opportunity. Remunerated work in prison was available in accordance with the economic possibilities, which were at the time limited due to the general economic crisis. A possibility of work outside the prison existed but the applicant’s previous threats to escape and his inadequate behaviour in detention had not made him eligible for this possibility. During his stay in Bjelovar Prison, the applicant had regularly received medical treatment. He had seen his family four times while standing trial for another offence in Čakovec and had been allowed to speak to them by telephone twenty minutes per week, with an additional ten minutes on public holidays.
21. The Government substantiated their arguments with photographs taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits by various officials to the prison, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison and the applicant’s health care and nutrition.
C. The applicant’s complaints about the prison conditions
22. On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons.
23. On 26 April 2010 he complained to the Ministry of Justice Prison Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored and that the prison food had been inadequate.
24. The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons, particularly his family’s lack of financial means, which made it difficult for them to visit him.
25. On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant’s complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family by telephone and while attending the court hearings in March, April and July 2010 in the criminal proceedings against him, that he had not been engaged in any work because there had been an insufficient number of work posts in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor.
26. On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court ( Županijski sud u Bjelovaru ). He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, in particular, that his request to engage in prison work had not been answered. He was being detained with seven other inmates in cell no. 8, which measured 18 sq. m in total and was inadequately equipped and maintained. Hygiene conditions were poor, given that he had been allowed to take a shower only three times per week.
27. Following the applicant’s complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention.
28. After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant had sufficient personal space at his disposal, given that four other persons were at the time placed with him in the same cell. The sentence-execution judge also found that the applicant was provided with sufficient hygiene and sanitary facilities, and that he was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison.
29. On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge’s decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 had been occupied by up to eight inmates.
30. On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standard for personal space under the Enforcement of Prison Sentence Act, namely 4 sq. m, was the recommended minimum standard that should in principle be respected, but that there could be no automatic violation of a prisoner’s rights if such a standard was temporarily not complied with. In view of the fact that a reduction in the applicant’s personal space in cell no. 8 had only been temporary, the three-judge panel considered that there had been no violation of his rights.
31. On 5 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months following his arrival at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 sq. m, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 sq. m. He had then been placed in another cell, also marked “cell no. 8”, which again measured 17.13 sq. m, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates.
32. On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison. He also relied on section 74(3) of the Enforcement of Prison Sentences Act, guaranteeing adequate personal space to detainees, and alleged that this provision had not been complied with in his case.
33. On 26 November 2010 the applicant complained to the Ombudsperson ( Pučki pravobranitelj ) that he had not been granted a transfer to a prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate.
34. Meanwhile, in November 2010 the applicant joined a group of inmates who complained to the sentence-execution judge about inadequate general conditions in Bjelovar Prison.
35. By a letter of 7 December 2010 the Ombudsperson invited the applicant to further substantiate his complaints.
36. The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and the three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted 4 sq. m of personal space in detention as required under the Enforcement of Prison Sentences Act.
37. In March 2011 the applicant saw a psychiatrist, who found that the applicant was frustrated with his internment and the impossibility of seeing his family.
38. On 12 April 2011 the Ombudsperson replied to the applicant’s letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsperson also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that, just like ninety-two other inmates, the applicant had not been engaged in prison work, as there had been an insufficient number of work posts for all prisoners.
39. On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint (see paragraph 32 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads:
“In his constitutional complaint, the complainant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide upon ... ”
40. The Constitutional Court’s decision was served on the applicant’s representative on 18 June 2012.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
1. Constitution
41. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2011) read as follows:
Article 23
“No one shall be subjected to any form of ill-treatment ...”
Article 25
“All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity.”
42. The relevant part of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt ) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided about his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter ‘constitutional right’) ...”
2. Enforcement of Prison Sentences Act
43. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999, 55/2000, 99/2000, 129/2000, 59/2001, 67/2001, 11/2002, 190/2003, 76/2007, 27/2008, 83/2009 and 18/2011) read as follows:
The purpose of enforcement of prison sentences
Section 2
“The main purpose of the enforcement of prison sentences is, ensuring humane treatment and respect for the dignity of the person serving the prison sentence (hereinafter the ‘inmate’), to prepare him or her for life after release in accordance with the law and social rules.”
Basic rights and their restrictions
Section 3
“(1) An inmate shall enjoy the protection of basic rights established in the Constitution of the Republic of Croatia, international agreements and the present Act.
(2) The basic rights of an inmate may be restricted by the enforcement of a prison sentence only to the extent necessary for the achievement of the purpose of the enforcement of the sentence and subject to the procedure specified in the present Act.
(3) The rights of an inmate may be restricted only exceptionally, if it is indispensable for the protection of order and security in a State prison or [county] prison, and for the protection of other inmates.
(4) Any restrictions on the basic rights of inmates provided for in the present Act shall be proportionate to the reasons for which they are implemented.”
Bodies responsible for the enforcement of prison sentences
Section 6
“(1) The task of the enforcement of prison sentence shall lie within the jurisdiction and competence of the [Ministry of Justice Prison Administration] and the sentence-execution judge. ...”
Prohibition of unlawful treatment
Section 9
“(1) Prison sentences shall be enforced so that the respect for the human dignity of inmates is guaranteed. Treatment subjecting inmates to any form of torture, ill-treatment or humiliation, or medical or scientific experiments, shall be prohibited and punishable.
(2) Prohibited treatment under paragraph 1 of the present section shall particularly include any treatment which is disproportionate to the need to maintain order and discipline in State prisons or prisons, or which is unlawful and could result in suffering or inappropriate restriction of the basic rights of inmates.”
Rights of inmates
Section 14
“(1) Subject to the conditions set forth in the present Act, every inmate shall be entitled to:
...
(9) a minimum of two hours per day to be spent outdoors within a State prison or [county] prison ...”
Complaints
Section 15
“(1) An inmate shall have the right to complain about an act or decision of an employee of a State prison or [county] prison.
(2) Complaints shall be lodged orally or in writing with the prison governor, or the head office of the Prison Administration [of the Ministry of Justice]. ...
(5) If an inmate lodges a complaint with the sentence-execution judge, it shall be considered a request for judicial protection under section 17 hereof.”
Judicial protection against acts and decisions of the administration of a State prison or [county] prison
Section 17
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him or her any of the rights guaranteed by the present Act or unlawfully restricting such rights.
(2) The sentence-execution judge shall dismiss the request for judicial protection if he or she finds that it is unfounded. If the request is well-founded, the sentence-execution judge shall order that the unlawful deprivations or restrictions of rights be remedied. If that is not possible, the sentence-execution judge shall find a violation and prohibit its repetition.
(3) The inmate and the prison facility may lodge an appeal against the sentence-execution judge’s decision ... ”
Accommodation of inmates
Section 74
“(1) Accommodation of inmates has to meet health, hygienic and spatial standards and be appropriate to the climate.
(2) Inmates shall, as a rule, be accommodated in separate rooms. Inmates who are believed not to be causing mutual negative influence can be accommodated in the same room. Each inmate shall have his or her own bed. Inmates shall spend free time in living rooms, together with other inmates.
(3) Premises where inmates are accommodated have to be dry, clean and large enough. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory.
(4) Each room in which inmates live or work must have daily and artificial light which enables reading and work without causing any difficulties for eyesight.
(5) State prisons and [county] prisons must be equipped with sanitary facilities which enable regular satisfaction of physiological needs in a clean and appropriate environment, whenever inmates need them.
(6) Drinking water must always be accessible to inmates.”
Personal hygiene and cleaning of premises
Section 76
“(1) All premises in a State prison or [county] prison must be well maintained and regularly cleaned.
(2) Assignments specified in paragraph 1 of this section shall be performed by inmates up to two hours a day, without financial compensation.
(3) Inmates shall be enabled to wash their bodies every day. Inmates are required to maintain personal hygiene. A State prison or [county] prison shall provide water and toiletries for ensuring personal hygiene and clean laundry, clothing, shoes and bedding. Beards, moustaches and long hair may be exceptionally prohibited for reasons of security or health.
(4) Supervision of personal hygiene and tidiness shall be performed by a medical doctor or by another medical expert.”
Meals
Section 78
“(1) Inmates shall be offered appropriately prepared and served meals at regular intervals. The quality and quantity of meals shall satisfy the requirements of nutrition and hygiene and shall be appropriate to the inmate’s age, health, nature of work and, depending on the possibilities of a State prison or [county] prison, religious and cultural preferences. ...”
Employment of inmates
Section 80
“(1) An inmate shall be entitled to work, subject to his state of health, [level of] knowledge and the opportunities [available] in a State prison or [county] prison. ...”
Use of free time
Section 96
“(1) A State prison or [county] prison shall provide for space and equipment for meaningful use of free time.
(2) A State prison or [county] prison shall organise various kinds of activities in order to meet the physical, spiritual and cultural needs of inmates.
(3) The free time of inmates shall be used in workshops organised for painting, technical activities, music, literature, theatre, journalism, computing, debating clubs, exercising and the like.
(4) The content of organised free time shall be determined in the enforcement programme.
(5) In accordance with the possibilities of a State prison or [county] prison an inmate shall be permitted to organise his or her own free time (his or her hobby) at his or her own expense, if it does not endanger security and order and does not disturb other inmates. ...”
B. Relevant practice
44. In the periodic annual reports between 2009 and 2011 the Croatian Ombudsperson reported on the general problem of prison overcrowding in Croatia, including in Bjelovar Prison, as one of the central organisational problems of the prison system which had generated the majority of complaints and violations of the rights of prisoners. The Ombudsperson also observed that prisons generally addressed the problem by converting various premises into dormitories and cells for prisoners and by providing greater freedom of movement inside the prisons. In the reports, the Ombudsperson constantly pointed out the need to adequately secure the rights of prisoners as guaranteed under the relevant domestic law and international standards.
45. In a general report on the conditions of detention in Croatia, no. U-X-5464/2012 of 12 June 2014, the Constitutional Court identified the problem of prison overcrowding and instructed the competent authorities to take more proactive measures in securing adequate conditions of detention for all types of detainees, as provided under the relevant domestic law and international standards. The relevant part of the report reads as follows:
“ Conclusions
13. The Constitutional Court points out that the State authorities are obliged to introduce effective normative and enforcement measures, which must ensure that every detainee is placed in conditions such as to guarantee respect for his or her human dignity. Notwithstanding the financial limitations in the designated budgetary expenses for the criminal justice system, and in view of the economic crisis, an appropriate financial position should be adopted concerning the construction of new custodial capacities, and with regard to other infrastructural investments within the prison system.
13.1. The Constitutional Court observes that to persons who are serving a prison sentence or are detained [pending trial], the State authorities are obliged to secure the minimum personal space as provided for under the Enforcement of Prison Sentences Act or in accordance with the standards which [the Court] set out in the Ananyev and Others v. Russia case (judgment of 10 January 2012). These are as follows: each detainee must have an individual sleeping place in the cell, each detainee must dispose of at least 3 sq. m of floor space, and the overall surface area of the cell must be such as to allow detainees to move freely between furniture.
...”
III. RELEVANT INTERNATIONAL MATERIALS
A. Council of Europe standards on the question of prison overcrowding
1. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”)
(a) Explanatory report to the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
46. The relevant part of the Explanatory report to the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf/C (89) 1 [EN]) reads:
“27. The case-law of the Court and Commission of Human Rights on Article 3 provides a source of guidance for [the CPT]. However, the Committee’s activities are aimed at future prevention rather than the application of legal requirements to existing circumstances. The Committee should not seek to interfere in the interpretation and application of Article 3.”
(b) General Reports
47. The relevant part of the First General Report, CPT/Inf (91) 3 [EN], of 20 February 1991, reads:
“47. Four important consequences follow from the fact that ‘prevention’ constitutes the lynchpin of the whole monitoring system set up by the Convention.
