CASE OF DIMCHO DIMOV v. BULGARIA (No. 2)

FIFTH SECTION

CASE OF DIMCHO DIMOV v. BULGARIA (No. 2)

(Application no. 77248/12)

JUDGMENT

STRASBOURG

29 June 2017

FINAL

13/11/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dimcho Dimov v. Bulgaria (No. 2),

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Erik Møse,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
Pavlina Panova, judge ad hoc,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 16 May 2017 and 6 June 2017,

Delivers the following judgment, which was adopted on the last-mentionned date:

PROCEDURE

1. The case originated in an application (no. 77248/12) 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 a Bulgarian national, Mr Dimcho Yordanov Dimov (“the applicant”), on 14 November 2012.

2. The applicant was represented by Ms M. Ilieva, a lawyer practising in Sofia and legal director of the Bulgarian Helsinki Committee (“BHC”). The Bulgarian Government (“the Government”) were represented by their Agent, Ms Iva Stancheva-Chinova, of the Ministry of Justice.

3. The applicant, who is serving a sentence of imprisonment, alleged that the prison authorities had not done enough to protect him against a violent attack perpetrated by another inmate, even though they knew he was at risk. He also claimed that they had not provided him with adequate medical care for the injury he had suffered as a result of that attack.

4. On 31 August 2015 the Court decided to give the Government notice of the complaints concerning the alleged failure to take reasonable steps to protect the applicant and the alleged failure to provide him with adequate medical care, and declared the remainder of the application inadmissible under Rule 54 § 3 of the Rules of Court.

5. On 23 February 2016 Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 §§ 2 and 3 of the Rules of Court). Accordingly, on 20 February 2017 the President selected Ms Pavlina Panova as judge ad hoc from the list of five persons whom the Republic of Bulgaria had designated as eligible to serve as such a judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1968 and is currently detained in Vratsa Prison.

A. Background

7. In 2012 the applicant was detained in Varna Prison, serving a combined sentence of eighteen years’ imprisonment for aggravated murder, lewd acts, aggravated theft and car theft.

8. He suffers from many chronic medical conditions and a personality disorder which manifested itself in, inter alia, several attempts at self-harm and some suicide threats.

9. In 2007 the applicant was treated on the psychiatric ward of Lovech Prison Hospital.

10. Following his placement in an isolation cell in April 2008, he again threatened to harm himself and for eight days was kept almost constantly immobile by having his hands and feet handcuffed to a bed (see Dimcho Dimov v. Bulgaria, no. 57123/08, 16 December 2014, where the Court found violations of the substantive and procedural limbs of Article 3 of the Convention in that regard).

11. In early 2012 the applicant was part of a prisoner group that included Mr K.I. The latter was serving a combined sentence of six and a half years for aggravated racketeering and numerous instances of threats of murder and aggravated hooliganism. According to a later psychological report, Mr K.I. had previously been admitted many times to the psychiatric ward of Lovech Prison Hospital and he suffered from a mixed personality disorder with elements of dissocial behaviour, paranoia and emotional instability.

B. Facts at issue in the case

1. The incident on 15 February 2012

12. On the morning of 15 February 2012 the applicant went to the wing for prisoners who were being transferred to fetch a mattress he had allegedly lent to another inmate. When he entered the cell, Mr K.I., with whom he had had a conflict since January that year, began arguing with him, telling him that he had no right to come in and remove items. A guard intervened and took the applicant out of the wing, leaving him in the prison barbershop. According to statements made by the applicant later, Mr K.I. followed him, grabbed him by the collar through the bars separating the barbershop from the corridor, and hit him on the head and nose. In a report drawn up several days later, the social worker in charge of the applicant’s group said that there was no evidence of such an incident as no other inmate had confirmed the applicant’s allegations, and the applicant had not requested a medical examination.

13. Alerted by the guard, the social worker came and talked with the applicant, repeating that he could not go back into that wing. According to her report about the incident, her words upset him and he began arguing with her in a loud voice. That in turn irritated Mr K.I., who began to shout at the applicant. The social worker took Mr K.I. and two other inmates to a cell, where she reminded them of their duties and warned them that any violence would be in breach of prison rules and entail disciplinary measures. They agreed that they had overreacted and undertook to make efforts to put relations in the group right. After that, the social worker had a talk with the applicant, who was in a highly emotional state. She told him of Mr K.I.’s undertaking to calm the conflict. The applicant began shouting and insulting Mr K.I., who heard him and shouted back. To calm things down, the social worker had the applicant isolated in a cell.

