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FOURTH
SECTION
CASE OF SHAHANOV v. BULGARIA
(Application
no. 16391/05)
JUDGMENT
STRASBOURG
10
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shahanov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16391/05)
against the Republic of Bulgaria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Bulgarian national, Mr Nikolai Ivanov Shahanov (“the
applicant”), on 26 April 2005.
2. The
applicant was represented by Ms S. Stefanova and Mr M. Ekimdzhiev,
lawyers practising in Plovdiv. The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms N. Nikolova,
of the Ministry of Justice.
3. The
applicant alleged, in particular, that the conditions of his
detention in Varna Prison had been inhuman and degrading, that
his correspondence had been monitored, that the criminal proceedings
against him had been inordinately lengthy and that he had not had
effective remedies in respect of these complaints.
- On
28 January 2010 the President of
the Fifth Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1). The case was subsequently assigned to the Fourth
Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and is currently
serving a life sentence in Plovdiv Prison.
A. The conditions of the applicant’s detention
1. Places of detention
- In
the period from 29 December 2002 to 18 February 2009 the applicant
was detained in Varna Prison in connection with several sets of
criminal proceedings for theft and for murder committed in the course
of aggravated robbery. In November 2004 he was sentenced to life
imprisonment.
- On
18 February 2009 the applicant was moved to Plovdiv Prison. According
to the applicant, he was initially placed in a cell together with a
smoker. On 29 May 2009 he was placed in an individual cell.
2. Civil actions for damages brought by the applicant
(a) The first set of proceedings
concerning the period from 25 February 2003 to 19 April 2004
- On
19 April 2004 the applicant brought an action against the Ministry of
Justice. He claimed 50,000 levs (BGN) (25,565 euros (EUR)) in
damages, alleging that he had suffered distress and humiliation as a
result of the poor conditions in which he had been detained in Varna
Prison in the period from 25 February 2003 to 19 April 2004. On
25 October 2004 the Varna District Court instructed the applicant to
specify and quantify the damage sustained by him as a result of each
alleged act or omission of the prison administration. This resulted
in the applicant having to split his initial claim into five separate
claims of BGN 10,000 (EUR 5,113) each, as follows: (1) for poor
sanitary conditions in the prison; (2) for the lack of opportunity to
maintain his personal hygiene on a daily basis; (3) for poor living
conditions in the cell; (4) for food of poor quality and insufficient
quantity; and (5) for inadequate medical services.
- The
District Court questioned several witnesses, gathered written
evidence and on 19 January 2007 partly granted the first claim. It
established that the applicant had been allowed to leave his cell
three times a day for forty-five minutes each time and had had to use
a bucket in the cell for his toilet needs outside these periods, in
front of other prisoners, which had been upsetting for him. It found
that the amount of BGN 100 (EUR 51) would remedy the discomfort
experienced by him. As to the remaining four claims, the court noted
witnesses’ statements to the effect that there had been no
running water in the applicant’s cell, that the cell had been
damp and draughty, without a floor covering and with plaster peeling
off the walls; the toilets and the canteen had been infested with
rats; and the applicant had only been allowed to bathe once every two
weeks. However, it held that it had not been proven that these
deficiencies had caused any damage to the applicant. The court
further considered irrelevant the fact that there had been rats in
the toilets and in the canteen, as the applicant had not mentioned
rats in his statement of claim. As to the claim concerning the
medical services in prison, the District Court established that the
applicant suffered from asthma and epilepsy. On the basis of his
medical records, it found that he had been examined by a physician at
least once a month and had been prescribed treatment. It further
noted that on several occasions he had been urged to refrain from
smoking but apparently he had not followed this advice. It therefore
dismissed this claim as ill-founded. It also dismissed the claim
concerning the quality and quantity of food, reasoning that the
applicant had failed to adduce any arguments or evidence in this
respect.
- Following
an appeal, in a judgment of 20 July 2007 the Varna Regional Court
increased the compensation under the applicant’s first claim
to BGN 500 (EUR 255) and upheld the remaining part of the
judgment of 19 January 2007. It held that while the witnesses
had established that the applicant had been embarrassed by the use of
the bucket for his sanitary needs, they had not said anything about
his feelings towards the other conditions complained of. The
applicant appealed further.
