FIFTH SECTION
DECISION
Applications nos. 65540/16 and 22368/17
Angel Dimitrov ATANASOV against Bulgaria and
Aleksandar Atanasov APOSTOLOV against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 27 June 2017 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above applications lodged on 21 February and 16 March 2017 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first application (no. 65540/16), Mr Angel Dimitrov Atanasov, is a Bulgarian national who was born in 1975 and is currently detained in Stara Zagora Prison. He was not legally represented.
2. The applicant in the second application (no. 22368/17), Mr Aleksandar Atanasov Apostolov, is a Bulgarian national who was born in 1984 and lives in Plovdiv. He was represented before the Court by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The case of Mr Atanasov
4. On 2 December 2016 Mr Atanasov, having been transferred from Germany to Bulgaria under a European Arrest Warrant, was placed in Stara Zagora Prison to serve a sentence of nine months’ imprisonment.
5. He alleged that the cell in the prison’s reception unit in which he spent fourteen days together with three other inmates had measured between 7.5 and 8 sq. m.
6. After that initial period, Mr Atanasov was transferred to another cell, which measured 16 or 17 sq. m and which he had to share with seven other inmates. He had access to a shower twice a week, for three or four minutes maximum because of the high number of inmates who had to take showers at the same time.
2. The case of Mr Apostolov
7. On 23 November 2015 Mr Apostolov was placed in Plovdiv Prison to serve a sentence of four years’ imprisonment. On 21 September 2016 he was granted conditional early release and was let out of prison.
8. Mr Apostolov alleged that during his time in Plovdiv Prison he had been kept in three cells successively, each measuring 24 sq. m, which he had had to share with eleven to fifteen other inmates. The cells had been dilapidated, with peeling and mouldy walls and small windows. They had been equipped with two- or three-level bunk beds and lockers which had had to be shared by the inmates. The in-cell sanitary units had not had flushing mechanisms, which meant that the inmates had had to wash away excrement with a water hose.
9. Unlike Mr Apostolov, most of his cellmates were smokers, and the constant presence of cigarette smoke seriously inconvenienced him. He could only shower twice a week, for a very limited time. During the rest of the time, he had no access to hot water. Outdoor exercise was limited to one hour a day.
10. The food was poor, and the prison administration seized some of the parcels sent to Mr Apostolov by his relatives without justification, with the result that he had to buy food and toiletries from the prison shop at inflated prices.
11. Medical care in the prison was inadequate: it was difficult to access a doctor and even basic medicine was only available if sent by inmates’ relatives. On an unspecified date during his stay in the prison, Mr Apostolov suffered an anaphylactic shock, but was not allowed to see a doctor. As a result of the poor conditions, he contracted conjunctivitis and was treated in hospital; he did not specify whether that had been a prison hospital or a civilian one, or the dates of his stay there.
B. Relevant domestic law
12. The relevant domestic law before the 2017 amendments to the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”), detailed below, was set out in Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, §§ 92-139, 27 January 2015).
13. On 3 October 2016 the Government introduced in Parliament a bill to amend the 2009 Act. The explanatory notes to the bill said that most of the amendments which it proposed were required to comply with Neshkov and Others (cited above), and discussed in detail how the various solutions proposed were meant to fix the issues noted in that pilot judgment.
14. The bill underwent first reading on 7 December 2016 and second reading on 25 January 2017, when it was enacted. The 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. Some provisions came into force on 1 May 2017, and a few, which concern the recruitment and career of prison officers and have no direct bearing on the case at hand, came into force on 1 July 2017.
