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FIFTH SECTION

CASE OF ILIEV AND OTHERS v. BULGARIA

(Applications nos. 4473/02 and 34138/04)

JUDGMENT

STRASBOURG

10 February 2011

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 Iliev and Others v. Bulgaria,

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

Peer Lorenzen, President,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva,
Angelika Nußberger,
Julia Laffranque, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 18 January 2011,

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

PROCEDURE

The case originated in two applications (nos. 4473/02 and 34138/04) 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 three Bulgarian nationals, Mr Krasimir Nikolov Iliev, Mr Mihail Tiholov Ekimdzhiev and Ms Katina Vladimirova Boncheva (“the applicants”), on 7 January 2002 and 10 September 2004.

Mr Iliev (the “first applicant”) is represented before the Court by Mr M. Ekimdzhiev (the “second applicant”) and Ms K. Boncheva (the “third applicant”), lawyers practising in Plovdiv. The second and third applicants are represented before the Court by Ms S. Stefanova, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

The first applicant complained, in particular, that the conditions of his detention in Sofia and Varna prisons had violated Article 3 of the Convention and that he had not had an effective remedy in connection thereto, as required by Article 13. The applicants further alleged that the correspondence exchanged between them had been monitored by the prison administration in violation of Article 8 and that they had had no effective remedies in connection thereto, as required by Article 13. They alleged that this had also hindered the effective exercise of the first applicant’s right of individual petition under Article 34 of the Convention and had discriminated against the second and the third applicant in violation of Article 14 because the domestic law differentiated between correspondence with legal representatives in domestic proceedings and correspondence with other lawyers.

By a decision of 6 November 2007 the Court decided to join the applications, communicated the above-mentioned complaints to the Government and declared the remainder of the applications inadmissible. Under the provisions of Article 29 of the Convention, it decided to rule on the admissibility and merits of the communicated complaints at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant was born in 1964 and is currently serving several sentences in Varna prison. The second and the third applicants were born in 1964 and 1979 respectively and live in Plovdiv.

A. The conditions of detention of the first applicant

1. The first applicant’s convictions

In three sets of criminal proceedings, which ended in October 1995, January 2002 and February 2002 respectively, the applicant was found guilty of robbery, fraud and forgery and was sentenced to a term of imprisonment.

2. Periods of detention of the first applicant

The first applicant has been detained in Varna prison since 15 March 1999. On a number of occasions − in particular from 4 to 25 October 2002; 18 to 25 November 2002; 24 March to 2 April 2003; 21 April to 1 May 2003; 19 June to 3 July 2003; and 11 September to 17 October 2003, he was transferred to Sofia prison in order to appear in court at criminal proceedings against him.

3. The first applicant’s detention in Varna prison

According to the first applicant, during his detention in Varna prison he was held in a cell situated on the third floor, which measured four by seven metres and accommodated seven other individuals. The cell was dirty and the plaster was peeling off the walls. The available natural light was insufficient as was the artificial lighting provided by the two 75W bulbs. There were no sanitary facilities in the cell and access to such was provided only during the day from 6 a.m. to 9 p.m. However, there were only two sinks and two cubicles for over eighty prisoners. During the night, the prisoners had to use a bucket for their sanitary needs in front of everyone else in the cell. There was no hot water and bathing was provided once a fortnight or, sometimes, once every twenty to twenty-five days.

Separately, the first applicant submitted that every time he was transferred to court he was placed in another cell, measuring two by three metres, with all the other prisoners who were being transferred on that day (usually fifteen to twenty-five persons). They were kept there from 6:30 a.m. to 9:30 a.m. and were not normally provided with access to a toilet. During the winter it was very cold in the cell, while in summer it was extremely hot and stuffy due to the number of people there.

4. The first applicant’s detention in Sofia prison

According to the first applicant, on the occasions he was transferred to Sofia prison (see paragraph 7 above) he was held in cell no. 1 of group no. 1, which measured four by nine metres and accommodated fourteen people. Fresh air and sunlight were insufficient as there was only a window measuring 40 by 60 centimetres which was covered with a hole-ridden metal sheet. The artificial light was also insufficient. The cell was dirty, stinking and damp and the plaster was peeling off the walls. The mattresses and covers were old, worn and dirty. There were no sanitary facilities in the cell and access to such was provided twice a day for a short period of time. The rest of the time the prisoners had to use a bucket for their sanitary needs in front of everyone else in the cell. The first applicant was not allowed to bathe or wash his clothes. In addition, the cell was flooded from 15 September to 1 October 2003, so he had to sleep on wet bed linen and was ill as a result.