- In
a final judgment of 27 April 2009 the Supreme Court of Cassation
upheld the judgment of 20 July 2007. It noted that the applicant had
failed to show that he had suffered any non-pecuniary damage in
respect of the four claims dismissed by the lower courts.
(b) The second set of proceedings
concerning the period from 20 February 2005 to 15 September 2006
- In
2009 the applicant brought a further action against the Ministry of
Justice, claiming a total of BGN 10,000 (EUR 5,113) in compensation
for non-pecuniary damage in connection with the conditions of his
detention in Varna Prison. For reasons which have not been
substantiated, the claim only concerned the period from 20 February
2005 to 15 September 2006.
- The
Varna Administrative Court heard several witnesses and on 9 December
2009 dismissed the applicant’s action. Its findings about the
conditions in Varna Prison were similar to those made by the courts
in the previous set of proceedings (see paragraph 9 above). Unlike
those courts, however, the Varna Administrative Court held that
continuous access to a toilet, running water, ventilation and
sufficient natural light were to be provided only where possible. The
court based its conclusion on statutory provisions concerning
pre-trial detention facilities, finding that they were applicable by
analogy to prisons. It further held that it was unproven whether the
applicant suffered from any diseases or whether he had sustained any
non-pecuniary damage as a result of the conditions in which he had
been detained.
- Following
an appeal, in a final judgment of 15 October 2010 the Supreme
Administrative Court upheld the judgment of 9 December 2009,
reasoning that the size of the applicant’s cell had met the
legal requirements and that the applicant had not proved that he
suffered from any diseases.
B. The monitoring of the applicant’s
correspondence and the prohibition of telephone contact between the
applicant and his lawyer
- The
applicant submitted six letters and envelopes addressed by him to his
lawyer. Half of them were sent from Varna Prison and the other half
from Plovdiv Prison. Each envelope was marked or stamped as having
been monitored by the prison administration. As noted in a letter
from the administration of Plovdiv Prison submitted by the
Government, the prison administration, acting in compliance with
section 37 of the Regulations for the Implementation of the
Enforcement of Sentences Act, routinely opened all envelopes,
including those sent to lawyers, to check their physical contents,
without reading the text of the letters therein.
- Shortly
after his transfer to Plovdiv Prison in 2009, the applicant
complained that he had not been allowed to contact his lawyer by
phone. Following an inquiry, in a letter of 2 April 2009 the General
Directorate of Enforcement of Sentences at the Ministry of Justice
informed him that lawyers were not among the individuals whom
prisoners were entitled to contact by phone under section 37a of the
Regulations for the Implementation of the Enforcement of Sentences
Act. It was further explained that the applicant had been sentenced
to life imprisonment and was not involved in any pending proceedings.
It appears that the applicant took steps to show that there were
indeed criminal proceedings pending against him. Eventually, on 28
May 2009 the applicant’s lawyer was included in the list of
individuals whom the applicant was allowed to contact by phone.
C. Length of the criminal proceedings for theft against
the applicant
- On
an unspecified date in 1999 the investigating authorities in Plovdiv
opened an investigation into a number of car thefts. On 21 April 2000
the applicant was placed in pre-trial detention as a suspect. Later
on he was charged and questioned.
- On
16 February 2001 the Plovdiv district public prosecutor’s
office filed an indictment against the applicant and three other
individuals with the Plovdiv District Court.
- The
District Court scheduled fifteen hearings in the case. Three hearings
were postponed because of the applicant’s absence, which caused
a delay of about six months; six hearings were adjourned because of
the failure of court-appointed experts to appear or for additional
expert reports to be obtained; two hearings were postponed because of
the failure of one or more of the applicant’s co-defendants, or
their lawyers, to appear; and three hearings were adjourned due to
the absence of the judge or a juror. In the examination of the case,
the court admitted six expert reports and questioned at least
thirteen witnesses.
- In
a judgment of 9 December 2003 the District Court convicted the
applicant of a number of counts of car theft in complicity with
others.
- Following
an appeal, the Plovdiv Regional Court conducted four hearings and
questioned several witnesses. One hearing was adjourned because of
the non-appearance of a witness, and the other two hearings were
adjourned because two of the applicant’s co-defendants were
sick.
