TRUNK v. SLOVENIA (European Court of Human Rights) Application no. 60503/15

The applicant complained under Article 5 of the Convention that he had been deprived of his liberty unlawfully given that the change of his prison regime on the basis of his inability to produce a urine sample lacked legal basis. Moreover, he complained that such a change amounted to a new penalty which had been imposed on him in violation of Article 7 of the Convention. Under Article 6 of the Convention he complained that the courts’ decisions regarding the change of the prison regime had not been sufficiently reasoned. Lastly, he complained in substance under Article 8 of the Convention that the change in the prison regime had been disproportionate to the aim pursued.


FOURTH SECTION
DECISION
Application no. 60503/15
Jure TRUNK
against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Committee composed of:

Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 2 December 2015,

Having regard to the declaration submitted by the respondent Government on 3 August 2018 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Jure Trunk, is a Slovenian national who was born in 1982 and lives in Ljubljana. He was represented before the Court by Mr D. Marković, a lawyer practising in Ljubljana.

2. The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Grum, State Attorney.

3. The applicant complained under Article 5 of the Convention that he had been deprived of his liberty unlawfully given that the change of his prison regime on the basis of his inability to produce a urine sample lacked legal basis. Moreover, he complained that such a change amounted to a new penalty which had been imposed on him in violation of Article 7 of the Convention. Under Article 6 of the Convention he complained that the courts’ decisions regarding the change of the prison regime had not been sufficiently reasoned. Lastly, he complained in substance under Article 8 of the Convention that the change in the prison regime had been disproportionate to the aim pursued.

4. On 17 May 2017 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. On 29 August 2017, under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, the President of the Section granted the Slovenian Human Rights Ombudsman leave to intervene as a third party in the proceedings.

A. The circumstances of the case

6. On 13 January 2014 the applicant was convicted of three criminal offences against public order and sentenced, in accordance with the agreement concluded with the public prosecutor by which he had pleaded guilty, to two years and six months’ imprisonment. The sentence was to be executed in such a manner that the applicant continued to work and live at home, except on non-working days, in principle at the end of the week, when he should be in prison (hereinafter “weekend prison”). On 28 March 2014 the applicant started serving his sentence.

7. On 3 April 2014 the prison director issued a decision under section 12(5) of the Enforcement of Criminal Sanctions Act (see paragraph 17 below), noting, inter alia, that, while serving the sentence, the applicant should maintain, and if so ordered prove, his abstinence from alcohol and drugs. The applicant also signed a statement agreeing to take urine tests for drug detection. He was informed of the prison rules which provided that a refusal to take the tests would be considered to equate to a positive result.

8. On 26 May 2014 the applicant was asked to take the urine test for drug detection, but was unable to produce a urine sample, as confirmed by the memo drawn up by the officers supervising the applicant’s attempt to urinate.

9. On 30 May 2014 the acting prison director suspended the applicant’s weekend prison arrangement for failure to prove his abstinence from drugs, and made an application to the court for the applicant to serve the rest of the sentence under a full-time prison regime. The decision was served on the applicant on 31 May 2014 and he was subsequently placed in a closed section of the prison. His employment was terminated.

10. The applicant appealed, arguing that he had not refused to undergo the urine test but had been unable to provide a urine sample and objected to the finding that his failure to provide the sample and the related presumption of a positive test for the presence of drugs in his body constituted a serious disciplinary offence.

11. On 9 June 2014 the Ljubljana District Court allowed the prison director’s application (see paragraph 9 above) and ordered that the applicant serve the rest of his sentence under the full-time prison regime. The applicant appealed arguing that he had not refused to undergo the test but had been unable to give the urine sample.

12. On 16 July 2014 the Ljubljana Higher Court dismissed the applicant’s appeal, finding that he had failed to prove that he had been unable to give a urine sample for objective reasons. The court noted that the applicant had been informed that a failure to undergo the drugs test would lead to the presumption of a positive result and found that the burden of proving his abstinence was on the applicant.

13. On 2 June 2015 the Constitutional Court decided not to accept a constitutional complaint by the applicant for consideration, finding that it did not concern an important constitutional issue, nor did it entail a violation of human rights which had serious consequences for him.

14. In the meantime, on 11 May 2015, the Ljubljana District Court dismissed the applicant’s appeal against the prison director’s decision to suspend his weekend prison regime (see paragraph 10 above), finding that the applicant’s non-compliance with the obligation to prove his abstinence from drugs constituted a serious disciplinary violation.

