FOURTH SECTION
CASE OF
MARIN KOSTOV v. BULGARIA
(Application no.
13801/07)
JUDGMENT
STRASBOURG
24 July 2012
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case
of Marin Kostov v.
Bulgaria
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
andFatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13801/07) 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 Marin Yordanov Kostov
(“the applicant”), on 26 February 2007.
The applicantwas represented by Mr E. Abrashev, a
lawyer practising in Pleven. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The applicant alleged, in particular, that his
punishment with solitary confinement for having complained against the prison
administration amounted to a violation of his rights under Articles 6, 8 and 10
of the Convention.
On 15 December 2010the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1). The case was later
transferred to the Fourth Section of the Court, following the reorganisation of
the Court’s sections on 1 February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1981 and iscurrently
serving aprison sentence inPleven Prison.
A. Conditions of the applicant’s detention in Belene
Prisonand his previous complaints against the prison administration
The applicant was detained in Belene Prison from
an unspecified date in August 2002 until 29 March 2007, when he was moved to
Pleven Prison. He stated that the conditions of detention in Belene Prison had
been inhuman and degrading.
It appears that the applicant submitted frequent
complaints to various institutions against the administration of Belene Prison.
On an unspecified date in 2005 he complained to
the prosecuting authorities that some of the letters he had senthad been
withheld by the administration and had never reached their addressees.
Following an inquiry, his complaint was dismissed both by the regional prosecutor
on 14 July 2005 and on appeal on 17 August 2005 by the prosecutor in
appeal proceedings who established that between January 2004 and June 2005 the
applicant had sent thirty-one letters, which had been duly entered in the
prison register and forwarded to their addressees.
B. Disciplinary punishments imposed on the applicant
1. The punishments of 26 and 31 October 2006
On 26 and 31 October 2006 the director of Belene
Prison ordered the confinement of the applicant in an isolation cell for two
five-day periods following two violent incidents between the applicant and
another prisoner which had occurred at short intervals. The applicant appealed.
The Levski District Court opened two sets of
proceedings and on 10 November 2006 examined the applicants’ appeals in
two separate hearings held consecutively. The applicant appeared in person
while the prison administration did not send a representative.
At the start of the first hearing the court
stated that it had summoned Mr K., a prison guard, as a witness. It noted that
Mr K. had not appeared, the prison administration having submitted a medical
certificate to the effect that he had been admitted to hospital. The applicant requested
that anotherprison guard, MrS.,be questioned but nevertheless agreed that the
court should proceed with the examination of the case.
On the merits, the applicant stated that he had
been insulted and attacked by an inmate. He denied having insulted the inmate
concerned and claimed that he was not responsible for the incident and that the
punishment was unjustified.
In a final decision of the same date the District
Court upheld the order of 31 October 2006, stating that the director of the
prison had taken into consideration all relevant circumstances and had
delivered a reasoned and lawful order. The director had considered the
applicant’s and witnesses’ statements and the report of a prison employee. The
court further noted that the written statements of the witnesses corroborated
the director’s conclusions and did not support the applicant’s account of the
events. As to the punishment, it had been determined with due regard to the
gravity of the offence and the applicant’s conduct as a whole.
Then the court proceeded with the second
hearing. It noted that the prison guard MrS., who had been summoned as a
witness,was also in hospital.The applicant insisted on the appearance of Mr S.
and stated that he wanted to call a second witness, Mr F. He also asked to be
assigned a court-appointed lawyer and sought an adjournment.
The court dismissed those requests, stating that
it was obliged to complete the examination of the applicant’s appeal within
three days of its being lodged and that the absence of a lawyer was not a
reason for adjourning the hearing.
On the merits, the applicant explained that the
incident had been similar to the first one and that he had been insulted and
attacked by the same inmate.
