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You are here: BAILII >> Databases >> European Court of Human Rights >> ZHIVKO GOSPODINOV AND OTHERS v. BULGARIA - 34639/07 (Judgment : Violation of Prohibition of torture : Degrading treatment Inhuman treatment) No violation of Article 3...) [2017] ECHR 944 (26 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/944.html Cite as: [2017] ECHR 944, ECLI:CE:ECHR:2017:1026JUD003463907, CE:ECHR:2017:1026JUD003463907 |
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FIFTH SECTION
CASE OF ZHIVKO GOSPODINOV AND OTHERS v. BULGARIA
(Applications nos. 34639/07 and 9 others - see appended list)
JUDGMENT
STRASBOURG
26 October 2017
This judgment is final but it may be subject to editorial revision.
In the case of Zhivko Gospodinov and Others v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Erik Møse, President,
Yonko Grozev,
Gabriele Kucsko-Stadlmayer, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 3 October 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in ten applications 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 ten applicants on different dates. A list of the applicants, the dates of their applications and the names of their representatives, where applicable, have been set out in the appended table.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.
3. On 26 December 2015 the complaints concerning the irreducibility of the whole-life prison sentences, the excessive restrictiveness of the “special regime” under which the applicants had been serving their sentences, the monitoring of correspondence by the prison administration, and the absence of an effective remedy in connection with these two complaints, were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Government submitted observations and information on 15 February 2016.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants are serving either life sentences or whole-life sentences in different prisons in Bulgaria.
A. The first applicant, Mr Gospodinov (application no. 34639/07)
5. The applicant is currently serving a whole-life imprisonment sentence in Belene Prison. The sentence was delivered by the Dobrich Regional Court in 2003. It was confirmed on appeal in February 2004 and, subsequently, by the Supreme Court of Cassation in a final judgment of 19 October 2004.
6. As it is apparent from documents in the file, the applicant had unsuccessfully sought presidential clemency several times since 2007. He was initially placed in the high-security wing of Varna Prison where he started serving his sentence; since 2004 he has been under the “special regime”.
7. He described, and the Government did not comment on, the conditions under which he had been detained there as follows. His cell measured 5.5 by 3 metres and had a small grilled window which did not let much light in during the day. The lighting at night was also insufficient. The cell was humid, badly heated during the winter and deprived of ventilation during the summer. Given that in the cell there was neither running water, nor toilet facilities, the applicant had had to use a bucket to relieve himself. He was allowed to leave his cell three times a day, during meal times, for about forty-five minutes each time, in order to slop out, eat, wash himself and re-fill his water bottle from the tap. The prison was infested with cockroaches and rats, and he was only allowed to shower once a fortnight. The food was insufficient in quantity and of poor quality. During visits, he was separated from his family and lawyers by a grill and the meetings always took place in the presence of prison staff. His correspondence was routinely read by prison staff as he was obliged to transmit his letters to the outside world in open envelopes. The envelopes carrying correspondence with his lawyer bore a stamp showing that they had been checked.
8. Both parties submitted that the applicant had been transferred to Belene Prison on 17 February 2009, where he continued to serve his sentence under the “special regime”. He was detained in the high-security wing of this prison, alone in a cell.
9. According to the Government, since the beginning of his time in that prison, the applicant had gone on several hunger strikes. According to documents in the file, at the beginning of his stay in Belene Prison he demonstrated suicidal intentions and was identified as aggressive and hostile, as well as prone to attempting to escape. On the basis of an order of the prison governor of 19 February 2009, he did not take part in collective activities with other inmates, even those in his own category. In addition, the Government submitted that owing to lack of physical space in the prison, it was impossible to organise collective sport activities, or gather inmates for the purposes of reading, listening to music, playing board games or using the computer. Also, they emphasised that the impossibility was underpinned by the personal characteristics of the inmates which made them incompatible with each other and were an impediment to the authorities’ organising joint activities for them.