14. The next day, the social worker received complaints from five other inmates from the group. They protested against the applicant’s return to the group, saying that he had systematically bullied and assaulted them. The applicant also filed a complaint, saying that he could no longer remain in the same group as Mr K.I.

15. As a result, on 21 February 2012 the social worker recommended that the prison governor move the applicant to another group. She was of the view that his remaining in his old group would worsen relations within it because he would take on inmates who had not taken his side in the conflict with Mr K.I., which would also be bad for his emotional well-being and security. In the meantime, the applicant was provisionally held in a cell on another floor.

2. The incident on 21 February 2012

16. Six days after the first incident, on 21 February 2012, a guard took the applicant back to his old corridor so that he could fetch his belongings from his locker. According to the guard’s report, filed the same day, the applicant swore at and threatened Mr K.I. when passing him by. The latter, upset, punched the applicant on the jaw. The social worker carried out an enquiry over the following days at the request of the prison governor and obtained statements from eight other inmates, confirming the events. She proposed that Mr K.I. be given a disciplinary warning and that the applicant be kept in his new group to avoid further altercations between the two. As a result of the blow he had received the applicant suffered a fractured jaw, but this was not detected immediately (see paragraphs 18, 25 and 28 below). Three weeks after the incident, on 13 March 2012, the prison governor issued Mr K.I. with a disciplinary warning.

3. Medical care provided to the applicant after the incidents

17. The applicant expressed no wish to be given a medical examination after the incident which allegedly took place on 15 February 2012.

18. After the incident on 21 February 2012 he was brought to Varna Prison’s medical centre, where he was seen by the feldsher as the prison’s only doctor was on long-term sick leave at the time (see paragraph 40 below). The applicant told the feldsher that he had been punched next to his right ear and had pain in the ear and the lower jaw. The feldsher noted some redness in his ear, but reported nothing more serious. She also noted that the applicant had no signs of other traumatic injuries to his body. She wrote a note to the prison administration, detailing her findings. According to a statement which he made in the course of the ensuing criminal proceedings against Mr K.I. (see paragraph 35 below), the applicant asked the feldsher to send him for an X-ray, but she refused.

19. On 22 February 2012 the applicant went to the medical centre again and was given vitamins, an anti-inflammatory drug, a muscle relaxant and antibiotics.

20. He visited the centre once more on 24 February 2012 and was given a painkiller.

21. According to a statement by the applicant in the criminal proceedings against Mr K.I. (see paragraph 35 below), he repeatedly asked to be sent to an external medical specialist for an examination.

22. His next visit to the centre was on 7 March 2012, when he complained of a loss of hearing in his right ear. The feldsher decided to refer him to an external specialist. The consultation took place seven weeks later, on 26 April 2012 (see paragraph 25 below). The Government said the delay was because the applicant’s symptoms had not suggested that he had a medical condition that required urgent attention and because it took time to organise a medical examination outside the prison.

23. The applicant went to the prison’s medical centre again on 13 March 2012 and threatened to go on a hunger strike. According to a statement which he made in the course of the criminal proceedings against Mr K.I. (see paragraph 35 below), he made that threat to pressure the prison authorities to send him for a medical examination by an outside specialist.

24. His next visit to the centre was on 23 April 2012, when he obtained a painkiller but apparently did not complain further about his health.

25. On 26 April 2012 the applicant was seen by an external otolaryngologist, who noted that he was experiencing pain in his right temporomandibular joint and ears and had poor hearing. He also noted that the applicant had some redness on his eardrums. He prescribed painkillers and antibiotics, and suggested that the applicant be seen by a maxillofacial surgeon. The prison paid for the consultation.

26. On 27 April and 7 and 10 May 2012 the applicant again visited the prison’s medical centre and obtained antibiotics and analgesics. On 12 May 2012 he was taken out of prison for a consultation with a psychiatrist.

27. On 14 May 2012 the prison’s feldsher told the applicant that she would ask the prison administration to pay for a consultation with a maxillofacial surgeon. The Government explained that that had been necessary because such consultations were not covered by Bulgaria’s health insurance scheme and the prison had to make a special payment for such a consultation.

28. On 19 May 2012 the applicant was examined by a maxillofacial surgeon and given a panoramic X-ray. The surgeon noted that the applicant had a fracture of the right condyloid process that had not healed properly and post-traumatic arthritis of the right temporomandibular joint. He recommended that the applicant have physiotherapy for that joint. The consultation and the X-ray were paid for by the prison administration.

29. On 21 May 2012 the prison feldsher offered to send the applicant to Sofia Prison Hospital for physiotherapy. He refused.

