BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
KASHAVELOV v. BULGARIA
(Application
no. 891/05)
JUDGMENT
STRASBOURG
20 January
2011
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 Kashavelov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna
Yudkivska,
judges,
Pavlina
Panova, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 891/05) 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 Ivo Stefanov
Kashavelov (“the applicant”), on 7 December 2004.
- The
Bulgarian Government (“the Government”) were represented
by their Agents, Ms S. Atanasova and Ms M. Kotseva, of the Ministry
of Justice. The applicant stated that he did not wish to be legally
represented, and was granted leave to represent himself (Rule 36 §
2 of the Rules of Court).
- On
30 June 2009 the Court
declared the application partly inadmissible and decided to give the
Government notice of the complaints concerning the conditions of the
applicant’s detention in Sofia Prison, the length of the
criminal proceedings against him, and the lack of effective remedies
in respect of that length. It also decided to rule on the
admissibility and merits of the remainder of the application at the
same time (Article 29 § 3 of the Convention, as
worded before 1 June 2010).
- Zdravka
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case. The President of the Chamber accordingly
appointed Pavlina Panova to sit as an ad hoc judge (Article 26
§ 4 of the Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and is currently serving a life term in
Sofia Prison.
A. The criminal proceedings against the applicant
- On 5 August 1996 the applicant was arrested on
suspicion of having abducted a person. On 14 August 1996 he was
charged with that offence. In September 1996 he was charged with
murdering three police officers, and on 4 June 1997 with at least ten
other offences.
- On an unspecified date in 1998 the prosecuting
authorities submitted an indictment against the applicant to the
Sofia City Court. However, on 18 September 1998 the judge
rapporteur referred the case back to them, citing irregularities in
the manner in which some of the charges and evidence had been
presented to the applicant.
- On 12 October 1998 the prosecuting authorities
submitted to the Sofia City Court an indictment against the applicant
and three others. The charges included the murder of three police
officers, several attempted murders, robberies, thefts, unlawful
deprivation of liberty, and unlawful possession of firearms. On 29
December 1998 the judge rapporteur set the case down for trial over
several days in May 1999.
- The Sofia City Court held at least seven hearings
between May 1999 and 8 March 2000, and on the latter date convicted
the applicant of aggravated murder, hooliganism, attempted armed
robbery, deprivation of liberty and unlawful possession of firearms,
and acquitted him of the other charges. It sentenced him to life
imprisonment without commutation and ordered that he should begin
serving his sentence under the strictest prison regime (the so-called
“special regime” – see paragraph 21 below).
- On appeal, the Sofia Court of Appeal held at least
five hearings, the last of which took place on 14 January 2002. On 10
February 2003 it partly quashed the lower court’s judgment,
acquitting the applicant of one of the charges of attempted armed
robbery and of the charges of unlawful possession of firearms, and
re-qualifying one of the other charges. It upheld the remainder of
the judgment, including the applicant’s sentence.
- On 27 February 2004 the Supreme Court of Cassation
partly quashed the Sofia Court of Appeal’s judgment and
remitted the case to that court for reconsideration of the charges of
attempted robbery. It upheld the remainder of the judgment, including
the applicant’s sentence.
- On remittal, the Sofia Court of Appeal held at least
two hearings. On 31 August 2004, it upheld the Sofia City Court’s
judgment, acquitting the applicant of the charges of attempted armed
robbery. No appeal was lodged, and the judgment became final on 6
October 2004.
B. The applicant’s detention in Sofia Prison
- On 7 February 1997 the applicant was moved to the
detention centre of the National Investigation Service. On 2 December
1997 he was transferred to Sofia Prison. Between 1997 and 2004, he
was held there as a detainee awaiting the final determination of the
criminal charges against him. Since 17 November 2004, his stay in the
prison has been continued on the basis of his final sentence of life
imprisonment.
