FOURTH SECTION
CASE OF POGOSYAN-AHENOBARB v. BULGARIA
(Application no. 65417/16)
JUDGMENT
STRASBOURG
20 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Pogosyan-Ahenobarb v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application 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 and Russian national, Mr Neron-Aleksandar Yurievich Pogosyan-Ahenobarb (“the applicant”), on 9 November 2016;
the decision to give notice to the Bulgarian Government (“the Government”) of the complaint concerning inadequate conditions of detention, including prolonged isolation and lack of meaningful activities, and to declare inadmissible the remainder of the application;
the parties’ observations;
the statement by the Government of the Russian Federation on 13 February 2019 that they did not wish to avail themselves of the opportunity to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court);
Having deliberated in private on 23 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a complaint under Articles 3 and 13 of the Convention. The applicant is a prisoner serving a life sentence under the “special regime”. He complained of having been continually held in almost complete isolation, in the absence of purposeful activities for physical and mental stimulation, and in poor material conditions, without there being an effective remedy in this connection.
THE FACTS
2. The applicant was born in 1965 and was represented by Mr V.S. Stoyanov, a lawyer practising in Pazardzhik.
3. The Government were represented by their Agent, Ms M. Dimitrova, from the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant has been serving a life sentence since 2002 under the “special regime” in Burgas Prison. In August 2014 the regime was changed to the lighter “severe regime”, but he continued to be held in the same conditions applicable under the “special regime”.
6. According to the applicant, throughout the serving of his sentence he has been held in overcrowded and dirty cells, permanently lit by artificial lighting and without permanent access to running water or a toilet. In addition, he has not been involved in any programmes aimed at reform and rehabilitation.
7. On 19 May 2016 he brought a claim for damages under the State and Municipality Responsibility for Damage Act (“the SMRDA”) in relation to the period between 19 May 2011 and 19 May 2016. In particular, he claimed the damage stemmed from the lack of sanitary facilities in his cell and lack of opportunity to do any sport. On 28 December 2016 the Burgas Administrative Court examined the claim under the SMRDA and awarded him EUR 730 euros on account of the lack of unimpeded access to a toilet, poor hygiene conditions and insufficient heating in his cell in the winter. The court considered the applicant’s related complaint concerning the lack of sufficient physical activities and sport and dismissed it on the merits, observing that he had access to an equipped sports area twice a day. The Supreme Administrative Court (“the SAC”) upheld the lower court’s findings in a final judgment of 27 February 2018.
8. The applicant brought a separate claim for damages under the SMRDA in relation to his inability to have eight hours’ sleep a night for five weeks in 2017 because of noise caused by another inmate. In a final judgment of 5 December 2018 the SAC rejected his claim, finding that the discomfort caused to the applicant by the other inmate had not reached the threshold of severity required to regard it as inhuman or degrading treatment.
9. The applicant brought another claim for damages in 2017, without success, in relation to the prison staff having broken a table during a search of his cell in which they had also confiscated some prohibited items.
10. According to the latest information provided by the authorities, between 16 May 2016 and 15 November 2017 the applicant was held alone in a cell measuring just under 6 sq. m. He had access to a toilet and running water outside his cell six times a day. At night, he had to use a bucket in his cell as a toilet, but it had a lid.
11. Between 15 November 2017 and 13 March 2018 the applicant shared a cell measuring almost 16 sq. m with three other prisoners, and since 13 March 2018 he has been sharing a cell measuring almost 12 sq.m. with another prisoner. Both of these cells have running water and a toilet.
12. Furthermore, according to the authorities, the applicant takes part with the other prisoners in outdoor exercise twice daily, for one hour and for forty-five minutes respectively. He participates in weekly religious discussions and, since the end of 2018, has been enrolled in group work for rehabilitation of vulnerable individuals.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
13. 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, §§ 108-29 and 136, ECHR 2014 (extracts)).
14. The relevant domestic law in force after the 2017 amendments to the 2009 Act is set out in Dimitar Angelov v. Bulgaria (no. 58400/16, §§ 26-37, 21 July 2020).
THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
15. The applicant complained under Article 3 of the Convention that he had been held continually in inhuman and degrading conditions while serving his life sentence. In particular, he had been detained in inadequate material conditions, in prolonged isolation and in the absence of purposeful activities for physical and mental stimulation.
16. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Submissions by the parties
17. The Government argued that the applicant had not exhausted domestic remedies in respect of his complaint about isolation and lack of purposeful activities offered to him in detention, since he had not made that complaint in the proceedings he had brought domestically. Furthermore, if he considered that he continued to be held in inadequate conditions in prison, the applicant should have attempted to use the preventive remedy available to him since the first half of 2017 in order to seek immediate relief.
18. The applicant reiterated his complaint.Court’s assessmentAdmissibility
19. As regards the applicant’s complaint related to his isolation, the Government pointed out that the applicant did not specifically complain about his prolonged isolation or the lack of purposeful activities in his claim for damages at the national level. The applicant did not argue otherwise or elaborate further on this point in his submissions to the Court.
