FOURTH SECTION

CASE OF DIMITROV AND RIBOV v. BULGARIA

(Application no. 34846/08)

JUDGMENT

STRASBOURG

17 November 2015

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 Dimitrov and Ribov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	George Nicolaou,
	Ledi Bianku,
	Nona Tsotsoria,
	Paul Mahoney,
	Krzysztof Wojtyczek,
	Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 34846/08) 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 two Bulgarian nationals, Mr Stoyan Mitkov Dimitrov and Mr Ivan Nikolaev Ribov (“the applicants”), on 15 July 2008.
2.  The applicants were represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms Raya Nikolova, of the Ministry of Justice.
3.  The applicants alleged, in particular, that they had been serving their whole life sentences in inhuman and degrading conditions.
4.  On 8 November 2011 the complaints, under Article 3 of the Convention, concerning the regime and material conditions of their detention, as well as the lack of adequate medical treatment provided to them in Burgas Prison and, under Article 13 in conjunction with Article 3 of the Convention, concerning the unavailability of an effective domestic remedy related to the above complaints, were communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants were born in 1974 and 1979 respectively and are serving whole life sentences in Burgas Prison.
6.  The facts of the case can be summarised as follows.
7.  In November 2001 both applicants were arrested on suspicion of murder and were remanded in custody. In September 2002 they were transferred to Burgas Prison. In December 2004 the trial court, Burgas Regional Court, found them guilty of murder resulting from terrorist activity and sentenced them to whole life imprisonment, to be served initially under the “special regime”. In April 2006 the appellate court, Burgas Court of Appeal, upheld that sentence which was further upheld by the Supreme Court of Cassation in a final judgment of 16 January 2008.
8.  The applicants have been serving their sentences under the “special regime” in Burgas Prison, in permanently locked individual cells measuring 1.5 by 3 metres, under heightened security supervision. Both applicants have been allowed out of their cells for between one and two hours a day to take exercise in the open, which they have been spending walking in the prison courtyard.
9.  The parties diverge in respect of the material conditions in which the applicants have been kept.
10.  According to the applicants, the daylight in the cells has been scant and a light bulb attached to the ceiling has been on 24 hours a day. There is so little unencumbered space in the cell that the applicants are forced to spend most of the day either lying or sitting on their beds. There are no toilets in their cells and, since the beginning of 2008, the prison authorities have allowed them to use the common sanitary facilities three times a day. The rest of the time they use a bucket to satisfy their physiological needs. Hygiene is rather poor: the prison premises, including the canteen and kitchen, are infested with cockroaches and rats. The food is of inadequate quality and insufficient quantity. The medical service in the prison lacks even the most basic medical supplies. Mr Dimitrov caught psoriasis in prison and because of the absence of adequate treatment his condition has deteriorated into psoriatic arthritis.
11.  According to the Government, the applicants’ cells are equipped with toilets and the light is sufficient for them to read and write. In addition, the prison premises are cleaned every day and a thorough cleaning is carried out weekly by a specially designated individual. The authorities employ the services of an external company which regularly cleans and disinfects all prison areas. The prison director supervises the quality and quantity of the food offered to the inmates who receive meat dishes six times a week and a vegetarian dish once a week. The prisoners have access to a bathroom with hot running water six times a day. Sometimes they spend up to two hours a day in the open. They can visit the prison library, the prison chapel, as well as take part in – unspecified – group activities. Mr Ribov has tended to participate in them happily, while Mr Dimitrov has refused to do so without giving any reason for that.
Article II.	II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS
12.  The law related to the regime of prisoners sentenced to life imprisonment, to claims for damages under the State and Municipalities Liability for Damage Act 1988 (“the SMRDA”), as well as the findings of the Committee for the Prevention of Torture (the CPT) have been set out in detail in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 114-146, and §§ 165-174, ECHR 2014 (extracts)).