- On 4 December 1997 the prison’s governor,
relying on the relevant regulations (see paragraphs 17 and 18 below)
and having regard to a note in which the investigating authorities
had described the charges against the applicant, his character, and
their assessment of the risk that he could pose to prison staff,
ordered that he be placed within an isolated group of prisoners
subjected to stringent security measures and be deprived of the right
to take part in communal activities. In a follow-up decision of 14
May 1999 the governor ordered that the applicant be handcuffed each
time he was separated from that group. According to the Government,
the applicant was being handcuffed only when taken out of the
premises occupied by the group – for outdoor activities, visits
to the prison doctor, dentist or library, or receiving visitors or
lawyers. He was allowed to exercise in a special secluded yard. The
applicant contended that he was being handcuffed each time when taken
out of his cell.
- The
applicant alleged that he was held alone in a locked cell measuring
1.9 by 4.05 metres. He could leave the cell only for his daily
one hour walk. During the first eight or nine months in prison
he took his walk alone. After that, he was allowed to join one or two
other life prisoners, but was prohibited from talking to them. Since
October 2001, he was again taking his daily walks alone, in a
concrete enclosure covered with a wire-net and measuring 6.7 by 11
metres. The only other times when the applicant was allowed out of
his cell were the scheduled visits to the sanitary facilities, for
five to ten minutes twice a day. According to him, those were the
only occasions when he could stock up on drinking water. Later, he
was allowed to spend more time using the sanitary facilities. The
applicant further alleged that during the first six months of his
stay in prison he was being deprived of one of his daily meals once
every four days, and for an initial period of about a year and a half
he was not allowed to use his own bed sheets and pillows.
- The
Government disputed those allegations, saying that the applicant had
not been subjected to serious isolation inside his prison group. They
pointed out that, save for a limited number of restrictions flowing
from the “special regime” to which the applicant was
subjected, he enjoyed the opportunities available to all other
inmates, such as the possibility to work, access to free health and
dental care, access to the prison library and temple, receiving
visitors, parcels, telephone calls and correspondence, etc. They
cited a note drawn up by the prison’s governor, which said the
following:
“[The applicant] is even now extremely hostile
towards the legal order of the Republic of Bulgaria. He does not
accept his conviction and sentence, and considers the criminal
proceedings against him to be unfair and biased. He shows complete
disregard to others, and acts rudely and arrogantly when approached.
Extremely mistrustful, suspicious and hostile towards all prison
staff. His irascibility, undisguised cruelty and spitefulness, and
constant nervous tension make him especially dangerous and
unpredictable. His attitude towards the other inmates in his group
does not differ markedly from the one described above. He refuses to
socialise with others, hates everything and everyone. He enters into
sporadic contacts with the group’s hygienist when necessary.
Refuses to take part in communal activities. On several occasions he
was offered work, which he pointedly turned down. When taken out for
visits and in the presence of larger groups of people, he often
loudly makes negative remarks about the courts and the prison
administration. He often rehearses his ‘defence speech’
naked in his cell.”
- The
applicant disputed those allegations and pointed out that the
governor did not cite any specific facts to support them.
II. RELEVANT DOMESTIC LAW
A. The regime of pre-trial detainees kept in prisons
- At
the material time the regime of pre-trial detainees kept in prisons
was governed by regulations issued in 1993 (Наредба
№ 12 от 15 април
1993 г. за положението
на обвиняемите
и подсъдимите
в местата за
лишаване от
свобода). In May
1999 those were superseded by similar regulations (Наредба
№ 2 от 19 април 1999
г. за положението
на обвиняемите
и подсъдимите
с мярка за
неотклонение
задържане под
стража), which
remained in force until September 2006.