5. Civil actions for damages brought by the first applicant

(a) The first set of proceedings

On 30 October 2003 the first applicant brought an action against the Ministry of Justice, claiming a total of 1,000 Bulgarian levs (BGN, 511 euros (EUR)) in non-pecuniary damages stemming from the conditions in which he had been detained at Sofia prison during the periods specified in paragraph 7 above. In a judgment of 4 May 2005 the Sofia District Court partly granted the claim. It found that the first applicant had been confined in a cell with insufficient lighting and ventilation, without a toilet and running water in the cell itself, with dirty and damp bedding; prisoners had been allowed to go to the toilet two or three times a day for five to ten minutes and were forced to use a plastic bucket to relieve their needs in the meantime; prisoners temporarily transferred to Sofia prison, such as the first applicant, had not been allowed to bathe. Furthermore, in September 2003, the first applicant’s cell had been flooded and all the mattresses and bedding had become wet. The prison administration had not replaced them and the first applicant had become sick. He had asked to be examined by a doctor but his request had been disregarded. The Sofia District Court concluded that the conditions in which the first applicant had been detained were exceptionally harsh and humiliating. However, noting that the first applicant had been detained in Sofia prison for only short periods of time, it found that BGN 300 (EUR 153) was sufficient compensation for the inconvenience sustained by him. It further awarded BGN 150 (EUR 77) in connection with the failure of the prison administration to provide the first applicant with medical treatment. It also ordered the first applicant to pay a state fee of BGN 22 (EUR 11) in respect of the dismissed part of his claim.

Following appeals by both parties, in a final judgment of 27 February 2006 the Sofia City Court upheld the judgment of 4 May 2005 with similar reasoning. A writ of execution was issued to the first applicant on 6 April 2006.

(b) The second set of proceedings

On 27 September 2005 the first applicant brought an action against the Ministry of Justice, claiming a total of BGN 2,700 (EUR 1,380) in non-pecuniary damages stemming from the conditions in which he had been detained at Varna prison in the period from 6 June 2002 to 26 September 2005 and for the alleged unlawful monitoring of his correspondence with his lawyers.

At a hearing on 20 January 2006 the Varna District Court questioned an inspector from Varna prison in charge of the social and educational activities. He stated, inter alia, that all incoming correspondence was opened, and sometimes read, by the prison administration in spite of the name of the sender appearing on the envelope. This was done because the administration could not be sure about the real identity of the sender.

The first applicant’s claim was partly granted by the District Court on 15 August 2006, and upon appeal, by the Varna Regional Court on 24 April 2007. The courts found that the first applicant’s cell had measured 3.22 metres by 4.30 metres, had been overcrowded and in a very poor state of repair, with insufficient lighting and ventilation; there had been no running water or toilet in the cell and during the night prisoners had been forced to use a plastic bucket to relieve their needs; there had been no hot water in the common sanitary premises and the first applicant had had to wash himself and his clothes with cold water and dry them in the cell; prisoners had been allowed to bathe only once a fortnight or sometimes once in twenty-five days and the food had been of poor quality. Furthermore, every time the first applicant had been transferred to court he was placed in another cell, measuring 2.37 metres by 1.90 metres, with all the other prisoners waiting to be transferred on that day − usually fifteen to twenty-five persons. They had been kept standing there for hours with no access to a toilet. During the winter it had been cold in the cell while in summer it had been hot and stuffy. As to the monitoring of the first applicant’s correspondence, the courts established that all incoming mail had indeed been monitored by the prison administration. The courts then made a separate analysis of each complaint by the first applicant and found that certain of the conditions complained of, such as the limited access to a toilet and running water, the use of a bucket, the low quality of the food, the poor personal hygiene and the conditions in the special cell for prisoners awaiting transfer, had been humiliating or even dangerous for the first applicant. They awarded him BGN 1,400 (EUR 716) in non-pecuniary damages. In respect of the remaining complaints, the courts, holding that the first applicant had failed to prove that he had sustained any mental anguish or suffering, made no award. As regards the monitoring of the first applicant’s incoming correspondence, the courts found that this was justified for verifying the identity of the sender. They ordered the first applicant to pay BGN 208.80 (EUR 107) in state fees in respect of the dismissed part of the claim.

(c) Subsequent actions

On an unknown date, the first applicant brought two more actions against the Ministry of Justice in connection with the conditions in which he had been detained at Varna prison in subsequent periods: from 27 September 2005 to 14 December 2006 and from 15 December 2006 to 23 September 2007. According to the latest information submitted by the first applicant, the cases are still pending.

B. The monitoring of the applicants’ correspondence

On 11 November 2003 the first applicant retained the second and third applicants to be his legal representatives before the Court in the context of application no. 4473/02. Their legal practice is situated in Plovdiv, so the primary means of communication between the applicants was through written letters sent by ordinary mail.