30. On 15 June 2012 the applicant agreed to be sent to Sofia Prison Hospital, and was admitted on 18 July 2012. He was examined and given an X-ray of the skull. It was noted that he had a fracture of the jaw that had already healed and could no longer be operated on, and a deviated nasal septum. He was treated with antipsychotic, anticonvulsant and mood‑stabilising drugs, and had physiotherapy for his temporomandibular joints. He was in the hospital until 1 August 2012, when he returned to Varna Prison.

31. Between June and October 2012 the applicant visited the prison medical centre on several occasions. He was generally given pain medication and further on request external medical consultations were discussed.

32. The second consultation with an otolaryngologist took place on 27 December 2012. She noted that the applicant complained of poor hearing and pain in the right ear. She found that he had normal eardrums but poor teeth, which caused luxation of the temporomandibular joint, and also had a dysfunction of that joint. She prescribed painkillers.

33. In a medical report drawn up on 11 February 2013, the Varna Prison doctor noted that the applicant had no money to pay for surgery on his jawbone and that the national health insurance scheme did not cover it. In November 2013 the applicant had surgery for the deviated nasal septum in a hospital in Varna.

4. Investigation into and criminal proceedings relating to the assault on 21 February 2012

34. On an unknown date in 2012 the applicant complained to the Varna district prosecutor’s office about the incidents on 15 and 21 February 2012. In June 2012 the prosecutor’s office refused to open criminal proceedings. It found that no prison staff had committed any offences during the incidents. On appeal by the applicant, the Varna regional prosecutor’s office upheld that decision in August 2012. The applicant appealed further and, on 10 October 2012, the Varna appellate prosecutor’s office quashed the refusal to open criminal proceedings against Mr K.I., but upheld the refusal to open proceedings against prison staff. It noted that the internal inquiry had established that the incident involving the two inmates had been promptly dealt with and that there had been no culpable omissions by prison staff. It referred the case back with instructions to the lower prosecutor’s offices to check whether Mr K.I.’s actions had amounted to causing moderate bodily harm.

35. Following a criminal investigation and delays in the resulting trial due to Mr K.I.’s mental health, in February 2015 the Varna District Court found Mr K.I. guilty of causing moderate bodily harm to the applicant by breaking his jaw. It sentenced him to six years’ imprisonment and ordered him to pay the applicant 2,000 Bulgarian levs (BGN) in respect of non‑pecuniary damage. The court noted that the fracture had impaired the applicant’s chewing and speech functions for at least four months and had caused him considerable pain and suffering (see прис. № 68 от 12.02.2015 г. по н. о. х. д. № 3419/2013 г., РС-Варна).

36. In March 2016, following an appeal by Mr K.I., the Varna Regional Court fully upheld the lower court’s judgment (see реш. № 61 от 07.03.2016 г. по в. н. о. х. д. № 301/2015 г., ОС-Варна).

5. Claim against the prison authorities for damages

37. In September 2014 the applicant brought a claim for damages against the Chief Directorate for the Execution of Punishments at the Ministry of Justice. He alleged that over the previous two months the authorities at Varna Prison had failed to provide him with adequate medical care for pain in the right ear, his fractured jaw and numbness in his left arm.

38. The Varna Administrative Court heard the case on 1 December 2014 and 2 February 2015, when the applicant unexpectedly withdrew his claim and the court discontinued the proceedings.

II. RELEVANT REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

39. A delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) visited Bulgaria between 18 and 29 October 2010. The visit included a visit to Varna Prison. In its ensuing report (CPT/Inf (2012) 9), the CPT noted the following (footnotes omitted):

“88. At both Plovdiv and Varna Prisons, inter-prisoner violence was rife. It transpired from the examination of documentation on disciplinary punishments that there was at least one violent altercation between prisoners every week, leading to placements in a disciplinary cell and occasionally to a medical intervention or hospitalisation. ...

At Varna Prison in particular, the low staffing level, coupled with severe overcrowding, could easily compromise the safety of staff and prisoners alike. ...

89. ... The Committee considers that an effective strategy to tackle inter-prisoner intimidation/violence should seek to ensure that prison staff are placed in a position to exercise their authority in an appropriate manner. In particular, staff should be encouraged more closely to supervise the activities of prisoners and enter in direct contact with them with a view to developing dynamic security. This implies making available sufficient numbers of staff and providing them with appropriate initial and advanced training. When incidents of inter-prisoner intimidation/violence do occur, staff must be both resolved and properly trained to intervene. ...