48. First, the CPT must always look into the general conditions of detention existing in the countries visited. It must examine not only whether abuses are actually occurring but also be attentive to those ‘indicators’ or ‘early signs’ pointing to possible future abuses. For instance, it must - and indeed does - scrutinise the physical conditions of detention (the space available to detainees; lighting and ventilation; washing and toilet facilities; eating and sleeping arrangements; the medical care provided by the authorities, etc.) as well as the social conditions (for example, relationships with other detainees and the law enforcement personnel; links with families, social workers, the outside world in general, etc.). The CPT also pays close attention to the extent to which certain basic safeguards against ill-treatment exist in the country visited e.g. notification of police custody; access to a lawyer; access to a medical doctor; the possibilities of lodging complaints about ill-treatment or conditions of detention.
49. Second, often one cannot understand and assess the conditions under which persons are deprived of their liberty in a given country without considering those conditions in their general (historical, social, economic) context. Although human dignity must be effectively respected in all Parties to the Convention, the background of each of these countries varies, and can account for differences in their response to human rights issues. It follows that, to fulfil its task of preventing abuses, the CPT must often look into the underlying causes of general or specific conditions conducive to mistreatment.
50. The third consequence is closely associated with the two previous ones. In a number of instances the CPT - after investigating the conditions of detention in a particular country - may not find it appropriate to confine itself to merely suggesting immediate or short-term measures (such as, for example, administrative action) or even such measures as legislative improvements. It may find it necessary to recommend long-term measures, at least whenever it has become apparent that unacceptable conditions exist in a country as a result of deep-rooted factors that cannot be alleviated simply by judicial or legislative fiat or by resort to other legal techniques. In such cases, educational and similar long-term strategies may prove essential.
51. A fourth consequence flows from all the above remarks, namely that for the CPT to accomplish its preventive function effectively, it must aim at a degree of protection that is greater than that upheld by the European Commission and European Court of Human Rights when adjudging cases concerning the ill-treatment of persons deprived of their liberty and their conditions of detention.”
48. In a document titled “CPT standards” [CPT/Inf/E (2002) 1 - Rev. 2015] the CPT summarised the relevant standards flowing from its General Reports with a view to “[giving] a clear advance indication to national authorities of its views regarding the manner in which persons deprived of their liberty ought to be treated and, more generally, to stimulate discussion on such matters”. The relevant part of the document concerning conditions of detention reads (pp. 17-24, footnotes omitted):
“ II. Prisons
Imprisonment
Extract from the 2nd General Report [CPT/Inf (92) 3]
...
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. This holds true for all establishments, whether for sentenced prisoners or those awaiting trial. The CPT has observed that activities in many remand prisons are extremely limited. The organisation of regime activities in such establishments - which have a fairly rapid turnover of inmates - is not a straightforward matter. Clearly, there can be no question of individualised treatment programmes of the sort which might be aspired to in an establishment for sentenced prisoners. However, prisoners 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. Of course, regimes in establishments for sentenced prisoners should be even more favourable.
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 (preferably it should form part of a broader programme of activities). The CPT wishes to emphasise that all prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily. It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather.
...
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.
Extract from the 7th General Report [CPT/Inf (97) 10]
12. In the course of several of its visits during 1996, the CPT once again encountered the evils of prison overcrowding, a phenomenon which blights penitentiary systems across Europe. Overcrowding is often particularly acute in prisons used to accommodate remand prisoners (i.e. persons awaiting trial); however, the CPT has found that in some countries the problem has spread throughout the prison system.
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.
...
15. The problem of prison overcrowding is sufficiently serious as to call for cooperation at European level, with a view to devising counter strategies. Consequently, the CPT was most pleased to learn that work on this subject has recently begun within the framework of the European Committee on Crime Problems (CDPC). The CPT hopes that the successful conclusion of that work will be treated as a priority.
Extract from the 11th General Report [CPT/Inf (2001) 16]
...
Prison overcrowding
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. As the CPT’s field of operations has extended throughout the European continent, the Committee has encountered huge incarceration rates and resultant severe prison overcrowding. The fact that a State locks up so many of its citizens cannot be convincingly explained away by a high crime rate; the general outlook of members of the law enforcement agencies and the judiciary must, in part, be responsible.
In such circumstances, throwing increasing amounts of money at the prison estate will not offer a solution. Instead, current law and practice in relation to custody pending trial and sentencing as well as the range of non-custodial sentences available need to be reviewed. This is precisely the approach advocated in Committee of Ministers Recommendation No R (99) 22 on prison overcrowding and prison population inflation. The CPT very much hopes that the principles set out in that important text will indeed be applied by member States; the implementation of this Recommendation deserves to be closely monitored by the Council of Europe.”
(c) The CPT’s basic minimum standard for personal living space in prison establishments
49. On the basis of standards which have been frequently used in a large number of CPT country visit reports, the CPT decided in November 2015 to provide a clear statement of its position and standards regarding minimum living space per prisoner. This was the aim of the document entitled “Living space per prisoner in prison establishments: CPT standards” (CPT/Inf (2015) 44 of 15 December 2015).
50. The CPT explained that the document at issue concerned ordinary cells designed for prisoners’ accommodation, as well as special cells, such as disciplinary, security, isolation or segregation cells. However, waiting rooms or similar spaces used for very short periods of time (such as police stations, psychiatric establishments, and immigration detention facilities) were not covered there. In that connection the CPT underlined that minimum standards for personal living space were not a straightforward matter and that such standards differed according to the type of establishment. Likewise, a difference needed to be made between the intended occupancy level of the accommodation in question, that is to say whether a single cell or a cell designed for multiple occupancy (cells for two to four inmates) was at issue, and what was the regime offered to prisoners.
51. The CPT further stressed that it had developed in the 1990s a basic “rule of thumb” standard for the minimum amount of living space that a prisoner should be afforded in a cell. That was 4 sq. m of living space per prisoner in a multiple-occupancy cell, excluding the sanitary facilities within a cell. This standard was, however, a minimum standard. The CPT had therefore decided to promote a desirable standard regarding multiple-occupancy cells of up to four inmates by adding 4 sq. m per additional inmate to the minimum living space of 6 sq. m of living space for a single-occupancy cell.
52. With regard to the difference between minimum standards and the question of inhuman and degrading treatment, the CPT explained:
“19. The European Court of Human Rights is approached with an ever-increasing number of complaints from prisoners who allege that they are detained in inhuman or degrading conditions, having to share cells with large numbers of fellow-inmates, which leaves them with very little living space. The Court, in its judgments, is obliged to decide whether or not the holding of prisoners in cells offering a very limited living space per person (usually less than 4m²) constitutes a violation of Article 3.
20. The role of the CPT, as a preventive monitoring body, is different. Its responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment or punishment within the meaning of Article 3, ECHR. However, in the course of its visits the Committee has been confronted with prison conditions that beggared belief and were, as described in one visit report, an ‘affront to a civilised society’. Hence, in a number of visit reports it has stated that the conditions observed in grossly overcrowded prisons could be considered as amounting to ‘inhuman and degrading treatment’.
21. The CPT has never considered that its cell-size standards should be regarded as absolute. In other words, it does not automatically hold the view that a minor deviation from its minimum standards may in itself be considered as amounting to inhuman and degrading treatment of the prisoner(s) concerned, as long as other, alleviating, factors can be found, such as, in particular, the fact that inmates are able to spend a considerable amount of time each day outside their cells (in workshops, classes or other activities). Nevertheless, even in such cases, the CPT would still recommend that the minimum standard be adhered to.
22. On the other hand, for the Committee to say that conditions of detention could be considered as amounting to inhuman and degrading treatment, the cells either have to be extremely overcrowded or, as in most cases, combine a number of negative elements, such as an insufficient number of beds for all inmates, poor hygiene, infestation with vermin, insufficient ventilation, heating or light, lack of in-cell sanitation and in consequence the use of buckets or bottles for the needs of nature. In fact, the likelihood that a place of detention is very overcrowded but at the same time well ventilated, clean and equipped with a sufficient number of beds is extremely low. Thus, it is not surprising that the CPT often enumerates the factors that constitute appalling detention conditions, rather than just referring to inadequate living space. In addition – but by no means in every case – other factors not directly related to the conditions are taken into account by the CPT when assessing a particular situation. These factors include little out-of-cell time and generally a poor regime; reduced outdoor exercise; deprivation of contacts with relatives for several years, etc.
23. The Appendix to this document contains a non-exhaustive list of factors (other than the amount of living space per prisoner) to be taken into consideration when assessing detention conditions in prison.
Conclusion
24. This document seeks to give guidance to practitioners and other interested parties, by clearly stating the CPT’s minimum standards regarding living space for prisoner(s) in a given cell. Ultimately, it is for the courts to decide whether a particular person has experienced suffering that has reached the threshold of inhuman or degrading treatment within the meaning of Article 3, ECHR, taking into account all kinds of factors, including the individual’s personal constitution. The number of square metres available per person is but one factor, albeit often a very significant or even decisive one.
25. Conditions where inmates are left with less than 4m² per person in multiple-occupancy cells, or single cells measuring less than 6m² (both excluding a sanitary annexe) have consistently been criticised by the CPT, and authorities have regularly been called upon to enlarge (or withdraw from service) single cells or reduce the number of inmates in multiple-occupancy cells. The CPT expects that these minimum living space standards will be systematically applied in all prison establishments in Council of Europe member states, and hopes that more and more countries will strive to meet the CPT’s “desirable” standards for multiple-occupancy cells.”
53. In the Annex to the document in question, the CPT referred to the following non-exhaustive list of factors to be taken into consideration when assessing detention conditions in prison:
“ State of repair and cleanliness
- Cells, including furniture, should be in a decent state of repair and every effort should be made to keep the living areas clean and hygienic.
- Any infestation with vermin needs to be tackled vigorously.
- Inmates should be provided with the necessary personal hygiene products and cleaning materials.
Access to natural light, ventilation and heating
- All living accommodation for prisoners (both single- and multiple-occupancy cells) should have access to natural light as well as to artificial lighting which is sufficient for reading purposes.
- Equally, there needs to be sufficient ventilation to ensure a constant renewal of the air inside the cells.
- Cells should be adequately heated.
Sanitary facilities
- Each cell should possess a toilet and a washbasin as a minimum. In multiple-occupancy cells the sanitary facilities should be fully partitioned (i.e. up to the ceiling).
- In those few prisons where no in-cell sanitary facilities are available, the authorities must ensure that prisoners have ready access to the toilet whenever needed. Today, no prisoner in Europe should be obliged to ‘slop out’, a practice that is degrading both for the prisoners and for the staff members who have to supervise such a procedure.
Outdoor exercise
- The CPT considers that every prisoner should be offered a minimum of one hour of outdoor exercise every day. Outdoor exercise yards should be spacious and suitably equipped to give inmates a real opportunity to exert themselves physically (e.g., to practise sports); they should also be equipped with a means of rest (e.g., a bench) and a shelter against inclement weather.
Purposeful activities
- The CPT has long recommended that prisoners should be offered a range of varied purposeful activities (work, vocation, education, sport and recreation). To this end, the CPT has stated since the 1990s that the aim should be for prisoners – both sentenced and on remand – to spend eight hours or more a day outside their cells engaged in such activities, and that for sentenced prisoners the regime should be even more favourable.”
(d) CPT reports concerning Croatia
54. The CPT visited Croatia four times: in 1998, 2003, 2007 and 2012. Neither of these visits concerned Bjelovar Prison. In the report concerning its last visit in 2012 [CPT/Inf (2014) 9], the CPT addressed in general the problem of overcrowding and the efforts of the domestic authorities in dealing with that problem. The relevant parts of the report read:
“ B. Prison establishments
1. Preliminary remarks
...
a. prison overcrowding
27. The overall prison population of Croatia has increased by 1,200 inmates to 5,400 (i.e. more than 25%) since the CPT’s last visit in 2007, while the official capacity of the prison estate has risen by only some 400 places to 3,771. Overcrowding is thus becoming more acute within the prison system. The delegation observed the negative impact of prison overcrowding on many aspects of prison life in the establishments visited, notably in Zagreb and Sisak County Prisons. Originally conceived as prisons (zatvori) for remand prisoners and persons serving sentences of up to six months’ duration, 50 percent of the population now held in these establishments are convicted prisoners serving sentences of up to five years. At Zagreb County Prison, the resultant increase in the number of prisoners has meant, for example, that rooms previously assigned for common activities have been converted into cellular accommodation.
