SHAHANOV AND PALFREEMAN v. BULGARIA - 35365/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 686 (21 July 2016)

In the case of Shahanov and Palfreeman v. Bulgaria,

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

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Síofra O’Leary,
          Mārtiņš Mits, judges,

Pavlina Panova, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 28 June 2016,

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

PROCEDURE

1. The case originated in two applications (nos. 35365/12 and 69125/12) 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 Nikolay Ivanov Shahanov, and an Australian national, Mr Jock Palfreeman (“the applicants”), on 1 June and 3 October 2012 respectively.

2. Mr Shahanov was represented by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. Mr Palfreeman was represented by Mr K. Kanev, chairman of the Bulgarian Helsinki Committee, a non-governmental organisation based in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms L. Gyurova and Mr V. Obretenov, of the Ministry of Justice.

3. The applicants alleged, in particular, that disciplinary punishments imposed on them by the prison authorities in response to complaints that they had made in relation to prison officers had unjustifiably interfered with the exercise of their right to freedom of expression. Mr Shahanov also alleged that the prison authorities routinely opened and read his correspondence.

4. On 25 November 2013 the Government were given notice of the complaints concerning the interferences with the applicants’ right to freedom of expression and the complaint concerning the alleged monitoring of Mr Shahanov’s correspondence. The remainder of the two applications was declared inadmissible under Rule 54 § 3 of the Rules of Court.

5. Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew from sitting in the two cases. Accordingly, the President of the Section selected Ms Pavlina Panova as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. Mr Shahanov, who was born in 1977, is serving a life sentence in Plovdiv Prison.

7. Mr Palfreeman, who was born in 1986, is serving a sentence of twenty years’ imprisonment in Sofia Prison.

A. The case of Mr Shahanov

1. The disciplinary proceedings against Mr Shahanov

8. In 2011, when serving his sentence in Plovdiv Prison, Mr Shahanov was sharing a cell with eight other inmates. On 24 October 2011 he made two complaints to the Minister of Justice: one written by him personally and one written on his behalf by his wife. In the complaints he stated, inter alia, that another inmate in his ward, X, was bragging that two prison officers, Y and Z, were relatives of his; was threatening and intimidating the other inmates and fomenting intrigues and tension among them; was often making unwarranted complaints to get special attention and treatment; and was planning to escape from prison with the help of his relatives. Mr Shahanov requested that steps be taken to move X to a prison where he did not have relatives.

9. An inquiry was opened pursuant to Mr Shahanov’s complaints, and written statements were taken from X, other inmates, Y, Z, and other prison officers.

10. In a letter of 28 November 2011, the head of the Chief Directorate for the Execution of Sentences informed the governor of Plovdiv Prison that the inquiry had not found familial relationships or improper contacts between X and any of the prison officers, or a risk for Mr Shahanov. The letter went on to say that the governor should advise all inmates that making defamatory statements about, or false allegations against, prison officers was a disciplinary offence under section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below).

11. The next day, 29 November 2011, the governor of Plovdiv Prison ordered that Mr Shahanov be placed in solitary confinement for ten days for making defamatory statements and false allegations against prison officers, contrary to the above-mentioned provision.

12. On 30 November 2011 Mr Shahanov sought judicial review of the order.

13. The Plovdiv District Court heard Mr Shahanov’s claim on 2 December 2011 and, in a final decision of the same date (опр. oт 02.12.2011 г. по ч. н. д. № 8203/2011 г., РС-Пловдив), upheld the order. It held that it was lawful and that, in view of the results of the inquiry carried out pursuant to Mr Shahanov’s complaints and the evidence gathered in the proceedings before it, the prison governor had been correct to find that Mr Shahanov had made defamatory statements and false allegations against prison officers. The court went on to say that the punishment matched the seriousness of the offence.

2. The alleged monitoring of Mr Shahanov’s correspondence

14. Mr Shahanov asserted that his correspondence was routinely opened and read by the prison authorities. In support of his assertion, he submitted seven letters sent in 2012, six of which were addressed to his counsel, whose envelopes bore the stamp “checked” on their backs. For their part, the Government submitted a letter from the administration of Plovdiv Prison according to which Mr Shahanov’s correspondence was being controlled in the manner envisaged in the applicable regulations, which meant that the prison authorities only checked the physical content of the letters, not their text. All letters were sealed and opened by a prison officer in front of the prisoner. The stamp “checked” affixed on the back of an envelope only meant that the letter had been physically inspected for the presence of prohibited items.