In addition to implementing an individualised risk and needs assessment, the prison system may also need to develop the capacity to ensure that potentially incompatible categories of prisoners are not accommodated together. ...

121. Despite the goodwill and commitment of health-care staff at the prisons visited, the provision of health care to prisoners remained problematic, due to the serious shortage of staff and resources. The delegation heard a number of complaints from prisoners at both Plovdiv and Varna Prisons concerning delayed or difficult access to a doctor, inadequate quality of care (in particular dental care), problematic access to outside specialists and delays in transfer to outside hospitals. ...

At Varna Prison, the health-care staff team comprised a psychiatrist and a feldsher. The impossibility to replace the head doctor who was on prolonged sick leave placed an overwhelming burden on the psychiatrist and the feldsher. As a stop-gap solution, the doctor from the nearly hostel ‘Razdelna’ periodically visited the prison (i.e. four to five times a month). ...”

40. A delegation of the CPT visited Bulgaria again between 4 and 10 May 2012. The visit again included a visit to Varna Prison. In its ensuing report (CPT/Inf (2012) 32), the CPT noted the following (footnotes omitted):

“19. The delegation received many allegations of inter-prisoner violence at both Burgas and Varna Prisons (including verbal and physical intimidation), and even witnessed itself such episodes. This was hardly surprising considering the combination of severe overcrowding and extremely low staffing levels at both establishments.

Despite long-standing recommendations on this issue, the findings from the 2012 visit suggest that very little progress has been made to tackle inter-prisoner violence. The Committee must stress again that the duty of care which is owed by the prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm. In particular, prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene. Such a capacity to intervene will of course depend, inter alia, on an adequate staff/prisoner ratio and on providing all staff members with appropriate initial and advanced training. In addition, the prison system as a whole may need to develop the capacity to ensure that potentially incompatible categories of prisoners are not accommodated together. ...

40. The provision of health-care was very problematic at both prisons due to an extreme shortage of staff and resources. The delegation was submerged by complaints about difficulties in having access to prison medical staff, inadequate quality of care (including dental care), problematic access to outside specialists/hospitals (in particular for insurance reasons) and delays in transfer to outside hospitals.

At Varna Prison, the health-care staff consisted of a general practitioner – who had just returned to his duties after a lengthy period of sick leave – and a feldsher, both working full-time. The doctor from the nearby prison hostel ‘Razdelna’ had been ensuring medical cover when the feldsher was absent. The psychiatrist’s post had been vacant since January 2011. A part-time dentist was present for two hours, five days a week. No qualified nurse was present at the establishment. To sum up, since January 2011, the establishment’s needs in terms of health-care had been covered essentially by a single feldsher. The delegation was impressed by her professionalism and commitment, which was also recognised by inmates; nevertheless, the fact that no arrangement was found to compensate the absence of the GP for at least 18 months is unacceptable. ...

41. The above-mentioned staffing situation rendered virtually impossible the provision of health care worthy of the name in the establishments visited. Further, there was an over-reliance on feldshers, causing them to practise beyond the limits of their competence. ...

43. No specific screening for injuries was performed upon arrival or after a violent episode in prison, and very limited medical information could be found at Varna Prison ... in this respect. Further, it appeared that reporting of injuries depended on the prisoner concerned making a specific request, usually to the social worker, on a special form (a copy of the form was not kept in the medical file). There appeared to be no systematic reporting of traumatic injuries to the Main Directorate for the Execution of Sanctions.

In the light of the above, the CPT reiterates its recommendation that steps be taken to ensure that prison health-care services perform a thorough screening of newly-arrived prisoners for injuries. In this context, the report completed by the doctor should contain, in addition to a detailed description of injuries observed, any allegations made by the prisoner concerned and the doctor’s conclusions as to the consistency between those allegations and the objective medical findings. ...

The same approach should be followed whenever a prisoner is medically examined following a violent episode in prison.”

III. RELEVANT DOMESTIC LAW AND PRACTICE

A. Medical treatment for prisoners

41. Section 128(1) of the Execution of Punishments and Pre-Trial Detention Act 2009 provides that imprisonment should be effected in conditions that protect the physical and mental health of inmates.

42. Inmates are to be treated in medical centres and specialist hospitals attached to correctional facilities (sections 129(1) and 130(1)). They operate under the authority of the Minister of Justice (section 130(2)) but can receive guidance from, and come under the control of, the Minister of Health (section 130(3) of the Act and regulation 4 of Regulations no. 2 of 22 March 2010 on medical care in detention facilities). There are two such hospitals: one attached to Sofia Prison and one attached to Lovech Prison; they admit inmates from the whole country (section 132(2) of the Act and regulation 56(1) of Regulations no. 2). Those medical facilities are part of the national health-care system and the medical care provided by them must match general medical standards (section 129(2) of the Act and regulation 3 of Regulations no. 2). They may use outside medical specialists (section 136(1) of the Act and regulation 8(1) of Regulations no. 2), subject to approval by the prison governor (section 136(2) of the Act and regulation 8(2) of Regulations no. 2).