- Regulation
15(1)(3) of the 1993 regulations, superseded by regulation 14(3)
of the 1999 Regulations, provided that detainees could be placed in a
locked cell and be deprived of the right to take part in communal
activities if considered a security risk. That measure could be
imposed by the prison’s governor, who had to have regard to the
detainee’s personal characteristics and psychological state,
and to the dangerousness of the offence in relation with which he or
she had been detained. Regulation 15(3) in fine of the
1993 regulations, superseded by regulation 15 of the 1999
regulations, provided that detainees subjected to such measures had
to be kept isolated from the general prison population each time they
were taken out of their cells, for court transfers, medical
treatment, receiving visitors, outdoor activities, etc.
B. The regime of prisoners serving a life sentence
- Until
June 2009 the regime of prisoners serving a life sentence was
governed by the Execution of Punishments Act (1969) (Закон
за изпълнение
на наказанията)
and the regulations for its implementation. In June 2009 and February
2010 these were superseded by, respectively, the Execution of
Punishments and Pre-Trial Detention Act (Закон
за изпълнение
на наказанията
и задържането
под стража)
and the regulations for its implementation.
- The
regime of life prisoners was governed by sections 127a-127e of the
1969 Act, added in 1995. Section 127b(1) provided that when imposing
a life sentence the court had to order the prisoner’s placement
under the strictest regime, called “special regime”.
Individuals placed under that regime were to be kept in locked single
cells and subjected to heightened security and supervision
(regulation 56(1) of the implementing regulations). Those provisions
were maintained in 2009 Act (sections 61(1), 71(2) and 198(1))
and the 2010 regulations (regulation 213). Regulation 213
additionally provides that life prisoners can take part in communal
activities only with prisoners of the same category. Under regulation
214, they have to be kept isolated from the general prison population
even when taken out of their cells for transfers, medical treatment,
visits, outdoor activities, etc.
- Section
127b(2) of the 1969 Act, superseded by section 198(1) of the 2009
Act, provided that, if they had good conduct, after five years life
prisoners could be placed under a lighter regime. The time spent in
pre-trial detention does not form part of that period (regulation
167(2) of the implementing regulations of the 1969 Act, superseded by
regulation 218 of the implementing regulations of the 2009 Act). The
decision to place a life prisoner under a lighter regime is taken by
a commission consisting of prison staff and various other officials
(section 17 of the 1969 Act, superseded by sections 73 and 74 of the
2009 Act). Under section 58 of the 1969 Act, the commission’s
decisions could be challenged by the Minister of Justice. Under
section 74(2) of the 2009 Act, only the decisions to place a prisoner
under a stricter regime can be challenged, by way of judicial review.
Once under a lighter regime, life prisoners can, under certain
conditions, be placed together with the general prison population
(section 127b(4) of the 1969, superseded by section 198(2) of
the 2009 Act).
III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION
OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (“the
CPT”)
- The
CPT has visited Bulgaria seven times. Sofia Prison was visited in
2006 and 2008.
- The
report on the 2006 visit (CPT/Inf (2008) 11) says:
“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 [two
other prisons], 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. The lack
of group activities is not justifiable in security terms, given that
life-sentenced prisoners already exercise together. The delegation
was told of plans to set up a group room for association and other
activities for lifers, which would be opened in the near future.
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). One prisoner interviewed by the delegation
complained that he had been refused permission to have a personal
computer in his cell to do a computer literacy course.
The four lifers who did not join the others for communal
exercise were segregated under orders reviewed every 6 months.
Whenever they were outside the cell, they were handcuffed, including
for exercise which they took alone in a secure yard. In the CPT’s
opinion, there can be no justification for handcuffing a prisoner
exercising alone in a secure yard, provided there is proper staff
supervision. The Committee recommends that the Bulgarian
authorities review their current policy as regards the handcuffing of
the above-mentioned life-sentenced prisoners, in the light of these
remarks.”
- The
report on the 2008 visit (CPT/Inf (2010) 29) says:
“74. [A]t 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
play-stations in their cells. At the time of the 2006 visit, lifers
had had hot plates in their cells, to cook food, which increased
their sense of independence and helped to pass the time. The hot
plates had reportedly been withdrawn a few weeks before the visit for
safety reasons, and lifers had immersion coils for heating water.