On 11 March 2004 the first applicant sent a letter to the second and third applicants. Upon receiving it, the latter established that the letter had been opened, had been dated and stamped with a reference number by the prison authorities and had then been placed in a new envelope with an accompanying letter from the warden of Varna prison, with the same reference number, which stated the following on a pre-printed form:

“Attached, we send you the request from the prisoner KRASIMIR NIKOLOV ILIEV as appropriate”.

The letters of the first applicant of 18 May, 8 June, 16 June, 23 July and 10 August 2004 were processed in the same manner and were each packaged in two envelopes. The procedure followed in such cases involved the first applicant placing the letter he wanted to mail inside the first envelope and delivering it to the prison authorities. Upon receipt, the prison authorities assigned the letter a reference number, dated and stamped it with the seal of the Ministry of the Interior, and allegedly copied it. They then placed the first envelope into a second, larger envelope which was sealed and mailed to the second and third applicants.

A letter from the second and third applicants, dated 7 June 2004, was received by the first applicant opened, dated and stamped with the seal of the Ministry of the Interior, assigned a reference number and with a handwritten note indicating that it was “For Krasimir Nikolov Iliev”. In reference to this letter, the first applicant informed his lawyers in his letter of 16 June 2004 as follows:

“... Please have in mind that your letters are being opened here in my absence and probably photocopied, as it happened with the last one. ...”

In his subsequent letter to his lawyers of 23 July 2004 the first applicant noted the effect of the above procedures on their communications as follows:

“... On the other hand, that which I must comment on and share with you as information, I cannot write because the letters are being read and probably copied. ...”

In his letter of 10 August 2004 the first applicant stated the following:

“... Your letters to me are [definitely] being opened and monitored before they are delivered to me, [similar to] my [letters] to you [which] are checked and then sealed. Proof of this is the seal [and] reference number on your letter... But the administration of the prison does not deny that it monitors my correspondence with you (similar to the opening of letters coming from the Court). ...”.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Execution of sentences

Pursuant to Article 36 § 2 of the Criminal Code, punishments cannot have as their aim “causing physical suffering or degrading human dignity”. An identical prohibition was contained in section 2(2) of the Enforcement of Sentences Act of 1969 (the “ESA”).

On 1 June 2009 the ESA was superseded by the new Enforcement of Sentences and Detention Orders Act (the “ESDOA”). Pursuant to section 3 (1) of the ESDOA, prisoners may not be subjected to torture, cruel or inhuman treatment. Paragraph 2 of the same provision defines torture, cruel or inhuman treatment as intentional acts or failures of prison employees or of any third parties incited or facilitated, actively or passively, by prison employees, causing (1) strong physical pain or suffering, save in cases of use of force, arms or other devices in compliance with the ESDOA; (2) intentional placement in unfavourable conditions of detention, such as insufficient space, food, clothing, heating, lighting, ventilation, medical services, or conditions for exercise, continued isolation without human contracts or other culpable acts or failures which could affect prisoners’ health; or (3) degrading treatment debasing human dignity or forcing prisoners to do or suffer acts against their will or arising feelings of fear, defencelessness or inferiority.

B. Prisoners’ correspondence

1. Constitution

Articles 30 and 34 of the 1991 Constitution read, as relevant:

Article 30 § 5

“Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.”

Article 34

“1. The freedom and secret of correspondence and other communications shall be inviolable.

2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.”

2. Attorneys’ Act

The Attorneys’ Act of 1991 provided, inter alia, that the correspondence between an attorney and his client is confidential and should not be subject to control (section 18 (2)).

The new Attorneys’ Act of 2004 provides, inter alia, that the correspondence between an attorney and his client should not be reviewed, copied, controlled or seized (section 33(2)).

3. Enforcement of Sentences Act

The ESA provided, inter alia, that prisoners have the right to receive and send letters within the quotas allowed corresponding to their regime of detention and that the letters are subject to monitoring by the prison administration (section 33(1)(c)).

Section 33(2) of the ESA, in force until 23 November 2004, provided that correspondence with defence attorneys in trials before domestic courts was excluded from those quotas. The Regulation for the Implementing of the ESA provided that prisoners were entitled to unlimited correspondence (section 37).

In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по конституционно дело № 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court declared unconstitutional section 132d(3) of the ESA, which had almost identical wording as the one of section 33(1)(c) but concerned accused detainees. Since the subject-matter of the case was limited to the former provision, section 33(1)(c) was not reviewed for constitutionality.

Pursuant to section 75 of the Regulation for the Implementation of the ESDOA of 2009, prisoners are entitled to unlimited correspondence, which can be monitored for the purposes of crime prevention. Envelopes have to be sealed and opened in the presence of a staff member, to make sure that they do not contain prohibited items. If there is a reasonable suspicion that the content of a letter could lead to a serious crime being committed or prevent the discovery of such a crime, the letter should not be dispatched and the public prosecutor should be informed.

