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FIFTH
SECTION
CASE OF ILIEV AND OTHERS v. BULGARIA
(Applications
nos. 4473/02 and 34138/04)
JUDGMENT
STRASBOURG
10
February 2011
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 Iliev and Others v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Zdravka Kalaydjieva,
Angelika
Nußberger,
Julia Laffranque, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 4473/02 and 34138/04)
against the Republic of Bulgaria lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by three
Bulgarian nationals, Mr Krasimir Nikolov Iliev, Mr Mihail Tiholov
Ekimdzhiev and Ms Katina Vladimirova Boncheva (“the
applicants”), on 7 January 2002 and 10 September 2004.
- Mr
Iliev (the “first applicant”) is represented before the
Court by Mr M. Ekimdzhiev (the “second applicant”)
and Ms K. Boncheva (the “third applicant”), lawyers
practising in Plovdiv. The second and third applicants are
represented before the Court by Ms S. Stefanova, a lawyer practising
in Plovdiv. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Dimova, of the Ministry of
Justice.
- The
first applicant complained, in particular, that the conditions of his
detention in Sofia and Varna prisons had violated Article 3 of the
Convention and that he had not had an effective remedy in connection
thereto, as required by Article 13. The applicants further alleged
that the correspondence exchanged between them had been monitored by
the prison administration in violation of Article 8 and that they had
had no effective remedies in connection thereto, as required by
Article 13. They alleged that this had also hindered the effective
exercise of the first applicant’s right of individual petition
under Article 34 of the Convention and had discriminated against the
second and the third applicant in violation of Article 14 because the
domestic law differentiated between correspondence with legal
representatives in domestic proceedings and correspondence with other
lawyers.
- By
a decision of 6 November 2007
the Court decided to join the applications, communicated the
above-mentioned complaints to the Government and declared the
remainder of the applications inadmissible. Under the provisions of
Article 29 of the Convention, it decided to rule on the admissibility
and merits of the communicated complaints at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1964 and is currently serving several
sentences in Varna prison. The second and the third applicants were
born in 1964 and 1979 respectively and live in Plovdiv.
A. The conditions of detention of the first applicant
1. The first applicant’s convictions
- In
three sets of criminal proceedings, which ended in October 1995,
January 2002 and February 2002 respectively, the applicant was found
guilty of robbery, fraud and forgery and was sentenced to a term of
imprisonment.
2. Periods of detention of the first applicant
- The
first applicant has been detained in Varna prison since 15 March
1999. On a number of occasions − in particular from 4 to 25
October 2002; 18 to 25 November 2002; 24 March to 2 April 2003; 21
April to 1 May 2003; 19 June to 3 July 2003; and 11 September to 17
October 2003, he was transferred to Sofia prison in order to appear
in court at criminal proceedings against him.
3. The first applicant’s detention in Varna
prison
- According
to the first applicant, during his detention in Varna prison he was
held in a cell situated on the third floor, which measured four by
seven metres and accommodated seven other individuals. The cell was
dirty and the plaster was peeling off the walls. The available
natural light was insufficient as was the artificial lighting
provided by the two 75W bulbs. There were no sanitary facilities in
the cell and access to such was provided only during the day from 6
a.m. to 9 p.m. However, there were only two sinks and two cubicles
for over eighty prisoners. During the night, the prisoners had to use
a bucket for their sanitary needs in front of everyone else in the
cell. There was no hot water and bathing was provided once a
fortnight or, sometimes, once every twenty to twenty-five days.
- Separately,
the first applicant submitted that every time he was transferred to
court he was placed in another cell, measuring two by three metres,
with all the other prisoners who were being transferred on that day
(usually fifteen to twenty-five persons). They were kept there from
6:30 a.m. to 9:30 a.m. and were not normally provided with
access to a toilet. During the winter it was very cold in the cell,
while in summer it was extremely hot and stuffy due to the number of
people there.
4. The first applicant’s detention in Sofia
prison
- According
to the first applicant, on the occasions he was transferred to Sofia
prison (see paragraph 7 above) he was held in cell no. 1 of group no.
1, which measured four by nine metres and accommodated fourteen
people. Fresh air and sunlight were insufficient as there was only a
window measuring 40 by 60 centimetres which was covered with a
hole-ridden metal sheet. The artificial light was also insufficient.
The cell was dirty, stinking and damp and the plaster was peeling off
the walls. The mattresses and covers were old, worn and dirty. There
were no sanitary facilities in the cell and access to such was
provided twice a day for a short period of time. The rest of the time
the prisoners had to use a bucket for their sanitary needs in front
of everyone else in the cell. The first applicant was not allowed to
bathe or wash his clothes. In addition, the cell was flooded from
15 September to 1 October 2003, so he had to sleep on wet bed
linen and was ill as a result.