Recognising the ever worsening serious problem of overcrowding and the need to combat it, the Croatian Government adopted an Action Plan for the Improvement of the Prison System of the Republic of Croatia from 2009 to 2014 which envisages the construction of new prison establishments in Glina, Zagreb and Šibenik, with a combined total of 2,072 places. It also envisages a set of additional measures, such as recruiting more staff and enhancing the initial and in-service training provided to staff. The delegation visited the recently inaugurated building at Glina State Prison which can accommodate up to 420 inmates and was shown the building site of a new section of Zagreb County Prison which, once completed in 2016, will raise the capacity of the prison by 382 places. Representatives of the Ministry of Justice informed the delegation that the extension had been funded with the assistance of a loan from the Council of Europe Development Bank (CEB) and that another loan application with the CEB had been completed for the construction of the new State Prison in Šibenik with a proposed capacity of 1,270 places.
28. These steps demonstrate a commitment by the Croatian authorities to tackle overcrowding. However, as already stressed by the CPT in its previous reports to the Croatian authorities, providing additional accommodation cannot offer a lasting solution to the problem of prison overcrowding, at least not without adopting, in parallel, policies designed to limit or modulate the number of persons sent to prison. In this respect, the Committee takes note of the efforts invested by the Ministry of Justice since 2007 in elaborating a legal framework and putting into place a probation system at the national level, which includes the possibility for State Prosecutors, Courts and Probation Offices to enlarge the scope and number of persons subject to alternative measures such as community work and protected supervision. At least 15 percent of the current convicted prison population (i.e. those inmates serving sentences of up to one year) could potentially benefit from non-custodial measures once the new Law on Probation is adopted.
The CPT recommends that the Croatian authorities pursue their efforts to combat prison overcrowding taking into account the recommendations adopted by the Committee of Ministers of the Council of Europe, in particular Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody and Recommendation Rec2010(01) on the Council of Europe probation rules. The Committee would like to receive updated information on the impact of the measures being taken to tackle prison overcrowding.
Prisons
Preliminary remarks
recommendations
- the Croatian authorities to pursue their efforts to combat prison overcrowding taking into account the recommendations adopted by the Committee of Ministers of the Council of Europe, in particular Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody and Recommendation Rec(2010)01 on the Council of Europe probation rules (paragraph 28).
Conditions of detention of the general prison population
recommendations
...
- the Croatian authorities to take steps to reduce cell occupancy levels in all the prisons visited (as well as in other prisons in Croatia), so as to provide for at least 4 m² of living space per prisoner in multi-occupancy cells; for this purpose, the area taken up by any in-cell sanitary facilities should not be counted (paragraph 36);
- the smaller cells (measuring 7m²) at Zagreb County Prison to accommodate not more than one person (paragraph 36);
...
- the Croatian authorities to improve the programme of activities, including work and vocational training opportunities, for prisoners at Glina State Prison, Zagreb and Sisak County Prisons and, where appropriate, at other prisons in Croatia (paragraph 40);
...”
2. Committee of Ministers
(a) European Prison Rules
55. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe on the minimum standards to be applied in prisons. The 1987 European Prison Rules (featuring as an appendix to Recommendation No. R (87) 3) were adopted on 12 February 1987. On 11 January 2006 the Committee of Ministers, noting that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”, adopted Recommendation Rec(2006)2 on the European Prison Rules. The new, 2006 version of the Rules featured as an appendix to this Recommendation. It reads, in so far as relevant, as follows:
“ Part I
Basic principles
1. All persons deprived of their liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
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.
...
Scope and application
10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
10.2. In principle, persons who have been remanded in custody by a judicial authority and persons who are deprived of their liberty following conviction should only be detained in prisons, that is, in institutions reserved for detainees of these two categories.
10.3 The Rules also apply to persons:
a. who may be detained for any other reason in a prison; or
b. who have been remanded in custody by a judicial authority or deprived of their liberty following conviction and who may, for any reason, be detained elsewhere.
...
Part II
Conditions of imprisonment
...
Allocation and accommodation
...
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; and
c. there shall be an alarm system that enables prisoners to contact the staff without delay.
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.
18.7. As far as possible, prisoners shall be given a choice before being required to share sleeping accommodation.
18.8. In deciding to accommodate prisoners in particular prisons or in particular sections of a prison due account shall be taken of the need to detain:
a. untried prisoners separately from sentenced prisoners;
b. male prisoners separately from females; and
c. young adult prisoners separately from older prisoners.
18.9. Exceptions can be made to the requirements for separate detention in terms of paragraph 8 in order to allow prisoners to participate jointly in organised activities, but these groups shall always be separated at night unless they consent to be detained together and the prison authorities judge that it would be in the best interest of all the prisoners concerned.
18.10. Accommodation of all prisoners shall be in conditions with the least restrictive security arrangements compatible with the risk of their escaping or harming themselves or others.
...
Hygiene
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.
...
Clothing and bedding
...
21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.
Nutrition
22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.
...
Prison regime
25.1 The regime provided for all prisoners shall offer a balanced programme of activities.
25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.
25.3 This regime shall also provide for the welfare needs of prisoners.
...
Work
26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.
26.2 Prison authorities shall strive to provide sufficient work of a useful nature.
...
Exercise and recreation
27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.
27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes.
27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment.
27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them.
27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.
27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities.
Education
28.1 Every prison shall seek to provide all prisoners with access to educational programmes which are as comprehensive as possible and which meet their individual needs while taking into account their aspirations.
...
Part VIII
Sentenced prisoners
Objective of the regime for sentenced prisoners
102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.
Implementation of the regime for sentenced prisoners
103.1 The regime for sentenced prisoners shall commence as soon as someone has been admitted to prison with the status of a sentenced prisoner, unless it has commenced before.
103.2 As soon as possible after such admission, reports shall be drawn up for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release.
103.3 Sentenced prisoners shall be encouraged to participate in drawing up their individual sentence plans.
103.4 Such plans shall as far as is practicable include:
a. work;
b. education;
c. other activities; and
d. preparation for release.
...
Work by sentenced prisoners
105.1 A systematic programme of work shall seek to contribute to meeting the objective of the regime for sentenced prisoners.
...
Education of sentenced prisoners
106.1 A systematic programme of education, including skills training, with the objective of improving prisoners’ overall level of education as well as their prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners.
...”
(b) Recommendation No. R (99) 22
56. The relevant parts of the Recommendation No. R (99) 22 of the Committee of Ministers to Member States concerning Prison Overcrowding and Prison Population Inflation, of 30 September 1999, read:
“The Committee of Ministers ...
Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions;
Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment;
Affirming that measures aimed at combating prison overcrowding and reducing the size of the prison population need to be embedded in a coherent and rational crime policy directed towards the prevention of crime and criminal behaviour, effective law enforcement, public safety and protection, the individualisation of sanctions and measures and the social reintegration of offenders;
Considering that such measures should conform to the basic principles of democratic States governed by the rule of law and subject to the paramount aim of guaranteeing human rights, in conformity with the European Convention on Human Rights and the case-law of the organs entrusted with its application;
Recognising moreover that such measures require support by political and administrative leaders, judges, prosecutors and the general public, as well as the provision of balanced information on the functions of punishment, on the relative effectiveness of custodial and non-custodial sanctions and measures and on the reality of prisons;
Bearing in mind the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
...
Recommends that governments of member states:
- take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the Appendix to this Recommendation;
- encourage the widest possible dissemination of the Recommendation and the report on prison overcrowding and prison population inflation elaborated by the European Committee on Crime Problems.
Appendix to Recommendation No. R (99) 22
I. Basic principles
1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate.
2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity.
3. Provision should be made for an appropriate array of community sanctions and measures, possibly graded in terms of relative severity; prosecutors and judges should be prompted to use them as widely as possible.
4. Member states should consider the possibility of decriminalising certain types of offence or reclassifying them so that they do not attract penalties entailing the deprivation of liberty.
5. In order to devise a coherent strategy against prison overcrowding and prison population inflation a detailed analysis of the main contributing factors should be carried out, addressing in particular such matters as the types of offence which carry long prison sentences, priorities in crime control, public attitudes and concerns and existing sentencing practices.
II. Coping with a shortage of prison places
6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set.
7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modern management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners’ health care and to the opportunity for outdoor exercise.
8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made.
9. Specific modalities for the enforcement of custodial sentences, such as semi ‑ liberty, open regimes, prison leave or extra-mural placements, should be used as much as possible with a view to contributing to the treatment and resettlement of prisoners, to maintaining their family and other community ties and to reducing the tension in penal institutions.
...
V. Measures relating to the post-trial stage
The implementation of community sanctions and measures – The enforcement of custodial sentences
22. In order to make community sanctions and measures credible alternatives to short terms of imprisonment, their effective implementation should be ensured, ...
24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community.
...”
(c) Standards adopted in the execution of the Court’s judgments
57. In its 2014 report on supervision of the execution of the Court’s judgments (available at http://www.coe.int/t/dghl/monitoring/execution/
Source/Publications/CM_annreport2014_en.pdf ), with regard to the enforcement of two judgments against Italy ( Sulejmanovic v. Italy, no. 22635/03, 16 July 2009; and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, 8 January 2013) the Committee of Ministers noted:
“In response to the CM’s earlier decision, the authorities have provided additional information in April, indicating the adoption of various structural measures in view of complying with the judgments in this group, accompanied by statistical data showing an important and continuing drop in the prison population and an increase in living space to at least 3m2 per detainee. In addition, a preventive remedy was established within the deadline set by the Torreggiani and Others pilot judgment and steps were taken to establish a compensatory remedy through the adoption of a Law-Decree, later in June. The CM welcomed the authorities’ commitment to resolve the problem of prison overcrowding and the significant results achieved in this area and invited them to provide further information regarding the implementation of the preventive remedy, notably in the light of the monitoring to be undertaken in this context.”
3. The Council of Europe Committee on Crime Problems
58. In its Commentary to the European Prison Rules, the Council of Europe Committee on Crime Problems explained the scope of the requirements for adequate accommodation and prison regimes under the Rules. The relevant part of the Commentary reads:
“Rule 18 includes some new elements. The first, in Rule 18.3, is intended to compel governments to declare by way of national law specific standards, which can be enforced. Such standards would have to meet wider considerations of human dignity as well as practical ones of health and hygiene. The CPT, by commenting on conditions and space available in prisons in various countries has begun to indicate some minimum standards. These are considered to be 4 m2 for prisoners in shared accommodation and 6 m2 for a prison cell. These minima are, related however, to wider analyses of specific prison systems, including studies of how much time prisoners actually spend in their cells. These minima should not be regarded as the norm. Although the CPT has never laid down such a norm directly, indications are that it would consider 9 to 10 m2 as a desirable size for a cell for one prisoner. This is an area in which the CPT could make an ongoing contribution that would build on what has already been laid down in this regard. What is required is a detailed examination of what size of cell is acceptable accommodation of various numbers of persons. Attention needs to be paid to the number of hours that prisoners spend locked in the cells, when determining appropriate sizes. Even for prisoners who spend a large amount of time out of their cells, there must be a clear minimum space, which meets standards of human dignity.
...
Rule 25 underlines that the prison authorities should not concentrate only on specific rules, such as those related to working, education and exercise, but should review the overall prison regime of all prisoners to see that it meets basic requirements of human dignity. Such activities should cover the period of a normal working day. It is unacceptable to keep prisoners in their cells for 23 hours out of 24, for example. The CPT has emphasised that the aim shall be that the various activities undertaken by prisoners should take them out of their cells for at least eight hours a day ... “
B. The relevant United Nations standards
59. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), A/C.3/70/L.3, 29 September 2015, as the global key standards for the treatment of prisoners adopted by the United Nations General Assembly, in the relevant part provide:
“ I. Rules of general application
Basic principles
Rule 1
All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.
...
Rule 4
1. The purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.
2. To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners.
...