- On
3 June 2005 the Regional Court quashed the judgment of 9 December
2003 because of insufficient and contradictory reasoning, and
remitted the case.
- The
District Court scheduled ten hearings. Three hearings were adjourned
because the judge was on maternity leave, another one, because she
had been promoted to a higher court; one hearing was postponed
because it was necessary to appoint a State-appointed lawyer for the
applicant; and three hearings were adjourned because part of the
physical evidence was missing. On 20 December 2007, more than two
years after the beginning of the second trial, the District Court
terminated the court proceedings and remitted the case to the
investigative authorities because it had discovered procedural
violations at the pre-trial stage.
- On
21 February 2008 the district public prosecutor’s office
terminated the criminal proceedings against the applicant. On 24
September 2008 the Plovdiv regional public prosecutor’s office
quashed the decree of 21 February 2008 and remitted the case for
further investigation. On 23 January 2009 the applicant was
charged anew and questioned.
- In
a decree of 6 April 2009 the district public prosecutor’s
office again terminated the criminal proceedings against the
applicant for lack of proof. It appears that the decree was not
appealed against and it became final.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Enforcement of sentences
- The
relevant domestic law concerning enforcement of sentences is set out
in the Court’s judgment in the case of Iliev and Others v.
Bulgaria (nos. 4473/02 and 34138/04, §§
23-24, 10 February 2011).
B. Prisoners’ correspondence and telephone
conversations
- The
relevant domestic law and practice concerning prisoners’
correspondence are set out in the Court’s judgment in the case
of Iliev and Others, cited above,
§§ 25-31.
- The
relevant domestic law concerning prisoners’ telephone
conversations is set out in the Court’s judgment in the case of
Petrov v. Bulgaria (no. 15197/02, § 24, 22 May
2008).
C. The State and Municipalities Responsibility for
Damage Act
- The
relevant provisions of the State and Municipalities Responsibility
for Damage Act (“SMRDA”) and the case-law on its
implementation are set out in the Court’s judgment in the case
of Kirilov v. Bulgaria (no. 15158/02, §§
43-48, 22 May 2008).
D. The Code of Criminal Procedure (“CCP”)
- The
relevant domestic law and practice concerning the possibility for an
accused to have his or her case brought to trial or obtain the
discontinuance of the proceedings (Article 239a of the 1974 CCP,
superseded by Article 368 of the 2006 CCP) are set out in the Court’s
judgment in the case of Dimitrov and Hamanov v. Bulgaria,
nos. 48059/06 and 2708/09, § 38-45, 10
May 2011.
III. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”)
- In
2010 the CPT visited Varna Prison for the first time. Its report on
the visit has not yet been made public.
- During
its visits to other prisons in Bulgaria, it noted the use of buckets
by prisoners for their sanitary needs. Finding this practice
“unacceptable”, it recommended several times that it be
discontinued (see, for example, paragraphs 73 and 77 concerning Sofia
Prison of the report of its 2006 visit to Bulgaria (CPT/Inf (2008)
11), and paragraphs 82, 87 and 118 concerning Burgas and Pleven
Prisons of the report of its 2002 visit to Bulgaria (CPT/Inf (2004)
21)).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
the conditions in Varna Prison had been inhuman and degrading and
that he had not had an effective remedy in this respect.
Article
3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article
13 reads:
“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.”
A. The parties’ submissions
1. The Government
- The
Government pointed out that the applicant had already been awarded
damages in the domestic proceedings on account of the poor living
conditions in Varna Prison for the period from 25 February 2003 to 19
April 2004. They further argued that he had failed to exhaust
domestic remedies, as it had been open to him to seek damages in
respect of the remaining period of his detention in that prison. They
cited a number of judgments in which domestic courts had awarded
damages in connection with poor conditions of detention. Furthermore,
the Government were of the view that the suffering inflicted on the
applicant had not reached the minimum level of severity required
under Article 3 of the Convention. They maintained that the
conditions in which the applicant had been detained in Varna Prison
had been the same for all prisoners and therefore had not revealed
any intention of humiliating the applicant.
2. The applicant
- The
applicant contested those arguments. He argued that the conditions of
his detention had amounted to inhuman and degrading treatment, which
had also been recognised by the domestic courts.