5. Civil actions for damages brought by the first
applicant
(a) The first set of proceedings
- On
30 October 2003 the first applicant brought an action against the
Ministry of Justice, claiming a total of 1,000 Bulgarian levs (BGN,
511 euros (EUR)) in non-pecuniary damages stemming from the
conditions in which he had been detained at Sofia prison during the
periods specified in paragraph 7 above. In a judgment of 4 May 2005
the Sofia District Court partly granted the claim. It found that the
first applicant had been confined in a cell with insufficient
lighting and ventilation, without a toilet and running water in the
cell itself, with dirty and damp bedding; prisoners had been allowed
to go to the toilet two or three times a day for five to ten minutes
and were forced to use a plastic bucket to relieve their needs in the
meantime; prisoners temporarily transferred to Sofia prison, such as
the first applicant, had not been allowed to bathe. Furthermore, in
September 2003, the first applicant’s cell had been flooded and
all the mattresses and bedding had become wet. The prison
administration had not replaced them and the first applicant had
become sick. He had asked to be examined by a doctor but his request
had been disregarded. The Sofia District Court concluded that the
conditions in which the first applicant had been detained were
exceptionally harsh and humiliating. However, noting that the first
applicant had been detained in Sofia prison for only short periods of
time, it found that BGN 300 (EUR 153) was sufficient compensation for
the inconvenience sustained by him. It further awarded BGN 150 (EUR
77) in connection with the failure of the prison administration to
provide the first applicant with medical treatment. It also ordered
the first applicant to pay a state fee of BGN 22 (EUR 11) in respect
of the dismissed part of his claim.
- Following
appeals by both parties, in a final judgment of 27 February 2006
the Sofia City Court upheld the judgment of 4 May 2005 with similar
reasoning. A writ of execution was issued to the first applicant on 6
April 2006.
(b) The second set of proceedings
- On
27 September 2005 the first applicant brought an action against the
Ministry of Justice, claiming a total of BGN 2,700 (EUR 1,380) in
non-pecuniary damages stemming from the conditions in which he had
been detained at Varna prison in the period from 6 June 2002 to 26
September 2005 and for the alleged unlawful monitoring of his
correspondence with his lawyers.
- At
a hearing on 20 January 2006 the Varna District Court questioned an
inspector from Varna prison in charge of the social and educational
activities. He stated, inter alia, that all incoming
correspondence was opened, and sometimes read, by the prison
administration in spite of the name of the sender appearing on the
envelope. This was done because the administration could not be sure
about the real identity of the sender.
- The
first applicant’s claim was partly granted by the District
Court on 15 August 2006, and upon appeal, by the Varna Regional Court
on 24 April 2007. The courts found that the first applicant’s
cell had measured 3.22 metres by 4.30 metres, had been overcrowded
and in a very poor state of repair, with insufficient lighting and
ventilation; there had been no running water or toilet in the cell
and during the night prisoners had been forced to use a plastic
bucket to relieve their needs; there had been no hot water in the
common sanitary premises and the first applicant had had to wash
himself and his clothes with cold water and dry them in the cell;
prisoners had been allowed to bathe only once a fortnight or
sometimes once in twenty-five days and the food had been of poor
quality. Furthermore, every time the first applicant had been
transferred to court he was placed in another cell, measuring 2.37
metres by 1.90 metres, with all the other prisoners waiting to be
transferred on that day − usually fifteen to twenty-five
persons. They had been kept standing there for hours with no access
to a toilet. During the winter it had been cold in the cell while in
summer it had been hot and stuffy. As to the monitoring of the first
applicant’s correspondence, the courts established that all
incoming mail had indeed been monitored by the prison administration.
The courts then made a separate analysis of each complaint by the
first applicant and found that certain of the conditions complained
of, such as the limited access to a toilet and running water, the use
of a bucket, the low quality of the food, the poor personal hygiene
and the conditions in the special cell for prisoners awaiting
transfer, had been humiliating or even dangerous for the first
applicant. They awarded him BGN 1,400 (EUR 716) in non-pecuniary
damages. In respect of the remaining complaints, the courts, holding
that the first applicant had failed to prove that he had sustained
any mental anguish or suffering, made no award. As regards the
monitoring of the first applicant’s incoming correspondence,
the courts found that this was justified for verifying the identity
of the sender. They ordered the first applicant to pay BGN 208.80
(EUR 107) in state fees in respect of the dismissed part of the
claim.
(c) Subsequent actions
- On
an unknown date, the first applicant brought two more actions against
the Ministry of Justice in connection with the conditions in which he
had been detained at Varna prison in subsequent periods: from
27 September 2005 to 14 December 2006 and from 15 December
2006 to 23 September 2007. According to the latest information
submitted by the first applicant, the cases are still pending.
B. The monitoring of the applicants’
correspondence
- On
11 November 2003 the first applicant retained the second and third
applicants to be his legal representatives before the Court in the
context of application no. 4473/02. Their legal practice is situated
in Plovdiv, so the primary means of communication between the
applicants was through written letters sent by ordinary mail.
- On
11 March 2004 the first applicant sent a letter to the second and
third applicants. Upon receiving it, the latter established that the
letter had been opened, had been dated and stamped with a reference
number by the prison authorities and had then been placed in a new
envelope with an accompanying letter from the warden of Varna prison,
with the same reference number, which stated the following on a
pre-printed form:
“Attached, we send you the request from the
prisoner KRASIMIR NIKOLOV ILIEV as appropriate”.