13.  Ordinance No. 2 of 19 April 1999, issued by the Minister of Justice and European Integration in 1999 and quashed in 2006, provided in section 14 that individuals sentenced to life imprisonment in judgments which were not final had to be kept in permanently locked cells and did not have the right to take part in common activities.
14.  The CPT, in its report on its 2012 visit to Burgas Prison, noted the following in relation to life prisoners there. The cells used to accommodate those serving life sentences in the high-security units were small. Exceptions were two larger cells (approximately 9 m² each) with a fully partitioned sanitary annex, which was in principle a far more satisfactory arrangement. The cells accommodating life-sentenced prisoners were in the same advanced state of dilapidation and insalubrity as the rest of the prisoner accommodation. The situation was compounded by damage in some cells resulting from leaking sewage pipes. On a positive note, cell windows at Burgas Prison had been replaced a few years earlier and access to natural light was adequate. That said, artificial lighting was kept on all night, obliging inmates to improvise lampshades to dim the light. Life‑sentenced prisoners could shower twice a week and were released six times a day to go to the toilets. They had to use buckets the rest of the time. As for the common sanitary facilities, they were in an extremely poor state of repair and filthy.
15.  As regards other activities, the CPT observed that life prisoners could have TV and radio in their cells, as well as books. The delegation was informed that regular anger management, behavioural and emotional group work organised by a social worker, which had been discontinued 18 months earlier, was about to resume. Some individual written plans had been developed for those serving life sentences. That said, there appeared to be little or no structurally planned intervention on the part of staff to attempt to provide appropriate mental and physical stimulation to these prisoners.
16.  In its report on its 2014 visit to Burgas Prison, the CPT observed that the situation was, in many respects, of even more concern than in 2012. The Committee concluded that the situation demonstrated a persistent lack of action by the authorities to improve conditions in the prison system. Only a very small proportion of prisoners serving life sentences were allowed to associate with other prisoners. The material conditions of the high-security units were particularly poor and inadequate, as was the regime of activities. Prisoners serving life sentences could have TV and/or radio sets in their cells, as well as books, newspapers and (sometimes) DVD players and play‑stations. In several respects the conditions of detention at Burgas and two other prisons were so unacceptable that they could be considered as inhuman and degrading.
17.  Apart from in Burgas Prison, all cells for prisoners serving life sentences were equipped with (partially screened) sanitary annexes, comprising a toilet and a washbasin. By contrast, those serving life sentences at Burgas still had to resort to buckets most of the time, since they were only allowed to visit the communal toilets six times a day (and not at all during the night). Most were no longer handcuffed while moving within their units. However, they were usually handcuffed during medical examinations. The situation concerning healthcare was as dramatic as the one found during the 2012 visit: the healthcare team consisted only of a dentist, a feldsher and a nurse, while the two posts of general practitioner and psychiatrist had remained vacant.
18.  The CPT reiterated that the regime for life-sentenced prisoners in Bulgaria should be fundamentally reviewed so as to include a structured programme of constructive and preferably out-of-cell activities; educators and psychologists should be proactive in working with life-sentenced prisoners to encourage them to take part in that programme and attempt to have them engage safely with other prisoners for at least a part of each day.
19.  On 26 March 2015 the CPT made a public statement in respect of Bulgaria in accordance with Article 10, paragraph 2, of the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In the public statement, the CPT referred to its finding during an ad hoc visit it had made to Bulgaria in early 2015. In particular it noted that the vast majority of inmates still had no access to organised out-of-cell activities and were left in a state of idleness for up to 23 hours per day. In terms of material conditions, the CPT observed that, in Burgas Prison and the two other establishments visited in 2015, the conditions remained characterised by an ever-worsening state of dilapidation. Most of the sanitary facilities were totally decrepit and unhygienic, and the heating systems functioned for only a few hours a day. The kitchen remained filthy and unhygienic and infested with vermin, with leaking and overflowing sewage pipes, and walls and ceilings covered in mould. Most parts of the prison were unfit for human accommodation and represented a serious health risk to both inmates and staff. In the CPT’s view, the material conditions alone could be seen as amounting to inhuman and degrading treatment. This state of affairs highlighted a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the CPT. The CPT was of the view that action in this respect was long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria had to radically change.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
20.  The applicants complained of the regime and conditions in which they had been serving their whole life sentences, as well as of the inadequate medical care provided to them. They invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 3.01	A.  Admissibility
21.  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.
