CASE OF SIMEONOVI v. BULGARIA

FOURTH SECTION

CASE OF SIMEONOVI v. BULGARIA

(Application no. 21980/04)

JUDGMENT

STRASBOURG

20 October 2015

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 12/05/2017

This judgment may be subject to editorial revision.

In the case of Simeonovi v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a chamber composed of:

Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Paul Mahoney,
Krzysztof Wojtyczek,
Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 29 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEEDINGS

1. The case originated in an application (no. 21980/04) against the Republic of Bulgaria lodged with the Court on 8 June 2004 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Bulgarian nationals, Mr Lyuben Filipov Simeonov, Ms Nelly Nikola Simeonova and Mr Filip Lyubenov Simeonov.

2. The applicants were represented by Ms S. Margaritova-Vuchkova. The Bulgarian Government (“the Government”) were represented by their agent, Ms R. Nikola, from the Ministry of Justice.

3. By a decision of 23 August 2011 the application was declared partly inadmissible, the Court having dismissed all the complaints submitted by the second and third applicants and some of the complaints submitted by the first applicant, Mr. Lyuben Filipov Simeonov (“the applicant”). The applicant’s complaints under Article 3 concerning the lack of medical care in prison, his conditions of detention and his excessively strict prison regime, as well as the complaint under Article 6 § 1 in conjunction with Article 6 § 3 c) concerning the lack of assistance by counsel for the first few days of his detention, were communicated to the Government. Furthermore, as permitted by Article 29 § 1 of the Convention, it was decided that the Chamber would simultaneously adjudicate on the admissibility and the merits of the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1975. He is currently serving a life sentence in Sofia Prison.

A. Criminal proceedings against the applicant

5. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money.

6. On the same day the Burgas investigatory department instigated criminal proceedings against X for armed robbery and homicide.

7. On 3 October 1999 the applicant, Mr Lyuben Simeonov, was arrested in Sofia by a team from the special unit of the Interior Ministry. He was transferred to Burgas.

8. At 8 p.m. on 4 October 1999, an investigator from the Burgas investigatory department placed the applicant in detention for twenty-four hours. He was suspected of having committed the armed robbery and the two murders of 2 July 1999, aided and abetted by a certain A.S. On the following day a prosecutor from the Burgas regional prosecutor’s office extended his detention by three days.

9. The applicant submitted that despite his express requests he had not been assisted by a lawyer for the first three days of his detention. During that time the officials responsible for the investigation had questioned him about the robbery and the two murders committed in Burgas on 2 July 1999.

10. On 6 October 1999 the investigator appointed an official lawyer to defend the applicant. At 12 noon on the same day, in the presence of his officially appointed lawyer, the applicant was formally charged with committing armed robbery in the Burgas bureau de change and of the murder of two persons, and placed in detention. He refused to answer the investigator’s questions.

11. On 12 October 1999 the applicant was questioned in the presence of two lawyers of his choice. He remained silent.

12. On 21 October 1999, assisted by his two lawyers, he confessed. His presumed accomplice, A.S., also confessed to the criminal offences charged.

13. The officers responsible for the investigation subsequently gathered a substantial body of evidence, including witness accounts and medical, scientific, material and documentary evidence.

14. On 4 January 2000 the applicant and A.S., assisted by their defence lawyers, took cognisance of the documents in the investigation file. They retracted their confessions, and their lawyers requested a fresh interrogation of their clients.

15. On 16 February 2000 the Burgas regional prosecutor referred the file to the investigator for further inquiries. He asked him in particular to conduct a number of investigative measures and once again to formally charge both suspects.

16. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his depositions the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person.

17. On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas regional court.

18. The regional court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day.

19. On 14 June 2001 the Burgas regional court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, which crime had been accompanied by the murder of two persons and committed with the complicity of A.S. He was also found guilty of the unlawful purchase of a pistol and ammunition. The regional court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b [1] of the Law on the Execution of Punishments, the regional court ordered the applicant’s placement under the so-called “special” prison regime.

20. Drawing on the evidence gathered during the preliminary investigation and at the hearing, the regional court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with the applicant. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had purchased a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by bus. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night. Next morning, just before 9 a.m., they had descended to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The young man had died instantly. The two accomplices had then placed the money which they had found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done.

21. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of the procedural and substantive rules under domestic law and that the regional court had shown bias.

22. The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re-examination of one of the witnesses already questioned by the court of first instance, and several additional expert opinions. On 4 December 2001 the judge-rapporteur responsible for the criminal case rejected the requests for further evidence-gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of evidence of bias.

23. The Court of Appeal considered the criminal case between February and July 2002. It questioned a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused.

24. On 6 August 2002 the Burgas Court of Appeal upheld the judgment of the court of first instance, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the court of first instance and produced for the first time before the Appeal Court had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those murders and had provided the weapon used by his accomplice. The Court of Appeal drew on the depositions of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the material and documentary evidence gathered.

25. The Court of Appeal observed that the accused’s initial depositions during the preliminary investigation had differed considerably from their submissions to the court of first instance. The initial depositions had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial depositions, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him.

26. The Court of Appeal turned its attention to the applicant’s version of events stating that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Verifications carried out in the Interior Ministry database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events.

27. The Court of Appeal noted that the judgment of the court of first instance displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the regional court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The regional court had responded to all those requests and had provided full reasons for its procedural decisions. There had been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests.

28. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. The problem was that the regional court had been dilatory in issuing its grounds of judgment. However, the defence had been able to submit additional observations on appeal after having secured a copy of the grounds of judgment.

29. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal.

30. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. That court found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other evidential requests as mentioned by the defence.

31. Furthermore, in adopting the appeal court’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural legislation had been appropriately applied and that the accused’s rights had been fully respected.

B. The applicant’s conditions of detention

32. The applicant was held in Burgas Provisional Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held.

1. Burgas Provisional Detention Facility

33. The applicant submitted that he had been held in a cell without window, toilets or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitation had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench.

34. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Provisional Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared toilet and bathroom and lacked any open-air facilities for detainees. The rapport also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity.