- The
letters of the first applicant of 18 May, 8 June, 16 June, 23 July
and 10 August 2004 were processed in the same manner and were each
packaged in two envelopes. The procedure followed in such cases
involved the first applicant placing the letter he wanted to mail
inside the first envelope and delivering it to the prison
authorities. Upon receipt, the prison authorities assigned the letter
a reference number, dated and stamped it with the seal of the
Ministry of the Interior, and allegedly copied it. They then placed
the first envelope into a second, larger envelope which was sealed
and mailed to the second and third applicants.
- A
letter from the second and third applicants, dated 7 June 2004, was
received by the first applicant opened, dated and stamped with the
seal of the Ministry of the Interior, assigned a reference number and
with a handwritten note indicating that it was “For Krasimir
Nikolov Iliev”. In reference to this letter, the first
applicant informed his lawyers in his letter of 16 June 2004 as
follows:
“... Please have in mind that your letters are
being opened here in my absence and probably photocopied, as it
happened with the last one. ...”
- In
his subsequent letter to his lawyers of 23 July 2004 the first
applicant noted the effect of the above procedures on their
communications as follows:
“... On the other hand, that which I must comment
on and share with you as information, I cannot write because the
letters are being read and probably copied. ...”
- In
his letter of 10 August 2004 the first applicant stated the
following:
“... Your letters to me are [definitely] being
opened and monitored before they are delivered to me, [similar to] my
[letters] to you [which] are checked and then sealed. Proof of this
is the seal [and] reference number on your letter... But the
administration of the prison does not deny that it monitors my
correspondence with you (similar to the opening of letters coming
from the Court). ...”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Execution of sentences
- Pursuant
to Article 36 § 2 of the Criminal Code, punishments cannot have
as their aim “causing physical suffering or degrading human
dignity”. An identical prohibition was contained in section
2(2) of the Enforcement of Sentences Act of 1969 (the “ESA”).
- On
1 June 2009 the ESA was superseded by the new Enforcement of
Sentences and Detention Orders Act (the “ESDOA”).
Pursuant to section 3 (1)
of the ESDOA, prisoners
may not be subjected to torture, cruel or inhuman treatment.
Paragraph 2 of the same provision defines torture,
cruel or inhuman treatment
as intentional acts or failures of prison employees or of any third
parties incited or facilitated, actively or passively, by prison
employees, causing (1) strong physical pain or suffering, save in
cases of use of force, arms or other devices in compliance with the
ESDOA; (2) intentional placement in unfavourable conditions of
detention, such as insufficient space, food, clothing, heating,
lighting, ventilation, medical services, or conditions for exercise,
continued isolation without human contracts or other culpable acts or
failures which could affect prisoners’ health; or (3) degrading
treatment debasing human dignity or forcing prisoners to do or suffer
acts against their will or arising feelings of fear, defencelessness
or inferiority.
B. Prisoners’ correspondence
1. Constitution
- Articles
30 and 34 of the 1991 Constitution read, as relevant:
Article 30 § 5
“Everyone has the right to meet in confidence with
the person who defends him. The confidentiality of their
communication shall be inviolable.”
Article 34
“1. The freedom and secret of
correspondence and other communications shall be inviolable.
2. This rule may be subject to exceptions
only with the permission of the judicial authorities when necessary
for uncovering or preventing serious offences.”
2. Attorneys’ Act
- The
Attorneys’ Act of 1991 provided, inter alia, that the
correspondence between an attorney and his client is confidential and
should not be subject to control (section 18 (2)).
- The
new Attorneys’ Act of 2004 provides, inter alia, that
the correspondence between an attorney and his client should not be
reviewed, copied, controlled or seized (section 33(2)).
3. Enforcement of Sentences Act
- The
ESA provided, inter alia, that prisoners have the right to
receive and send letters within the quotas allowed corresponding to
their regime of detention and that the letters are subject to
monitoring by the prison administration (section 33(1)(c)).
- Section
33(2) of the ESA, in force until 23 November 2004, provided that
correspondence with defence attorneys in trials before domestic
courts was excluded from those quotas. The Regulation for the
Implementing of the ESA provided that prisoners were entitled to
unlimited correspondence (section 37).
- In
a decision of 18 April 2006 (реш.
№ 4 от 18 април 2006
г. по конституционно
дело № 11 от 2005 г.,
обн., ДВ, бр. 36 от
2 май 2006 г.) the
Constitutional Court
declared unconstitutional section
132d(3) of the ESA, which had almost identical wording as the one of
section 33(1)(c) but concerned accused detainees.
Since the subject-matter of the case was limited to the former
provision, section 33(1)(c) was not reviewed for constitutionality.
- Pursuant
to section 75 of the Regulation for the Implementation of the ESDOA
of 2009, prisoners are entitled to unlimited correspondence, which
can be monitored for the purposes of crime prevention. Envelopes have
to be sealed and opened in the presence of a staff member, to make
sure that they do not contain prohibited items. If there is a
reasonable suspicion that the content of a letter could lead to a
serious crime being committed or prevent the discovery of such a
crime, the letter should not be dispatched and the public prosecutor
should be informed.
C. Relevant provisions regarding State liability for
damages
- The
relevant domestic law and practice concerning the State liability for
damages has been summarised in the Court’s judgment in the case
of Slavcho Kostov v. Bulgaria (no. 28674/03, § 19-22, 27
November 2008).
III. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”)
- The
CPT visited Bulgaria in 1995, 1999, 2002, 2003, 2006 and 2008. All
but the most recent report of its visits have since been made public.
- Varna
prison has never been visited by the CPT.
- Sofia
prison was visited in 2006 and 2008. A summary of the relevant
findings and observations of the CPT in the report on its 2006 visit
is contained in the Court’s judgment in the case of Stoyan
Dimitrov v. Bulgaria (no. 36275/02, §
55, 22 October 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
first applicant complained of the allegedly inhuman or degrading
conditions of detention in Varna and Sofia prisons. He relied on
Article 3 of the Convention, which reads as follows.
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The Government
- The
Government noted that the first applicant had brought several actions
under the State and Municipalities Responsibility for Damage Act
(“the SMRDA”) but had failed to inform the Court of their
existence and outcome. They also observed that an action under the
SMRDA represented a real and effective remedy in cases of poor
conditions of detention and cited a number of court judgments in
which domestic courts had awarded damages in connection with such
claims. Accordingly, they claimed that the first applicant had failed
to exhaust the available domestic remedies. On the basis of these
submissions they may also be understood as questioning in substance
the first applicant’s victim status. Furthermore, the
Government were of the view that the suffering inflicted on the first
applicant had not reached the minimum level of severity required
under Article 3 of the Convention. They relied on a report of 14
March 2008 of the Execution of Sentences Directorate of the Ministry
of Justice, which stated that the sanitary conditions in the first
applicant’s cell in Varna prison had improved following various
renovations, without specifying in which year these had been made,
and that the first applicant had been ensured access to fresh air and
natural light as well as to a toilet and running water during the
day. It also stated, without elaborating further, that the food had
been prepared in compliance with the applicable regulations.
2. The first applicant
- The
first applicant contested these arguments and submitted copies of the
relevant documents concerning the proceedings brought by him under
the SMRDA. He argued that the conditions of his detention had
amounted to inhuman and degrading treatment, and that this had also
been recognised by the domestic courts. However, the compensation he
had been awarded was insufficient and the proceedings did not improve
his situation.
B. Admissibility
1. The conditions of detention at Sofia prison
- The
Court notes that the first applicant brought an action under the
SMRDA, in which the domestic courts acknowledged that the conditions
of his detention had been extremely harsh and humiliating. However,
in view of the relatively short periods of time in which he had been
detained at Sofia prison, they awarded him damages in the amount of
BGN 428 (EUR 219) (see paragraphs 11-12 above).
- The
Court notes that the periods in which the first applicant was
detained at Sofia prison did not, indeed, exceed one or two weeks,
except for one period of a month. A question may therefore arise as
to whether the distress and hardship suffered by him attained the
minimum threshold of severity under Article 3 of the Convention.
However, even assuming that Article 3 applies, the Court finds, for
the reasons outlined below, that he could no longer claim to be a
victim of the alleged violation concerning that period.
- The
question whether an applicant can claim to be a victim of an alleged
violation of the Convention is relevant at all stages of the
proceedings under the Convention (see, among other authorities,
Burdov v. Russia, no. 59498/00, § 30, ECHR
2002-III). That question entails on the part of the Court an ex
post facto examination of the applicant’s situation. A
decision or measure favourable to the applicant is not, in principle,
sufficient to deprive him or her of his or her status as a victim,
unless the national authorities have acknowledged, and then afforded
adequate redress for, the breach of the Convention (see, for example,
Ciorap v. Moldova (no. 2), no. 7481/06, § 18, 20
July 2010). In the instant case, the Court notes that the first
applicant spent only a few brief spells in Sofia prison and is no
longer detained there. Compensation can thus be regarded as adequate
redress for the conditions in which he had been detained there (see
paragraph 51 below).
- The
Court further notes that the conditions of detention examined by the
domestic courts were pertinent to the complaints under Article 3
raised before the Court. Bearing in mind that the domestic courts
assessed all relevant issues concerning the conditions of the first
applicant’s detention, such as their duration and severity as
well as their cumulative effects on him (see Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001 II), the Court is satisfied
that the domestic courts did acknowledge the violation. As to the
amount of the non-pecuniary damages awarded, the Court reiterates
that compensation which is lower than that awarded by the Court may
nevertheless be considered reasonable, provided that the relevant
decision of the domestic courts is consonant with the legal tradition
and standard of living in the country concerned and is speedy,
reasoned and executed quickly (see Scordino v. Italy (no.
1) [GC], no. 36813/97, §§ 189 and 206, ECHR 2006 V,
and Dubjakova v. Slovakia (dec.), no. 67299/01, 19 October
2004).
- Taking
account of all the material in its possession, including the
promptness of the judgments and the award made by domestic courts in
the present case, the Court considers that the sum accorded to the
first applicant cannot be considered unreasonable. The Court is thus
of the view that the alleged violation was adequately remedied at the
national level.
- It
follows that this complaint must be rejected in accordance with
Article 35 § 3 (a) of the Convention.
2. The conditions of detention at Varna prison
- The
Court notes that the first applicant brought an action under the
SMRDA for the period from 6 June 2002 to 26 September 2005, which
resulted in damages being awarded (see paragraphs 13-15 above). A
question may therefore arise as to whether the first applicant can
still be considered a victim of the alleged violation of Article 3
concerning that period.
