CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 octobre 2019

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CROATIA   (Application no. 21613/16)         JUDGMENT     Art 35 § 1 • Relationship between preventive and compensatory remedies in poor conditions of detention cases • Exhaustion of domestic remedies • Six-month period • Effectiveness of preventive and compensatory remedies Art 3 • Degrading treatment     STRASBOURG   31 October 2019         FINAL   15/04/2020       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ulemek v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Krzysztof Wojtyczek, President ,   Ksenija Turković,   Aleš Pejchal,   Armen Harutyunyan,   Tim Eicke,   Jovan Ilievski,   Raffaele Sabato, judges , and Abel Campos, Section Registrar , Having deliberated in private on 8 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 21613/16) 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 Dušan Ulemek (“the applicant”), on 15 April 2016. 2.     The applicant, who had been granted legal aid, was represented by Ms   L. Horvat, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that the conditions of his detention had been inadequate and that there had been a lack of an effective remedy in that respect. 4.     On 28   June 2016 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1982. 6.     By a judgment of the Zagreb County Court ( Županijski sud u Zagrebu ) of 2 March 2010, the applicant was sentenced to one year and six months’ imprisonment on charges of aiding and abetting robbery. 7.     The applicant served his prison sentence in Zagreb Prison from 12   May until 8 June 2011, when he was transferred to Glina State Prison. He was released on parole on 28 September 2012. A.     The applicant’s detention in Zagreb Prison 8.     The applicant alleged that he had been placed together with seven, and at times eight, people in a cell with 21.10 square metres (sq. m) of floor space. A sanitary facility measuring 1.57 sq. m had also been placed in the cell. The sanitary facility had been only partially partitioned from the remainder of the cell. Food had been served in the cell although there was a constant smell coming from the sanitary facility. The inmates had been allowed to have one hour’s walk outside the cell; they had spent the remainder of the time locked in the cell. Moreover, the inmates had not been provided with adequate hygiene and sanitary facilities, such as showers, and no recreational or vocational activities had been organised in Zagreb Prison. The cell was not air conditioned and had only very limited access to daylight. 9.     According to the information provided by the Government, which is largely based on a report by the Ministry of Justice Prison Service of 20   September 2016, the applicant had been placed in a cell measuring 21.10   sq. m of floor space and containing a sanitary facility measuring 1.57   sq. m together with five to six, sometimes even seven, prisoners. The sanitary facility was partitioned from the remainder of the cell by a wall 1.80 metres high. Food had been served in the cells. The inmates had been allowed to take two hours of outdoor exercise. They had been provided with all the relevant hygiene and sanitary facilities and the hygiene in the cell had been adequate. 10.     During his stay in Zagreb Prison the applicant did not make a complaint to the prison administration or to the relevant sentence-execution judge concerning the conditions of his detention. B.     The applicant’s detention in Glina State Prison 1.     Conditions of the applicant’s detention in Glina State Prison 11.     According to the applicant, he had been placed in several cells differing in size and the number of prisoners placed there. The cells had been overcrowded and the out-of-cell activities had not been properly organised. Moreover, the prisoners had lacked basic hygiene and sanitary facilities. The applicant had not been offered any vocational activities. He had been harassed and attacked by other inmates, so he had been separated from them and kept in isolation. He had not been allowed to visit his sick family members and had not been allowed conjugal visits until he married his partner. Although he had been in need of urgent dental treatment, it had been unjustifiably delayed for five months. 12.     According to the Government, relying on the report by the Ministry of Justice Prison Service (see paragraph 9 above) and an additional report on the conditions in Glina State Prison dated 30 January 2017, the details of the applicant’s accommodation were as follows. –     Between 8 June and 1 August 2011 the applicant had been placed, together with five other persons, in a cell comprising 32 sq. m of living space (not including the sanitary facility). The cell was located in the old part of the Glina State Prison building (known as the “ Internat ”). The cell had a sanitary facility measuring 2.20 sq. m, which was separated from the rest of the cell by a door. The cell also had access to fresh air and daylight. Inmates had been obliged to stay in the cell only in the period between 11   p.m. and 7   a.m. Otherwise they had been free to leave the cell and to take part in relevant recreational activities. Food had been served in the cells. –     Between 1 August and 20 September 2011 the applicant had been placed, together with five other persons, in a newly built