ITEMID: 001-87002
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FOREJT (II) v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Miloslav Forejt, is a Czech national who was born in 1937 and lives in Plzeň. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 May 1998 the applicant filed an action for damages against the State, represented by the Ministry of Justice, with the Plzeň-town District Court (okresní soud) under the State Liability Act.
On 8 July 1998 the Plzeň Regional Court (krajský soud) decided to transfer the case to the Plzeň-South District Court. On 19 April 1999 the applicant supplemented his action.
It seems that the proceedings are still pending at first instance.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-85195
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MATSKUS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial
JUDGES: Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1963 and lives in St Petersburg.
7. On 20 March 2002 an investigation against the applicant and another person (Mr R.) was opened on suspicion of extortion and corruption. The applicant and R. were police officers. On the following day the applicant was arrested and taken into custody.
8. On 29 March 2002 the applicant was charged with an attempt to receive a bribe in a particularly large amount, an offence under Articles 30 § 3 and 290 § 4 of the Criminal Code.
9. On 8 May 2002 the applicant was dismissed from the police.
10. On 29 May 2002 the charge against the applicant was amended to that of aggravated fraud, an offence under Article 159 §§ 2 and 3 of the Criminal Code.
11. On 20 June 2002 a deputy prosecutor of the Frunzenskiy District approved the bill of indictment and submitted the case for trial.
12. On 28 June 2002 the Frunzenskiy District Court of St Petersburg examined counsel’s requests concerning evidence and witnesses and fixed the trial date for 25 October 2002.
13. On 25 October 2002 the hearing was adjourned owing to absence of lay judges. The applicant asked the court to hear the case in a single-judge formation, in order to expedite proceedings. R. insisted on the presence of lay judges. The trial was adjourned until 20 December 2002.
14. On 20 December 2002 the District Court decided to sit in a single-judge formation and granted the defence’s request for additional time required for viewing photo and video recordings. The trial was postponed until 6 March 2003.
15. At the hearing of 6 March 2003 the District Court determined that the trial could not proceed because the defendants had not been afforded an opportunity to view photo and video recordings. It adjourned the hearing until 24 April 2003.
16. The hearings fixed for 24 April and 16 June 2003 were adjourned because the case file was with the City Court. On 21 August 2003 the hearing was adjourned owing to absence of counsel for Mr R. On 3 November 2003 the trial hearing was adjourned because the judge had fallen ill.
17. On 18 December 2003 the District Court began examination of the merits of the case. The victim was interrogated.
18. On 22 December 2003 a witness for the prosecution was examined. As the other witnesses did not appear, the hearing was adjourned until 5 February 2004.
19. Of three hearings listed in February 2004, two were postponed. On 2 March 2004 counsel for the applicant and Mr R. did not appear.
20. On 1 and 8 April 2004 the District Court examined two witnesses for the prosecution and read out depositions by five other witnesses who had not appeared.
21. Of six hearings fixed between 20 April and 17 June 2004, three were adjourned because the judge was ill.
22. On 22 June 2004 the District Court ordered an expert examination of audio and video materials and refused the applicant’s petition for release.
23. On 30 June 2004 the judge, presiding over the trial, was dismissed and the case was assigned to another judge. On 14 September 2004 the Frunzenskiy District Court, sitting in a new single-judge formation, ordered to start the trial from the beginning.
24. On 25 October 2004 the victim and a witness were examined.
25. Between 16 December 2004 and 30 May 2005 five hearings were listed and then adjourned because of the absence of witnesses, counsel for R. or R. himself. A further hearing was scheduled for 5 September 2005.
26. On 12 October, 2 and 28 November 2005 hearings took place.
27. On 30 January 2006 the Frunzenskiy District Court issued the judgment by which it acquitted the applicant and R. of all charges.
28. On 13 July 2006 the St Petersburg City Court quashed the acquittal on procedural grounds and ordered a new trial.
29. Between 5 September and 31 October 2006 five hearing had been listed, of which four were adjourned for various reasons.
30. It appears that the proceedings are now pending.
31. On 22 March 2002 a prosecutor ordered the applicant’s arrest and placement in custody. On 17 May 2002 the prosecutor extended the applicant’s detention until 20 June 2002.
32. On 31 May 2002 the Frunzenskiy District Court of St Petersburg dismissed the applicant’s appeal against the initial detention order and the subsequent extension. It noted that the detention order had not been procedurally defective and that the investigator had reasonably believed that, if released, the applicant would interfere with the establishment of the truth because he was charged with a particularly serious criminal offence.
33. On 28 June 2002 the Frunzenskiy District Court held that the applicant and R. should remain in custody because they were charged with particularly serious offences.
34. On 20 December 2002 the District Court extended the applicant’s and R.’s detention until 20 March 2003 on the ground that they were charged with a particularly serious crime and that their release “would substantially impede comprehensive, complete and objective examination of the case”. On 28 January 2003 the St Petersburg City Court, on an appeal by the applicant’s counsel and R., upheld the extension order, finding as follows:
“The defendants Matskus and R. are accused of a serious crime committed through the use of their official position. Taking into account that fact and also the specific charge against the defendants, the court considers that the [District] court has reached the justified conclusion that release of the defendants would substantially impede comprehensive, complete and objective examination of the case. The existence of a permanent place of residence, positive work references, family connections and the absence of a criminal record are not incompatible with the decision on placing and holding of the defendants in custody.”
35. On 6 March 2003 the District Court extended the defendants’ detention for three more months, reproducing verbatim the grounds for extension in the decision of 20 December 2002. On 3 June 2003 the St Petersburg City Court rejected the appeals by the applicant, R. and their counsel, and upheld the extension order in the following terms:
’ removal from their office, which fact was confirmed by the order produced to the court, did not guarantee that they would not exercise pressure on witnesses”.
36. On 16 June 2003 the District Court extended the applicant’s and R.’s detention until 20 September 2003, using the same wording as before. On 21 August 2003 the District Court approved a further extension for three months, that is until 20 December 2003, founded on the same grounds.
37. On 16 September 2003 the City Court quashed the extension order of 16 June 2003 because the District Court had issued the order in the absence of the case-file (which had been in the City Court at that time). On 19 September 2003 the District Court issued a new detention order in respect of the period from 20 June to 20 September 2003, which was founded on the same grounds as before.
38. On 18 November 2003 the City Court upheld the extension order of 21 August 2003, but quashed the decision of 19 September 2003 on procedural grounds and remitted the remand issue for a new examination.
39. On 18 December 2003 the District Court issued two detention orders. The first one covered the period from 20 June to 20 September 2003, and the second order extended the applicant’s and R.’s detention by three more months, that is until 20 March 2004. Both orders were founded on the same grounds as before.
40. On 2 March 2004 the District Court, in the absence of defence counsel, extended the applicant’s and R.’s detention by three more months, that is until 20 June 2004, using the same stereotyped wording.
41. On 17 June 2004 the District Court extended the applicant’s and R.’s detention until 20 September 2004, referring solely to the gravity of the charge against them. On 10 September 2004 the City Court upheld that decision.
42. On 21 July 2004 the Presidium of the St Petersburg City Court, acting on a request of the St Petersburg prosecutor, quashed the extension order of 2 March 2004 because the remand measure had been decided upon in the absence of the defendants’ counsel.
43. On 14 September 2004 the Frunzenskiy District Court issued a new detention order covering the period from 20 March to 20 June 2004. However, it refused a further extension of the applicant’s and R.’s detention for the following reasons:
“Matskus and R. are accused of having committed a serious crime using their office. By an order of 8 May 2002... Matskus and R. were removed from their offices... Matskus was dismissed from the police... Under these circumstances, the court considers that the defendants cannot use their official position to obstruct justice.
Matskus and R. have no criminal record, they have a permanent and registered place of residence in St Petersburg. Besides, the court also notes that the defendants have remained in custody for a long time, more than two years. The case will be examined by a new formation which calls for re-examination of all pieces of evidence...
In these circumstances, the court considers it necessary to vary the preventive measure in respect of Matskus and R. and to replace detention on remand with an undertaking not to leave the town...”
The applicant and R. were released in the courtroom.
44. On 7 October 2004 the Frunzenskiy District Court authorised the applicant to leave St Petersburg and pay a visit to his relations in the Novgorod Region.
45. Since 1 July 2002 detention matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001).
46. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).
47. When deciding on a preventive measure, the court is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or interfere with the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
48. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
49. After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” is two months but it can be extended for up to six months. Further extensions for up to twelve or eighteen months may be authorised only if the accused is charged with serious or particularly serious criminal offences (Article 109 §§ 1-3).
50. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “during the trial”. The term of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
VIOLATED_ARTICLES: 5
6


ITEMID: 001-91586
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF HILGARTNER v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1976 and lives in Strzelce Opolskie.
6. On 1 July 2003 the applicant was arrested on suspicion of two counts of kidnapping, deprivation of liberty, extortion and battery, committed in an organised and armed criminal group.
7. On 2 July 2003 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence. The court also stressed the severity of the anticipated sentence and the fact that the offences had been committed in an organised criminal group.
8. Subsequently, fourteen other persons suspected of belonging to the same criminal group were charged in connection with the investigation of the applicant.