15. On 25 August 2015 the applicant benefited from early release from prison.

16. On 14 September 2015 the Constitutional Court rejected a constitutional complaint by him regarding the prison director’s decision (see paragraph 9 above), finding that the applicant lacked legal interest to pursue the proceedings.

B. Relevant domestic law

17. Relevant provisions of the Enforcement of Criminal Sanctions Act (Official Gazette no. 110/06, with further amendments), in so far as relevant and as in force at the relevant time, read as follows:

Section 12

“(1) Under the conditions set out in the Criminal Code, and following the procedure set out in the Criminal Procedure Act, a prison sentence can be executed in such a manner that the prisoner continues to study or work and live at home, except for on non-working days, in principle at the end of week, when he should be in prison (hereinafter referred to as ‘weekend prison’). A prisoner can benefit from [such a regime] if his personal conditions are such that he can be trusted not to abuse such a manner of serving his sentence, and if the prisoner is at the time of the decision:

– employed in the territory of the Republic of Slovenia…

(4) The prison director shall, within one month of receiving the final decision allowing the prison sentence to be executed by way of weekend prison, [and] after consulting the prisoner and his employer or education provider, issue a decision determining particular conditions under which weekend prison should be carried out. Until such a decision is issued, the prisoner should remain in prison.

(5) The decision mentioned in the preceding paragraph should determine:

– thetime and day of the [prisoner’s] departure and return to prison

– other obligations of the prisoner, his employer …

(7) If the prisoner is abusing the weekend prison regime, or no longer satisfies the conditions concerning his employment or education …, the court can, following an application by a prison director, decide that the prisoner should serve the rest of his sentence in prison.

(8) If the prisoner abuses the weekend prison regime by acts which have elements of a criminal offence or a serious disciplinary offence under this Act, or he commits such an offence while in prison, the prison director can temporarily suspend the weekend prison regime until the first-instance court’s decision …, if the circumstances show that the conditions for weekend prison no longer exist. The court shall make a decision about the application within eight days at most.

…”

Section 63

“(1) If there is a reasonable suspicion that a prisoner is under the influence of illegal drugs, and in relation to those [persons] following a drug rehabilitation programme, a test for ascertaining the presence of psychotropic substances in the body or in bodily fluids can be carried out.

(2) Prisoners should have the possibility to take confidential HIV tests …”

18. The Enforcement of Criminal Sanctions Act, as applied in the applicant’s case, has since been amended twice (Official Gazette nos. 54/15 and 11/18), and now provides, in so far as relevant, as follows:

Section 12

“…

(7) The prison director can apply to the court proposing that the court decide that the prisoner should serve the rest of his sentence in prison:

– if the prisoner no longer satisfies the conditions concerning his employment or education …

– if the prisoner’s employer … does not comply with the conditions …;

– if the prisoner commits an act which has elements of a criminal offence or a disciplinary offence;

– if the prisoner violates the obligations determined in the decision under paragraph four of this section [determining particular conditions under which weekend prison should be carried out].

(8) The court shall make a decision about the application … within eight days from the moment it had received it.

(9) If the prisoner abuses the weekend prison regime by way determined in indents three and four of paragraph seven of this section, the prison director can temporarily suspend the weekend prison regime until the first-instance court’s decision about the prison director’s application lodged under paragraph seven of this section.

…”

Section 63

“(1) If there is a reasonable suspicion that a prisoner is under the influence of alcohol or illegal psychotropic substances, and in relation to those [persons] following a drug rehabilitation programme, a test for ascertaining the presence of alcohol and psychotropic substances in their organism can be carried out.

(2) If a prisoner refuses to take the test for ascertaining the presence of alcohol or he does not give the bodily fluids, necessary for testing the presence of illegal psychotropic substances, the prisoner is presumed to be under the influence of alcohol or illegal psychotropic substances, of which the prisoner has to be informed in advance.

(3) Prisoners should have the possibility to take confidential HIV tests …”

19. According to the Rules on the Implementation of Prison Sentences (Official Gazette no. 102/00, with further amendments), as in force at the relevant time, the prisoner was to give urine for the urine test in a suitable place and in a way that did not violate his or her personal dignity, while the details of the procedure for urine testing were to be determined by the general director (section 54).