part of Glina State Prison in a cell comprising 22.30   sq. m of living space. The cell had a sanitary facility of 2.20 sq. m separated from the rest of the cell by a partition. The cells in the newly built part had been locked between 11 p.m. and 7 a.m. and between 6 p.m. and 7 p.m. Otherwise, inmates had been free to leave the cell and to take part in relevant recreational activities. The cell provided access to fresh air and daylight and was equipped with underfloor heating. Food had been served in the cells. –     Between 20 September and 19 December 2011, at his own request on account of his fear of alleged attacks by other prisoners (see paragraph 16 below), the applicant had been placed alone in a cell for special treatment measuring 11.70 sq. m. The cell had a sanitary facility separated from the rest of the cell by a partition. It also provided access to fresh air and daylight. The applicant was allowed one hour of outdoor exercise every morning. During the same period he was also taken to see the dentist. –     Between 19 December 2011 and 18 July 2012 the applicant had, together with five other persons, been placed in the newly built part of Glina State Prison in a cell comprising 22.30   sq. m of living space. It had a separate sanitary facility of 2.20 sq. m. All other conditions in the cells in the new part of the building were the same as described above. –     Between 18 July and 19 September 2012 the applicant had been placed in another cell in the newly built part of Glina State Prison. The cell had a floor surface of 22.30 sq. m and he had been placed there together with five other persons. All other conditions were the same as in the previous cell. –     The applicant had spent the period between 19 and 28 September 2012 in a cell for prisoners preparing for release, which was located in the Internat . The cell measured 17.37 sq. m and he had been placed there with seven other persons. It had a sanitary facility separated from the rest of the cell by a door although showers were not in the same cell. The cell was never locked. During his time there, the applicant was involved in various activities to prepare him for life outside prison. 13.     The Government also submitted that throughout his stay in Glina State Prison, the applicant had been provided with sufficient sanitary and hygiene amenities and had had adequate recreational and educational (library) activities at his disposal. In particular, prisoners had been allowed to have two hours of outdoor exercise and had been engaged in various sports activities. Moreover, the applicant had been provided with adequate medical treatment. As of 4 October 2011 he had seen a dentist nine times during his imprisonment and had been provided with psychiatric treatment, particularly since he had had a history of such treatment even before his imprisonment. 14.     The Government also explained that the applicant had been given the possibility of receiving parcels and visits while in prison. The only restriction in this respect had been placed upon the visits of his current wife, who, at the time of the applicant’s imprisonment, had not been able to prove that they were partners and the police had provided information to the prison authorities that she had been registered as the perpetrator of an offence. However, at the applicant’s request, the prison authorities had allowed him to marry the person in question and afterwards he had been allowed to have conjugal visits by her on several occasions. The Government also explained that the applicant’s initial requests for temporary release to make visits outside the prison had been restricted owing to the fact that three separate sets of criminal proceedings against him were still pending. However, by the end of his term of imprisonment, he had been allowed short visits outside the prison to see his family. 15.     In support of the above arguments, the Government provided the applicant’s prisoner file. 16.     According to his file, on 9 and 27 June and 7 and 16 August 2011 the applicant asked for an interview with the prison guards concerning his fear of other prisoners. He was interviewed on each occasion but refused to provide further details concerning his fear and to move to the new part of the building. As this led to disciplinary sanctions, the applicant eventually moved to the new part of the building. On 18   September 2011 he again reported threats. In an interview with the prison guards on 19 September 2011, he disclosed the names of prisoners who had allegedly threatened him. With his consent, he was moved to the cell for special treatment and the police were informed of his allegations. In October 2011 the police interviewed the applicant concerning his allegations. 17.     The applicant’s prisoner file also contains his medical records, indicating that on 17 June 2011 he requested, among other things, to see a dentist. From that point onwards he was under constant medical supervision. He was first provided with dental treatment on 4 October 2011 and then on eight further occasions. 18.     The file also shows that during the applicant’s confinement, he was regularly provided with various toiletries and was allowed to receive parcels from outside the prison. Detailed records are also available as regards the food served to prisoners, which was varied, consisted of four meals per day and was nutritionally balanced. 