9. The applicant’s appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued that the charges against him were based on unreliable evidence. He further relied on his personal circumstances; in particular the fact that he was unable to complete his university education and continue running his business, and the need to ensure that his parents were cared for. Lastly, the applicant stressed, on several occasions, that he had never made any attempts to disrupt the trial.
10. In the course of the investigation the applicant’s detention was prolonged on 22 September and 22 December 2003, 22 March, 23 June and 22 September 2004.
11. On 18 November 2004 the bill of indictment was lodged with the Częstochowa Regional Court. The applicant was charged with kidnapping, deprivation of liberty, extortion and battery committed in an organised criminal group. The bill of indictment contained fourteen other persons.
12. Further decisions extending the applicant’s detention were taken on 21 December 2004, 29 June and 21 December 2005, 19 April and 11 October 2006, 22 February, 20 June and 28 November 2007. In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses, and on the likelihood of a severe sentence of imprisonment being imposed on the applicant. They attached importance to the complexity of the case, the significant number of persons involved and the voluminous documentation. They further considered that the need to secure the proper conduct of the proceedings, especially the need to verify evidence from suspects and witnesses justified holding him in custody and that the applicant, if released, could obstruct the proper course of the proceedings. The courts found no special grounds that would justify lifting the detention and imposing a less severe measure. In its decision of 21 December 2005 the Katowice Court of Appeal recommended to the Częstochowa Regional Court that hearings should be held more frequently, in order to ensure the speedy progress of the proceedings. Further, in the decisions of 11 October 2006 and 22 February and 20 June 2007, the Katowice Court of Appeal stressed the need to terminate the criminal proceedings pending before the first-instance court.
13. By letters of 12 January, 29 June, 8 August and 26 September 2005 and 1 December 2006 the Częstochowa Regional Court refused the applicant’s requests to receive visits from friends in detention. It held that the permission to receive visits was limited to the members of the applicant’s close family only.
14. On 21 August 2007 the Częstochowa Regional Court did not allow the applicant to have a book written by Charles Dickens in English delivered to the detention centre.
15. On 10 January 2008 the Częstochowa Regional Court delivered its judgment. The applicant was convicted and sentenced to seven years’ imprisonment and a fine of 2,250 Polish zlotys (PLN).
16. By decisions of 17 January and 19 June 2008 the Częstochowa Regional Court further extended the applicant’s detention. It held that in the light of the first-instance judgment, the reasons for keeping the applicant in detention were still valid.
17. On 17 July 2008 the applicant lodged an appeal.
18. On 26 November 2008 the Katowice Court of Appeal prolonged the applicant’s detention until 31 January 2009.
19. On 22 December 2008 the Katowice Court of Appeal lifted the applicant’s detention and placed him under police supervision. The court held that the applicant’s presence at home was necessary to ensure the care of his parents in the light of their difficult financial situation and the forthcoming surgery of the applicant’s father.
The applicant was released on 23 December 2008.
20. It appears that the criminal proceedings are still pending before the appellate court.
21. The relevant domestic law and practice concerning the imposition of detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
22. On 6 June 2007 the Committee of Ministers adopted on the Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found similar violations was constantly increasing. It concluded that the number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final).
23. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between four to six years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pretrial detention in Polish law. A more detailed rendition of the relevant parts of the memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35).
VIOLATED_ARTICLES: 5


ITEMID: 001-58145
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF BELZIUK v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (incompetence ratione temporis, non-exhaustion);Violation of Art. 6;Non-pecuniary damage - claim dismissed;Costs and expenses - claim dismissed
JUDGES: C. Russo
TEXT: 6. The applicant was born in 1949 and lives in Gorlice, Poland.
7. On 31 May 1992 he was arrested on suspicion of having attempted to steal a car and on 2 June 1992 was remanded in custody.
8. The trial took place on 24 September, 15 October and 25 November 1992 before the Tarnów District Court (Sąd Rejonowy). The District Court heard as witnesses the owner of the car and his neighbour as well as the police expert, who confirmed that the door lock had been tampered with in an attempt to open it. The court also considered as evidence a bag containing instruments, which could have been used to open the car lock. The bag had been found in the close vicinity of the applicant at the time of his arrest. The applicant was present during the trial. According to the Government the applicant had chosen not to be represented by a lawyer.
9. On 25 November 1992 the District Court convicted the applicant of attempted theft and sentenced him to three years’ imprisonment. It found the evidence of the witnesses to be exhaustive and logical and their statements consistent.
10. The applicant filed an appeal against this judgment with the Tarnów Regional Court (Sąd Wojewódzki). He maintained in particular that the first-instance court had disregarded his explanations and had only attached weight to the prosecution evidence. He also requested that his accomplice and the two policemen who had arrested him be heard as witnesses and that he be brought from prison to the hearing before the Regional Court.
11. On 21 April 1993 the Regional Court refused the applicant’s request to be brought before it, considering that his presence was unnecessary, since he had already given a detailed account of the events at his trial before the District Court. Moreover, in his written statement of appeal he had set out at length his complaints in respect of the contested conviction. Furthermore, in its view he had sufficient time to submit further observations in writing, if he wished to do so.
12. On 10 May 1993, after a hearing at which the public prosecutor, but not the applicant, was present (see paragraph 14 below), the Regional Court dismissed the applicant’s appeal.
13. The Regional Court had heard the prosecutor’s submissions to the effect that the judgment of the lower court should be upheld, and it considered that the District Court had thoroughly assessed the evidence and had carefully considered the applicant’s guilt, as shown by the fact that the applicant had been acquitted on one of two charges. The Regional Court found that the evidence given by the applicant was inconsistent and motivated by his wish to avoid conviction. Moreover, the applicant had failed to request the District Court to hear further evidence. It noted that the applicant had only submitted a request to have the policemen who had arrested him heard when lodging his appeal. However, the Regional Court considered it unnecessary to hear the witnesses as the other evidence presented to the District Court was sufficient to prove the applicant’s guilt.
14. The relevant provisions of the Polish Code of Criminal Procedure in force at the material time read as follows:
“An accused, who does not have a lawyer of his own choice, may request the assistance of an officially appointed lawyer if he proves that he is not able to incur the costs of defence without detriment to himself and his family.”
“A court of appeal shall conduct a hearing when examining a case…”
“A hearing shall be held irrespective of whether the parties are present. However, a hearing shall not be held if the public prosecutor is absent…”
“If a case is to be examined at a hearing, the court may order an accused, who is detained, to be brought to the hearing.”
“1. An appellate court cannot take evidence.
2. However, the court can exceptionally take evidence at a hearing … if it would expedite proceedings…”
15. The Code of Criminal Procedure provided at the material time for two-instance proceedings. Regional courts considered, inter alia, appeals against judgments of district courts. Only remedies of an extraordinary character were available against a judgment given by a regional court in appeal. Since then the Code of Criminal Procedure has been amended and now provides for cassation proceedings in respect of judgments of appellate courts.
16. Article 383 of the Code of Criminal Procedure prohibits an appellate court from increasing a sentence imposed by a trial court if the appeal was lodged by a defendant.
17. The Prosecution Authorities Act 1985 provides that the prosecution service is composed of the Principal Public Prosecutor and subordinate public prosecutors. Public prosecutors are independent in carrying out their duties. However, they are under an obligation to follow the instructions of higher ranking prosecutors.
18. In a declaration of 1 March 1993, deposited with the Secretary General of the Council of Europe by the Polish Minister for Foreign Affairs, Poland recognised the jurisdiction of the Court in the following terms:
“The Government of the Republic of Poland, pursuant to Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature in Rome on 4 November 1950, declares that it recognises, for a period of three years with effect from 1 May 1993, as compulsory ipso facto and without special agreement, on condition of reciprocity on the part of the other Contracting Parties, the jurisdiction of the Court of Human Rights in all matters concerning the interpretation and application of the aforementioned Convention.
The validity of this Declaration may be renewed by tacit agreement for periods of three years, if the Government of the Republic of Poland, by notification to the Secretary General of the Council of Europe, does not denounce this Declaration by giving at least six months’ notice before the expiry of the first period or of the subsequent periods.”
VIOLATED_ARTICLES: 6


ITEMID: 001-95896
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DOLENEC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3;Violation of Art. 3;No violation of Art. 8;Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1+6-3;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1967 and is at present serving a prison term in Gospić Prison.
5. On an unspecified date an investigation was opened in respect of the applicant, who was suspected of having committed a number of thefts and aggravated thefts.
6. On 20 February 2004 a Varaždin County Court investigating judge (istražni sudac Županijskog suda u Varaždinu) issued a warrant for the search of the applicant's flat. The search was carried out by the police on 23 February 2004 and a number of items were seized.
7. The applicant was arrested on 23 February 2004 at 10 p.m. but was released on 24 February 2004 at 6.00 p.m.
8. On 1 March 2004 the applicant was indicted in the Prelog Municipal Court (Općinski sud u Prelogu) on numerous counts of theft and aggravated theft. He was represented in these proceedings by an officially appointed defence counsel.
9. He was arrested again on 2 March 2004 and placed in pre-trial detention in Varaždin Prison (Zatvor Varaždin) and later on in other prison facilities (see below).