Accommodation
Rule 12
1. Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself or herself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
2. Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the prison.
Rule 13
All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
Rule 14
In all places where prisoners are required to live or work:
(a) The windows shall be large enough to enable the prisoners to read or work by natural light and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
Rule 15
The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
Rule 16
Adequate bathing and shower installations shall be provided so that every prisoner can, and may be required to, have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
Rule 17
All parts of a prison regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.
Personal hygiene
Rule 18
1. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.
2. In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be able to shave regularly.
Clothing and bedding
Rule 19
1. Every prisoner who is not allowed to wear his or her own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him or her in good health. Such clothing shall in no manner be degrading or humiliating.
...
Rule 21
Every prisoner shall, in accordance with local or national standards, be provided with a separate bed and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
Food
Rule 22
1. Every prisoner shall be provided by the prison administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
2. Drinking water shall be available to every prisoner whenever he or she needs it.
Exercise and sport
Rule 23
1. Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
2. Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end, space, installations and equipment should be provided.
...
II. Rules applicable to special categories
A. Prisoners under sentence
...
Privileges
Rule 95
Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every prison, in order to encourage good conduct, develop a sense of responsibility and secure the interest and cooperation of prisoners in their treatment.
Work
Rule 96
1. Sentenced prisoners shall have the opportunity to work and/or to actively participate in their rehabilitation, subject to a determination of physical and mental fitness by a physician or other qualified health-care professionals.
2. Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.
...
Education and recreation
Rule 104
1. Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The education of illiterate prisoners and of young prisoners shall be compulsory and special attention shall be paid to it by the prison administration.
...
Rule 105
Recreational and cultural activities shall be provided in all prisons for the benefit of the mental and physical health of prisoners.”
C. The International Committee of the Red Cross (ICRC)
60. On the basis of its visits to places of detention in diverse situations where it monitored conditions of detention and treatment of prisoners, the ICRC first published in 2005 a document titled “Water, Sanitation, Hygiene and Habitat in Prisons”, which was updated in 2012. In 2009 it held an international roundtable in order to discuss developments in the establishment of international guidance on the basis of which it published Supplementary guidance to the Water, Sanitation, Hygiene and Habitat in Prisons standards (available at www.icrc.org ).
61. The ICRC observed that there is no universal standard for detainee accommodation space and that different organisations and fora had made recommendations in this context affecting various groups of countries. Likewise, the ICRC noted that in the absence of universal standards, national standards had been developed by numerous countries but they vary widely. For instance in Europe standards ranged from 4 sq. m in Albania to 12 sq. m in Switzerland. Moreover, some jurisdictions prescribed greater space for pre-trial detainees, others specified greater space requirements for women (for example, Iceland, Poland and Slovenia), and others still differentiated between adults and juveniles (for example, Hungary and Latvia).
62. In the absence of a universal standard, and based on its experience, the ICRC developed specifications concerning space requirements. For the multi-occupancy accommodation of prisoners this recommendation was 3.4 sq. m per person, including bunk beds and toilet facilities. The ICRC emphasised, however, that this was a recommended specification and not a standard. It stressed that in practical terms the amount of space required by a detainee could not be assessed only on the basis of a specific area measurement. A number of other factors contributed to the assessment of space requirements, including management factors and the facilities and services available in the prison. According to the ICRC, this reflected a comprehensive approach that provided a more accurate picture of the reality for detainees.
63. The ICRC therefore considered that the space factor alone was a limited measurement of the quality of life and conditions of detention. As such, it was merely a starting point when evaluating the conditions in which detainees were held. However, space norms could not be specified separately from the overall environment and thus the appropriateness of the ICRC’s recommended specifications in any given situation would depend on a number of other factors including: the specific individual needs of, for example, sick, old or young prisoners, women and/or people with disabilities; the physical condition of the buildings; the amount of time spent in the accommodation area; the frequency and extent of opportunities to take physical exercise, work and be involved in other activities outside the accommodation area; the number of people in the accommodation area (to allow a degree of privacy and avoid isolation); the amount of natural light and the adequacy of the ventilation; other activities being undertaken in the accommodation area (such as cooking, washing, drying); other services available (such as toilets and showers); and the extent of supervision provided.
64. In particular, with regard to the amount of time spent in the cell, the ICRC emphasised that the longer a detainee was held in a confined accommodation space in any twenty-four hour period, the greater the amount of space he or she would require. In other words, the more hours a detainee spent engaged in positive activities in a safe, secure environment outside the accommodation area each day, the greater the possibility of mitigating the negative effects of close confinement. Positive activities in this context include work and education, meeting visitors, engaging in organised exercise or sport, spending extended periods of unstructured time in outdoor exercise areas, and participating in hobbies and recreation programmes.
65. The ICRC also made a distinction between the general accommodation requirements and accommodation requirements in emergency situations (such as political crisis, natural disasters, fire, riots, health crises in which large numbers of detainees needed to be separated from the others or events which required the transfer of detainees from a prison that had been damaged to another prison). The ICRC’s initial indication that in such situations 2 sq. m per prisoner should be provided had been subsequently criticised by the experts. The emphasis was thus placed not on the indication of minimum requirement of personal space but the necessity of returning a prison to normal conditions (including minimum space specifications) as soon as possible. In particular, it was emphasised that in such instances it is necessary to avoid a situation in which the restrictions introduced to deal with the emergency situation developed into a chronic deficiency.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. The parties’ submissions
66. The Government reiterated the objection they had raised before the Chamber as to the non-exhaustion of domestic remedies (see paragraph 37 of the Chamber judgment). They contended that the applicant had not properly exhausted domestic remedies as he had failed in his constitutional complaint to provide details concerning the allegedly inadequate conditions of his detention, and had failed to cite the relevant provisions of the Convention and the Constitution.
67. The applicant maintained that he had properly exhausted domestic remedies as in his constitutional complaint he had specifically relied on section 74 of the Enforcement of Prison Sentences Act, which guaranteed a minimum of 4 sq. m of personal space, and had complained that this provision had not been complied with in his case. He thereby gave an adequate opportunity to the Constitutional Court to examine all the relevant circumstances of his case.
B. The Chamber’s findings
68. The Chamber observed that the applicant had complained to the Constitutional Court in substance that his rights had been violated on account of the lack of personal space and work opportunities in Bjelovar Prison. The Chamber therefore held that, by bringing his complaints in substance before the Constitutional Court, the applicant had properly exhausted domestic remedies.
C. The Court’s assessment
69. The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 78, ECHR 2014).
70. However, having examined the Government’s submission, the Court finds no grounds for reconsidering the Chamber’s decision to dismiss the objection of non-exhaustion. Indeed, the Court has consistently held that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014; and also, generally, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-87, 9 July 2015).
71. As regards the remedies concerning prison conditions in Croatia, the Court has held that a complaint lodged with the competent judicial authority or the prison administration is an effective remedy, since it can lead to an applicant’s removal from inadequate prison conditions. Moreover, in the event of an unfavourable outcome, the applicant can pursue his complaints before the Constitutional Court (see Štitić v. Croatia (dec.), no. 29660/03, 9 November 2006; and Dolenec v. Croatia, no. 25282/06, § 113, 26 November 2009), which also has the competence to order his release or removal from inadequate prison conditions (see, inter alia, Peša v. Croatia, no. 40523/08, § 80, 8 April 2010). Accordingly, in order to satisfy the requirement of exhaustion of domestic remedies and in conformity with the principle of subsidiarity applicants are required, before bringing their complaints to the Court, to afford the Croatian Constitutional Court the opportunity of remedying their situation and addressing the issues they wish to bring before the Court (see Bučkal v. Croatia (dec.), no. 29597/10, § 20, 3 April 2012; and Longin v. Croatia, no. 49268/10, § 36, 6 November 2012).
72. In the present case the Court notes that, after having duly used all available remedies before the competent judicial authorities and the prison administration (see paragraphs 22-24, 26 and 29 above), the applicant brought his complaints before the Constitutional Court where he expressly complained, albeit in a succinct manner, about the problem of overcrowding in Bjelovar Prison. He relied on section 74(3) of the Enforcement of Prison Sentences Act which guarantees adequate personal space to detainees and alleged that this provision had not been complied with in his case (see paragraph 32 above). It follows that the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see, amongst many others, Jaćimović v. Croatia, no. 22688/09, §§ 40-41, 31 October 2013, and cases cited therein).
73. The Court thus finds that the applicant properly exhausted domestic remedies. The Government’s preliminary objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
74. The applicant complained of inadequate conditions of detention in Bjelovar Prison. He alleged that he had been allocated less than 3 sq. m of personal space for several non-consecutive periods amounting in total to fifty days, and that there had also been several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells. In this connection he also alleged poor sanitary and hygiene conditions and nutrition, a lack of work opportunities, and insufficient access to recreational and educational activities. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The Chamber judgment
75. In view of the fact that the central tenet of the applicant’s complaint before the Chamber concerned his alleged lack of personal space in Bjelovar Prison, the Chamber reiterated the general principles laid down in the pilot judgment Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, § 148, 10 January 2012), concerning the question of prison overcrowding. In particular, the Chamber reiterated that the test set out in Ananyev and Others for deciding whether or not there has been a violation of Article 3 of the Convention in respect of detainees’ lack of personal space was three-fold, namely: (1) each detainee must have an individual sleeping place in the cell; (2) each detainee must dispose of at least 3 sq. m of floor space; and (3) the overall surface of the cell must be such as to allow detainees to move freely between furniture. The absence of any of these elements created a strong presumption that the conditions of an applicant’s detention were inadequate.
76. Accordingly, the Chamber stressed that where a detainee disposed of less than 3 sq. m of floor space a strong presumption arose that the conditions of detention had amounted to degrading treatment and were in breach of Article 3. However, in certain circumstances that strong presumption could be rebutted by the cumulative effects of the other conditions of detention.
77. In the light of the above principles, the Chamber observed that whereas it was true that the personal space afforded to the applicant fell short of the standard of 4 sq. m of personal space per prisoner set out by the CPT in its recommendations, it did not consider it so extreme as to justify in itself a finding of a violation of Article 3 of the Convention. The Chamber noted that occasionally the applicant’s personal space fell slightly below 3 sq. m for short, non-consecutive periods of time, including one period of twenty-seven days, which the Chamber noted with concern. However, the Chamber observed that the applicant had been allowed three hours a day to move freely outside his cell; that the cells where he had been detained had unobstructed access to natural light and air, as well as drinking water; that he had been provided with an individual bed and nothing impeded him from moving freely within the cell. Moreover, the Chamber noted various out-of-cell activities which the prisoners at Bjelovar Prison had at their disposal, such as a library and access to recreational facilities.
78. In these circumstances, as the applicant’s detention had been accompanied by sufficient freedom of movement inside the prison, and his confinement had taken place in an otherwise appropriate facility, the Chamber found that the conditions of his detention did not reach the threshold of severity required to consider his treatment to be inhuman or degrading under Article 3 of the Convention.
B. The parties’ submissions
1. The applicant
79. The applicant pointed out that he had been allocated less than 3 sq. m of personal space in detention for several non-consecutive periods amounting in total to fifty days. One of those periods had amounted to twenty-seven days, which the applicant did not consider to be a “short and occasional” reduction in the required personal space. The applicant stressed that it followed from the Court’s case-law that when a detainee disposed of less than 3 sq. m of personal space in multi-occupancy accommodation it was in itself sufficient to find a violation of Article 3. Some other deficiencies could be noted simply to corroborate that finding. The applicant also stressed that the relevant CPT standard was 4 sq. m and, in his view, the Court should follow that standard. In his particular case, there had also been several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells.
80. The applicant further pointed out that the sanitary facility should be deducted from the overall size of the cells. He also stressed that he had been unable to pace out the cell normally given that, during periods when five to eight inmates had been placed in the same cell, the space was reduced by five to eight beds, cupboards, tables and chairs. In reality, throughout his stay in Bjelovar Prison, he had had on average only 2.25 sq. m of personal space. The applicant also argued that he had not been provided with sufficient recreational and educational activities or a possibility to work in Bjelovar Prison. The only possibility of movement outside his cell had been for three hours per day, in the period between 4 and 7 p.m. The applicant therefore considered that, in view of his personal circumstances and his young age, the reduction in his personal space had not been adequately compensated for, which had made him feel humiliated and debased.