In a final decision of the same date the District
Court upheld the order of 26 October 2006. It found that on 28 September 2006 a
conflict had arisen between the applicant and another prisoner which had
developed into a fight. That had necessitated the intervention of the guard on
duty. The director of the prison had taken into consideration all relevant
circumstances and had delivered a reasoned and lawful order. He had considered
the applicant’s and witnesses’ statements and the report of a prison employee.
The court further noted that the written statements of the witnesses
corroborated the director’s conclusions and did not support the applicant’s
account of the events. As to the punishment, it had been determined with due
regard to the gravity of the offence and the applicant’s conduct as a whole.
2. The punishment of 29 January 2007
On 18 December 2006, while the applicant was
isolated in a disciplinary cell in connection with the above punishments, his
mother sent him a parcel which was not delivered to him. On an unspecified date
in December 2006 the applicant asked why his right to receive parcels had been
restricted. The prison administration informed him that no parcel had arrived.
On 3 January 2007 the applicant complained to
the public prosecutor that the prison administration had refused to give him
the parcel. He requested that the matter be investigated and the responsible
officials punished. He stated that the prison employees often made such
mistakes in respect of prisoners. Lastly, he stated that the incident amounted
to a criminal offence under Article
171 of the Criminal Code, which made it an offence to, inter alia, hide
or destroy a package intended foranother person.
On 8 January 2007 the applicant gave a copy of
his complaint to a prison employee, who transmitted it to the prison director.
Following an internal inquiry, it was established that on 18 December 2006 a
parcel for the applicant had indeed arrived and wassent back to the sender
because the applicant was not entitled to receive parcels while in isolation.
In relation to the above, the director of Belene Prison considered the
applicant’s statements to the public prosecutor defamatory and on 29 January
2007 punished him with fourteen days’ isolation in a disciplinary cell.He also
justified the punishment on grounds of the applicant’s overall conduct,
referring to the punishments imposed on him on 26 and 31October 2006 (see
paragraph 9 above) and the fact that the applicant had frequently sent similar
complaints to various institutions. The applicant appealed.
The District Court held a hearing on 5 February
2007. An employee of the prison submitted that the parcel had been lawfully
returned because prisoners were not allowed to receive parcels while punished
with solitary confinement. The witness further stated that he had suggestedthat
the applicant be punished because the latter had made insulting and defamatory
statements against the prison administration. The witness pointed out that this
was the applicant’s third breach of the disciplinary rules.
The applicant replied that he would not have
complained to the public prosecutor had the prison administration informed him
about the parcel. He stated that he had not received a reply from the public
prosecutor.
In a final decision of the same date the
District Court upheld the order of 29 January 2007. It referred to the
statements of the witness and the information contained in the disciplinary
file and held that the order was reasoned and lawful and that the conduct of
the applicant within the last year had been taken into consideration.
C. The applicant’s complaint to the General
Directorate of Enforcement of Sentences at the Ministry of Justice
On an unspecified date in 2007 the applicant
requested the General Directorate of Enforcement of Sentences at the Ministry
of Justice to transfer him to another prison, stating that the administration
of Belene Prison had subjected him to harassment. In particular, he referred to
the dispute about the parcel and the ensuing punishment (see paragraphs 18-23
above).
On 16 March 2007 the Deputy Minister of Justice
granted the applicant’s request and ordered that he be moved to Pleven Prison.
He noted that the prison authorities had given inaccurate informationto the
applicant about the parcel and that,therefore, the applicant had acted in good
faithin complaining to the public prosecutor. The honesty of his intention was
also evident from the fact that he had providedthe prison administration with a
copy of his complaint. The Deputy Minister further noted that prisoners were
entitled to make applications and complaints to public bodies and stressed that
the disciplinary liability envisaged in the Enforcement of Sentences Act could
not be used to restrict that right. Noting that the punishment of 29 January
2007 had been upheld by the court and had become final, the Deputy Minister
considered that the applicant had understandably lost confidencein the
administration of Belene Prison and that that risked jeopardisinghis reform,
should he remain in that prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Disciplinary punishment of prisoners
Under section 76(k) of the Execution of
Sentences Act (ESA) of 1969, in force at the relevant time, a prisoner who
violated prisonregulations or disciplinary rules or failed to fulfil his duties
could be punished by, inter alia, confinement in an isolation cell for
up to fourteen days. During confinement, prisoners could not use the telephone
or receive any visits or parcels but were still entitled to onehour’s daily
exercise in the open air, separated from the other prisoners (section 76a of
the ESA and section 103 of the ESAImplementing
Regulation of 1969).