10. During the criminal proceedings against him, the applicant was examined by a psychiatrist and, in a psychiatric report of 16 May 2004, it was established that the applicant suffered from post-traumatic stress disorder (PTSD).
11. In a judgment of the Prelog Municipal Court of 26 August 2004 the applicant was found guilty of twenty counts of theft and aggravated theft and sentenced to six years and six months' imprisonment. The applicant appealed against the judgment to the Čakovec County Court (Županijski sud u Čakovcu) complaining about the outcome of the proceedings and also that his defence rights had been violated in that he had not been informed of the hearings in time to prepare his defence and that he had not had sufficient contact with the officially appointed defence counsel.
12. On 1 October 2004 the applicant was taken to the Prelog Municipal Court, where he examined the case file. His request that certain documents be copied for him was complied with.
13. The first-instance judgment of 26 August 2004 was quashed on 14 January 2005 by the Čakovec County Court which extended the applicant's detention at the same time. The first-instance judgment was quashed, inter alia, on the grounds that the applicant had not been informed of the hearings in time to prepare his defence and that he had not had sufficient contact with the officially appointed defence counsel.
14. On 30 January 2005 the applicant lodged a request with the Prelog Municipal Court seeking permission to contact his officially appointed defence counsel and some other persons. On 2 February the Municipal Court allowed the applicant unrestricted telephone communication with his defence counsel.
15. At a hearing held on 3 February 2005 the applicant challenged the presiding judge for bias. The defence counsel opposed the challenge. The hearing was adjourned pending the decision on the applicant's objection. In his submission of the same date the defence counsel requested to be relieved of his duties.
16. On 4 February 2005 the President of the Prelog Municipal Court dismissed the applicant's challenge to the presiding judge as unfounded. On the same day the presiding judge relieved the officially appointed defence counsel of his duties and the president of the court appointed a new defence counsel. The applicant was allowed unrestricted telephone communication with his new counsel.
17. On 14 February 2005 the applicant informed the presiding judge that his attempts to contact his newly appointed defence counsel had remained unsuccessful, since there had been no answer to his calls, and requested a visit from his defence counsel in prison since the next hearing had been scheduled for 17 February 2005. On the same day the presiding judge allowed an unlimited number of visits to the applicant's sister and mother but made no decision about the request concerning the defence counsel. However, the hearing scheduled for 17 February 2005 was adjourned on the oral request of the defence counsel, in order to prepare the defence. The next hearing was scheduled for 10 March 2005.
18. In the meantime, on 11 February 2005, the Prelog Municipal Court further extended the applicant's detention. A subsequent request by the applicant that his detention be lifted was dismissed on 23 March 2005 by the Prelog Municipal Court. The applicant appealed against this decision.
19. On 7 March 2005 the applicant lodged a request with the presiding judge for leave to consult the case file. He alleged that on 1 October 2004, when he had been brought to the Prelog Municipal Court, he had not had sufficient time to consult the entire file and that not all copies he had requested had been given to him and that at that time the case file had not yet been completed. This request remained unanswered.
20. At the beginning of the hearing of 10 March 2005 the applicant insulted the presiding judge and was removed from the courtroom, followed by his defence counsel. Soon afterwards counsel returned and challenged the presiding judge, and the hearing was adjourned. On 14 March 2005 the President of the Prelog Municipal Court dismissed the challenge as unfounded.
21. Upon the appeal by the applicant against the decision of 23 March 2005, on 30 March 2005 the Čakovec County Court quashed the first-instance decision and ordered the applicant's immediate release. It found that, pursuant to the relevant provisions of the Criminal Procedure Act, the statutory time-limit for the applicant's detention had expired on 2 March 2005 and that therefore there had been no grounds for keeping him in detention after that date.
22. The applicant was released on 30 March 2005. On 31 March 2005 the presiding judge relieved the applicant's officially appointed defence counsel of his duties.
23. The next hearing before the Prelog Municipal Court was held on 1 April 2005. The applicant was present in person, but legally unrepresented. The transcript of the hearing shows that the applicant expressly stated that he did not want a defence counsel and decided to remain silent. The applicant did not sign the transcript of the hearing. In a judgment adopted on the same day, the first-instance court again found the applicant guilty of twenty counts of theft and aggravated theft and sentenced him to six years and six months' imprisonment. Immediately after the hearing the applicant was detained and placed in Varaždin Prison. On the same day the same defence counsel was officially assigned to the applicant.
24. The applicant appealed against the first-instance judgment on 4 and 22 April 2005, alleging that his defence rights had been violated in that he had not been given an opportunity to consult the case file. He alleged that on 1 October 2004 he had been brought to the Prelog Municipal Court in order to consult the case file. However, owing to the large volume of documents in the case file, the time allowed for that purpose had not permitted him to consult all the documents he had wished to. It had therefore been agreed that the requested documents would be copied and sent to him in prison. However, this request had only partially been complied with and he had never had an opportunity to read the whole case file. He further alleged that he had complained about this at the hearing held on 1 April 2005 but that his allegations had been ignored. He further complained that the search of his premises had been carried out in contravention of the relevant provisions of the Code of Criminal Procedure because the requirement that two witnesses be constantly present had not been complied with. He also complained about the qualification of some of the offences as aggravated theft instead of theft and about the severity of the sentence.
25. On 18 April 2005 the officially appointed defence counsel also lodged an appeal, referring to the factual findings of the first-instance court.
26. On an unspecified date the applicant asked the Prelog Municipal Court if he could consult the case file. In its letter of 28 April 2005 addressed to the Head of Prison Administration at the Ministry of Justice, a copy of which was also forwarded to the applicant, the president of that court allowed the applicant's request. The applicant then requested that a date be fixed for consulting the case file. The President of the Prelog Municipal Court replied that the consultation was not possible because the case had been forwarded to the Čakovec County Court upon an appeal against the first-instance judgment. In a letter of 13 May 2005 a judge of the same court informed the applicant that his request had been granted and that the case file had been forwarded to the Čakovec County Court.
27. On 17 May 2005 the Čakovec County Court allowed the applicant's appeal in the part concerning the qualification of certain offences and reduced the sentence to six years and four months' imprisonment while dismissing the remainder of his complaints. The relevant parts of the appeal judgment read as follows:
“In his personal appeal the defendant complains of serious breaches of the provisions regulating criminal proceedings, [these being] his inability to consult the case file; reliance of the impugned judgment on evidence under Article 9, paragraph 2, of the Code of Criminal Procedure, namely, the written record of the search of his flat and other premises, and the allegation that the identification of items (as potential evidence) by the injured parties had not been carried out in accordance with Article 243 (a) of the Code of Criminal Procedure.
The officially appointed defence counsel also alleges in his appeal that there was a serious breach of the provisions regulating criminal proceedings in the reliance of the first-instance judgment on illegally obtained evidence, because the search of the defendant's premises had been carried out without the simultaneous presence of two witnesses.
The search of the defendant's flat and other premises at the address Donji Kraljevec, Gornji kraj no. 13, was carried out by the police pursuant to search warrant no. Kir-75/04-02, issued by a Varaždin County Court investigating judge on 20 February 2004 and served on the defendant beforehand, as can be seen from a receipt on page 18 of the first-instance [court] case file. The report of the search of the [defendant's] flat and other premises of 23 February 2004 shows that the search was carried out in the presence of the defendant and two witnesses. On that occasion objects, which were enumerated in the certificates on temporarily seized items, were found and temporarily seized from the defendant. The defendant's assertion that the witnesses were not simultaneously and continually present during the search is unfounded and uncorroborated, since neither the defendant nor the present witnesses put forward any objections. As the search was carried out in compliance with Articles 211 and 214 of the Code of Criminal Procedure, the report in question and the certificates regarding the items temporarily seized from the defendant constitute fully valid and legal evidence.
The defendant's assertion that the first-instance court breached the provisions of the Code of Criminal Procedure [regulating] identification of certain objects in that the injured parties were shown the objects for identification without previously being asked to describe those objects is unfounded. Article 243(a) of the Code of Criminal Procedure requires that a defendant or a witness be asked beforehand to describe a person or an object [to be identified] and describe their distinguishing marks only when necessary; following which the person or the object [to be identified] are to be shown to the defendant or a witness, together with other persons unknown to them, or with similar objects. It follows that this provision does not oblige the court or the police authorities to present the persons identifying [objects as potential evidence] with similar objects at each instance but [this requirement applies] only where possible. In the present case, where a large number of different objects were [to be identified], the police officers were not obliged to act in the manner the defendant argued they were in his appeal and therefore, in the view of this court, the identification of objects [as potential evidence] was carried out in accordance with the law. Therefore, the reports on identification in the present case constitute valid evidence, especially since some of the injured parties emphatically stated at the main hearing that the objects they had been presented with were theirs, which in any event – save for a few of [these objects] – the defendant did not deny in his initial defence.
As regards the [alleged] inability of the defendant to consult the case file, it is to be noted that the [documents] from the case file show that the first-instance court allowed the defendant to consult the case file on 1 October 2004 (page 520) and that the requested copies of material evidence were served on the defendant in detention on 14 October 2005 (page 572).
The defendant complains that his written request of 7 March 2005 to consult the case file while he was in detention was not granted.