2. Burgas Prison

35. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 m2. It had contained a bed and a metal rack. There had been neither running water nor toilets in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules.

36. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 35 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activity in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.

37. According to a report by the Director of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the official responsible for activities in the prison.

3. Sofia Prison

38. Following his transfer to Sofia Prison the applicant had been subject to a “special” prison regime involving virtually total isolation from the rest of the prison population.

39. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 x 2 metres which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 m2. There had been no running water in the cell and the prisoners had used a bucket as a toilet.

40. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners.

41. The applicant added that up until 2005, the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. Material conditions had improved somewhat after the works in the high-security wing in 2005 and 2006. In December 2008, his prison regime had been relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he has been allowed into an activities room where he can talk to other life prisoners and read books.

42. According to a report by the Director of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 m2 and containing a bed, a table, a rack, a shower and private toilets. His cell had been heated and had running water and proper lighting.

43. Apart from the restrictions imposed by his prison regime, the applicant benefited from all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special commission, and could ultimately be accommodated with the rest of the prison population.

44. Furthermore, in 2010 the applicant applied for the annulment of a number of the provisions of the implementing regulations of the Prisons Act concerning the manner and method of execution of his life sentence. His application was finally dismissed by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the challenged provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their annulment.

C. The applicant’s state of health and the medical care provided in prison

45. In June 2001, while in Burgas Prison, the applicant began a hunger strike in protest against the authorities’ refusal to transfer him to Sofia Prison. He was monitored by the prison medical team while on hunger strike. In July 2001 his state of health worsened and he was transferred, on the initiative of the prison authorities, to the Sofia Prison hospital. On recovery he returned to Burgas Prison.

46. On 26 October 2004 the applicant was taken to the Sofia Prison hospital. Medical examinations revealed that he was suffering from tuberculosis. He received medicinal treatment at the hospital until 15 November 2004. He subsequently asked the prison authorities to allow him to take more exercise in the open air, which request was rejected. The applicant submitted that he had been unable to obtain a diet suited to his state of health either during or after his treatment in the prison hospital.

47. According to the 11 October 2011 report by the Director of Sofia Prison, after his stay in the prison hospital in 2004 the applicant had been given regular medical examinations and biological control analyses. The results of his latest examinations in 2011 had shown that his illness had not returned.

48. In August 2010 and January 2011 the applicant was taken into hospital for headaches and insomnia. He was examined and biological analyses were carried out. The doctors concluded that he was suffering from chronic headaches. No serious complications were detected. The applicant received medicinal treatment and the headaches ceased on release from hospital.

49. According to the same report, the applicant had several appointments with the prison dentist and another dentist chosen by his relatives.

50. Furthermore, according to the above-mentioned reports by the Directors of Sofia and Burgas Prisons, the prisons run a prevention and screening programme for tuberculosis comprising prophylactic examinations, medical analyses in cases of suspected infection and hospitalisation of prisoners positively diagnosed with the disease. Specific groups of prisoners such as drug addicts, HIV-positive persons, persons having previously suffered from tuberculosis and diabetics are the subject of special monitoring by the prison doctors.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The method and manner of executing life sentences and compensation proceedings under the Law on State and Municipal Responsibility for Damage

51. The relevant domestic law and case-law concerning the regulations on the execution of life sentences and actions for damages in respect of damage caused by poor conditions of detention were summarised in Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, §§ 108-135 and §§ 136-146 respectively, ECHR 2014 (extracts).

B. Access to a lawyer during the early days of detention

52. Under section 70 [4] of the former Law on the Interior Ministry, which was repealed in 2006, anyone who was detained by the police on suspicion of having committed a criminal offence was entitled to legal assistance as from the beginning of his prison term.

53. Under Article 73 § 1 of the former Code of Criminal Procedure, defence counsel could participate in the criminal proceedings as soon as the suspect was arrested or charged.

III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)

54. Burgas Provisional Detention Facility was visited in 1999 by a CPT delegation. The relevant part of the report published after that visit reads as follows:

“73. As they were generally the same as those observed in investigation detention facilities during the CPT’s 1995 visit, the report will not describe in detail the conditions observed in Burgas Regional detention facility (15 cells, forty detainees at the time of the delegation’s visit), Nessebur Investigation detention facility (5 cells, six detainees at the time of the visit) and Plovdiv Regional Investigation detention facility (32 cells, forty-eight detainees at the time of the visit). To mention only some of the most important failings, these establishments were overcrowded, poorly equipped and dirty, detainees’ access to toilet/shower facilities was problematic, there was insufficient food and drinking water and a total absence of outdoor exercise and out-of-cell activities. As such, the conditions remain of very serious concern to the CPT.”

55. Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation reads as follows:

“93. At the time of the visit, Burgas Prison held eleven life-sentenced prisoners (including three whose sentences had not been confirmed). Similar to other parts of the establishment, the section for life-sentenced prisoners had benefited from recent refurbishment. Due to the removal of shutters from cell windows, ventilation and access to natural light had clearly improved. New cell equipment had been delivered and each cell (measuring 6 m²) was about to be fitted with a bed, table, chair, notice‑board and cupboard. ...

95. ... Life-sentenced prisoners’ access to the toilet facilities was restricted to three times a day. At other times, they had to use a bucket within their cells. The recommendations already made in paragraphs 82 and 87 concerning access to toilet facilities apply equally to life-sentenced prisoners.

96. ... Life-sentenced inmates referred to recent improvements to their regime, involving, at Burgas, access to the library and recreational activities (e.g. TV, video projections) ... . Further ... the inmates concerned had been given some productive/creative work which they could carry out in their cells. Finally, they were now allowed to use the phone. These are all steps in the right direction.

However, life-sentenced prisoners complained about the lack of possibilities for associating among themselves and with other prisoners. The little time available for face-to-face interaction during daily outdoor exercise ... and recreational/sports activities did not offer adequate scope for human contact. ...