Section 46 of the ESA Implementing Regulation of
1969 provided that where a prisoner used defamatory or offensive languagein his
or her submissions or complaints, he or she was liable to disciplinary and
criminal punishment.On 1 June 2009 the ESA of 1969 was superseded by the new
Enforcement of Sentences and Detention Orders Act (the “ESDOA”). Pursuant to section 90 (5) of the ESDOA, prisonersshall not be liable to
disciplinary punishment because of having made a request or lodged a complaint.
In accordance with sections 78 and 78b of the
ESA of 1969,an appeal lay to the General Directorate of Enforcement of
Sentences or the district court against punishment by confinement in an
isolation cell. The former was obliged to examine the case within two months,
and the latter within three days.Execution of the punishment was not suspended
pending the outcome of the appeal, unless the relevant appeal body decided
otherwise.In proceedings before the district court the public was excluded
andthe absence of the prisoner’s lawyer was not an obstacle to the examination
of the case. The court was obliged to examine all circumstances relevant to the
lawfulness of the punishment. Its decision was final.
B. Supervision of the prison administration
Pursuant to the
ESA of 1969 and the relevant ImplementingRegulation,the General Directorate of
Enforcement of Sentences at the Ministry of Justice was responsible for
managing and supervising prisons. Its General Director could annul the decisions
of prison directors.
Under the
Judiciary Act of 2007 and the ESA of 1969, the public prosecutor was competent
to supervise prisons and the enforcement of sentences. His powers included
examining complaints from prisoners, giving mandatory instructions to the
prison administration forcorrecting irregularities,and suspending unlawful
actswhich were amenable to appeal.
Disputes between
prisoners and the prison administration concerning the enjoyment of rights such
as visiting rights or the rights to receive correspondence or parcelswere not
amenable to appeal before the court.
C. The 1988 State and Municipalities Responsibility
for Damage Act
Section 1 of the 1988 State and Municipalities
Responsibility for Damage Act (“the SMRDA”), as amended in July 2006, provides
as follows:
“The State and the municipalities shall be liable for damage
caused to individuals and legal persons by unlawful decisions, actions or
omissions by their organs and officials committed in the course of or in
connection with the performance of administrative action.”
III. RECOMMENDATION REC(2006)2 OF THE COMMITTEE
OF MINISTERS TO MEMBER STATES ON THE EUROPEAN PRISON RULES (ADOPTED ON 11
JANUARY 2006)
The relevant extracts from the Recommendation on
the EuropeanPrisonRules
read as follows:
“70.1 Prisoners, individually or as a group, shall have ample
opportunity to make requests or complaints to the director of the prison or to
any other competent authority.
70.2 If mediation seems appropriate this should be tried first.
70.3 If a request is denied or a complaint is rejected, reasons
shall be provided to the prisoner and the prisoner shall have the right to
appeal to an independent authority.
70.4 Prisoners shall not be punished because of having made a
request or lodged a complaint.
...
70.7 Prisoners are entitled to seek legal advice about
complaints and appeals procedures and to legal assistance when the interests of
justice require.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
The Government urged the Court to declare the
application inadmissible, arguing that the applicant had not suffered any
significant disadvantage. They further submitted that he had not exhausted
domestic remedies because it had been open to him to bring a compensation
action under the SMRDA.
The applicant did not comment.