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 LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the regime and the conditions of his
detention in Sofia Prison. He relied on Article 3 of the Convention,
which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government pointed out that the size of the applicant’s cell
was above the regulatory minimum. Referring to Kröcher and
Möller v. Switzerland (no. 8463/78, Commission’s
report of 16 December 1982, Decisions and Reports (DR) 34, p. 24),
they argued that the measures taken in respect of the applicant did
not amount to inhuman or degrading treatment. Those measures had been
lawful, based on reasoned orders of the prison’s governor, and
fully warranted in view of the gravity of the offences committed by
the applicant, his conduct, and the need to maintain order and
discipline in prison. There was no indication that the applicant had
complained to the prison authorities about specific measures. Nor
were there any medical documents showing that he had suffered any
damage to his health as a result of his prison regime.
- The
applicant submitted that the very fact of his imprisonment, which he
considered as lacking any legal basis because it had resulted from
criminal proceedings that were a nullity, amounted to inhuman and
degrading treatment. His being permanently locked up in a cell that
was cold, handcuffed without any reason, not being allowed to dress
as he wished or use his own personal effects and bed linen, having a
bucket for excrements in his cell, being given limited quantities of
innutritious and unhealthy food and limited quantities of water all
caused him physical discomfort. That discomfort was compounded by the
negative psychological effects of being kept in isolation for a long
time, having to interact with serious criminals, being branded by the
authorities and media as a criminal, and being paraded in handcuffs
and leg fetters. He disputed the lawfulness of all legal acts
relating to his confinement, and stated that he did not consider
himself as having the status of a prisoner. Accordingly, there was no
reason for him to interact with other prisoners or take part in
common activities with them. He also stated that he had not
complained about the conditions of his detention because that would
be pointless. He could not submit any medical evidence in
corroboration of his allegations either, because the authorities
would not provide him with such evidence.
B. The Court’s assessment
- The
Court considers that the applicant’s complaint 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.
1. General principles
- Restatements
of the general principles concerning the examination of conditions
and regime of detention under Article 3 may be found in the Court’s
judgments in Van der Ven v. the Netherlands (no. 50901/99,
§§ 46 51, ECHR 2003-II) and Ramirez Sanchez v.
France ([GC], no. 59450/00, §§ 115-24, ECHR
2006-IX).
2. Application of the principles to the present case
- The Court would distinguish three aspects of the
applicant’s complaint: the nature and stringency of his regime
of detention, the material conditions of his detention, and the use
of handcuffs in respect of him. It will examine these points
separately.
(a) The physical conditions
- The
Court observes that save for his own assertions – which were
not particularly detailed and were apparently not brought to the
attention of any domestic authority – the applicant did not
provide any evidence relating to the conditions of his detention. He
did not submit statements by co detainees (contrast Khudoyorov
v. Russia, no. 6847/02, §§ 71 and 113, ECHR 2005-X
(extracts), and Gavazov v. Bulgaria, no. 54659/00, §§
59 and 94, 6 March 2008), or by other persons who might possess
relevant information, such as visiting relatives. Nor did he submit
medical evidence showing the impact of the conditions in which he was
kept on his physical or psychological well-being (compare Georgiev
v. Bulgaria, no. 47823/99, § 64, 15 December 2005, and
contrast Staykov v. Bulgaria, no. 49438/99, § 41, 12
October 2006). In the specific circumstances, the Court must treat
the applicant’s assertions with certain caution, because he
might have a tendency to exaggerate the inadequacy of the conditions
in prison partly because he has a negative attitude towards an
establishment in which he considers he should have never been
detained (see, mutatis mutandis, Sabeva v. Bulgaria,
no. 44290/07, § 41, 10 June 2010, citing B. v. the United
Kingdom, no. 6870/75, Commission’s report of 7 October
1981, DR 32, p. 29, §§ 174-75). Those assertions do not
match the findings of the CPT in its 2006 and 2008 reports, which say
that at the times of the visits the cells of life prisoners in Sofia
Prison included integral sanitation, shower, and permanent access to
hot water (see paragraphs 24 and 25 above). Even assuming that the
conditions were worse at the beginning of the applicant’s
confinement in 1997, the Court cannot overlook the fact that they
have gradually improved.