C. Relevant provisions regarding State liability for damages

The relevant domestic law and practice concerning the State liability for damages has been summarised in the Court’s judgment in the case of Slavcho Kostov v. Bulgaria (no. 28674/03, § 19-22, 27 November 2008).

III. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)

The CPT visited Bulgaria in 1995, 1999, 2002, 2003, 2006 and 2008. All but the most recent report of its visits have since been made public.

Varna prison has never been visited by the CPT.

Sofia prison was visited in 2006 and 2008. A summary of the relevant findings and observations of the CPT in the report on its 2006 visit is contained in the Court’s judgment in the case of Stoyan Dimitrov v. Bulgaria (no. 36275/02, § 55, 22 October 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The first applicant complained of the allegedly inhuman or degrading conditions of detention in Varna and Sofia prisons. He relied on Article 3 of the Convention, which reads as follows.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

1. The Government

The Government noted that the first applicant had brought several actions under the State and Municipalities Responsibility for Damage Act (“the SMRDA”) but had failed to inform the Court of their existence and outcome. They also observed that an action under the SMRDA represented a real and effective remedy in cases of poor conditions of detention and cited a number of court judgments in which domestic courts had awarded damages in connection with such claims. Accordingly, they claimed that the first applicant had failed to exhaust the available domestic remedies. On the basis of these submissions they may also be understood as questioning in substance the first applicant’s victim status. Furthermore, the Government were of the view that the suffering inflicted on the first applicant had not reached the minimum level of severity required under Article 3 of the Convention. They relied on a report of 14 March 2008 of the Execution of Sentences Directorate of the Ministry of Justice, which stated that the sanitary conditions in the first applicant’s cell in Varna prison had improved following various renovations, without specifying in which year these had been made, and that the first applicant had been ensured access to fresh air and natural light as well as to a toilet and running water during the day. It also stated, without elaborating further, that the food had been prepared in compliance with the applicable regulations.

2. The first applicant

The first applicant contested these arguments and submitted copies of the relevant documents concerning the proceedings brought by him under the SMRDA. He argued that the conditions of his detention had amounted to inhuman and degrading treatment, and that this had also been recognised by the domestic courts. However, the compensation he had been awarded was insufficient and the proceedings did not improve his situation.

B. Admissibility

1. The conditions of detention at Sofia prison

The Court notes that the first applicant brought an action under the SMRDA, in which the domestic courts acknowledged that the conditions of his detention had been extremely harsh and humiliating. However, in view of the relatively short periods of time in which he had been detained at Sofia prison, they awarded him damages in the amount of BGN 428 (EUR 219) (see paragraphs 11-12 above).

The Court notes that the periods in which the first applicant was detained at Sofia prison did not, indeed, exceed one or two weeks, except for one period of a month. A question may therefore arise as to whether the distress and hardship suffered by him attained the minimum threshold of severity under Article 3 of the Convention. However, even assuming that Article 3 applies, the Court finds, for the reasons outlined below, that he could no longer claim to be a victim of the alleged violation concerning that period.

The question whether an applicant can claim to be a victim of an alleged violation of the Convention is relevant at all stages of the proceedings under the Convention (see, among other authorities, Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III). That question entails on the part of the Court an ex post facto examination of the applicant’s situation. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a victim, unless the national authorities have acknowledged, and then afforded adequate redress for, the breach of the Convention (see, for example, Ciorap v. Moldova (no. 2), no. 7481/06, § 18, 20 July 2010). In the instant case, the Court notes that the first applicant spent only a few brief spells in Sofia prison and is no longer detained there. Compensation can thus be regarded as adequate redress for the conditions in which he had been detained there (see paragraph 51 below).

The Court further notes that the conditions of detention examined by the domestic courts were pertinent to the complaints under Article 3 raised before the Court. Bearing in mind that the domestic courts assessed all relevant issues concerning the conditions of the first applicant’s detention, such as their duration and severity as well as their cumulative effects on him (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 II), the Court is satisfied that the domestic courts did acknowledge the violation. As to the amount of the non-pecuniary damages awarded, the Court reiterates that compensation which is lower than that awarded by the Court may nevertheless be considered reasonable, provided that the relevant decision of the domestic courts is consonant with the legal tradition and standard of living in the country concerned and is speedy, reasoned and executed quickly (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 189 and 206, ECHR 2006 V, and Dubjakova v. Slovakia (dec.), no. 67299/01, 19 October 2004).

Taking account of all the material in its possession, including the promptness of the judgments and the award made by domestic courts in the present case, the Court considers that the sum accorded to the first applicant cannot be considered unreasonable. The Court is thus of the view that the alleged violation was adequately remedied at the national level.

It follows that this complaint must be rejected in accordance with Article 35 § 3 (a) of the Convention.

