LEBOIS v. BULGARIA - 67482/14 (Judgment : Remainder inadmissible ( Six-month period) Violation of Right to respect for private and family lif...) [2017] ECHR 927 (19 October 2017)

In the case of Lebois v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Nona Tsotsoria,
          André Potocki,
          Yonko Grozev,
          Mārtiņš Mits,
          Gabriele Kucsko-Stadlmayer,
          Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 26 September 2017,

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

PROCEDURE

1. The case originated in an application (no. 67482/14) 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 French national, Mr Vincent Lebois (“the applicant”), on 11 October 2014.

2. The applicant was represented by Ms L. Tassone, a lawyer practising in Strasbourg, France. The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova of the Ministry of Justice.

3. On 25 August 2016 the Government were given notice of the complaints concerning (a) the conditions of the applicant’s detention; (b) the medical care provided to the applicant in custody; and (c) the restrictions on the applicant’s visits and telephone contacts in detention. The remainder of the application was declared inadmissible under Rule 54 § 3 of the Rules of Court.

4. In a letter of 24 November 2016 the French Government, who had been notified of the application (Rule 44 § 1 (a) of the Rules of Court), stated that they did not wish to exercise their right under Article 36 § 1 of the Convention to submit written comments.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1986 and lives in Sofia, Bulgaria, where he apparently moved from France in November 2013.

6. At 12.40 a.m. on 24 January 2014 he was arrested in Sofia while breaking into cars with a view to stealing items from them. He was taken to the First District Police Station and placed under police detention. According to the applicant, he was not put in a cell, but handcuffed to a bench in the station’s corridor.

7. According to the applicant, throughout the whole time that he spent in the police station he was not given any food or drink, allowed to go to the toilet, or allowed to use a telephone. He was visited by an ex officio lawyer appointed for him by the authorities. However, the lawyer spoke no French and very little English - a language that the applicant is apparently familiar with - and did not explain to him anything about the procedure in his case.

8. In the late afternoon or the evening of 24 January 2014 the applicant was taken to a hospital for a medical examination, and then, at about 10 p.m. the same day, taken to a pre-trial detention facility in Sofia.

9. It appears that the next day, or one of the following days, the applicant was brought before the Sofia District Court with a view to a decision on whether he should be remanded in detention, and that it was decided that he should remain in custody pending trial. A subsequent request for release apparently made by his counsel in the end of February 2014 was rejected as well.

10. According to the applicant, upon his arrival in the pre-trial detention facility on the evening of 24 January 2014 (see paragraph 8 above), he was given a dirty mattress, pillow and blanket, but no bedlinen. Since he had arrived in the facility after suppertime, he could not eat or drink anything until lunchtime the following day, 25 January 2014.

11. According to the applicant, the cell in which he had been placed had been dirty, cold, poorly ventilated, infested with cockroaches, overcrowded, and with a toilet which was not properly separated from the rest of the cell.

12. According to the applicant, he was not able to maintain his personal hygiene, as he was not provided with toilet paper or other toiletries, and had had no money to purchase them. As a result, it had been impossible for him to go to the shower for two weeks. On the third day of his stay in the facility, he had seen spots erupt on his skin and had asked to be examined by a medical doctor. The doctor had come to see him three days later, and had only examined him from a distance, without entering the cell. On an unspecified date in March 2014, the applicant was given a blood test which revealed that he had a staphylococcus infection. He was given antibiotics for it but was not taken to a hospital.

13. According to the applicant, food had also been so poor and served so unhygienically that he had lost twenty-three kilogrammes during his stay in the detention facility. The space for out-of-cell exercise had also been so small that on many occasions he had chosen not to take his daily exercise.

14. In the detention facility, there was a cardphone which inmates could use to call outside numbers. It was located in the space where they could take their daily one-hour out-of-cell exercise. Since it had to be shared among them, each inmate had about six minutes to use it. As the applicant had had no money on him when arrested, he could not however purchase a phonecard. With the help of a co-detainee who spoke some English, about two weeks after his arrival in the facility he managed to obtain one minute of call time free of charge, and on 5 February 2014 contacted the consulate of France in Sofia. The consulate immediately informed the applicant’s Bulgarian girlfriend, a Bulgarian friend of his and his parents, who resided in France, that he had been arrested and detained, and the consul came to visit him. The same day the applicant’s mother, who lived in France, wired money to the consul so that she could purchase food and clothes for the applicant. The consulate also arranged for a lawyer to represent the applicant in the criminal case against him.