On the basis of the above [considerations], this court considers that in the present case there was no breach of Article 367, paragraph 3, of the Code of Criminal Procedure, since the defendant regularly attended the hearings, where he was able to consult the case file, copy the documents thereof and [examine] the objects aimed at establishing the facts of the case. Furthermore, during practically the entire first-instance proceedings the defendant had an officially appointed defence counsel. Thus, this court finds that there was no breach of his defence rights within the meaning of Article 367, paragraph 3, of the Code of Criminal Procedure.
...
As regards the [allegations] that the facts of the case were wrongly established and incomplete, both appeals allege the same fact: that the first-instance court's refusal to hear evidence from the witnesses to the search resulted in a failure to establish whether the search of the applicant's house and adjoining courtyard had been carried out in accordance with the law.
This court considers that the first-instance court correctly and completely established all the relevant facts, including those concerning the question whether the carrying out of the search on the applicant's flat and other premises was in accordance with the law. In this connection the first-instance court gave valid reasons for its decision not to accept the above-mentioned defendant's request [that two witnesses be heard], which reasons this court entirely endorses ...”
28. The applicant then lodged a request for extraordinary review of a final judgment.
29. In response to repeated requests by the applicant to consult the case file, the President of the Municipal Court informed him in a letter of 7 November 2005 that his request could not be granted because the case file had been forwarded to the Supreme Court.
30. On 22 November 2005 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant's request for extraordinary review of a final judgment. The relevant parts of the judgment read as follows:
“.. the defendant ... alleges that the impugned judgment rests on unlawfully obtained evidence, namely the report on the search of his flat, and that his defence rights were violated because he was not allowed to consult the case file before presenting his defence.
...
The report on the search of the [defendant's] flat and other premises shows that the search was carried out pursuant to Varaždin County Court search warrant no. Kir 75/04-2 of 20 February 2004; and that two witnesses were present who were instructed at the outset to observe the procedure for carrying out [the search] and informed of their right to make objections before signing the report if they considered its contents to be inaccurate. The defendant was also present. All of these persons signed the report after it had been read to them, without making any objections, thus expressing their agreement with the content of the report.
Such a report is lawful evidence because it shows that the search was carried out in accordance with Articles 213 and 214 of the Code of Criminal Procedure.
The defendant's assertion that the witnesses were not constantly present during the search is an objection to the established facts and cannot be accepted as a valid ground for lodging this extraordinary remedy.
This court may consider the veracity of decisive facts only if a suspicion in that regard arises when it examines a request lodged under Article 427 of the Code of Criminal Procedure. In the present case, bearing in mind the content of the report on the search of the [defendant's] flat and other premises, this panel does not find any reasons to suspect that the search was not carried out in accordance with Articles 213 and 214 of the Code of Criminal Procedure.
Under Article 427(3) a request for extraordinary review of a final judgment may also be lodged [on the allegation that] the defendant's rights were violated at a main hearing.
At the main hearing held on 1 April 2005, when the first-instance judgment was adopted and pronounced, the defendant's rights were not violated. The transcript of the hearing shows that the hearing started anew with a deputy State Attorney reading out the indictment. The defendant was informed of his right to a defence counsel under Article 320, paragraphs 2 and 4, of the Code of Criminal Procedure, but he decided neither to exercise that right nor to present his defence, and remained silent.
The defendant did not object to the procedure followed by the court or ask for the hearing to be adjourned in order to prepare his defence.
The defendant's allegation that the court denied him the right to consult the case file while in detention is irrelevant for the examination of this request because he was informed of his rights at the main hearing, after which he chose not to submit his defence.
...”
31. In reply to a further request to consult the case file, lodged by the applicant on 23 January 2006, the President of the Prelog Municipal Court informed the applicant that his request could not be granted because the case file had been forwarded to the Varaždin Municipal Court (Općinski sud u Varaždinu).
32. A constitutional complaint subsequently lodged by the applicant was declared inadmissible on 23 February 2006 by the Constitutional Court (Ustavni sud Republike Hrvatske) on the grounds that the impugned decision, namely the Supreme Court's judgment of 22 November 2005, had not concerned the merits of the case. The relevant part of the decision reads:
“In accordance with [section 62 of the Constitutional Court Act], only a decision in which a competent court has decided on the merits of a case, namely, on the suspicion or indictment in respect of a criminal offence committed by the applicant, is an individual act within the meaning of section 62(1) of the Constitutional Court Act in respect of which the Constitutional Court, in proceedings instituted upon a constitutional complaint, is competent to protect human rights and fundamental freedoms of the applicant guaranteed by the Constitution of the Republic of Croatia.
In the proceedings before the Constitutional Court it has been established that the impugned judgment of the Supreme Court of the Republic of Croatia no. Kr-83/05 of 22 November 2005 is not an individual act within the meaning of section 62(1) of the Constitutional Court Act in respect of which the Constitutional Court is competent to give constitutional protection to the applicant.”
33. The medical documentation submitted by the parties shows that the applicant has been diagnosed as suffering from PTSD and a personality disorder.
34. The applicant was arrested on 23 February 2004 at 10 p.m. and released on 24 February 2004 at 6.00 p.m. He was arrested again on 2 March 2004 and placed in pre-trial detention in Varaždin Prison. As to the latter, the applicant alleges that the cells were overcrowded, that he was placed in a smoking cell and that he was only allowed to spend fifteen to twenty minutes a day in the fresh air. On 11 June 2004 the applicant was transferred to Zagreb Prison Hospital further to his complaint that he suffered from being placed in a cell with smokers. The discharge letter of 15 June 2004 shows that no lung disease had been established. The applicant was returned to Varaždin Prison.
35. In a complaint of 7 July 2004 addressed to the Prison Administration of the Ministry of Justice (Uprava za zatvorski sustav Ministartsva pravosuđa), the applicant complained about his placement in a cell with smokers. In a letter of 12 July 2007 of the Varaždin Prison authorities, addressed to the above Administration, it was explained that, owing to overcrowded conditions in that prison, it was not possible to place the applicant in a cell with non-smokers only. This information was forwarded to the applicant in a letter of the Prison Administration of the Ministry of Justice of 16 July 2004.
36. In his complaint of 12 October 2004 addressed to the Varaždin County Court, the applicant complained, inter alia, about the conditions in detention and, in particular, that he was placed in a cell with smokers and was allowed only fifteen to twenty minutes daily outdoor exercise. The applicant's complaints remained unanswered.
37. In October 2004 the applicant was released.
38. The applicant was again detained in January 2005 and placed in Varaždin Prison until 30 March 2005, when he was released.
39. On 1 April 2005, after his conviction by the Prelog Municipal Court, the applicant was arrested and again placed in Varaždin Prison. He was placed in cell no. 15, measuring 10.26 square metres, together with one other inmate, a non-smoker.
40. On 1 May 2005 the applicant made a commotion in his cell by banging chairs and his bed and verbally insulting the prison personnel. He was taken out of his cell and strapped down in a special cell. There is no written record of this measure or its exact duration.
41. During an outdoor walk on 13 May 2005 an attempt by the applicant to hit another inmate was prevented by a prison guard. The applicant was strapped down in a special cell and returned to his regular cell the same day. There is no written record of this measure or its exact duration. The same day the applicant attempted to attack a prison guard. As a consequence, he was strapped to his bed. There is no written record of this measure or its exact duration. Furthermore, the same day the applicant was transferred to Zagreb Prison Hospital. The relevant part of the discharge letter of 25 May 2005 reads:
“The patient was brought from Varaždin Prison in reactive exacerbation of his mental condition. He was agitated on arrival, with no manifest psychotic or suicidal symptoms. He said that he had been refusing food since 12 May.
... He has continued to refuse food until 23 May, but has been taking liquids and vitamin pills. He has not received any other treatment. He is in a good general condition ... Elements of PTSD. Depressive-paranoid syndrome. Histrionic personality. ...
Recommended treatment: Apaurin ..., psychiatric supervision and more intensive engagement on the part of the treatment services.”
42. He was returned to Varaždin Prison to the same cell. The medical record shows that he refused food from 12 to 23 May 2005, but did take liquids and vitamin pills.
43. On 8 June 2005, following an incident in which the applicant started breaking furniture in his cell, he was sent to the prison doctor. However, he verbally insulted the doctor and other medical personnel and was strapped down in cell no. 16. There is no written record of this measure or its exact duration.
44. On 13 June 2005 the applicant was transferred to Zagreb Prison, where he was placed in the Department for Diagnostics and Programming (Odjel za dijagnostiku i programiranje). A report on the general examination of the applicant, in so far as relevant, reads as follows:
“...
DIAGNOSTIC INFORMATION
In the intellectual capacity tests his results are above average. He adequately cooperates during the interview, apologising for having to go on a hunger strike in order to safeguard his rights. Actually, he is highly anxious and over-sensitive, everything bothers him. In terms of his personality, he is impulsive and emotionally unstable. He easily loses control of his behaviour and acts in an emotionally impulsive and inadequate manner. The low tolerance of frustrations is evident, which leads to irritability and accentuated touchiness. His tendency to react aggressively is marked and he has a significantly lowered capacity to maintain self-control and self-protection, which makes him prone to undertake activities involving a high level of risk. He has no insight into his motives and feelings and is uncritical. The likelihood that he will reoffend is high.