- Referring
to Article 13, the applicant pointed out that he had brought actions
for damages concerning a part of the period of his detention in Varna
Prison. However, in the first set of proceedings the domestic courts
had split his complaints into five separate claims and had eventually
rejected most of them. Furthermore, referring to the Court’s
judgment in the case of Iovchev v. Bulgaria (no.
41211/98, 2 February 2006), the applicant considered that the
domestic courts’ requirement of separate proof for the
non-pecuniary damage sustained, regardless of the fact that they had
found the living conditions in the prison to have been degrading, had
deprived this remedy of the effectiveness it may in principle have
had. As to the second set of proceedings, the applicant stated that
the domestic court had dismissed his action, reasoning that the State
had not been obliged to provide better conditions than those existing
in the prison.
B. The Court’s assessment
1. Admissibility
(a) Article 3 of the Convention
(i) Victim status
- Seeing
that the applicant brought two claims for damages in respect of the
conditions of his detention for the periods from 25 February 2003 to
19 April 2004 and from 20 February 2005 to 15 September 2006 and
obtained an award of damages in the first set of proceedings
(see paragraphs 8-14 above), the question arises as to
whether the applicant can still be considered a victim of a violation
of Article 3 in respect of these periods. Even though they did not
phrase it explicitly, the Government raised such an argument, as they
referred to the fact that the applicant had been awarded compensation
(see paragraph 34 above).
- The
question whether an applicant can claim to be a victim of an alleged
violation of the Convention is relevant at all stages of the
proceedings under the Convention (see, among other authorities,
Burdov v. Russia, no. 59498/00, § 30, ECHR
2002-III). That question essentially entails on the part of the Court
an ex post facto examination of the applicant’s
situation. A decision or measure of the domestic authorities
favourable to the applicant is not in principle sufficient to deprive
him or her of his or her status as a victim unless those authorities
have acknowledged, and then afforded adequate redress for, the breach
of the Convention (see, as a recent authority, Ciorap v. Moldova
(no. 2), no. 7481/06, § 18, 20 July 2010).
- Applying
these principles to the present case, the Court notes that in the
first set of proceedings concerning the period from 25 February 2003
to 19 April 2004 the authorities only acknowledged and redressed
one aspect of the applicant’s claim: the complaint concerning
the use of the bucket in his cell.
- The
domestic courts instructed the applicant to split his initial claim
into five separate claims (see paragraph 8 above), considering each
element of the conditions of detention as a separate issue needing a
separate analysis as to its possible impact on the applicant’s
well-being. The Court finds that this analysis had the effect of
diminishing the relevance of each argument in assessing the overall
conditions of detention and thus amounted to a failure to consider
the cumulative effects of these conditions on the applicant, as
required by the Convention (see Dougoz v. Greece, no.
40907/98, § 46, ECHR 2001 II). Such an approach could
easily lead to the conclusion that none of the complaints were, in
themselves, serious enough to call for compensation, even in cases
where the general impact on the particular prisoner, had it been
assessed in the light of the Convention case-law, would have been
found to reach the threshold under Article 3 of the Convention
(see Iliev and Others, cited above, §
49).
- Secondly,
the Court cannot but note that the domestic courts dismissed most of
the applicant’s complaints only because they found that he had
not proved the non-pecuniary damage he had suffered. For example,
they noted the witnesses’ testimony that the applicant had been
held in a damp cell in a poor state of repair, that there had been
rats in the toilets and the canteen and that the applicant had only
been allowed to bathe once a fortnight. However, they considered that
no mental distress and suffering had been proved in this respect and
that, concerning the rats, their presence could not be taken into
consideration, as the applicant had not mentioned them when
complaining of bad conditions in general (see paragraph 9 above). The
Court has previously criticised this approach of the domestic courts
in a number of judgments against Bulgaria (see Iovchev, §
147, Iliev and Others, §
48, both cited above, and Radkov v.
Bulgaria (no. 2), no. 18382/05, § 39, 10
February 2011), remarking that it was unduly formalistic and
allowed a large number of cases involving complaints of emotional
distress rather than physical injury or illness to be dismissed as
unsubstantiated. The present case is, regretfully, another example of
a fundamentally flawed approach to damages for inhuman and degrading
conditions of detention.