- In
view of the foregoing, the Court is not satisfied “beyond
reasonable doubt” that the conditions of the applicant’s
detention in Sofia Prison can be regarded as inhuman or degrading.
There has therefore been no violation of Article 3 on that account.
(b) The detention regime
- Measures
depriving a person of liberty, such as pre-trial detention or a
sentence of imprisonment, while inevitably involving an element of
suffering, do not in themselves raise an issue under Article 3 (see
Kudła v. Poland [GC], no. 30210/96, § 93, ECHR
2000-XI). The detention regime imposed on the applicant following his
transfer to Sofia Prison was based on an order issued by the prison’s
governor under the relevant regulations and on the basis of
information about the applicant supplied by the investigating
authorities (see paragraph 14 above). After the applicant’s
sentence became final, his prison regime was based on a court order
made under the applicable provisions (see paragraphs 12 and 21
above). There is nothing to indicate that those decisions were
arbitrary. The Court notes that the CPT has criticised the statutory
provisions requiring that individuals sentenced to life imprisonment
be placed under a “special regime” during the first five
years of their confinement (see paragraphs 21, 22 and 25 above).
However, the question whether or not the applicant suffered treatment
proscribed by Article 3 depends on the extent to which he was
personally affected by that regime (see Van der Ven, cited
above, § 53 in fine). Indeed, in cases arising from
individual applications, the Court must as a rule focus its attention
not on the law as such but on the manner in which it has been applied
to the applicant (see, among other authorities, Sommerfeld v.
Germany [GC], no. 31871/96, § 86, ECHR 2003-VIII).
- While
the restrictions imposed on the applicant in Sofia Prison could be
described as harsh, he was not subjected to sensory isolation or
total social isolation, but only a relative social isolation, being
prevented from communicating with prisoners subjected to different
prison regimes. However, although his opportunities for contact are
therefore limited, one could not speak of isolation in this context
(see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR
1999-V). It is true that, according to his allegations, during the
early period of his deprivation of liberty he spent almost
twenty-three hours per day alone in his cell. However, the Court
cannot overlook that, as it appears from the CPT’s reports, in
recent years his situation has gradually become more flexible, with
the possibility to engage in various activities and communicate with
other prisoners from his group. However, it appears that he is
unwilling to do so (see paragraphs 16 and 28 above and compare,
mutatis mutandis, with Ramirez Sanchez, cited above, §
148). In those circumstances, and noting that the applicant has not
submitted any medical documents showing the effects of the regime on
his psychological well-being (contrast Van der Ven, cited
above, § 56), the Court is not persuaded that it has affected
him to an extent sufficient to amount to a violation of Article 3.
Moreover, there is no indication that he has ever been prevented from
having outside visitors (contrast Van der Ven, cited above, §
54), or visiting the prison library.
- The
Court further notes that under Bulgarian law, after serving five
years of his sentence, the applicant could have requested to be
placed under a less stringent prison regime (see paragraph 22 above).
There is no indication that he has availed himself of that
opportunity.
- In
view of the above, the Court considers that the evidence before it is
not sufficient to conclude that the applicant had been subjected to
inhuman and degrading treatment on account of the stringency of his
detention regime. There has therefore been no violation of Article 3
on that account.