B. The case of Mr Palfreeman

15. On 23 May 2012 Mr Palfreeman was visited by two journalists. At the same time, a fellow inmate of Israeli nationality also had a visitor. After the visits, Mr Palfreeman learned that his visitors had been treated rudely, and that his fellow inmate’s visitor had had personal items stolen from lockers in the prison where he had left them during the visit.

16. The next day, 24 May 2012, with the help of another inmate who knew Bulgarian, Mr Palfreeman wrote the following complaint to the governor of Sofia Prison:

“On 23 May 2012, during the midday visit, personal items of visitors were stolen from the visitors’ lockers, which are only accessible to the guards. The stolen items are a mobile telephone case, MP3 headphones, a mobile telephone battery, and a sum of money. Also, the guards behaved very rudely and coarsely with the visitors, yelling at them and insulting them for no reason. Could you please carry out an inquiry into the conduct of that shift, and take measures to ensure that the guards work in a disciplined way and with respect towards inmates and others.”

17. Disciplinary proceedings were opened against Mr Palfreeman in relation to that complaint. On 11 June 2012 a hearing took place before the prison’s disciplinary commission.

18. In an order of 12 June 2012, the governor of Sofia Prison noted that an inquiry carried out pursuant to Mr Palfreeman’s complaint had shown that the two persons who had visited him had not left any items in the visitors’ lockers, and had not made any complaints about missing items on their way out of the prison. There was no evidence that they had been treated rudely by prison staff either. By making allegations to that effect, Mr Palfreeman had therefore acted contrary to section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below). The nature and the gravity of the offence, Mr Palfreeman’s attitude towards his act, and his overall conduct and state of health militated in favour of punishing him with three months’ deprivation of the right to receive food parcels from outside prison.

19. Mr Palfreeman appealed to the head of the Chief Directorate for the Execution of Sentences and sought judicial review. He argued, inter alia, that his disciplinary punishment was in breach of section 90(5) of the 2009 Act (see paragraph 25 below) and this Court’s case-law, that deprivation of the right to receive food parcels was a serious sanction in view of the insufficient quantity of food provided by the prison, and that it was an attempt to cow him into not making complaints against the prison administration.

20. On 14 August 2012 the head of the Chief Directorate for the Execution of Sentences dismissed the appeal. Noting that the inquiry into Mr Palfreeman’s allegations had not confirmed any of them, he found that, by deliberately making false allegations, the applicant had committed the disciplinary offence under section 100(2)(7) of the 2009 Act. The sanction fully corresponded to the nature and the gravity of his act, his attitude towards it, and his previous conduct.

21. In a final decision of 19 July 2012 (опр. от 19.07.2012 г. по н. ч. д. № 13436/2012 г., СРС), the Sofia District Court held that it could not deal with Mr Palfreeman’s claim for judicial review, as only orders imposing solitary confinement were amenable to such review. All other types of disciplinary punishments were only subject to appeal before the head of the Chief Directorate for the Execution of Sentences (see paragraphs 30-32 below).

II. RELEVANT DOMESTIC LAW

A. Relevant constitutional provisions

22. Article 45 of the Constitution of 1991 provides that the citizens have the right to make complaints, proposals and petitions to the authorities.

23. Article 39 § 1 of the Constitution provides that everyone is entitled to express an opinion and publicise it through words, whether written or oral, sounds or images, or in any other way. By Article 39 § 2, that right cannot be exercised to the detriment of the rights or reputation of others.

24. Article 41 § 1 of the Constitution provides that everyone has the right to impart information, but that the exercise of that right may not be directed against the rights or the good name of others.

B. The bar on disciplinary liability for complaints by prisoners

25. Section 90(5) (at the relevant time; now, following an amendment that came into force on 1 January 2013, section 90(6)) of the Execution of Sentences and Pre-Trial Detention Act 2009 provided that prisoners could not bear disciplinary liability for making requests or complaints.