20. In the circumstances, the Court finds that the applicant did not make a specific complaint domestically concerning his isolation and the lack of purposeful activities in detention, in particular in his claim for damages for past periods. While he complained about the lack of opportunity to do sport, this cannot be regarded as a specific complaint about his isolation and the lack of any purposeful activities in detention. The Court notes that claims for damages in relation to inadequate conditions of detention, lodged before the 2017 amendments of the 2009 Act had entered into force, were examined in the manner laid down in the new compensatory remedy under the 2009 Act (see Dimitar Angelov, cited above, § 37). Thus, it cannot be said that a claim for damages in connection with a related complaint would have faced no prospect of success.
21. The Court further observes that, if the applicant considered that he continued to be held in inhuman and degrading conditions of detention, he failed to use the general preventive remedy at any point in time after it entered into force in May 2017.
22. Accordingly, and in view of its findings in Dimitar Angelov (cited above, § 68) that there were available effective domestic remedies in respect of the applicant’s complaint related to the isolation and absence of purposeful activities in detention, both in respect of past periods and as regards the possibility to put an end to a pending situation incompatible with Article 3, the Court finds that his related complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
23. As to whether the applicant can still be considered a victim of an alleged violation of Article 3 of the Convention, given that he was awarded compensation in the related domestic proceedings in respect of the inadequate material conditions of his detention between 19 May 2011 and 19 May 2016 (see paragraph 7 above), the Court finds that this question is closely linked to the substance of the complaint and, accordingly, joins it to the merits (see Dimitar Angelov, cited above, § 70).
24. As it transpires from the facts, between 19 May 2016 and 15 November 2017 the applicant continued to be kept in a cell without running water or sanitary facilities, and had only the use of a bucket at night (see paragraph 10 above). However, as it does not appear that the applicant complained domestically about this, the Court finds that the complaint in relation to the material conditions of detention during that period is inadmissible and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
25. To the extent that it can be considered that the applicant also made a complaint to the Court in relation to the facts at the origin of his other claims for damages which he had brought in 2017, in particular about his sleep being disturbed by the noise made by another inmate and about prison staff having broken a table in his cell (see paragraphs 8 and 9 above), the Court finds that the distress and hardship that the applicant endured on those occasions did not reach the threshold of severity required under Article 3 of the Convention. Consequently, the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
26. The Court finds that the applicant’s remaining complaint under Article 3 of the Convention, about the material conditions in which he had been detained between 19 May 2011 and 19 May 2016, is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits
27. The Court observes that the applicant’s claim for damages in relation to the conditions of his detention, which he brought in the domestic courts, concerned first and foremost the material conditions of his detention for a period of five years (see paragraph 7 above). The Court finds that the amount awarded to the applicant by the domestic courts in respect of a breach by the prison authorities of the prohibition of inhuman or degrading treatment as a result of poor conditions of detention, namely EUR 730, is several times lower than the award the Court would have made in similar cases (see, among others, Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, § 301, 27 January 2015). Accordingly, the Court finds that the applicant can claim to be a victim of the alleged violation and that there has been a violation of Article 3 of the Convention on account of the material conditions (lack of unimpeded access to a toilet, poor hygiene conditions and insufficient heating of his cell in the winter as established by the Burgas Administrative Court) in which he served his sentence in the period between 19 May 2011 and 19 May 2016.ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
28. 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, the applicant 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.”
29. The Court already found that there existed domestic remedies which were effective for the purposes of Article 35 § 1 of the Convention (see paragraph 22 above). In view of the close link between that provision and Article 13, this finding is equally valid in the context of this complaint (compare with Dimitar Angelov, cited above, § 81 with further reference).
30. Furthermore, the Court’s conclusion above of a violation of Article 3 of the Convention does not affect its findings under the admissibility part, namely that the remedies available to the applicant were effective in principle.
31. 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.APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage
33. The applicant claimed EUR 30,000 in respect of non-pecuniary damage.
34. The Government submitted that the claim was exorbitant.
35. The Court considers, with regard to the breach of Article 3 of the Convention relating to the material conditions of his detention, that he must have sustained non-pecuniary damage as a result of the violation of his rights under that provision. Having regard to the length of the period concerned, to the amount awarded to the applicant domestically and to its settled case‑law (see, in particular, Muršić v. Croatia [GC], no. 7334/13, § 181, 20 October 2016), the Court considers it reasonable to award the applicant EUR 5,000, plus any tax that may be chargeable on that amount.Costs and expenses
36. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court, in particular for legal fees for the proceedings before the Court.
37. The Government pointed out that he had not submitted a contract for legal representation, only a time sheet. In addition, this sum had not actually been paid by the applicant to his legal representative.
38. According to the Court’s settled case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Dimitar Angelov, cited above, § 89 with further reference). A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them. The fees payable to a representative under a conditional fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (ibid.).
39. In the present case the applicant did not submit a contract for legal representation or any document showing that he was under a legal obligation to pay the fees. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him.
40. Accordingly, the Court rejects the claim for costs and expenses in its entirety.Default interest
41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,Joins to the merits the question of the victim status of the applicant as regards the material conditions of his detention between 19 May 2011 and 19 May 2016, and holds that the applicant retains such status;Declares the complaint under Article 3 of the Convention regarding inadequate material conditions of the applicant’s detention between 19 May 2011 and 19 May 2016 admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention as a result of the inadequate material conditions in Burgas Prison in the period between 19 May 2011 and 19 May 2016;Holds
(a) that the respondent State is to pay the applicant, within three months, the following amount, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Tim Eicke
Deputy RegistrarPresident
Full & Egal Universal Law Academy