(c) The use of handcuffs
- The
use of handcuffs or other instruments of restraint does not normally
give rise to an issue under Article 3 of the Convention where the
measure has been imposed in connection with a lawful detention and
does not entail the use of force or public exposure exceeding what is
reasonably considered necessary. In this regard, it is important to
consider, for instance, the danger of the person’s absconding
or causing injury or damage (see Raninen v. Finland,
judgment of 16 December 1997, § 56, Reports of Judgments and
Decisions 1997-VIII; Mouisel v. France, no. 67263/01, §
47, ECHR 2002-IX; Hénaf v. France, no. 65436/01, §
48, ECHR 2003-XI; and Mathew v. the Netherlands, no. 24919/03,
§ 180, ECHR 2005-IX). The Court must always have regard to the
specific facts of the case (see Avcı and Others
v. Turkey, no. 70417/01, § 38, 27 June 2006).
- In
view of the gravity of the applicant’s sentence, his criminal
record and his violent antecedents, the use of handcuffs could be
warranted on specific occasions, such as transfers outside the prison
(see Garriguenc v. France (dec.), no. 21148/02, 15
November 2007, and Paradysz v. France, no. 17020/05, §
95, 29 October 2009). However, the CPT’s reports, which fully
confirm the applicant’s allegations on that point, show that he
is indeed being handcuffed each time when taken out of his cell, even
when taking his daily walk (see paragraphs 24 and 25 above). The
Court takes note of the misgivings expressed by the prison
authorities about the applicant’s conduct and of their
assessment of the risk that he might pose (see paragraph 16 above).
It is aware that those authorities need to exercise caution when
dealing with individuals who have been convicted of violent offences,
refuse to accept the fact of their imprisonment, and are consequently
hostile towards prison staff and other inmates. However, it observes
that the systematic use of handcuffs in respect of the applicant
started about thirteen years ago, in December 1997, and apparently
continues to this day. The authorities did not point to any specific
incidents over that period in which the applicant has tried to flee
or harm himself or others. For the Court, the matters to which the
authorities refer do not necessarily show that there is a risk that
such incidents might occur. It shares the CPT’s opinion that
the routine handcuffing of a prisoner in a secure environment cannot
be considered justified (see paragraph 25 above).
- The
Court concludes that the systematic handcuffing of the applicant when
taken out of his cell was a measure which lacked sufficient
justification and can thus be regarded as degrading treatment. There
has therefore been a violation of Article 3 of the Convention on that
account.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings against him
had been unreasonable. He relied on Article 6 § 1 of the
Convention, which 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 ...”
- The
parties presented arguments concerning the beginning and the end of
the period under consideration and its reasonableness.
- The
Court considers that this complaint 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.
- The
Court observes that the applicant was arrested on 5 August 1996. It
takes that date as the beginning of the period under consideration
(see Ewing v. the United Kingdom, no. 11224/84, Commission’s
report of 6 October 1987, DR 56, p. 71, at pp. 84-85, §
145). The end point was 6 October 2004, when the Sofia Court of
Appeal’s judgment of 31 August 2004 became final. The period to
be taken into consideration therefore is eight years and almost three
months.
- The
reasonableness of that period must be assessed in the light of the
circumstances of the case and having regard to the criteria laid down
in the Court’s case-law: the complexity of the case and the
conduct of the applicant and of the relevant authorities (see, as a
recent authority, Yankov and Manchev v. Bulgaria, nos.
27207/04 and 15614/05, § 20, 22 October 2009).
- The
Court finds that the case was quite complex, as it involved several
accused charged with a number of offences of considerable gravity.
However, there were delays, attributable to the authorities, that
cannot fully be explained by that. First, the preliminary
investigation took about two and a half years to complete (see
paragraphs 6-8 above). Secondly, while the Sofia City Court was able
to deal with the case in about a year and a half, the first
proceedings before the Sofia Court of Appeal took almost three years,
partly because the court did not hand down its judgment for more than
a year after its last hearing (see paragraphs 9-12 above).
- Having
regard to those matters and the overall duration of the proceedings,
the Court concludes that the charges against the applicant were not
determined within a “reasonable time”, in breach of
Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained about the lack of an effective remedy in respect
the excessive length of the proceedings against him. He relied on
Article 13 of the Convention, which reads as follows:
“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
Court considers that this complaint 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.