- As
to the second set of proceedings concerning the period from
20 February 2005 to 15 September 2006, the Court notes that the
domestic courts dismissed the entirety of the applicant’s
claim, holding that the State was not at all obliged under domestic
law to provide better conditions than those existing in the prison
(see paragraphs 13-14 above). In particular, they found that
continuous access to a toilet, running water and sufficient daylight
were to be provided only where possible. On the basis of this
reasoning, the Court cannot but conclude that in this set of
proceedings the domestic courts not only failed to consider the
cumulative effects of the conditions on the applicant but even denied
the very existence of the State’s duty to secure detention
conditions compatible with Article 3.
- In
view of the foregoing, despite the fact that the applicant’s
claim for non-pecuniary damages was partly allowed in the first set
of proceedings, the Court is not convinced, having regard to the
outcome of the two sets of proceedings, that the authorities have
acknowledged the totality of the breach of Article 3 of the
Convention. Nor did they provide him with adequate redress. It
follows that the applicant may still claim to be a
victim of a violation of Article 3 of the Convention.
- The
Government’s objection must therefore be dismissed.
(ii) Exhaustion of domestic remedies
- The
Government also raised a non-exhaustion objection as regards the
remaining period of detention in the same prison, stating that the
applicant had not sought damages under the SMRDA (see paragraph 34
above).
- The
Court has accepted, on the basis of developments in the Bulgarian
courts’ case-law since 2003, that a claim under the SMRDA is in
principle an effective remedy for poor conditions of detention,
provided that the applicant has either been released or placed in
conditions which meet Convention standards (see Hristov v.
Bulgaria (dec.), no. 36794/03, 18 March 2008, and Radkov
(no. 2), cited above, §§
37 and 53).
- The
Court notes that on 18 February 2009 the applicant was transferred to
another prison. He did not allege that he had been subjected to
similar conditions there. A compensation action cannot therefore be
ruled out as ineffective in respect of the complaint that between
September 2006 and February 2009 the applicant remained in the same
inadequate conditions of detention. As the Court found in Radkov
(2) (cited above, § 59), the fact that no adequate redress
was obtained in a previous action by the applicant does not
automatically mean that another action would have been devoid of any
prospect of success. The Court notes, however, that unlike Radkov
(2), in the present case the applicant did bring a further
action, several years after the first one. Regrettably, its outcome
was even worse, as the courts found that no obligation on the State
to provide better conditions existed (see paragraphs 13-14
above). Thus, after having brought two sets of proceedings involving
questioning of witnesses, gathering written evidence and appeals to
several levels of the courts, it cannot be considered that the
applicant was required under Article 35 § 1 of the Convention to
attempt a third action before the same courts and for the same
purpose. The Court emphasises that the application of the exhaustion
rule must be applied with some degree of flexibility and without
excessive formalism. It has already held that the rule of exhaustion
is neither absolute nor capable of being applied automatically; for
the purposes of reviewing whether it has been observed, it is
essential to have regard to the circumstances of the individual case.
This means, in particular, that the Court must take realistic account
not only of the existence of formal remedies in the legal system of
the Contracting State concerned, but also of the general context in
which they operate, as well as the personal circumstances of the
applicant. It must then examine whether, in all the circumstances of
the case, the applicant did everything that could reasonably be
expected of him or her to exhaust domestic remedies (see Spasovski
v. “the former Yugoslav Republic of Macedonia”, no.
45150/05, § 23, 10 June 2010, with further references).
Therefore, and without speculating about the possible outcome of a
further action under the SMRDA, the Court considers that in the
specific circumstances of this case the applicant could not be
expected to have brought a third claim in respect of the remaining
period of his detention in Varna Prison.
- Accordingly,
the Government’s objection based on non-exhaustion of domestic
remedies should be dismissed.
(iii) Conclusion
- In
view of the above considerations, the Court considers that the
complaint under Article 3 is not manifestly ill founded within
the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
(b) Article 13 of the Convention
- The
Court considers that the complaint under Article 13 is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) Article 3 of the Convention
- Restatements
of the general principles concerning the examination of conditions of
detention under Article 3 may be found in the Court’s recent
judgments in the cases of Sławomir Musiał v.
Poland, no. 28300/06, §§ 85 88, ECHR 2009 ...
