CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2009

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margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s82D7B801 { width:22.93pt; display:inline-block } .sF9287AF { width:174.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FIRST SECTION           CASE OF DOLENEC v. CROATIA   (Application no. 25282/06)                   JUDGMENT       STRASBOURG   26   November   2009   FINAL   26/02/2010   This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Dolenec v. Croatia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 5 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25282/06) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Branko Dolenec (“the applicant”), on 19 May 2006. 2.     The applicant, who had been granted legal aid, was represented by Mr   M. Ramušćak, a lawyer practising in Varaždin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3.     On 11 December 2007 and 17 December 2008 the President of the First Section decided to communicate the complaints under Article 3 of the Convention concerning the general conditions of the applicant's detention, the alleged lack of adequate medical care and the alleged attacks on the applicant by prison personnel; the complaints under Article 5 §§ 1 and 3 of the Convention concerning the applicant's deprivation of liberty between 2   and 30 March 2005; the complaint under Article 8 of the Convention concerning the applicant's allegations that he was placed in a cell with smokers; the complaints under Article 6 § 3 (b) and (c) concerning his inability to engage the services of a defence counsel at the hearing held on 1   April 2005 and afterwards and the alleged lack of possibility to consult the case file to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1967 and is at present serving a prison term in Gospić Prison. 1.     Criminal proceedings against the applicant 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.” 2.     Conditions of the applicant's detention 33.     The medical documentation submitted by the parties shows that the applicant has been diagnosed as suffering from PTSD and a personality disorder. The applicant's stay in Varaždin Prison 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. The applicant's stay in Zagreb Prison from 13 June to 6 July 2005 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. The applicant's stay in Lepoglava State Prison from 6 July 2005 to 14 October 2006 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 reg