81. In the applicant’s view, this was all corroborated by the fact that Bjelovar Prison had been built in the nineteenth century and that since then there had been no relevant reconstructions or improvement of the facilities. There had been however some renovation of the facilities in 2011 and some of the photographs of Bjelovar Prison provided by the Government had been taken following that renovation. They included photographs of some of the cells where he had not been accommodated. Moreover, the applicant referred to a complaint made by other detainees and to an interview given in November 2010 by the Prison Director who had stressed that while the prison administration had managed to increase the number of places in Bjelovar Prison from the original capacity of fifty-three to seventy-nine, at times up to 129 prisoners had been accommodated there. At the same time, the applicant considered that the Government had failed to provide sufficient evidence of strong counterbalancing factors that could have alleviated the extreme lack of personal space.
82. Lastly, the applicant contended that he had never been given adequate protection by the sentence-execution judge and that the prison authorities had hindered his complaints to the Ombudsperson by transferring him to Varaždin Prison before the Ombudsperson managed to see him.
2. The Government
83. The Government submitted that the applicant’s complaints had been examined in detail at the domestic level by the competent sentence-execution judge, who had heard the applicant and who had regularly visited Bjelovar Prison in the period at issue, namely twelve times during the applicant’s stay there. The sentence-execution judge had not found a violation of his right to adequate conditions of detention. These findings had been reviewed and upheld by a three-judge panel of the Bjelovar County Court and the Constitutional Court. Likewise, the Ombudsperson had examined the applicant’s complaints and noted that they principally concerned matters related to his transfer to a prison closer to his family. The Ombudsperson also noted that Bjelovar Prison had been recently renovated. Moreover, in the case of Pozaić v. Croatia (no. 5901/13, 4 December 2014), raising an issue of conditions of detention in Bjelovar Prison dating from the same period in which the applicant had been detained there, the Court had also found no violation of Article 3 of the Convention. In this connection the Government pointed out that, given that the CPT had never visited Bjelovar Prison, the Court’s finding in Pozaić was the only determination of conditions of detention in that prison by an international institution.
84. The Government further stressed that recently in the leading case of Varga and Others v. Hungary (nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015) the Court had reiterated the Ananyev test of a “strong presumption” of a violation of Article 3 when the personal space available to a detainee fell below 3 sq. m. It noted, however, that this presumption had been rebutted in a number of cases by the cumulative effects of the conditions of detention (in this connection the Government cited Dmitriy Rozhin v. Russia, no. 4265/06, § 53, 23 October 2012; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, 17 January 2012; Kurkowski v. Poland, no. 36228/06, 9 April 2013; and Vladimir Belyayev v. Russia, no. 9967/06, 17 October 2013).
85. In the Government’s view, concluding on the basis of the space allocated that there has been an automatic violation would be a formalistic approach which would disregard a number of relevant counterbalancing factors and the CPT’s position according to which all aspects of detention should be taken into account. This approach could moreover dissuade States from developing and implementing various measures aimed at improving the quality of life for prisoners. This could be observed in the case of Croatia where, despite the standard of 4 sq. m set out in the relevant domestic law, the overall flexible approach to the question of conditions of detention had allowed for some important steps to be taken in reducing and solving the problems related to the level of prison overcrowding in recent years. The Croatian prisons were at present at eighty-five percent of their full capacity. Moreover, the automatic approach would run counter to the basic principles of the Court’s case-law and, although appearing to be a simple solution, would not secure effective protection of the rights of prisoners. Thus, in the Government’s view, a possibility to rebut the presumption should exist and it should operate in a realistic and practical manner.
86. In the case at issue, and taking into account these principles and the overall conditions of the applicant’s detention described above (see paragraphs 18-21 above), the Government considered that the general issue of overcrowding existing in Bjelovar Prison at the time, had not infringed any of the applicant’s rights and that he had not been subjected to inhuman or degrading treatment under Article 3 of the Convention.
3. The third-party interveners
(a) Observatoire international des prisons – section française (OIP-SF), Ligue belge des droits de l’homme (LDH) and Réseau européen de contentieux pénitentiaire (RCP)
87. The interveners submitted that the Court’s case-law on the questions of conditions of detention, and in particular the minimum personal space under Article 3 of the Convention, was inconsistent and unclear, particularly with regard to the question of the minimum number of square metres of personal space that should be allocated to a detainee. In their view, this impeded a proper implementation of the relevant standards at the domestic level.
88. In the interveners’ view the question of personal space allocated to a detainee should be examined as the central element in the assessment of conditions of detention. The standard of minimum personal space to be allocated to a detainee should be set at 4 sq. m, as followed from the relevant CPT recommendations, national and other European and international standards. The interveners further argued that, should the Grand Chamber adopt the approach of a “strong presumption” of a violation of Article 3 when the personal space allocated to a detainee fell below the required minimum standard, it should operate as a strong presumption which could be rebutted only exceptionally. The central factor in this respect would be sufficient freedom of movement within the prison facility and it would be for the domestic authorities to demonstrate that the scarce allocation of personal space was adequately compensated for. On the other hand, the interveners stressed that when the personal space allocated to a detainee fell below 3 sq. m, that should be considered so severe that it should lead to an irrebuttable presumption of a violation of Article 3, and such a situation could not be compensated for or mitigated by other factors.
(b) The Documentation Centre ‘L’altro diritto onlus’
89. The intervener stressed that the Court’s case-law on the question of conditions of detention needed clarification and harmonisation, particularly with regard to the question of adequate personal space. In the intervener’s view, this element needed to be established in a clear and reasoned manner as a minimum requirement, and any departure from such minimum should per se always lead to a finding of a violation of the Convention.
90. The intervener invited the Court to reaffirm the Ananyev test by making it clear, in particular, that failure to meet the minimum of 3 sq. m of personal space allocated to a detainee created a strong presumption of a violation of Article 3 that could be challenged only in cases of extreme urgency and necessity and when it concerned a considerably limited period of time. Moreover, every prisoner should have his or her own bed and sufficient freedom of movement inside the cell. With regard to the distribution of the burden of proof the intervener considered that, after an applicant had made a prima facie case, the burden should be shifted to the respondent Government to provide a solid factual basis to rebut the strong presumption of a violation by adducing the relevant evidence on the basis of the findings of independent and impartial national tribunals or other competent authorities. The intervener further submitted that other relevant factors relating to conditions of detention, beyond the question of adequate personal space, needed also to be taken into account in making an assessment under Article 3.
C. The Court’s assessment
1. Introductory remarks
91. The Court is frequently called upon to rule on complaints alleging a violation of Article 3 of the Convention on account of insufficient personal space allocated to prisoners. In the present case, the Court finds it appropriate to clarify the principles and standards for the assessment of the minimum personal space per detainee in multi-occupancy accommodation in prisons under Article 3 of the Convention.
92. The Court would further note that different questions might arise in the context of single-occupancy accommodation, isolation or other similar detention regimes, or waiting rooms or similar spaces used for very short periods of time (such as police stations, psychiatric establishments, immigration detention facilities), which are however not in issue in the present case (see paragraph 50 above; and Georgia v. Russia (I) [GC], no. 13255/07, §§ 192-205, ECHR 2014 (extracts)).
93. The matter of prison overcrowding in multi-occupancy accommodation was one of the issues considered by the Grand Chamber in the Idalov v. Russia case ([GC], no. 5826/03, §§ 96-102, 22 May 2012). It has also been addressed in several pilot and leading judgments in which the Court has already indicated specific aspects related to the assessment of the problem of prison overcrowding, and the duty of the States to address the deficiencies identified by the Court in these judgments.
94. In particular, the Court has so far adopted pilot judgments addressing the question of prison overcrowding in respect of the following States: Bulgaria (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015); Hungary (see Varga and Others, cited above); Italy (see Torreggiani and Others, cited above); Poland (see Orchowski v. Poland, no. 17885/04, 22 October 2009; and Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009); and Russia (see Ananyev and Others, cited above),
95. The Court has also addressed the question of prison overcrowding by indicating the necessity of improving conditions of detention under Article 46 of the Convention in leading judgments with regard to the following States: Belgium (see Vasilescu v. Belgium, no. 64682/12, 25 November 2014); Greece (see Samaras and Others v. Greece, no. 11463/09, 28 February 2012; Tzamalis and Others v. Greece, no. 15894/09, 4 December 2012; and Al. K. v. Greece, no. 63542/11, 11 December 2014); Romania (see Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012); Slovenia (see Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 20 October 2011; and Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, 20 October 2011); and the Republic of Moldova (see Shishanov v. the Republic of Moldova, no. 11353/06, 15 September 2015).
2. Recapitulation of the relevant principles
(a) General principles
96. Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts)).
97. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX; Idalov, cited above, § 91; and also, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002 ‑ VI).
98. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see, among other authorities, Idalov, cited above, § 92; and also, Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002 ‑ III; Ananyev and Others, cited above, § 140; Varga and Others, cited above, § 70). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (see Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).
99. In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI; Idalov, cited above, § 93; Svinarenko and Slyadnev, cited above, § 116; Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 178, ECHR 2016; and also, Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001 ‑ VIII; and Ananyev and Others, cited above, § 141).
100. Even the absence of an intention to humiliate or debase a detainee by placing him or her in poor conditions, while being a factor to be taken into account, does not conclusively rule out a finding of a violation of Article 3 of the Convention (see, inter alia, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III; Mandić and Jović, cited above, § 80; Iacov Stanciu, cited above, § 179; and generally under Article 3, Svinarenko and Slyadnev, cited above, § 114, and Bouyid, cited above, § 86). Indeed, it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see, amongst many others, Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006; Orchowski, cited above, § 153; Neshkov and Others, cited above, § 229; and Varga and Others, cited above, § 103).
101. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions has also to be considered (see, amongst many others, Idalov, cited above, § 94; and also Orchowski, cited above, § 121; Torreggiani and Others, cited above, § 66; and Ananyev and Others, cited above, § 142).
(b) Principles concerning prison overcrowding
102. The Court notes that the relevant principles and standards for the assessment of prison overcrowding flowing from its case-law in particular concern the following issues: (1) the question of minimum personal space in detention under Article 3 of the Convention; (2) whether the allocation of personal space below the minimum requirement creates a presumption or leads in itself to a violation of Article 3 of the Convention; and (3) what factors, if any, could compensate for the scarce allocation of personal space.
(i) The question of minimum personal space under Article 3
(α) The relevant case-law
103. The Court has stressed on many occasions that under Article 3 it cannot determine, once and for all, a specific number of square metres that should be allocated to a detainee in order to comply with the Convention. Indeed, the Court has considered that a number of other relevant factors, such as the duration of detention, the possibilities for outdoor exercise and the physical and mental condition of the detainee, play an important part in deciding whether the detention conditions satisfied the guarantees of Article 3 (see Samaras and Others, cited above, § 57; Tzamalis and Others, cited above, § 38; and Varga and Others, cited above § 76; see further, for instance, Trepashkin v. Russia, no. 36898/03, § 92, 19 July 2007; Semikhvostov v. Russia, no. 2689/12, § 79, 6 February 2014; Logothetis and Others v. Greece, no. 740/13, § 40, 25 September 2014; and Suldin v. Russia, no. 20077/04, § 43, 16 October 2014).
104. Nevertheless, extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” within the meaning of Article 3.
105. In a substantial number of cases when the allocation of space to a detainee in multi-occupancy accommodation fell below 3 sq. m, the Court found the overcrowding so severe as to justify the finding of a violation of Article 3 (see the cases cited in Orchowski, cited above, § 122; Ananyev and Others, cited above, § 145; and Varga and Others, cited above, § 75).