In so far as the Government can be understood to
raise an objection under Article 35 § 3 (b) of the
Convention, the Court does not accept that the applicant, who servedseveral
periods of solitary confinement as a result of the orders complained of, may be
regarded as not having suffered significant disadvantage within the meaning of
that provision.It therefore rejects the Government’s first objection. As to the
availability of effective domestic remedies, the Court notes that one of the
prerequisites for a successful claim under the SMRDA is the unlawfulness of the
act causing the damage (see paragraph 32 above). However, the domestic court
dismissed the applicant’s appeals against his punishments, finding them lawful
under national law (see paragraphs 13, 17 and 23above). Accordingly, the
Government’s second objection should also be dismissed.
II. ALLEGED VIOLATION OF ARTICLES8 AND 10 OF THE
CONVENTION ON ACCOUNT OF THE APPLICANT’S PUNISHMENT OF 29JANUARY 2007
The applicant complained, without relying on a
particular Convention provision, that the prison administration had punished
him with fourteendays’ confinement in an isolation cell because he had
complained to the public prosecutor about their refusal to give him a parcel
from his family.
Having regard to the nature and the substance of
the applicant’s complaint, the Court considers that it falls to be examined
under Articles8 and 10 of the Convention, which read, in so far as relevant, as
follows:
Article 8
“1. Everyone has the right to respect for his
private ... life...”
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
Article 10
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers...
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the
judiciary.”
A. Admissibility
The Court notes that the above complaints are not
manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the
Convention and are not inadmissible on any other grounds. They must therefore
be declared admissible.
B. Merits
1. Article 10 of the Convention
(a) The parties’ submissions
The applicant submitted that the only purpose of
this and the other sanctions imposed on him had been to discourage him from
corresponding with the competent institutions supervising prisons. He stated
that the administration of Belene Prison had subjected him to constant
harassment and pressure and that the strain he had felt had prompted him to
seek to be transferred to another prison. Lastly, he complained that the prison
authorities had taken only his written statement regarding his complaint to the
public prosecutor and had not heard his explanations in person.
The Government submitted that the applicant’s
disciplinary punishment had been lawful and justified for the prevention of
crime and for the protection of the rights and freedoms of others. They argued
that the applicant had complained to the public prosecutor that the prison
authorities had breached the law by refusing to give him the parcel, which had
not been true. The Government further stressed that, in imposing the sanction,
the authorities had taken into consideration the applicant’s overall conduct,
notably his previous disciplinaryoffences and the fact that he had submitted
other complaints or requests containing denigrating language to various
institutions.
(b) The Court’s assessment
(i) The existence of interference
The Court observes that the applicant was
punished by the prison administration with fourteen days’ confinement in a
disciplinary cell for having made a complaint to the public prosecutor that was
perceived as defamatory (see paragraphs 18-23 above). There was therefore
interference with his right to freedom of expression (see Skałka v.
Poland,no. 43425/98, § 30, 27May 2003,andYankov v. Bulgaria, no.
39084/97, § 126, 11 December 2003). Such interference entails a violation
of Article 10 of the Convention unless it is prescribed by law and is necessary
in a democratic society in pursuance of a legitimate aim.
(ii) Legitimate aim and lawfulness
It appears that the applicant’s punishment had a
legal basis in section 46 of the Implementing Regulation of the Enforcement of
Sentences Act of 1969 (see paragraph 27 above). The Court further accepts that
in principle it pursued a legitimate aim, which was the protection of the
reputation and the rights of others, and specifically the officials of Belene
Prison.
(iii) “Necessary in a democratic society”
The Court reiterates that it is open to the
competent State authorities to adopt measures intended to respond appropriately
and without excess to defamatory accusations devoid of foundation or formulated
in bad faith (see Heinisch v.Germany, no. 28274/08, §67, 21 July 2011, and Castells
v. Spain, no. 11798/85, § 46, 23April 1992).