Section 3.02	B.  Merits
(a)	1.  The Government’s observations
(i)	(a)  Regime and material conditions
22.  The Government submitted that the applicants were serving their life sentences under the “special regime” in cells which were permanently locked and under heightened security supervision, pursuant to statutory provisions. More specifically, it was on account of the seriousness of their offences and was necessary for the purposes of assessment of the applicants’ risk to others. The applicants could take part in group activities, and visit the prison library and chapel.
23.  Furthermore, the material conditions in which the applicants have been kept conformed fully to Article 3 of the Convention. In particular, they did not reach the minimum level of severity required under the Convention in order for a situation to fall under that provision.
24.  More specifically, each of the applicants’ cells was equipped with a toilet and a sink, which were installed after the CPT’s visit to Burgas Prison in 2002. Given that the cells also allowed sufficient access to daylight, the situation was in line with the relevant Convention requirements.
25.  In addition, the authorities had adopted a Programme for Improving the Detention Conditions in Prisons in September 2010. That document demonstrated their aspirations to implement a coherent policy in the field of execution of sentences. The focus in that programme was on the improvement of the material conditions of detention in Bulgarian prisons and their alignment with the relevant international standards.
26.  All the above showed that the authorities had improved the conditions of detention in Burgas Prison and the applicants’ related complaints were therefore unjustified.
(ii)	(b)  Medical care in prison
27.  As to the complaint related to the absence of adequate medical services provided to the applicants in Burgas Prison, the Government submitted that the available medical services were satisfactory. Regular medical check-ups were carried out according to a set schedule and urgent cases were immediately seen by a doctor. All inmates were examined at least once a year when they also received any vaccinations they needed.
28.  The Government emphasised that the applicants had not pointed to any specific occasion when they had requested medical treatment and it was refused or they had remained unattended. Likewise, there had been no cases where the authorities had refused to allow the applicants to receive medication from their relatives or friends.
29.  Furthermore, in order to claim that the medical care in prison was so deficient that it had had negative effects on them, the applicants would have had to produce a medical document. This document had to attest not only that there existed a direct causal link between the prison conditions and the negative consequences for the inmates, but also that those conditions could be the cause of the applicants’ psychological or physical suffering.
(b)	2.  The applicants’ observations
(i)	(a)  Regime and material conditions
30.  The applicants submitted that there had been no improvement in the conditions in which they had been detained since 2002 in Burgas Prison. They pointed out that, instead of independently investigating and seeking an expert opinion on the various aspects of the applicants’ complaints, the Government had based their observations on a letter provided by the prison’s governor who was an interested party and whose submissions represented a subjective assessment and not objective data. Furthermore, although the CPT had not visited Burgas Prison in 2006, the recommendations made in their report on that visit left no doubt that the detention conditions there were also unsatisfactory.
31.  The applicants stressed that they were subjected to excessive restrictions; in particular, they were forced to spend over 20 hours a day lying or sitting in their cells.
(ii)	(b)  Medical care in prison
32.  They reiterated their complaint about inadequate medical services provided to them in the prison.
(c)	3.  The Court’s assessment
(i)	(a)  General principles
33.  The Court has set out the applicable general principles laid down in the Court’s case-law in paragraphs 199-202 of Harakchiev and Tolumov, cited above.