43. If an inmate disagrees with a diagnosis made by the staff of prison medical facilities or the treatment prescribed by them, he may request a consultation, at his own expense, with an outside medical practitioner (section 137(1) of the Act and regulation 9(1) of Regulations no. 2). That practitioner must be allowed to have access to the inmate and all the medical documents relating to him (sections 137(1) in fine and (2) of the Act and regulation 9(2) of Regulations no. 2). The practitioner’s conclusions do not bind the prison authorities and he cannot give binding prescriptions as to the place where treatment is to be given (section 137(3) of the Act and regulation 9(3) of Regulations no. 2).

44. Inmates may also be treated in outside hospitals if prison medical facilities cannot attend to their needs, if the inmates have an infectious disease or require special treatment (section 135(1) of the Act and regulation 60(1) of Regulations no. 2). The prison governor, acting on a proposal from the head of the respective prison medical centre or hospital, takes the decision on whether an inmate should be sent to an outside hospital (section 135(2) of the Act, regulation 115(2) of the Regulations for the application of the Act, and regulation 60(2)-(4) of Regulations no. 2). In urgent cases or cases requiring a specialist examination, the transfer may be carried out on the basis of an oral order (section 135(3)).

45. An inmate who has asked to be examined by a doctor must be seen by one within twenty-four hours (section 143(1)). To do so, he must have his request entered in a special journal kept by the guard on duty; the examination must take place within twenty-four hours of the entry being made (regulation 12(2) of Regulations no. 2). If the case is urgent or concerns a traumatic injury, the inmate must be seen by a medical doctor immediately, regardless of the time of day (section 143(2) of the Act and regulation 14 of Regulations no. 2).

46. Each inmate must have a personal medical file. It must be kept in the respective medical facility and be transferred with the inmate if he or she goes to another correctional facility (regulation 76(1) of Regulations no. 2).

47. A record must be made of any injury to an inmate caused by violence and the inmate must be given medical care. Such cases must also be reported immediately to the supervising prosecutor (section 139(2) of the Act and regulation 10(2) of Regulations no. 2).

B. Liability of prison authorities for failure to provide medical treatment to prisoners

48. By section 1(1) of the State and Municipalities Liability for Damage Act 1988, the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, acts or omissions by civil servants, committed in the course of or in connection with administrative action. A detailed description of the way in which that provision has been applied to claims by inmates concerning the conditions of their detention can be found in Neshkov and Others v. Bulgaria (nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, §§ 125-36, 27 January 2015).

49. According to the information available to the Court, in forty-one recent cases the Bulgarian administrative courts have examined on the merits claims for damages under section 1(1) of the 1988 Act in relation to alleged failures by the prison authorities to provide inmates with adequate medical care. It appears that all but two of those claims have been dismissed, while two of the cases are still pending: one following a remittal and one following a reopening.

50. Following Neshkov and Others (cited above), in January 2017 the Bulgarian Parliament enacted a number of amendments to the Execution of Punishments and Pre-Trial Detention Act 2009 with a view to improving prison conditions in the country. Among those amendments, which entered into force on 7 February and 1 May 2017, were the addition of new sections 276 to 286 of the Act, which put in place dedicated preventive and compensatory remedies with respect to actions or omissions of the prison authorities which result in inhuman or degrading treatment of inmates.

THE LAW

I. THE APPLICANT’S ILL-TREATMENT BY ANOTHER INMATE

51. The applicant complained that the prison authorities had not done enough to protect him from another prisoner who had assaulted him on 21 February 2012. He relied on Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. The parties’ submissions

52. The Government submitted that the applicant had failed properly to exhaust domestic remedies as he had lodged his application with the Court before the conclusion of the criminal proceedings against the prisoner who had assaulted him.

53. The applicant submitted that his complaint did not concern the criminal proceedings against that prisoner, but the prison authorities’ failure to protect him from the assault by that prisoner. He had asked the prosecuting authorities to investigate that as well, but they had refused to open criminal proceedings in relation to any omissions by prison staff.