(a) Victim status
- On
the basis of developments in the Bulgarian courts’ case-law
since 2003, the Court has accepted that a claim under section 1 of
the SMRDA is in principle an effective remedy for poor conditions of
detention (see Hristov v. Bulgaria (dec.), no. 36794/03, 18
March 2008; Kirilov v. Bulgaria, no. 15158/02, §§
43-48, 22 May 2008; Shishmanov v. Bulgaria, no 37449/02, §§
58-62, 8 January 2009; Titovi v. Bulgaria, no. 3475/03, § 34,
25 June 2009; Simeonov v. Bulgaria, no. 30122/03, §§
43-47, 28 January 2010; and Georgiev v. Bulgaria (dec.),
no. 27241/02, 18 May 2010). The effectiveness of this remedy is also
apparent from the first set of proceedings brought by the first
applicant (see paragraphs 39-44 above).
- However,
the Court does not consider that this was so in the proceedings
concerning Varna prison, for several reasons.
- Firstly,
it should be noted that the domestic courts made a separate analysis
of each inconvenience claimed by the first applicant and granted his
claims only in part, finding that he had not provided sufficient
evidence of the non-pecuniary damage he had suffered. For example,
they expressly established that the first applicant had been held in
an overcrowded cell with poor ventilation and insufficient lighting
but considered that no mental distress and suffering had been proved
in this respect (see paragraph 15 above). The Court reiterates that
in the case of Iovchev, cited above, §
147, it has already criticised this approach of domestic
courts, remarking that it was unduly formalistic and allowed a large
number of cases involving complaints of emotional distress rather
than physical injury or illness to be dismissed as unsubstantiated.
It does not see any reason to reach a different conclusion in the
present case.
- Secondly,
the Court notes the fragmentation of the domestic courts’
analysis of the conditions of detention. It appears that the domestic
courts regarded each element of those conditions as a separate claim
needing a separate analysis as to its possible impact on the first
applicant’s well-being. This approach suggests, for example,
that the use of a bucket for toilet needs, the quality of food and
the overcrowding of the cell should be assessed independently as
possible sources of distress for the plaintiff, without any
connection between them. The Court finds that this analysis did not
allow the domestic courts to consider the cumulative effects of the
conditions on the first applicant, as required by the Convention (see
Dougoz, cited above, § 46). Such an approach could easily
lead to the conclusion that none of the complaints is, in itself,
serious enough to call for compensation even in cases where the
general impact on the particular prisoner, had it been assessed in
the light of the Convention case-law, would have been found to reach
the threshold under Article 3 of the Convention.
- Thirdly,
there is no indication that the conditions in which the applicant is
being kept in Varna prison have changed, which means that the alleged
violation of Article 3 of the Convention continues uninterrupted to
this day. In those circumstances, and bearing in mind that the first
applicant has been detained for a long period of time and is expected
to remain in prison for a considerable period in the future,
compensation cannot, by itself, be regarded as adequate redress (see
paragraphs 55-56 below).
- Thus,
despite the fact that the first applicant was awarded a certain
amount in non-pecuniary damages, the Court finds that the award of
compensation under the SMRDA in respect of the conditions of his
detention from 6 June 2002 to 26 September 2005 failed to provide him
with adequate redress and deprive him of his victim status.
- The
Government’s first objection must therefore be dismissed.
(b) Exhaustion of domestic remedies
- The
Court further notes that the first applicant did not bring an action
for compensation in respect of the period from 15 March 1999 to 6
June 2002 but brought two further actions in connection with
subsequent periods of detention, from 27 September 2005 to 14
December 2006 and from 15 December 2006 to 23 September 2007,
respectively (see paragraph 16 above). According to the latest
information submitted to the Court, these two sets of proceedings are
still pending.
- The
Court reiterates that following the development of the domestic
case-law since 2003 an action under SMRDA has become an effective
compensatory remedy which must be exhausted in respect of past
periods of detention (see paragraph 46 above). Accordingly, the
applicant could not be reproached for not having attempted this
remedy before 2003. As to the more recent periods, the domestic
proceedings are still pending and nothing suggests that this remedy
would not provide the first applicant an adequate redress.
Nevertheless, the Court finds that a question arises as to whether a
purely compensatory remedy would be sufficient to provide the first
applicant adequate redress at present, seeing that he is still
detained in the same conditions.
- In
three recent cases which concerned persons who continued to be kept
in allegedly poor conditions of detention, the Court dismissed
non exhaustion objections based on their failure to bring or
prosecute to a conclusion claims for damages against the State. It
held that since such claims could result only in awards of
compensation and could not lead to an improvement of the status
quo, they were not a remedy capable of providing adequate redress
(see Sławomir Musiał v. Poland, no. 28300/06,
§§ 77 and 82, ECHR 2009 ... (extracts); Orchowski
v. Poland, no. 17885/04, §§ 108 and 109, ECHR
2009 ... (extracts); and Norbert Sikorski v. Poland,
no. 17599/05, § 116, 22 October 2009). It explained that
remedies for conditions of detention which are of a purely
compensatory nature may be regarded as effective only in respect of
applicants who have been either released or placed in conditions
which meet Convention standards (see Orchowski, § 109,
and Norbert Sikorski, § 116, both cited above). It fully
confirmed that position in Łatak v. Poland ((dec.), no.