...
WORKING CAPACITY
He is capable for all types of work without restrictions.
PROPOSAL AS TO THE INDIVIDUAL PROGRAMME FOR THE ENFORCEMNT OF THE PRISON TERM
The prison term is to be continued in closed conditions. It is to be expected that his behaviour will be excessive (conflicts, disobedience, refusal of food ...). He may be assigned to a work place according to the needs of the institution. Psychiatric supervision as needed.”
RECOMMENDATION OF THE INSTITUTION WHERE THE PRISON TERM IS TO BE CONTINUED
Lepoglava State Prison”
45. The relevant part of the applicant's medical record during his stay in Zagreb Prison reads:
“13 June 2005 ...
In May 2005 [he was] treated at the psychiatric ward of Zagreb Prison Hospital. Pharmacotherapy: Apaurin... At present [he is] agitated, complaining of chest pain ...
Treatment: Apaurin ..., Fluzepan ...
...”
46. On 6 July 2005 the applicant was transferred to Lepoglava State Prison.
47. From July to September 2005 the applicant was placed in cell no. 5, measuring 9.12 square metres, together with three other inmates. Adjacent to the cell and for the exclusive use of the inmates occupying the cell was a tiled area measuring 2.15 square metres. From September to December 2005 the applicant was placed in cell no. 9, measuring 9.82 square metres, together with three other inmates. He was able to use a bathroom and toilet area measuring 20.9 square metres.
48. On 1 September 2005 the applicant petitioned the Varaždin County Court judge responsible for the execution of sentences (sudac izvršenja Županijskog suda u Varaždinu), complaining about conditions in Lepoglava State Prison. He explained that he had been continually placed in a cell with smokers and that he was detained in overcrowded conditions. He further complained that he had not been receiving any treatment for his psychiatric ailments, in particular the PTSD, and that he was being given no psychiatric treatment at all. He also complained that the examination by a doctor, who had seen him on 8 July 2005 in order to establish his fitness to work in prison, had lasted two minutes. In a letter of 11 October 2005 the judge found that the applicant was allowed to use some of his personal items, that he had complained about his placement in a smoking cell, that he had adequate medical care, and that he had been on hunger strike between 2 and 14 September 2005.
49. Although upon his arrival the applicant was assigned to a non-working group, there were subsequently several attempts to include him in working activities. For a month, starting on 28 October 2005, the applicant worked in a storehouse. Since his work there was found to be unsatisfactory, on 30 November 2005 he was offered work in a therapeutic workshop and placement in a non-smoking cell. However, the applicant refused this offer.
50. On 2 December 2005 the applicant was placed in the Department with increased supervision for a period of three months.
51. From 7 to 20 December 2005 the applicant was on hunger strike. He was subsequently returned to work in a storehouse.
52. On 7 December 2005 the applicant again complained to the Varaždin County Court judge responsible for the execution of sentences about the conditions in prison. The report of the Lepoglava State Prison authorities of 13 December 2005 state, inter alia, that the applicant had been included in the programme for persons suffering from PTSD, without any further details. The applicant's complaints remained unanswered by the competent judge.
53. On an unspecified date the applicant complained about the prison conditions and in particular the lack of adequate medical treatment to the Ministry of Justice. On 2 February 2006 the Ministry asked the Lepoglava Prison authorities to submit their report on the matter. The report of 24 February 2006, in so far as relevant, reads as follows:
“Upon his arrival at the prison the inmate was assigned to a non-working group, and involved in leisure activities and the programme for persons suffering from PTSD as well as to the programme for a computer operator...
The prison doctor saw him on twenty-three occasions and he was twice examined by a psychiatrist. His diagnosis includes depression, paranoia, elements of PTSD and low tolerance towards frustrations. He has regularly been receiving sleeping pills and tranquilisers (Apaurin and Cerson)....”
It was also stated that the applicant had worked for a certain period but had stopped, owing to some conflicts. The applicant sent his reply to the report, in which he stated that he had actually seen a psychiatrist on three or even four occasions, but each time at his insistence although a discharge letter from Zagreb Prison Hospital of 25 May 2005 requested that he receive regular psychiatric supervision. He further asserted that he had not been able to attend group therapy sessions for persons suffering from PTSD because he had had no access to information about the time of these sessions. No decision was taken upon the applicant's complaint.
54. In April and May 2006 the applicant had a number of arguments with other inmates, which culminated on 10 May 2006 in a fight with another inmate. The applicant was transferred to the Department with increased supervision, owing to which he refused to take food. He also refused a psychiatric examination scheduled for 11 May 2006.
55. In his appeal of 16 May 2006 against a decision of the Lepoglava State Prison authorities to place him in a Strict Supervision Department, addressed to the Varaždin County Court judge responsible for the execution of sentences, the applicant complained, inter alia, that he had not been regularly receiving the prescribed pharmacotherapy. He also alleged that on 8 May 2006 he had been attacked by his cellmate, who had allegedly attempted to strangle him. The applicant further complained that he had been forced to share the cell with that inmate although he had complained to the prison authorities that later on that inmate had threatened him and had been allowed to keep a knife in the cell. The applicant also alleged that on 9 May 2006 he had been denied the prescribed pharmacotherapy and had therefore asked one of the guards to take him to the medical ward. The guard, however, had refused and threatened to crush the applicant, following which the applicant had inflicted self-injuries by cutting his veins, whereupon he had been taken to the medical ward within the prison. The applicant also alleged that on 10 May 2006, during breakfast, he had been attacked by another inmate who bit his finger. In the report of 26 May 2006, addressed to the judge responsible for the execution of sentences, the Lepoglava State Prison authorities stated that the applicant had not complied with the House Rules for a longer period. A report of the incident of 10 May 2006 was enclosed. This report stated that on 10 May 2006 during breakfast the applicant had thrown a plate at inmate M.B., who had been washing the dishes, whereupon M.B. had jumped on the applicant and bit his finger. The applicant had been taken to the medical ward, while M.B. had no injuries. The report did not address any of the incidents described by the applicant. The competent judge did not answer the applicant's complaint.
56. On 30 May 2006 the applicant wrote to the Ombudsman's Office (Pučki pravobranitelj). In a letter of 6 June 2006 addressed to the Head of the Prison Administration, the Deputy Ombudsman reiterated the applicant's allegations that he had been attacked by other inmates on two occasions at the beginning of May and that no steps had been taken against the perpetrators, as well as further allegations that the applicant, although suffering from PTSD, had not received any treatment for over a month and had been placed in a smoking cell.
57. From 30 May to 21 June 2006 the applicant was transferred to Zagreb Prison Hospital. The relevant part of the discharge letter of 21 June 2006 reads:
“The patient was admitted due to the hunger strike he had started on 10 May 2006 because he had been dissatisfied with his treatment in prison.
...
During the first days of his hospitalisation the patient refused food, and [he was] hostile and manipulative; on several occasions during the interviews with a psychiatrist he requested a solution to his problems in connection with the conditions in the prison, being unwilling to correct his behaviour.
...
While in hospital the patient started to take food. He is discharged in a partially better condition ...”
58. During the period the applicant spent in Lepoglava State Prison in May and June 2006 he was placed in cell no. 4, measuring 10.13 square metres, together with one other inmate, and sharing an adjacent toilet area of 1.79 square metres. From June to September 2006 the applicant was placed in cell no. 1, measuring 13.72 square metres, together with three other inmates, also sharing an adjacent toilet area of 2.3 square metres. During this period the applicant spent two non-consecutive days in solitary confinement in a cell (no. 13) measuring 8.97 square metres.
59. On 1 August 2006 the applicant again petitioned the Varaždin County Court judge responsible for the execution of sentences, complaining about being placed in a smoking cell. The judge replied in a letter of 11 September 2006 that the applicant's transfer to another prison would be considered.
60. On 18 September 2006 an incident involving the use of force against the applicant occurred. The two guards involved in the incident gave oral statements on the same day to the Head of Security Division within the prison. These statements and several written reports of 18 and 19 September 2006 by the Lepoglava State Prison personnel, submitted to the prison governor, all concur that on 18 September 2006 at 12.50 p.m. the applicant had started to shout at some of them and requested to be immediately taken to the prison doctor. One of the prison guards had asked him to wait since the doctor had been with another inmate, but he had continued to shout and hit the walls and metal bars. After he had ignored warnings to calm down, he had lifted a chair and thrown it at the prison guards and continued throwing objects. Another guard had arrived, whereupon one of the guards had taken the applicant by the left hand and the other by the right hand, twisted them behind the applicant's back and handcuffed him. The applicant had continued to utter shouts and threats and had therefore been taken to a special cell where he had been strapped down. He had also refused the prison doctor's attempt to examine him.
61. Further to these reports the Government submitted that the applicant had refused to be examined by the prison doctor or to give a statement about the incident. The Head of Security Division heard the two guards involved in the incident separately. In the next two days the applicant again refused to see the prison doctor. One of the guards made a report on the applicant's refusal to see the prison doctor on 19 and 20 September 2006.
62. From 20 to 29 September 2006 the applicant was placed in Zagreb Prison Hospital. The relevant part of the discharge letter of 27 September 2006 reads:
“The patient was admitted because of suicide threats.