34.  More specifically, as regards the effects of isolation on a prisoner’s personality, the Court reiterates that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects 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). Furthermore, isolation must be justified by particular security reasons (see Harakchiev and Tolumov, cited above, § 204 with further references to soft-law instruments and the repeated emphasis in CPT reports on the need to assess life prisoners’ dangerousness on a case‑by-case basis as there is no justification for indiscriminately applying restrictions to all prisoners subject to a specific type of sentence).
(ii)	(b)  Application of those principles to the present case
35.  Turning to the present case, the Court notes that it has not been disputed that the applicants were kept in permanently locked individual cells, isolated from the rest of the prison population and subjected to strict security arrangements in accordance with the “special regime” applied to them. The point in dispute concerns the period during which they have been detained in isolation. While the applicants claimed that they had been locked up under the same restrictive conditions ever since they had been transferred to Burgas Prison in 2002, the authorities submitted that they had been imprisoned under the “special regime” as of 2008 when their sentences became final.
36.  The Court notes that the relevant domestic rule, set out in an ordinance of 1999 which was applicable until 2009, provided that individuals who had been sentenced to life imprisonment in judgments which were not final had to be kept in permanently locked cells and did not have the right to take part in common activities (see paragraph 13 above). The Court then observes that the first-instance domestic court sentenced the applicants to whole life imprisonment in December 2004 and that this sentence became final in 2008. The Court finds no reason to consider that the relevant applicable ordinance was not applied in respect of the applicants as of December 2004 when they had been first sentenced to whole life imprisonment; the authorities have not asserted otherwise. Consequently, even though the applicants may have been formally detained under the “special regime” only as of 2008, their being placed in permanently locked cells and separated from the rest of the inmates in practice represented isolation of a comparable nature and degree to that applied under the “special regime”. Therefore, the Court finds that as of December 2004 the applicants have been imprisoned under similar conditions to those under the “special regime”.
37.  The Government have not sought to invoke convincing security reasons requiring the applicants’ isolation. Likewise, they have not said why it was not possible to revise their situation so as to permit adequate possibilities for human contact and meaningful activities outside the cell. While they stated that the applicants could take part in collective activities, apart from mentioning the library and the prison chapel, they did not specify what those activities were, or their frequency. The Court notes in this connection the CPT’s findings in its reports on its 2012, 2014 and 2015 visits to Burgas Prison, namely that there appeared to be little or no structurally planned intervention on the part of staff to attempt to provide appropriate mental and physical stimulation to life prisoners and that the vast majority of inmates had no access to organised out-of-cell activities and were left idle for up to 23 hours a day. It appears that this situation is to a great extent a result of the automatic application of the legal provisions regulating the applicants’ prison regime. In its recent judgment in Harakchiev and Tolumov (cited above, §§ 203-09), the Court found that such automatic isolation, even in application of the relevant statutory provisions, was incompatible with Article 3 of the Convention. It sees no reason to hold otherwise in the present case.
38.  In terms of the material conditions of the applicants’ detention, the Court notes in particular the CPT findings in respect of life prisoners in its report on its 2014 visit to Burgas Prison (see paragraph 16 above). Even accepting that the two larger individual cells with separate sanitary annexes (mentioned in the CPT report on its 2012 visit, see paragraph 14 above) referred to the cells in which the two applicants have been held, the Court observes that the CPT reports of 2012 and 2014 support the applicants’ submissions about the extremely poor hygiene and state of repair of the cells and other areas of Burgas Prison. Furthermore, the CPT found during its 2015 visit to Burgas Prison that the premises were decrepit, infested and filthy to the point of being unfit for human accommodation and that this represented a serious health risk for both inmates and staff; it concluded that the material conditions alone could be seen as amounting to inhuman and degrading treatment (see paragraph 19 above).
39.  In those circumstances, even accepting that the applicants’ allegations of inadequate medical care in prison have not been made out, the Court considers that the other aspects of the conditions of their detention and prison regime were, taken together, serious enough to qualify as inhuman and degrading treatment (see Harakchiev and Tolumov, cited above, § 213).