106. When inmates appeared to have at their disposal personal space measuring between 3 and 4 sq. m the Court examined the (in)adequacy of other aspects of physical conditions of detention when making an assessment under Article 3. In such instances a violation of Article 3 was found only if the space factor was coupled with other aspects of inappropriate physical conditions of detention related to, in a particular context, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Orchowski, cited above, § 122; Ananyev and Others, cited above, § 149; Torreggiani and Others, cited above, § 69; Vasilescu, cited above, § 88; and Varga and Others, cited above, § 78; see also, for example, Jirsák v. the Czech Republic, no. 8968/08, §§ 64-73, 5 April 2012; Culev v. Moldova, no. 60179/09, §§ 35-39, 17 April 2012; Longin, cited above, §§ 59-61; and Barilo v. Ukraine, no. 9607/06, §§ 80-83, 16 May 2013).
107. In the above-mentioned pilot and leading judgments the Court has fixed for its assessment the relevant minimum standard of personal space allocated to a detainee in multi-occupancy accommodation at 3 sq. m of floor surface (see Orchowski, cited above, § 123; Ananyev and Others, cited above, § 148; Torreggiani and Others, cited above, § 68; Vasilescu, cited above, § 88; Neshkov and Others, cited above, § 232; Samaras and Others, cited above, § 58; Tzamalis and Others, cited above, § 39; Varga and Others, cited above, § 74; Iacov Stanciu, cited above, § 168; and Mandić and Jović, cited above, § 75). Moreover, in the Grand Chamber Idalov case (cited above, § 101), when finding a violation of Article 3 on account of inadequate conditions of the applicant’s detention, the Grand Chamber noted, among other things, that “the applicant’s detention [had not met] the minimum requirement, as laid down in the Court’s case-law, of 3 square metres per person”.
108. However, in a minority of cases the Court has considered that personal space of less than 4 sq. m is already a factor sufficient to justify a finding of a violation of Article 3 (see, inter alia, Cotleţ v. Romania (no. 2), no. 49549/11, §§ 34 and 36, 1 October 2013; and Apostu v. Romania, no. 22765/12, § 79, 3 February 2015). This standard corresponds to the minimum standard of living space per detainee in multi-occupancy accommodation as developed in the practice of the CPT and recently elaborated in its policy document (see paragraph 51 above).
(β) The approach to be taken
109. The Court reiterates that, while it is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002‑VI; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 104, 17 September 2009; and Sabri Güneş v. Turkey [GC], no. 27396/06, § 50, 29 June 2012).
110. The Court sees no grounds for departing from the approach taken in the pilot judgments and leading cases cited above and in the Grand Chamber Idalov case (see paragraph 107 above). It therefore confirms that the requirement of 3 sq. m of floor surface per detainee in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention (see paragraphs 124-128 below).
111. With regard to the standards developed by other international institutions such as the CPT, the Court would note that it has declined to treat them as constituting a decisive argument for its assessment under Article 3 (see, for instance, Orchowski, cited above, § 131; Ananyev and Others, cited above, §§ 144-145; Torreggiani and Others, cited above, §§ 68 and 76; see also Sulejmanovic, cited above, § 43; Tellissi v. Italy (dec.), no. 15434/11, § 53, 5 March 2013; and G.C. v. Italy, no. 73869/10, § 81, 22 April 2014). The same applies with regard to the relevant national standards, which, although capable of informing the Court’s decision in a particular case (see Orchowski, cited above, § 123), cannot be considered decisive for its finding under Article 3 (see, for instance, Pozaić, cited above, § 59; and Neshkov and Others, cited above, § 229).
112. The central reason for the Court’s reluctance to take the CPT’s available space standards as a decisive argument for its finding under Article 3 relates to its duty to take into account all relevant circumstances of a particular case before it when making an assessment under Article 3, whereas other international institutions such as the CPT develop general standards in this area aiming at future prevention (see paragraph 47 above; see also, Trepashkin, cited above, § 92; and Jirsák, cited above, § 63). Likewise, the relevant national standards vary widely and operate as general requirements of adequate accommodation in a particular penitentiary system (see paragraphs 57 and 61 above).
113. Moreover, as the CPT has recognised, the Court performs a conceptually different role to the one assigned to the CPT, whose responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment or punishment within the meaning of Article 3 (see paragraph 52 above). The thrust of CPT activity is pre-emptive action aimed at prevention, which, by its very nature, aims at a degree of protection that is greater than that upheld by the Court when deciding cases concerning conditions of detention (see paragraph 47 above, the First General Report, § 51). In contrast to the CPT’s preventive function, the Court is responsible for the judicial application in individual cases of an absolute prohibition against torture and inhuman or degrading treatment under Article 3 (see paragraph 46 above). Nevertheless, the Court would emphasise that it remains attentive to the standards developed by the CPT and, notwithstanding their different positions, it gives careful scrutiny to cases where the particular conditions of detention fall below the CPT’s standard of 4 sq. m (see paragraph 106 above).
114. Lastly, the Court finds it important to clarify the methodology for the calculation of the minimum personal space allocated to a detainee in multi-occupancy accommodation for its assessment under Article 3. The Court considers, drawing from the CPT’s methodology on the matter, that the in-cell sanitary facility should not be counted in the overall surface area of the cell (see paragraph 51 above). On the other hand, calculation of the available surface area in the cell should include space occupied by furniture. What is important in this assessment is whether detainees had a possibility to move around within the cell normally (see, for instance, Ananyev and Others, cited above, §§ 147-148; and Vladimir Belyayev, cited above, § 34).
115. The Court would also observe that no distinction can be discerned in its case-law with regard to the application of the minimum standard of 3 sq. m of floor surface to a detainee in multi-occupancy accommodation in the context of serving and remand prisoners. Indeed, in the Orchowski pilot judgment the Court applied the same standards for the assessment of minimum personal space under Article 3 with regard to prisons and remand centres (see Orchowski, cited above, § 124), and the same standard was applicable in other pilot judgments relevant for the conditions of detention of remand prisoners (see Ananyev and Others, §§ 143-148) and serving prisoners (see Torreggiani and Others, cited above, §§ 65-69). Other leading judgments on the matter followed the same approach (see Iacov Stanciu, cited above, §§ 171-179; Mandić and Jović, cited above, §§ 72-76; and Štrucl and Others, cited above, § 80). Moreover, the same standard was applied in more recent case-law with regard to Russian correctional colonies (see Butko v. Russia, no. 32036/10, § 52, 12 November 2015; for the previous case-law see, for example, Sergey Babushkin v. Russia, no. 5993/08, § 56, 28 November 2013 and cases cited therein).
(ii) Whether the allocation of personal space below the minimum requirement creates a presumption or in itself leads to a violation of Article 3
(α) The relevant case-law
116. In assessing whether there has been a violation of Article 3 on account of an extreme lack of personal space in detention the Court has not always been consistent with regard to the question whether the allocation of personal space falling below 3 sq. m leads in itself to a violation of Article 3 or whether it creates a presumption of a violation, which could be rebutted by other relevant considerations. Different approaches can be distinguished in this respect.
117. First, in a number of cases the finding that a detainee had disposed of less than 3 sq. m of personal space in itself led to the conclusion that there had been a violation of Article 3 (see, for example, Sulejmanovic, cited above, § 43; Trepashkin v. Russia (no. 2), no. 14248/05, § 113, 16 December 2010; Mandić and Jović, cited above, § 80; Lin v. Greece, no. 58158/10, §§ 53-54, 6 November 2012; Blejuşcă v. Romania, no. 7910/10, §§ 43-45, 19 March 2013; Ivakhnenko v. Russia, no. 12622/04, § 35, 4 April 2013; A.F. v. Greece, no. 53709/11, §§ 77-78, 13 June 2013; Kanakis v. Greece (no. 2), no. 40146/11, §§ 106-107, 12 December 2013; Gorbulya v. Russia, no. 31535/09, §§ 64-65, 6 March 2014; and T. and A. v. Turkey, no. 47146/11, §§ 96-98, 21 October 2014).
118. There are also cases where the Court has held that personal space allocated to a detainee below 3 sq. m was a violation of Article 3, and then examined other conditions of detention only as further aggravating circumstances (see, for example, Torreggiani and Others, cited above, § 77; and Vasilescu, cited above, §§ 100-104).
119. Another approach is based on the “strong presumption” test set out in the Ananyev and Others pilot judgment (cited above). On the basis of a thorough analysis of its previous case-law on the matter, in the Ananyev and Others judgment, the Court set out the following test for overcrowding: (1) each detainee must have an individual sleeping place in the cell; (2) each must dispose of at least 3 sq. m of floor space; and (3) the overall surface area of the cell must be such as to allow detainees to move freely between items of furniture. It stressed that the absence of any of the above elements created in itself a strong presumption that the conditions of detention amounted to degrading treatment and were in breach of Article 3 (see Ananyev and Others, cited above, § 148).
120. Similarly to the “strong presumption” test, in the Orchowski pilot judgment (cited above, § 123) the Court emphasised that all situations in which a detainee was deprived of the minimum of 3 sq. m of living space inside his or her cell would be regarded as giving rise to a strong indication that Article 3 had been violated (see further Olszewski v. Poland, no. 21880/03, § 98, 2 April 2013). Moreover, the “strong presumption” test has been reiterated in several of the above-mentioned pilot judgments on the question of prison overcrowding (see Neshkov and Others, cited above, § 232; and Varga and Others, cited above, §§ 74 and 77).
121. In line with that approach, the finding of a violation of Article 3 was based on the assessment whether or not, in the circumstances, “a strong presumption” of a violation was rebutted by other cumulative effects of the conditions of detention (see Orchowski, cited above, § 135; Ananyev and Others, cited above, § 166; Lind v. Russia, no. 25664/05, §§ 59-61, 6 December 2007; Kokoshkina v. Russia, no. 2052/08, §§ 62-63, 28 May 2009). Accordingly, in a number of post- Ananyev cases concerning various factual circumstances, the Court consistently examined the cumulative effects of the conditions of detention before reaching a final conclusion as to the alleged violation of Article 3 on account of prison overcrowding (see, for example, Idalov, cited above, § 101; Iacov Stanciu, cited above, §§ 176-178; Asyanov v. Russia, no. 25462/09, § 43, 9 October 2012; Nieciecki v. Greece, no. 11677/11, §§ 49-51, 4 December 2012; Yefimenko v. Russia, no. 152/04, §§ 80-84, 12 February 2013; Manulin v. Russia, no. 26676/06, §§ 47-48, 11 April 2013; Shishkov v. Russia, no. 26746/05, §§ 90-94, 20 February 2014; Bulatović v. Montenegro, no. 67320/10, §§ 123-127, 22 July 2014; Tomoiagă v. Romania (dec.), no. 47775/10, §§ 22-23, 20 January 2015; Neshkov and Others, cited above, §§ 246-256; Varga and Others, cited above, § 88; and Mironovas and Others v. Lithuania, nos. 40828/12, 29292/12, 69598/12, 40163/13, 66281/13, 70048/13 and 70065/13, §§ 118-123, 8 December 2015).
(β) The approach to be taken
122. In harmonising the above divergences, the Court will be guided by the general principles of its well-established case-law under Article 3 of the Convention. In this connection it would reiterate that according to this case-law the assessment of the minimum level of severity for any ill-treatment to fall within the scope of Article 3 is, in the nature of things, relative (see paragraphs 97-98 above). The assessment of this minimum, as emphasised ever since the Ireland v. the United Kingdom case (cited above, § 162), will depend on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see paragraph 97 above).
123. Accordingly, the Court’s assessment whether there has been a violation of Article 3 cannot be reduced to a numerical calculation of square metres allocated to a detainee. Such an approach would, moreover, disregard the fact that, in practical terms, only a comprehensive approach to the particular conditions of detention can provide an accurate picture of the reality for detainees (see paragraphs 62-63 above).
124. Nevertheless, having analysed its case-law and in view of the importance attaching to the space factor in the overall assessment of prison conditions, the Court considers that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq. m in multi-occupancy accommodation.
125. The “strong presumption” test should operate as a weighty but not irrebuttable presumption of a violation of Article 3. This in particular means that, in the circumstances, the cumulative effects of detention may rebut that presumption. It will, of course, be difficult to rebut it in the context of flagrant or prolonged lack of personal space below 3 sq. m. The circumstances in which the presumption may be rebutted will be set out below (see paragraphs 130-135).