2. The Court’s assessment

54. The criminal proceedings against the other prisoner were not a remedy relating to the prison authorities’ alleged failure to take adequate measures to protect the applicant. With respect to the latter complaint, the applicant used an available remedy: he complained to the prosecuting authorities, which refused to open criminal proceedings against prison staff, finding that none of them had committed a culpable omission in relation to the incident (see paragraph 34 above). The Government’s objection that domestic remedies have not been exhausted must therefore be rejected.

55. The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds either. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

56. The Government submitted that the prison authorities had taken all reasonable steps to prevent violence between the applicant and the other prisoner. After the incident on 15 February 2012, a social worker had talked with both of them, and with the other inmates from their group, and the prison administration had moved the applicant to another group. As the prison authorities had known that both prisoners were prone to conflict and were aggressive, they had sent a guard to accompany the applicant when he had gone to fetch his belongings from his old cell and they had considered one guard to be enough. That guard could not have foreseen that the two inmates would get into a fight so quickly, and had not been in a position to prevent the incident, which had unfolded in seconds and had consisted of a single punch. The guard had intervened immediately, prevented a further exchange of blows and taken the applicant to the prison’s medical centre. Guards in Varna Prison underwent both initial and on-going training on how to manage violent prisoners.

57. The applicant noted that when he had gone to his old wing on 21 February 2012 he had been accompanied by a single guard, with no one else to control the other prisoner. That guard had done nothing to prevent the verbal exchange between the two from escalating into physical violence. He had only intervened after the other prisoner had hit the applicant. It was unclear who had decided that only one guard was to accompany the applicant, or whether that guard had been properly briefed. The prison authorities had not taken any other steps to prevent the fight. They had known that both prisoners were volatile and involved in an escalating feud, but had confined their reaction to the earlier incident to talking with them. There were apparently no clear rules or procedures on how to manage the risk of inter-prisoner violence or report incidents to the prosecuting authorities. Varna Prison’s head of security had himself admitted that such problems were dealt with on an ad hoc basis. In recent years, no prison staff had been disciplined for failing to prevent such violence, even though 103 incidents had been reported in 2012, 92 in 2013, and 42 in 2014. Overcrowding, the absence of productive activities for prisoners, the low ratio of staff to inmates, and the lack of suitable training for prison staff also contributed to such incidents.

2. The Court’s assessment

(a) General principles in the Court’s case-law

58. It is well-settled that the authorities have an obligation under Article 3 of the Convention, read in conjunction with Article 1, to protect detainees from inhuman and degrading treatment by other detainees (see, among other authorities, Stasi v. France, no. 25001/07, §§ 77-78, 20 October 2011; D.F. v. Latvia, no. 11160/07, §§ 83-84, 29 October 2013; and M.C. v. Poland, no. 23692/09, §§ 87-88, 3 March 2015).

59. The obligation is to take all steps which could reasonably be expected to prevent a real and immediate risk to the detainee’s physical integrity of which the authorities had or ought to have had knowledge. Its precise extent depends on the circumstances of each case, and it must be interpreted so as not to impose an impossible or disproportionate burden on the authorities (see Stasi, § 78-79, and M.C. v. Poland, §§ 88-89, both cited above). In discharging this obligation, the authorities must also take into account the need to respect the rights of the presumed attacker; this may sometimes fetter their freedom of action (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116 and 121, Reports of Judgments and Decisions 1998-VIII; Opuz v. Turkey, no. 33401/02, § 129, ECHR 2009; and Bljakaj and Others v. Croatia, no. 74448/12, § 122, 18 September 2014, where this limitation was noted in relation to the concomitant obligation under Article 2 of the Convention).

60. The fact that an incident takes place in a custodial context does not in itself lower the threshold for determining whether the authorities’ obligation has been met (see, mutatis mutandis, Van Colle v. the United Kingdom, no. 7678/09, § 91, 13 November 2012). However, the assessment of whether the authorities have acted reasonably must take into account that in the detention context both attacker and victim are under the control of the authorities, unlike cases in which they are both at liberty.