More generally, the CPT recommends that the Bulgarian authorities continue to develop the regime of life-sentenced prisoners at Burgas and Pleven prisons, as well as at other prisons throughout Bulgaria, by integrating them in the mainstream prison population, in accordance with the above-mentioned amendments to the Law on the Execution of Punishments. ...

107. Both Burgas and Pleven prisons held a certain number of inmates suffering from tuberculosis. Tangible efforts were being made by the respective health care services to address the issue on the basis of the updated ‘Working programme for combating tuberculosis in the prison system’, established by the Ministry of Justice in co-operation with the Ministry of Health.

At both establishments, it was standard practice for prisoners with active TB to be transferred to Lovech Prison Hospital for intensive treatment; following this, sustaining treatment was administered by the respective health care services. The CPT’s delegation was told at the two prisons that there was a sufficient supply of anti‑tuberculosis medication. However, it would appear that the taking of anti‑tuberculosis medication at both establishments was not monitored on an ongoing basis, as prescribed by the DOTS strategy for tuberculosis control. The CPT would like to receive the comments of the Bulgarian authorities on this matter.

More generally, the information received by the CPT’s delegation during the 2002 visit indicated that the prevalence of tuberculosis in the Bulgarian prison population had fallen noticeably since 1999. This is a positive development. The CPT encourages the Bulgarian authorities to ensure that vigilance is maintained in respect of tuberculosis control in all penal establishments, especially through adequate screening of the inmate population and the provision of appropriate material resources and training of health care staff. Tuberculosis control should be effected in a consistent manner across the prison system, and in accordance with standards applied in the outside community.”

56. Sofia Prison was visited by a CPT delegation in September 2006, December 2008 and March and April 2014. The three visit reports were published.

57. The relevant part of the report on the 2006 visit reads as follows:

“101. There were 15 lifers at Sofia Prison at the time of the visit; two were being accommodated in the mainstream prison population, while the rest were held in a separate unit in the section used for disciplinary isolation. Lifers in the separate unit were accommodated in single cells measuring 7.5 m²; the cells had a small barred window, set too high in the wall to afford a view out. There was integral sanitation which reduced the limited space in the cell; however, the cells would provide adequate sleeping accommodation for one person provided these prisoners were offered a varied programme of out-of-cell activities during the daytime.

However, in contrast to the situation observed in Pleven and Sliven, life-sentenced prisoners in Sofia Prison lacked communal activities. They were locked up in their cells except for periods of outdoor exercise (1.5 hours like the rest of the inmates at Sofia Prison), which all but four lifers took together. ... In-cell activities included watching TV and reading books from the library and a daily newspaper; further, nine lifers worked in their cells (making gift bags). ...

... As regards those life-sentenced prisoners currently held in special units, the CPT recommends that the Bulgarian authorities continue to develop their regime of activities, in particular by providing more communal activities (including access to work and education) and revising the policy on long-distance learning and computer‑based courses. ...

109. Medical examination on admission generally took place on the day of arrival or the following day, but there were a few isolated cases of delays of several days, undoubtedly a reflection of the meagre staff resources. Further, during the month spent in the reception unit, newly arrived prisoners underwent a number of examinations (including of suicidal risk).

As regards screening for transmissible diseases, it varied from one prison to another. ... At Sofia Prison, screening for HIV was carried out by an NGO on a voluntary basis. As regards screening for tuberculosis, a mobile X-ray unit visited the prisons once a year and all prisoners were screened. ...”

58. The relevant part of the report on the 2008 visit reads as follows:

“74. As noted in paragraph 68, at the time of the visit, there were 18 life-sentenced prisoners at Sofia Prison. Three of them had been integrated into the mainstream prisoner population, while the remainder were being held in a separate unit (Group 1).

75. Material conditions of detention in the lifer unit had remained basically unchanged since the 2006 visit. The installation of integral sanitation in the cells, with a shower head over the toilet and access to hot water all day, was a positive feature; however, as a result, prisoners had less occasions to leave their cells and interact with staff.

Some of the lifers had their own television sets and playstations in their cells...

76. As regards activities, one notable change since the 2006 visit was the entry into operation of a social room (“club”) in the lifer unit. This good facility was decorated in pleasant light colours and furnished with bookcases, a chess table with two chairs, a larger table with five chairs, a cupboard with games including a backgammon board, a television set with DVD player and a sink. Lifers were divided into three subgroups on the basis of common interests (playing cards, chess, discussing legal matters, etc.) and each group was allowed to use the social room for one hour each weekday. At weekends, there were only the two officers present, which made it difficult to organise activities.

Lifers who were willing to work (12 of the 15 in the lifers unit) worked in their cells on the same kinds of piece work as was observed on the 2006 visit (e.g. putting strings on boutique bags).

Further, outdoor exercise for one and a half hours per day was offered to all lifers. The delegation noted that a shelter had been provided at one end of the exercise yard.

Despite the above-mentioned welcome introduction of a social room, which increased the amount of time spent out of the cells and in association with other prisoners, the daily regime in the lifer unit remained monotonous. The CPT recommends that the Bulgarian authorities strive to enhance the programme of activities provided to life-sentenced prisoners at Sofia Prison, if necessary, by increasing staffing.

77. Staff on the lifer unit indicated that two of the inmates were in their first 5 years of a life sentence and were therefore subject to particular security restrictions. The two lifers were escorted in handcuffs and were not allowed television. It was up to the Director to review the use of handcuffs, but there was no time limit on their use and no regular review period.

As already stated in the report on the 2006 visit, the CPT considers that there can be no justification for routinely handcuffing a prisoner within a secure environment, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review the policy of handcuffing life-sentenced prisoners when outside their cells.

78. The CPT has in the past expressed its serious misgivings about the current legal provisions whereby lifers are systematically subjected to a strict and segregated regime for an initial period ordered by the sentencing court (i.e. 5 years). This approach runs counter to the generally accepted principle that offenders are sent to prison as a punishment, not to receive punishment.

The Committee does not question that it may be necessary for some prisoners to be subject, for a certain period of time, to a special security regime. However, the decision whether or not to impose such a measure should lie with the prison authorities, be based on an individual risk assessment and be applied only for the shortest period of time. A special security regime should be seen as a tool of prison management, and not be made part of the catalogue of criminal sanctions to be imposed by courts.