10. The parties submitted that the applicant’s cell in Belene Prison was secured by a door and an external grill, both of which were locked. The light bulb remained on throughout the night, for security purposes, which the applicant claimed interfered with his sleep. His daily walks in the open air took place in a grilled space measuring, according to the applicant and not disputed by the Government, about 15 sq. m, where only persons serving life sentences were taken. According to the applicant, its floor was partially made of bare cement and there was no sports equipment there. According to the Government, there was a climbing wall, a bench and a fixed-height bar. Both parties submitted that each time the applicant left the high-security wing of the prison, he was handcuffed and the handcuffs were shackled to a belt. He claimed that his correspondence was routinely checked. According to the Government, prisoners’ correspondence was checked out of security considerations. However, the authorities only checked the contents of the envelopes which the applicant received and not the text of the letters in them.
B. The second applicant, Mr Petrov (application no. 28678/08)
11. In a final judgment of 15 May 2005 the Supreme Court of Cassation sentenced the applicant to life imprisonment. The documents in the case file indicate that he had been initially imprisoned in Lovech Prison and was transferred to Belene Prison on 6 October 2009 where he was placed in the high-security wing.
12. The Government submitted that he had been serving his sentence under the “special regime” since 5 May 2005.
13. The applicant submitted that he had been kept in isolation in Belene Prison under the “special regime” and that the living conditions in his prison cell were inadequate. In particular he claimed that he spent about twenty-three hours a day locked up in a very small, poorly lit cell with a non-secluded toilet close to his bed.
14. The Government did not dispute his claims. They specified that the size of his cell was 6 sq. m, that it was a “normal” as opposed to a “punishment” cell, that he had a bed, a drawer, a sink and a toilet in his cell, and that there was enough space for him to move about in it.
C. The third applicant, Mr Alexandrov (application no. 9777/10)
15. The applicant was sentenced to life imprisonment in a final judgment of 10 December 2001 of the Supreme Court of Cassation.
16. The applicant complained that, in accordance with the “special regime” under which he had been serving his sentence, he had been permanently locked up in a cell which he had only been allowed to leave for no more than one and a half hours a day. He also alleged very poor living conditions, the presence of rats, insufficient lighting, tainted water, limited space and time for outdoor activities, and consistent overuse of handcuffs.
17. The Government submitted that the applicant had been serving his sentence under the “special regime” in Bobov Dol Prison between 5 February 2002 and 19 April 2007 when his regime had been changed to “severe”. He had spent the following two years under the “severe regime” and on 1 June 2009 his regime had been changed to “strict”. During his stay in Bobol Dol Prison between 2002 and 2012 the applicant had been in the high-security wing, alone in a cell measuring just under 13 sq. m. The cell had contained a sink and a toilet separated from the rest of the space. Hygiene in the cell had been satisfactory; the bed sheets had been washed weekly and the prisoners had been provided with sanitary products once a month. The cells had been disinfected and treated against mice with the same frequency.
18. The Government submitted that the applicant had been kept in a permanently locked up cell in Bobov Dol Prison, in strict compliance with the relevant legal provisions and in particular section 71(2) of the Execution of Punishments and Pre-trial Detention Act. As of February 2016, they specified that the applicant had formally satisfied the conditions for being detained together with other prisoners but that the applicant had considered himself not ready for it.
19. On 24 July 2012 the applicant was transferred to Pazardzhik Prison upon his request and was placed in the high-security wing, in a cell measuring 7 sq. m. He expressed an interest in working but the authorities were not in a position to provide him with work. He had not committed disciplinary breaches to the time of application. As to the conditions of detention in Pazardzhik Prison, the Government submitted that he had not raised related grievances with the authorities.
D. The fourth applicant, Mr Hasan (application no. 59178/10)
20. The applicant was sentenced for a number of offences and was given a total sentence of whole-life imprisonment in 2000. He complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection.