26. In April 2014 the head of the Chief Directorate for the Execution of Sentences relied on that provision to set aside an order imposing a disciplinary punishment on a prisoner for making a petition to the Minister of Justice. The prisoner then brought a claim for non-pecuniary damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraphs 33 and 35 below) in relation to that. The claim was dismissed by the administrative courts on the basis that even though the order imposing the disciplinary punishment had been set aside as unlawful, the prisoner had failed to prove that he had suffered pain, medical problems or special humiliation as a result of it (see реш. № 114 от 31.12.2014 г. по адм. д. № 102/2014 г., АС-Ловеч, upheld by реш. № 428 от 14.01.2016 г. по адм. д. № 2026/2015 г., ВАС, III о.).

C. Disciplinary liability of prisoners for defamatory statements or false allegations against prison officers or other inmates

27. By section 100(2)(7) of the 2009 Act, as in force between June 2009 and the end of 2012, it was a disciplinary offence for a prisoner to make defamatory statements or false allegations against prison officers or other inmates.

28. In April 2012 the Government brought before Parliament a bill for the amendment of the 2009 Act. Paragraph 33 of the bill proposed to add, at the end of section 100(2)(7), wording making it a disciplinary offence for a prisoner to make threats of physical violence. When Parliament’s Legal Affairs Committee considered the bill between its first and second reading, it proposed to delete the text concerning defamatory statements and false allegations, and only leave the text relating to physical violence and threats of such violence. At the second reading of the bill on 19 December 2012, Parliament adopted the amended proposal without any debate. The amendments were published in the State Gazette on 28 December 2012 and came into effect on 1 January 2013. Section 100(2)(7) now provides that it is a disciplinary offence to use physical violence against fellow inmates or prison officers, or make threats of such violence.

29. By section 101 of the 2009 Act, the disciplinary punishments that can be imposed on prisoners, then as now, are: (a) written reprimand; (b) extra duties in maintaining cleanliness and hygiene for up to seven days; (c) cancellation of a reward (such as extra visiting time or home leave) that has not been used; (d) prohibition to take part in collective events; (e) deprivation of the right to receive food parcels for up to three months; (f) deprivation of home leave for up to three months; (g) confinement to a disciplinary cell for an uninterrupted period of up to fourteen days; and (h) confinement to a disciplinary cell during work-free or education-free hours or work-free days or holidays, for a total period of up to fourteen days.

D. Legal challenges against the disciplinary punishments imposed on prisoners

30. By section 110(1) of the 2009 Act, all orders whereby prison governors impose disciplinary punishments on prisoners are amenable to appeal before the head of the Chief Directorate for the Execution of Sentences. Appeals do not have automatic suspensive effect, but the head of the Directorate may stay the execution of the punishment (section 110(2)).

31. The courts have consistently held that, even though the Act does not contain a clause expressly excluding judicial review, neither the order imposing a disciplinary punishment nor the decision of the head of the Directorate to uphold that order are subject to such review (see, among other authorities, опр. № 2558 от 25.11.2010 г. по н. а. х. д. № 6300/2010 г., РС-Варна; опр. № 3744 от 20.08.2012 г. по адм. д. № 7633/2012 г., АС-София, upheld by опр. № 992 от 22.01.2013 г. по адм. д. № 12518/2012 г., ВАС, V о.; опр. № 342 от 21.01.2015 г. по адм. д. № 5247/2014 г., АС-София; and опр. № 3401 от 23.06.2015 г. по адм. д. № 5604/2015 г., АС-София).

32. By section 111(1) of the Act, orders imposing solitary confinement are subject to review by the territorially competent district court. An amendment to section 111(4) that came into force in the beginning of 2013 made it clear that claims for judicial review do not have automatic suspensive effect, a point which had previously been unclear. The court may however stay the execution of the punishment (section 111(4), as in force since 1 January 2013). The court’s decision is final (section 111(4), as worded before the end of 2012, and new section 111(5), in force since 1 January 2013).

E. Claims for damages against the authorities in relation to disciplinary punishments imposed on prisoners

33. Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, acts or omissions by civil servants, committed in the course of or in connection with administrative action. By Article 204 § 1 of the Code of Administrative Procedure 2006, a claim relating to damage allegedly caused by an unlawful decision can only be made if that decision has been duly set aside. Article 204 § 4 of the Code provides that if the claim relates to an unlawful act or omission, its unlawfulness may be established, as a preliminary point, by the court hearing the claim of damages.