15. With the money that he received via the consulate, the applicant was able to purchase a phonecard. According to him, he had made many requests to that effect in the days after 5 February 2017, which the Government had not provided. The Government insisted that they had made available to the Court all documents in the applicant’s detention file. They submitted a declaration by him dated 24 February 2014 whereby he had asked the detention facility’s head to issue him a phonecard preloaded with 20 Bulgarian levs of credit and, as required under the relevant regulations (see paragraph 30 below), had submitted for approval a list of the persons - his Bulgarian girlfriend, a Bulgarian friend, his lawyer, and his mother and father in France - whom he wished to call. The same day the facility’s head approved the list. The applicant was apparently able to call his mother in France for the first time two days later, on 26 February 2014.

16. According to the applicant, the relevant order (see paragraph 31 below) had provided that detainees could purchase phonecards or recharge them twice a month. The Government did not comment on that point or submit a copy of the order. According to the official form used by the applicant to make his above-mentioned declaration, phonecards could be recharged once a month. The applicant alleged that the facility’s staff had often not complied with the recharging schedule and that on one occasion he had been unable to recharge his phonecard for five weeks. He did not provide further details in that respect, but from the documents submitted by him it appears that between 24 March and 14 April 2014, a period of three weeks, he had not spoken on the telephone to his mother in France.

17. Detainees in the facility could get two visits a month, each lasting up to twenty minutes. According to the Government, the applicant had received such visits on 5, 8 and 9 February and 23 March 2014. However, on one occasion on 22 March 2014 the applicant’s Bulgarian girlfriend, who had come to visit him, was turned away with the explanation that the same day he had been moved to a different wing, detainees in which could be visited on another date according to the schedule of visits. She was apparently able to visit him the next day. It appears that a Bulgarian friend of the applicant who had also come to visit him on 22 March 2014 was likewise turned away.

18. According to the Government, during his stay in the detention facility the applicant had been visited by his lawyer on twelve occasions in February and March 2014, and by consular staff on two occasions. He had also received parcels with food and other items on twenty-one occasions.

19. Throughout his stay in the detention facility, the applicant was able to correspond with his parents in France with letters passed via his lawyer or the staff of the consulate of France in Sofia.

20. On 17 April 2014 the applicant and the prosecution entered into an agreement whereby he pleaded guilty and accepted to serve a sentence of three months’ imprisonment. The same day the Sofia District Court approved the agreement, and the next day, 18 April 2014, the applicant was moved to Sofia Prison. Since his pre-trial detention was taken into account in calculating the amount of time that he had to serve under his sentence of imprisonment, he spent there only six days, until 24 April 2014, when he was released. According to the applicant, conditions in Sofia Prison were nearly identical to, or even worse than, those in the detention facility.

21. The applicant’s parents came from France to Bulgaria to see him on 25 April 2014, the day after his release. It appears that they could not do so earlier because it was not possible for his mother to take leave from work.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. New remedies in respect of conditions of detention

22. As a result of the Court’s pilot judgment in the case of Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, 27 January 2015), in early 2017 Bulgaria put in place dedicated preventive and compensatory remedies in respect of inhuman or degrading conditions of detention in correctional and pre-trial detention facilities. The compensatory remedy came into effect on 7 February 2017. It is open not only to those in custody on or after that date, but also to those who have spent time in such facilities before that, if they have complained to this Court under Article 3 of the Convention about the conditions of their detention and if the Court declares their complaints inadmissible on the basis that they have not resorted to that remedy. The relevant provisions of the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”), as amended in 2017, were set out in detail in the Court’s decision in Atanasov and Apostolov v. Bulgaria ((dec.), nos. 65540/16 and 22368/17, §§ 16, 26 and 27, 27 June 2017).

B. The obligations to inform others that someone has been placed in pre-trial detention and to enable pre-trial detainees to contact their families and relatives

23. According to Article 63 § 7 of the 2005 Code of Criminal Procedure, when placing an accused in pre-trial detention, the authorities must notify (a) his or her family; (b) his or her employer, unless the accused opposes that; and (c) the Ministry of Foreign Affairs, if the accused is a foreign national. In practice, the courts order such notification in the operative provisions of the decisions whereby they impose pre-trial detention (see, for example, опр. № 68 от 09.02.2009 г. по ч. н. д. № 159/2009 г., РС-Велико Търново (the family); as well as опр. от 14.11.2012 г. по в. ч. н. д. № 1270/2012 г., ОС-Бургас, and опр. № 1189 от 22.07.2016 г. по ч. н. д. № 512/2016 г., РС-Сливница (the Ministry of Foreign Affairs)).

