European Court of Human Rights

Information Note on the Court’s case-law No. 181

January 2015

Neshkov and Others v. Bulgaria - 36925/10, 21487/12, 72893/12 et al.

Judgment 27.1.2015 [Section IV] See: [2015] ECHR 77

Article 46

Pilot judgment

General measures

Respondent State required to take general measures in respect of conditions of detention and the lack of effective domestic remedies

Article 13

Effective remedy

Lack of effective remedy in respect of conditions of detention: violation

Facts - The case concerned conditions of detention in various corrective facilities in Bulgaria. The applicants alleged a violation of Article 3 of the Convention and the first applicant (Mr Neshkov) also alleged a violation of Article 13 on account of the lack of an effective domestic remedy.

The Court had previously examined conditions of detention in Bulgaria under Article 3 in more than 20 other cases. For its part, the Committee of Ministers of the Council of Europe had repeatedly emphasised the need for additional measures to bring conditions of detention in Bulgarian correctional facilities in line with Convention standards. In 2008, having been satisfied by information submitted by the Government that in 2003 the Bulgarian courts had started to award compensation to persons kept in poor conditions of detention under a general statutory rule governing the liability of the authorities for unlawful acts or omissions, the Court started declaring inadmissible such complaints brought by persons who no longer remained in such conditions in cases where the remedy had not been exhausted. However, it did not do so in respect of persons who continued to be held in inadequate conditions, on the basis that in such circumstances an award of compensation is insufficient.

Law - Article 13

(a)  Compensatory remedy - The Court had previously accepted that proceedings for compensation under section 1 of the State and Municipalities Liability for Damage Act 1988 could be regarded as an effective domestic remedy in respect of complaints under Article 3 of the Convention relating to conditions of detention in cases where the alleged breach had come to an end. However, in view of the manner in which the Bulgarian courts’ case-law had evolved the Court no longer considered the remedy effective. The two domestic cases brought by the first applicant highlighted a series of problems: failure to make clear the specific acts or omissions the prisoner was required to establish, an overly strict burden of proof, a tendency to assess individual aspects of the conditions of detention rather than their cumulative impact, a failure to recognise that even briefly non-compliant conditions must be presumed to cause non-pecuniary damage and the application of domestic time-limits without taking into account the continuous nature of the overall situation. The two claims for damages brought by the first applicant under section 1 of the 1988 Act could not therefore be regarded as an effective remedy.

The issues faced by the first applicant appeared representative of those met by a number of persons who had sought damages under the 1988 Act in respect of the conditions of their detention. Indeed, only about 30% of such cases had resulted in an award. The Court noted in particular that, when examining claims of this type, the domestic courts very often did not take into account the general rule proscribing inhuman and degrading treatment, but only the concrete statutory or regulatory provisions governing conditions of detention. In addition, more often than not they also failed to recognise that poor conditions of detention must be presumed to cause non-pecuniary damage to the person concerned. There was also uncertainty about the proper defendants to such claims. The remedy under section 1 of the 1988 Act was thus not sufficiently certain and effective.

(b)  Preventive remedy - Prisoners who continued to be held in non-compliant conditions required a preventive remedy capable of rapidly bringing the ongoing violation to an end. However no such remedy existed under Bulgarian law. In particular, although in theory Articles 250 § 1, 256 and 257 of the Code of Administrative Procedure 2006 could offer injunctive relief, they did not appear to have been interpreted by the administrative courts in a way that enabled prisoners to obtain a general improvement in their conditions of confinement. In any event, injunctions were of little practical use where overcrowding was systemic and required substantive reform. Other forms of relief, such as a complaint to the prosecutor responsible for overseeing the facility or a complaint to the Ombudsman were not considered effective either.

Conclusion: violation (unanimously).

The Court also found, unanimously, a violation of Article 3 of the Convention in respect of the conditions of detention endured by four of the applicants.

Article 46

(a)  Conditions of detention - Since its first judgment concerning inhuman and degrading conditions in Bulgarian detention facilities (Iorgov v. Bulgaria, 40653/98, 11 March 2004, Information Note 62), the Court had found a breach of Article 3 of the Convention on account of poor conditions of detention in such facilities in 25 cases. While the breaches related to various facilities, the underlying facts in each case were very similar, the most recurring issues being a lack of sufficient living space, unjustified restrictions on access to natural light and air, poor hygiene, and a lack of privacy and personal dignity when using sanitary facilities. The breaches were therefore not prompted by isolated incidents but originated in a widespread problem resulting from a malfunctioning of the Bulgarian penitentiary system. The Court decided to apply the pilot-judgment procedure.

The systemic problem regarding the conditions of detention was of considerable magnitude and complexity and stemmed from a plethora of factors. There were two issues Bulgaria needed to tackle. The first concerned overcrowding for which there were a number of potential solutions including the construction of new facilities, better allocation of prisoners in existing facilities, a reduction in the number of persons serving custodial sentences, reduced recourse to imprisonment, shorter custodial sentences and alternatives to custody. The second concerned the material conditions of detention and hygiene. Despite being aware of the problem in reports for years the authorities but had not done enough to tackle it. At this stage, the only solution was major renovation works or the replacement of existing buildings with new ones. This needed to be done without any delay.

(b)  Domestic remedies - By contrast to the position regarding the conditions of detention, the systemic problem underlying the breach of Article 13 appeared to be due chiefly to the legislation and its interpretation by the courts. Specific changes in the Bulgarian legal system were thus required in the form of (i) a preventive remedy capable of providing swift redress to prisoners held in non-compliant conditions and (ii) a compensatory remedy.

(i)  Preventive remedy - The best way of putting a preventive remedy into place would be to set up a special authority to supervise correctional facilities. A special authority normally produces speedier results than would be the case with ordinary judicial proceedings. To be considered an effective remedy, the authority should have the power to monitor breaches of prisoners’ rights, be independent from the authorities in charge of the penitentiary system, have the power and duty to investigate complaints with the participation of the complainant, and be capable of rendering binding and enforceable decisions. Other options would be to set up a procedure before existing authorities such as public prosecutors (provided appropriate safeguards were in place such as the right for the prisoner to make submissions and a duty on the prosecutor to deliver a binding and enforceable decision without delay) or to mould existing forms of injunctive relief to accommodate grievances relating to conditions of detention.

(ii)  Compensatory remedy - Even though the Convention was in principle regarded as directly applicable in Bulgaria and part of domestic law, there was no general remedy allowing protection at domestic level of the rights and freedoms enshrined in domestic law. One solution would be a general remedy allowing those complaining of Convention breaches to seek the vindication of their rights in a procedure specially designed for that purpose. Another option would be to put in place special rules laying down in detail the manner in which claims concerning conditions of detention are examined and determined. Redress could take the form of monetary compensation or, for those still in custody, a proportionate reduction in sentence. Any remedy would have to operate retrospectively.

The required preventive and compensatory remedies should be made available within eighteen months after the Court’s judgment became final. Other similar pending applications would not be adjourned in the meantime.

(c)  Individual measures - The fourth applicant (Mr Zlatev), who appeared to be particularly vulnerable and was still held in particularly harsh conditions should be transferred to another correctional facility urgently if he so wished.

Article 41: Awards ranging from EUR 6,750 to EUR 11,625 in respect of non-pecuniary damage (certain claims were reduced or dismissed for failure to comply with the applicable time-limit).

(See also Ananyev and Others v. Russia, 42525/07, 10 January 2012, Information Note 148; and see generally, Factsheets on Detention conditions and treatment of prisoners and on Pilot judgments)

 

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