52070/08, §§ 77-85, 12 October 2010) and Łomiński
v. Poland (dec.), §§ 68-76, no. 33502/09, 12 October
2010).
- For
the same reason, it can be concluded that as long as the first
applicant continues to be kept in the same conditions, a claim for
damages would not constitute an effective remedy by itself. The
Government have neither shown that the conditions of the first
applicant’s detention have improved, nor referred to any remedy
that might have been available to him for to obtain their
improvement.
The
Government’s second objection must therefore also be dismissed.
- The Court further notes that present complaint is not
manifestly ill founded within the meaning of Article 35 § 3
(a) of the Convention and not inadmissible on any other grounds. It
must therefore be declared admissible.
C. Merits
- Restatements
of the general principles concerning the examination of conditions of
detention under Article 3 may be found in the Court’s recent
judgments in Sławomir Musiał (cited above, §§
85-88), Orchowski (cited above, §§ 119-22) and
Norbert Sikorski (cited above, §§ 126-31).
- The
Court observes that the period of the first applicant’s
detention at Varna prison to be taken into account is from 15 March
1999 to 13 April 2009, the date of the latest information received
from the parties, i.e. ten years and twenty-nine days.
- In
the proceedings under the SMRDA, the domestic courts found that the
conditions in which the first applicant had been detained at Varna
prison had been poor (see paragraph 15 above). In particular, they
found that the first applicant had been held in an overcrowded cell
with insufficient lighting or ventilation, without access to a toilet
or running water during the night, and without regular access to the
bathroom. They further found that the food had been of poor quality.
The Court does not find reasons to question the foregoing findings.
In view of the period of the first applicant’s detention and
taking into account the cumulative effects of these conditions, it
considers that the distress and hardship endured by him exceeded the
unavoidable level of suffering inherent in detention and went beyond
the threshold of severity under Article 3 (see Slavcho Kostov,
cited above, § 54).
- There
has therefore been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLE 3 OF THE CONVENTION
- The
first applicant complained that he had not had effective remedies in
respect of the conditions of his detention. He relied on Article 13
of the Convention, which reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
- Apart
from their objection concerning the exhaustion of the domestic
remedies (see paragraph 37 above), the
Government did not put forward any additional arguments under Article
13.
- The
first applicant pointed out that he had used the available remedy,
namely a claim under the SMRDA. However, referring to the Court’s
judgment in the case of Iovchev v. Bulgaria (no. 41211/98, 2
February 2006), he considered that the domestic courts’
requirement of separate proof for the sustained non-pecuniary damage,
regardless of the fact that they had found the living conditions in
the prison to have been degrading, had deprived this remedy of the
effectiveness it may have had in principle. Furthermore, the first
applicant argued that the compensation he had been awarded was too
low and that the actions brought by him under the SMRDA had not
improved the conditions in which he was detained.
B. The Court’s assessment
- The
Court considers that this complaint is linked to the one examined
above and must therefore likewise be declared admissible.
1. In respect of Sofia prison
- The
Court already found that the claim that the first applicant brought
under the SMRDA in respect of Sofia prison represented an effective
remedy for the conditions in which he had been detained there and
provided him adequate redress (see paragraphs 39-44 above).
- It
follows that there has been no violation of Article 13 in respect of
the conditions in which he had been detained in Sofia prison.
2. In respect of Varna prison
- As
to Varna prison, the Court already concluded that the claim brought
by the first applicant under the SMRDA failed to provide him adequate
redress (see paragraphs 47-51 above). As in Iovchev (cited
above, § 146), the Court considers that as a result of the
domestic courts’ approach the applicant’s claim lost much
of its remedial efficacy. Moreover, it could result only in an award
of compensation and could not lead to an improvement of the status
quo, it was, on its own, not a remedy capable of providing him
with adequate redress. As already observed, remedies for conditions
of detention which are of a purely compensatory nature may be
regarded as effective only in respect of applicants who have been
either released or placed in conditions which meet Convention
standards (see Orchowski, § 109; Norbert Sikorski,
§ 116; Łatak, §§ 77-85; and Łomiński,
§§ 68-76, all cited above). The Court notes that in their
observations the Government stated that they had taken measures to
improve the conditions in Varna prison, without specifying how these
measures had affected prisoners’ situation (see paragraph 37
above). However, they neither argued that these measures had been
taken in reply to the first applicant’s complaints nor pointed
to any particular remedies available to him and capable of leading to
any improvement of the conditions.
- There
has therefore been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE
CONVENTION
- The
applicants complained that the prison authorities monitored the first
applicant’s correspondence with his legal representatives
before the Court – the second and third applicants –
which amounted to a violation of the right to respect for their
correspondence. They further complained that they did not have any
effective domestic remedies in this respect. They relied on Articles
8 and 13 of the Convention.
Article
8 reads:
“1. Everyone has the right to respect
for his ... correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article
13 reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government stated that unjustified monitoring of correspondence by
the administration fell within the scope of the SMRDA, and argued
that they had failed to exhaust the available domestic remedies.