E. The fifth applicant, Mr Rangelov (application no. 29219/11)
21. In a final judgment of 15 March 2010 the applicant was sentenced by an Austrian court to life imprisonment. He was transferred from Austria to Bulgaria on 15 July 2010 in order to serve his sentence. On 8 November 2010 the Vratsa Regional Court confirmed the sentence and accepted it for enforcement. This was upheld on appeal by the Sofia Appellate Court in a final decision of 9 February 2011. The applicant has been serving his sentence under the “special regime” since 18 February 2011. He is kept in a permanently locked cell in Vratsa Prison, in the high-security wing, in accordance with applicable rules for life prisoners under the Execution of Punishments and Pre-trial Detention Act.
F. The sixth applicant, Mr Dimitrov (application no. 81170/12)
22. The applicant was sentenced to whole-life imprisonment on 28 February 2011 in a final judgment of the Supreme Court of Cassation.
23. The applicant complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection.
G. The seventh applicant, Mr Mitev (application no. 5608/13)
24. The applicant was sentenced to life imprisonment in a final judgment of the Supreme Court of Cassation of 13 November 2008. He has been serving his sentence under the “special regime” in Varna Prison. He alleged that he spent his time almost permanently locked up in isolation from the other inmates, while the Government claimed that he was in “almost permanent contact with other inmates” without submitting more details. The applicant submitted that he had had to relieve himself in a bucket in his cell where there had been no running water. The Government clarified that this changed in 2012 when a toilet had been built in his cell. The food, according to the applicant and disputed by the authorities, was insufficient and of poor quality.
H. The eighth applicant, Mr Staykov (application no. 15418/13)
25. The applicant was sentenced for different offences and given a total sentence of life imprisonment in a final judgment of 17 November 2011 by the Supreme Court of Cassation. The applicant has been serving his sentence in Stara Zagora Prison under the “special regime” in a permanently locked cell located in the high-security wing of the prison. The Government submitted that he was allowed to leave his cell twice a day for an hour at a time when he could see and communicate with other inmates detained in the same prison wing. He was also allowed to use sanitary facilities outside of his cell five times a day, and to shower twice a week. There was no toilet in the applicant’s cell and no ventilation system had been installed.
I. The ninth applicant, Mr Iorgov (application no. 27596/13)
26. The applicant had been serving a sentence of whole-life imprisonment in Pleven Prison since 1999 under the “special regime”. In 2003 he was placed under the lighter “severe regime” and a year later under the even lighter “strict regime” when he was also placed in a cell together with other inmates.
27. He complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection.
J. The tenth applicant, Mr Shahanov (application no. 1179/14)
28. The applicant was sentenced to life imprisonment and has been serving his sentence under the “special regime” since 2009. Until 2009 he was detained in Varna Prison and since 18 February 2009 he has been detained in Plovdiv Prison. He complained in respect of his detention after February 2009, the conditions of his detention before 18 February 2009 having been examined by the Court in an earlier case with application no. 16391/05, which was decided in a judgment of 10 January 2012.
29. Both the applicant and the Government submitted that he was detained in a permanently locked cell and isolated from the other prisoners. The Government pointed out that the applicant left his cell for an hour in the morning and for an hour in the afternoon every day for exercise and to spend time in the open air.
30. The applicant also claimed that the material conditions in which he had been serving his sentence were inadequate and that he had been offered no collective activities or other forms of occupation.
31. The Government stated that he was enrolled in the following weekly activities: a catechism course lasting an hour-and-a-half per week; and a course in basic computer skills with hour-long sessions; he also had an additional hour in the open air, as well as half an hour to take a bath on Wednesday evenings. Furthermore, when various competitions had taken place in the prison, or there had been concerts or recitals, inmates serving life sentences had been offered a chance to attend them as spectators. The Government further clarified that the applicant’s regime had been changed to “strict” in 2015 but he had continued to be in the high-security wing; according to the Government, he had repeatedly stated that he had not wished to be placed together with other prisoners.
II. RELEVANT DOMESTIC LAW AND PRACTICE
32. The law relating to whole-life sentences and acts of clemency in Bulgaria has been set out in detail in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 51-107, ECHR 2014 (extracts)).
33. The law relating to the detention regime of life prisoners, including the relevant parts of the general reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), has been set out in detail in paragraphs 114-152 of the Court’s judgment in Harakchiev and Tolumov (cited above).