... He expressed dissatisfaction with his treatment in the prison.
During hospitalisation he has been calm, neither suicidal nor productive. He has refused food in order to have his paramedical problems resolved. He does not consider himself as ill. He insists on being discharged.
...
Since the patient is not in vital danger, [and he is] productive, against suicide, he is to be discharged and it is recommended that he be placed in a day-care department.“
63. Meanwhile, on 25 September 2006 the applicant again petitioned the Varaždin County Court judge responsible for the execution of sentences, complaining about his placement in a smoking cell. He also referred to the incident of 18 September 2006, alleging that he had been beaten up while in solitary confinement and that his request to see the prison doctor had been ignored. On 6 October 2006 the judge asked the Lepoglava State Prison authorities whether it was possible to place the applicant in another penal institution. The applicant's allegations about the attack of 18 September 2006 were ignored.
64. During the periods when the applicant did not work his daily regime was as follows:
7 a.m. – 7.30 a.m. – wake up, personal hygiene, cleaning of cells
7.30 a.m. – 7.45. a.m. – distribution of medicines
7.45 a.m. – 8.15 a.m. – breakfast
8.15 a.m. – 9.45 a.m. – outdoor exercise, stay in cells or TV-room, making telephone calls
11.30 a.m. – 11.45 a.m. – medical treatment
11.45 a.m. – 12. 15. p.m. – lunch
12.15 p.m. – 2.00 p.m. – outdoor exercise, sport activities
2.00 p.m. – 3.00 p.m. – return to cells, washing and personal hygiene
3.00 p.m. – 5.00 p.m. – stay in cell or in TV-room or making telephone calls
5.00 p.m. – 5.15 p.m. – distribution of medicines
5.15 p.m. – 5.45 p.m. – dinner
5.45 p.m. – 7.00 p.m. – stay in cell or TV-room
7.00 p.m. – line-up
7.00 p.m. – 7.30 p.m. – cleaning of corridors, stairs, sanitary facilities and disposal of garbage
8.00 p.m. – optional stay in cells
9.00 p.m. – lights out
10.45 p.m. – television sets switched off
65. During the period the applicant worked his daily regime was as follows:
6.00 a.m. – 6.30 a.m. – wake up, personal hygiene, cleaning of cells, distribution of medicines
6.30 a.m. – 6.50 – a.m. – breakfast
6.50 a.m. – 7.00 a.m. – departure for work
7.00 a.m. – 3.00 p.m. – work (with a meal break from 10.00 a.m. to 10.30 a.m.)
3.p.m. – 5.15. p.m. – lunch, outdoor exercise, optional stay in cell or TV-room, washing, making telephone calls
5.30 p.m. – 6.00 p.m. – distribution of medicines, personal hygiene
7.00 p.m. – line-up
7.00 p.m. – optional stay in TV-room
8.00 p.m. – optional stay in cell
9.00 p.m. – lights out
10.45 p.m. - television sets switched off
66. During his stay at the Department with increased supervision the applicant's daily regime was as follows:
6.00 a.m. – 8.00 a.m. – wake up, personal hygiene, cleaning of cells
8.00 a.m. – 8.15. a.m. – distribution of medicines
8.15 a.m. – 8.45 a.m. – breakfast
8.45 a.m. – 9.a.m. – personal hygiene
9.00 a.m. – 11.00 a.m. – outdoor exercise for one group while the other group stays in TV-room
11.00 a.m. – 11.45. a.m. – personal hygiene of the group that went outdoors
11.45 a.m. – noon – distribution of medicines
Noon – 12.30 p.m. – lunch
1.00 p.m. – 2.00 p.m. – personal hygiene
1.00 p.m. – 2.00 p.m. – stay in cells
2.00 p.m. – 4.00 p.m. – outdoor exercise for one group while the other group stays in TV-room
4.00 p.m. – 5.00 p.m. – personal hygiene of the group which went outdoors
5.00 p.m. – 5.45 p.m. – stay in cells
6.00 p.m. – 6.30 p.m. – dinner
6.30 p.m. – 7.00 p.m. – personal hygiene
7.00 p.m. – line up
7.00 p.m. – 7.30 p.m. – cleaning of corridors, stairs, sanitary facilities and disposal of garbage
8.00 p.m. – optional stay in cells
9.00 p.m. –lights out
10.45 p.m. – television sets switched off
67. The Government submitted that at his arrival at Lepoglava State Prison the applicant had been included in the programme for prisoners suffering from PTSD and that in addition he had been continuously monitored by a psychiatrist. Later on, owing to the applicant's ill-adapted behaviour and conflicts with other prisoners he had been offered the possibility of joining a different therapy workshop, which he had refused. The Government did not specify, however, the dates of the applicant's group or individual therapy sessions.
68. The Government submitted the Lepoglava State Prison programme of therapy for inmates suffering from PTSD. The programme included one-hour weekly meetings of three small groups (five to twelve persons) who met on their own in order to discuss their problems. Each group was led by a member of the prison personnel. The qualifications or occupation of these persons was not specified; nor was it specified whether they attended the group meetings or not. The therapists met once a month with two psychiatrists in and outside the prison clinic and once a month in the prison. Participation in therapy groups was voluntary.
69. The relevant part of the applicant's medical record during his stay in Lepoglava State Prison reads:
“1 September 2005
Psychiatric examination at the medical ward of Lepoglava State Prison. During the current examination he is neither psychotic nor suicidal. He says that he has not been taking food for a week. He asks to be placed in a non-smoking cell and to be given treatment for headaches and sleep deprivation.
Treatment: Fortevit ..., Apaurin ..., Fluzepan
...
7 December 2005
Psychiatric examination: conscious, well-orientated, no signs of psychosis, [he] is not suicidal, [he is] very tense, has very low level of tolerance towards frustrations
...
20 April 2006
He saw a psychiatrist at the medical ward of the Lepoglava State Prison.
Treatment: Apaurin ..., Sanval ...
He is currently on hunger strike.
...
10 May 2006
Alleges fight with another inmate, who allegedly bit his finger.
D[ia]g[nosis]: Vulnus morsum? [a wound by biting]? Indicis m.l.sin. [marks on middle left finger], Regio ph. Medialis [middle zone].
Alleges that he will go on hunger strike.
...
20 July 2006
Psychiatric examination: [he is] neither psychotic nor suicidal, [he is] anxious, tense with low level of tolerance, allegedly worried, asks for hospitalisation which is unfounded.
...
20 July 2006
Hospitalisation was ordered, but he refused to go to Zagreb Prison Hospital.
...
He returned to the medical ward at 5.40 p.m., revolted, wanting to go to the hospital today although at 2 p.m. he had refused it. He took out a razor blade and made a few cuts on the surface of his left forearm. ...
[He] made threats of inflicting further self-injuries if not taken to the hospital today. Hospitalisation was ordered, but there was no capacity in the hospital to admit him. ...
21 July 2006
Sent to Zagreb Prison Hospital.
24 July 2006
The admission report from Zagreb Prison Hospital of 21 July 2007: '... [the patient] is shouting, threatening to beat other patients, asking to be placed in a non-smoking room, making threats against the hospital personnel because there is only one bed available and there is no separate room for non-smokers. He does not want to stay in the hospital because he cannot get desired accommodation. He refuses to take Apaurin in his veins. He is very unpleasant, uttering threats and blackmail. Since his condition is not life-threatening and given that the patient is refusing the treatment offered, he shall be returned to prison.
Started eating so as not to be removed form Division 8 of the Prison.
...
18 September 2006
... he has been placed in solitary confinement, handcuffed to a bed. He is anxious, verbally aggressive, dissatisfied with being handcuffed, bangs on the bed with his handcuffs and asks to be released. [He] is not psychotic or suicidal ... It has not been possible to examine him because he is very restless and is banging on the bed with his handcuffs, so that it has not been possible to approach the inmate in bed.
5 October 2006
[He] refused to see a psychiatrist.
...”
70. On 14 October 2006 the applicant was transferred to Gospić Prison.
71. The applicant was placed, together with one other inmate, in a cell measuring 13.13 square metres with an adjacent toilet area measuring 3.2 square metres. The cell was furnished with two beds, two cupboards, a table and two chairs. A bathroom was available to the applicant the whole day. He did not work.
72. During his stay in this prison the applicant did not work and did not receive any treatment for his PTSD. His daily regime was as follows:
6.30 a.m. – wake up
6.30 – 7.00 a.m. – personal hygiene
7.00 – 7.30 p.m. – breakfast
7.30 – 8.30 – possibility to see prison doctor
One hour between 8.30 a.m. and 1.00 p.m. – outdoor exercise
1.00 p.m. – 1.30 p.m. – lunch
One hour between 1.30 p.m. – 5.00 p.m. – exercise in the sports hall
3.00 p.m. – 6.00 p.m. – leisure time, one-hour outdoor exercise
6.00 p.m. – 6.30 p.m. – dinner
6.30 p.m. – 8.00 p.m. – leisure time
8.00 p.m. – 10.00 p.m. – stay in TV-room or reading
10.00 p.m. – bed-time
73. On 6 November 2006 the applicant complained to the Head of the Prison Administration about the conditions in prison. He was answered in a letter of 30 November 2006 stating that his treatment had been humane, professional and in accordance with the legislative standards.