15. The Act amended a number of provisions of the 2009 Act and other statutes and codes. In particular, it amended the definition of inhuman and degrading treatment in relation to conditions of detention (amended section 3); laid down with immediate effect a requirement that each inmate have at least 4 sq. m of living space (repeal of section 43(3) and addition of new section 43(4)); introduced more flexibility in the allocation and re-allocation of convicted prisoners to correctional facilities (amended sections 57 to 64a) and in the imposition and modification of prison regimes (amended sections 66-69); widened the scope for early conditional release (amended Article 70 of the Criminal Code and new Articles 437 § 2 and 439a of the Code of Criminal Procedure); 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 resulting from conditions of detention
16. Following the amendment, section 3 of the 2009 Act, which came into force on 7 February 2017 and sets 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 may 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, possibilities for exercise, long-term isolation without a possibility to communicate, 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. Introduction with immediate effect of a requirement of 4 sq. m of living space per inmate
17. As a result of the amendment, section 43(3) of the 2009 Act, which, read in conjunction with paragraph 13 of the Act’s transitional and concluding provisions, postponed until 2019 the entry into force of the minimum requirement of 4 sq. m of living space per inmate, was repealed. The new section 43(4), which came into force on 7 February 2017, laid down that requirement with immediate effect:
“The minimum living space in sleeping quarters for each inmate cannot be less than 4 sq. m. The Chief Directorate for the Execution of Punishments shall maintain an up-to-date database of correctional facilities’ capacities.”
3. Introduction of more flexibility in the allocation of convicted prisoners to correctional facilities, in their transfer from one facility to another, and in the imposition and modification of prison regimes
18. It appears from the explanatory notes to the Government bill which led to the amending Act and from the terms of the changed provisions that the amendments to sections 57 to 64a and 66 to 69 of the 2009 Act, which came into force on 7 February 2017, were meant to enable more convicted prisoners to be placed in open-type prison hostels rather than prisons or closed-type prison hostels, both when they are first imprisoned in execution of their sentence and when they are subsequently transferred from one correctional facility to another.
19. Following the amendment, 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. In addition, under the new rules a broader category of convicted prisoners, including some types of repeat offenders, can be placed under the “general regime” and thus be committed in open-type prison hostels (new section 57(1)(2)(b) and (c) and (1)(3) and amended section 58(3)), which was not the case previously. Sentencing courts were also given wider discretion in relation to the prison regime under which they can place the convicted prisoner; they may for instance place prisoners who should normally serve their sentences under the “severe regime” under the “general regime” if they are not dangerous (new section 57(3)). Subsequent changes from one prison regime to a more lenient one are no longer within the remit of a special commission attached to each prison but of the prison governor (amended section 66(1)).
20. Under the amended section 58(1), in choosing to which correctional facility to commit a convicted prisoner, the prison authorities must also take into account the requirement that each inmate have at least 4 sq. m of living space (see paragraph 17 above). Subsequent transfers from one prison to another or from a prison to a closed-type prison hostel can also be used to ensure compliance with that requirement (new section 62(1)(5) and amended section 63(1)). Transfers from prisons or closed-type prison hostels to open-type prison hostels, though chiefly subject to served-time and good-conduct requirements, must also take into account the requirement that each inmate have at least 4 sq. m of living space (amended section 64(1) and (2)).
21. Under the amended section 64(1), a broader category of convicted prisoners may be transferred from a prison or a closed-type prison hostel to an open-type prison hostel after serving a part of their sentence.
4. Widening of the scope for early conditional release
22. With the repeal of paragraphs 2 and 3 of Article 70 of the Criminal Code with effect from 7 February 2017, all convicted prisoners, rather than some categories only, may become eligible for conditional early release. Also, prisoners may now directly apply for such release (new Article 437 § 2 of the Code of Criminal Procedure). In assessing the application, the court must have regard to all possible sources of information about the prisoner’s conduct, and consider all circumstances of his or her case (new Article 439a of the same Code).
5. New preventive remedy
23. 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. They 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 must 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 shall require the sentence-enforcement authority to provide information immediately about the actions or omissions under challenge.”
Section 278
“Within fourteen days of receiving the application the judge may 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, or nongovernmental 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. The governor’s, the head’s or the applicant’s representative’s failure to appear without good cause shall not prevent the examination of the case. The case shall be examined in the [applicant’s] absence if he or she expresses his or her 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 by means of 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 the decision’s enforcement.”
Section 282
“The decision is subject to execution 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.”