2. The conditions of detention at Varna prison

The Court notes that the first applicant brought an action under the SMRDA for the period from 6 June 2002 to 26 September 2005, which resulted in damages being awarded (see paragraphs 13-15 above). A question may therefore arise as to whether the first applicant can still be considered a victim of the alleged violation of Article 3 concerning that period.

(a) Victim status

On the basis of developments in the Bulgarian courts’ case-law since 2003, the Court has accepted that a claim under section 1 of the SMRDA is in principle an effective remedy for poor conditions of detention (see Hristov v. Bulgaria (dec.), no. 36794/03, 18 March 2008; Kirilov v. Bulgaria, no. 15158/02, §§ 43-48, 22 May 2008; Shishmanov v. Bulgaria, no 37449/02, §§ 58-62, 8 January 2009; Titovi v. Bulgaria, no. 3475/03, § 34, 25 June 2009; Simeonov v. Bulgaria, no. 30122/03, §§ 43-47, 28 January 2010; and Georgiev v. Bulgaria (dec.), no. 27241/02, 18 May 2010). The effectiveness of this remedy is also apparent from the first set of proceedings brought by the first applicant (see paragraphs 39-44 above).

However, the Court does not consider that this was so in the proceedings concerning Varna prison, for several reasons.

Firstly, it should be noted that the domestic courts made a separate analysis of each inconvenience claimed by the first applicant and granted his claims only in part, finding that he had not provided sufficient evidence of the non-pecuniary damage he had suffered. For example, they expressly established that the first applicant had been held in an overcrowded cell with poor ventilation and insufficient lighting but considered that no mental distress and suffering had been proved in this respect (see paragraph 15 above). The Court reiterates that in the case of Iovchev, cited above, § 147, it has already criticised this approach of domestic courts, remarking that it was unduly formalistic and allowed a large number of cases involving complaints of emotional distress rather than physical injury or illness to be dismissed as unsubstantiated. It does not see any reason to reach a different conclusion in the present case.

Secondly, the Court notes the fragmentation of the domestic courts’ analysis of the conditions of detention. It appears that the domestic courts regarded each element of those conditions as a separate claim needing a separate analysis as to its possible impact on the first applicant’s well-being. This approach suggests, for example, that the use of a bucket for toilet needs, the quality of food and the overcrowding of the cell should be assessed independently as possible sources of distress for the plaintiff, without any connection between them. The Court finds that this analysis did not allow the domestic courts to consider the cumulative effects of the conditions on the first applicant, as required by the Convention (see Dougoz, cited above, § 46). Such an approach could easily lead to the conclusion that none of the complaints is, in itself, serious enough to call for compensation even in cases where the general impact on the particular prisoner, had it been assessed in the light of the Convention case-law, would have been found to reach the threshold under Article 3 of the Convention.

Thirdly, there is no indication that the conditions in which the applicant is being kept in Varna prison have changed, which means that the alleged violation of Article 3 of the Convention continues uninterrupted to this day. In those circumstances, and bearing in mind that the first applicant has been detained for a long period of time and is expected to remain in prison for a considerable period in the future, compensation cannot, by itself, be regarded as adequate redress (see paragraphs 55-56 below).

Thus, despite the fact that the first applicant was awarded a certain amount in non-pecuniary damages, the Court finds that the award of compensation under the SMRDA in respect of the conditions of his detention from 6 June 2002 to 26 September 2005 failed to provide him with adequate redress and deprive him of his victim status.

The Government’s first objection must therefore be dismissed.

(b) Exhaustion of domestic remedies

The Court further notes that the first applicant did not bring an action for compensation in respect of the period from 15 March 1999 to 6 June 2002 but brought two further actions in connection with subsequent periods of detention, from 27 September 2005 to 14 December 2006 and from 15 December 2006 to 23 September 2007, respectively (see paragraph 16 above). According to the latest information submitted to the Court, these two sets of proceedings are still pending.

The Court reiterates that following the development of the domestic case-law since 2003 an action under SMRDA has become an effective compensatory remedy which must be exhausted in respect of past periods of detention (see paragraph 46 above). Accordingly, the applicant could not be reproached for not having attempted this remedy before 2003. As to the more recent periods, the domestic proceedings are still pending and nothing suggests that this remedy would not provide the first applicant an adequate redress. Nevertheless, the Court finds that a question arises as to whether a purely compensatory remedy would be sufficient to provide the first applicant adequate redress at present, seeing that he is still detained in the same conditions.