24. Article 36 § 1 (b) of the 1963 Vienna Convention on Consular Relations (596 UNTS 261), to which Bulgaria acceded in 1989, lays down the obligations to (a) inform a consular post if a national of the sending State is arrested or detained; (b) forward without delay any communication addressed to that post by the detainee; and (c) inform the detainee without delay of those rights. The Convention was published in the State Gazette on 25 May 1990 (ДВ, бр. 42/1990 г.), and is thus, by virtue of Article 5 § 4 of the 1991 Constitution, part of Bulgarian domestic law.

25. Section 74(2)(6)(e) of the Ministry of Internal Affairs Act 2014, which came into force on 1 July 2014, provides that an order for police detention must set out the detainees’ right to contact the consular authorities of their State of nationality if they are not Bulgarian nationals. The Ministry of Internal Affairs Act 2006 did not contain a similar provision. Section 74(2)(6)(d) of the 2014 Act also provides that the detention order must set out the detainees’ right to make a telephone call to inform someone of their detention. The 2006 Act did not contain such a provision, but laid down, in section 63(6), an obligation for the detaining authority to inform immediately a person specified by the detainee.

26. Section 243(1) of the 2009 Act provides that pre-trial detainees are entitled to inform their family or relatives of their placement in a detention facility. If they do not wish to do so, they have to sign a declaration to that effect, and in that case the facility’s administration cannot inform the family or relatives of its own motion. Section 243(2) provides that detainees must immediately be apprised of their entitlement to visits, telephone contacts, correspondence and parcels. Section 243(3) provides that detainees who are not Bulgarian nationals must be informed of their right to contact the diplomatic or consular authorities of their State of origin, and must immediately be provided with facilities to do so.

27. At the European Union level, the rights to (a) have a third person informed of the deprivation of liberty, (b) communicate, while deprived of liberty, with third persons, and (c) have the consular authorities of one’s State of nationality informed of the deprivation of liberty without undue delay and to communicate with those authorities are set out, respectively, in Articles 5 § 1, 6 § 1 and 7 § 1 of Directive 2013/48/EU of 22 October 2013 “on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty”. The first two rights belong to all “suspects and accused persons in criminal proceedings” (Article 1), and the third one only belongs to “suspects or accused persons who are non-nationals” (Article 7 § 1). The deadline for the Directive’s transposition was 27 November 2016. In 2016 the Bulgarian Ministry of Justice drafted a bill for the amendment of the 2005 Code of Criminal Procedure with a view to doing so, on top of the already existing provisions in the Ministry of Internal Affairs Act 2014 (see paragraph 25 above). The bill proposes to give effect to the above-mentioned rights by amending Article 63 § 7 of the Code (see paragraph 23 above) and by adding a new paragraph 8. In October and November 2016 it was subjected to public consultation, with opinions taken from, inter alia, the Chief Prosecutor’s Office and the Chief Bar Council, but has not yet reached Parliament.

C. Visits and access to a telephone in pre-trial detention

28. Section 256(1) of the 2009 Act provides that pre-trial detainees have the right to visits, food parcels, parcels with clothes and other items, and correspondence. Section 256(4) provides that the number of visits is fixed by order of the head of the General Directorate for the Execution of Punishments. Regulation 277(1) of the Act’s implementing regulations provides that pre-trial detainees are entitled to at least two visits a month. According to regulation 277(2), these may last up to forty minutes, and are to be carried out in a manner laid down by the head of the respective regional or district service for the execution of punishments or by the head of the respective territorial pre-trial detention service.

29. Several reported cases (реш. № 32 от 18.01.2013 г. по адм. д. № 280/2012 г., АдмС-Русе; реш. от 18.01.2013 г. по адм. д. № 342/2012 г., АдмС-Русе; and реш. № 25 от 04.07.2014 г. по адм. д. № 442/2013 г., АдмС-Русе) show that the schedule of visits in another pre-trial detention facility was fixed in an unpublished order (Заповед № Л-128 от 23.04.2012 г. на началник сектор „Арести“ при окръжна служба „Изпълнение на наказанията“ - Русе) issued by the head of the territorial pre-trial detention service by virtue of the powers which he had under the above-mentioned regulation 277(2). The Government did not provide a copy of the order or orders governing visits in the pre-trial detention facility in which the applicant had been held, or explain in what way these had been brought to his attention.

30. Section 256(2) of the 2009 Act provides that pre-trial detainees have the right to telephone contacts with their family and relatives in a manner laid down by the head of the Chief Directorate for the Execution of Punishments. According to regulation 281 of the Act’s implementing regulations, pre-trial detainees can use the telephone in the same manner as convicted prisoners. Regulation 79(1) provides that convicted prisoners can make calls at their own expense via a telephone provided by an operator contracted by the facility’s administration. At the relevant time, the list of persons that they could call had to be declared to, and approved by, the facility’s head (regulation 79(2), in force until February 2017). The facility’s head can also permit a detainee to use the telephone free of charge in a family emergency or when there exist “urgent legal grounds” (regulation 79(3)).