24. Chapter 15, Part I of the Code of Administrative Procedure, which consists of Articles 250 to 255, governs proceedings for injunctions against the administrative authorities. Its relevant provisions have been set out in Neshkov and Others (cited above, § 137).
25. Chapter 17 of the same Code governs, among other things, the enforcement of obligations incumbent upon the administrative authorities. Article 290 deals with the 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 prescribing action, 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 prescribing 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 a bailiff’s office (Article 290 § 3 read in conjunction with Article 271 § 1 (2)).
6. New compensatory remedy
26. 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. They read:
Section 284
“1. The State shall be liable for 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 shall 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.”
27. Paragraphs 47 and 48 of the amending Act’s transitional and concluding provisions, which make the compensatory remedy equally applicable to some categories of former inmates, read:
Paragraph 47
“Convicted prisoners and pre-trial detainees who have been released up to six months before this Act comes into force may bring a claim under section 284(1).”
Paragraph 48
“Convicted prisoners and pre-trial detainees who have been released before this Act comes into force and whose complaints relating to conditions of detention in breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms ... have been declared inadmissible by a decision of the European Court of Human Rights on the basis that the new domestic remedy has not been resorted to, may bring claims under section 284(1). Those claims must be brought within six months of the [persons concerned] having been notified by the Registry of the European Court of Human Rights of such a decision.”
28. 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 State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”) – 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 Council of Europe materials
1. December 2016 action plan of the Bulgarian Government
29. In an action plan (DH-DD(20017)5) which they submitted to the Committee of Ministers in December 2016 in connection with the execution of Neshkov and Others (cited above), the Bulgarian Government set out the then impending amendments to the 2009 Act (see paragraphs 15-28 above). They also said that a new closed-type prison hostel with a capacity to hold ninety inmates had just been opened in Razdelna, and that a new closed-type prison hostel with a capacity to hold 450 inmates was about to open in Debelt. Those two hostels would be able to house prisoners from Varna and Burgas Prisons, which were the most overcrowded in the country. In an addendum to the plan presented in January 2017 (DH-DD(20017)5-add), the Government said that the opening of the prison hostel in Debelt was imminent. (It was in fact opened on 10 March 2017). The plan also detailed the works already carried out in some other correctional facilities.
30. According to a table appended to the plan, on 1 December 2016 the capacity of the eleven prisons for men in Bulgaria, estimated on the basis of 4 sq. m of living space per inmate, was 4,944 inmates, and they held 4,973 inmates. The capacity of the five closed-type prison hostels for men, including the new one in Razdelna, was 935 inmates, and they held 891 inmates. The capacity of the fifteen open-type prison hostels for men was 1,980 inmates, and they held 1,174 inmates.
31. For its part, the capacity of Sliven Prison (for women), also estimated on the basis of 4 sq. m of living space per inmate, was 322 inmates, and it held 163 inmates. The capacity of the two open-type prison hostels for women was seventy-three inmates, and they held fifty-one inmates.
32. The capacity of the correctional home for male juvenile offenders in Boychinovtsi was 261 inmates, and it held twenty-eight inmates. The capacity of the correctional home for female juvenile offenders in Sliven was twenty-eight inmates, and it was empty.
33. According to another table appended to the plan, on 15 December 2016 the capacity of the twenty-nine investigation detention facilities, also estimated on the basis of 4 sq. m of living space per inmate, was 1,090 detainees, and they held 979 detainees.
