Information Note on the Court’s case-law No. 176
July 2014
Harakchiev and Tolumov v. Bulgaria - 15018/11 and 61199/12
Judgment 8.7.2014 [Section IV]
Article 3
Degrading punishment
Inhuman punishment
Whole-life prison regime offering inadequate opportunities of rehabilitation to obtain reduction in sentence: violation
Facts – The two applicants were serving sentences of life imprisonment, the first applicant without commutation, the second with commutation. Both applicants were held under the strict detention regime applicable to life prisoners, which entailed confinement to permanently locked cells for the greater part of the day and isolation from other prisoners. In their applications to the European Court, they complained of their conditions of detention (Article 3 of the Convention) and of the lack of an effective domestic remedy (Article 13).
In addition, the first applicant complained that his life sentence without commutation and no prospects of rehabilitation amounted to inhuman and degrading punishment in breach of Article 3. The sentence of life imprisonment without commutation was introduced in Bulgaria in December 1998 following the abolition of the death penalty. It exists alongside the penalty of “simple” life imprisonment, which is commutable. With effect from 13 October 2006 the Bulgarian President’s discretionary power of clemency has included the power to commute all life sentences, including those imposed without commutation. In 2012 the Bulgarian Constitutional Court* ruled that the power of clemency had to be exercised in a non-arbitrary way, subject to the duty to give effect to the constitutional values and principles and to take into account equity, humanity, compassion, mercy, the health and family situation of the convict and any positive changes in the convict’s personality. A Clemency Commission was set up in 2012 to advise on the exercise of the power of clemency, and laid down rules of procedure governing its work.
Law – Article 3
(a) Conditions of detention (both applicants) – The applicants had remained in permanently locked cells and isolated from the rest of the prison population throughout the entire period of their incarceration. They were confined to their cells for 21 to 22 hours a day, unable to interact with other inmates, even those housed in the same units. The automatic segregation of life prisoners from the rest of the prison population and from each other, in particular where no comprehensive out-of-cell activities or in-cell stimulus are available, could in itself raise an issue under Article 3 of the Convention. There was no evidence that either applicant could be regarded as dangerous to the point of requiring such stringent measures. Indeed, the applicants’ isolation appeared to a great extent to be the result of the automatic application of the domestic legal provisions regulating the prison regime rather than any security concerns as to their behaviour. In addition the applicants had limited access to outdoor exercise and reasonable activities, and since they were only allowed out of their cells to use the toilet three times a day they had to resort to the use of buckets.
The distress and hardship endured by the applicants as a result of the cumulative effect of their conditions of detention and the period of detention (respectively 12 and 14 years) had thus exceeded the unavoidable level of suffering inherent in detention and went beyond the minimum threshold of severity required for a breach of Article 3. It constituted inhuman and degrading treatment.
Conclusion: violation (unanimously).
(b) Life imprisonment without commutation (first applicant) – The Court reiterated that the imposition of an irreducible life sentence could raise an issue under Article 3. However, a life sentence did not become “irreducible” by the mere fact that in practice it could be served in full: it was enough for the purposes of Article 3 that such a sentence be de jure and de facto reducible** In order to remain compatible with Article 3 a life sentence had to offer both a prospect of release and a possibility of review because a prisoner could not be detained unless there were legitimate penological grounds, which included rehabilitation, for his incarceration. A whole life prisoner was entitled to know at the outset of his sentence what he or she would have to do to be considered for release and under what conditions, including when a review of his sentence would take place or may be sought.***
While it was clear that the first applicant’s sentence had been de jure reducible since the amendment to the law in 2006, the position before that date was less clear. But irrespective of the question of de jure reducibility, the Court was not persuaded that throughout the relevant period the sentence was de facto reducible or that the first applicant could have known that a mechanism existed to permit him to be considered for release or commutation.
From the time the first applicant’s sentence became final in November 2004 until the beginning of 2012, the way the presidential power of clemency was exercised was opaque with no policy statements made publicly available and no reasons provided for individual clemency decisions. The process lacked any formal or even informal safeguards and there were there no concrete examples of a person serving a sentence of life imprisonment without commutation having been able to obtain an adjustment of sentence during that time.
Since the reforms introduced in 2012 as a result of the decisions of the new President, the practice of the Clemency Commission and the Constitutional Court’s decision of 11 April 2012, there was considerable clarity about the manner of exercise of the presidential power of clemency, such that the first applicant could now be regarded as knowing that a mechanism existed to enable him to be considered for release or commutation.
However, the Court also had to consider whether the first applicant had been given a genuine opportunity to reform. While the Convention did not guarantee, as such, a right to rehabilitation, and while Article 3 did not impose on the authorities an absolute duty to provide prisoners with rehabilitation or reintegration programmes and activities, it did require the authorities to give life prisoners a chance, however remote, to someday regain their freedom. For that chance to be genuine and tangible, the authorities also had to give life prisoners a proper opportunity to rehabilitate themselves. Although the States enjoyed a wide margin of appreciation in this sphere, the regime and conditions of a life prisoner’s incarceration could not be considered a matter of indifference. The first applicant had been subjected to a particularly stringent prison regime, with almost complete isolation and very limited possibilities for social contact. The deleterious effects of that impoverished regime, coupled with the unsatisfactory material conditions in which he was held, must have seriously weakened the possibility of his reforming and thus entertaining a real hope that he might one day achieve and demonstrate his progress and obtain a reduction of sentence. To that should be added the lack of consistent periodical assessment of his progress towards rehabilitation. Accordingly, his life sentence could not be regarded as de facto reducible in the period following the 2012 reforms.
Conclusion: violation (unanimously).
The Court also found (unanimously) a breach of Article 13 on account of the lack of an effective remedy under Bulgarian law for the applicants to complain of their conditions of detention.
Article 46: In order to properly implement the judgment Bulgaria should reform, preferably by means of legislation, the legal framework governing the prison regime applicable to persons sentenced to life imprisonment with or without parole addressing, in particular, the automatic imposition of a highly restrictive prison regime and isolation on all life prisoners.
Article 41: EUR 4,000 to the first applicant and EUR 3,000 to the second applicant in respect of the non-pecuniary damage flowing from their conditions of detention; finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage the first applicant had suffered as a result of being unable to obtain a reduction of his sentence of life imprisonment without commutation.
* Decision no. 6 of 11 April 2012.
** Kafkaris v. Cyprus [GC], 21906/04, 12 February 2008, Information Note 105.
*** Vinter and Others v. the United Kingdom [GC], 66069/09, 130/10 and 3896/10, 9 July 2013, Information Note 165.
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This summary by the Registry does not bind the Court.
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