74. On 6 January 2007 the applicant was transferred to Pula Prison
75. Initially, he was placed, together with another inmate, a non-smoker, in a cell measuring 10.2 square metres, furnished with two beds, two cupboards, a table and two chairs, with an adjacent toilet area measuring 3.98 square metres. The cell was heated by a radiator. The applicant did not work, had the possibility of spending time outdoors every day between noon and 2 p.m. and again between 6.30 p.m. and 8.30 p.m. During his leisure time the applicant was involved in the computer group.
76. On 21 January 2007 an incident occurred involving the use of force against the applicant. According to the Government, at 8 p.m. that day two prison guards, E.L. and I.O., were distributing pharmacotherapy to the inmates in their cells. The applicant had refused to take the prescribed medication. At 10 p.m. he had taken the prescribed medication but also asked for the medicine he had refused to take at 8 p.m.. His request had been refused. After the guards in charge had left his cell the applicant had started shouting and banging. The guards had returned and the applicant had made an attempt to kick one of them. The guards had taken the applicant, pushed him to the floor and handcuffed his hands behind his back. The applicant had continued resisting, hitting and shouting. Two other guards had arrived and the applicant was tied down in a separate cell. One of the guards had noticed a laceration next to the applicant's right eye and asked if he wished to see the prison doctor, which the applicant had refused, demanding to see a psychiatrist. He also refused to sign the report on the incident and the statement that he had not wished to see the prison doctor.
77. On the same day the guard on duty, N.B., made a report on the incident, which was submitted to the Head of Security. The guards E.I. and I.O. also made their reports on the incident. On 24 January E.I. and I.O. gave their oral statements to the officer in charge.
78. On an unspecified date the applicant wrote to the Ministry of Family, War Veterans and Inter-Generational Solidarity, which forwarded his complaint about the conditions in Pula Prison to the Head of the Prison Administration on 26 January 2007. The complaint remained unanswered.
79. On 8 February 2007 the applicant was transferred to a single occupancy cell measuring 8.73 square metres, with an adjacent toilet area. According to the Government, the cell had a window measuring 0.9 square metres and was heated by a radiator. The applicant was provided with a television set. He was able to use a common bathroom on request.
80. On 17 February 2007 another incident occurred. According to the applicant, he had been placed in solitary confinement and one of the guards thumped him several times on the left side of his chest.
81. On 21 and 22 February the applicant was examined by a doctor. The relevant part of the medical report reads:
“21 February 2007
[The inmate is] complaining about pain in the left hemithorax, trauma not excluded. I have not found visible signs of trauma or haematoma. While breathing he spares left side, pain on palpation of left upper ribs. Sent for an X-ray.
22 February 2007
Pain in the left-rib area. The X-ray examination shows that there are no signs of rib-related trauma or lung alteration. He does not present allergy to medication.”
82. On 26 February 2007 the applicant was heard by a judge responsible for the execution of sentences of the Pula County Court. He stated that on 21 January 2007 at around 8 p.m. two prison guards, I.O. and E.L., had been administering pharmacotherapy to the inmates in Pula Prison. The applicant had complained that he had to take his therapy at 10 p.m. The guards had replied that they would make a note that the applicant had refused therapy. The applicant had then opened a cupboard in his cell in order to show them his medical documentation confirming his allegations. Since the guards had left, the applicant had stamped in order to make them return since there was no other way of drawing their attention. The guards had returned and opened the applicant's cell. One of them had stamped on the applicant's foot and the other had hit him in the head, while shouting at him. He further stated that, on 17 February 2007, while he had been placed in solitary confinement, four guards had arrived and strapped him to the bed, which he had not resisted. One of the guards had hit him several times on the left side of his body. The applicant had begged him to stop since he had heart problems. The same guard had also threatened to leave the applicant strapped down for twenty-four hours.
83. The Pula Prison authorities filed a report with the Pula County Court on 9 March 2007. The relevant part of the report reads:
“...
We have already examined the allegations of the said inmate about the acts of the prison guards of 21 January 2007. The guards involved made their reports and also gave their oral statements. The inmate Branko Dolenec was also interviewed.
It has been established that the guards acted in accordance with the law and that the inmate Branko Dolenec had attempted to diminish his responsibility by saying that he had not been given the prescribed treatment at the right time. He did not wish to give a written statement of the incident. Disciplinary proceedings have been instituted against the inmate Branko Dolenec for disciplinary offences under section 145(2)(8) and 145(3)(8) of the Enforcement of Prison Sentences Act in respect of which there is a reasonable suspicion that he committed them on 21 January 2007 to the detriment of the guards about whose acts he was complaining.
It is true that on 17 February 2007 a special measure of keeping order and security under section 135(6) was applied because there was a danger that he would inflict self-injuries. Beforehand, on the same day he had threatened to inflict self-injuries and repeated warnings had produced no results. In accordance with section 138(2), the applied measure lasted from 8.25 a.m. to 6 p.m. We have no information that on that occasion any of the guards used force against the inmate, or that anyone threatened to keep him tied down for twenty-four hours.
...”
84. In a letter of 23 March 2007 the judge responsible for the execution of sentences of the Pula County Court replied to the applicant that the report submitted by the prison authorities showed that on 21 January 2007 the prison guards had acted in accordance with the law and that on 17 February 2007 he had been placed in solitary confinement because he had threatened to inflict self-injuries and that neither coercive measures had been applied not any threats made against him. The relevant part of the letter reads:
“As regards the event of 21 January 2007, according to the report of the Pula Prison Administration, the guards acted in accordance with the law while you, in order to diminish your personal responsibility, asserted that you had not received the prescribed medication at the right time.
...
Furthermore, the information submitted by Pula Prison does not show any indication that on 17 February 2007 any force was used against you or that any of the prison personnel threatened to tie you down for twenty-four hours.”
85. On 27 March 2007 the applicant objected to the findings of the judge responsible for the execution of sentences and reiterated that on 17 February 2007 he had been strapped down for twelve hours in solitary confinement and beaten up by a prison guard. He further complained of lack of treatment for PTSD. On 16 May 2007 the judge replied to the applicant by letter, stating that his objections were unfounded.
86. On 24 May 2007 the applicant was assigned to work in the prison shop. According to the Government, until 6 August 2007 his comportment was fully satisfactory, when he suddenly started to verbally insult the prison personnel and other inmates. Owing to such frequent incidents and his exacerbated psychiatric condition, on 24 August 2007 he had again been assigned to a non-working group.
87. From 24 September to 3 October 2007 the applicant worked in the prison library. On the latter date he again started verbally insulting and attempting to physically attack the prison personnel because he was dissatisfied with the prospect of being placed in a cell with another inmate.
88. On 4 October 2007, owing to his worsening psychiatric condition and the self-infliction of injuries, the applicant was transferred to Zagreb Prison Hospital. The relevant part of the discharge letter of 18 October 2007 reads as follows:
“Diagnosis: Personality disorder
PTSD
The patient was admitted ... because of self-inflicted injuries. On arrival he was upset and in corresponding mood, with accelerated and widened thought processes, querulous and with a number of projections but without clear psychotic indications. He did not show aggressive or further auto-aggressive drives. His complaints about his treatment in Pula Prison included allegations that he had been placed in the pre-trial detention ward in a cell with smokers. He also asserted that he had been beaten up a few days prior to his arrival at the hospital. Lacerations and older haematomas on his back and a haematoma in regression on his thigh were visible on arrival. There were no visible injuries to his head.
During his stay in the hospital he was demanding, querulous, upset, constantly insisting on the alleged injustice done to him. There were no psychotic signs or aggressive or auto-aggressive drives. Only after his treatment had been altered did he become somewhat calmer and more willing to co-operate, although still persisting in his demand for “the just”.
...
There are no indications for hospital treatment. Placement in a calmer and non-smoking cell is recommended together with stricter supervision and stronger efforts on the part of the treatment services as well as regular pharmacotherapy: Haldol ..., Akineton ..., Fluzepan ... and Brufen ... with regular psychiatric supervision, starting in two weeks.”
89. On 19 October 2007 the applicant was returned to Pula Prison and placed in a single-occupancy cell identical to the one in which he had stayed prior to his transfer to the hospital. The Government submitted that although there had been group therapy for inmates suffering from PTSD in Pula Prison since 5 October 2007, the applicant, owing to his mental condition which included impulsive behaviour, emotional instability and tendency towards aggressive behaviour, had not been included in that therapy. However, they submitted that psychiatric supervision had been carried out as needed, without any further details.
90. The relevant part of the applicant's medical record during his stay in Pula Prison reads:
“24 April 2007
An interview. [He] announces a hunger strike as of today and [expresses an intention to inflict] self-injuries. [He is] upset, communication is not possible ...
Stricter supervision measures for seven days [are recommended]. Therapy: none.
...
24 August 2007
At 4 a.m. today he was taken to a psychiatrist at Pula General Hospital ... Hospitalisation in the Psychiatric Ward of Zagreb Prison Hospital was recommended. Treatment: Apaurin ..., Fluzepan ...