- Article
13 guarantees an effective remedy in respect of an arguable complaint
of a breach of the requirement of Article 6 § 1 to hear a case
within a reasonable time (see Kudła v. Poland [GC], no.
30210/96, §§ 146 57, ECHR 2000-XI). A remedy is
effective if it prevents the alleged violation or its continuation or
provides adequate redress for any breach that has already occurred
(ibid., § 158, and Mifsud v. France (dec.) [GC],
no. 57220/00, ECHR 2002-VIII).
- Until
2003 Bulgarian law did not provide remedies allowing those accused in
criminal proceedings to expedite the determination of the charges
against them. The only such remedy was the possibility, introduced in
June 2003, for the accused to request to have their cases
brought before a court if the preliminary investigation had not been
completed within a certain time-limit (see Yankov and Manchev,
cited above, § 32, with further references). However, that could
not have availed the applicant, as at that time his case was already
pending before the court of appeal. As to compensatory remedies, the
Court has not found it established that under Bulgarian law there
exists an avenue whereby persons subjected to criminal proceedings
can obtain damages or other redress in respect of the excessive
length of such proceedings (ibid., § 33).
- There
has therefore been a violation of Article 13 of the Convention.
IV. 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
- In
respect of non-pecuniary damage, the applicant claimed 2,000,000 euro
(EUR). He also claimed EUR 60,000 in respect of pecuniary damage,
consisting of the loss of value of three cars seized by the
authorities in relation with the criminal proceedings against him.
Lastly, he requested the Court to order the Bulgarian State to end to
his “illegal imprisonment”.
- The
Government contested the claims as excessive and unsubstantiated.
- The
Court observes that in the present case, an award of just
satisfaction can be based only on the violations of Articles 3, 6 §
1 and 13 of the Convention. It does not consider that those
violations had a sufficient causal link with the pecuniary damage
suffered by the applicant. Nor do they make it necessary or
appropriate to grant consequential relief of the sort requested by
him (contrast Assanidze v. Georgia [GC], no. 71503/01, §§
202-03, ECHR 2004-II). On the other hand, the Court considers that
the applicant must have sustained non-pecuniary damage as a result of
the breaches of his rights under the above-mentioned provisions.
Ruling in equity, as required under Article 41, it awards him EUR
7,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant sought reimbursement of 3,000 Bulgarian levs (BGN) incurred
in fees in relation with the criminal proceedings against him, and of
the sums incurred in translation expenses for the proceedings before
the Court. He submitted translation receipts for the amount of BGN 65
(the equivalent of EUR 33.23).
- The
Government contested the claims as excessive and not supported by
documents.
- According
to the Court’s case-law, costs and expenses will not be awarded
under Article 41 unless it is established that they were actually and
necessarily incurred and reasonable as to quantum. Furthermore, legal
costs are only recoverable in so far as they relate to the violation
found (see, as a recent authority, Šilih v. Slovenia
[GC], no. 71463/01, § 226, 9 April
2009). Since the legal fees claimed concerned the applicant’s
defence against the criminal charges in the domestic proceedings,
they cannot be regarded as constituting expenses necessarily incurred
in seeking redress for the violations found in the present case (see
Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR
1999-II). On the other hand, having regard to the documents in its
possession and the above criteria, the Court considers the
translation expenses (EUR 33.23) should be allowed in full.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the remainder of the application
admissible;
- Holds that there has been no violation of
Article 3 of the Convention on account of the physical conditions of
the applicant’s detention;
- Holds that there has been no violation of
Article 3 of the Convention on account of the regime of the
applicant’s detention;
- Holds that there has been a violation of Article
3 of the Convention on account of the systematic handcuffing of the
applicant when taken out of his cell;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the criminal
proceedings against the applicant;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay to the applicant, within three months
from 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 at 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
33.23 (thirty-three euros and twenty-three cents), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses.
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