34. A number of amendments to the 2009 Execution of Punishments and Pre-trial Detention Act entered into force in February 2017 and May 2017. They introduced preventive and compensatory remedies in respect of material conditions of detention and have been set out in the Court’s decision in Atanasov and Apostolov v. Bulgaria ((dec.), nos. 65540/16 and 22368/17, 27 June 2017).
THE LAW
I. JOINDER OF THE APPLICATIONS
35. In view of the similar subject matter of these ten applications, it is appropriate to examine them jointly, pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF SENTENCES OF WHOLE-LIFE IMPRISONMENT
36. The applicants in the first, fourth, sixth and ninth applications complained that their whole-life sentences had amounted, from the time of their imposition, to inhuman and degrading punishment, in breach of Articles 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
37. The Court observes in the first place that in its earlier judgment in the case of Iorgov v. Bulgaria (no. 2) (no. 36295/02, § 60, 2 September 2010), the applicant had been the same person as the ninth applicant in the present case and had brought an identical complaint, namely about the irreducibility of his whole-life sentence and the related absence of all hope that he might be released from prison one day. The Court held that there had been no violation of Article 3. It follows that the ninth applicant’s related complaint concerning the period until 2 September 2010, the date of the delivery of the judgment in the case of Iorgov (no. 2) (cited above), must be rejected under Article 35 §§ 2 (b) and 4 of the Convention as being substantially the same as a matter that has already been examined by the Court. Accordingly, the Court finds that it is only competent to examine the ninth applicant’s related complaint made in the present case as regards the period after 2 September 2010.
38. The Court next notes that the remaining complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
39. The Court observes the developments in its related case-law after delivery of the judgment in the case of Iorgov (no.2) (cited above). In particular, it points to its conclusions in the case of Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, §§ 119-22, ECHR 2013 (extracts)) and the subsequent case of Harakchiev and Tolumov (cited above, §§ 243-67) in which it found breaches of Article 3 of the Convention in respect of complaints concerning the irreducibility of sentences of whole-life imprisonment. It also notes in this connection that in the most recent Grand Chamber judgment on this question, Hutchinson v. the United Kingdom ([GC], no. 57592/08, § 73, ECHR 2017), it found no violation of Article 3 of the Convention following a clarification of the applicable legal rules in the United Kingdom made in a judicial decision on 18 February 2014. Importantly, in Hutchinson the Court did not examine separately whether the requirements of Article 3 in relation to whole-life sentences as laid down in the Vinter judgment had been complied with in the applicant’s case prior to the judicial decision of 18 February 2014, given that the parties’ submissions had been confined to the state of domestic law at the time of examination of the case.
40. The Court also notes that in its decision in the case of Sabev v. Bulgaria ((dec.), no. 57004/14, §§ 13-15, 12 May 2015), delivered after the judgment in the case of Harakchiev and Tolumov (cited above), it clarified that the continuing situation of a lack of a mechanism under Bulgarian law permitting a realistic possibility for review of whole-life sentences had lasted, at the very latest, until 21 January 2013.
41. In view of all the above, and noting that the complaints in the first, fourth, sixth and ninth applications were made to the Court before, or within six months of, 21 January 2013 and that they concern the whole period after the imposition of their sentences (as opposed to the situation in Hutchinson, see paragraph 39 above), the Court finds that from the moment of imposition of the whole-life sentences on the first, fourth and sixth applicants, and after 2 September 2010 in respect of the ninth applicant, up until 21 January 2013, there has been a violation of Article 3 as a result of the absence of a realistic prospect of review of the whole-life sentences of these applicants.
42. Accordingly, the Court finds that after 21 January 2013, there has been no violation of this Convention provision in respect of these applicants.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE RESTRICTIVE REGIME OF THE APPLICANTS’ DETENTION
43. The applicants in the first, second, third, fifth, seventh, eighth and tenth applications complained that the conditions under the “special regime” in which they had been serving their sentences had been in breach of Article 3.