2. March 2017 decision of the Committee of Ministers
34. At its 1280th meeting, held on 7-10 March 2017, the Committee of Ministers examined the situation in Bulgarian correctional and pre-trial detention facilities and the above-mentioned amendments to the 2009 Act. It adopted the following decision (CM/Del/Dec(2017)1280/H46-9) (cited to the extent that it is relevant):
“The Deputies
1. noted with satisfaction that an important legislative reform ha[d] recently been adopted in response to the pilot judgment Neshkov and Others and the public statement of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment of 26 March 2015; strongly encouraged the authorities to continue their efforts to implement all the promising measures they have indicated;
2. noted in this respect that the recently adopted domestic remedies seem to comply with the main requirements of the Neshkov pilot judgment and invited the authorities to follow closely their functioning in practice; noted, however, that further progress is needed with improving conditions of detention and reducing prison overcrowding to ensure the proper functioning of the preventive remedy;
3. as concerns prison overcrowding, invited the authorities rapidly to implement the measures foreseen in the recent legislative reform, as well as to bring into operation the Debelt [prison] hostel; recalled their invitation to the authorities to provide information also on the impact of the measures adopted to facilitate access to out-of-cell activities;
4. as concerns material conditions, noted with interest the information related to the renovation work accomplished in 2016 and invited the authorities to proceed rapidly with the urgent renovations still needed and to secure adequate funding for this purpose in 2017;
...”
COMPLAINTS
35. Both applicants complained under Article 3 of the Convention that the conditions of their detention in, respectively, Stara Zagora Prison in late 2016 and Plovdiv Prison in 2015-16 had amounted to inhuman and degrading treatment.
36. Mr Apostolov also complained under Article 13 of the Convention that he did not have an effective domestic remedy in respect of his complaint under Article 3.
THE LAW
A. Joinder of the applications
37. In view of the similarity of the issues raised by the two applications, it is appropriate to join them (Rule 42 § 1 of the Rules of Court).
B. Complaint under Article 3 of the Convention
38. In respect of their complaint that the conditions of their detention had amounted to inhuman and degrading treatment the applicants relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Pilot-judgment procedure
39. In Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, §§ 268-71, 27 January 2015), the Court found that poor conditions of detention in Bulgarian correctional facilities amounted to a systemic problem under Article 3 of the Convention which called for the application of the pilot-judgment procedure. The problem was due to a plethora of legal, organisational and economic factors, and its resolution threw up issues which surpassed the Court’s judicial function. The Court therefore abstained from giving specific indications on how to solve it (ibid., §§ 272 and 274). It nevertheless highlighted two issues that Bulgaria inevitably needed to tackle when executing the judgment, and pointed out possible ways of dealing with them. The first was overcrowding, which could be fixed by a combination of measures including the construction of new correctional facilities, better allocation of inmates in existing facilities, and a reduction of the number of people serving custodial sentences (ibid., § 276). The second was material conditions and hygiene in dilapidated and old prison buildings, which could be set right either by carrying out renovation works or by replacing those buildings with new ones (ibid., § 277).
40. The related systemic problem under Article 13 of the Convention – which consisted of a lack of effective preventive and compensatory remedies in respect of poor conditions of detention – appeared to be due chiefly to the statutory law and its interpretation by the Bulgarian administrative courts. Its resolution therefore required specific changes in the Bulgarian legal system (ibid., §§ 273 and 279), and the Court suggested possible ways of reforming that system with a view to putting in place such remedies (ibid., §§ 281-89).
41. On that basis, the Court held that, within eighteen months of the date on which the judgment became final, Bulgaria had to put in place a combination of effective preventive and compensatory remedies in respect of conditions of detention that complied fully with the requirements laid down in the judgment (ibid., § 290 and point 7 (a) of the operative provisions).
42. With a view to the execution of the judgment, in October 2016 the Bulgarian Government laid before the Parliament a bill meant to put right the issues noted by the Court (see paragraph 13 above). The bill was enacted in January 2017 and came into force, in its relevant parts, on 7 February and 1 May 2017 (see paragraph 14 above).
43. At the same time, the Bulgarian authorities carried out a programme of works in correctional facilities, refurbishing many of them and putting into operation two new closed-type prison hostels with a total capacity of 540 inmates (see paragraph 29 above). As a result of that, and of the drop in the number of prisoners in the country (compare the figures set out in paragraphs 30-33 above with those in Neshkov and Others, cited above, §§ 89, 143 and 219), the overcrowding in some parts of the correctional system noted in that case (ibid., §§ 269-70) has noticeably receded.