In many countries, lifers are not viewed as necessarily more dangerous than other prisoners; many of them have a long‑term interest in a stable and conflict free environment. Therefore, the approach to the lifer management should proceed from individual risk and needs assessment to allow decisions concerning security, including the degree of contact with others, to be made on a case-by-case basis.

Whereas lifers should not be systematically segregated from other prisoners, special provision should be made to assist lifers and other long‑term prisoners to deal with the prospect of many years in prison. In this respect, reference should be made to Rule 103.8 of the European Prison Rules which states that ‘particular attention shall be paid to providing appropriate sentence plans and regimes for life-sentenced prisoners’, taking into consideration the principles and norms laid down in the Council of Europe Recommendation on the ‘management by prison administrations of life-sentence and other long term prisoners’.

Pursuant to Bulgarian law, after the initial 5 years of their sentence, lifers are eligible for allocation within the mainstream prisoner population if they have behaved well and have had no disciplinary punishments. However, in practice, only a minority of lifers (3 out of 18 at Sofia Prison) had found their way into the mainstream, some after many years served in the lifer unit. The CPT invites the Bulgarian authorities to build on the success of the ‘experiment’ of integrating some life-sentenced prisoners into the mainstream prison population, which should be considered as an appropriate part of the management of this category of prisoner and reinforced by legislative measures.

More generally, the CPT recommends that the Bulgarian authorities review the legal provisions and practice concerning the treatment of life-sentenced prisoners, in the light of the above remarks.”

The 2008 report contained no particular comments on care and treatment for infectious diseases, including tuberculosis, in Sofia Prison.

59. The relevant part of the report on the 2014 visit reads as follows:

“84. The review of the situation of life-sentenced prisoners in Bulgaria, carried out by the CPT’s delegation in the course of the 2014 visit, demonstrated that little – if anything at all – had been done to improve their condition in the light of the Committee’s long-standing recommendations...

85. All the prisons visited had a high-security unit in which the vast majority of life-sentenced prisoners were accommodated, the remaining small minority having been allowed to integrate into the mainstream prison population. At the time of the visit, there were ... 21 [life-sentenced prisoners] at Sofia Prison (15 in the high‑security unit – Group 1) ... . At the time of the visit, there were ... nine [“real lifers”] at Sofia Prison ... .

In the absence of any change in the legislation governing the criteria for changing the regime of a lifer (despite repeated recommendations from the CPT to this effect), the very small proportion of life-sentenced prisoners allowed to associate with other sentenced prisoners (non-lifers) is hardly surprising. The CPT calls upon the Bulgarian authorities to review the current legal provisions in order to ensure that the segregation of lifers is based on an individual risk assessment and is applied for no longer than strictly necessary.

86. ... The lifers’ cells seen at Sofia and Vratsa were larger (measuring between 8 and 9 m²) and many of them were used for double occupancy.

The material conditions varied from one lifers’ cell to another in each prison, but they were generally characterised by a more or less advanced state of dilapidation and insalubrity (mould on the walls, water on the floor, etc.). Cells at Sofia Prison had very poor access to natural light but the artificial lighting was adequate. ...

87. Life-sentenced prisoners could take a shower twice a week in the four prisons visited. Apart from Burgas Prison, all cells for lifers were equipped with (partially screened) sanitary annexes, comprising a toilet and a washbasin. ... With the positive exception of Vratsa Prison, the in-cell sanitary annexes, as well as the communal showers, toilets and washing facilities, were generally as dilapidated and dirty as elsewhere in the prisons visited. Further, the situation with respect to personal hygiene items and cleaning products was the same as for the rest of the respective prison populations.

88. In the light of the observations in paragraphs 86 and 87, the CPT calls upon the Bulgarian authorities to take the following steps in respect of material conditions in the units for lifers in the prisons visited:

- take out of service any single cells in which the living space is less than 6 m², in-cell sanitary annexe excluded; ...

- refurbish the lifers’ cells in all the prisons concerned, paying particular attention to access to natural light at Sofia Prison; in the course of the refurbishment works, all cells should be fitted with fully screened sanitary annexes (i.e. with a partition up to the ceiling); ...

These recommendations apply mutatis mutandis to all the cells located in the high-security units of Belene, Burgas, Sofia and Vratsa prisons, including the disciplinary and segregation cells.

As regards the in-cell sanitary annexes, communal toilets, washing and shower facilities at Belene, Burgas and Sofia prisons, and the provision of basic hygiene products as well as materials for cleaning cells, reference is made to the recommendation in paragraph 74 above.

89. Turning to activities, two [lifers had work] at Sofia Prison ...

As regards other activities, lifers at all the prisons visited could have TV and/or radio sets in their cells, as well as books, newspapers and (sometimes) DVD players and playstations. Life-sentenced inmates at Sofia Prison were entitled to an hour and a half of association in a common room per day, which was often not taken as the room was only equipped with a table and chairs and there was nothing to do there. ...

90. Outdoor exercise was available for ... an hour and a half per day at Sofia Prison ... . In addition, at Sofia and Vratsa prisons the lifers had access to a gym for one hour, five days a week.

91. The CPT remains of the view that the regime for life-sentenced prisoners in Bulgaria should be fundamentally reviewed, so as to include a structured programme of constructive and preferably out-of-cell activities; educators and psychologists should be proactive in working with life-sentenced prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day.

Consequently, the Committee reiterates its recommendation that the Bulgarian authorities continue to develop the regime for life-sentenced prisoners, in particular by providing more communal activities (including access to work and education). ...

93. Overall, the delegation noted in the prisons visited that the security measures with respect to life-sentenced prisoners were being applied on the basis of an individual risk assessment; further, they were regularly reviewed and the aim was to reduce gradually the level of restraints imposed on the inmates. The delegation was positively impressed by the practice observed at Vratsa Prison, where (by decision of the director) life-sentenced prisoners were no longer handcuffed while outside their cells, except when being escorted outside the secure detention areas of the prison; further, custodial officers working with the lifers did not carry truncheons. Also in ... Sofia, most lifers were no longer handcuffed while moving within their units. ...

