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FIFTH
SECTION
CASE OF RADKOV v. BULGARIA
(Application
no. 27795/03)
JUDGMENT
STRASBOURG
22 April
2010
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 Radkov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27795/03) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Plamen Todorov Radkov
(“the applicant”), on 19 August 2003.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Mrs R. Nikolova, of the Ministry of Justice.
- The
applicant alleged, in particular, that his correspondence received in
prison had been monitored by the prison administration.
- On
3 February 2009 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaint concerning the monitoring of the applicant's correspondence
in prison. It also decided to examine the merits of the remainder of
the application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is at present detained in Bobov dol
Prison.
- Criminal
proceedings for murder were opened against him on 11 January
2000. They continued until 27 November 2003 when he was convicted and
sentenced to life imprisonment by means of a
final judgment of the Supreme Court of Cassation.
- From
8 March 2000 to 5 November 2008 the applicant was detained in
Lovech Prison, initially being held there in pre-trial detention and
after 27 November 2003 as a prisoner serving a life imprisonment
sentence. On 5 November 2008 he was transferred to Bobov dol
Prison.
- On
4 August 2003 the applicant received a letter dated 1 August
2003 from the lawyer representing him in the criminal proceedings.
The letter concerned the possible outcome of the proceedings and the
strategy of the defence. The envelope had been opened and bore the
signature of an official of the prison administration.
- After
the conclusion of the domestic proceedings, between 12 January and 13
April 2004 the applicant received two more letters from the same
lawyer and two letters from another lawyer. All four envelopes had
been opened and bore the signatures of officials of the prison
administration.
- On
10 December 2003 the applicant received a letter from the Registry of
the Court, dated 2 December 2003 and concerning his application in
the present case. The envelope had been opened and bore the signature
of an official of the prison administration.
- On
5 February and 16 April 2004 the applicant complained to the prison
administration of the practice of opening and reading his letters. In
reply, he was informed that the monitoring of detainees' and
prisoners' correspondence was envisaged by section 33 of the
Execution of Punishments Act, that it concerned all inmates and that
it pursued “security-related” and “educational”
aims.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the correspondence of
detainees and prisoners have been summarised in the Court's judgment
in the case of Petrov v. Bulgaria
(no. 15197/02, §§ 17-18, 20-23 and 25, 22 May 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Articles 6 § 3 (c) and 8 of the
Convention that letters from his lawyers and from the Registry of the
Court had been opened and read by the administration of Lovech
Prison. The Court is of the view that the complaint falls to be
examined solely under Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government acknowledged that the applicant's correspondence had been
routinely checked. However, they argued that it was not established
whether the letters had been merely opened or also read. Furthermore,
they considered that the monitoring of the applicant's correspondence
had been necessary for reasons of security and for the prevention of
crime.
- The
applicant contested these arguments.
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Court notes that at least five letters sent to the applicant by his
lawyers were opened and possibly read by the Lovech Prison
administration (see paragraphs 8-9 above). Furthermore, a letter sent
by the Registry of the Court was also opened and possibly read (see
paragraph 10 above). In fact, the systematic opening of inmates'
letters was acknowledged by the Lovech Prison administration and by
the Government in their observations in the present case (see
paragraphs 11 and 14 above). In these circumstances the Court finds
that there was an interference with the applicant's right to respect
for his correspondence guaranteed under Article 8.
- Such
interference will give 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 aims as defined in paragraph 2 and was
“necessary in a democratic society” to achieve those
aims.
- 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, and
Konstantin Popov v. Bulgaria,
no. 15035/03, § 16, 25 June 2009).
- Concerning
the requirement that the interference be “necessary in a
democratic society” for the achievement of a legitimate aim,
the Court notes that correspondence with lawyers, whether it concerns
actual judicial proceedings or is of a general nature, is in
principle privileged under Article 8. The routine scrutiny of
such correspondence cannot be seen as being in keeping with the
principles of confidentiality and professional privilege attaching to
relations between a lawyer and his client (see Campbell v.
the United Kingdom, 25 March 1992, §§ 47-8, Series A
no. 233, and Petrov, cited above, § 43).
- However,
in the case at hand the Lovech Prison administration systematically
opened and checked detainees' and prisoners' correspondence,
including that with their lawyers (see paragraph 17 above), without
seeking to justify the interference by referring to specific reasons
or suspicions. Nor did it attempt to justify the opening and the
possible reading of the letters from the applicant's lawyers in the
particular circumstances of his case. The Court thus concludes that
the applicant's correspondence with his lawyers was subject to
routine scrutiny, which, as noted above (see paragraph 20), cannot
have been in keeping with the principles of confidentiality and
professional privilege attaching to relations between a lawyer and
his client.
- Furthermore,
the Court notes that the present case also concerns the opening and
possible reading of a letter sent to the applicant by its Registry
(see paragraph 10 above). The Court considers that even if the prison
authorities might have pursued a legitimate aim in opening that
letter (see, for example, Campbell, cited above, § 60),
they should have provided for suitable guarantees preventing its
reading, like, for example, opening it in the applicant's presence.
However, no such guarantees were provided for. Moreover, it does not
appear that the prison administration had any concrete suspicions
justifying the opening of the Court's letter since, as the Government
acknowledged (see paragraph 14 above), the applicant's correspondence
was being checked on a routine basis.
- It
follows from the above that in the present case there has been a
breach of the applicant's right to respect for his correspondence, as
guaranteed by Article 8 of the Convention.
II. 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
applicant made no claim in respect of pecuniary damage. He claimed
2,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government considered this claim to be excessive.
- The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the breach of his right to respect for his
correspondence. Taking into account all the circumstances of the
case, the Court awards him EUR 1,500 under this head, plus any tax
that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 200 for costs and expenses.
- The
Government urged the Court to dismiss this claim, pointing out that
it was not supported by any documents.
- 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. To this end, Rule 60 §§ 2 and
3 of the Rules of Court stipulate that applicants must enclose with
their claims for just satisfaction “any relevant supporting
documents”, failing which the Court “may reject the
claims in whole or in part”. In the present case, noting that
the applicant has failed to produce any documents in support of his
claim, the Court does not make any award 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 UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Bulgarian levs
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