20. On 16 August 2016 new Rules on the Implementation of Prison Sentences (Official Gazette no. 42/16) came into force, which read, in so far as relevant, as follows:

Section 51

“(1) The prisoner gives urine for the purposes of ascertaining the presence of illegal psychotropic substances in accordance with section 63(1) of the Enforcement of Criminal Sanctions Act…

(2) The urine test is carried out with or without the advance notice.

(3) The procedure of giving the urine and the supervision of the procedure … is carried out by a judicial police officer.

(4) The procedure and supervision is carried out by a person of same gender as the person giving the urine.

(5) The procedure of giving the urine cannot take longer than one hour from the moment of being called to give urine. During this time the prisoner can drink water.

(6) If during the procedure of giving the urine the prisoner claims that he is unable to give it, he is given another chance to do so after 30 minutes, but within one hour from the moment of being called to give urine. The prisoner is under the supervision of a judicial police officer. If the prisoner does not give urine even in this [additional] time, it is presumed in accordance with section 63 of the Enforcement of Criminal Sanctions Act that he refused to take the test.

(7) The prisoner proves his inability to give urine on medical grounds with an attestation of a specialist doctor.

…”

THE LAW

21. The applicant complained about the change of his prison regime from weekend prison to full-time prison on the basis of his inability to produce a urine sample. He relied on Articles 5, 6, 7 and 8 of the Convention.

22. After the failure of attempts to reach a friendly settlement, by a letter of 3 August 2018, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

23. The declaration provided as follows:

“1. Hereby, the Government of the Republic of Slovenia acknowledge that the change of prison regime for the applicant from weekend prison to the full-time prison regime on the basis of applicant’s inability to produce urine lacked proper legal basis and did not comply with requirements of Articles 5, 7 and 8 of the Convention, as well as the applicant did not have a fair hearing regarding the change of prison regime as guaranteed by Article 6 of the Convention.

2. The Slovenian Government are ready to pay the applicant a sum of EUR 12,500 (twelve thousand five hundred euros), EUR 10,000 (ten thousand euros) to cover any and all pecuniary and non-pecuniary damage and EUR 2,500 (two thousand five hundred euros) for the costs of the proceedings.

3. The sum referred above will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interests on it, from expiry of that period until settlement, at rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

4. The Slovenian Government therefore propose the Court to accept the unilateral declaration in present case as “any other reason” justifying and strike the present case out of the list of cases pursuant to Article 37 § 1 (c) of the Convention.”

24. By a letter of 5 September 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. The applicant argued that the amount of just satisfaction proposed by the Government was too low. Furthermore, he stated that it was justified to continue the examination of the case since it was important for him, as well as for all other potentially affected individuals, to have the violations recognised openly and publicly and asked that the Court deliver a judgment.

25. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under sub-paragraph (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

26. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

27. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

28. The Court has established in a number of cases its general principles in respect of the complaints under Article 7 of the Convention concerning the modification of the scope of the penalty and, in this connection, the lawfulness of detention under Article 5 of the Convention (see, for example, Del Río Pradav. Spain [GC], no. 42750/09, §§ 78-93 and 123-126, ECHR 2013), as well as its practice concerning the fair trial guarantees relied on by the applicant under Article 6 of the Convention (see, for example, Hirvisaari v. Finland, no. 49684/99, §§ 30-33, 27 September 2001, and Buzescu v. Romania, no. 61302/00, §§ 63-67, 24 May 2005) and the right to respect for one’s family and private life under Article 8 of the Convention (see, among many other authorities, Gülmez v. Turkey, no. 16330/02, §§ 49‑52, 20 May 2008).

29. Furthermore, the Court observes that the Government have already introduced changes to the relevant domestic law with the aim of providing a clear legal basis for the change of the prison regime in cases of drug abuse (see paragraph 18 above). The Government have also established a more precise regulatory framework on urine testing for drugs, including the provisions regulating the procedure to be followed in the case that a prisoner claims to be, or is in fact, unable to provide a urine sample (see paragraphs 18 and 20 above).

30. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

31. Moreover, in light of the above considerations, and the Court’s case-law, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

32. The Court further notes that this decision constitutes a final resolution of the application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of any other remedies he might wish to introduce before the domestic courts.

33. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

34. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Articles 5, 6, 7 and 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 6 December 2018.

Andrea Tamietti                            Georges Ravarani
Deputy Registrar                                President

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