100. Many times in the past, the Committee has stressed the importance of medical screening of newly-arrived prisoners, in particular in the interests of preventing the spread of transmissible diseases, suicide prevention, and ensuring the timely recording of any injuries.

In all the penitentiary establishments visited, newly-arrived prisoners were in principle seen by health-care staff within 24 hours from their arrival. That said, there were some exceptions: inmates who arrived on a Friday were usually not seen before the following Monday; further, delays of up to seven days were found at ... Sofia prison.

The medical screening process was of a superficial character (if not a mere formality) in most of the establishments visited, and consisted of an interview and taking an inmate’s pulse and blood pressure. That said, the procedure at Belene and Vratsa prisons also included the screening for tuberculosis, whereas in the other prisons such a screening was only performed once a year and not on admission; as for Boychinovtsi Correctional Home, TB screening upon arrival was not performed systematically. Other tests (e.g. for HIV, hepatitis B/C) could be performed on a voluntary basis, but none of the establishments did that as a routine measure. ...

The CPT reiterates its recommendation that steps be taken to ensure strict adherence to the rule that all prisoners must be seen by a health-care staff member immediately upon arrival, as specified in the law. The medical examination on admission should be comprehensive, including a physical examination.”

LAW

I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

60. The applicant alleged that he had not received the medical care required for his state of health during his incarceration, and also complained about the material conditions of detention and the prison regime in Burgas Provisional Detention Facility and Burgas and Sofia Prisons. He relied on Article 3 of the Convention, which provides:

Article 3

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

A. Admissibility

1. The parties’ submissions

61. The Government submitted that the domestic remedies had not been exhausted. They pointed out that the applicant had not brought an action for damages as provided for in section 1 of the Law on State and Municipal Responsibility for Damage. That action was a remedy well-established in the case-law of the domestic courts which would have enabled the applicant to secure recognition of the breach of his right not to be subjected to inhuman and degrading treatment and might, if appropriate, have led to the award of pecuniary compensation.

62. The applicant submitted that an action for damages under section 1 of the Law on State and Municipal Responsibility for Damage could not be deemed an effective remedy in his case, as such an action was solely compensatory in nature and could not be used to improve his material conditions of detention. Those conditions had remained unchanged from 1999 to 2005, when the prison authorities had implemented a programme to rehabilitate the high-security wing of Sofia Prison. However, even after 2005 life prisoners continued to be separated from the rest of the prison population and had insufficient out-of-cell activities, which cannot be regarded as a situation compatible with Article 3 of the Convention.

63. The applicant added that before 2007, when the legislature introduced a flat-rate court fee of BGN 10, the court fees payable for an action for damages against the State had been proportional to the amount claimed, which had constituted an unfair obstacle to prisoners wishing to bring such an action. Moreover, the domestic courts had awarded very low compensation in cases similar to that of the applicant.

64. The action for damages had been ineffective vis-à-vis the applicant’s strict prison regime, given that the latter had been imposed on the basis of the legislation in force at the time and that its implementation by the prison authorities had not been regarded by the courts as an unlawful act.

65. Nor could an action for damages against the State constitute an effective remedy vis-à-vis the alleged lack of appropriate medical care in prison, in view of the permanent risk of fresh contamination in the prison. Furthermore, the applicant not been provided with an appropriate diet and his request for more daily open-air rejected.

2. The Court’s assessment

a) The alleged lack of appropriate medical care in prison

66. The applicant complained, first of all, of the lack of appropriate medical care in prison.

67. The Court reiterates that under Article 3 of the Convention, the State must protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX, and Farbtuhs v. Latvia, no. 4672/02, § 51, 2 December 2004).

68. The Court sees no need to consider the Government’s objection that the applicant failed to exhaust domestic remedies in the present case because it considers that in any event the complaint is inadmissible for the reasons set out below.

69. The Court observes that the applicant was monitored by the prison doctors during his hunger strike in Burgas Prison in June and July 2001. After a certain lapse of time he was taken to hospital because of his deteriorating state of health, and was returned to Burgas Prison after he had fully recovered (see paragraph 45 above).

70. In October 2004, that is to say eight months after his transfer to Sofia Prison, he contracted tuberculosis (see paragraph 46 above). He was taken into the prison hospital where he received the requisite medical treatment, since the results of his regular check-ups showed that his illness had not returned (see paragraph 47 above). According to the prison authorities’ reports, which the applicant does not dispute, the prison doctors are keeping him under constant surveillance (ibid.).

71. In 2010 and 2011 he was once again hospitalised for chronic headaches and insomnia. The doctors detected no serious complications and his state of health improved after his stay in the prison hospital. Furthermore, the applicant had several appointments with two dentists – the prison dentist and another dentist chosen by his relatives (see paragraphs 48-49 above).

72. In the light of these facts the Court does not consider that the Bulgarian prison authorities failed to comply with their obligation to provide the applicant with appropriate medical card. It was clearly while in prison that the applicant contracted tuberculosis. However, the Court reiterates that this fact in itself does not incur the State’s responsibility under Article 3, provided that he received treatment for the illness (see, among many other authorities, Alver v. Estonia, no. 64812/01, § 54, 8 November 2005; Pitalev v. Russia, no. 34393/03, § 53, 30 July 2009; and Gladkiy v. Russia, no. 3242/03, § 88, 21 December 2010). It transpires from the case file that the applicant was treated at the prison hospital, that he is under constant surveillance by the prison doctors and that he has had no relapse of tuberculosis since 2004. The case file also shows that the applicant’s hospital treatment and ongoing medical surveillance are part of a prevention and screening programme for tuberculosis in prisons run by the prison authorities (see paragraphs 50 and 57 above). The Court also observes that the reports on the CPT visits to Sofia Prison do not include any particular criticism of the medicinal treatment or the medical supervision of prisoners suffering from tuberculosis (see paragraphs 57 and 59 above).