40.  There has therefore been a breach of Article 3 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
41.  The applicants complained that they did not have an effective domestic remedy in respect of their grievances related to the regime and conditions of their detention. They relied on Article 13 of the Convention, which provides 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.”
42.  The Government contested that argument. They submitted that the applicants had had three available domestic remedies in relation to their complaints, all of which were effective. In particular, they could have brought a claim under section 1 of the SMRDA seeking damages stemming from the conditions of detention; or they could have complained to the prison governor; or the prosecutor who supervised the execution of prison sentences.
43.  The Court notes its recent findings in the case Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, §§ 206 and 212, 27 January 2015, namely that neither a claim under the SMRDA nor a complaint to the prosecutor in charge of supervising the respective correctional facility could be considered an effective domestic remedy in respect of complaints about conditions of detention. In addition, the Court does not consider that a complaint to the prison governor could be considered an effective remedy, given that the prison authorities would not have a sufficiently independent standpoint to satisfy the requirements of Article 13 (see, on this point, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 105-06, 10 January 2012); in deciding on a complaint concerning conditions of detention for which they are responsible, they would in reality be judges in their own cause.
44.  In view of the foregoing, the Court finds that the applicants did not have an effective domestic remedy in respect of their complaints about the conditions of their detention, in breach of Article 13 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.  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.”
Section 5.01	A.  Damage
46.  The applicants claimed 23,000 euros (EUR) each in respect of non‑pecuniary damage, EUR 20,000 of which in relation to the inadequate conditions of their detention and EUR 3,000 related to the absence of an effective domestic remedy in that respect.
47.  The Government submitted that the requested amounts for non‑pecuniary damage were excessive. They referred to earlier cases before the Court in which it had found a violation of Article 3 of the Convention as a result of poor conditions of detention and had awarded applicants between EUR 1,500 and EUR 2,500 for non-pecuniary damage.
48.  The Court finds that the suffering caused to a person detained in conditions that are so poor as to amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention cannot be made good by a mere finding of a violation; it calls for an award of compensation. The amount of time spent by the person concerned in these conditions is the most important factor for assessing the extent of this damage (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 172, 10 January 2012, and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 105, 8 January 2013). By contrast, the finding of a violation may in itself constitute sufficient just satisfaction for a breach of Article 13 of the Convention flowing from the lack of effective domestic remedies in respect of such conditions (see Ananyev and Others, cited above, § 173).
49.  The Court considers that the applicants must have sustained non‑pecuniary damage as a result of the violation of their rights under Articles 3 and 13. The breach found concerned their detention for a period of just over 10 years (see paragraph 36 above). Ruling in equity, as required under Article 41 of the Convention, and taking particular account of the amount of time spent by the applicants in inadequate conditions, the Court awards each of the applicants EUR 6,000, plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage.
Section 5.02	B.  Costs and expenses
50.  The applicants also claimed EUR 3,000 for the legal fees incurred before the Court and, more specifically, EUR 1,000 for Mr Dimitrov and EUR 2,000 for Mr Ribov.
51.  The Government considered that these claims were excessively high and also unjustified, given that no itemised bills were presented.
52.  According to the Court’s case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum (see The Sunday Times v. the United Kingdom (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). In the present case, having regard to the materials in its possession and these considerations, the Court finds it reasonable to award the applicants jointly EUR 1,000 in legal fees, plus any tax that may be chargeable to them, to be paid directly to their legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva.
Section 5.03	C.  Default interest
53.  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 application admissible;

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
(a)  that the respondent State is to pay each of 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 Bulgarian levs at the rate applicable at the date of settlement:
(i)  EUR 6,000 (six thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one thousand euros) jointly to the applicants, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly to their legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;
(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;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 17 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Guido Raimondi
	Registrar	President