2. Exhaustion of domestic remedies
44. In view of those developments, the Court must examine whether the new remedies created as a result of the above-mentioned amendment of the 2009 Act are effective and comply with the precepts set out in Neshkov and Others (cited above), and whether applicants, such as Mr Atanasov and Mr Apostolov, who were or are currently detained in correctional or pre-trial detention facilities in Bulgaria, should have recourse to those remedies in order to comply with Article 35 § 1 of the Convention.
45. The principles governing the exhaustion of domestic remedies put in place in response to a pilot judgment are by now well-settled (see, among other authorities, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, §§ 69-70 and 87-88, ECHR 2010; Valcheva and Abrashev v. Bulgaria (dec.), nos. 6194/11 and 34887/11, §§ 88-91 and 122, 18 June 2013; and Stella and Others v. Italy (dec.), nos. 49169/09 and 10 others, §§ 38-41, 16 September 2014). One point to be mentioned specifically is that although the availability of effective domestic remedies is normally assessed by reference to the date of lodging of the application, this rule is subject to exceptions if this is justified by the circumstances of the case; in particular, when the remedy at issue has been put in place in response to a pilot judgment of the Court.
46. The characteristics of a system of effective remedies with respect to inhuman and degrading conditions of detention are also well-settled. They were set out in Neshkov and Others (cited above, §§ 180-91, with further references).
47. The new remedies must be examined in the light of those principles. Since they have just become available, their assessment must necessarily be based solely on the statutory provisions which govern them rather than their operation in practice.
(a) Preventive remedy under sections 276 to 283 of the 2009 Act
48. The preventive remedy under new sections 276 to 283 of the 2009 Act consists in a possibility for an inmate to seek to enjoin the prison authorities to refrain from actions that breach section 3 of the 2009 Act or to take action to end or prevent such a breach (see paragraph 23 above). Subsection 3(1) proscribes, in general terms, subjecting detainees to torture or cruel, inhuman or degrading treatment, and subsection 3(2) makes it plain that this general prohibition encompasses the various ways in which conditions of detention can fall short of the requirements of Article 3 of the Convention (see paragraph 16 above). The remedy is thus meant to address directly the types of issues which come before the Court in cases of that kind.
49. The remedy proceedings are heard before an administrative court, which provides guarantees of independence and impartiality, as well as the panoply of safeguards available in adversarial judicial proceedings.
50. The procedural provisions governing the remedy are meant to make it simple to use. The manner in which the competent domestic court must examine the case does not place an undue evidential burden on the inmate; on the contrary, the court must establish the facts of its own motion by resorting to all possible sources of information. In as much as there is a burden of proof, it is on the defendant authority, which must itself provide the court with information about the actions or omissions challenged by the inmate.
51. The competent domestic court has to examine the case at a public hearing and in the presence of the inmate, unless he or she either expressly waives that right or is unable to attend for a good reason. The inmate’s effective participation in the proceedings is thus ensured.
52. The remedy is also meant to be speedy. If the application is lodged directly with the court, it must rule on it within fourteen days of receiving it. If it is lodged through the prison authorities, they must forward it to the court within three days, which means that in that case the inmate is entitled to expect a decision within seventeen days of lodging the application. The slowness with which generic injunction proceedings under Articles 250 § 1 and 256-57 of the Code of Administrative Procedure sometimes unfold was one of the three reasons why in Neshkov and Others (cited above, § 209 in fine) the Court found them ineffective with respect to poor conditions of detention. The Bulgarian administrative courts will therefore have to be careful to comply strictly with the above time-limits, and dispose of such cases even more quickly if the issues of which the inmate complains call for particular alacrity.
53. In examining the case, the competent domestic court must have regard to all issues set out in section 3(1) and (2) of the 2009 Act (see paragraph 16 above), and the absence of a specific statutory obligation for the prison authorities to carry out a given action does not prevent the court from ordering them to take measures to remedy the situation aggrieving the inmate. This statutory provision is apparently meant to counter the Bulgarian administrative courts’ hitherto reluctance to grant injunctions in the absence of specific statutory obligations for the prison authorities, which was the second of the three reasons why in Neshkov and Others (cited above, § 209) the Court found that generic injunction proceedings under Articles 250 § 1 and 256-57 of the Code of Administrative Procedure were not an effective remedy with regard to poor conditions of detention.