73. The Court therefore considers that this complaint as submitted by the applicant is manifestly ill-founded and should accordingly be rejected pursuant to Article 35 §§ 3 a) and 4 of the Convention.

b) The material conditions of detention and the applicant’s prison regime

74. The applicant complained of the material conditions of detention in the Burgas Provisional Detention Facility and Burgas and Sofia Prisons. He also complained of the prison regime under which he was serving his life sentence.

75. The Government submitted that the domestic remedies had not been exhausted. They pointed out that the applicant had not brought an action for damages as provided for in section 1 of the Law on State and municipal responsibility for damage.

76. The Court reiterates that the rule set out in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness (see, among many other authorities, Salman v. Turkey [GC], no. 21986/93, § 81, ECHR 2000‑VII, and İlhan v. Turkey [GC], no. 22277/93, § 58, ECHR 2000‑VII).

77. It is incumbent on the Government claiming that domestic remedies have not been exhausted to satisfy the Court that the remedy which it claims the applicant has not used was an effective one available in theory and in practice. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement to use that remedy (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV).

78. According to the established case-law of the Court, remedies of a purely compensatory nature, like the action for damages provided for in section 1 of the Law on State and Municipal Responsibility for Damage mentioned by the Government, could only be regarded as effective with respect to applicants who had either been released or placed in Article 3-compliant conditions of detention (see Harakchiev and Tolumov, cited above, §§ 222-225).

79. As regards the circumstances of the present case, the Court observes that the applicant is still being held in Sofia Prison. Apart from a number of positive changes to his material conditions of detention relating to the area of his cell and the sanitary facilities installed in it (see paragraph 42 above), he is still subject to a highly restrictive prison regime characterised by isolation from the rest of the prison population and insufficient activities (see paragraphs 41 and 59 above). Given that the domestic courts consider that the manner and method of executing life sentences are not contrary to domestic legislation, no possible action for damages based on section 1 of the Law on State and Municipal Responsibility for Damage complaining of such manner and method would stand any chance of success (see Harakchiev and Tolumov, cited above, §§ 142, 143 and 226). Moreover, the remedy used by the applicant himself against the provisions of the implementing regulations of the Prisons Act concerning the manner and method of execution of his life sentence was dismissed by the administrative courts on the ground that those provisions were in conformity with higher-level legislation (see paragraph 44 above). Consequently, the remedy mentioned by the Government is incapable of offering redress for the alleged violation of Article 3.

80. The Government’s objection of non-exhaustion must accordingly be dismissed.

81. The Court also notes that the present complaint is not manifestly ill-founded for the purposes of Article 35 § 3 a) of the Convention and that it is not inadmissible on any other grounds. It should therefore be declared admissible.

B. Merits

1. The parties’ submissions

a) The applicant

82. The applicant submitted that he had been held for many years in appalling material conditions of detention in three different prisons: he had been locked up in small, dilapidated cells without in-cell sanitation or adequate lighting, ventilation or hygiene.

83. Those material conditions had been compounded with a prison regime which subjected him to continuous isolation from the rest of the prison population and afforded him insufficient out-of-cell activities.

84. The applicant took the view that the negative effects of those conditions of detention and his prison regime exceeded the severity threshold for application of Article 3 and that he had therefore suffered inhuman and degrading treatment.

b) The Government

85. The Government contested the applicant’s argument. They pointed out that in incarcerating the applicant in the three prisons in question the authorities had in no way intended to subject him to treatment incompatible with Article 3 of the Convention.

86. The Government submitted that the applicant was currently being held in a cell which was of a decent size, was well furnished and had all the necessary sanitary facilities. He had time in the open air every day and other access to other activities available in Sofia Prison: visits to the library, attendance at religious services and receipt and expedition of correspondence.

87. The Government considered that the severity threshold for the applicability of Article 3 had not been attained in the present case. They therefore invited the Court to dismiss the applicant’s complaint under that Article of the Convention.

2. The Court’s assessment

88. The Court reiterates that according to its case-law ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). The main question facing the Court in the present case is therefore whether the applicant’s material conditions of detention, taken in conjunction with the manner and method of executing his life sentence, exceeded the severity threshold required for the application of Article 3 of the Convention.

89. The applicant has been incarcerated since October 1999. Since that date he has been held in three different establishments: the Burgas Provisional Detention Facility, Burgas Prison and Sofia Prison.

90. The Court notes that the parties agree on the inadequacy of the material conditions which prevailed in the Burgas Provisional Detention Facility between October 1999 and April 2000, when the applicant was held there (see paragraphs 33-34 above). The report on the 1999 CPT visit corroborates this finding (see paragraph 54 above).

91. The applicant was subsequently transferred to Burgas Prison, where he remained from 2000 to 2004 (see paragraph 32 above). In the report on its 2002 visit the CPT delegation stated that the wing for life prisoners in Burgas Prison where the applicant’s cell was located had recently been refurbished, that the individual cells had an area of 6 m2 each and had adequate ventilation and lighting. The main problem noted by the CPT delegation had been the restricted access to the shared sanitary facilities and the use of buckets as toilets by the prisoners (see paragraph 55 above).

92. On 25 February 2004 the applicant was transferred to Sofia Prison, where he continued to serve his sentence. According to the reports of the 2006, 2008 and 2014 CPT visits to that prison, all the cells in the prison’s high-security wing had in-cell sanitary facilities (see paragraphs 57-59 above). According to information presented by the Government, this section of the prison was renovated in 2005 and 2006, and the applicant benefited from a decent-sized individual cell (see paragraph 42 above). However, the report of the CPT’s visit in 2014 once again singles out the general dilapidation of the area of Sofia Prison reserved for prisoners serving life sentences, and the lack of daylight and insufficient hygiene in the premises (see paragraph 59 above).