126. It follows that, when it has been conclusively established that a detainee disposed of less than 3 sq. m of floor surface in multi-occupancy accommodation, the starting point for the Court’s assessment is a strong presumption of a violation of Article 3. It then remains for the respondent Government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the Court’s decision whether, in the circumstances, the presumption of a violation is rebutted or not.
127. With regard to the methodology for that assessment, the Court refers to its well-established standard of proof in conditions-of-detention cases (see, for example, Ananyev and Others, cited above, §§ 121-125). In this context the Court is particularly mindful of the objective difficulties experienced by applicants in collecting evidence to substantiate their claims about conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of (ibid. § 122). In certain cases applicants are able to provide at least some evidence in support of their complaints. The Court has considered as evidence, for example, written statements by fellow inmates or if possible photographs provided by applicants in support of their allegations (see, for example, Golubenko v. Ukraine (dec.), no. 36327/06, § 52, 5 November 2013, and cases cited therein; see further Tehrani and Others v. Turkey, nos. 32940/08, 41626/08 and 43616/08, § 88, 13 April 2010).
128. Once a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment, has been made, the burden of proof is shifted to the respondent Government who alone have access to information capable of corroborating or refuting these allegations. They are required, in particular, to collect and produce relevant documents and provide a detailed account of an applicant’s conditions of detention. Relevant information from other international bodies, such as the CPT, on the conditions of detention, as well as the competent national authorities and institutions, should also inform the Court’s decision on the matter (see further Ananyev and Others, cited above, §§ 122-125; and Neshkov and Others, cited above, §§ 71-91).
(iii) Factors which may compensate for the scarce allocation of personal space
129. In view of its findings above (see paragraphs 124-125 above), the Court has to determine which factors may compensate for the scarce allocation of personal space to a detainee, and thus rebut the strong presumption of a violation of Article 3 arising where the detainee disposes of less than 3 sq. m of personal space in multi-occupancy accommodation in prisons.
130. The Court firstly notes, in the light of its post- Ananyev case-law, that normally only short, occasional and minor reductions in the required personal space will be such as to rebut the strong presumption of a violation of Article 3. This was, for example, the case in Fetisov and Others (cited above, §§ 134-138) where a prisoner disposed of approximately 2 sq. m of floor surface for nineteen days (see further Dmitriy Rozhin, cited above, §§ 52-53), or Vladimir Belyayev (cited above, §§ 33-36) where a prisoner disposed of 2.95 sq. m of personal space for a period of ten days, and then non-consecutively 2.65 sq. m for a period of two days and 2.97 sq. m for a period of twenty-six days. Moreover, referring to its case-law in Fetisov and Others and Dmitriy Rozhin, the Court found no violation of Article 3 in the Kurkowski case (cited above, §§ 66-67) where the applicant disposed of approximately 2.1 sq. m of floor space for four days, and then subsequently 2.6 sq. m of floor space for another four days.
131. Nevertheless, the Court has already held that, while the length of a detention period may be a relevant factor in assessing the gravity of suffering or humiliation caused to a detainee by the inadequate conditions of his or her detention, the relative brevity of such a period alone will not automatically remove the treatment complained of from the scope of Article 3 if other elements are sufficient to bring it within the scope of that provision (see, for example, Vasilescu, cited above, § 105; Neshkov and Others, cited above, § 249; and Shishanov, cited above, § 95).
132. The Court would further note that in other cases concerning the inadequate allocation of personal space to detainees it examined whether the reductions in the required personal space were accompanied by sufficient freedom of movement and adequate out-of-cell activities, as well as confinement in, viewed generally, an appropriate detention facility (see, for example, Samaras and Others, cited above, §§ 63-65; and Tzamalis and Others, cited above, §§ 44-45). The examples of cases in which the scarce allocation of personal space did not give rise to a violation of Article 3 include: Andrei Georgiev v. Bulgaria, no. 61507/00, §§ 57-62, 26 July 2007; Alexov v. Bulgaria, no. 54578/00, §§ 107-108, 22 May 2008; and Dolenec, cited above, §§ 133-136. In the Court’s view, the strong presumption of a violation of Article 3 arising from the allocation of less than 3 sq. m in multi-occupancy accommodation will normally be capable of being rebutted only where the requirements are cumulatively met, namely where short, occasional and minor reductions of personal space are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities and confinement in what is, when viewed generally, an appropriate detention facility (see, mutatis mutandis, Varga and Others, cited above, § 77; and Mironovas and Others, cited above, § 122).
133. With regard to the question of sufficient freedom of movement, in particular, in the Ananyev and Others case (cited above, §§ 150-152) the Court has referred to the relevant CPT standards according to which all prisoners, without exception, must be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out-of-cell activities, bearing in mind that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather (see further Neshkov and Others, cited above, § 234). Indeed, according to the relevant international standards prisoners should be able to spend a reasonable part of the day outside their cells, engaged in purposeful activity of a varied nature (work, recreation, education). Regimes in establishments for sentenced prisoners should be even more favourable (see further paragraphs 48, 53, 55 and 59 above).
134. Lastly, with regard to the overall appropriateness of the detention facility, the Court refers to general aspects of detention identified in its case-law (see further Ananyev and Others, cited above, §§ 153-159; and Neshkov and Others, §§ 237-244; see further Iacov Stanciu, cited above, §§ 173-179; and Varga and Others, cited above, §§ 80-92) and the relevant international standards (see paragraphs 48, 53, 55, 59 and 63-64 above). Accordingly, in addition to sufficient freedom of movement and adequate out-of-cell activities, no violation of Article 3 would be found where no other aggravating circumstance arises with regard to general conditions of an applicant’s detention (see, for instance, the approach in Alver v. Estonia, no. 64812/01, § 53, 8 November 2005; Andrei Georgiev, cited above, § 61; and Dolenec, cited above, § 134).
135. It follows from the above that, when considering whether measures of compensation for the scarce allocation of personal space below 3 sq. m of floor surface in multi-occupancy accommodation are capable of rebutting the strong presumption of a violation of Article 3, the Court will have regard to factors such as: the time and extent of restriction; freedom of movement and adequacy of out-of-cell activities; and general appropriateness of the detention facility.
(c) Summary of relevant principles and standards for the assessment of prison overcrowding
136. In the light of the considerations set out above, the Court confirms the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention.
137. When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see paragraphs 126-128 above).
138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:
(1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above):
(2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities (see paragraph 133 above);
(3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above).
139. In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see paragraph 106 above).
140. The Court also stresses that in cases where a detainee disposed of more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention referred to above (see paragraphs 48, 53, 55, 59 and 63-64 above) remain relevant for the Court’s assessment of adequacy of an applicant’s conditions of detention under Article 3 of the Convention (see, for example, Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 112-113, 29 October 2015).
141. Lastly, the Court would emphasise the importance of the CPT’s preventive role in monitoring conditions of detention and of the standards which it develops in that connection. The Court reiterates that when deciding cases concerning conditions of detention it remains attentive to those standards and to the Contracting States’ observance of them (see paragraph 113 above).
3. Application of the above principles in the present case
142. The Court observes at the outset that, although the problem of prison overcrowding has been examined in several cases against Croatia in which a violation of Article 3 was found (see Cenbauer v. Croatia, no. 73786/01, ECHR 2006-III; Testa v. Croatia, no. 20877/04, 12 July 2007; Štitić v. Croatia, no. 29660/03, 8 November 2007; Dolenec, cited above; Longin, cited above; and Lonić v. Croatia, no. 8067/12, 4 December 2014), it has not so far considered that conditions of detention in Croatia disclosed a structural problem from the standpoint of Article 3 of the Convention (see, by contrast, paragraphs 94-95 above). Moreover, none of the cited cases concerned the conditions of detention in Bjelovar Prison which give rise to the applicant’s complaints in the present case. With regard to the conditions of detention in Bjelovar Prison the Court has so far examined one case, in which it found no violation of Article 3 (see Pozaić, cited above).
143. The present case does not raise a structural issue concerning the conditions of detention in Croatia. The Court’s task is to address the applicant’s particular complaint of overcrowding in Bjelovar Prison, where he was serving a prison sentence in the period between 16 October 2009 and 16 March 2011 (see Polufakin and Chernyshev v. Russia, no. 30997/02, §§ 155-156, 25 September 2008).
144. The applicant in particular complained that for several non-consecutive periods, amounting in total to fifty days, including a period of twenty-seven consecutive days, he disposed of less than 3 sq. m of personal space, and that there were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 15 above).
145. In view of the relevant test enunciated above (see paragraphs 136-139 above), the Court will address the applicant’s complaints separately with regard to the period in which he disposed of less than 3 sq. m of personal space, and the period in which he was allocated between 3 and 4 sq. m of personal space in Bjelovar Prison.
(a) Period in which the applicant disposed of less than 3 sq. m of personal space
(i) Whether the strong presumption of a violation of Article 3 arises in the present case
146. The Court notes that the particular details of the personal space allocated to the applicant are based on the documentation provided by the respondent Government which the applicant did not contest (see paragraph 17 above). Specifically, during his stay in Bjelovar Prison, which lasted for one year and five months (see paragraphs 13-14 above), the applicant was detained in four cells in which he had between 3 and 6.76 sq. m of personal space. Only during the following non-consecutive periods did he have personal space which fell below 3 sq. m, by 0.45 and 0.38 sq. m: on 21 April 2010 (one day – 2.62 sq. m), and between 3 and 5 July 2010 (three days – 2.62 sq. m); 18 July and 13 August 2010 (twenty-seven days – 2.62 sq. m); 31 August and 2 September 2010 (three days – 2.55 sq. m); 19 and 26 November 2010 (eight days – 2.55 sq. m); 10 and 12 December 2010 (three days – 2.62 sq. m); 22 and 24 December 2010 (three days – 2.62 sq. m); and 24 and 25 February 2011 (two days – 2.62 sq. m).
147. There were also certain periods in which there were reductions in the minimum required personal space of 3 sq. m by 0.08, 0.04 and 0.01 sq. m (see paragraph 17 above). Although such reductions are not of the same degree and extent as those noted above, particularly given that some of them can hardly be demonstrated and distinguished in terms of space, and are therefore not decisive for the determination of the case at issue, the Court considers that they cannot be ignored in the overall assessment of conditions of the applicant’s confinement in Bjelovar Prison.
148. In view of these findings, and the relevant principles enunciated in its case-law (see paragraph 137 above), the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue. Accordingly, the question to be answered is whether there were factors capable of rebutting that presumption.
(ii) Whether there were factors capable of rebutting the strong presumption of a violation of Article 3
149. The Court notes that the relevant reductions in the applicant’s personal space below 3 sq. m were of relatively short duration. This is in particular true as to single non-consecutive periods of one (2.62 sq. m), two (2.62 sq. m) and eight days (2.55 sq. m), three non-consecutive periods of three days during which the applicant had 2.62 sq. m of personal space, and one period of three days during which the applicant had 2.55 sq. m of personal space. The Court notes, however, that there was also a period of twenty-seven days (between 18 July and 13 August 2010) in which the applicant disposed of 2.62 sq. m of personal space (see paragraph 146 above).
150. In these circumstances, sharing the Chamber’s concerns with regard to the period of twenty-seven days, the Court will first consider whether that period could be regarded as a short and minor reduction in the required personal space.
(α) The period of twenty-seven days
151. In this connection the Court observes that in a comparably similar case of Vladimir Belyayev (cited above), concerning several non-consecutive periods of reductions in the applicant’s personal space below 3 sq. m, the longest period lasted twenty-six days during which the applicant disposed of 2.97 sq. m of personal space (see paragraph 130 above). However, in the case at issue the applicant disposed of 2.62 sq. m of personal space for a period of twenty-seven days (see paragraph 146 above).
152. These circumstances are sufficient for the Court to conclude that the period of twenty-seven days when the applicant had only 2.62 sq. m at his disposal cannot call into question the strong presumption of a violation of Article 3.