54. If well-founded, the application must result in the granting of an injunction to the prison authorities to take, within a certain time, specific steps to prevent or end the breach of section 3 of the 2009 Act. A challenge by those authorities against the injunction does not stay its enforcement. If they fail to comply with it, it can be enforced against them by means of fines imposed on the recalcitrant officials (see paragraph 25 above).
55. In view of the improvement of the overcrowding situation in Bulgarian correctional and pre-trial detention facilities (see paragraphs 30-33 above) and the likelihood that this situation will remain manageable as a result of the legislative changes relating to prison regimes, the allocation of convicted prisoners to the various types of correctional facilities and their transfer between such facilities, and conditional early release (see paragraphs 19-22 above), such injunctions do not at this juncture appear hard or impossible to comply with in cases in which they seek to overcome overcrowding (see Stella and Others, cited above, §§ 50-52). The severe overcrowding in some parts of the Bulgarian correctional system, with most prisons and closed-type prison hostels providing less than 4 sq. m of living space per inmate, was the third reason why in Neshkov and Others (cited above, §§ 210-11) generic injunction proceedings under Articles 250 § 1 and 256-57 of the Code of Administrative Procedure were found ineffective.
56. In sum, in view of the characteristics of the preventive remedy under new sections 276 to 283 of the 2009 Act and the general context in which it is expected to operate, at this point it appears as an effective means to prevent or end breaches of Article 3 of the Convention resulting from poor conditions of detention which complies with the criteria set out in Neshkov and Others (cited above). It also appears to offer a reasonable prospect of redress.
57. The manner in which the Bulgarian courts deal with such cases, and the extent to which the prison authorities comply with the injunctions against them, may of course affect the Court’s conclusion on that point (see Stella and Others, cited above, § 55 in fine).
(b) Compensatory remedy under sections 284 to 286 of the 2009 Act
58. The compensatory remedy under the new sections 284 to 286 of the 2009 Act consists of a possibility for an inmate or a former inmate to seek damages for a breach of section 3 of that Act (see paragraphs 16 and 26 above). It is thus meant to address directly the types of issues confronted by the Court in cases under Article 3 of the Convention relating to conditions of detention. The lack of clarity on that point was one of the reasons why in Neshkov and Others (cited above, § 195) the Court found that a claim for damages under section 1(1) of the 1988 Act was not an effective remedy with respect to poor conditions of detention.
59. Like the preventive one, the compensatory remedy proceedings are heard before an administrative court. This provides guarantees of independence and impartiality, as well as the panoply of safeguards available in adversarial judicial proceedings.
60. The bringing of the claim is – as was the case previously, when inmates could seek compensation for poor conditions of detention under section 1(1) of the 1988 Act (see Sabev v. Bulgaria, no. 27887/06, § 66, 28 May 2013) – subject to a simple court fee, and it is not necessary to deposit court costs in advance. Claimants have to bear the defendant authority’s costs only if their claims are dismissed or withdrawn in full, and successful claimants are able to recoup the sums which they have paid for court costs and fees even if the claim is only allowed in part. They can also obtain reimbursement of any sums incurred for the services of counsel, in proportion to the part of the claim which has been allowed.
61. The procedural provisions governing the remedy are meant to make it simple to use. The manner in which the court must examine the case does not place an undue evidentiary burden on the inmate; on the contrary, the court must establish the facts of its own motion by resorting to all possible sources of information. In as much as there is a burden of proof, it is on the defendant authority: it must present to the court all relevant information, and its failure to do so may lead to the drawing of adverse inferences. The Bulgarian administrative courts’ hitherto overly rigorous application of the principle affirmanti incumbit probatio in cases brought by inmates under section 1(1) of the 1988 Act was another reason why in Neshkov and Others (cited above, § 196) the Court found that a claim for damages under that provision was not an effective remedy with respect to conditions of detention.