(extracts); Orchowski v. Poland, no. 17885/04, §§ 119-122,
ECHR 2009 ... (extracts); and Norbert Sikorski v. Poland,
no. 17599/05, §§ 126-131, 22 October 2009.
- The
Court observes that the period to be taken into account is from
29 December 2002 to 18 February 2009, i.e. six years and two
months less eleven days.
- In
the domestic proceedings, the courts found that the conditions in
which the applicant had been detained at Varna Prison had been poor
(see paragraphs 9 and 13 above). In particular, they found that
the applicant had not had access to a toilet or running water, save
for short intervals three times a day. Outside these periods, he had
had to use a bucket in the cell for relieving himself. This had often
happened in the presence of other inmates. He had only been able to
bathe once a fortnight. Further, while the courts did not make formal
findings in this respect, they noted the witnesses’ statements
that the canteen and the sanitary premises had been infested with
rats and that the cell had been draughty and damp. These facts were
not disputed by the Government. Taking into account the cumulative
effects of these conditions on the applicant as well as the period of
his detention, the Court considers that the distress and hardship
endured by him exceeded the unavoidable level of suffering inherent
in detention and went beyond the threshold of severity under Article
3 (see Slavcho Kostov v. Bulgaria, no. 28674/03, § 54,
27 November 2008). In these circumstances, even accepting that
the applicant’s allegations of inadequate food and medical help
are not supported by sufficient evidence, the Court considers that
the other aspects of the conditions of his detention were serious
enough to be qualified as degrading treatment.
- There
has therefore been a violation of Article 3 of the Convention.
(b) Article 13 of the Convention
- The
Court has already found that the compensation claims brought by the
applicant had failed to provide him adequate redress, chiefly as a
result of the domestic courts’ excessively formalistic approach
which was found to be in breach of Article 13 in a number of
judgments against Bulgaria (see, among others, Iovchev,
§ 146, Radkov (2), §
53, Iliev and Others, § 68, all
cited above). It further notes that at the time he brought those
proceedings the applicant was still detained in the same conditions
and was not moved to another prison until several years later. As
already observed, remedies for conditions of detention which are of a
purely compensatory nature may be regarded as effective only in
respect of applicants who have been either released or placed in
conditions which meet Convention standards (see Orchowski,
§ 109, and Norbert Sikorski, § 116, both cited
above). The Government have not pointed to any other remedies
available to the applicant and capable of leading to any improvement
of the conditions.
- It
follows that there has been a breach of Article 13 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE
CONVENTION
- The
applicant complained that the prison authorities in Varna and Plovdiv
Prisons had monitored the correspondence between him and his lawyer
and that he had not had any effective domestic remedies in this
respect. He relied on Articles 8 and 13 of the Convention.
Article
8 reads:
“1. Everyone has the right to respect
for his ... correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article
13 reads:
“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.”
- The
Government stated that unjustified monitoring of correspondence by
the administration fell within the scope of the SMRDA, and argued
that the applicant had failed to exhaust the available domestic
remedies. They further stated that the prison administration had not
read the letters sent by the applicant but only had checked the
physical contents of the envelopes.
A. Admissibility
- The
Court has already found that the SMRDA was not an effective remedy in
cases of unjustified monitoring of prisoners’ correspondence
(see Iliev and Others, cited above, §§
77-78). It sees no reason to depart from
this conclusion. Accordingly, the Government’s
preliminary objection must be dismissed.
- The
Court also considers that the applicant’s complaints under
Articles 8 and 13 of the Convention are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
- The
Court notes that the systematic opening of the applicant’s
letters was acknowledged by the Government in their observations in
the present case (see paragraph 58 above). It further notes that it
has frequently found violations of Article 8 of the Convention in
Bulgarian cases concerning indiscriminate opening by the authorities
of prisoners’ correspondence with their lawyers (see, among
many others, Radkov v. Bulgaria, no. 27795/03, §§ 20-22,
22 April 2010, and Konstantin Popov v. Bulgaria, no. 15035/03,
§ 17, 25 June 2009).
- It
has also found that the monitoring of
prisoners’ correspondence had not resulted from one individual
decision taken by the authorities but directly from the application
of the relevant legislation. However, it has concluded that there was
no violation of Article 13 of the Convention because this provision
does not guarantee a remedy allowing a Contracting State’s
primary legislation to be challenged before a national authority (see
Petrov, § 65, and
Konstantin Popov, § 23, both
cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach different conclusions in the present case.