A. Admissibility
- The
Court considers that the question of the effectiveness of the remedy
provided for by the SMRDA, and, accordingly, of whether the
applicants can be considered to have exhausted domestic remedies, as
required by Article 35 § 1 of the Convention, partly relates to
the merits of the applicants’ complaints under Articles 8 and
13 of the Convention. Therefore, to avoid prejudging the latter, both
questions should be examined together. Accordingly, the Court holds
that the question of the exhaustion of domestic remedies should be
joined to the merits of the applicants’ complaints under
Articles 8 and 13.
- The
Court considers furthermore that the present complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention and not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court observes that the first applicant’s incoming and outgoing
correspondence with his lawyers (the second and the third applicants)
was subject to inspection under section 33(1)(c) of the ESA (see
paragraphs 28 29 above). Indeed, the prison authorities
confirmed that the applicants’ correspondence had been
monitored (see paragraph 14 above). In these circumstances, the Court
concludes that there has been an interference with the applicants’
right to respect for their correspondence (see Campbell v. the
United Kingdom, 25 March 1992, § 33, Series A no. 233;
and Petrov v. Bulgaria, no. 15197/02, §
39, 22 May 2008).
- An
interference gives rise to a breach of Article 8 unless it can be
shown that it was “in accordance with the law”, pursued
one or more legitimate aim or aims as defined in paragraph 2 of
Article 8 and was “necessary in a democratic society” to
achieve those aims. However, the Court does not find it
necessary to determine whether the interference was “in
accordance with the law” as it considers that it was in breach
of Article 8 of the Convention in other respects (see Petrov,
cited above, § 41; Konstantin Popov v.
Bulgaria, no. 15035/03, §
16, 25 June 2009; and Radkov v. Bulgaria,
no. 27795/03, § 19, 22 April 2010).
- Concerning
the requirement that the interference be “necessary in a
democratic society” for the achievement of a legitimate aim,
the Court notes that at least seven letters exchanged between the
first applicant and his lawyers, (the second and the third
applicants), were opened and possibly read by the prison
administration (see paragraphs 18-22 above). The administration’s
explanation that they needed to open incoming letters and inspect
them in order to verify whether they were indeed sent by the person
whose name appeared on the envelope is unconvincing. It was not based
on any fact or any security considerations for that matter and
apparently did not concern a concrete suspicion regarding the
applicants but referred to a general hypothetical possibility of
abuse, which the prison administration viewed as sufficient to
justify a policy of systematic control. In reality, the entirety of
prisoners’ incoming and outgoing correspondence, including that
with their lawyers, was subject to inspection under section 33 of the
ESA. The Court reiterates that the prison authorities may open a
letter from a lawyer to a prisoner when they have reasonable cause to
believe that it contains an illicit enclosure which the normal means
of detection have failed to disclose. The reading of such a letter,
on the other hand, should only be permitted in exceptional
circumstances when the authorities have reasonable cause to believe
that the lawyer-client privilege is being abused (see Campbell,
cited above, § 47-48). No such
circumstances were established in the present case. The systematic
monitoring of prisoners’ correspondence with their lawyers by
the authorities in Bulgaria has already been found by the Court to be
in breach of Article 8 (see Petrov, cited above §§
43-45; and Bochev v. Bulgaria, no. 73481/01, §§
94-98, 13 November 2008). The Court does not see any reason to reach
a different conclusion in the present case.
- Insofar
as the respondent Government submitted that the applicants had had a
compensatory remedy under the SMRDA for the violations which had
already occurred, the Court observes that in Petrov, §
65, and Konstantin Popov, § 23,
both cited above, it noted that the
monitoring of the applicants’ correspondence had not resulted
from one individual decision taken by the authorities but directly
from the application of the relevant legislation, and concluded that
there was no violation of Article 13 of the Convention because this
provision did not guarantee a remedy allowing a Contracting State’s
primary legislation to be challenged before a national authority. The
Court does not find reasons to reach a different conclusion in the
present case. It further observes that one of the
prerequisites for a successful claim under the SMRDA is establishing
the wrongfulness of the conduct causing the damage. Therefore, seeing
that the monitoring of the applicants’ correspondence
originated in the provisions of the ESA, it appears that any such
claim would have no prospects of success.
- Against
this background, the Court finds that the
Government’s objection about non-exhaustion of domestic
remedies must be dismissed and concludes that there has been a
violation of Article 8 and no violation of Article 13 of the
Convention.
IV. COMPLAINT UNDER ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLE 8
- The
second and the third applicants complained that they had been
discriminated against as a result of their status as legal
representatives of the first applicant before the Court. They claimed
that section 33(2) of the ESA recognised the right to confidentiality
of correspondence between a prisoner and his defendant in proceedings
pending before the domestic courts, but that no such right to
confidentiality was afforded to legal representatives of applicants
before the Court, which they considered discriminatory. They relied
on Article 14 of the Convention taken in conjunction with Article 8.
Article
8 reads, as relevant:
“1. Everyone has the right to respect
for his ... correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.”
Article
14 reads:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government did not comment.
- The
Court notes that it has already established a violation of the second
and the third applicants’ right to respect for their
correspondence. Article 14 is therefore applicable.
