Communicated on 14 November 2018
FIFTH SECTION
Application no. 58400/16
Dimitar Borisov ANGELOV against Bulgaria
and 3 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The four applicants are serving life sentences in different prisons in Bulgaria. According to them, throughout their detention they have been kept in almost permanent isolation and inadequate material conditions, and have been deprived of meaningful activities as a result of the restrictions associated with the prison regimes applied to them.
In particular, the first applicant, Mr Angelov, has been serving a life sentence under the “special regime” since 14 October 2013 in Pazardzhik Prison, having been in detention since 1999 for different offences. He claims that in Pazardzhik Prison he has not had ready access to a toilet and running water, he has not been provided with work, or with other activities aimed at his resocialisation, and that he has had no possibility of doing sport apart from the hourly daily walk in the open air. On an unspecified date in 2016 he brought a claim before the domestic courts under section 1 of the State and Municipality Responsibility for Damage Act (“the SMRDA”), seeking compensation for various periods of detention starting in 1999. The Pazardzhik Administrative Court examined his claim under the SMRDA and dismissed it on 20 July 2016. He challenged that decision before the Supreme Administrative Court and thereafter did not provide information about any developments in those proceedings.
The second applicant has been serving a life sentence under the “special regime” since 1999, when his death sentence imposed in 1990 was commuted to a life sentence by an act of presidential clemency. He claims that his continued isolation in a locked cell, as well as the absence of facilities and time for sport, have caused numerous negative feelings in him, such as fear, depression, emotional instability, hopelessness and lack of trust in public institutions, as well as have resulted in his deteriorated health. His complaint relating to his prolonged isolation in his cell and the lack of ready access to a toilet and running water concerning the period after 1999 was examined by the Court in the case of Radev v. Bulgaria (no. 37994/09, judgment of 17 November 2015), in which it found a violation of Article 3 of the Convention. According to the second applicant, in addition to the above, he did not have adequate medical care, sufficient amount of drinking water and acceptable quality of food, as well as adequate hygiene and fresh air in Varna Prison in the period between 11 January 2011 and 3 September 2012. In 2015 he brought proceedings for damages under section 1 of the SMRDA in connection with these complaints and that period. The Varna Administrative Court partially upheld his claim on 20 October 2015 awarding him 900 Bulgarian levs (about 450 euros). The Supreme Administrative Court confirmed that decision on 16 January 2017.
The third applicant was sentenced to life in prison in 1997. In 2001 he was placed under the “special regime” which was changed to the lighter “severe regime” in 2009. On 20 May 2016 he was moved to Stara Zagora Prison. He claims that he has been kept in overcrowded cells, without a toilet or running water, and that it has not been possible for him to participate in sport, study, work or any other meaningful activities. In 2016 he brought a complaint against the prison administration, alleging that the medical care provided to him had been inadequate. No further details have been given on any developments related to those proceedings.
The fourth applicant has been serving a life sentence since 2002 under the “special regime” in Burgas Prison. In 2015 the regime was changed to the lighter “severe regime”, however, that change had no real effect on his life. He claims that throughout his serving his sentence he has been kept in overcrowded, dirty cells in which artificial lighting has been on without interruption and where he has had no permanent access to running water or a toilet. In addition, he has not been involved in programmes aimed at reforming and resocialisation. On 19 May 2016 he brought proceedings under the SMRDA, seeking damages stemming from the conditions of his detention between 19 May 2011 and 19 May 2016. The Burgas Administrative Court examined the claim under the SMRDA and awarded him 1,400 Bulgarian levs (around 700 euros (EUR)) on 28 December 2016. That decision was upheld in its entirety by the Supreme Administrative Court on 27 February 2018.
B. Relevant domestic law and practice
The relevant domestic law in force before amendments in 2017 to the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”) is set out in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 165-174, ECHR 2014 (extracts)).
An amending Act was published in the State Gazette on 7 February 2017 (ДВ, бр. 13/2017 г.). Most of its provisions came into force the same day and some provisions came into force on 1 May 2017.
It amended a number of provisions of the 2009 Act. In particular, it amended the definition of inhuman and degrading treatment in relation to conditions of detention (amended section 3), and introduced dedicated preventive and compensatory remedies in respect of poor conditions of detention (new sections 276 to 286 of the 2009 Act).
1. Clarification of the definition of inhuman and degrading treatment
Following amendment, section 3 of the 2009 Act, which came into force on 7 February 2017 and set out the general prohibition on subjecting convicted prisoners (and pre-trial detainees) to torture or inhuman or degrading treatment, reads:
“1. Convicted prisoners and pre-trial detainees shall not be subjected to torture or to cruel, inhuman or degrading treatment.
2. Placing [a convicted prisoner or a pre-trial detainee] in unfavourable conditions consisting of a lack of sufficient living space, food, clothing, heating, light, ventilation, medical care, conditions for physical activity, prolonged isolation without opportunities to socialise, unjustified use of restraining devices, as well as other similar actions, omissions or circumstances that demean human dignity or engender fear, helplessness or inferiority, shall also be regarded as a breach of subsection 1.”
2. Special provisions concerning the enforcement of life and whole-life sentences
The explanatory note to the Government bill which led to these specific amendments concerning life sentences indicated that they were required in order to avoid future breaches of Article 3 of the Convention, found in the past by the Court in several cases in respect of Bulgaria, such as Chervenkov v. Bulgaria (no. 45358/04, 27 November 2012), Harakchiev and Tolumov (cited above), Manolov v. Bulgaria (no. 23810/05, 4 November 2014), among others. In particular, such breaches were found as a result of the effects of the conditions of detention under the “special prison regime” on individuals sentenced to life or whole-life sentences, including the complete isolation of that category of prisoners without the prison authorities being able to change or alleviate the effects of the restrictions in the regime for a period of five years after its imposition.
Following the amendment of section 57 to 64a and 66 to 69 of the 2009 Act, it is no longer the sentencing court but the prison authorities which determine the type of correctional facility to which a convicted prisoner is to be committed.
The sentencing court, however, places individuals sentenced to life or whole-life imprisonment to serve the first year of their sentence under the “special regime” (section 57(1)(1) of the 2009 Act).
Subsequent changes from one prison regime to a more lenient one are no longer decided by a special commission attached to each prison, but by the prison governor (amended section 66(1)).
The amended version of section 198(1), which came into force on 7 February 2017, stipulates that, after a life prisoner has served a year of his or her life or whole-life sentence, the prison governor decides whether to continue the application of that regime to him or her, or whether to lift it and apply the lighter regime for which such prisoners are eligible, namely the “severe regime”. The prison governor issues an order to that effect, which has to contain reasons and be based on the reports prepared for that purpose by the head of the department for reform and rehabilitation, the deputy head of security and the prison psychologist. A refusal to change the regime from “special” to “severe” can be challenged by the prisoner before the administrative court within fourteen days of the order being served on him or her. The decision of the court is final.
The prison governor must carry out such an assessment and decide on the continued application of the “special regime” at least once a year (section 198(3)).
According to section 198(5), the prison governor can place prisoners serving life or whole-life sentences to take part together with other prisoners in work, rehabilitation, education, and sports activities, or any other type of activities organised for those categories.
3. New preventive remedy
As set out in the Court’s decision in the case of Atanasov and Apostolov, (no. 65540/16, § 23, decision of 27 June 2017), the new sections 276 to 283 of the 2009 Act, which came into force on 1 May 2017, put in place a dedicated preventive remedy with respect to conditions of detention. Those provisions read:
Section 276
“1. Any convicted prisoner or pre-trial detainee may request:
(1) that any actions or omissions of a sentence-enforcement authority or official that amount to a breach of the prohibition set out in section 3 be discontinued;
(2) that steps be taken with a view to ending or preventing a breach of the prohibition set out in section 3.
2. The absence of a specific statutory obligation to carry out a particular action shall not be a bar to allowing an application under subsection 1 intended to end a breach of section 3.”
Section 277
“1. The application shall be made in writing to the administrative court competent with respect to the place of execution of the sentence or of enforcement of the pre-trial detention.
2. The application may also be lodged through the prison governor or the respective regional or district service for the execution of sentences, which shall forward it to the administrative court competent with respect to the place of execution of the sentence or of enforcement of the pre-trial detention within three days of receiving it, along with information concerning the grounds on which the action or omission has been challenged.
3. The application shall be recorded in a special court register, with a note of the exact time of its receipt and its author.
4. In cases under subsection 1, the court requires the sentence-enforcement authority to provide immediately information about the actions or omissions under challenge.”
Section 278
“Within fourteen days of receiving the application the judge shall verify the actions or omissions whose cessation is being sought, and the grounds for them, through the police, the prosecuting authorities, the ombudsman, an expert, non-governmental organisations, or by any other means.”
Section 279
“1. The court shall examine the application in a public hearing.
2. The hearing shall take place in the presence of the prison governor or the head of the respective regional or district service for the execution of sentences, the [applicant], and his or her representative. Failure by the governor or the applicant’s representative to appear without good cause does not prevent the examination of the case. The case is examined in the [applicant’s] absence if he or she expresses a wish not to attend or his or her presence is impossible for health-related or other good reasons.”
Section 280
“1. The court shall rule in a decision within the time-limit set out in section 278(1).
2. In its decision, the court may:
(1) reject the application;
(2) order the sentence-enforcement authority or the respective official to take specific actions to prevent or end unconditionally the actions or omissions constituting a breach of section 3, and fix a time-limit for that.”
Section 281
“1. The decision may be challenged within three days of its delivery before a three-member panel of the same court.
2. The challenge shall be examined in the manner laid down in Chapter 13 of the Code of Administrative Procedure [which deals with interlocutory appeals] and shall not stay enforcement of the decision.”
Section 282
“The decision shall be enforced in the manner laid down in Chapter 17 of the Code of Administrative Procedure.”
Section 283
“All matters not dealt with in this Chapter shall be governed by the provisions set out in Chapter 15, Part I of the Code of Administrative Procedure.”
In a number of decisions adopted since the introduction of these provisions the administrative courts have upheld applications for injunctions by inmates and ordered the prison authorities, for example, to immediately send an inmate to an external hospital for operation and treatment, to ascertain within a period of ten days whether the necessary dental treatment could be provided in the prison or should be done elsewhere, as well as to put an end to situations such as keeping a (life) prisoner handcuffed to his hospital bed without a prior individualised risk assessment, having insufficient living space in cells, exposure to smoking by inmates sharing the same cell as the applicant, or lack of timely and adequate medical care. In those cases the domestic courts found that they were in breach of the prisoners’ rights under section 3 of the 2009 Act (see разпореждане № 2361 от 18.06.2018г. по адм. д. № 508/2018 на адм. съд Плевен; разпореждане № 661 от 26.07.2018г. по адм. д. № 394/2018 на адм. съд Враца; разпореждане № 3178 от 18.05.2018г. по адм. д. № 1331/2018 на адм. съд Пловдив; разпореждане № 4281 от 26.6.2017г. по адм. д. № 5079/2017 на адм. съд София; разпореждане № 5857 от 24.8.2017г. по адм. д. № 4817/2017 на адм. съд София; определение № 2740 от 27.4.2018г. по адм. д. № 4445/2018 на адм. съд София; разпореждане № 3303 от 28.5.2018г. по адм. д. № 4433/2018 на адм. съд София).
In other decisions the court, ruling on cassation, ordered the lower court to examine on the merits a request by an inmate to have the prison governor determine a schedule for using the bathroom in order to prevent conflict and violence between inmates (определение № 2542 от 9.2.2018г. по к. ч. адм. д. № 379/2018 на адм. съд Варна) and refused a request by a life prisoner serving his sentence under the “severe regime” to be kept separately from life prisoners serving their sentence under the “special regime” (see определение № 518 от 8.2.2018г. по к. адм. н. д. № 44/2018 на адм. съд Варна).
In other decisions still the administrative courts, having examined in detail the merits of the applications for injunctions concerning the provision of specific medical procedures, living space, and the availability of fresh fruit and vegetables in prison, refused the applications on the grounds that the information collected in the case demonstrated that they were without merit (see разпореждане № 1022 от 31.05.2018г. по адм. д. № 496/2018 на адм. съд Пазарджик; разпореждане № 1755 от 30.01.2018г. по адм. д. № 159/2018 на адм. съд Варна; разпореждане № 715 от 9.08.2018г. по адм. д. № 423/2018 на адм. съд Враца; разпореждане № 4608 от 13.07.2018г. по адм. д. № 1892/2018 на адм. съд Пловдив).
In a decision concerning a request under section 276 of the 2009 Act by a (non-life) prisoner serving his sentence under the “special regime” to be allowed to leave his cell three times a day and walk in the corridor for thirty minutes each time, the court rejected the request for the following reasons. The applicant had not showed that he had approached the prison administration with his request prior to bringing his case before the court. In addition, the request could not be granted because of the characteristics of the “special regime” under which he was serving his sentence, which required cells to remain permanently locked and security to be high, and which did not comprise a possibility for walking in the corridor. Finally, allowing such walks to the applicant would be wrong because of the numerous disciplinary offences which he had committed, most of which had been violence-related and, in any event, the applicant benefited from a possibility for regular physical exercise twice a day (see разпореждане № 2135 от 8.05.2018г. по адм. д. № 972/2018 на адм. съд Бургас).
Chapter 17 of the Code of Administrative Procedure governs, among other things, the enforcement of obligations incumbent upon the administrative authorities. Article 290 deals with enforcement of the duty of officials to carry out non-substitutable actions due under, inter alia, judicial decisions. If the relevant official culpably fails to comply with a decision requiring action to be taken, he or she can be fined between 50 and 1,200 Bulgarian levs per week until he or she carries it out (Article 290 § 1). Each failure to comply with a decision requiring inaction may result in a fine in the same range (Article 290 § 2). The fines are imposed by the competent enforcement authority, which in such cases is the bailiff’s office (Article 290 § 3 read in conjunction with Article 271 § 1 (2)).
4. New compensatory remedy
As set out in the Court’s decision in the case of Atanasov and Apostolov, (no. 65540/16, §§ 26–28, decision of 27 June 2017), the new sections 284 to 286 of the 2009 Act, which came into force on 7 February 2017, put in place a dedicated compensatory remedy with respect to conditions of detention. Those provisions read:
Section 284
“1. The State shall be liable for any damage caused to convicted prisoners or pre-trial detainees by the special authorities for the enforcement of sentences as a result of breaches of section 3.
2. In cases under section 3(2), the court shall take into account the cumulative effect of the conditions in which the person concerned has served the sentence of imprisonment or has been subjected to the pre-trial detention measure, their duration, as well as other circumstances which may be of relevance for correctly disposing of the case.
3. The court shall require the special authorities for the enforcement of sentences to provide information of relevance for correctly disposing of the case. If they do not comply with that obligation, the court may regard the respective facts as proven.
4. The court may of its own motion call officials from the respective penal establishment, or any other person whose testimony might shed light on the facts of the case.
5. In cases under subsection 1, non-pecuniary damage shall be presumed until proved otherwise.”
Section 285
“1. Claims under section 284(1) shall be examined in the manner laid down in Chapter 11 of the Code of Administrative Procedure [which governs the procedure applicable to claims for damages against the administrative authorities].
2. The claim shall be brought before the administrative court competent with respect to the place where the damage occurred or the current address of the aggrieved person, [and] against the authorities under section 284(1) whose decisions, actions or omissions have caused the damage.
3. Claims under this part shall be subject to a simple [court] fee in the amount set out in the tariff under Article 73 § 3 of the Code of Civil Procedure. Court costs and enforcement costs need not be deposited in advance.”
Section 286
“1. All cases under this part shall be examined with the participation of a public prosecutor.
2. If it dismisses the claim in its entirety, the court shall order the claimant to bear the costs of the proceedings. Costs will also be borne by the claimant if he or she fully withdraws the claim or fully renounces it.
3. If it allows the claim in whole or in part, the court shall order the defendant to bear the costs of the proceedings and to reimburse to the claimant the [court] fee paid by him or her. The court shall order the defendant to pay the claimant the fees of his or her counsel, if he or she had any, in proportion to the part of the claim which has been allowed.”
In a number of decisions adopted since the introduction of these provisions, the administrative courts have upheld requests for compensation by inmates in relation to past breaches of section 3 of the 2009 Act as a result of inadequate conditions of detention, including lack of sufficient physical activity (see решение № 497 от 23.07.2018г. по адм. д. № 814/2017 на адм. съд Плевен; решение № 1563 от 3.08.2018г. по адм. д. № 3469/2017 на адм. съд Бургас; решение № 1815 от 10.08.2018г. по адм. д. № 3729/2017 на адм. съд Пловдив; решение № 206 от 17.07.2018г. по адм. д. № 203/2018 на адм. съд Стара Загора; решение № 232 от 2.08.2018г. по адм. д. № 81/2017 на адм. съд Стара Загора; решение № 300 от 31.07.2018г. по адм. д. № 264/2018 на адм. съд Враца; решение № 302 от 31.07.2018г. по адм. д. № 257/2018 на адм. съд Враца; решение № 1548 от 27.07.2018г. по адм. д. № 463/2018 на адм. съд Бургас; решение № 585 от 24.07.2018г. по адм. д. № 480/2018 на адм. съд Хасково; решение № 223 от 24.07.2018г. по адм. д. № 21/2018 на адм. съд Стара Загора).
In respect of calculating the limitation period applicable to such situations, the courts held that the five-year general limitation period for tort under Bulgarian law started to run from the moment when the situation complained of (inadequate conditions of detention) comes to an end (see, among other authorities, решение № 206 от 17.07.2018г. по адм. д. № 203/2018 на адм. съд Стара Загора). Thus, in situations where inmates have been freed after serving a sentence, the five-year period started to run from their release (решение № 1563 от 3.08.2018г. по адм. д. № 3469/2017 на адм. съд Бургас).
As regards how far back prisoners can retrospectively claim damages for poor detention conditions under the new remedy, the courts have varied in their findings: some, appearing to consider inadequate conditions of detention as a continuing situation, examined them irrespective of their duration or whether they concerned periods dating back more than five years (see решение № 206 от 17.07.2018г. по адм. д. № 203/2018 на адм. съд Стара Загора; решение № 1815 от 10.08.2018г. по адм. д. № 3729/2017 на адм. съд Пловдив) while another court held that compensation claims were only admissible for a period of five years back in time from the date of bringing the claim (решение № 1667 от 6.08.2018г. по адм. д. № 2924/2015 на адм. съд Варна).
The domestic courts have also delivered reasoned refusals to award compensation, following a detailed examination and finding that the circumstances at the origin of the claim were not proven (see решение № 175 от 6.08.2018г. по адм. д. № 113/2018 на адм. съд Кюстендил; решение № 1019 от 14.05.2018г. по адм. д. № 113/2018 на адм. съд Варна; решение № 176 от 7.08.2018г. по адм. д. № 128/2018 на адм. съд Кюстендил; решение № 120 от 3.08.2018г. по адм. д. № 92/2018 на адм. съд Габрово).
Paragraph 49 of the amending Act’s transitional and concluding provisions, which prescribes the manner in which already pending claims for damages in relation to poor conditions of detention – which were previously examined under section 1(1) of the SMRDA – are to be examined following the introduction of the new compensatory remedy, reads:
“Claims in relation to damage caused to convicted prisoners or pre-trial detainees as a result of detention in poor conditions lodged before this Act has entered into force shall be examined in the manner laid down in section 284(1).”
C. Relevant international materials
The relevant parts of the reports of the Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) are set out in the Court’s judgment in the case of Harakchiev and Tolumov (cited above, §§ 165-74).
In addition, in its latest report on its visit to Bulgaria between 25 September and 6 October 2017, which was made public on 4 May 2018, the CPT observed the following:
“87. Concerning the regime, the CPT is concerned to note that progress has been very modest indeed since the 2015 ad hoc visit. [On a positive note, the delegation was satisfied that the application of security measures (such as handcuffs) to life-sentenced prisoners was exceptional and based on an individual risk assessment.] Admittedly, some life-sentenced prisoners [– nine in Burgas, eight in Sofia and two in Varna –] had benefitted from a transfer to the general accommodation (where they were no more segregated from other sentenced prisoners on closed regime), but still most of the lifers were spending the bulk of their time, alone or with one fellow prisoner, in their cells, save for association periods during outdoor exercise (one to two hours per day) and a few (up to 3) hours of joint leisure activities such as playing table tennis or using the gym. As previously, only very few lifers could work – in practice, only those who were no longer accommodated in high-security units – and education opportunities were limited to correspondence courses. Inside their cells, life-sentenced prisoners could have TV and/or radio sets, books, newspapers and (sometimes) DVD players and PlayStation.
The Committee remains of the view that the regime for life-sentenced prisoners in Bulgaria should be fundamentally reviewed, so as to include a structured programme of constructive and preferably out-of-cell activities; social workers and psychologists should be proactive in working with life-sentenced prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. Consequently, the CPT calls upon the Bulgarian authorities to further develop the regime for life-sentenced prisoners, in particular by providing more communal activities (including access to work and education). The Committee also calls upon the Bulgarian authorities to ensure, in the light of recent legal amendments, [in particular to the Execution of Punishments and Pre-Trial Detention Act 2009,] that the segregation of lifers is always based on an individual risk assessment and is applied for no longer than strictly necessary.”
COMPLAINTS
All four applicants complain under Article 3 of the Convention of inhuman and degrading conditions of detention, almost permanent isolation and lack of meaningful activities for physical and mental stimulation.
In addition, the first applicant complains in particular of overcrowding in the cell in which he was detained between 23 October 2012 and 4 November 2013 in Plovdiv Prison. The second applicant makes specific complaints about lack of adequate medical care, insufficient amount of drinking water and poor quality food, as well as inadequate hygiene and lack of fresh air in Varna Prison, in the period between 11 January 2011 and 3 September 2012. The fourth applicant complains specifically about the excessively low amount of damages awarded to him in the domestic proceedings he had brought in connection with his conditions of detention.
The first, third and fourth applicants also complain that they did not have an effective remedy in relation to their complaints under Article 3 of the Convention, contrary to the requirement of Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the applicants exhaust domestic remedies as required by Article 35 § 1 of the Convention?
2. Have the applicants been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, as a result of the effects on them of the restrictions stemming from the prison regime(s) under which they have been detained, the material conditions of their detention and the lack of meaningful activities?
3. Did the first, third and fourth applicants have at their disposal effective domestic remedies in respect of their complaints under Article 3 of the Convention as required under Article 13 of the Convention?
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of detention
Represented by
Nationality
1
58400/16
18/09/2016
Dimitar Borisov ANGELOV
31/03/1982
Pazardzhik
Valeri Stoyanov STOYANOV
BGR
2
62942/16
25/10/2016
Kamen Sashev RADEV
20/09/1969
Varna
Maria Hristova KIROVA
BGR
3
63254/16
31/10/2016
Asen Dimov ILIEV
02/03/1961
Pazardhzik
Valeri Stoyanov STOYANOV
BGR
4
65417/16
09/11/2016
Neron-Aleksandar Yurievich POGOSYAN-AHENOBARB
03/12/1965
Burgas
Valeri Stoyanov STOYANOV
BGR, RUS
Full & Egal Universal Law Academy