31. A recent reported case (реш. № 103 от 19.04.2017 г. по адм. д. № 488/2016 г., АдмС-Перник) shows that at the relevant time the details of the manner in which pre-trial detainees could use the telephone were set out in an unpublished order (Заповед № Л-6399 от 26.07.2010 г. за вътрешния ред в арестите) issued in 2010 by the head of the Chief Directorate for the Execution of Punishments in the exercise of his powers under the above-mentioned section 256(2) of the 2009 Act. The Government did not provide a copy of that order, or explain in what way it had been brought to the applicant’s attention.

D. Liability for damage resulting from administrative action

32. Section 1(1) of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”) provides that the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action. Pre-trial detainees and convicted prisoners often make claims under that provision.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

33. The applicant complained that while detained in the police station he had not been given any food or drink or allowed to go to the toilet; that the conditions in which he had been kept in the pre-trial detention facility and in Sofia Prison had been very poor; and that as a result of those conditions he had developed a staphylococcus infection, for which he had not been given proper medical treatment.

34. Those complaints fall to be examined under 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

35. The Government submitted that the complaint about the conditions of the applicant’s police detention was out of time because that detention had ended more than six months before he had lodged his application. Moreover, he had not sought judicial review of that detention, damages under the 1988 Act, or an injunction against the authorities, and had thus not exhausted domestic remedies. At the relevant time, claims under the 1988 Act had been sufficiently effective. Nor had the applicant brought a claim for damages under the 2009 Act, as amended in 2017. Those amendments had specifically made it possible for such claims to be brought by persons who had already complained to this Court of the conditions of their detention, even if it had ended before the amendments’ entry into force.

36. The Government went on to say that since the amount of time that the applicant had spent in police detention had been quite brief, the conditions of that detention had not reached the threshold of severity under Article 3 of the Convention. They also disputed parts of the applicant’s account of the conditions in the pre-trial detention facility and of the medical care provided to him there.

37. The applicant pointed out that he had applied to the Court less than six months after his release, and argued that the different phases of his detention should not be considered in isolation. He went on to say that, while in detention, he had not been informed of the remedies cited by the Government or provided with any documents in French so as to be able to understand the applicable procedures. In any event, in Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, 27 January 2015) the Court had found that at that time there had been no effective remedies in Bulgaria with respect to inadequate conditions of detention. The new remedies introduced in 2017 as a result of that judgment could not be taken into account in his case as he was complaining not only of the conditions of his detention but also of a breach of his right to respect for his private and family life, and as it was doubtful whether those new remedies would be effective in his case.

38. The applicant further submitted that after his arrest, he had not been given food and drink, or allowed to go to the toilet, for more than twenty-four hours. Conditions in the pre-trial detention facility to which he had been transferred, as well as in Sofia Prison, and the medical treatment provided to him for the staphylococcus infection which he had developed as a result, had also been inadequate.

B. The Court’s assessment

39. In Neshkov and Others (cited above, §§ 194-207 and 279-89) the Court found that, in view of the overall manner in which the Bulgarian courts approached claims by detainees relating to the conditions of their detention, at the relevant time a claim for damages under section 1(1) of the 1988 Act (see paragraph 32 above) in relation to allegedly inhuman or degrading conditions of detention did not offer a reasonable prospect of success and was not an effective remedy. It also found that no other such remedies existed, and held that Bulgaria had to make them available. As a result, in early 2017 Bulgaria put in place a preventive and a compensatory remedy designed to provide redress in respect of inhuman or degrading conditions in correctional and pre-trial detention facilities (see paragraph 22 above). In June 2017 the Court held that those remedies could be seen as effective, and that the compensatory remedy should also be used by pre-trial detainees and prisoners who had been released before its introduction and had in the meantime complained to the Court about the conditions of their detention (see Atanasov and Apostolov, cited above, §§ 44-68).

40. In view of that, the Government’s objection that the applicant had not brought a claim for damages under section 1(1) of the 1988 Act (see paragraph 32 above) or attempted to use another pre-existing remedy must be dismissed. According to the Court’s settled case-law (see, for example, Atanasov and Apostolov, cited above, § 45), the effectiveness of those pre-existing remedies must be judged by reference to the point in time when the applicant lodged his application - 11 October 2014 (see paragraph 1 above) - and the Court’s findings in Neshkov and Others (cited above, §§ 194-207) cover exactly that period.