Public servants, in particular, may need protection from
offensive, abusive and defamatory attacks which are calculated to affect them
in the performance of their duties and to damage public confidence in them and
the office they hold (see Janowski v. Poland
[GC], no. 25716/94, §33, ECHR 1999‑I, Bezymyannyy v. Russia, no.
10941/03, § 38, 8 April 2010,and
Siryk v. Ukraine, no. 6428/07, §
41, 31 March 2011). In the context of prison discipline, however, regard
must be had to the particular vulnerability of persons in custody and therefore
the authorities must provide particularly solid justification when punishing
prisoners for having made allegedly false accusations against the penitentiary
authorities (see Yankov, cited above, §134). In
exercising its supervision, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the principles
embodied in Article 10 and, moreover, that they based themselves on an
acceptable assessment of the relevant facts. In doing so, the Court must assess
the interference in the light of the case as a whole, including the content of
the remarks held against the applicant and the context in which he made them.
It must determine whether the interference in issue was “proportionate to the
legitimate aims pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient” (see, among many other
authorities, Janowski v. Poland
[GC], cited above, § 30, and Raichinov v. Bulgaria,
no. 47579/99, § 47, 20 April 2006).
Applying these principles to the present case,
the Court notes that the applicant’s statements were made in the context of a
dispute between him and the prison administration on the restriction of a
clearly personal right, which is the right to receive a parcel from his family.
They were made in a letter to the public prosecutor, who is competent to supervise
penitentiary institutions and deal with such disputes. The Court notes that the
applicant first tried to obtain information about the parcel from the prison
administration but was told that no such parcel had arrived (see
paragraph 18 above). He then decided to write to the public prosecutor and
ask him to investigate the matter. Thus, it appears that the applicant acted in
the belief that the information disclosed in his letter was true. There is
nothing to suggest that he did not act within the framework established by law
for making such complaints or that he had other intentions than to have the
alleged unlawful conduct of the prison authorities examined. The fact that he
showed his letter to the prison officials also supports the finding that he acted
in good faith (see paragraph 20 above). The Court is therefore not convinced
that the interference at issue corresponded to any “pressing social need” (see Zakharov
v. Russia, no. 14881/03, § 26, 5 October 2006).
The applicant did not resort to abusive, strong
or intemperate language, although his letter did contain some expressions
verging on exaggeration, such as the allegation that the impugned incident
amounted to a criminal offence (see paragraph 19 above). Furthermore, the
letter did not pose a threat to the prison officials’ authority and public
reputation, as its content was not made known to the general public or to other
prisoners.
The Court observes that complaining to the
public prosecutor was, under domestic law, an appropriate manner to challenge
restrictions on prisoners’ personal rights (see paragraphs 30-31 above). In
particular, prisoners could not refer matters such as the one at issue – about
a parcel – to the courts. The Court considers that this fact is of crucial
importance to its assessment of the proportionality of the interference. In his
decision of 16 March 2007 the Deputy Minister of Justice stressed that the
disciplinary liability of prisoners should not be used to restrict their right
to petitions and complaints and considered that, by punishing the applicant,
the authorities of Belene Prison had betrayed his confidence and jeopardised
his correction (see paragraph 25 above). The Court subscribes to this view of
the domestic authorities, which is also in line with the Recommendation of 11 January
2006 (Rec(2006)2) on the European Prison Rules (see paragraph 33 above). It
considers that punishment for non-abusive complaints filed by prisoners could
have a serious chilling effect and discourage them from reporting
irregularities in prison.
As to the proportionality of the sanction, the
Court notes that the applicant was punished by the maximum period of isolation
permissible by law and that that punishment entailed restrictions of his
visiting rights, correspondence and human contact, which adversely affected his
private life. The severity of this punishment is, in the Court’s view,
particularly striking and clearly disproportionate in the light of the facts on
which it was based – the applicant having sent to the relevant authorities a
complaint about a missing parcel and, allegedly, in the past, many other
unidentified complaints.
Regrettably, none of these factors was
adequately addressed by the domestic court which reviewed the applicant’s
punishment. The Court reiterates that in securing the rights protected by the
Convention, the Contracting States, notably their courts, must apply the provisions
of national law in the spirit of those rights (see Storck
v. Germany, no. 61603/00, § 93, 16 June 2005). It finds that in the
present case the domestic court failed to examine the question whether the
punishment had been imposed in view of defamatory or insulting statements and
whether it had been necessary and proportionate to the achievement of the
alleged aimof protecting the prison officials’ reputation. It failed, moreover,
to have regard to the applicant’s right to freedom of expression.
In the circumstances, the Court finds that the
interference with the applicant’sright to freedom of expression was not
necessary in a democratic society.
There has accordingly been a violation of
Article 10 of the Convention.
2. Article 8 of the Convention
The Court has already taken into consideration
the effects of the punishment on the applicant’s private life in the analysis
of proportionality under Article 10 of the Convention. It therefore considers
that there is no need to examine separately the complaint under Article 8 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained, without relying on a
particular Convention provision, that he did not have a fair hearing of his
appeals against the punishments of 26 and 31October 2006 and 29 January 2007.
Having regard to the nature and the substance of
the applicant’s complaint, the Court considers that it should be examined under
Article 6§ 1of the Convention, which reads, in so far as relevant, as
follows:
“In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair ... hearing ...
by an independent and impartial tribunal...”.
A. Admissibility
The Government submitted that the Article 6 was
applicable in its civil limb.
Having regard to its established case-law, the
Court finds that the criminal head of Article 6 is inapplicable in the present
case as the proceedings in issue did not concern the determination of a
criminal charge (seeŠtitić v.Croatia, no. 29660/03, §§ 51-63, 8
November 2007;Gülmez v. Turkey, no. 16330/02, § 26, 20 May 2008;
and Stegarescu and Bahrin v. Portugal, no. 46194/06, §34, 6 April 2010, with further references).
The Court should further examine whether there
was a genuine and serious dispute over a “civil” right which can be said, at
least on arguable grounds, to be recognised under domestic law. In addition,
the outcome of the proceedings must be directly decisive for the right in
question (see Enea v. Italy [GC], no. 74912/01, §99, 17 September
2009, and Boulois v. Luxembourg[GC], no. 37575/04, § 90, 3 April 2012).
The Court observes that the national law
envisaged judicial review of the applicant’s punishment by solitary
confinement. That punishment entailed restrictions of a set of prisoners’
rights explicitly recognised by the domestic law, such as visiting rights and
correspondence, and his contacts with other inmates (see Stegarescu and
Bahrin, §§ 37-39, and Gülmez,
§ 30, both cited above). Those
rights fell within the sphere of personal rights and were therefore civil in
nature (see Enea, cited above, §103).The
outcome of the proceedings concerning the applicant’s solitary confinement was
decisive for those rights (see Gülmez, cited above, § 29).
It follows that Article 6 of the Convention is
applicable in its civil limb.
The Court further considers that the 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.
B. Merits
1. The proceedings concerning the punishments of 26
and 31 October 2006
The applicant argued that his appeals against
his disciplinary punishments of 26 and 31 October 2006 proved useless because
the domestic court had taken the side of the prison administration and had
refused his requests to be assigned a court-appointed lawyer and to call
witnesses.
The Government stated that the domestic court
had taken into account all relevant circumstances and delivered well-reasoned
judgments based on the national law.
In connection with the applicant’s complaint
that his request to call witnesses was refused, the Court reiterates that while
Article 6 § 1 of the Convention guarantees the right to a
fair hearing, it does not lay down any rules on the admissibility of evidence or
the way it should be assessed, which are therefore primarily matters for
regulation by national law and the national courts (see García Ruiz v. Spain
[GC], no. 30544/96, § 28, 21 January 1999). It considers that the domestic
court was entitled to rely on the assessment made by the director of the
prison, which it found to have been reasoned, based on all relevant evidence
and corroborated by the written statements of witnesses available in the file.