34. In two cases in 2011 and 2014, joint panels of the Supreme Administrative Court and the Supreme Court of Cassation held that claims for damages by prisoners with respect to disciplinary punishments fell to be examined by the civil courts under the general law of tort rather than by the administrative courts under section 1(1) of the 1988 Act (see опр. № 96 от 02.12.2011 г. по адм. д. № 82/2011 г., ВКС и ВАС, см. петчл. с-в, and опр. № 1 от 08.01.2014 г. по ч. гр. д. № 39/2013 г., ВКС и ВАС, см. петчл. с-в). However, in a binding interpretative decision of 19 May 2015, the Plenaries of the Civil Chambers of the Supreme Court of Cassation and the First and Second Sections of the Supreme Administrative Court, sitting jointly, held, inter alia, that all claims for damages relating to actions, omissions or decisions of the prison authorities were under the jurisdiction of the administrative courts and fell to be examined under section 1(1) of the 1988 Act (see тълк. пост. № 2/2015 г. от 19.05.2015 г., ВКС, ГК, и ВАС, I и II К., тълк. д. № 2/2014 г., ВКС).

35. In many cases finally disposed of before or after that interpretative decision, the administrative courts examined claims for damages by prisoners in relation to disciplinary punishments under section 1(1) of the 1988 Act (see, among others, реш. № 114 от 31.12.2014 г. по адм. д. № 102/2014 г., АС-Ловеч, upheld by реш. № 428 от 14.01.2016 г. по адм. д. № 2026/2015 г., ВАС, III о.; реш. № 7245 от 29.05.2014 г. по адм. д. № 13900/2013 г., ВАС, III о.; and реш. № 5318 от 04.08.2014 г. по адм. д. № 2590/2013 г., АС-София-град, upheld by реш. № 13437 от 10.12.2015 г. по адм. д. № 13556/2014 г., ВАС, III о.).

36. Those courts have consistently held that such claims can only be allowed if the disciplinary punishment in relation to which damages are sought has already been set aside by the competent district court or by the Chief Directorate for the Execution of Sentences (see the decisions cited in the previous paragraph, as well as опр. № 17175 от 19.12.2013 г. по адм. д. № 16006/2013 г., ВАС, IV о.; реш. № 6165 от 09.05.2014 г. по адм. д. № 13064/2013 г., ВАС, III о.; опр. № 6454 от 02.06.2015 г. по адм. д. № 1953/2015 г., ВАС, I о.; and опр. № 3982 от 06.04.2016 г. по адм. д. № 3175/2016 г., ВАС, VIII о.).

F. Prisoners’ correspondence

37. The law relating to prisoners’ correspondence, as in force before and after a change which took place in February 2010, has been set out in the Court’s judgment in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 153-56, 19 February 2013).

III. RELEVANT COUNCIL OF EUROPE MATERIALS

38. The European Prison Rules, adopted by the Committee of Ministers of the Council of Europe on 11 January 2006 (see Recommendation Rec(2006)2 on the European Prison Rules) read, in so far as relevant:

“70.4 Prisoners shall not be punished because of having made a request or lodged a complaint.”

THE LAW

I. JOINDER OF THE APPLICATIONS

39. The cases of Mr Shahanov and Mr Palfreeman and their grievances concerning the disciplinary punishments imposed on them on account of their complaints in relation to prison officers are very similar. Their applications should therefore be joined under Rule 42 § 1 of the Rules of Court.

II. THE DISCIPLINARY PUNISHMENTS

40. Mr Shahanov and Mr Palfreeman both complained of the disciplinary punishments imposed on them in response to the complaints that they had made in relation to prison officers. They relied on Articles 8 and 10 of the Convention.

41. Article 8 of the Convention provides, in so far as relevant:

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

42. Article 10 of the Convention provides, in so far as relevant:

“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

43. The Government submitted that the applicants had failed to exhaust domestic remedies. Each of them could have brought a claim for damages under the general law of tort. Case-law of the Bulgarian courts existed which showed that this avenue was open to prisoners who wished to complain of disciplinary punishments.

44. Mr Shahanov submitted that the authorities could only incur liability under the general law of tort or section 1(1) of the State and Municipalities Liability for Damage Act 1988 in respect of acts found to be unlawful. However, the disciplinary punishment imposed on him had had a clear legal basis and had been upheld in a final judicial decision.

45. Mr Palfreeman likewise submitted that the liability of the authorities could only be engaged in respect of unlawful acts, whereas his disciplinary punishment had been found to be lawful and had been fully upheld. In any event, deliberate acts by the authorities meant to stifle the exercise of a prisoner’s right to freedom of expression could not be made good by the mere award of compensation.

46. In this case, the Court does not have to decide whether, and in what circumstances, the mere award of compensation is capable of rectifying a breach of Article 8 or Article 10 of the Convention resulting from a disciplinary punishment imposed on a prisoner. It is clear from the case-law of the Bulgarian courts that claims for damages by prisoners relating to disciplinary punishments normally and, after the interpretative decision of 19 May 2015, exclusively fall to be examined under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraphs 33-35 above). However, a prisoner is only entitled to damages under this provision if the disciplinary punishment which he has had to suffer has been previously set aside (see paragraph 36 above), which is not the case here. The punishments imposed on Mr Shahanov and Mr Palfreeman were upheld, respectively, by the Plovdiv District Court and the Chief Directorate for the Execution of Sentences (see paragraphs 13 and 20 above, as well as Marin Kostov v. Bulgaria, no. 13801/07, § 36, 24 July 2012).

47. The Government’s objection must therefore be rejected.

48. This part of the application is furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

49. The Government submitted that the interferences complained of had been justified in the case of both applicants. They had had a legal basis in sections 100 and 101 of the 2009 Act. The inquiries carried out pursuant to the applicants’ complaints had shown that their allegations were baseless and that they had therefore made false allegations against prison officers. Their punishments were below the maximum possible in respect of their offences, and fully proportionate to the seriousness of their acts, especially in the case of Mr Palfreeman. These punishments had been necessary to ensure order in the prisons concerned and to protect the rights of other inmates and the prison officers. This was particularly so in the case of Mr Shahanov, who had had a conflict with the inmate mentioned in his complaints long before making them, and had sought to resolve that conflict by accusing prison officers. The punishments had not been imposed in an arbitrary manner, but in formal disciplinary proceedings, with a possibility for the applicants to bring legal challenges against them. The targets of the applicants’ allegations were public officials, and the interferences with the applicants’ rights had been intended to protect those officials’ reputations and to ensure the undisturbed performance of their duties.

50. Mr Shahanov accepted that his disciplinary punishment had been “prescribed by law” and had sought to protect the reputation of the prison staff. However, in his view it had not been “necessary in a democratic society”. The allegations in connection with which he was sanctioned had been made in complaints to the Minister of Justice. The evidence gathered in the course of the inquiry carried out following those complaints had shown that he could have reasonably believed that his allegations were true. He had not used intemperate, insulting or foul language, and his allegations had not become known to the public or other inmates. He had nonetheless been given an unduly harsh punishment - solitary confinement - which had entailed restrictions on his visiting and correspondence rights and had affected negatively his private life. None of those points had been adequately addressed by the court which had reviewed his punishment.

51. Mr Palfreeman submitted that his punishment had not been “necessary in a democratic society”. He had not named specific prison officers in his complaint, which had been addressed solely to the prison governor. He had not used abusive or intemperate language. He had believed his allegations to be true, and had simply meant to alert the governor about possible wrongdoing by prison staff. He had not disrupted prison order or smeared the reputation of specific prison officers. His punishment had been imposed as a reprisal for his having exercised his right to make complaints. The findings of fact in the order imposing the punishment were demonstrably false and made after a faulty investigation.

52. Mr Palfreeman went on to submit that the punishment - deprivation of the right to receive food parcels for three months - had been particularly harsh in his case. He was an Australian whose family lived in Australia and could only visit him, under very restrictive conditions, once or twice a year. That is why food parcels provided a special link with them. These parcels also helped him supplement the meagre diet available in Sofia Prison.

2. The Court’s assessment

53. Since the crux of the applicants’ grievance is the alleged breach of their right to freedom of expression, the Court will examine first the complaint under Article 10 of the Convention.

54. The disciplinary punishments imposed on the applicants were meted out in response to allegations that they made in complaints to the Minister of Justice, in Mr Shahanov’s case, and to the governor of Sofia Prison, in Mr Palfreeman’s case (see paragraphs 8, 11, 16 and 18 above). They therefore constituted an “interference”, in the form of a “penalty”, with the exercise of the applicants’ right to freedom of expression (see Yankov v. Bulgaria, no. 39084/97, § 126, 11 December 2003, and Marin Kostov, cited above, § 42). Such interference will only be compatible with Article 10 of the Convention if it was “prescribed by law” and was “necessary in a democratic society” for one of the aims set out in its second paragraph.

55. It was not disputed that the interference in each of the two cases had a legal basis - section 100(2)(7) of the 2009 Act (see paragraph 27 above) - and that the relevant law was accessible and foreseeable.

56. The Court is furthermore satisfied that the interferences were intended to protect the reputation and rights of the prison officers who were the subject of the applicants’ allegations, and hence pursued a legitimate aim.

57. The salient question is whether the interferences were “necessary in a democratic society” to achieve this aim. To answer this question, the Court must determine whether they were proportionate, due regard being had to the national authorities’ margin of appreciation in this domain (see, among many other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004-XI).

58. The Court has had occasion to say that it is open to those authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith, and that public servants, in particular, may need protection from offensive, abusive and defamatory attacks calculated to affect them in the performance of their duties and to damage public confidence in them and the office they hold. But the Court has also emphasised that in the context of prison discipline, regard must be had to the particular vulnerability of persons in custody, which means that the authorities must provide particularly solid justification when punishing prisoners for having made allegedly false accusations against the prison authorities (see Marin Kostov, cited above, § 44, with further references).

59. In the light of its case-law relating to disparaging statements against public officials made in written complaints to the authorities (see Zakharov v. Russia, no. 14881/03, 5 October 2006; Kazakov v. Russia, no. 1758/02, 18 December 2008; Sofranschi v. Moldova, no. 34690/05, 21 December 2010; Siryk v. Ukraine, no. 6428/07, 31 March 2011; and Marin Kostov, cited above), the Court will examine the proportionality of the interferences by looking at (a) the nature and exact manner of communication of the statements; (b) the contexts in which they were made; (c) the extent to which they affected the officials concerned; and (d) the severity of the sanctions imposed on the applicants.

60. The statements amounted to allegations of misconduct on the part of prison officers in the performance of their duties: nepotism in the case of Mr Shahanov and rudeness towards prison visitors and stealing of visitors’ personal effects in the case of Mr Palfreeman (see paragraphs 8 and 16 above).

61. While these allegations were quite serious, the language used was not strong, vexatious or immoderate. The Court’s case-law draws a clear distinction between criticism and insult in terms of whether sanctions may be justified for such statements (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003; Uj v. Hungary, no. 23954/10, § 20, 19 July 2011; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 67, ECHR 2011). Moreover, the limits of acceptable criticism with regard to public officials may in some circumstances be wider than in relation to private individuals (see Nikula v. Finland, no. 31611/96, § 47, ECHR 2002-II; Steur v. the Netherlands, no. 39657/98, § 40, ECHR 2003-XI; and Mariapori v. Finland, no. 37751/07, § 56, 6 July 2010).

62. The statements were not made publicly (see Bezymyannyy, § 39, Siryk, § 45, and Marin Kostov, § 46, all cited above), for instance verbally in front of members of the public (contrast Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999-I), or in letters addressed or made available to the public or the media (contrast Coutant v. France (dec.), no. 17155/03, 24 January 2008, and Morice v. France [GC], no. 29369/10, § 140, 23 April 2015). The fact that they were never made public is relevant, as the case-law indicates, to the assessment of the proportionality of the interference under Article 10 of the Convention (see Yankov, cited above, § 141). Nor were the statements made outside the proper channels of complaint (contrast Puzinas v. Lithuania (no. 2), no. 63767/00, §§ 30 and 34, 9 January 2007). Their negative impact, if any, on the officers’ reputation was thus quite limited. Moreover, in Mr Palfreeman’s case the complaint did not mention specific prison officers (see paragraph 16 above).

63. It is true that the applicants’ allegations were capable of having an effect on the professional standing of the prison officers concerned, of undermining their authority with respect to prisoners, and of taking up time and resources. But they were made by the applicants in the exercise of the possibility in a democratic society governed by the rule of law for a private person to report an alleged irregularity in the conduct of a public official to an authority competent to deal with such an issue. This possibility is one of the precepts of the rule of law (see Zakharov, § 26; Kazakov, § 28; and Siryk, § 42, all cited above), and serves to ensure that confidence in the public administration is maintained. Indeed, in Bulgaria the right of citizens to make complaints to the authorities has been enshrined as a fundamental right in Article 45 of the Constitution (see paragraph 22 above). It is then for the authority concerned to decide what procedural steps may be required in response to such complaints. However, the mere fact that the applicants’ complaints led to inquiries cannot be seen as unduly impinging on the officers’ reputation. It was precisely the purpose of those inquiries to confirm or lay to rest the applicants’ allegations.

64. The possibility to report alleged irregularities and make complaints against public officials takes on an added importance in the case of persons under the control of the authorities, such as prisoners. Prisoners should be able to avail themselves of that opportunity without having to fear that they will suffer negative consequences for doing so (see Yankov, § 134, and Marin Kostov, § 47, both cited above). Indeed, section 90(5) of the 2009 Act, which appears to draw its inspiration from Rule 70.4 of the 2006 European Prison Rules, seeks to prevent precisely that (see paragraphs 25 and 38 above). It is striking that the authorities which dealt with the applicants’ legal challenges against the disciplinary punishments - the Plovdiv District Court in Mr Shahanov’s case and the Chief Directorate for the Execution of Punishments in Mr Palfreeman’s case - did not touch upon, let alone substantively discuss, the question whether the disciplinary punishments interfered with the applicants’ right to freedom of expression and, in this respect, the right to make complaints (see, mutatis mutandis, Marin Kostov, cited above, § 49).

65. The serious sanctions imposed on the applicants could only be regarded as necessary in exceptional circumstances. For example, it should be convincingly demonstrated that the persons concerned, despite being aware that their allegations were false, proceeded to criticise the conduct of the officials anyway. However, in the instant case, given the nature of the complaints, the manner of their communication, the context in which they were made, and the effect, if any, on the officials concerned, the Court is not satisfied that this was so.

66. There has therefore been a breach of Article 10 of the Convention in relation to each of the two applicants.

67. In view of this conclusion, there is no need to examine separately the applicants’ complaint under Article 8 of the Convention (see Marin Kostov, cited above, § 52).

III. MR SHAHANOV’S CORRESPONDENCE IN PRISON

68. Mr Shahanov complained that the prison authorities routinely opened and read his correspondence. He relied on Article 8 of the Convention, the text of which has been set out in paragraph 41 above.

A. The parties’ submissions

69. The Government submitted that Mr Shahanov had failed to exhaust domestic remedies. He could have brought a claim for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988 with respect to any alleged actions or omissions by prison officers in relation to his correspondence. The administrative courts had already allowed such claims.

70. The Government further submitted that, as attested by the administration of Plovdiv Prison, the prison authorities had not opened or read Mr Shahanov’s letters but simply physically inspected their contents. Letters were opened and sealed in the inmate’s presence, and the stamp “checked” on the back of the envelopes only meant that the letters had been physically inspected for the presence of prohibited items. This type of control was envisaged under applicable regulations, which had always been scrupulously complied with in Mr Shahanov’s case.

71. Mr Shahanov submitted that his correspondence was regularly opened and read by the prison authorities. This was evident from the stamps affixed on the back of the envelopes of his letters to his counsel. The legal provisions serving as a basis for this interference with his rights under Article 8 of the Convention were vague, and did not make special provision for letters from and to lawyers. They required the inspection of all letters, regardless of whether they could be specifically suspected of containing prohibited items. This could not be regarded as necessary.

B. The Court’s assessment

72. There is no need to determine whether Mr Shahanov has exhausted domestic remedies in respect of this complaint, as it is in any event manifestly ill-founded, for the following reasons.

73. In Harakchiev and Tolumov (cited above, § 275), having reviewed the statutory and regulatory provisions applicable after February 2010, the Court found no basis on which to assume - as it had done in previous cases where the applicable legal provisions had required the opening and reading of all prisoners’ letters - that a prisoner’s correspondence after February 2010 was systematically inspected or read by the prison authorities. The evidence submitted in support of the assertion that the prison authorities had in fact done so in Mr Tolumov’s case was not sufficient to enable the Court to reach such a conclusion either. That evidence consisted, as in this case, of envelopes stamped with the word “checked” on the back (ibid., § 50). Taking into account the wording of the applicable legal provisions, the Bulgarian Government’s categorical assertion that there was no practice of inspecting inmates’ letters, and the fact that the stamps in question did not allude to any form of censorship, the Court found no indication that the letters inside the envelopes had been inspected or read by the prison authorities (ibid., § 276).

74. There is no reason to hold otherwise in this case, which concerns the same prison and the same legal provisions as Harakchiev and Tolumov (cited above). The administration of that prison clearly stated that the stamps affixed on the envelopes of Mr Shahanov’s letters only attested that the letters had been physically inspected for prohibited items, with no attempts to read their text (see paragraph 14 above). Mr Shahanov has not put forward any evidence to rebut this assertion, and there is no reason to doubt its veracity.

75. It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. 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

77. Mr Shahanov claimed 30,000 euros (EUR) in respect of the non-pecuniary damage allegedly resulting from the disciplinary punishment imposed on him, and EUR 10,000 in respect of the non-pecuniary damage allegedly resulting from the monitoring of his correspondence.

78. Mr Palfreeman claimed EUR 6,000 in respect of the non-pecuniary damage allegedly resulting from the disciplinary punishment imposed on him.

79. The Government submitted that the claims were exorbitant. In their view, it was more appropriate to award about two-thirds of the sum claimed by Mr Shahanov in respect of the damage allegedly flowing from his disciplinary punishment, and to base any award to Mr Palfreeman on the awards made in previous similar cases.

80. In this case, an award of just satisfaction can only be based on the breach of Article 10 of the Convention relating to the disciplinary punishments imposed on the applicants. That said, the applicants must have sustained non-pecuniary damage on account of those punishments. Ruling on an equitable basis, as required under Article 41 of the Convention, the Court awards Mr Shahanov EUR 5,500 and Mr Palfreeman EUR 3,500. To those sums is to be added any tax that may be chargeable.

B. Costs and expenses

81. Mr Shahanov sought reimbursement of EUR 6,520 incurred in lawyers’ fees for - according to him - eighty-six hours of work on his case, at the rate of EUR 80 per hour. He also claimed EUR 60 for postage and photocopying expenses, and an unspecified sum in respect of the translation of his observations and claims into French. In support of his claims, Mr Shahanov submitted a fee agreement with his legal representatives and a time-sheet. He requested that any award be made payable to his legal representatives.

82. Mr Palfreeman sought reimbursement of EUR 2,000 incurred in fees for twenty-five hours of work on his case, at the rate of EUR 80 per hour. He did not submit any documents in support of his claim. He requested that any amount awarded under this head be made payable to the Bulgarian Helsinki Committee.

83. The Government submitted that both claims were exorbitant, and that the claim of Mr Palfreeman was not supported by any documents.

84. According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.

85. In the case of Mr Shahanov, part of the application was declared inadmissible, which calls for a certain reduction in the award of costs (see, among other authorities, Yordanova and Toshev v. Bulgaria, no. 5126/05, § 85, 2 October 2012). Having regard to this and the materials in its possession, the Court finds it reasonable to award Mr Shahanov EUR 1,500, plus any tax that may be chargeable to him, in respect of his legal costs. As requested by him, this sum is to be paid to his legal representatives, Ms S. Stefanova and Mr M. Ekimdzhiev. As regards the claim for other expenses, Mr Shahanov did not submit any supporting documents. The Court therefore makes no award under this head.

86. For his part, Mr Palfreeman did not submit any documents in support of his claim. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court makes no award to cover the costs and expenses claimed by Mr Palfreeman.

C. Default interest

87. 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. Joins the two applications;

2. Declares the complaints concerning the disciplinary punishments imposed on the applicants admissible and the remainder of the first application inadmissible;

3. Holds that there has been a violation of Article 10 of the Convention in relation to both applicants;

4. Holds that there is no need to examine separately the applicants’ complaint under Article 8 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) to Mr Shahanov, EUR 5,500 (five thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses, this latter sum to be paid to his legal representatives;

(ii) to Mr Palfreeman, EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 applicants’ claims for just satisfaction.

Done in English, and notified in writing on 21 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SHAHANOV AND PALFREEMAN v. BULGARIA - 35365/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 686 (21 July 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/686.html Cite as: [2016] ECHR 686