He could not be admitted to Zagreb Prison Hospital owing to the lack of space. He was calm during the second interview [with a psychiatrist], there was no further indication for hospitalisation in Zagreb Prison Hospital. Placement in a separate non-smoking cell was recommended.
...
4 October 2007
Yesterday [he inflicted] self-injuries ... [there is] redness on his neck and back and several lacerations measuring approximately 2 cm, haematoma measuring 2 to 8 cm. [He is] upset, tense, anxious, expresses suicidal thoughts and intentions. Given Prazine ... and it was recommended [to take him to] the Psychiatric Ward of Zagreb Prison Hospital.
25 October 2007
[He] is not taking the treatment prescribed.
...”
91. On 5 November 2007 the applicant was transferred back to Lepoglava State Prison.
92. The relevant part of the applicant's medical record during his second stay in Lepoglava State Prison reads:
“16 November 2007
Psychiatric examination in Lepoglava State Prison: [he is] conscious, well orientated, [he is] not suicidal, [there are] no signs of psychosis, [there is] low frustration tolerance, [he is] dissatisfied with his placement, treatment and other. Placement in a smaller, non-smoking cell is recommended. [He] refuses the treatment offered (Haldol). Treatment: Apaurin ..., Fluzepan ..., stronger involvement on the part of the treatment services. D[ia]g[nosis]: Personality disorder, PTSD. [Next] check in a month.
...
28 November 2007
Psychiatric examination in Lepoglava State Prison by a psychiatrist from Zagreb Prison Hospital.... Placement in a smaller non-smoking cell is recommended.... Patient [is] motivated to work. It is recommended that he works if possible, which would also be curative. Psychiatric supervision as needed. D[i]g[anosis]: the same. Treatment: the same. ...
...
4 December 2007
Psychiatric examination in Lepoglava State Prison ... Allegedly the patient is not eating because the recommendations by psychiatrists have not been followed. We request that these recommendations be followed. On examination he is neither psychotic nor suicidal. Psychiatric supervision as needed.
...
18 December 2007
Psychiatric examination in Lepoglava State Prison ... tolerance towards frustrations still low, [he is] dissatisfied with treatment, [but is] motivated to work. Placement in a smaller, non-smoking cell is recommended as well as including him in the PTSD group.
Treatment: Apaurin ..., Sanval ...
Psychiatric supervision as needed.
...
15 January 2008
Psychiatric examination in Lepoglava State Prison ... somewhat better in view of his new job and a smaller cell, which had so far been the biggest problem. Ventilation interview. Treatment: Apaurin ..., Sanval.”
93. On an unspecified date in 2008 the applicant was transferred to Varaždin Prison where he stayed until 27 April 2009 when he was transferred to Zadar Prison. On 8 June 2009 he was transferred to Pula Prison and on 28 July 2009 to Zagreb Prison.
94. As to the twenty-eight days of his unlawful detention between 2 and 30 March 2005, on 28 October 2005 the applicant applied to the Ministry of Justice (Ministarstvo Pravosuđa) for compensation in the sum of 500 Croatian kunas (HRK) per day and HRK 5,500 for lost earnings. Since he received no reply, the applicant brought a civil action against the State in the Prelog Municipal Court, seeking the above amounts in connection with his unlawful detention. He also complained that since 2 March 2004 he had been detained in inadequate, small and overcrowded cells and only allowed to spend fifteen to twenty minutes a day in the fresh air, and also that he had been detained with smokers, minors and convicts between 14 July and 26 September 2004. He further complained of inadequate conditions in the prison hospital and Lepoglava State Prison, as well as inadequate medical care. In this connection he alleged that he had not been provided with eye glasses and that an examination of his head had been carried out late, while an examination of his spine had not been carried out at all, and that he had not been provided with the requisite psychiatric treatment although he suffered from PTSD. He also alleged that he had been strapped to his bed and forced to spend long periods confined in the same room with smokers, all of which resulted in immense physical and mental suffering. The applicant complained in addition that he had had no opportunity to consult the case file during the criminal proceedings against him. He sought HRK 469,500 under all the above heads.
95. On 24 April 2006 the Prelog Municipal Court declared the applicant's action inadmissible on the grounds that he had failed to firstly seek compensation with the competent State Attorney's Office. The first-instance decision was quashed by the Čakovec County Court and the case was remitted to the Municipal Court for fresh examination. On 7 November 2008 the Municipal Court again declared the applicant's claim inadmissible on the same grounds. The applicant lodged an appeal and the appeal proceedings are still pending.
96. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides:
“No one shall be subjected to any form of ill-treatment ...”
97. The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or 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) ...
98. The relevant part of the Code of Criminal Procedure (Official Gazette nos. 62/2003 – Zakon o kaznenom postupku) provides as follows:
“(1) The defendant shall be informed of any charge against him and the grounds thereof from the time of the first interview.
(2) The defendant shall have the opportunity to give his or her statement on all incriminating facts and evidence, as well as facts and evidence favourable to him.
(3) The defendant is obliged neither to present his or her defence nor to answer any question. It is forbidden and punishable to extort a confession or any other statement from the defendant or any other person participating in the proceedings.”
“(1) The defendant has the right to defend himself or herself in person or through legal counsel of his or her own choosing from among the members of the Bar. Where prescribed by this Code, defence counsel shall be officially appointed in order to ensure [the right to] defence of a defendant who has declined to appoint a defence counsel.
(2) Under the conditions set out in this Code, a defendant who, owing to the lack of means to pay for legal assistance, has not chosen a defence counsel shall be provided, at his or her request, with a defence counsel at the expense of the court [conducting the proceedings].
(3) The court or another authority participating in the proceedings shall inform the defendant of his or her right to a defence counsel from the time of the first interview.
(4) The defendant shall have adequate time and facilities for the preparation of his or her defence.”
“The court [conducting the criminal proceedings] shall inform a defendant ... of his or her rights guaranteed under this Code and the consequences of failure to undertake a step required therein.”
“A defendant in pre-trial detention shall have access to a defence counsel as soon as a decision [to place him or her in] detention has been adopted and as long as the detention lasts.”
“(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention measure shall immediately be lifted.”
“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
...”
The relevant provisions regulating the duration of detention read as follows:
Article 110 provides, inter alia, that detention ordered by an investigating judge may last one month and may be extended, for justified reasons, by a three-member judicial panel for two more months and after that for another three months. However, the maximum duration of detention during investigation shall not exceed six months.
Article 111 provides, inter alia, that following indictment detention may last until the judgment becomes final and after that until the decision imposing a prison sentence becomes final. In that period a judicial panel of three members shall assess every two months whether the conditions for detention still exist.
“(1) Prior to adoption of the first-instance judgment pre-trial detention may last for a maximum of:
...
2. one year for offences carrying a sentence of a statutory maximum of five years' imprisonment;
...
(2) In cases where a judgment has been adopted but has not yet become operative, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one fourth of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.
(3) Where the first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.
(4) Following the adoption of the second-instance judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.
(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is sent to prison, but for no longer than the duration of his prison term.”
“...
(5) The defendant has the right to consult and copy the case file and items intended for the assessment of facts in the proceedings.
...”
“(1) A defendant finally sentenced to a prison term ... may lodge a request for extraordinary review of a final judgment on account of infringements of laws in circumstances prescribed by this Act.
...”
A request for extraordinary review of a final judgment may be lodged on account of:
...
3. infringement of the defence rights at the main hearing ...
“Compensation may be awarded to a person who
...
3. owing to an error or unlawful action by a State authority ... has been kept in detention after the statutory time-limit had expired ...”
99. Article 217 of the Criminal Code (Osnovni krivični zakon, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001 and 111/2003), imposes, inter alia, a sentence of up to five years' imprisonment for aggravated theft.
100. The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office.
...
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
...”
101. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
“The main purpose of a prison term, apart from humane treatment and respect for personal integrity of a person serving a prison term ... is development of his or her capacity for life after release in accordance with the laws and general customs of society.”
“During the enforcement of a prison sentence a penitentiary or prison shall, together with the institutions and other legal entities in charge of assistance after release, ensure that a prisoner is prepared for his or her release [from prison].”
“(1) Inmates shall have the right to complain about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...”
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and facilities of a particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.
(2) The enforcement programme shall be devised by a prison governor on the proposal of a penitentiary or a prison's expert team ...
(3) The enforcement programme shall contain information on ... special procedures (... psychological and psychiatric assistance ... special security measures ...)
...”
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”
“...
(2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate's health.”
“(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor.
...”
102. The relevant part of the Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 4 to 14 May 2007 reads:
“84. The provision of adequate psychiatric care was problematic at Lepoglava Prison. Efforts to employ a full-time psychiatrist had not been successful, due to the fact that remuneration and other working conditions fell short of those offered in health establishments; instead, two psychiatrists attended the establishment for a total of six hours a week, and a third from Zagreb Prison Hospital was involved in various programmes for different categories of patients (e.g. drug-addicts, inmates with post-traumatic-stress-disorder (PTSD), sexual offenders).
The CPT recommends that steps be taken to:
- significantly increase the hours of attendance of psychiatrists at Lepoglava Prison;
- ensure that prisoners at Lepoglava, Osijek and Rijeka Prisons benefit from the services of a psychologist.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_ARTICLES: 3
8