In three recent cases which concerned persons who continued to be kept in allegedly poor conditions of detention, the Court dismissed non exhaustion objections based on their failure to bring or prosecute to a conclusion claims for damages against the State. It held that since such claims could result only in awards of compensation and could not lead to an improvement of the status quo, they were not a remedy capable of providing adequate redress (see Sławomir Musiał v. Poland, no. 28300/06, §§ 77 and 82, ECHR 2009 ... (extracts); Orchowski v. Poland, no. 17885/04, §§ 108 and 109, ECHR 2009 ... (extracts); and Norbert Sikorski v. Poland, no. 17599/05, § 116, 22 October 2009). It explained that remedies for conditions of detention which are of a purely compensatory nature may be regarded as effective only in respect of applicants who have been either released or placed in conditions which meet Convention standards (see Orchowski, § 109, and Norbert Sikorski, § 116, both cited above). It fully confirmed that position in Łatak v. Poland ((dec.), no. 52070/08, §§ 77-85, 12 October 2010) and Łomiński v. Poland (dec.), §§ 68-76, no. 33502/09, 12 October 2010).

For the same reason, it can be concluded that as long as the first applicant continues to be kept in the same conditions, a claim for damages would not constitute an effective remedy by itself. The Government have neither shown that the conditions of the first applicant’s detention have improved, nor referred to any remedy that might have been available to him for to obtain their improvement.

The Government’s second objection must therefore also be dismissed.

The Court further notes that present complaint is not manifestly ill founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

C. Merits

Restatements of the general principles concerning the examination of conditions of detention under Article 3 may be found in the Court’s recent judgments in Sławomir Musiał (cited above, §§ 85-88), Orchowski (cited above, §§ 119-22) and Norbert Sikorski (cited above, §§ 126-31).

The Court observes that the period of the first applicant’s detention at Varna prison to be taken into account is from 15 March 1999 to 13 April 2009, the date of the latest information received from the parties, i.e. ten years and twenty-nine days.

In the proceedings under the SMRDA, the domestic courts found that the conditions in which the first applicant had been detained at Varna prison had been poor (see paragraph 15 above). In particular, they found that the first applicant had been held in an overcrowded cell with insufficient lighting or ventilation, without access to a toilet or running water during the night, and without regular access to the bathroom. They further found that the food had been of poor quality. The Court does not find reasons to question the foregoing findings. In view of the period of the first applicant’s detention and taking into account the cumulative effects of these conditions, it considers that the distress and hardship endured by him exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 (see Slavcho Kostov, cited above, § 54).

There has therefore been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

The first applicant complained that he had not had effective remedies in respect of the conditions of his detention. He relied on Article 13 of the Convention, which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

Apart from their objection concerning the exhaustion of the domestic remedies (see paragraph 37 above), the Government did not put forward any additional arguments under Article 13.

The first applicant pointed out that he had used the available remedy, namely a claim under the SMRDA. However, referring to the Court’s judgment in the case of Iovchev v. Bulgaria (no. 41211/98, 2 February 2006), he considered that the domestic courts’ requirement of separate proof for the sustained non-pecuniary damage, regardless of the fact that they had found the living conditions in the prison to have been degrading, had deprived this remedy of the effectiveness it may have had in principle. Furthermore, the first applicant argued that the compensation he had been awarded was too low and that the actions brought by him under the SMRDA had not improved the conditions in which he was detained.

B. The Court’s assessment

The Court considers that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

1. In respect of Sofia prison

The Court already found that the claim that the first applicant brought under the SMRDA in respect of Sofia prison represented an effective remedy for the conditions in which he had been detained there and provided him adequate redress (see paragraphs 39-44 above).

It follows that there has been no violation of Article 13 in respect of the conditions in which he had been detained in Sofia prison.

2. In respect of Varna prison

As to Varna prison, the Court already concluded that the claim brought by the first applicant under the SMRDA failed to provide him adequate redress (see paragraphs 47-51 above). As in Iovchev (cited above, § 146), the Court considers that as a result of the domestic courts’ approach the applicant’s claim lost much of its remedial efficacy. Moreover, it could result only in an award of compensation and could not lead to an improvement of the status quo, it was, on its own, not a remedy capable of providing him with adequate redress. As already observed, remedies for conditions of detention which are of a purely compensatory nature may be regarded as effective only in respect of applicants who have been either released or placed in conditions which meet Convention standards (see Orchowski, § 109; Norbert Sikorski, § 116; Łatak, §§ 77-85; and Łomiński, §§ 68-76, all cited above). The Court notes that in their observations the Government stated that they had taken measures to improve the conditions in Varna prison, without specifying how these measures had affected prisoners’ situation (see paragraph 37 above). However, they neither argued that these measures had been taken in reply to the first applicant’s complaints nor pointed to any particular remedies available to him and capable of leading to any improvement of the conditions.

There has therefore been a violation of Article 13 of the Convention.

III. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION

The applicants complained that the prison authorities monitored the first applicant’s correspondence with his legal representatives before the Court – the second and third applicants – which amounted to a violation of the right to respect for their correspondence. They further complained that they did not have any effective domestic remedies in this respect. They relied on Articles 8 and 13 of the Convention.

Article 8 reads:

“1. Everyone has the right to respect for 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 reads:

The Government stated that unjustified monitoring of correspondence by the administration fell within the scope of the SMRDA, and argued that they had failed to exhaust the available domestic remedies.

A. Admissibility

The Court considers that the question of the effectiveness of the remedy provided for by the SMRDA, and, accordingly, of whether the applicants can be considered to have exhausted domestic remedies, as required by Article 35 § 1 of the Convention, partly relates to the merits of the applicants’ complaints under Articles 8 and 13 of the Convention. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of the exhaustion of domestic remedies should be joined to the merits of the applicants’ complaints under Articles 8 and 13.

The Court considers furthermore that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Court observes that the first applicant’s incoming and outgoing correspondence with his lawyers (the second and the third applicants) was subject to inspection under section 33(1)(c) of the ESA (see paragraphs 28 29 above). Indeed, the prison authorities confirmed that the applicants’ correspondence had been monitored (see paragraph 14 above). In these circumstances, the Court concludes that there has been an interference with the applicants’ right to respect for their correspondence (see Campbell v. the United Kingdom, 25 March 1992, § 33, Series A no. 233; and Petrov v. Bulgaria, no. 15197/02, § 39, 22 May 2008).

An interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 of Article 8 and was “necessary in a democratic society” to achieve those aims. However, the Court does not find it necessary to determine whether the interference was “in accordance with the law” as it considers that it was in breach of Article 8 of the Convention in other respects (see Petrov, cited above, § 41; Konstantin Popov v. Bulgaria, no. 15035/03, § 16, 25 June 2009; and Radkov v. Bulgaria, no. 27795/03, § 19, 22 April 2010).

Concerning the requirement that the interference be “necessary in a democratic society” for the achievement of a legitimate aim, the Court notes that at least seven letters exchanged between the first applicant and his lawyers, (the second and the third applicants), were opened and possibly read by the prison administration (see paragraphs 18-22 above). The administration’s explanation that they needed to open incoming letters and inspect them in order to verify whether they were indeed sent by the person whose name appeared on the envelope is unconvincing. It was not based on any fact or any security considerations for that matter and apparently did not concern a concrete suspicion regarding the applicants but referred to a general hypothetical possibility of abuse, which the prison administration viewed as sufficient to justify a policy of systematic control. In reality, the entirety of prisoners’ incoming and outgoing correspondence, including that with their lawyers, was subject to inspection under section 33 of the ESA. The Court reiterates that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The reading of such a letter, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the lawyer-client privilege is being abused (see Campbell, cited above, § 47-48). No such circumstances were established in the present case. The systematic monitoring of prisoners’ correspondence with their lawyers by the authorities in Bulgaria has already been found by the Court to be in breach of Article 8 (see Petrov, cited above §§ 43-45; and Bochev v. Bulgaria, no. 73481/01, §§ 94-98, 13 November 2008). The Court does not see any reason to reach a different conclusion in the present case.

Insofar as the respondent Government submitted that the applicants had had a compensatory remedy under the SMRDA for the violations which had already occurred, the Court observes that in Petrov, § 65, and Konstantin Popov, § 23, both cited above, it noted that the monitoring of the applicants’ correspondence had not resulted from one individual decision taken by the authorities but directly from the application of the relevant legislation, and concluded that there was no violation of Article 13 of the Convention because this provision did not guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority. The Court does not find reasons to reach a different conclusion in the present case. It further observes that one of the prerequisites for a successful claim under the SMRDA is establishing the wrongfulness of the conduct causing the damage. Therefore, seeing that the monitoring of the applicants’ correspondence originated in the provisions of the ESA, it appears that any such claim would have no prospects of success.

Against this background, the Court finds that the Government’s objection about non-exhaustion of domestic remedies must be dismissed and concludes that there has been a violation of Article 8 and no violation of Article 13 of the Convention.

IV. COMPLAINT UNDER ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8

The second and the third applicants complained that they had been discriminated against as a result of their status as legal representatives of the first applicant before the Court. They claimed that section 33(2) of the ESA recognised the right to confidentiality of correspondence between a prisoner and his defendant in proceedings pending before the domestic courts, but that no such right to confidentiality was afforded to legal representatives of applicants before the Court, which they considered discriminatory. They relied on Article 14 of the Convention taken in conjunction with Article 8.

Article 8 reads, as relevant:

“1. Everyone has the right to respect for 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 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government did not comment.

The Court notes that it has already established a violation of the second and the third applicants’ right to respect for their correspondence. Article 14 is therefore applicable.