41. However, insofar as the applicant complained of the conditions in which he had been kept in the pre-trial detention facility between 25 January and 18 April 2014 and in Sofia Prison between 18 and 24 April 2014, and of the lack of proper medical care for the infection which he had allegedly developed as a result, it is open to him to seek compensation under the relevant provisions of the 2009 Act, as amended in 2017 (see paragraph 22 above). As already noted in Atanasov and Apostolov (cited above, § 45), that newly created remedy, which was put in place in response to the Court’s pilot judgment in Neshkov and Others (cited above), must, as an exception to the general rule, be taken into account even though it was not in existence when the applicant lodged his application. The practical difficulties due to his being a foreigner who does not speak Bulgarian do not exempt him from the obligation to exhaust domestic remedies (see Choban v. Bulgaria (dec.), no. 48737/99, 23 June 2005, and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 101, ECHR 2010). This limb of the Government’s objection must therefore be allowed.

42. It follows that these complaints are inadmissible for non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention.

43. But the same does not apply to the complaint relating to the conditions in which the applicant was kept while in police detention on 24 January 2014. The 2017 amendments to the 2009 Act, which were enacted to resolve the problems noted by the Court in Neshkov and Others (cited above, §§ 194-207 and 279-89), only cover pre-trial detention and detention in correctional facilities under a sentence of imprisonment, and do not appear to relate to police detention (see paragraph 22 above). In the absence of any indication that they could be applied to police detention as well, the new preventive and compensatory remedies introduced with those amendments cannot be seen as effective with respect to the conditions of the applicant’s police detention.

44. It follows that, insofar as he complained about the conditions of his police detention, the applicant did not have at his disposal an effective domestic remedy. His complaint in that respect is, however, inadmissible for failure to comply with the six-month time-limit under Article 35 § 1 of the Convention, for the following reasons.

45. When an applicant who complains under Article 3 of the Convention of the conditions in which he has been kept in a given detention facility has at his disposal no effective domestic remedy, he must raise the complaint within six months after his stay in that facility has come to an end to comply with the six-month time-limit. But if an applicant has been transferred from one facility to another - and perhaps further on - and the conditions in those facilities, as well as the nature of his grievances in respect of them, did not substantially differ, the period spent in those successive detention facilities is to be seen as a continuing situation, and examined as a whole (see Alimov v. Turkey, no. 14344/13, § 59, 6 September 2016, with further references).

46. In the present case, the conditions of the applicant’s detention in the police station, and the matters of which he complained in relation to that - the handcuffing to a bench in the corridor, the failure to provide him with any food or drink, or to allow him to go to the toilet (see paragraph 7 above) - differed from those of which he complained in relation to his ensuing stay in the pre-trial detention facility and in Sofia Prison, where he chiefly alleged to have suffered from overcrowding, poor physical and hygienic conditions, limited possibilities for outdoor exercise, and a lack of proper medical care (see paragraphs 10-13 above). The periods of his detention in, on the one hand, the police station and, on the other hand, in the pre-trial detention facility and in Sofia Prison cannot therefore be seen as a single continuing situation (see, mutatis mutandis, Maltabar and Maltabar v. Russia, no. 6954/02, § 83, 29 January 2009, and I.D. v. Moldova, no. 47203/06, § 30, 30 November 2010, and contrast Iacov Stanciu v. Romania, no. 35972/05, § 138, 24 July 2012). The first situation came to an end in the evening of 24 January 2014, when the applicant was transferred from the police station to the detention facility, or at the latest at lunchtime the following day, 25 January 2014, when he was provided with food and drink (see paragraphs 8 and 10 above). Since he did not have at his disposal an effective domestic remedy, he should have complained of that situation not later than 24 or 25 July 2014 in order to comply with the six-month time-limit. Yet, he only did so on 11 October 2014, when he lodged the present application.

47. It follows that this complaint is out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION

48. The applicant complained that for twelve days after his arrest he had been unable to contact his family or anyone else and inform them of his deprivation of liberty, and that during his time in custody he had not been provided with sufficient possibilities to receive visits or to speak on the telephone to his family and friends.

49. Those complaints fall to be examined under Article 8 of the Convention, which provides, in so far as relevant:

“1. Everyone has the right to respect for his private and family life ... and 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.”

A. The parties’ submissions

50. The Government submitted that the applicant had not exhausted domestic remedies, as he had not brought any administrative or judicial proceedings in respect of his grievances under Article 8 of the Convention.