61. Another important factor in this assessment is whether the detainee is particularly vulnerable, for instance because he or she is suffering from a mental disorder (see Pantea v. Romania, no. 33343/96, §§ 189-92, 3 June 2003, and Korpachyova-Hofbauer v. Bulgaria (dec.), no. 56668/12, §§ 4 and 35, 1 September 2015), is young (see Premininy v. Russia, no. 44973/04, § 86, 10 February 2011) or belongs to a category at heightened risk of abuse (see Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, §§ 69-70, 27 May 2008 (detainees convicted of war crimes and kept unsegregated); Stasi, cited above, § 91 (homosexuals); J.L. v. Latvia, no. 23893/06, § 68, 17 April 2012 (police collaborators); Aleksejeva v. Latvia (dec.), no. 21780/07, § 34, 3 July 2012 (relatives of prison guards); Starovoitovs v.Latvia (dec.), no. 27343/05, §§ 35-38, 27 November 2012 (private security guards); Sizarev v. Ukraine, no. 17116/04, § 114, 17 January 2013 (court employees); D.F. v. Latvia, cited above, §§ 81 and 84 (sexual offenders); Totolici v. Romania, no. 26576/10, §§ 48-49, 14 January 2014 (police officers); and M.C. v. Poland, cited above, § 90 (persons accused of sexually abusing minors)).

62. It also matters whether the other detainees appear especially prone to violence (see, for example, Oshurko v. Ukraine, no. 33108/05, § 72, 8 September 2011).

(b) Application of those principles

63. In the instant case, the attack perpetrated on the applicant by a co-detainee was not systematic or long-lasting (compare the abuse suffered in Premininy, § 86; Oshurko, § 72; J.L. v. Latvia, § 18; and M.C. v. Poland, § 86, all cited above). Immediately after the alleged incident on 15 February 2012 the applicant was kept apart from the other prisoner, precisely to avoid further clashes between the two (see paragraphs 7-11 above). The present case concerns only a brief incident which took place on 21 February 2012, when the applicant was taken back to his old group to fetch his belongings and the two prisoners got into an argument, and the other one punched the applicant on the jaw (see paragraph 16 above).

64. At that point, the prison authorities plainly knew that he was at some risk from the other inmate. Both were emotionally unstable, violent offenders who had already shown hostility towards each other shortly beforehand (see paragraphs 7-13 above). As a result, the prison administration had decided to keep them apart, and the social worker in charge of their group had tried to calm their conflict by talking to both of them (see paragraphs 13-15 above).

65. The mere fact that the guard did not react quickly enough to prevent the other prisoner from hitting the applicant cannot lead to the conclusion that the authorities failed in their obligation to take reasonable measures to protect him. There is evidence both that the applicant provoked the other prisoner, and that the whole situation unfolded very quickly, with the other inmate apparently acting on the spur of the moment (compare with Tautkus v. Lithuania, no. 29474/09, § 58, 27 November 2012). There is no concrete evidence that the guard’s actions, which cannot simply be judged in hindsight, were unreasonable or due to his not being trained well enough or because he had not been briefed about the situation.

66. It is true that if arrangements had been made for the other prisoner to be away from the wing when the applicant returned, the incident would not have taken place. It could perhaps have also been avoided if more guards had been present. But it is not apparent that the only reasonable course of action open to the prison authorities was to opt for one of those measures. Though they could have expected some tension between the two prisoners, the applicant was supposed to return to his old wing for just a short while, and it was not obvious that the other prisoner, who had been admonished after the earlier alleged incident, would turn so violent so quickly.

67. Nor can it be said that anxiety on the part of the applicant caused by a risk of further attacks by the other prisoner reached a level of severity that brought it within the scope of Article 3 of the Convention (compare with Aleksejeva, § 40, and Korpachyova-Hofbauer, § 36, both cited above, and contrast Alexandru Marius Radu v. Romania, no. 34022/05, §§ 48-49, 21 July 2009). The prison authorities took measures to keep him apart from the other inmate after the incident on 21 February 2012, and indeed preventive measures had already been taken prior to that date with a view to his protection (see paragraphs 13-15 above)

68. In the light of the above considerations, there has been no breach of Article 3 of the Convention with respect to the alleged failure of the authorities to take all steps which could have reasonably been expected to protect the applicant from the inmate who assaulted him.

II. MEDICAL CARE FOR THE APPLICANT’S INJURIES

69. The applicant also complained under Article 3 of the Convention that he had not received adequate medical care for the injuries which he sustained at the hands of the prisoner who assaulted him. He again relied on Article 3 of the Convention, the text of which has been set out in paragraph 51 above.

A. The parties’ submissions

70. The Government submitted that, by not pursuing to a conclusion a claim for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988 in relation to the alleged omission of the prison authorities to provide him with proper medical care, the applicant had failed to exhaust domestic remedies. The Bulgarian courts dealt with such claims on the merits. Indeed, in 2014 the applicant had brought such a claim, but had later withdrawn it for unknown reasons.

71. The applicant submitted that, since he had still not been given surgery for his fractured jaw, the prison authorities’ failure to provide him with adequate medical care was a continuing situation. A claim for damages was therefore not an effective remedy in his case.