19.     According to the applicant’s file, he was twice denied temporary prison leave in order to visit, as he alleged, his sick grandmother and father. On both occasions when denying his request, the prison administration took into account the nature of the criminal offence that he had committed, the penalty imposed, the circumstances relating to the progress of execution of the sentence, and his family circumstances. 20.     In the period between June 2011 and June 2012, including the period that he spent in the cell for special treatment, the applicant’s family members regularly visited him in prison (sixteen visits in total). Initially, the request by his current wife, I.P., to visit him was denied on the grounds that she was registered in police records as the perpetrator of a criminal offence. On 12 December 2011 the applicant had been allowed to marry I.P. in prison and thereafter he received ten visits from her. He was also granted eight conjugal visits by I.P. (once per month, starting from 18 December 2011), and once he was granted leave to spend two hours with her in town. 2.     The applicant’s use of remedies concerning conditions in Glina State Prison 21.     In April 2012 the applicant complained to the prison governor, alleging, in particular, that he had been kept in isolation without any disciplinary proceedings against him (see paragraphs 12 and 16 above), that he had been given inadequate dental treatment which had been delayed for four months, that he had been placed in an overcrowded cell (allegedly with five other prisoners in a cell measuring 18.94 sq. m), and that the personal toiletries provided had been insufficient. 22.     On 30 April 2012 the prison governor replied to the applicant, dismissing all his allegations. She explained that the applicant had been separated from other prisoners at his own request, owing to his fear of being attacked by other inmates, in respect of which further measures had been taken within the prison and the police had also been informed. She further stressed that the applicant had been placed in the new part of the building, which had been neither overcrowded nor otherwise inadequate for the accommodation of prisoners. In particular, the governor stressed that the applicant had been placed in a cell measuring 20.16 sq. m and containing a separate sanitary facility of 1.81 sq. m., that he had been allowed to go out of the cell for at least six hours per day and to use various prison facilities, and that in general Glina State Prison was the best prison in Croatia. The governor also explained that efforts had been made in order to provide adequate dental treatment to prisoners and that sufficient toiletries had been provided. 23.     On 4 May 2012 the applicant complained to a sentence-execution judge of the Sisak County Court ( Županijski sud u Sisku – hereinafter “the County Court”) of the inadequate conditions of his detention. He reiterated the complaints that he had made to the prison governor (see paragraph 21 above). He also complained that unjustified restrictions had been placed on visits by I.P. before their marriage and that he had been unfairly treated by the prison authorities. In this connection, he stressed that the only requests that he had been granted had concerned the right to enrol on an IT course and to have conjugal visits. 24.     In connection with the applicant’s complaint, on 8 May 2012 the sentence-execution judge requested that the prison administration report on the conditions of the applicant’s detention. The judge also visited the applicant in the prison and interviewed him. In the course of the interview, the applicant elaborated on the circumstances related to his fear of violence from some of the other prisoners in Glina State Prison. He also pleaded for release on parole. 25.     On 21 June 2012, on the basis of the information provided by the prison administration and his personal contact with the applicant, the sentence-execution judge dismissed the applicant’s complaints. She held that there had been no unjustified restrictions of his rights and that the conditions of his imprisonment had been adequate. 26.     The applicant challenged the decision of the sentence-execution judge before a three-judge panel of the County Court, arguing that her findings had not been correct. 27.     On 10 July 2012 the three-judge panel of the County Court dismissed the applicant’s appeal and upheld the decision of the sentence ‑ execution judge, arguing that it had been based on an appropriate assessment of the circumstances of the applicant’s confinement. That decision was served on the applicant on 13 July 2012. C.     Civil proceedings instituted by the applicant 28.     On 8 January 2013, some time after his release from prison (see paragraph 7 above), the applicant informed the Zagreb Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Zagrebu – hereinafter “the State Attorney’s Office”) that he intended to lodge a claim for damages against the State concerning the allegedly inadequate conditions of his detention in Zagreb Prison and Glina State Prison. Before lodging a claim for damages, he invited the State Attorney’s Office to settle the case, as required under the relevant domestic law. 29.     On 2 April 2013 the State Attorney’s Office informed the applicant that it considered his claim unfounded and refused the settlement proposal. 