There has therefore been a violation of Article 8 and no violation of
Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicant complained, relying on Article 34 of the Convention, that
the monitoring of his correspondence had amounted to a hindrance in
the effective exercise of his right of application. He also
complained, relying on Articles 8 and 34 of the Convention, that he
had not been allowed to contact his lawyer by phone. The Court
considers that these complaints fall to be examined under Article 34
of the Convention, which reads, insofar as relevant, as follows:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government claimed that the authorities had not hindered the
applicant’s correspondence with the Court and with his legal
representatives in any way.
- The
Court can find no evidence that the applicant, who was able to
communicate effectively with the Court following the introduction of
his complaints, suffered any prejudice with regard to the
presentation of his application or that he was in any way frustrated
in the exercise of his right to submit his application.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him for theft had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention. Furthermore, relying on Article 13 of the Convention, he
complained that he had not had any effective domestic remedies in
this respect.
Article
6 § 1 reads, in so far as relevant:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”
Article
13 reads:
“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.”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust all
remedies available to him as he had not complained of the excessive
length of the proceedings before the domestic authorities and had not
initiated the use of the procedure under Article 239a of the
CCP. They further stated that it had been open for the applicant to
bring a compensation action under section 2 of the SMRDA.
- The
applicant disagreed.
- The
Court notes that the procedure under Article 239a of the CCP, which
provides for the possibility for an accused to have his or her case
brought to trial or obtain the discontinuance of the proceedings if
the preliminary investigation is taking too long, was only applicable
during the pre-trial stage. The bulk of the delay in the applicant’s
case, however, took place during the judicial phase of the
proceedings. It further notes that in a number of judgments it has
found that, apart from the above mentioned remedy, there are no
acceleratory or compensatory remedies in respect of the length of
criminal proceedings in Bulgaria (see Dimitrov and Hamanov
v. Bulgaria, cited above,
§§ 92-96, with further references). In particular,
it has expressly held that section 2 of the SMRDA was not such a
remedy (ibid., § 97). The Court sees
no reason to hold otherwise in the present case.
- The
Government’s objection of failure to exhaust the available
domestic remedies is therefore dismissed.
- The
Court notes that the complaints under Articles 6 and 13 are not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
- The
Government argued that for the purposes of Article 6 of the
Convention the criminal proceedings against the applicant had
commenced on 16 February 2001, when the indictment against him had
been submitted to the domestic court. They further argued that the
length of the proceedings had not been unreasonable because the case
had been complex.
- The
applicant contended that he had been informed of the criminal
proceedings against him on 21 April 2000, when he had been placed in
pre-trial detention.
- The
Court finds that in the present case the applicant’s situation
was “substantially affected” on 21 April 2000, when he
was placed in pre-trial detention on suspicion of a number of car
thefts (see paragraph 17 above, as well as Foti and Others v.
Italy, 10 December 1982, §§ 52 and 53, Series A no. 56;
and Crowther v. the United Kingdom, no. 53741/00, §§
8 and 26, 1 February 2005).
- The
period ended on 6 April 2009, when the district prosecutor terminated
the criminal proceedings against the applicant (see paragraph 25
above). It thus lasted nine years less fifteen days for a preliminary
investigation and court proceedings at two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case;
and the conduct of the applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II). It further reiterates
that Article 13 guarantees an effective remedy before a national
authority for an alleged breach of the requirement under Article 6 §
1 to hear a case within a reasonable time (see Kudła v.
Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).
- The
Court has frequently found violations of Articles 6 § 1 and 13
of the Convention in cases raising issues similar to the one in the
present case (see, among many others, Osmanov and Yuseinov v.
Bulgaria, nos. 54178/00 and 59901/00, §§ 30 and
42, 23 September 2004, and Kostov and Yankov
v. Bulgaria, no. 1509/05, §§ 21 and 27, 22 April
2010). Having examined all the material submitted to it, the Court
considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. In particular, the Court notes that the most
significant delays were due to the repeated adjournment of the trial
by the District Court and the remittal of the case. While the
applicant was indeed responsible for several adjournments, the bulk
of the delay in his case was due to reasons beyond his control, such
as the non-appearance of witnesses, experts or even judges or jurors
(see paragraphs 17-25 above).