153. Accordingly, the Court finds that in the period of twenty-seven days in which he disposed of less than 3 sq. m of personal space in Bjelovar Prison, the conditions of the applicant’s detention subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounting to degrading treatment prohibited by Article 3 of the Convention.
(β) The remaining periods
154. As regards the remaining periods which were of short duration and in respect of which the strong presumption of a violation of Article 3 of the Convention can accordingly be rebutted on other grounds, the Court must have regard to other relevant factors, namely the possibility of sufficient freedom of movement and out-of-cell activities and the general conditions of the applicant’s detention (see paragraphs 137-138 above). The burden of proving that there were such factors is on the Government.
155. With regard to the question of freedom of movement and out-of-cell activities, the Court notes the Government’s submissions concerning the amenities available for inmates in Bjelovar Prison. The Government explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. The Government also explained in detail the prisoners’ daily regime and described the facilities available in Bjelovar Prison (see paragraphs 19-20 above).
156. In support of their claims the Government provided photographs, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison (see paragraph 21 above). This in particular concerns the photographs, taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits of various officials to the prison, showing the interior of Bjelovar Prison, the recreation yard, the cells and their sanitary facilities. These photographs correspond to the Government’s description of the relevant facilities available to prisoners. The Government also provided documentation concerning the availability of entertainment for prisoners in Bjelovar Prison, which further supports the claims made in their submissions (see, by contrast, Orchowski, cited above, §§ 125 and 129).
157. For his part, the applicant sought to challenge the Government’s submission only in very general terms insisting on the fact that he had not been engaged in any work. At the same time he did not provide a detailed description disputing the Government’s claims concerning the opportunities for outdoor exercise and other details of the relevant prison regime in Bjelovar Prison (compare Golubenko, cited above, § 61). He conceded the fact that he had had a possibility of three hours per day of movement outside his cell but argued that the outdoor facilities were inadequate and insufficient, particularly given that there was only an open recreation yard (see paragraph 16 above).
158. The Court observes at the outset that the Government’s submissions are very detailed and consistent with their position in the Pozaić case concerning the relevant facilities available to detainees in the same prison at the relevant time (see Pozaić, cited above, §§ 15 and 60; and, by contrast, Idalov, cited above, § 99). Moreover, there is no indication that the relevant materials submitted by the Government were prepared after they had been given notice of the applicant’s complaint. There is therefore no reason for the Court to doubt the authenticity, objectivity and relevancy of such materials (see Sergey Chebotarev v. Russia, no. 61510/09, §§ 40-41, 7 May 2014).
159. On the other hand, in the absence of any detailed information from the applicant about his daily routines at Bjelovar Prison, and regard being had to the materials submitted by the Government on the issue, the Court is unable to accept the applicant’s submissions as sufficiently established or credible (see Ildani v. Georgia, no. 65391/09, § 27, 23 April 2013). It also attaches particular importance to the fact that the applicant never complained at the domestic level about certain aspects of his confinement, such as, in particular, the lack of outdoor exercise or insufficient time for free movement.
160. In view of the above, the Court’s task in the present case is to determine whether it can be ascertained, from the material submitted before it, that the applicant was given sufficient freedom of movement and adequate out-of-cell activities, which were capable of alleviating the situation created by the scarce allocation of personal space.
161. In this connection the Court notes that in the ordinary daily regime in Bjelovar Prison the applicant was allowed the possibility of two hours of outdoor exercise, which is a standard set out in the relevant domestic law (see paragraph 43 above, section 14 (1.9) of the Enforcement of Prison Sentences Act above) and above the minimum standards set out by the CPT (see paragraph 53 above). The photographs available to the Court show the recreation yard, which according to the Government’s undisputed submission, has a surface area of 305 sq. m and includes a lawn and asphalted parts as well as protection from inclement weather and is equipped with various recreational facilities, such as a gym, basketball court and ping-pong table.
162. Furthermore, it is undisputed by the applicant that he was allowed three hours per day of free movement outside his cell within the prison facility. Taking also into account the period of two hours of outdoor exercise, as well as the periods necessary for serving breakfast, lunch and dinner, it cannot be said that the applicant was left to languish in his cell for a significant proportion of his day without any purposeful activity. This is particularly true given the entertainment facilities available in Bjelovar Prison, such as the possibility of watching TV or borrowing books from the local library, as follows from the material available before the Court (compare Valašinas, cited above, § 111).
163. Against the above background, the Court finds that, even taking into account that the applicant was unable to obtain work, which related not only to the objective impossibility (see paragraph 20 above) but also arguably to the applicant’s previous behaviour (see paragraph 13 above), the possibility of free out-of-cell movement and the facilities available to the applicant in Bjelovar Prison could be seen as significantly alleviating factors in relation to the scarce allocation of personal space.
164. It remains to be determined whether the applicant was detained in generally appropriate conditions in Bjelovar Prison (see paragraphs 134 and 138 above). The Court is of the view that the above considerations concerning the material available before it hold true for the general conditions of the applicant’s detention. In particular, the Government’s detailed submission is corroborated by relevant evidence (see paragraph 21 above) and the findings of the competent domestic authorities in the applicant’s case, notably the competent judicial authorities, the Ministry of Justice Prison Administration and the Ombudsperson (see paragraphs 25, 28, 30 and 38 above). In this context the Court would note that there is no reason for it to call into question these findings of the competent domestic authorities. It also attaches particular importance to the fact that the applicant did not raise, let alone substantiate, allegations concerning poor hygiene conditions in the cells and poor nutrition, or notably inadequate recreational and educational activities, in his constitutional complaint before the Constitutional Court.
165. Moreover, the applicant’s statements concerning the general conditions of his detention are inconsistent and contrary to the available evidence. Specifically, at one instance the applicant argued that the cells where he had been accommodated were insufficiently equipped with the relevant furniture for every inmate (see paragraph 16 above), whereas elsewhere, when he intended to show that he had not had sufficient freedom of movement inside the cell, he argued that he had been unable to pace normally due to the furniture available to every inmate (see paragraph 80 above), which contradicts his own above-cited statement. Moreover, the applicant argued that the sanitary facilities were in the same room as the living area from which they were not fully separated (see paragraph 16 above), while the photographs and floor plans of the prison dating back to 1993, the authenticity and relevancy of which are not in dispute, show that the prison cells in Bjelovar Prison were equipped with a fully partitioned sanitary facility.
166. Likewise, the Court observes that it appears from the material available to it that the food served to the prisoners was regularly inspected by the prison doctor and the competent State authorities, and that prisoners were served three meals per day which, on the basis of the menu presented by the Government, do not appear substandard or inadequate (compare Alexov, cited above, § 106; and, by contrast, Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006, where prisoners had only one meal per day). Moreover, prisoners had free access to the sanitary facilities and there is no issue with regard to the access to natural light and fresh air in the cell.
167. There was also, as it appears from the available materials, a possibility to shower three times per week (see paragraph 26 above; see further paragraph 55 above, Rule 19.4 of the European Prison Rules; and by contrast Shilbergs v. Russia, no. 20075/03, § 97, 17 December 2009, where the applicant had a possibility to shower no more than once every ten days). The facilities of Bjelovar Prison were constantly renovated and maintained, including in the period before and during the applicant’s stay in that prison (see paragraphs 18 and 38 above). In this connection the Court notes the photographs, the authenticity of which is not in dispute, showing the interior of Bjelovar Prison, the recreation yard, the cells and their sanitary facilities, which appear to be in an adequate state of repair and cleanliness (see, by contrast for example, Zuyev v. Russia, no. 16262/05, § 59, 19 February 2013), and which accordingly correspond to the Government’s description of the relevant facilities available to prisoners.
168. In view of the above, the Court considers that the applicant was detained in generally appropriate conditions in Bjelovar Prison.
169. Against the above background, as regards the other periods during which the applicant disposed of less than 3 sq. m of personal space, the Court finds that the Government have rebutted the strong presumption of a violation of Article 3. Those non-consecutive periods can be regarded as short and minor reductions in personal space, during which sufficient freedom of movement and out-of-cell activities were available to the applicant. Moreover, he was detained in, viewed generally, an appropriate detention facility.
170. The Court therefore considers that it cannot be established that the conditions of the applicant’s detention, although not completely adequate as regards personal space, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention. This conclusion is not altered by the fact that the relevant domestic law provided for a standard of 4 sq. m of personal space per detainee, which, as already indicated above, may inform the Court’s decision but cannot be considered a decisive argument for its assessment under Article 3 (see paragraph 111 above). This is particularly true in the context of the Croatian domestic system given that the Constitutional Court, in its assessment of the minimum personal space allocated to a detainee, referred to the Court’s minimum standard of 3 sq. m of personal space set out in its Ananyev and Others judgment (see paragraph 45 above).
171. In the light of the above, the Court considers that the conditions of the applicant’s detention during the remaining periods in which he disposed of less than 3 sq. m of personal space did not amount to degrading treatment prohibited by Article 3 of the Convention.
(γ) Conclusion
172. The Court finds that there has been a violation of Article 3 of the Convention with regard to the period of twenty-seven days (between 18 July and 13 August 2010) in which the applicant disposed of less than 3 sq. m of personal space (see paragraph 153 above).
173. Conversely, with regard to the remainder of the periods in which the applicant disposed of less than 3 sq. m (see paragraph 171 above), the Court finds that there has been no violation of Article 3 of the Convention.
(b) Periods in which the applicant disposed of between 3 and 4 sq. m of personal space
174. As the applicant also complained about the periods in which his personal space in detention was more than 3 sq. m but less than 4 sq. m, where the space element remains a weighty factor in the Court’s assessment (see paragraph 139 above), it remains to be examined whether the impugned limitation on personal space was incompatible with Article 3.
175. The Court notes that it follows from the undisputed material available before it concerning the details of the applicant’s confinement in Bjelovar Prison that for several non-consecutive periods he disposed of between 3 and 4 sq. m of personal space ranging from 3.38 sq. m to 3.56 sq. m (see paragraph 17 above).
176. In view of the above considerations concerning the remainder of the period in which the applicant disposed of less than 3 sq. m of personal space (see paragraphs 154-171 above), the Court finds that it cannot be considered that the conditions of his detention in the period when he disposed of between 3 and 4 sq. m of personal space amounted to inhuman or degrading treatment within the meaning of Article 3 of the Convention.
177. The Court therefore finds that in this respect there has been no violation of Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
178. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
179. The applicant claimed 30,000 euros (EUR), plus any tax that may be chargeable, in respect of non-pecuniary damage.
180. The Government considered the applicant’s claim excessive and unsubstantiated.
181. The Court finds that the suffering caused to a person detained in conditions that are so poor as to amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention cannot be made good by a mere finding of a violation; it calls for an award of compensation (see Neshkov and Others, cited above, § 299). When making its assessment with regard to the applicant’s claim, the Court considers that the length of stay in inadequate conditions of detention is an important factor for the assessment of the extent of non-pecuniary damage (see Ananyev and Others, cited above, § 172; Torreggiani and Others, cited above, § 105; and Vasilescu, cited above, § 132). However, the Court also notes certain undeniable efforts made by the domestic authorities to alleviate the problem of overcrowding in Bjelovar Prison, which should be taken into account in determining the amount of any just satisfaction (see Samaras and Others, cited above, § 63 in fine; and Sergey Babushkin, cited above, § 51). Making its assessment on an equitable basis, and taking into account the fact that a violation of Article 3 was found with regard to a period of twenty-seven days in which the applicant disposed of less than 3 sq. m of personal space (see paragraph 172 above), the Court awards the applicant EUR 1,000 plus any tax that may be chargeable to him, in respect of non-pecuniary damage.
B. Costs and expenses
182. The applicant claimed EUR 5,025, plus any tax that may be chargeable, for costs and expenses incurred before the domestic authorities and before the Court.
183. The Government considered the applicant’s claim excessive and unsubstantiated.
184. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, as well as the sum to which the applicant’s lawyer is entitled on account of the granted legal aid (EUR 1,933.50), the Court considers it reasonable to award the sum of EUR 3,091.50, plus any tax that may be chargeable to the applicant, in respect of his costs and expenses before the domestic authorities and before the Court.
C. Default interest
185. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.