30.     On 26 June 2013 the applicant lodged a civil action against the State with the Zagreb Municipal Civil Court ( Općinski građanski sud u Zagrebu – hereinafter “the Municipal Court”), seeking damages for inadequate conditions of detention in Zagreb Prison and Glina State Prison. He alleged, in particular, that the conditions of his detention in the two prison facilities had been inadequate. As regards Glina State Prison, the applicant also contended that he had been unjustifiably separated from other prisoners for a period of ninety days. He further submitted that he had been unjustifiably denied the opportunity to receive visits from I.P. before their marriage and had been denied any possibility of temporary prison leave in order to visit his sick father. Moreover, he had been provided with inadequate dental treatment, which had been unjustifiably delayed. 31.     In its reply to the applicant’s civil action, the State Attorney’s Office argued that the applicant had been placed in adequate conditions of detention in the two prison facilities and that there had been no unjustified restriction of his rights. As regards, in particular, the conditions of detention in Glina State Prison, the State Attorney’s Office submitted that the applicant had initially been placed in a cell measuring 22.45 sq. m, which had a fully separate sanitary facility. He had then been moved to a cell in the new part of the building which was equipped to accommodate six prisoners and measured (just as with all other cells in that part of the prison) 20.16   sq.   m with a sanitary facility of 1.81 sq. m. The applicant had spent the greater part of his stay in Glina State Prison in a cell for two persons, measuring 9.45 sq. m with a separate sanitary facility of 1.90 sq. m. 32.     In the course of the proceedings, the Municipal Court examined, among other things, the case file of the sentence-execution judge relating to the applicant’s complaints in Glina State Prison (see paragraphs 23-27 above) and heard several witnesses in relation to the circumstances of the conditions of the applicant’s detention. It also took into account the relevant report of the Constitutional Court ( Ustavni sud Republike Hrvatske ) on the situation in prisons. The Municipal Court refused to obtain further documents relating to the conditions of the applicant’s detention on the grounds that all the relevant facts had been sufficiently established. 33.     On 14 October 2014 the Municipal Court dismissed the applicant’s civil action as unfounded on the grounds that he had failed to demonstrate that he had suffered any damage in connection with his imprisonment. It also ordered the applicant to pay costs and expenses for the State’s legal representation in the amount of 6,250 Croatian kunas (approximately 820   euros – EUR). 34.     The applicant challenged the first-instance judgment by lodging an appeal with the Zagreb County Court, which was dismissed on 5 June 2015 as unfounded. The Zagreb County Court considered that the applicant had failed to prove that the conditions of his detention had been in breach of the law, the Constitution, the Convention and other international standards. 35.     In September 2015 the applicant lodged a constitutional complaint with the Constitutional Court, alleging that he had been placed in inadequate conditions of detention in Zagreb Prison and Glina State Prison and that the relevant civil courts had erroneously dismissed his claim for damages in that respect. He also contended that he had been obliged to bear the high costs and expenses of the proceedings. The applicant relied on Article 23 § 1 of the Constitution (prohibition of ill-treatment) in conjunction with Article 3 of the Convention, Article 29 § 1 of the Constitution (right to a fair trial) in conjunction with Article 6 § 1 of the Convention, and Article 35 of the Constitution (right to respect for private and family life) in conjunction with Article 8 of the Convention. 36.     On 19 November 2015 the Constitutional Court examined on the merits and dismissed the applicant’s constitutional complaint (case no.   U ‑ III-3553/2015). In its decision, the Constitutional Court summarised the applicant’s arguments and indicated that the relevant provisions of law for its assessment of his complaints were the provisions of the Civil Obligations Act. The relevant part of the decision reads as follows: “In the case at issue, the Constitutional Court has examined the constitutional complaint from the perspective of the invoked Article 29 § 1 of the Constitution ... ... The Constitutional Court finds that the impugned judgments contain clear and valid reasoning [for the dismissal of the civil action] and that there was no arbitrariness in the interpretation of the relevant law. The Constitutional Court stresses that the relevant court examines all the circumstances of a specific case and depending on the evaluation of the nature of those circumstances, it awards just compensation or excludes the possibility of awarding such compensation, bearing in mind the circumstances expressly stated in Article 1100 § 3 of the Civil Obligations Act. Therefore, the award of compensation depends on the particular circumstances of a case. The Constitutional Court points out that in proceedings before the Constitutional Court initiated by means of a constitutional complaint, it does not establish the facts and, as a rule, it does not evaluate the facts of the case established or evidence adduced by the relevant courts. ... The appellant also invoked Article 23 § 1 of the Constitution in conjunction with Article 3 of the Convention and Article 35 of the Constitution in conjunction with Article 8 of the Convention ... In view of the requirements under the cited provisions of the Constitution and the Convention, and bearing in mind the subject matter of the dispute in the proceedings preceding those before the Constitutional Court (compensation for damage), the Constitutional Court finds that the cited provisions of the Constitution and the Convention have not been breached by the impugned court decisions.” 