- As
regards the existence of effective remedies capable of preventing the
violation of Article 6 § 1 or its continuation, or providing
adequate redress, the Court refers to its finding above (see
paragraph 71 above) that there are no acceleratory or compensatory
remedies in respect of the length of criminal proceedings in
Bulgaria.
- In
view of the above and having regard to its case-law on the subject
and the overall length of the proceedings, the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement and that
the applicant did not have effective remedies under domestic law in
this respect.
- There
have accordingly been breaches of Articles 6 § 1 and 13.
V. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
- The
applicant also complained, relying on Article 8 of the Convention,
that following his transfer to Plovdiv Prison he had been placed in a
cell together with a smoker, which had aggravated his asthma.
- The
Court notes that the applicant did not provide any information as to
whether he had referred this complaint either to the prison
administration or to the domestic courts. It is further noted that he
was placed in an individual cell on 29 May 2009, some three months
after he had been moved to Plovdiv Prison (see paragraph 7 above).
Thus, seeing that the alleged interference only continued for a short
period of time, nothing suggests that an action under the SMRDA could
not have provided him with redress (see paragraph 46 above).
- In
view of the above, assuming that an issue may in principle arise
under Article 8 of the Convention, this complaint must be declared
inadmissible under Article 35 §§ 1 and 4 for failure to
exhaust domestic remedies.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Damage
- The
applicant claimed non-pecuniary damage as follows: 30,000 euros
(EUR) in respect of the breach of Article 3; EUR 10,000 in respect of
Article 8; EUR 15,000 in respect of Article 6; and EUR 3,000 in
respect of 13 of the Convention.
- The
Government contested this claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage as a result of the breaches of his rights found in the case.
Taking into account all the circumstances of the case, and
deciding on an equitable basis, the Court, recognising that the
applicant was awarded the equivalent of approximately EUR 255 in the
domestic proceedings (see paragraph 10 above), awards him EUR
7,000 under this head.
B. Costs and expenses
- The
applicant sought EUR 10,920 for 156 hours of legal work undertaken by
his lawyers in the proceedings before the Court at the hourly rate of
EUR 70. In support of this claim, he presented a contract and a time
sheet. He further claimed EUR 160 for postage and copying expenses
and EUR 263 for translation expenses. He presented a contract for
translation. He requested that any award made by the Court under this
head be made payable to his lawyers, Ms S. Stefanova and Mr M.
Ekimdzhiev.
- The
Government considered that the claims were excessive.
- According
to the Court’s case law, applicants are entitled to the
reimbursement of their 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, having regard to
the information in its possession and the above criteria, and noting
that part of the application was declared inadmissible, the Court
considers it reasonable to award the sum of EUR 2,000. This sum is to
be paid into the bank account of the applicant’s
representatives, Ms S. Stefanova and Mr M. Ekimdzhiev.
C. Default interest
- 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 admissible the
complaints concerning (a) the applicant’s detention in
allegedly inadequate conditions of detention at Varna Prison and the
availability of an effective remedy in respect of those conditions,
(b) the alleged interference with the applicant’s
correspondence by the prison administration and the availability of
an effective remedy in that respect, and (c) the alleged excessive
length of the criminal proceedings against the applicant and the
availability of an effective remedy in that respect;
- Declares the remainder of the application
inadmissible;
- Holds that there has been a
violation of Article 3 of the Convention on account of the
applicant’s conditions of detention in Varna Prison;
4. Holds that there has been a
violation of Article 13 in conjunction with Article 3 of the
Convention;
5. Holds that there has
been a violation of Article 8 of the Convention in respect of the
monitoring of the applicant’s correspondence with his lawyer;
- Holds that there has been
no violation of Article 13 in conjunction with Article 8 of the
Convention;
- Holds that there has been a
violation of Article 6 § 1 of the
Convention on account of the excessive length of the criminal
proceedings against the applicant;
- Holds that there has been a
violation of Article 13, in conjunction with Article 6 § 1 of
the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable on the date of
settlement:
(i) EUR
7,000 (seven thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be paid into the
bank account of the applicant’s representatives,
Ms S. Stefanova and Mr M. Ekimdzhiev;
(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 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President