It further notes that, pursuant to section 33(1) of the ESA, prisoners were entitled to send and receive letters within certain quotas, subject to monitoring. Section 33(2) of the ESA, cited by the second and third applicants, excluded correspondence with defendants in proceedings before domestic courts from those quotas but did not provide for any exception to the rule of general monitoring. The second and the third applicants did not refer to any domestic court judgments or doctrinal opinions which offer a different interpretation of that provision. Thus it does not appear that there was any difference in treatment between defence attorneys in domestic proceedings and legal representatives before the Court.

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.

V. COMPLAINT UNDER ARTICLE 34 OF THE CONVENTION

The second and the third applicants complained that the monitoring of the applicants’ correspondence amounted to a hindrance in the effective exercise of the first applicant’s right of application. They relied on Article 34 of the Convention, which reads, as relevant:

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government claimed that the authorities had not hindered in any way the submission of applications to the Court or the work of representatives in proceedings before the Court.

The Court notes that the first applicant did not himself raise this complaint before the Court. It was raised by the second and the third applicant in their application. In any event, the Court can find no evidence that the first applicant, whose application form and numerous letters arrived promptly, and who was able to communicate effectively with the Court since the introduction of his complaints, suffered any prejudice with regard to the presentation of his application or that he was in any way frustrated in the exercise of his right to submit his application.

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

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The first applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the breach of Article 3 of the Convention, stating, in particular, that he had been held in inadequate conditions of detention for a considerable period of time. Furthermore, each of the applicants claimed EUR 1,000 in respect of non-pecuniary damage suffered as a result of the breach of Article 8 of the Convention.

The Government contested this claim.

The Court considers that the first applicant must have sustained non-pecuniary damage as a result of the breaches of his rights found in the case. Taking into account all the circumstances of the case, and deciding on an equitable basis, the Court, recognising that the first applicant was awarded EUR 609 in the domestic proceedings, awards him EUR 4,000 under this head, plus any tax that may be chargeable on that amount. The Court further considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage which the second and the third applicants may have suffered.

B. Costs and expenses

The first applicant sought the reimbursement of EUR 2,450 for 35 hours of legal work by his lawyers in the proceedings before the Court, at the hourly rate of EUR 70. In support of this claim he presented a contract and a time sheet. He also claimed EUR 62 for expenses incurred by his lawyers but did not present any invoices or receipts in support of his claim. He requested that any award made by the Court under this head be made payable to his lawyers, Ms K. Boncheva and Mr M. Ekimdzhiev.

The second and the third applicants claimed EUR 15 for expenses incurred by their lawyer but did not present any invoices or receipts in support of their claim.

The Government considered that the claims were excessive.

According to the Court’s case law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, including to the fact that part of the applicants’ complaints were rejected and also to the applicants’ failure to provide all necessary documents, such as invoices or receipts for postage or office expenses, the Court finds it reasonable to award the sum of EUR 1,000 to the first applicant, plus any tax that may be chargeable to him. The sum is to be paid into the bank account of the first applicant’s representatives, Ms K. Boncheva and Mr M. Ekimdzhiev. The Court makes no award in respect of the second and the third applicants under this head.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

Decides unanimously to join to the merits the Government’s objection concerning the exhaustion of domestic remedies in respect of the complaints concerning the monitoring of the applicants’ correspondence and the lack of an effective remedy in that respect, and rejects this objection after having examined the merits;

2. Declares unanimously admissible the complaints concerning (a) the first applicant’s detention in allegedly inadequate conditions of detention at Varna Prison and the availability of an effective remedy in respect of the conditions of his detention, and (b) the alleged interference with the applicants’ correspondence by the prison administration and the availability of an effective remedy in that respect, and the remainder of the applications inadmissible;

Holds unanimously that there has been a violation of Article 3 of the Convention on account of the first applicant having been detained in inadequate conditions of detention at Varna Prison;

Holds unanimously that there has been no violation of Article 13 of the Convention in respect of the conditions of the first applicant’s detention in Sofia prison;

5. Holds unanimously that there has been a violation of Article 13 of the Convention in that the action under SMRDA for the period from 6 June 2002 to 26 September 2005 had not provided the applicant an adequate redress and in that the first applicant had not had an effective remedy to redress the continued violation under Article 3 of the Convention in respect of the conditions of his detention in Varna prison;

6. Holds unanimously that there has been a violation of Article 8 of the Convention;

Holds unanimously that there has been no violation of Article 13 of the Convention in respect of the monitoring of the applicants’ correspondence;

Holds by six votes to one that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the second and the third applicants;

9. Holds unanimously

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

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to him, in respect of non pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to him, in respect of costs and expenses, to be paid into the bank account of the first applicant’s representatives, Ms K. Boncheva and Mr M. Ekimdzhiev;

(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;

Dismisses by six votes to one the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President