51. They also pointed out that the applicant had had a phonecard. His failure to recharge it on several occasions could not be imputed to the authorities or seen as an interference with his rights under Article 8. He had also been visited by friends on three occasions, had met with his counsel on twelve occasions, and had twice been visited by staff of the consulate of France in Sofia. He had, moreover, received parcels with food, money and other items on twenty-one occasions. There had therefore been no undue restrictions on his contacts with the outside world.

52. The applicant submitted that for twelve days after his arrest, until he had managed to get in touch with the consulate of France in Sofia, he had been unable to contact his family or friends. After that, he had been able to communicate with them in writing, via the consulate or his lawyer. He had only succeeded to obtain a phonecard and call his mother a month after his arrest. His ensuing telephone conversations with her had been brief and rare. Visits in the pre-trial detention facility had been possible only twice a month, but his girlfriend had been turned away once under the pretext that that day he had been moved to another floor.

B. The Court’s assessment

1. Admissibility

53. The applicant’s first complaint was that the authorities had not done enough to enable him to inform his family of his arrest and placement in detention. This raises an issue under the authorities’ positive obligations flowing from Article 8 of the Convention. The Court has had occasion to hold that in view of the deep anxiety that the disappearance of a family member can cause, even for a short period, and the consequent importance for someone who has been arrested to be able to get in touch with his or her family promptly, there is an obligation under that Article to enable an detainee to contact them rapidly after being taken into custody (see Sarı and Çolak v. Turkey, nos. 42596/98 and 42603/98, §§ 33-37, ECHR 2006-V (extracts)). In some cases this can also amount to an important safeguard to prevent arbitrary detention (see, mutatis mutandis, Kurt v. Turkey, 25 May 1998, §§ 122-24, Reports of Judgments and Decisions 1998-III). Indeed, in Bulgaria such an obligation is set out in section 243 of the 2009 Act (see paragraph 26 above). As evidenced by that provision, as well as the other relevant provisions of Bulgarian law, European Union law and international law (see paragraphs 23 to 27 above), that obligation takes on an added importance when the detainee is an alien whose family may be in a different country.

54. In the present case, the applicant was kept handcuffed throughout his stay in the police detention after his arrest, and was not allowed to use the telephone (see paragraph 7 above). Since he did not speak Bulgarian, it is also doubtful whether he could properly articulate his wish to do so in the apparent absence of proper interpretation facilities. His inability to express himself in Bulgarian must have also seriously restricted his capacity to communicate with the custodial staff or his co-detainees in the pre-trial detention facility. Moreover, he did not have any money on him when he was arrested; that prevented him from obtaining a phonecard enabling him to use the cardphone available in the detention facility (see paragraph 14 above). Thus, he was not able to inform anyone of his deprivation of liberty for twelve days, until, with the help of a co-detainee, he obtained access to a telephone and contacted the consulate of France in Sofia on 5 February 2014, which in turn informed his parents of his arrest and detention (ibid.). That state of affairs raised a potentially serious issue under Article 8 of the Convention, but came to an end more than six months before the applicant lodged his application.

55. It is open to doubt whether there was an effective domestic remedy in respect of that situation. The Government did not specify which remedies they had in mind, or cite any examples. Although a claim under section 1(1) of the 1988 Act (see paragraph 32 above) does not appear inconceivable in respect of an omission by the detention facility’s administration to comply with its obligations under section 243 of the 2009 Act, its practicability has not been clearly demonstrated (contrast, mutatis mutandis, Posevini v. Bulgaria, no. 63638/14, §§ 36-42, 19 January 2017). Since it is not for the Court to inquire into the point of its own motion at this stage of the proceedings, it leaves the question whether that remedy would have been effective in this case open. Assuming, as the applicant implied, that he had no effective domestic remedy in respect of this grievance, the six-month time-limit under Article 35 § 1 of the Convention started to run when the situation of which he complained ended, that is, on 5 February 2014 (see, mutatis mutandis, Mifsud v. France (dec.) [GC], no. 57220/00, § 20, ECHR 2002-VIII, and Lenev v. Bulgaria, no. 41452/07, § 160, 4 December 2012). To comply with that time-limit, he should have thus raised this complaint not later than 5 August 2014, but only did so on 11 October 2014, when he lodged this application.

56. It follows that the complaint is out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

57. The same does not, however, apply to the applicant’s second complaint: that throughout his pre-trial detention his possibilities to receive visits and speak on the telephone to his family and friends had been unduly restricted. That state of affairs continued to affect him at least until his transfer to Sofia Prison on 18 April 2014, and he complained about it less than six months after that, on 11 October 2014.

58. This complaint cannot be rejected under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies either. As already noted, the Government did not specify which remedies they had in mind. Nor did they explain how those remedies would have been expected to provide redress to the applicant, or cite any examples. Their objection in that respect cannot therefore be accepted.