37.     The decision of the Constitutional Court was served on the applicant’s representative on 4 December 2015. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 1.     Constitution 38.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990, with further amendments) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 25 “All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity.” Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 35 “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” 39.     The relevant part of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 99/1999, with further amendments) reads: “(1)     Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision ( pojedinačni akt ) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or on a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter ‘constitutional right’) ... 2.     If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” 2.     Enforcement of Prison Sentences Act 40.     The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora , Official Gazette no.   128/1999, with further amendments) read as follows: Complaints Section 15 “(1)     An inmate shall have the right to complain about an act or decision of an employee of a State prison or [county] prison. (2)     Complaints shall be lodged orally or in writing with the prison governor, or the head office of the Prison Administration [of the Ministry of Justice]. (3)     Inmates must be enabled to express their oral complaint in the absence of employees of a State prison or [county] prison, and in the absence of the person against whose actions and decisions the complaint is directed. (4)     The governor shall reply to the complaint within fifteen days, and the Ministry of Justice, within thirty days. Written complaints shall be answered in writing. (5)     If an inmate lodges a complaint with the sentence-execution judge, it shall be considered a request for judicial protection under section 17 hereof.” Judicial protection against acts and decisions of the administration of a State prison or [county] prison Section 17 “(1)     An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him or her any of the rights guaranteed by the present Act or unlawfully restricting such rights. (2)     The sentence-execution judge shall dismiss the request for judicial protection if he or she finds that it is unfounded. If the request is well-founded, the sentence ‑ execution judge shall order that the unlawful deprivations or restrictions of rights be remedied. If that is not possible, the sentence-execution judge shall find a violation and prohibit its repetition. (3)     The inmate and the prison facility may lodge an appeal against the sentence ‑ execution judge’s decision ...” Visits to prisoners Section 117 “(1)     A prisoner has the right to receive visits by members of his or her family ... ... (4)     Upon authorisation by the prison governor, a prisoner may be visited by other persons ...” Restriction on visits Section 118 “(1)     The prison governor can restrict visits [to a prisoner] for reasons of safety. ...” Exceptional leave [from prison] Section 128 “(1)     The prison governor may allow a prisoner an exceptional leave of absence for the following purposes: ... 2)     to visit a seriously ill family member; ... (3)     Upon his or her request for leave, the prisoner must provide documentation relating to the reason for which leave is sought.” 41.     Further relevant provisions of the Enforcement of Prison Sentences Act are set out in Muršić v. Croatia ([GC], no. 7334/13, § 43, 20   October 2016). 3.     Civil Obligations Act 42.     The relevant provision of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette no. 35/2005, with further amendments) reads as follows: Section 19 “(1)     All natural persons or legal entities are entitled to the protection of their rights of personality ( prava osobnosti ) under the conditions provided by law. (2)     Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, and so on.” Section 200 “(1)     For any physical pain or mental suffering ... the court shall, if appropriate under the circumstances of a given case, and particularly if the intensity of the pain or fear and their duration so require, award compensation for non-pecuniary damage ...” Section 230 “(1)     A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it. (2)     In any event, such a claim shall become statute-barred five years after the damage occurred.” Section 1100 “(1)     Where a court finds it justifiable, on account of the seriousness of an infringement of the right to respect for one’s personal integrity and the circumstances of a particular case, it shall award compensation for non-pecuniary damage, irrespective of compensation for pecuniary damage or where no such damage exists.” 