B. The Court’s assessment

72. According to the Court’s case-law, to be regarded as effective, remedies with respect to allegedly inhuman or degrading conditions of detention must have both a preventive and a compensatory character: they must be capable of both rapidly bringing an ongoing breach to an end and of resulting in redress for any past breach (see Neshkov and Others, cited above, § 181). The same applies to remedies with respect to inhuman or degrading treatment allegedly resulting from a failure to provide a detainee with adequate medical care.

73. From the perspective of Article 35 § 1 of the Convention, however, the position changes once the situation of which the detainee complains has ended. The Court has already held that, to comply with the requirement to have exhausted domestic remedies, detainees who complain of the conditions of their detention and have been released must use any compensatory remedies (see Ignats v. Latvia (dec.), no. 38494/05, § 112, 24 September 2013, with further references). The underlying rationale is that once the situation alleged to constitute a breach of Article 3 of the Convention has ended, the only conceivable form of redress is some form of reparation for the injury resulting from the past breach. There is no reason why the same should not apply to complaints relating to the provision of adequate medical care in detention.

74. In the applicant’s case, the alleged breach of Article 3 of the Convention consisted in a failure to provide him with timely and adequate medical care for the jaw fracture that he suffered on 21 February 2012 at the hands of his co-detainee. But that situation came to an end when around three months later the applicant was examined by a maxillofacial surgeon and given an X-ray, and then, about two months after that, received treatment for his jaw injury in Sofia Prison Hospital (see paragraphs 28 and 30 above). According to the available medical evidence, at that point his jaw fracture could no longer be operated on (ibid.). The applicant’s assertion to the contrary was not supported by any medical evidence. His not having been given surgery for the fracture cannot therefore in itself be regarded as a continuing breach of Article 3 of the Convention.

75. The applicant was thus required to resort to a domestic remedy that could have resulted in redress for the alleged past breach of Article 3. In 2014 he brought a claim for damages against the prison authorities in relation to their alleged failure to provide him with adequate medical care for, among other conditions, his fractured jaw (see paragraph 37 above). His claim was based on section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 48 above). According to the available information, the Bulgarian administrative courts have regularly examined such claims on the merits (see paragraph 49 above), and the Varna Administrative Court started examining the one made by the applicant (see paragraph 38 above). It is true that very few of the recent cases have resulted in awards of compensation (see paragraph 49 above). But that does not in itself mean that the applicant’s claim lacked a reasonable prospect of succeeding. Each case turns on its own merits, and it would be speculative to say how the Varna Administrative Court and, on appeal, the Supreme Administrative Court would have disposed of the applicant’s claim had it been pursued to conclusion. The very fact that the applicant brought it shows that he himself thought it would be an effective remedy (see Ignats, cited above, § 114). By later withdrawing it, he deprived the Bulgarian courts of the opportunity to deal with it (see paragraph 38 above). He did not explain what prompted his decision to do so, and there is no evidence that it was due to pressure or fear of reprisals (see, mutatis mutandis, Ignats, cited above, § 109). It must therefore be considered to have been voluntary (see Borghi v. Italy (dec.), no. 54767/00, ECHR 2002-V (extracts)).

76. According to the Court’s case-law, doubts about the prospects of a remedy which appears to offer a reasonable possibility of redress are not a sufficient reason to eschew it (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74 and 84 in fine, 25 March 2014; Avotiņš v. Latvia [GC], no. 17502/07, § 122, ECHR 2016; and Posevini v. Bulgaria, no. 63638/14, § 54, 19 January 2017). Applicants who in such circumstances withdraw their claims or appeals deprive the national courts of the High Contracting States of the opportunity which Article 35 § 1 of the Convention offers them of addressing and so preventing or putting right the breaches alleged against them (see Azinas v. Cyprus [GC], no. 56679/00, §§ 40-41, ECHR 2004-III; Milošević v. the Netherlands (dec.), no. 77631/01, 19 March 2002; Borghi, cited above; and Ignats, cited above, § 114). The Court does not discern in the present case any particular circumstances capable of absolving the applicant from the obligation to exhaust domestic remedies.

77. This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

FOR THESE REASONS, THE COURT

1. Declares, by a majority, the complaint relating to the alleged failure of the authorities to take steps which could have reasonably been expected to protect the applicant from the inmate who assaulted him admissible and the remainder of the application inadmissible;

2. Holds, unanimously, that there has been no violation of Article 3 of the Convention with respect to the alleged failure of the authorities to take steps which could have reasonably been expected to protect the applicant from the inmate who assaulted him.

Done in English, and notified in writing on 29 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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