62. The criteria set out in section 284(2) and (5) read in conjunction with section 3(1) and (2) of the 2009 Act for examining inmates’ claims appear to be fully in line with the principles flowing from the Court’s case-law under Article 3 of the Convention, including that conditions of detention and their effect on the inmate must be assessed as a whole – and be regarded as a continuing situation rather than a string of unrelated actions and omissions – and that poor conditions of detention must be presumed to cause non-pecuniary damage to those held in them. The previous failure of the Bulgarian administrative courts to assess such conditions in terms of their cumulative impact on inmates and by reference to the general prohibition of inhuman and degrading treatment, and to accept that poor conditions of detention must be presumed to cause non-pecuniary damage, was also among the main reasons why in Neshkov and Others (cited above, §§ 197-98 and 203-04) the Court found that a claim for damages under section 1(1) of the 1988 Act was not an effective remedy with respect to conditions of detention.
63. At this point, nothing suggests that the Bulgarian courts will be unable to deal with such claims within a reasonable time. It is true that they will examine them in regular two-instance proceedings. It is, however, speculative to say that when doing so they will fail to act with due diligence.
64. The only outstanding point appears to be the quantum of damages. The amendments to the 2009 Act do not lay down a scale for the sums to be awarded by way of non-pecuniary damages with respect to poor conditions of detention (contrast Stella and Others, cited above, § 19). Those awards will thus have to be determined under the general rule under Bulgarian tort law – in equity –, and their quantum will be a question of case-law and practice. It is true that the level of compensation awarded at domestic level, which must not be unreasonable in comparison to the just satisfaction awarded by this Court under Article 41 of the Convention in similar cases, is an important factor for assessing a remedy’s adequacy. But it cannot be assumed that the Bulgarian courts will not give proper effect to the new statutory provisions, or fail to develop a coherent body of case-law in their application. They should, however, be careful to apply them in conformity with the Convention and the Court’s case-law.
65. In sum, in view of the characteristics of the compensatory remedy under new sections 284 to 286 of the 2009 Act, at this point it appears as an effective means to make good past breaches of Article 3 of the Convention resulting from poor conditions of detention which complies with the criteria set out in Neshkov and Others (cited above). It also appears to offer a reasonable prospect of redress.
66. The manner in which the Bulgarian courts deal with such cases, and the promptness with which any awards of compensation they make in such proceedings are paid by the authorities, may of course affect the Court’s conclusion on that point (see Stella and Others, cited above, § 63).
(c) Conclusion
67. In view of the foregoing considerations – which, as already noted, are based on an assessment of the new statutory provisions as they stand – the two new remedies, which are meant to operate in parallel, can be regarded as effective with respect to inhuman or degrading conditions of detention in correctional and pre-trial detention facilities in Bulgaria.
68. The preventive remedy is available to all convicted prisoners and pre-trial detainees who are still in custody, and the compensatory remedy is available not only to convicted prisoners and pre-trial detainees who were in custody at the time when it came into effect – 7 February 2017 (see paragraph 26 above) – but was also specifically made available, with special transitional provisions, to those who were released during the six previous months, and even to those who were released earlier but in the meantime complained to the Court about the conditions of their detention (see paragraph 27 above).
69. It does not appear that Mr Atanasov or Mr Apostolov have attempted to use the new remedies, that there exist special circumstances which absolve them from doing so, or that they were time-barred from doing so.
70. It follows that their complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Complaint under Article 13 of the Convention
71. In respect of his complaint that he did not have an effective domestic remedy in relation to his complaint under Article 3 of the Convention, Mr Apostolov relied on Article 13 of the Convention, which provides:
“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.”
72. The Court already found that the two new remedies are effective for the purposes of Article 35 § 1 of the Convention. In view of the close link between that provision and Article 13, this finding is equally valid in the context of this complaint (see Valcheva and Abrashev, cited above, § 128, with further references).
73. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 20 July 2017.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy