FOURTH SECTION
CASE OF SABEV v.
BULGARIA
(Application no.
27887/06)
JUDGMENT
STRASBOURG
28 May 2013
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 Sabev v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele,
President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Françoise Elens-Passos, Section
Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 27887/06)
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 Miroslav Sabev Sabev (“the
applicant”), on 6 July 2006.
The applicant was represented by Mr M. Ekimdzhiev
and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian
Government (“the Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
The applicant alleged, in particular, that
the conditions of his detention in Lovech Prison had been inhuman and degrading,
that he had not had effective remedies for his complaints regarding those
conditions and that the court fees in the actions for damages that he had
brought against the authorities in relation to the conditions of his detention had
been excessive.
On 21 September 2009 the President of the Fifth
Section decided to give the Government notice of the application. Following the
re-composition of the Court’s sections on 1 February 2011, the case was transferred
to the Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1966. He is serving a life
sentence without commutation in Lovech Prison.
A. Background
On 4 October 1993 the
applicant was placed in pre-trial detention in Burgas Prison.
On 25 July 1995
the Burgas Regional Court found the applicant guilty of murder and robbery and
sentenced him to death. On 30 May 1997 a three-member panel of the Supreme
Court of Cassation upheld his conviction and sentence. On 22 July 1998 a five-member
panel of the Supreme Court of Cassation rejected the applicant’s petition for
review. Throughout that time the applicant remained in Burgas Prison.
Following
the abolition of the death penalty in December 1998, on 25 January 1999 the
Vice-President of the Republic commuted the applicant’s sentence to one
of life imprisonment without commutation. On 8 July 1999 the Burgas
Regional Court ordered that the applicant’s sentence was to be served under the
so-called “special regime” (see paragraph 41 below).
B. The conditions of the applicant’s detention in
Lovech Prison
On 15 July 1999,
when the Burgas Regional Court’s order of 8 July 1999 became final, the
applicant was transferred to Lovech Prison, where he remains. Since that date
he has been placed in different cells for different periods of time, each time with
two or three other inmates.
The applicant alleged that because of his detention regime he had been
subjected to isolation. He also alleged that his cell, which he shared with
three other inmates, measured ten square metres. The inmates were allowed to go
to the toilet and wash three times a day, for ten to fifteen minutes each time.
During the rest of the time they had to relieve themselves in a plastic bucket
as the cell was not equipped with toilet facilities or a sink.
The applicant
also alleged that the food served in the prison was of poor quality and that he
had found insects and other objects in it.
The witnesses
heard in various proceedings for damages brought by the applicant, including inmates
detained in the same prison (see paragraphs 20, 26 and 35 below) and kitchen staff, stated that during certain unidentified periods the applicant had had
no access to newspapers or books, and had not been allowed to visit the prison
chapel, go to concerts or attend rehabilitative courses. He had had no access
to the prison canteen and his food had been served in his cell. One inmate stated
that during a period of time there had been no fresh air or natural light in
the applicant’s cell. The witnesses also corroborated the applicant’s
allegations that he only had access to toilets and running water three times a
day and had to use a plastic bucket the rest of the time. The kitchen staff
stated that the food served in Lovech Prison met the applicable quality
standards.
On 21
April 2004 the applicant complained to the prison governor about the conditions
of his detention. The governor replied that in view of the applicant’s regime
of detention, constant access to the toilet facilities could not be provided but
inmates were allowed access to the communal toilets several times a day. As for
the dimensions of the cells and their being overcrowded, the governor admitted
that this was a problem in all Bulgarian prisons and stated that the
administration of Lovech Prison was trying to provide the recommended minimum
living space to every detainee. He disputed the allegation that prison food was
of poor quality.
According to a report drawn up by the prison governor on 15 November 2009, the
applicant was detained under the so-called “special regime” (see
paragraph 41 below). During most of the time that he had spent in Lovech Prison
the applicant had been held in cell no. 18, which measured 4 by 3.15 metres and
had two windows. At first inmates had had access to toilets and running water
three and, after October 2005, four times a day, in accordance with a schedule drawn
up by the governor. In the autumn of 2008 toilet facilities had been installed in
all life prisoners’ cells and all window frames had been changed.
The
governor further stated, without specifying time periods, that the applicant had
been entitled to go into the open air once a day, for one hour, and to visit
the library and take part in literary and board-game (chess and draughts)
competitions. He had received an award in one such competition. According to
the governor, the applicant had regular access to newspapers and magazines. He received
food prepared in accordance with the applicable regulations and standards, as did
all other prisoners. He had access to medical assistance, which he could
receive in his cell or in the prison’s medical wing.
The
governor also stated that the applicant’s “special regime” had not yet been
changed to a lighter one because of numerous breaches of prison discipline on
his part.
The applicant did not dispute those statements.
The
Court has not been provided with information as to the conditions of the applicant’s
detention after the refurbishment of Lovech Prison in the autumn of 2008. Nor
has the applicant provided information about the regime under which he was
placed after November 2009.
C. Claims for damages brought by the applicant
1. The claim for damages in relation to the period between
August 1999 and October 2004
On 27 October 2004 the
applicant brought a claim against the Ministry of Justice under section 1(1) of
the State Liability for Damage Act 1988 (“the 1988 Act” - see paragraph 61 below). He sought 4,000 Bulgarian levs (BGN) (2,045.17 euros (EUR)) in damages in
respect of the distress and humiliation resulting from the poor conditions of his
detention in Lovech Prison between August 1999 and October 2004.
The judges who dealt
with the case visited the prison and inspected the cells in which the applicant
had been held. They also heard witnesses, ordered expert reports and gathered
other evidence.
On 8 July 2005
the Lovech District Court partly allowed the claim. It found, by reference to
this Court’s case-law, that the failure to ensure that inmates had access
to toilet facilities and running water amounted to inhuman treatment and was
incompatible with Article 3 of the Convention and domestic law. It held that
having to use a bucket for toilet needs, in a cell measuring about ten square
metres, without sufficient ventilation and in the presence of others, diminished
human dignity and posed a serious risk to health. The court went on to say that
the applicant’s allegations that the food was of poor quality and did not meet
the minimum standards were unsubstantiated as the food served in prison was
prepared in compliance with the Ministry of Health requirements and portions
were of the recommended size.
In assessing
the quantum of damages, the court noted that the applicant had failed to
establish the extent to which he had been affected psychologically and the degree
to which he had suffered morally as a result of the conditions of his detention.
Ruling in equity, the court awarded the applicant BGN 280 (EUR 143.16) in
respect of non-pecuniary damage for the period between August 1999 and
October 2004, finding that the claim in relation to the period before August
1999 had become time-barred. It applied section 10(2) of the 1988 Act (see
paragraph 65 below) and ordered the applicant to pay BGN 158.80 (EUR 81.19) in
court fees in respect of the part of his claim which it had dismissed.
In a final
judgment of 6 January 2006 the Lovech Regional Court upheld the lower court’s judgment.
In above-mentioned
proceedings, the applicant acted together with a co-claimant, Mr Plamen
Radkov, who was detained in the same prison and for whom the outcome of the
proceedings was similar. The courts examined the applicant’s and Mr Radkov’s
claims jointly and the judgments rendered were in respect of both of them. In a
judgment of 10 February 2011 this Court found breaches of Articles 3 and 13 of
the Convention on account of the conditions of Mr Radkov’s detention in Lovech
Prison between March 2000 and October 2004 and the lack of effective remedies
in that respect (see Radkov v. Bulgaria (no. 2), no. 18382/05, §§ 45-56, 10 February 2011).
2. The claim for damages in relation to the period between
October 1993 and September 2004
On 20 September 2004 the
applicant brought another claim against the Ministry of Justice under section
1(1) of the 1988 Act (see paragraph 61 below). He sought BGN 20,000 (EUR 10,225.84)
in damages in respect of the anguish suffered as a result of his isolation between
October 1993 and September 2004, initially as a prisoner on death row and then
as a life prisoner under the “special regime”.
The courts heard
witnesses, one of whom had been detained in Burgas Prison and the others in
Lovech Prison, and gathered other evidence.
On 14 April 2005
the Lovech Regional Court dismissed the claim, finding, inter alia, that
the “special regime” applied to the applicant had been prescribed by law and
that the conditions of his detention did not amount to inhuman and degrading treatment.
On an appeal by
the applicant, on 14 November 2005 the Veliko Tarnovo Court of Appeal quashed
the lower court’s judgment. It found that the applicant had been kept in very
strict isolation from October 1993 until September 2004, initially as a
prisoner on death row and then under the “special regime” applicable to life
prisoners. It also found that, during the applicant’s pre-trial detention
in Burgas Prison, his cell had had no toilet facilities but he had had free access
to toilets outside the cell. Since 1999, when the applicant had been
transferred to Lovech Prison, he had shared a cell with one or two inmates and had
been allowed to use the toilet facilities three times a day; the rest of the
time he had had to relieve himself in a bucket in the cell. The cell had had
only one window, which had constantly remained closed, preventing the flow of
fresh air. Furthermore, until 2001 the window had been covered with tin blinds,
which had not allowed natural light into the cell. The applicant had not been given
any newspapers. The court found that none of the above measures had been
required under the legislation or regulations governing the execution of
sentences; in particular, the requirement that life prisoners be kept under
heightened supervision (see paragraph 41 below). Those conditions had been attributable
to unlawful omissions of the prison administration, had amounted to ill-treatment,
and had caused the applicant harm.
The court ordered
the Ministry of Justice to pay the applicant BGN 2,000 (EUR 1,022.58) in
damages. In assessing the quantum of damages, the court noted that as a result
of the poor conditions of his detention the applicant had endured, in
particular, “negative feelings caused by the humiliation and debasement”. He had
however failed to prove that those conditions had adversely affected his
health.
On appeal, in a
final judgment of 7 August 2007 (реш. №
330 от 7 август 2007
г. по гр. д. № 92/2006 г.,
ВКС) the Supreme Court of Cassation upheld the lower court’s
judgment.
The courts ordered the applicant
to pay a court fee of BGN 1,080 (EUR 552.20) in respect of the part of his
claim which they had dismissed, in accordance with section 10(2) of the 1988
Act (see paragraph 65 below).
On 15 October
2007 the applicant obtained a writ of execution and on 26 November 2007 requested
payment.
As he did not receive payment, on 9 April 2009 the applicant brought proceedings
before the Sofia City Administrative Court, requesting the court to order the
Ministry of Justice to pay the sums due under the writ of execution. At the
time when the applicant filed his observations in the present case (25 March
2010) the proceedings were, following a dispute between various courts as to
which was competent to deal with the case, still pending at first instance
before the Sofia City Administrative Court.
3. The claim for damages in relation to the period between
October 2004 and April 2006
On 12 April 2006 the
applicant brought a third claim under section 1(1) of the 1988 Act (see
paragraph 61 below). He sought BGN 10,500 (EUR 5,368.56) in damages in
respect of the distress and humiliation resulting from the poor conditions of his
detention in Lovech Prison between October 2004 and April 2006.
The Sofia City Court
heard witnesses and gathered other evidence.
On 28 December
2007 the Sofia City Court found that during the period in question the
applicant’s cells had not had toilet facilities or access to running water. The
applicant had been allowed to go out of his cell and use such facilities three
or four times a day, and had been required to use a bucket the rest of the time.
The court found that that practice was in breach of domestic law and Article 3
of the Convention. It partly allowed the applicant’s claim, ordering the
Ministry of Justice to pay him BGN 750 (EUR 383.47) in damages. It noted that
applicant had been awarded damages in the two previous sets of proceedings in
respect of the period preceding October 2004. In assessing the quantum of damages,
the court took into account the duration of the period during which the
applicant had lived in the conditions described above (one year and five
months), the severity of the damage sustained, the applicant’s age and the lack
of permanent or temporary damage to his health as a result of those conditions.
Applying section 10(2) of the 1988 Act (see paragraph 65 below), the court ordered the applicant to pay BGN 390 (EUR 199.40) in court fees
in respect of the part of his claim which had been dismissed.
The applicant appealed.
It appears that, on
9 April 2009, the Sofia Court of Appeal upheld the lower court’s judgment in so
far as the award of damages was concerned. As the applicant has not submitted a
copy of that judgment, it is not clear whether the court quashed the part of the
judgment which concerned the court fees (see paragraphs 67-69 below).
In a decision
of 6 December 2010 (опр. № 1189
от 6 декември 2010
г. по гр. д. № 905/2010 г.,
ВКС, III г. о.) the Supreme Court of
Cassation refused leave to appeal on points of law and the Sofia Court of
Appeal’s judgment of 9 April 2009 became final.
II. RELEVANT DOMESTIC LAW
A. The regime of life prisoners
1. Under the Execution of Punishments Act 1969
Until June 2009
the regime of life prisoners was governed by sections 127a-127e of the
Execution of Punishments Act 1969 (“the 1969 Act”), added in 1995, when life
imprisonment was introduced as a form of punishment, as well as by the Act’s
implementing regulations. Following its amendment in June 2002, the Act expressly
provided for prisoners sentenced to life imprisonment without commutation to be
placed under the same regime as those serving a life sentence with commutation (new
section 127d). The implementing regulations had been amended to the same
effect a year earlier, in June 2001 (new regulation 167c).
Section
127b(1) provided that, when imposing a life sentence, the court had to order
the prisoner’s placement under the strictest regime, the so-called
“special regime”. Prisoners placed under that regime were to be kept in locked
single cells and subjected to heightened security and supervision (regulations
56(1) and 167d(1)).
Section 127b(2) provided that, if they were of good conduct, after
five years life prisoners could be placed under a more lenient regime. The time
spent in pre-trial detention did not form part of that five-year period
(regulation 167d(2)). The decision to place a life prisoner under a more
lenient regime was, following the amendments outlined above, taken by a
commission composed of prison staff and various other officials (section 17).
Under section 58, the commission’s decisions could be challenged by the
Minister of Justice, acting of his or her own motion or on the application of a
prisoner, filed through the prison governor (regulation 65). Once under a
lighter regime, life prisoners could, under certain conditions, be placed with
the general prison population (section 127b(4)).
2. Under the Execution of Punishments and Pre-Trial
Detention Act 2009
In June 2009 and February 2010 the 1969 Act and the regulations for its
implementation were superseded by, respectively, the Execution of Punishments
and Pre-Trial Detention Act 2009 (“the 2009 Act”) and its implementing regulations,
issued on 2 February 2010.
Section 61(1) of the 2009 Act provides that, when sentencing a convict to
life imprisonment with or without commutation, the court must order that he or
she be placed under the “special regime” (the three regimes applicable in
prisons are the “special regime”, the “severe regime” and the “general regime”
- section 65(2)). By section 71(2), persons placed under the “special regime”
must be kept in constantly locked cells and be under heightened supervision.
Section 71(3), which was inserted in December 2012 and came into effect on 1
January 2013, provides that persons sentenced to life imprisonment with or
without commutation and placed under the “severe regime” are similarly to be
kept in constantly locked cells and be placed under heightened supervision
unless it is possible, having regard to the requirements of section 198(2), to
place them with the general prison population. According to the explanatory
note to the draft bill laid before Parliament, this new provision was necessary
to prevent legal challenges brought by lifers to their being kept constantly under
lock and key even though their regime had been changed from “special” to
“severe” (see paragraphs 56-60 below).
Sections 197-199 specifically deal with the regime of life prisoners
with or without commutation.
Section 197(1)
provides that life sentences are to be served in purpose-built prisons
or, failing such prisons, in separate units of other prisons. Section 197(2)
provides that, in the absence of special provisions applicable to the regime of
life prisoners, the provisions governing other forms of imprisonment apply to
them as well.
Section 198(1)
provides that a life prisoner may be placed under a more lenient regime if he
or she has shown good behaviour and has served not less than five years of his
or her sentence. Section 198(2) provides that life prisoners may be placed with
the general prison population and take part in common work, training,
educational activities, sport, or other activities by decision of the Execution
of Sentences Commission on the basis of a personality assessment, provided that
they were already in the “severe regime”. That commission comprises the prison governor,
a member of a supervisory board, the prison deputy governor in charge of
security, the head of the prison’s social and educational department, and the
prison psychologist (section 73(1)). It deliberates at least twice a month
(regulation 55(1)).
Section 199(1)
provides that life prisoners cannot be placed in the “general regime” and
cannot be given awards that cannot be used inside the prison. Section 199(2)
provides that persons sentenced to life imprisonment with commutation whose
sentence has been commuted by a court to a fixed term of imprisonment, may be
transferred from prison to an open penitentiary facility, where they may be
placed under the “general regime” or the “light regime” (which is available
only in open penitentiary facilities - section 65(3)).
The
regime applicable to life prisoners is, in addition, governed by
regulations 213-220 of the 2009 Act’s implementing regulations. The
regulations in respect of prisoners serving a sentence of life imprisonment
without commutation are the same as for those serving a sentence of life
imprisonment with commutation (regulation 220).
Regulation 213 provides that life prisoners are to be kept in purpose-built
prisons or separate high-security units in other prisons. It also provides
that life prisoners are to be kept in constantly locked cells under heightened
supervision, and can take part in communal activities only with other prisoners
of the same category.
Regulation 214 provides that life prisoners have to be kept isolated from other
prisoners also during transfers, medical treatment, visits, open air activities
or other occasions when they leave their cells.
Regulation 216(1) provides that life prisoners may work in their cells or in purpose-built
workstations, if available. Records have to be kept of their work days
(regulation 216(2)).
Regulation 217, which reproduces section 198(2) of the Act (see paragraph 47 above), provides that life prisoners may be placed with the general prison
population and take part in common work, training, educational activities,
sport, or other activities by decision of the Execution of Sentences Commission
on the basis of a personality assessment, provided that they have already been
placed under the “severe regime”.
Regulation 218, which reproduces section 198(1) of the Act (see paragraph 47 above), provides that a life prisoner may be placed under a more lenient regime if
he or she has shown good behaviour and has served not less than five years of
his or her sentence (periods of pre-trial detention do not count).
Regulation 219(1), which reproduces section 197(1) of the Act (see paragraph 46 above), provides that, for a period of five years after their sentence has become
final, life prisoners may be placed in special units of existing prisons or in
a purpose-built prison, designated by the Minister of Justice. During
that period, a special team is in charge of the prisoner
(regulation 219(2)). After the expiry of the period, and following an
overall assessment of the prisoner, he or she may be placed in another prison
and under different conditions (regulation 219(3)).
3. The legal challenge to the 2009 Act’s implementing
regulations
In 2010
two life prisoners detained in Sofia Prison brought a legal challenge to
regulations 213, 214 and 219 of the 2009 Act’s implementing regulations. They
argued that they ran counter to the provisions of the Act.
In a judgment of 28 March 2011 (see реш.
№ 4373 от 28 март 2011 г. по адм. д. №
10758/2010 г., ВАС, І о.) a three-member
panel of the Supreme Administrative Court upheld the challenge. It found that
the Minister of Justice had failed to follow the proper procedure for issuing
the regulations. In particular, he had not published the draft regulations on
the Ministry’s website with a view to making them available to the public and
obtaining comments, as required under section 26(2) of the Normative Acts Act
1973. This had been a serious omission. The panel went on to find that
regulation 213, in as much as it required that life prisoners be kept
constantly under lock and key, ran counter to section 197(1) of the 2009 Act
(see paragraphs 46 and 50 above). It laid down a requirement that did not flow
from the text of the statute, which was impermissible for an implementing
regulation; such a regulation could only particularise the manner in which the
statute was to be applied. Regulation 213 could not be regarded as based on any
other section of the 2009 Act either. The remaining part of regulation 213, as
well as regulations 214 and 219 (see paragraphs 50, 51 and 55 above), were not contrary to the provisions of the 2009 Act.
On an appeal by the Minister, in a final judgment of 14 September 2011 (see реш. № 11411 от 14
септември 2011 г.
по адм. д. № 6341/2011 г., ВАС,
петчл. с-в) a five-member
panel of the Supreme Administrative Court overturned the three-member
panel’s findings. It held that the failure to publish the draft regulations on
the Ministry’s website had not amounted to a material breach of the rules of
procedure. It went on to state that regulation 213 did not run counter to the
provisions of the 2009 Act. It could be regarded as based on section 197(1)
read in conjunction with section 71(1) of the Act (see paragraph 44 above). The latter section applied to all prisoners placed under the “special
regime” and required that they be kept in separate and constantly locked cells.
Two judges dissented from the five-member panel’s conclusions,
saying that the failure of the Ministry to publish the draft regulations on its
website had indeed been a serious omission and had vitiated the procedure for the
adoption of the regulations.
As a result of the dismissal of that legal challenge, two claims for
damages brought by the same life prisoners under section 1(1) of the 1988 Act
(see paragraph 61 below) and based on the suffering allegedly endured as a
result of their impoverished regime were rejected by the Supreme Administrative
Court as inadmissible (see опр. № 3355
от 7 март 2012 г. по
адм. д. № 3154/2012 г.,
ВАС, петчл. с-в,
and опр. № 5065 от 6
април 2012 г. по
адм. д. № 14339/ 2011 г.,
ВАС, петчл. с-в).
The court held that those claims could only be pursued if the statutory
instrument against which they were directed had been set aside in prior
proceedings, which was not the case.
B. Prisoners’ claims for damages under section 1(1) of
the 1988 Act
Section 1(1) of the
1988 Act provides that the State is liable for damage suffered by individuals or
legal persons as a result of unlawful decisions, actions or omissions by civil
servants, committed in the course of or in connection with administrative
action. If a claim relates to an administrative decision (or statutory
instrument, as the case may be), it can be brought only if the decision has
been duly set aside; if the claim relates to an unlawful action or omission, or
to a decision which is null and void, the unlawfulness may be established by
the court hearing the claim (section 1(2) of the 1988 Act, superseded in
July 2006 by Article 204 §§ 1, 3 and 4 of the Code of Administrative
Procedure 2005).
Since
2003 the Bulgarian courts have began awarding compensation under section 1(1)
of the 1988 Act to persons claiming to have suffered non-pecuniary damage
as a result of poor material conditions of detention (see the domestic cases
cited in Hristov v. Bulgaria (dec.), no. 36794/03, 18 March 2008; Kirilov
v. Bulgaria, no. 15158/02, §§ 43-48, 22 May 2008; Shishmanov v.
Bulgaria, no 37449/02, §§ 58-62, 8 January 2009; Titovi v. Bulgaria,
no. 3475/03, § 34, 25 June 2009; Simeonov v. Bulgaria,
no. 30122/03, §§ 43-47, 28 January 2010; Georgiev v. Bulgaria
(dec.), no. 27241/02, 18 May 2010; Iliev and Others v. Bulgaria, nos. 4473/02
and 34138/04, §§ 11 and 15, 10 February 2011; and Radkov
(no. 2), cited above, § 14).
However, in a final judgment of 23
February 2009 (see реш.
№ 82 от 23
февруари
2009 г. по гр. д. № 6452/2007
г., ВКС, III г. о.) the Supreme Court of Cassation dismissed a
claim for damages brought by a life prisoner in relation to the failure of the
prison administration to allow him to engage in work, educational and cultural
activities and sport together with other inmates. The court held that the
“special regime” applicable to life prisoners and the requirement of that
regime that they be isolated from the general prison population made such
activities impossible. It went on to say that the claimant had been able to
engage in individual educational activities.
C. Court fees in proceedings under the 1988 Act
The general rule in civil proceedings in Bulgaria is that the court fee is payable
by the claimant upon submission of the claim (Article 55 of the Code of Civil
Procedure 1952, superseded on 1 March 2008 by Article 73 § 3 of the Code
of Civil Procedure 2007, and sections 1-4 of the State Fees Act 1951). The
fee in respect of money claims is four per cent of the amount claimed (point 1
of Tariff No. 1 to the State Fees Act, superseded on 1 March 2008 by
section 1 of the Tariff of fees collected by the courts under the Code of Civil
Procedure). If the claim succeeds in full or in part, the defendant is ordered
to reimburse the claimant’s costs, including court fees, in direct proportion
to the success of the claim.
Under section 10(2) of the 1988 Act, as originally enacted, in proceedings
under the Act, no court fees or costs were payable by the claimant upon
submission of the claim. However, if the claim was eventually wholly or partly
dismissed, the court was to order the claimant to pay “the court fees and costs
due”. The courts construed that provision as meaning that the claimant should
pay fees calculated pro rata the part of the claim which had been dismissed. As
a result, where a court held that a claim for damages under the Act was well-founded
but excessive as to quantum, it ordered the defendant State authority to pay
damages to the claimant and at the same time ordered the claimant to pay court
fees to the State budget. Where the claimant indicated too high an amount in
the statement of claim, the fee could exceed the sum awarded in damages. As a
result, the overall financial award could be in favour of the State despite the
finding that the claimant had suffered damage that called for compensation
under the Act (see реш. № 1095
от 25 юли 2000 г. по
гр. д. № 139/2000 г., ВКС, and
реш. № 805 от 1 август 2005 г.
по гр. д. № 56/2004 г.,
ВКС). There was no provision for judicial discretion
and considerations of equity played no role in fixing the fees’ amount; those fees
were fixed by reference to the sums indicated in the statement of claim, even
if in the course of the proceedings the claimant withdrew part of the claim (see
тълк. реш. № 3
от 22 април
2004 г. по тълк. гр.
д. № 3/2004 г., ВКС, ОСГК,
т. 12).
Following
this Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01,
12 July 2007), which found that the statutory scheme outlined above had, on the
facts of the case, resulted in a breach of Article 6 § 1 of the Convention, the
Bulgarian Government laid before Parliament a bill for the amendment of the
1988 Act. Parliament enacted the bill on 17 April 2008 and the
amending Act came into force on 30 May 2008. Section 10(2) was changed and now
deals solely with costs. Court fees are presently governed by a newly added
section 9a(1), which provides for a fixed fee, at a level to be set by the
Government. Under the tariff of fees collected by the courts under the Code of
Civil Procedure, as currently in force, the fee is BGN 10 (EUR 5.11) in respect
of first-instance proceedings, BGN 5 (EUR 2.56) in respect of appellate
proceedings, and BGN 5 (EUR 2.56) in respect of cassation proceedings. Unlike
the previous scheme, the fee is payable upon submission of the claim (see опр. № 12420 от 4 октомври
2011 г. по адм. д. № 12302/2011
г., ВАС, III о.).
Paragraph
9 of the transitional and concluding provisions of the amending Act provided
that the new rule on court fees applied to proceedings which had not been
concluded at the time when the new section 9a(1) came into force, and that
the fee was to be charged at the close of the proceedings in each instance.
In its case-law under paragraph 9, the Supreme Court of
Cassation in some cases held that the new rule on court fees applied not only
in respect of fees charged by the cassation court after the rule had come into
effect, but also in respect of fees charged by the lower courts before that, as
long as the proceedings as a whole were pending at the time when the rule had
come into effect (see реш. № 974
от 7 ноември 2008
г. по гр. д. № 2980/2007 г., ВКС, I
г. о.; опр. № 201 от 28
декември 2009 г.
по гр. д. № 3270/2008
г., ВКС, I г. о.; and реш.
№ 54 от 22
февруари 2010 г.
по гр. д. № 5217/2007 г.,
ВКС, I г. о.). In one case the court went
as far as to set aside a writ of execution issued in respect of a court fee
charged before the new rule had come into force (see опр.
№ 28 от 10 януари 2012
г. по ч. гр. д. № 700/2011 г., ВКС, IV г.
о.).
. However, in other cases the
Supreme Court of Cassation held that, since it referred to the close of the
proceedings “in each instance”, the new rule could not serve as a basis for
reducing fees charged by the lower courts before it had come into effect (see реш. № 158 от 15
април 2009 г. по
гр. д. № 6217/2007 г.,
ВКС, I г. о., and реш. № 1410 от 24
април 2009 г. по
гр. д. № 4946/2007 г., ВКС, I
г. о.). In some cases the court held that the rule did not
apply to fees charged by the lower courts before it had come into effect because
it did not have retrospective effect (see опр.
№ 34 от 6 март 2009 г. по
гр. д. № 4149/2007 г., ВКС,
ІІІ г. о., and опр.
№ 92 от 26 ноември
2008 г. по гр. д. № 4603/2008
г., ВКС, IV г. о.).
III. REPORTS OF THE EUROPEAN
COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT (“the CPT”)
The CPT has visited only
Lovech Prison Hospital (in 1995, 1999 and 2010) but not the premises
of the prison itself (see CPT/Inf (97) 1, CPT/Inf (2002) 1 and CPT/Inf (2012) 9).
During its visits to other prisons in Bulgaria, the CPT noted the use of
buckets for sanitary needs by prisoners. Characterising that practice as
“unacceptable”, it recommended its discontinuation (see CPT/Inf (97) 1, §§ 122
and 125, in relation to Stara Zagora Prison; CPT/Inf (2002) 1, § 103, again in
relation to Stara Zagora Prison; CPT/Inf (2004) 21, §§ 79, 82, 84, 87 and 95,
in relation to Burgas and Pleven prisons; CPT/Inf (2008) 11, §§ 73, 75, 85 and
90, in relation to Sofia and Sliven prisons; and CPT/Inf (2012) 9, §§ 97, 101,
108, 110, 117 and 120, in relation to Plovdiv and Varna prisons).
In its reports on
its 2006, 2008 and 2010 visits to Bulgaria (CPT/Inf (2008) 11, § 102; CPT/Inf (2010)
29, § 78; and CPT/Inf (2012) 9, § 119) the CPT examined the situation of life prisoners
in Sofia, Plovdiv, Pleven and Varna prisons, and expressed concern about the statutory
and regulatory provisions requiring those prisoners to be systematically
segregated from the general prison population for an initial period of five
years (see paragraph 41 above). It recommended a review of those provisions to ensure
that the segregation of life prisoners was based on an individual risk
assessment and was not applied for longer than was strictly necessary. In
relation to Pleven Prison, the CPT noted the following, in CPT/Inf (2008) 11,
§ 99:
“Since 2004, Pleven Prison had embarked on an ‘experiment’ of
integrating certain life-sentenced prisoners into the general prison
population. At the time of the 2006 visit, three such prisoners were being
accommodated in a unit for prisoners serving sentences under strict regime (and
one more was expected to be moved there soon). They were held in a cell
measuring some 22 [square metres] with three other prisoners. Conditions in the
cell were generally adequate (large windows, various items of furniture, elements
of personalisation). One of the prisoners had a job as a cleaner and the other
two occasionally made gift bags in the cell. The cell doors were open
throughout the day and life-sentenced prisoners enjoyed the same rights
as the remainder of prisoners under strict regime. It appeared from
conversations with other prisoners and staff that the arrival of the life-sentenced
prisoners in the unit had not caused any particular dissatisfaction or
problems.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant alleged that the conditions of his
detention in Lovech Prison and the regime under which he had been placed there had
been inhuman and degrading, that he had received insufficient compensation in respect
of that, and that he had not had an effective remedy in respect of those
complaints. He relied on Articles 3, 6 § 1 and 13 of the Convention and on
Article 1 of Protocol No. 1.
The Court considers that these complaints fall
to be examined solely under Articles 3 and 13 of the Convention.
Article 3 provides:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. The
parties’ submissions
1. The Government
The Government submitted, by way of preliminary
objection, that a claim under section 1(1) of the 1988 Act was an effective
remedy at the applicant’s disposal. In any event, the applicant’s suffering had
not reached the minimum level of severity triggering the application of Article
3 of the Convention as it had not gone beyond the inevitable element of
suffering resulting from his sentence. Furthermore, following the refurbishment
of Lovech Prison in the autumn of 2008, the cells of all life prisoners,
including that of the applicant, had been equipped with sanitary facilities and
all window frames had been changed.
The food that the applicant received was of good
quality and was prepared in accordance with the applicable regulations. He received
the requisite medical care and had access to intellectual activities: he could
visit the prison library according to a schedule drawn up by the prison
governor, could have books brought to his cell, and had regular access to
newspapers. He could also take part in literary and similar competitions
organised by the prison and play board games such as chess and draughts.
The Government pointed out that the provisions
of the 2009 Act fully met European standards and provided for a minimum living
space of four square metres per prisoner. The relevant section of the Act would
enter into force after the adoption by the Government of a programme for the
improvement of prison conditions.
Lastly, the Government argued that a claim under
the 1988 Act was an effective remedy in cases of poor conditions of detention.
They cited a number of cases in which the national courts had awarded compensation
in such circumstances and pointed out that the applicant had himself been awarded
such compensation in the proceedings brought by him.
2. The applicant
The applicant submitted that a claim under section
1(1) of the 1988 Act could not be regarded as an effective remedy, especially
in the period between 2002 and 2006. He referred to several cases dating from that
period in which the courts had rejected claims under that provision in relation
to the conditions in Varna Prison. There was also no mechanism for the enforcement
of monetary judgments against State authorities in cases where those authorities
refused to comply or delayed in complying with them. Lastly, the applicant
contended that even after the 1988 Act had been amended in May 2008, the courts
had continued to order claimants to pay fees for court-ordered expert
opinions and a court fee of for per cent in respect of the parts of their claims
which had been dismissed.
The applicant argued that the favourable outcome
of the three sets of proceedings that he had brought under section 1(1) of the 1988
Act was not sufficient to deprive him of his victim status, as the national
authorities had not afforded him sufficient redress. He pointed out that as a result
of those proceedings he had been awarded a total of BGN 3,030 (EUR 1,549.21) in
damages for the period between October 1993 and April 2006, but had also been ordered
to pay court fees amounting in total to BGN 1,428.80 (EUR 730.53).
Furthermore, he had not received the sum that he had been awarded in the second
set of proceedings, and continued to be detained in the same conditions.
The applicant also contended that the domestic
courts had established that conditions of his detention had been humiliating
and degrading. The material conditions and the stringent detention regime had caused
him unnecessary hardship and suffering. Being forced to relieve himself in a
bucket in the presence of his inmates had been degrading.
B. The Court’s assessment
1. Admissibility
(a) Exhaustion of domestic remedies
On the basis of developments in the Bulgarian courts’
case-law since 2003, the Court has accepted that a claim under section 1(1)
of the 1988 Act (see paragraphs 61 and 62 above), in as much as it can lead to
an award of compensation for poor conditions of detention, is in principle an
effective remedy in respect of such conditions, provided that the person
concerned has been released or placed in Convention-compliant conditions (see Iliev and Others v. Bulgaria, nos. 4473/02
and 34138/04, §§ 46, 50 and 54-56, 10 February 2011, and Radkov (no. 2),
cited above, §§ 37 and 53). The Court had earlier come to a similar conclusion in
respect of the effectiveness of purely compensatory remedies in a number of
cases against Poland (see Norbert Sikorski v. Poland, no. 17599/05, §
116, 22 October 2009; Orchowski v. Poland,
no. 17885/04, § 109, 22 October 2009; Łomiński v. Poland
(dec.), no. 33502/09, §§ 68-76, 12 October 2010; and Łatak v. Poland
(dec.), no. 52070/08, §§ 77-85, 12 October 2010). However, in several cases
the Court found that claims under section 1(1) of the 1988 Act had proved
ineffective as a result of the unduly formalistic approach of courts in the
assessment of the non-pecuniary damage sustained by the prisoners (see
Iovchev v. Bulgaria, no. 41211/98, § 146, 2 February 2006; Iliev and
Others, cited above, § 48;
Radkov (no. 2), cited above, §§ 38-39; and Shahanov v. Bulgaria,
no. 16391/05, § 41, 10 January 2012).
In the instant case, the applicant has not so
far been released. However, in the autumn of 2008 the material conditions in
which he was detained were improved, following works in Lovech Prison that
included the installation of toilet facilities in the life prisoners’ cells and
the replacement of the frames of the cells’ windows (see paragraph 14 in fine above). The applicant does not provide any information about the material
conditions of his detention after that time (see paragraph 18 above). As for his detention regime, it is unclear whether after November 2009 the
applicant continued to be kept under the “special regime”; he has not provided
information on that point either (ibid.). In those circumstances, the Court
will proceed on the basis that the applicant may be regarded as having been
placed in Convention-compliant conditions (see Łatak, cited
above, § 78; Radkov (no. 2), cited above, § 59; and Pisarkiewicz
and Others v. Poland (dec.), no. 222/05, 14 December 2010), and
accepts that a claim under section 1(1) of the 1988 Act could in principle be
regarded as an effective compensatory remedy in respect of the conditions of his
detention before the autumn of 2008.
However, the
Court is not persuaded that such a claim would have stood a reasonable prospect
of success in relation to those aspects of the applicant’s conditions of
detention - such as his complete isolation from the general prison population
and the fact that he was kept in a constantly locked cell - which flowed directly
from the “special regime” to which he was subjected as a life prisoner (see, mutatis
mutandis, Petyo Petkov v. Bulgaria, no. 32130/03, § 67, 7 January 2010). It is true that
in the second set of proceedings brought by the applicant the Veliko Tarnovo
Court of Appeal touched upon that issue. However, that court, perhaps straying somewhat
from the actual claim put before it by the applicant (see paragraph 25 above and, mutatis mutandis, Shahanov, cited above, § 39), did not rule in terms that the
requirement for life prisoners to remain constantly isolated from the general
prison population and constantly locked cells gave rise to a claim for damages
under section 1(1) of the 1988 Act. It confined itself to holding that the
requirement that life prisoners be subjected to heightened supervision could
not justify keeping them in filthy and unsanitary conditions, depriving them of
unimpeded access to a toilet, and depriving them of access to newspapers (see
paragraph 28 above). It should in addition be noted that the Supreme Court of
Cassation and the Supreme Administrative Court have refused to entertain claims
under section 1(1) of the 1988 Act relating to conditions of detention which flow
directly from the statutory and regulatory provisions governing the “special
regime” (see paragraphs 27, 60 and 63 above). The Government have not pointed
to any case-law to the contrary (see Chervenkov
v. Bulgaria, no. 45358/04, § 56, 27 November
2012). It follows that in the particular
circumstances of this case the applicant was not required to bring a further claim
under section 1(1) of the 1988 Act in relation to the period after April 2006.
The Government’s objection must therefore be
dismissed.
(b) Victim status
The Government referred to the fact that the
applicant had been awarded damages under section 1(1) of the 1988 Act, in effect
arguing that he was no longer a victim of the alleged violation of Article 3 of
the Convention. The applicant contested this argument.
The question whether an applicant can claim to
be a victim is relevant at all stages of the proceedings under the Convention
(see, among other authorities, Burdov v. Russia, no. 59498/00, § 30,
ECHR 2002-III). It essentially entails an ex post facto
examination of the applicant’s situation. A decision or measure taken by the
domestic authorities which is favourable to the applicant is in principle not sufficient
to deprive him or her of his or her status as a victim unless those authorities
have acknowledged, and then afforded adequate redress for, the breach of the
Convention (see, among many other authorities, Ciorap v. Moldova (no. 2),
no. 7481/06, § 18, 20 July 2010).
89. In
the instant case, the domestic courts acknowledged that part of the conditions
of the applicant’s detention between August 1999 and April 2006 had been inhuman
and degrading, in breach of Article 3 of the Convention, and, on that basis, awarded
him compensation. However, they do not appear to have addressed all of the
applicant’s grievances. The acknowledgement was therefore only partial (see, mutatis
mutandis, Shahanov, cited above, § 43).
90. The
Court must also determine whether the compensation awarded to the applicant amounted
to adequate redress. Noting that he brought three consecutive claims for
damages in relation to the conditions of his detention in one and the same
prison, and that there was an overlap in respect of some of the periods to
which those claims related, the Court considers that, in analysing this point, it
can carry out a global assessment of the outcome of the three sets of
proceedings.
The Court
notes in this connection that the applicant’s situation is very similar to that
of Mr Radkov, who was the applicant’s co-claimant in the first set of
proceedings. The Court found in Mr Radkov’s case that the compensation that he had
been awarded in those proceedings could not be regarded as adequate redress for
two reasons. First, the courts, although acknowledging that the conditions of his
detention had been in breach of Article 3 of the Convention and had continued
for a long time, had awarded him a much lesser amount than he had sought, on
the sole ground that he had failed to adduce evidence that he had suffered non-pecuniary
damage. Secondly, the award of damages had been largely offset by high court
fees (see Radkov (no. 2), cited above, §§ 38-41).
The second of those considerations is
relevant to the applicant’s case as well. Although the applicant was
awarded a total of BGN 3,030 (EUR 1,549.21) in damages, it appears that he
had to pay BGN 1,628.80 (EUR 832.79) in court fees in respect of the parts of
his claims which were dismissed (see paragraphs 22, 29, 31 and 36 above), as required under the rule laid down in section 10(2) of the 1988 Act before its
amendment in May 2008 (see paragraph 65 above). The net value of the compensation
that he was awarded was thus BGN 1,401.20 (EUR 716.42). Given that this amount
was intended to provide reparation for a considerable period of time, the Court
finds that it was unreasonably low (see, mutatis mutandis, Radkov
(no. 2), cited above, § 41).
93. Moreover, it should be noted
that, at the time when the applicant filed his observations in the present case
(25 March 2010) he had still not obtained payment of the sum awarded to him in
the second set of proceedings (see paragraphs 32 and 33 above). The Government have not provided any explanation for the authorities’
prolonged failure to pay that sum in due time.
It follows
that the applicant was not provided adequate
redress.
In view of the above considerations, the Court
finds that the applicant can still be regarded as a victim of the alleged
violation of Article 3 of the Convention. The Government’s objection must therefore
be dismissed.
(c) The Court’s ruling on admissibility
The Court finds that the complaints under
Articles 3 and 13 of the Convention are not manifestly ill-founded within
the meaning of Article 35 § 3 (a) or inadmissible on other grounds. They must
therefore be declared admissible.
2. Merits
(a) Article 3 of the Convention
Restatements of the general principles
concerning the examination of conditions of detention under Article 3 of the
Convention may be found in the Court’s judgments in Orchowski (cited
above, §§ 119-22), Norbert Sikorski (cited above, §§
126-31) and Kehayov
v. Bulgaria (no. 41035/98, §§ 62-65, 18 January 2005). The
principles governing the application of that provision in relation to the
regime and conditions of detention of life prisoners were recently summarised
in the Court’s judgment in Babar Ahmad and Others v. the United
Kingdom (nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §§ 200-14, 10 April 2012). The Court has in particular held that an
impoverished regime which isolates a life prisoner for a long time is likely,
in the long term, to have damaging effects, resulting in deterioration of
mental faculties and social abilities (see Iorgov v. Bulgaria, no.
40653/98, §§ 83-84, 11 March 2004),
and that such a regime cannot be regarded as warranted unless based on proper
risk considerations, and should not be maintained after such risk has subsided
(see Babar Ahmad and Others, cited above, §§ 207-11).
In the present case, the period to be taken into
account started in August 1999, when the applicant was transferred to Lovech
Prison, and continued at least until an unspecified date in the autumn of 2008 (see
paragraphs 9 and 18 above). It therefore lasted about nine years. During that time
the applicant was placed under the so-called “special regime”, which
required that he be kept constantly in a locked cell under heightened
supervision (see paragraph 41 above). According to the domestic courts’
findings, at least until September 2004 the applicant was held in very strict
isolation, without access to activities (see paragraph 28 above).
The domestic courts were of the view that the material
conditions of the applicant’s detention - that is, those conditions that did
not flow directly from the “special regime” to which he was subjected - had
been in breach of Article 3 of the Convention (see paragraphs 21, 28 and 36 above). This Court, for its part, found a breach of that provision in
relation to the conditions of detention in the life imprisonment unit of Lovech
Prison in the case of Radkov (no. 2) (cited above, §§ 44-52).
In view of that, and taking into account the cumulative effect of those conditions,
regardless of whether they flowed from the applicable regulatory framework or
from its practical implementation - in particular, the need for the applicant to
resort to a plastic bucket for his sanitary needs and his strict isolation for a
long period of time (contrast Petyo Petkov, cited above, §§ 53-55)
- the Court considers that the distress and hardship endured by him exceeded
the unavoidable level of suffering inherent in detention and went beyond the minimum
threshold of severity required by Article 3 of the Convention. It should be noted in this connection that in
contrast to the situation of Mr Iorgov, whose regime was gradually relaxed by
way of an “experiment” in Pleven Prison in 2003-04 - favourably commented
upon by the CPT -, initially as regards access to the lavatories and then as
regards isolation from other prisoners (see Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 21-23 and
42, 2 September 2010, and paragraph 71 in fine above), the applicant in the
present case remained under the full strictures of the “special regime” throughout
the period under consideration.
In view of this conclusion, the Court does not
find it necessary to inquire whether, as the applicant contended, the food
provided in Lovech Prison was of poor quality and whether at times the
applicant’s cell was overcrowded.
There has therefore been a breach of Article 3
of the Convention.
(b) Article 13 of the Convention
The Court already found that (a) a claim under section
1(1) of the 1988 Act cannot be regarded as an effective remedy if the
conditions of detention complained of flow directly from the “special regime” applicable
to life prisoners; and (b) the claims for damages brought by the applicant
failed to provide him adequate redress (see paragraphs 85 and 89-94 above and, mutatis mutandis, Iovchev, cited above, § 146, and Slavcho Kostov v. Bulgaria, no. 28674/03, §§ 60-65, 27 November 2008). In those circumstances, and
noting that it has not been asserted by the Government that other remedies -
compensatory or other - were available to the applicant, the Court finds that there
has been a breach of Article 13 of the Convention.
II. COMPLAINT RELATED TO ARTICLE 6 § 1 OF THE
CONVENTION
The applicant, relying on Article 1 of Protocol
No. 1 and on Article 13 of the Convention, complained about the excessive
court fees in the proceedings for damages against the State and the alleged
lack of effective remedies in that respect. He also complained under Article 14
of the Convention that the State unduly benefited from court fees system applicable
to such claims. He contended that the compensation awarded in respect of the conditions
of his detention had been very low and had been rendered meaningless by the
requirement to pay high court fees on the parts of his claims which had been
dismissed by the courts.
The Court considers that the complaints fall to
be examined under Article 6 § 1 of the Convention as a complaint about
effective access to a court (see Stankov, cited above, §§ 47-48).
Article 6 § 1 of the Convention provides, in so
far as relevant:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court notes that this complaint is linked
to the one examined above and must therefore likewise be declared admissible. However,
in view of its findings under Articles 3 and 13 of the Convention, it does not
consider that it is necessary to examine the same facts again by reference to
Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Articles
6 § 1 and 13 of the Convention that the length of the first set of proceedings
for damages brought by him had been unreasonable and that he had not had an effective
remedy in that respect.
The Court notes that the proceedings in issue began
on 16 August 2004 and came to an end on 6 January 2006 (see paragraphs 19 and 23 above). Therefore, they lasted in total one year and nearly five months, for
two levels of jurisdiction. In those circumstances, their length cannot be regarded
as unreasonable within the meaning of Article 6 § 1 of the Convention.
According to the Court’s settled case-law,
Article 13 of the Convention requires the provision of a domestic remedy to
deal with the substance of an arguable complaint under the Convention and to
grant appropriate relief (see, among many other authorities, Hadjikostova v. Bulgaria
(no. 2), no. 44987/98, § 49, 22 July 2004, and Gavril Yosifov v. Bulgaria, no. 74012/01, § 67, 6 November 2008). Having regard to its finding in the
previous paragraph, the Court does not consider that the applicant had an arguable
complaint in respect of the length of proceedings.
It follows that this part of the application
must be rejected as being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 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
The applicant claimed 35,000 euros (EUR) in
respect of the non-pecuniary damage flowing from the alleged breach of Article
3 of the Convention, EUR 5,000 in respect of the non-pecuniary damage
flowing from the alleged breach of Article 13 of the Convention, and EUR 5,000 in
respect of the non-pecuniary damage flowing from the alleged breach of
Article 6 § 1 of the Convention.
The Government contested the claims as
excessive.
The Court considers that the applicant must
have sustained non-pecuniary damage as a result of the breaches of his
rights found in the case. Taking into account all the circumstances and the sums
awarded to the applicant by way of damages in the domestic proceedings, and ruling
on an equitable basis, the Court awards the applicant EUR 6,000, plus any tax
that may be chargeable on this amount.
B. Costs and expenses
The applicant sought the reimbursement of EUR 2,450
incurred in fees for thirty-five hours of legal work by his lawyers in
the proceedings before the Court, at the hourly rate of EUR 70. In support of
this claim he presented a fee agreement and a time sheet. He further claimed
EUR 25 for postage, office supplies and copying expenses, and EUR 177.55 for
translation expenses. He presented a fee agreement between him and his legal
representatives, a time sheet and a contract for translation services signed on
behalf of Lawyers’ Association Ekimdzhiev, Boncheva and Chernicherska. He
requested that any award made by the Court in relation to the lawyers’ fees be
made payable to his legal representatives, Mr M. Ekimdzhiev and Ms K.
Boncheva, and any award in relation to the translation expenses be made payable
to Lawyers’ Association Ekimdzhiev, Boncheva and Chernicherska.
The Government considered that the claims were
excessive, in particular in terms of the hourly rate charged by the applicant’s
lawyers and the amount of time that they claimed to have spent working on the
case.
According to the Court’s case-law, costs
and expenses claimed under Article 41 of the Convention must have been actually
and necessarily incurred and reasonable as to quantum. In the present case,
having regard to the information in its possession and the above criteria, and
noting that part of the application was declared inadmissible, the Court
considers it reasonable to award the applicant the sum of EUR 1,500 in respect
of lawyers’ fees, plus any tax that may be chargeable to him. This sum is to be
paid into the bank account of the applicant’s legal representatives,
Mr M. Ekimdzhiev and Ms K. Boncheva.
As for the claim for other expenses, the Court
observes that the applicant has provided supporting documents only in relation
to the sum paid for translation services (EUR 177.55). It therefore awards him
that sum, plus any tax that may be chargeable to him. It is to be paid into the
bank account of Lawyers’ Association Ekimdzhiev, Boncheva and Chernicherska.
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
1. Declares admissible the complaints
concerning (a) the conditions and the regime of the applicant’s detention in Lovech
Prison, (b) the availability of an effective remedy in that respect, and (c) the
court fees system applied in the proceedings for damages brought by the
applicant, and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 13 of the Convention;
4. Holds that there is no need to
examine separately the complaint under Article 6 § 1 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the following amounts, to
be converted into Bulgarian levs at the rate applicable on the date of
settlement:
(i) EUR 6,000 (six thousand euros), plus any tax
that may be chargeable to him, in respect of non-pecuniary damage;
(ii) EUR 1,677.55 (one thousand six hundred and seventy
seven euros and fifty five cents), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, EUR 1,500 (one thousand five
hundred euros) of which is to be paid into the bank account of the applicant’s legal
representatives, and the remainder into the bank account of Lawyers Association
Ekimdzhiev, Boncheva and Chernicherska;
(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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Ineta
Ziemele
Registrar President