- It
further notes that, pursuant to section 33(1) of the ESA, prisoners
were entitled to send and receive letters within certain quotas,
subject to monitoring. Section 33(2) of the ESA, cited by the second
and third applicants, excluded correspondence with defendants in
proceedings before domestic courts from those quotas but did not
provide for any exception to the rule of general monitoring. The
second and the third applicants did not refer to any domestic court
judgments or doctrinal opinions which offer a different
interpretation of that provision. Thus it does not appear that there
was any difference in treatment between defence attorneys in domestic
proceedings and legal representatives before the Court.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
V. COMPLAINT UNDER ARTICLE 34 OF THE CONVENTION
- The
second and the third applicants complained that the monitoring of the
applicants’ correspondence amounted to a hindrance in the
effective exercise of the first applicant’s right of
application. They relied on Article 34 of the Convention, which
reads, as relevant:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government claimed that the authorities had not hindered in any way
the submission of applications to the Court or the work of
representatives in proceedings before the Court.
- The
Court notes that the first applicant did not himself raise this
complaint before the Court. It was raised by the second and the third
applicant in their application. In any event, the Court can find no
evidence that the first applicant, whose application form and
numerous letters arrived promptly, and who was able to communicate
effectively with the Court since the introduction of his complaints,
suffered any prejudice with regard to the presentation of his
application or that he was in any way frustrated in the exercise of
his right to submit his application.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 4,000 euros (EUR) in respect of non-pecuniary
damage suffered as a result of the breach of Article 3 of the
Convention, stating, in particular, that he had been held in
inadequate conditions of detention for a considerable period of time.
Furthermore, each of the applicants claimed EUR 1,000 in respect of
non-pecuniary damage suffered as a result of the breach of Article 8
of the Convention.
- The
Government contested this claim.
- The
Court considers that the first applicant must have sustained
non-pecuniary damage as a result of the breaches of his rights found
in the case. Taking into account all the circumstances of the case,
and deciding on an equitable basis, the Court, recognising that the
first applicant was awarded EUR 609 in the domestic proceedings,
awards him EUR 4,000 under this head, plus any tax that may be
chargeable on that amount. The Court further
considers that the finding of a violation constitutes sufficient just
satisfaction for any non-pecuniary damage which the second and the
third applicants may have suffered.
B. Costs and expenses
- The
first applicant sought the reimbursement of EUR 2,450 for 35 hours
of legal work by his lawyers in the proceedings before the Court, at
the hourly rate of EUR 70. In support of this claim he presented a
contract and a time sheet. He also claimed EUR 62 for expenses
incurred by his lawyers but did not present any invoices or receipts
in support of his claim. He requested that any award made by the
Court under this head be made payable to his lawyers, Ms K. Boncheva
and Mr M. Ekimdzhiev.
- The
second and the third applicants claimed EUR 15 for expenses incurred
by their lawyer but did not present any invoices or receipts in
support of their claim.
- The
Government considered that the claims were excessive.
- According
to the Court’s case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, regard being had
to the information in its possession and the above criteria,
including to the fact that part of the applicants’ complaints
were rejected and also to the applicants’ failure to provide
all necessary documents, such as invoices or receipts for postage or
office expenses, the Court finds it reasonable to award the sum of
EUR 1,000 to the first applicant, plus any tax that may be
chargeable to him. The sum is to be paid into the bank account of the
first applicant’s representatives, Ms K. Boncheva and Mr M.
Ekimdzhiev. The Court makes no award in respect of the second and the
third applicants under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Decides unanimously to join to the merits the
Government’s objection concerning the exhaustion of domestic
remedies in respect of the complaints concerning the monitoring of
the applicants’ correspondence and the lack of an effective
remedy in that respect, and rejects this objection after having
examined the merits;
2. Declares unanimously admissible the complaints
concerning (a) the first applicant’s detention in allegedly
inadequate conditions of detention at Varna Prison and the
availability of an effective remedy in respect of the conditions of
his detention, and (b) the alleged interference with the applicants’
correspondence by the prison administration and the availability of
an effective remedy in that respect, and the remainder of the
applications inadmissible;
- Holds unanimously that there has been a
violation of Article 3 of the Convention on account of the first
applicant having been detained in inadequate conditions of detention
at Varna Prison;
- Holds unanimously that there has been no
violation of Article 13 of the Convention in respect of the
conditions of the first applicant’s detention in Sofia prison;
5. Holds unanimously that there has been a
violation of Article 13 of the Convention in that the action under
SMRDA for the period from 6 June 2002 to 26 September 2005 had not
provided the applicant an adequate redress and in that the first
applicant had not had an effective remedy to redress the continued
violation under Article 3 of the Convention in respect of the
conditions of his detention in Varna prison;
6. Holds unanimously that there has been a
violation of Article 8 of the Convention;
- Holds unanimously that there has been no
violation of Article 13 of the Convention in respect of the
monitoring of the applicants’ correspondence;
- Holds by six votes to one that the finding of a
violation constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the second and the third
applicants;
9. Holds unanimously
(a) that
the respondent State is to pay the first applicant, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts, to
be converted into Bulgarian levs at the rate applicable on the date
of settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable to
him, in respect of non pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
him, in respect of costs and expenses, to be paid into the bank
account of the first applicant’s representatives, Ms K.
Boncheva and Mr M. Ekimdzhiev;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses by six votes to one the remainder of
the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