59. Nor is the complaint 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

60. The Court notes that the complaint chiefly has to do with the State’s negative obligation under Article 8 of the Convention not to interfere unlawfully and unjustifiably with someone’s private and family life and correspondence.

61. Compliance with that obligation with regard to persons in custody bears some particularities, as any detention which is itself lawful and justified inevitably entails some limitations on their rights under Article 8 (see, among other authorities, Messina v. Italy (no. 2), no. 25498/94, § 61, ECHR 2000-X; Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015; and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 190, ECHR 2016). Thus, when assessing compliance with the requirements of that provision with respect to their contacts with the outside world, regard must be had to the ordinary and reasonable requirements of imprisonment (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 74, Series A no. 131, and Dikme v. Turkey, no. 20869/92, § 117, ECHR 2000-VIII). Indeed, some restrictions of those contacts, such as limitations on the number and duration of visits, are not of themselves incompatible with Article 8 (see Khoroshenko, cited above, § 123, with further references). The same goes for correspondence (see, among other authorities, Golder v. the United Kingdom, 21 February 1975, § 45, Series A no. 18; Silver and Others v. the United Kingdom, 25 March 1983, § 98, Series A no. 61; and Szuluk v. the United Kingdom, no. 36936/05, § 46, ECHR 2009). As for telephone calls, Article 8 does not in itself guarantee such a right, especially if there exist adequate possibilities for written correspondence. If telephone facilities are, however, made available, they may, again in view of the ordinary and reasonable requirements of imprisonment, also be subject to restrictions (see A.B. v. the Netherlands, no. 37328/97, §§ 92-93, 29 January 2002; Davison v. the United Kingdom (dec.), no. 52990/08, 2 March 2010; and Nusret Kaya and Others v. Turkey, nos. 43750/06 and 4 others, § 36, ECHR 2014 (extracts)).

62. All that said, any such restrictions constitute an interference with the detainee’s rights under Article 8, and so must meet the requirements of its second paragraph (see, among other authorities, Klamecki v. Poland (no. 2), no. 31583/96, § 144, 3 April 2003; István Gábor Kovács v. Hungary, no. 15707/10, § 35, 17 January 2012; and Nusret Kaya and Others, cited above, § 36). The above-mentioned considerations are simply factors to be taken into account in assessing whether the interference was “necessary in a democratic society” (see Komissarova v. Russia (dec.), no. 25537/08, § 20 in fine, 3 July 2012).

63. In the present case, the restrictions on the visits which the applicant could receive while in pre-trial detention can be seen as an interference with his “private life” (see, mutatis mutandis, Tereshchenko v. Russia, no. 33761/05, § 127, 5 June 2014).

64. Since under Bulgarian law the applicant had the right to make telephone calls while in pre-trial detention, and since inmates in the detention facility in which he was kept had access to a cardphone (see paragraphs 14 and 30 above), the limitations on his possibility to use that cardphone must likewise be seen as an interference with his “private life” and “correspondence” (see, mutatis mutandis, Trosin v. Ukraine, no. 39758/05, §§ 40 and 46, 23 February 2012).

65. To comply with Article 8, such interference must be “in accordance with the law”, pursue one or more of the legitimate aims set out in its second paragraph, and be “necessary in a democratic society” to attain those aims.

66. The first of those requirements means that the interference must have some basis in domestic law and be in conformity with that law (see, among many other authorities, Silver and Others, cited above, § 86). But it also means that the law must be adequately accessible and formulated with sufficient precision (ibid., §§ 87-88). Although that does not entail that the all detailed conditions and procedures governing the interference have to be laid down in the substantive law itself, the requirements of Article 8 § 2 are not met if points which cannot be satisfactorily resolved on the basis of the substantive law are set out in internal orders of which the detainees have not been made sufficiently aware (ibid., §§ 88-89 and 93-94). As evident from that judgment, and from the Court’s case-law relating to the accessibility of the law more generally (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, §§ 50-52, Series A no. 30; Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173; and Autronic AG v. Switzerland, 22 May 1990, § 57, Series A no. 178), the ways in which detainees can be made aware of those internal orders may vary. These ways must, however, be adequate in the circumstances.