93. The Court notes that throughout his years in prison the manner and method of executing the applicant’s life sentence, as determined by the prison regime assigned to him, were highly restrictive. The applicant had initially been assigned a so-called “special” prison regime: he had spent twenty-three hours a day locked up in his cell, mostly on his bed; his access to the prison library had been limited to the few minutes it took to choose and borrow a book; he had been allowed to attend the prison chapel twice a year, with a ban on meeting other prisoners (see paragraphs 38 and 40 above). In 2008 his prison regime was relaxed (see paragraph 41 above). However, like all prisoners in his category, he was still kept separate from the rest of the prison population and his cell was kept locked during the day (ibid.). The successive CPT reports show that the prisoners in the high-security wing of Sofia Prison have very few out-of-cell activities and are kept separated from the other prisoners (see paragraphs 57-59 above).

94. In the light of the foregoing facts and as it noted in the recent judgment in the case of Harakchiev and Tolumov, cited above, §§ 203-214, the Court considers that the applicant’s poor conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term in question, subjected the applicant to an ordeal far exceeding the suffering inherent in the execution of a prison sentence. The Court therefore finds that the severity threshold required for the application of Article 3 of the Convention was exceeded in the present case. The applicant was placed in an ongoing situation of infringement of his right not to be subjected to inhuman and degrading treatment.

95. There was therefore a violation of Article 3 of the Convention.

II. THE ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

96. In his observations of 12 April 2012 the applicant complained that he had no domestic remedy capable of providing redress for alleged violations of Article 3. He relied on Article 13 of the Convention, which provides:

Article 13

“Everyone whose rights and freedoms as set forth in this 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.”

97. The Court observes that the applicant submitted two separate complaints under Article 3 of the Convention, the first concerning the lack of adequate medical care, and the second the material conditions of detention and the prison regime.

98. As regards the complaint concerning the alleged lack of adequate medical care in prison, it should be observed that the Court had declared it inadmissible as being manifestly ill-founded (see paragraphs 66-73 above). It follows that the applicant’s complaint in this respect is not an “arguable claim”, which is a prerequisite for complaining of a possible violation of Article 13. That part of his application is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 a) and 4 of the Convention.

99. As regards the other complaint under Article 13 in conjunction with Article 3, namely the absence of a domestic remedy against his conditions of detention, the Court observes that in 2010 the applicant appealed to the Bulgarian administrative courts against the provisions of the implementing regulations of the Prisons Act governing specific aspects of his restrictive prison regime. That appeal was ultimately dismissed by the Supreme Administrative Court on 14 September 2011 (see paragraph 44 above). Having regard to the circumstances of the case, the Court considers that the latter date should be taken as the starting point of the six-month time-limit on lodging the complaint under Article 13 concerning the poor conditions of detention. However, the applicant did not lodge that complaint until 12 April 2012, that is to say seven years ten months after lodging the aforementioned complaints under Article 3 alone, and seven months after the relevant final decision. It follows that that complaint was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 de la Convention.

III. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 3 c) TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION

100. The applicant alleged that he had not been assisted by a lawyer during the first few days of his detention. In his observations of 12 April 2012 he also complained that the subsequent interviews with his lawyers in the Provisional Detention Facility had been held in the presence of the investigator. He relied on Article 6 §§ 1 and 3 c), which provide:

Article 6

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”

A. Admissibility

101. The applicant first of all complained that he had not been assisted by a lawyer during the first few days of his detention. The Court notes that that complaint is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

102. As regards the applicant’s second complaint, namely that he was unable to have confidential conversations with his lawyers during his detention, the Court observes that that claim was made for the first time in the applicant’s observations of 12 April 2012, that is to say more than twelve years after the events in question (see paragraphs 10-16 above) and eight years and four months after the conclusion of the criminal proceedings against the applicant (see paragraph 30 above). It follows that that complaint was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

B. The merits

1. The parties’ submissions

103. The applicant submitted that he had been arrested in Sofia on 3 October 1999 and that the next day he had been transferred to Burgas. For the first three days of his detention he had been questioned by the police officers without a lawyer, despite express requests for the assistance of a defence lawyer. On 6 October 1999 he had had a short conversation with an officially appointed lawyer just before being charged with holding up a bureau de change and murdering two persons.

104. The applicant pointed out that access to a lawyer was one of the essential safeguards of any fair criminal trial. In his case, even though the initial questioning conducted by the police officers had not, from the legal angle, formed part of the preliminary investigation against him, his inability to meet with a lawyer during that initial period of his detention had infringed his right of defence and his right to a fair trial.

105. The Government contested the applicant’s argument. They pointed out that the applicant had been charged and questioned for the first time on 6 October 1999 in the presence of an officially appointed lawyer. No investigative measure had been carried out during the previous three days. Moreover, given that domestic legislation guaranteed access to a lawyer as from the time of placement in detention, the applicant could have asked to contact a lawyer of his choice well before 6 October 1999, which he had not seen fit to do.

106. Furthermore, the applicant had remained silent. He had not confessed the offences until 21 October 1999, when he had already secured the assistance of lawyers of his choice. Under those circumstances the Government submitted that the fact that the applicant had not been assisted by a lawyer for the first few days of his detention had not infringed his right to effective defence in the framework of the criminal proceedings against him. The fairness of the criminal proceedings had therefore been respected.

2. The Court’s assessment

107. The Court reiterates that the guarantees under the criminal aspect of Article 6 – especially paragraph 3 – may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275).

108. The Court has affirmed on several occasions that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 c), is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277‑A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). That being the case, Article 6 § 3 c) leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Imbrioscia, cited above, § 38).

109. In order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008).

110. Moreover, la Court has found that a systematic prohibition of legal assistance for suspects while in police custody, on the basis of the relevant statutory provisions, constitutes a violation of Article 6, notwithstanding that the applicant remained silent when questioned in police custody (see Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009).

111. The Court observes at the outset that a distinction must be made between the present case and the case of Dayanan, cited above, inasmuch as, unlike Turkish legislation at the material time, the relevant Bulgarian legislation did not restrict the right of detainees to be assisted by lawyers of their choice as from the time of their arrest. Section 70 [4] of the former Law on the Interior Ministry guaranteed the applicant’s access to a lawyer as from the time of his arrest by the police on 3 October 1999, and Article 73 § 1 of the former Code of Criminal Procedure extended the same guarantee to the applicant’s detention as ordered on 4 October 1999 by the preliminary investigation authorities (see paragraphs 52 and 53 above). Those rules were not subject to derogation.