4.     Civil Procedure Act 43.     The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette no. 53/1991, with further amendments) read as follows: Section 12 “If it is necessary for a court, in order to make its decision, to first settle an issue of the existence of a right or legal relationship, and no decision on this issue has yet been given by a court or other competent body (preliminary issue), the court may settle the issue itself, unless otherwise provided for under special rules. The court’s decision on a preliminary issue shall have legal effect only in the proceedings in which the issue in question was settled. In civil proceedings, where an issue arises in relation to a criminal offence and the perpetrator’s criminal liability, the court shall be bound by the final judgment of the criminal court by which the accused was found guilty.” Section 186(a) “(1)     A person intending to bring a civil claim against the Republic of Croatia shall first submit a request for settlement to the competent State Attorney’s Office ...” B.     Relevant practice of the domestic courts 44.     In case no. U-III-1437/2007 the Constitutional Court examined a constitutional complaint against judgments of the civil court dismissing a prisoner’s claim for damages in a situation where the relevant sentence ‑ execution judge had previously found that the individual in question had been placed in inadequate conditions of detention in Lepoglava State Prison and had ordered his transfer to another cell meeting the relevant accommodation requirements. The Constitutional Court quashed the civil courts’ judgments and ordered a retrial. The relevant part of the Constitutional Court’s decision reads as follows: “The Constitutional Court finds that the established fact of a lack of personal space in detention, coupled with [the appellant’s] inability to have access to the toilet during the day, is in itself sufficient to cause suffering beyond that normally associated with any deprivation of liberty. Thus, in the relevant period the appellant was subjected to conditions of detention amounting to degrading treatment, contrary to the standards for treating inmates with dignity as required under Article 25 § 1 of the Constitution. There has therefore been a breach of the appellant’s right to be treated, as an inmate, in a manner that is humane and respectful of his dignity. ... The Constitutional Court finds particularly unacceptable the position of the courts that compensation for non-pecuniary damage cannot be awarded pursuant to section   200 of the Civil Obligations Act because this is a legally unrecognised form of compensation for damage. In contemporary democratic countries, the personality rights of each person are afforded particular protection ... The concept of personality rights is set out in section 19(2) of the Civil Obligations Act, where the following rights are listed as personality rights within the meaning of the Act: right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, freedom and others. Therefore, non-pecuniary damage includes not only the appearance of physical or psychological pain or fear ... or reduced activities of life ... but also any injury caused to personality and dignity, pursuant to the cited section 19 of the Civil Obligations Act currently in force. The facts established ... point precisely to injury to the dignity of the appellant and represent the substance of the request for compensation for non-pecuniary damage. The appellant is entitled to all of that, regardless of the fact that in his complaint he specifically sought compensation for damage on account of diminished living and working capabilities ... pain suffered ... and fear experienced ... The civil court (as a rule) decides only on the facts presented by the parties, that is, it examines evidence proposed by the parties ... In this specific case, however, it is incorrect to conclude that the appellant, as the plaintiff in the civil proceedings, presented only statements of facts regarding the decrease in his living and working capabilities, the pain suffered and the fear experienced. He also clearly talked about other feelings of discomfort due to the inadequate space in the prison, which also represents the basis for the civil court on which to examine the case and decide on it. The lower courts have not taken that part of the problem into consideration until now. ... It should therefore be concluded that human, constitutional and personal rights have been violated in this case because the appellant was placed in prison conditions that did not comply with the standards prescribed by the Enforcement of Prison Sentences Act. The same conditions were also contrary to the legal standard prescribed under Article 25 § 1 of the Constitution. The courts are therefore obliged to determine the damages for that violation of human dignity.” 45.     On 17 March 2009, in case no. U-III-4182/2008, the Constitutional Court accepted a constitutional complaint lodged by a remand prisoner about the conditions of his detention in Zagreb Prison. In the operative part of the decision it found a violation of the applicant’s right to humane treatment and respect for his dignity. It also ordered the government to adjust the facilities at Zagreb Prison to the needs of detainees within a reasonable time, not exceeding five years. The relevant part of the decision reads: “As to [the right not to be ill-treated] 17.1.     ... the Constitutional Court notes that section 74, paragraph 3, of the Enforcement of Prison Sentences Act, inter alia , defines the standard occupancy space per prisoner in the following terms: ‘Premises in which the prisoners dwell shall be clean, dry and sufficiently spacious. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory.’ ... overcrowded conditions in Zagreb Prison cannot serve as acceptable justification for the poor condition of the cell the applicant occupies. In the light of the principle of presumption of innocence, the Constitutional Court stresses that the applicant’s right to personal freedom, since he is in pre-trial detention and not convicted, must not be restricted to a more severe degree than that of a convicted person. 17.2.     In assessing the quality of medical care, the Constitutional Court accepts the allegations of the Zagreb Prison administration that it is at a satisfactory level. However, the prison administration must, taking into account the need to minimise any damaging consequences of overcrowded conditions, establish standards in respect of additional medical care for detainees by employing the services of out-of-prison medical assistance not dependent on the discretionary assessment of the prison administration. 17.3.     Lastly, the Constitutional Court finds the family visits regime inadequate, in view of the overcrowded conditions, as regards both the duration of visits and the procedure applied in respect of family members, which ... significantly diminishes the purpose of such contact ... ... 22.     For the reasons set out in points ... 17 [of this decision] the Constitutional Court finds that the general conditions of the applicant’s detention amount to degrading treatment and thus infringe his constitutional rights guaranteed under Article 23 and Article 25 § 1 of the Constitution, as well as his rights under Article 3 of the Convention. The Constitutional Court has not addressed the possibility of granting the applicant just satisfaction for the above infringements of his constitutional and Convention rights because in the Croatian legal system there exists another, effective legal remedy in that respect (see the Constitutional Court’s decision no. U-III-1437/07 of 23 April 2008 [see paragraph 44 above]. ...” 46.     In the same case, the Constitutional Court stressed the following: “[A] constitutional complaint alleging a violation of the rights guaranteed under Article 25 § 1 of the Constitution becomes a subsidiary legal remedy, which can be used only after the exhaustion of the [preventive remedy before the relevant courts] ...” 47.     Thus, in subsequent cases the Constitutional Court declared inadmissible, on account of non-exhaustion of relevant remedies before the lower bodies, any complaints concerning prison conditions made by prisoners who had not beforehand complained to the sentence-execution judge about the allegedly inadequate conditions of their detention (case no.   U-III-Bi-4989/2012, 1   June 2016, and case no.   U-IIIBi-2475/2016, 5   October 2016). 48.     On 3 November 2010, in case no. U-III-64744/2009, the Constitutional Court accepted a complaint lodged by a prisoner concerning his stay in Zagreb Prison Hospital, even though after lodging the constitutional complaint he had been transferred to another prison facility. The Constitutional Court found a breach of the appellant’s constitutional right to humane treatment and respect for his dignity guaranteed under Article 25 of the Constitution. 49.     With regard to the question of exhaustion of remedies, the Constitutional Court found that the appellant had properly used preventive remedies by complaining to the relevant sentence-execution judge, which had allowed him to lodge a constitutional complaint. With regard to the possibility of obtaining damages, the Constitutional Court stressed: “The Constitutional Court notes that the appellant has a legal possibility of exercising the right to appropriate compensation for the inhuman accommodation and living conditions in the prison hospital, which can be obtained in ordinary [civil] court proceedings.” 50.     According to the practice of the Constitutional Court, an appellant who complains of inadequate conditions of detention in a prison facility, following successful use of the preventive remedy before the sentence ‑ execution judge, but is then removed to another prison facility, is again required to use the remedy before the sentence-execution judge concerning the allegedly inadequate conditions of detention in the prison facility to which he or she has been transferred. In a number of such cases, although essentially examining the question of exhaustion of remedies, the Constitutional Court has found no breach of prisoners’ rights (case no.   U-III-5495/2011, 7 October 2015, and case no.   U ‑ III-835/2012, 2 December 2015). 51.     The Constitutional Court recently held that the appellants were not required to use the preventive remedy before the sentence-execution judge in order to be formally allowed to lodge a civil action for damages in the civil courts. This was clarified in the Constitutional Court’s recent leading decision, no.   