67. In the present case, the internal orders setting out the practical details of how inmates in the pre-trial detention facility in which the applicant was kept could exercise their statutory rights to receive visits and use the telephone were not published or made accessible to the detainees in a standardised form (see paragraphs 29 and 31 above). The Government did not submit copies of those orders, or say anything about the manner in which they had been brought to the applicant’s attention (ibid.). It was thus not established by the Government that he was made adequately aware of them, especially given that he did not speak Bulgarian. The restrictions on his visits and use of the cardphone appear to have flowed precisely from the internal arrangements in the pre-trial detention facility, which were governed by those orders (see paragraphs 29 and 31 above). The interference with his rights under Article 8 of the Convention was therefore not based on adequately accessible rules, and was thus not “in accordance with the law” within the meaning of paragraph 2 of that Article (see, mutatis mutandis, Dimitrov-Kazakov v. Bulgaria, no. 11379/03, § 33, 10 February 2011).

68. This finding obviates the need to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated in Article 8 § 2.

69. There has therefore been a breach of Article 8 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

70. 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

71. The applicant claimed 90,000 euros (EUR) in respect of the pain and suffering which he had allegedly sustained as a result of (a) the various forms of allegedly inhuman and degrading treatment which he had experienced in custody, the (b) impossibility to inform promptly his family of his arrest, and (c) the undue restrictions of his visits and telephone contacts in custody. He also claimed EUR 30,000 in respect of the costs of the medical treatment that he would have to undergo to remove all traces of the staphylococcus infection allegedly contracted as a result of the conditions of his detention and of a knee injury which he had sustained when ill-treated by the police upon his arrest. Lastly, he claimed an unspecified sum in respect of the possessions which he had been unable to recover following his release from the owner of the flat which he had rented before his arrest, as well as the rent for that flat and the security deposit which he had paid for it and which the owner had not returned to him.

72. The Government submitted that the claim in respect of non-pecuniary damage was exorbitant and considerably higher than the awards made by the Court in previous similar cases against Bulgaria. They went on to say that it had not been clearly established that the applicant’s medical problems had been a direct result of any treatment inflicted upon him by the authorities.

73. In the present case, an award of just satisfaction can only be based on the breach of Article 8 of the Convention relating to the restrictions on the applicant’s visits and access to a telephone. There is no causal link between that breach and the various forms of pecuniary damage allegedly suffered by the applicant. His claim in that respect must therefore be dismissed. By contrast, the applicant must have suffered some non-pecuniary damage as a result of the breach. Ruling on an equitable basis, as required under Article 41, the Court awards him EUR 1,000, plus any tax that may be chargeable.

B. Costs and expenses

74. The applicant claimed a sum “not lower than” EUR 15,000 in respect of costs. In particular, he sought reimbursement of 1,765 plus 200 Bulgarian levs (BGN) incurred in counsel’s fees for his representation in the criminal proceedings against him, as well as of BGN 100 which he had paid in court costs for those proceedings. He also sought reimbursement of EUR 1,365 incurred in fees for his legal representation in the Strasbourg proceedings. In support of his claim, the applicant submitted fee agreements with his counsel in the criminal proceedings against him and his legal representative before the Court, and receipts attesting the payment of their fees.

75. The Government pointed out that the documents submitted by the applicant showed that the costs which he had incurred had been far lower than his claim. They invited the Court to reject the claim.

76. According to the Court’s settled case-law, costs and expenses can only be awarded under Article 41 of the Convention if they were actually and necessarily incurred and were reasonable as to quantum. Furthermore, they are only recoverable insofar as they relate to the violation found (see, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 196, ECHR 2010).

77. In the present case, counsel’s fees and the costs claimed by the applicant with respect to the domestic proceedings concerned his defence against the criminal charges against him. They were therefore not costs incurred in seeking redress for the breach of Article 8 of the Convention found by the Court (see Jėčius v. Lithuania, no. 34578/97, § 114, ECHR 2000-IX; Butkevičius v. Lithuania, no. 48297/99, § 65, ECHR 2002-II (extracts); and Kashavelov v. Bulgaria, no. 891/05, § 59, 20 January 2011). As for the lawyer’s fees incurred for the applicant’s representation in the Strasbourg proceedings, a reduction must be applied since most of his complaints were declared inadmissible (see Bayatyan v. Armenia [GC], no. 23459/03, § 135, ECHR 2011).

78. In view of those considerations, and bearing in mind the documents in its possession, the Court awards the applicant EUR 400, plus any tax that may be chargeable to him.

C. Default interest

79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the restrictions of the applicant’s visits and access to a telephone admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 400 (four hundred euros), 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LEBOIS v. BULGARIA - 67482/14 (Judgment : Remainder inadmissible ( Six-month period) Violation of Right to respect for private and family lif...) [2017] ECHR 927 (19 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/927.html Cite as: CE:ECHR:2017:1019JUD006748214, ECLI:CE:ECHR:2017:1019JUD006748214, [2017] ECHR 927