A. Admissibility
44. The Court first observes that the tenth applicant submitted his related complaint specifying that it concerned the period after 18 February 2009, given that the conditions in which he had been serving his life sentence until that date had been examined in the Court’s earlier judgment in the case of Shahanov v. Bulgaria (no. 16391/05, 10 January 2012). Accordingly, the present case concerns the tenth applicant’s detention under the “special regime” after he was moved to Plovdiv Prison in February 2009.
45. The Court also notes that after communication of the application the eighth applicant complained that the very imposition on him of a “simple” life sentence (as opposed to a “whole-life sentence”) had been in breach of Article 3 of the Convention. Given when that complaint was raised, the Court finds that it should not be examined in the present case (see Radev v. Bulgaria, no. 37994/09, § 44, 17 November 2015, with further references).
46. The Court notes that the complaint in respect of the conditions of the “special regime” made by the applicants indicated in paragraph 43 above is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
47. As regards the effects of isolation on a prisoner’s personality, the Court has held that all forms of solitary confinement without appropriate mental and physical stimulation are likely to have damaging effects in the long term, resulting in deterioration of mental faculties and social abilities (see Harakchiev and Tolumov, cited above, § 204). Also, the automatic segregation of life prisoners from the rest of the prison population and from each other, in particular where no comprehensive out-of-cell activities or in-cell stimuli are available, may in itself raise an issue under Article 3 of the Convention (see Savičs v. Latvia, no. 17892/03, § 139, 27 November 2012), and the isolation should be justified by particular security reasons (see Harakchiev and Tolumov, cited above, § 204, with further references to soft-law instruments; see also Radev, cited above, § 42).
48. Turning to the present case, the Court notes in respect of the applicants’ isolation that it is undisputed that they remained confined to their cells for the vast majority of the time, that they have had only a limited possibility for physical exercise throughout the duration of their sentences and that they have been segregated from other categories of prisoners, in accordance with the relevant rules. It has already held (see Harakchiev and Toloumov, cited above, § 208) that it appears that this situation was to a great extent a result of the automatic application of the legal provisions regulating the applicants’ prison regime. The Government have not referred to any participation of the applicants in meaningful reasonable activities or educational courses, apart from indicating that in the case of Mr Shahanov (the tenth applicant) he had the possibility of attending two weekly activities lasting between an hour and an hour and a half, which the Court does not consider, on their own, sufficient. In addition, unlike in respect of the other applicants who made this complaint, the Government stated that Mr Mitev (the seventh applicant) had been in almost permanent contact with other inmates (see paragraph 24 above). In the absence of more specific details and material submitted to show the intensity of such contact, and in view of the fact that Mr Mitev has been serving his sentence under the most restrictive “special regime” with all the related restrictions stemming from the relevant legal framework described in the relevant Court’s case-law and confirmed by the Government in their related observations in the present case, the Court is not persuaded that the Government’s submissions are sufficient to prove otherwise.
49. The Court does not lose sight of the fact that the relevant domestic legislation has recently changed (see paragraph 34 above). Following the communication of the present applications, the Government submitted their written observations on the merits before the law was changed and indicated in them what type of changes were envisaged. That said, since the Government have not raised either in their written observations, or on their own initiative following the adoption of these legal changes, an objection to the admissibility of the present applications on the basis of failure of the applicants to exhaust domestic remedies, the Court cannot pronounce proprio motu on this issue (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). The Court emphasises that this conclusion is made in the context of the specific circumstances of the present applications and it cannot prejudge any future examination of cases concerning complaints stemming from the application of the “special regime” to life and whole-life prisoners.
50. In view of all the above, and as it noted in Harakchiev and Tolumov (cited above, § 212) and reiterated in the subsequent recent Grand Chamber judgment in the case of Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 88-91, 12 May 2017), the Court considers that, taking into account the cumulative effect of the above-mentioned conditions, regardless of whether they flowed from the applicable regulatory framework or from its practical implementation, and the period of the applicants’ detention - between six and fifteen years, respectively, so far -, the distress and hardship endured by the applicants, which was also not alleviated by the material conditions in which they have been kept (see the description of the facts above in respect of these applicants), exceeded the unavoidable level of suffering inherent in detention. Accordingly, it finds that the applicants mentioned in paragraph 43 above were placed in an ongoing situation of infringement of their right not to be subjected to inhuman and degrading treatment.
51. There has therefore been a violation of Article 3 of the Convention in respect of these applicants.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
52. The applicants in the first, fourth, sixth and ninth applications complained that they have not had an effective domestic remedy in connection with their complaint about the irreducibility of their whole-life sentences. The applicants in the first, seventh and tenth applications complained that they had not had an effective domestic remedy in connection with their complaint about the “special” detention regime. They all relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
53. The Court observes that the complaint about a lack of an effective remedy concerns the very fact that under Bulgarian law it is possible to sentence an offender to life imprisonment without commutation and that the characteristics of the “special regime” and its application to inmates serving life sentences stemmed from the law. It therefore relates to the content of express statutory and regulatory provisions. However, Article 13 of the Convention does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the grounds of being contrary to the Convention or to equivalent domestic legal norms (see, similarly, Harakchiev and Tolumov v. Bulgaria (dec.), nos. 15018/11 and 61199/12, §§ 126-28, 19 February 2013).
54. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION
55. The first applicant further complained about the monitoring of his correspondence by the prison administration and of the absence of an effective remedy in that respect. He relied on Articles 8 and 13 of the Convention, which read respectively as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home 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.”
Article 13
“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. Admissibility
56. The Government submitted that prisoners’ correspondence in general was monitored out of security considerations and the authorities only checked the envelopes’ contents and did not examine the text of the letters.
57. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
58. The Court reiterates that it has found in a number of earlier judgments (see Petrov v. Bulgaria, no. 15197/02, § 44, 22 May 2008, and Halil Adem Hasan v. Bulgaria, no. 4374/05, § 80, 10 March 2015) a violation of Article 8 of the Convention because the regular and indiscriminate monitoring of prisoners’ correspondence, in accordance with section 33(1)(c) of the Execution of Punishments Act 1969, which was applicable at the time, had not corresponded to a pressing social need nor had it been proportionate to the legitimate aim pursued. As regards the period after February 2010, when the relevant legislative provision had been changed, the Court has found no basis on which to assume that prisoners’ correspondence after February 2010 has been systematically intercepted and read by the prison authorities (see Harakchiev and Toloumov, cited above, § 275 and Halil Adem Hasan, cited above, § 80).
59. In the present case the Government have not submitted any information or argument to persuade the Court to reach a different conclusion. Having regard to its case-law on the subject, the Court finds that, in respect of the period until February 2010, there has been a violation of Article 8 of the Convention on account of the systematic monitoring of the first applicant’s correspondence.
60. As regards the applicant’s related complaint that he had not had an effective domestic remedy, the Court observes that the monitoring of the applicant’s correspondence in prison did not result from an individual decision of the prison administration or another authority but was systematic and directly resulted from the application of the express wording of the law. It has earlier held that Article 13 of the Convention does not go so far as to guarantee a remedy allowing primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see Petrov, cited above, § 65). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
61. 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
62. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. The second applicant did not make claims for just satisfaction. The third applicant claimed EUR 20,000 in respect of non-pecuniary damage. The fourth, seventh, eighth and tenth applicants claimed EUR 25,000 each in respect of non-pecuniary damage. The fifth applicant claimed EUR 211,600 for non-pecuniary damage and EUR 6,384 for pecuniary damage. The sixth applicant claimed EUR 10,000 for non-pecuniary damage. The ninth applicant did not claim just satisfaction.
63. The Government contested these claims as excessive and unjustified.
64. With regard to the breach of Article 3 of the Convention relating to the irreducibility of the whole-life sentence, the Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage the first, fourth, sixth and ninth applicants may have suffered (see Harakchiev and Toloumov, cited above, § 285). It accordingly makes no award under this head.
65. With regard to the breach of Article 3 of the Convention relating to the regime and conditions of the applicants’ detention, the Court does not discern any causal link between the violation found and the pecuniary damage alleged by the fifth applicant and it therefore rejects that claim. However, the Court considers that the applicants must have sustained non-pecuniary damage as a result of the violation of their rights under that provision. Taking into account all the circumstances, and ruling on an equitable basis, as required under Article 41 of the Convention, the Court awards the first applicant EUR 4,000, plus any tax that may be chargeable on that amount. The Court also awards the third, fifth, seventh, eighth and tenth applicants EUR 3,000 each, plus any tax that may be chargeable on that amount.
B. Costs and expenses
66. The first, third, fourth, seventh and tenth applicants, who were represented by Mr M. Ekimdzhiev and Ms S. Stefanova, invited the Court to award them an amount for legal fees by ruling on an equitable basis, as it did in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, § 114, 28 June 2007). At the same time they submitted a sheet containing details of the hours worked by their legal representatives on their applications in the total amount of EUR 11,120.61 for the costs and expenses incurred before the Court. That sum corresponded to EUR 10,920 for legal fees incurred by Mr Ekimdzhiev and Ms Stefanova in connection with the representation of these five applicants on the basis of contingency fee agreements, and EUR 200.61 for translation and postal expenses.
67. The fifth applicant claimed EUR 1,000 for legal fees and EUR 663.75 for other expenses, such as cleaning products, food, prison visits by relatives and telephone conversations with his parents and lawyers.
68. The Government contested these claims in respect of the legal fees as exaggerated and unjustified, and not corresponding to the relevant living standards in the country or to the typical legal fees charged.
69. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the first, third, fourth, seventh and tenth applicants jointly the sum of EUR 5,082, corresponding to EUR 5,000 in respect of legal fees for the proceedings before the Court (EUR 1,000 in respect of each of these five applications) and jointly the sum of EUR 82 for translation expenses, plus any tax that may be chargeable to them, to be paid directly to their legal representatives, Mr Ekimdzhiev and Ms Stefanova. With regard to the claims for postage and office supplies, the Court notes that no supporting documents have been submitted showing that those expenses were actually incurred. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court makes no award in respect of these heads of claim.
70. The Court further awards EUR 1,000 to the fifth applicant in respect of legal fees for the proceedings before the Court. In respect of the claim for other expenses, the Court does not discern any causal link between the violation found and the other expenses claimed by the fifth applicant and it therefore rejects that claim.
C. Default interest
71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints by the first, fourth, sixth and ninth applicants about the irreducibility of their whole-life sentences (in respect of the ninth applicant as regards the period after 2 September 2010), the complaints by the first, second, third, fifth, seventh, eighth and tenth applicants about their detention under the “special prison regime”, and the complaint by the first applicant about the monitoring of his correspondence admissible and the remainder of the applications inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention in respect of the first, fourth, sixth and ninth applicants as a result of the irreducibility of their whole-life sentences before 21 January 2013 (in respect of the ninth applicant as regards the period after 2 September 2010);
3. Holds that there has been no violation of Article 3 of the Convention in respect of the first, fourth, sixth and ninth applicants as a result of the irreducibility of their whole-life sentences after 21 January 2013;
4. Holds that there has been a violation of Article 3 of the Convention as a result of the detention conditions under the “special prison regime” in respect of the first, second, third, fifth, seventh, eighth and tenth applicants (in respect of the tenth applicant as regards the period after 18 February 2009);
5. Holds that there has been a violation of Article 8 of the Convention as a result of the monitoring of the first applicant’s correspondence before February 2010;
6. Holds
(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand euros) to the first applicant, plus any tax that may be chargeable to him, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros) to the third, fifth, seventh, eighth and tenth applicants each, plus any tax that may be chargeable to them, in respect of non-pecuniary damage;
(iii) EUR 5,082 (five thousand and eighty-two euros) jointly to the first, third, fourth, seventh and tenth applicants, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly to these applicants’ legal representatives, Mr M. Ekimdzhiev and Ms S. Stefanova;
(iv) EUR 1,000 (one thousand euros) to the fifth applicant in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 26 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Erik
Møse
Acting Deputy Registrar President
APPENDIX