U-III-5725/2016 of 19 December 2017, where it stressed the following: “The second-instance court also found that the appellant, while still serving his prison sentence, could have complained of [inadequate] conditions of detention within the meaning of section 15 of the Enforcement of Prison Sentences Act, thereby also ensuring that there would be an improvement of the conditions [of his detention] while still in prison. That court did not make the prior use of the remedy in question a condition for the possibility of obtaining damages, as the appellant erroneously thinks, but only pointed to the fact that there was an effective remedy for prisoners which could be used if they considered that the conditions of their detention were unlawful.” 52.     In the same case, the Constitutional Court referred to the relevant principles from the Muršić judgment (cited above) as the standards to be applied when assessing the conditions of detention. It also construed a procedural duty under Article 25 § 1 of the Constitution according to which, when examining civil actions for damages related to inadequate conditions of detention, the civil courts must duly establish all the circumstances of an appellant’s conditions of detention. If the courts find that such conditions were inadequate, that creates a basis for awarding damages, as already explained in case no.   U-III-1437/2007 (see paragraph 44 above; see also case no.   U ‑ III-272/2017 of 20 December 2018, paragraph 14, with further references). 53.     In several subsequent decisions where appellants lodged their constitutional complaints after their civil actions for damages relating to inadequate conditions of detention had been dismissed, the Constitutional Court followed the approach it had taken in case no.   U-III-5725/2016 and examined those complaints from the perspective of the civil courts’ procedural duty to elucidate the circumstances of a former prisoner’s conditions of detention under Article 25 § 1 of the Constitution, sometimes taken alone and sometimes in conjunction with Article 29 § 1 of the Constitution. In making that assessment, the Constitutional Court stressed that it was primarily for the relevant lower courts to determine the disputes before them and that it could only intervene in the event of arbitrariness in their decisions (case no.   U-III-2388/2015, 26 February 2018, dismissed on the merits; and case no.   U-III-181/2017, 19 April 2018 and case no.   U-III-1630/2017, 30 May 2018, both adopted with the lower courts’ judgments quashed; see also, as regards earlier case-law, case no.   U-III-703/2016, 27   April 2016; case no.   U-III-4340/2015, 13 July 2016; and case no.   U-III-1573/2016, 14 July 2016). 54.     However, in some cases where appellants lodged their constitutional complaints after their civil actions for damages relating to inadequate conditions of detention had been dismissed, the Constitutional Court itself examined the (in)adequacy of the conditions of detention under Article 25 §   1 of the Constitution (case no.   U-III-145/2017, 10 July 2018, and case no.   U-III-4077/2017, 13   September 2018). C.     Other relevant domestic material 55.     In the periodic annual reports for 2011 and 2012, the Ombudsman reported on the general problem of prison overcrowding in Croatia. The same concerns were raised in the Ombudsman’s report for 2012 acting in the capacity of the National Preventive Mechanism under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). 56.     In the 2011 report, Glina State Prison was mentioned as an example of a successful extension of the prison estate, which had created a positive impact on the reduction of prison overcrowding in general. However, in the 2011 and 2012 reports concerns were expressed over the fact that dental treatment in Glina State Prison was provided from two external clinics and thus the average waiting time for such treatment amounted to some four months. The 2011 report also noted that most complaints concerning conditions of detention were made with regard to Zagreb Prison, and in 2012 the report referred to the issues of inadequate conditions of detention identified by the Court in Longin v. Croatia (no. 49268/10, 6 November 2012) and by the Constitutional Court in case no. U-III-4182/2008 (see paragraph 45 above). 57.     In a general report on the conditions of detention in Croatia (no.   U ‑ X-5464/2012 of 12 June 2014), the Constitutional Court identified the problem of prison overcrowding and instructed the competent authorities to take more proactive measures in securing adequate conditions of detention for all types of detainees, as provided under the relevant domestic law and international standards. III.     RELEVANT INTERNATIONAL MATERIAL 58.     The relevant reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning Croatia can be found in Muršić (cited above, § 54). 59.     In the report concerning its visit in 2012 (CPT/Inf (2014) 9), the CPT noted the following concerning Zagreb Prison and Glina State Prison: “30.     Glina State Prison, located about 70 kilometres south-west of Zagreb, is a former juvenile correctional institution which became an establishment for adult male sentenced prisoners after 1995. At the time of the visit, it was accommodating 564   male convicted prisoners, with an official capacity of 716 places. The establishment includes two main accommodation blocks (one of which only entered into service in