It further notes that the applicant was heard by the domestic court and was
able to submit, and indeed submitted, the arguments he considered relevant to
the case (compare and contrast, Gülmez, cited above, § 37).In the
circumstances, the Court finds that the domestic court’s failure to adjourn the
hearing in order to obtain the testimony of Mr S. and to summon Mr K. did not
affect the fairness of the trial. In particular, the applicant did not object
to the continuation of the hearing without the testimony of Mr S. and did not
substantiate the points on which he wished to have MrK. heard.
As to the applicant’s complaint that he was not
provided with legal assistance,the Court notes that the applicant did not claim
that he had been prevented from securing legal representation of his own
choosing. It does not consider that the case was sufficiently complex to
require the applicant to have free legal assistance under Article 6 § 1. The
outcome of the two sets of disciplinary proceedings turned on the simple
question whether the applicant was responsible for two violent conflicts with
his fellow inmate. The cases did not therefore present special features calling
for the provision of legal assistance (see, mutatis mutandis, McVicar
v. the United Kingdom, no. 46311/99, § 55, 7 May 2002, and,
conversely, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32).
Lastly, the Court notes that the applicant’s
complaint that the domestic court was not impartialis not supported by any
facts or arguments. It is therefore unsubstantiated.
It follows that there has been no violation of
Article 6 § 1 of the Convention.
2. The proceedings concerning the punishment of 29 January
2007
The applicant stated that the domestic court had
not been impartial and objective and had taken only the arguments of the prison
administration into account.
The Government stated that the domestic court
had delivered a well‑reasoned judgment based on the national law.
Having regard to its findings under Article 10
of the Convention(see paragraphs 44-51), the Court does not consider it
necessary to examine whether there has been a violation of Article 6 as well
(seeKasabova v. Bulgaria, no. 22385/03, § 80,
19 April 2011,with further references).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained, without relying
on a particular Convention provision, that the administration of Belene Prison
had harassed him by imposing frequent and unjustified disciplinary sanctions, that
the living conditions in which he had been held in Belene Prison from an
unspecified date in August 2002 to 29March 2007 had been poor, and that some of
the letters he had sent to the public prosecutor or to other institutions, in
which he had complained about the conditions of his detention, had been
withheld by the administration of Belene Prison and had never reached their
addressees.
The Court has examined the remainder of the
applicant’s complaints as submitted by him. However, in the light of all the
material in its possession, and in so far as the matters complained of are
within its competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application
must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 20,000 euros (EUR), in
respect of non‑pecuniary damage generally, for violations of the
Convention in his case.
The Government argued that the claim was
excessive.
The Court considers that the applicant must have
sustained non‑pecuniary damage as a result of the breaches of his rights
in the present case. Taking into account all the circumstances of the case, and
deciding on an equitable basis, the Court awards him EUR 4,500 under this head.
B. Costs and expenses
The applicant made no claim for costs and
expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Articles 6,
8 and 10 of the Convention admissible and the remainder of the
applicationinadmissible;
2. Holds that there has been a violation of
Article 10 of the Convention;
3. Holdsthat there is no need to examine
separately the complaint under Article 8 of the Convention;
4. Holds that there has been no violation of
Article 6 of the Convention in respect of the judicial review proceedings
concerning the punishments of 26 and 31 October 2006;
5. Holds
that there is no need to examine separately the complaint under Article 6 of
the Convention in respect of the judicial review proceedings concerning the
punishment of 29 January 2007;
6. 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,EUR 4,500 (four
thousand and five hundred euros), plus any tax that may be chargeable, in
respect of non- pecuniary damage, to be converted into Bulgarian levs at the
rate applicable at the date of settlement;
(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;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