112. The parties agreed that the applicant nonetheless did not actually benefit from this legal safeguard. The Government submitted that the applicant had not asked to consult a lawyer during that period (see paragraph 105 above). The applicant stated the opposite (see paragraph 103 above). The Court is not in a position to determine whether the fact that the applicant had no contact with a lawyer before 6 October 1999 was due to his own passivity or, as he would appear to claim, to the authorities’ mala fide. However that may be, the Court considers that it must now ascertain, in the light of its established case-law, particularly the principles set out in its Salduz judgment, cited above, whether the fact complained of by the applicant irremediably diminished the fairness of the criminal proceedings as a whole.

113. The Court first of all observes that no case paper indicates that the applicant was questioned during the first three days of his detention in the absence of a lawyer (see, by contrast, Salduz, cited above, § 14, and Adamkiewicz v. Poland, no. 54729/00, § 87, 2 March 2010). All his interrogations by the authorities responsible for conducting the criminal investigation against him took place after he had been formally charged on 6 October 1999, in the presence of a lawyer (see paragraphs 10-12 and 16 above). No other investigative measure involving the applicant had been implemented during the three days when he was not assisted by a lawyer (see, by contrast, Mehmet Şerif Öner v. Turkey, no. 50356/08, § 21, 13 September 2011).

114. The applicant remained silent during his initial interrogations by the investigator, in the presence of his lawyers, on 6 and 12 October 1999. He did not confess until 21 October 1999, when he was being assisted by a lawyer of his choice during questioning (see paragraph 12 above). Admittedly, the applicant subsequently retracted his initial confession, presenting a version of events to the effect that the crimes of which he was suspected had been committed by a foreigner (see paragraphs 14, 16 and 25 above). Notwithstanding that fact, the Court considers that the applicant cannot claim not to have known, at the time of his confession to having taken part in the hold-up in question, that the initial confession could be used in evidence against him during the criminal proceedings.

115. The applicant’s confession was indeed used as a relevant piece of evidence during his trial. However, it is clear that his conviction was not based exclusively on that confession. The domestic courts took into account other evidence corroborating the version of events whereby the applicant had indeed organised the hold-up in question and had encouraged his accomplice A.S. to open fire on the two victims. During his trial he was assisted by lawyers of his choice. He was allowed to present his version of events, to put forward arguments in favour of his acquittal and to secure the gathering of exculpatory evidence. The domestic courts provided detailed reasons for their judgments (see paragraphs 18-31 above).

116. The Court accordingly finds that the fact that the applicant was not assisted by a lawyer for the first three days of his detention did not diminish his right to defend himself effectively in the framework of the criminal proceedings. His right not to incriminate himself was respected and the fairness of the criminal proceedings was properly ensured. There was therefore no violation of Article 6 § 3 c) taken in conjunction with Article 6 § 1 of the Convention.

IV. THE APPLICATION OF ARTICLE 41 OF THE CONVENTION

117. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damages

118. The applicant clamed 28,000 euros (EUR) in respect of the non-pecuniary damage which he allegedly sustained.

119. The Government considered this claim excessive.

120. The Court considers that the applicant sustained some level of non-pecuniary damage owing to the poor conditions to which he was exposed in the prisons and other places of detention in which he was held and to the restrictive prison regime imposed on him. In order to determine the amount of compensation to be awarded in the present case, the Court holds that regard should be had to the applicant’s protracted period of detention, the entirety of the inappropriate material conditions in the three places of detention in which he was held over the years and the ongoing imposition of a prison regime providing insufficient opportunities for human contact and out-of-cell activities. In the light of the aforementioned circumstances and bearing in mind the amounts awarded in respect of non-pecuniary damage in other similar cases against Bulgaria (see in particular Harakchiev and Tolumov, cited above, § 286), the Court considers that the applicant should be paid a total of 8,000 EUR under this head.

B. Costs and expenses

121. The applicant also claimed 1,910 EUR and 1,329 Bulgarian Levs (BGN) in respect of costs and expenses incurred before the Court. He requested that the sum of 1,910 EUR be paid directly into the bank account of his representative, Ms S. Margaritova-Vuchkova.

122. The Government considered that claim excessive and unsubstantiated.

123. According to the Court’s 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. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sums requested in respect of costs and expenses reasonable and justified and awards them to the applicant. It also accepts the request that the sum of 1,910 EUR be paid directly into his representative’s account, and that the sum of 679.50 EUR (corresponding to 1,329 BGN) be paid into the applicant’s bank account.

C. Default interest

124. 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

1. Declares the application admissible as regards the complaint under Article 3 concerning the applicant’s material conditions of detention and his prison regime and the complaint under Article 6 § 3 c) taken in conjunction with Article 6 § 1 concerning the lack of access to a lawyer during the first three days of his detention, and inadmissible for the remainder;

2. Holds that there was a violation of Article 3 of the Convention;

3. Holds that there was no violation of Article 6 § 3 c) taken in conjunction with Article 6 § 1 of the Convention;

4. Holds

a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into Bulgarian Levs (BGN) at the applicable rate on the date of payment:

i) 8,000 EUR (eight thousand euros), plus any tax that may be chargeable to the applicant on this sum, in respect of non-pecuniary damage;

ii) 2,589.50 EUR (two thousand five hundred and eight-nine euros and fifty cents), plus any tax that may be chargeable to the applicant on this sum, in respect of costs and expenses, including 679.50 EUR (six hundred and seventy-nine euros and fifty cents) to be paid directly into the applicant’s account, and 1,910 EUR (one thousand nine hundred and ten euros) to be paid into his legal representative’s account;

b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Rejects the claim for just satisfaction for the remainder.

Done in French, and notified in writing on 20 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosGuido Raimondi
RegistrarPresident

 

Full & Egal Universal Law Academy