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FIFTH
SECTION
CASE OF RADKOV v. BULGARIA (no. 2)
(Application
no. 18382/05)
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 Radkov v. Bulgaria
(no. 2),
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 an application (no. 18382/05) 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 26 April 2005.
- The
applicant was not legally represented. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
- The
applicant alleged, in particular, that the conditions in Lovech
Prison where he had been detained violated Article 3 of the
Convention, and that he had had no effective remedies in that
respect, as required under Article 13 of the Convention.
- On
10 March 2009 the Court declared the application partly inadmissible
and decided to give the Government notice of the complaints
concerning the conditions of detention in Lovech Prison and the lack
of effective remedies in that respect. It also decided to examine the
merits of the remainder of the application at the same time as its
admissibility (Article 29 § 3 of the Convention, as in
force before 1 June 2010).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is currently detained in Bobov Dol
Prison.
A. The applicant’s detention
- On
26 May 1999 the applicant was arrested on suspicion of murder
and placed in the detention centre at the Ruse Investigation
Service. On 8 March 2000 he was transferred to Lovech Prison.
Initially, he was detained in the prison as an accused, pending the
outcome of his trial. After 27 November 2003, when he was convicted
and sentenced to life imprisonment, he remained there to serve his
sentence. On 5 November 2008 he was transferred to Bobov Dol Prison.
- After
27 November 2003 the applicant was placed under a “special
regime” (see paragraphs 22-23 below).
- While
in Lovech Prison, for an unspecified initial period of time the
applicant was in an individual cell measuring four square metres.
Subsequently he was placed in a cell measuring 12.6 square metres
which he shared with other inmates. None of those cells was equipped
with toilet facilities, sinks or running water, and the inmates were
allowed to go to the toilet only three times a day, for ten minutes
each time. Outside those periods they had to relieve themselves in a
plastic bucket which they could empty and clean when going to the
toilet.
- According
to the applicant, the food served was insufficient and not of
satisfactory quality.
- Neither
the Government nor the applicant submitted information about the
conditions of the applicant’s detention in Bobov Dol Prison.
- On
27 April 2004 the applicant complained to the prison administration
of the practice of using buckets and of the quality of the food. It
is unclear whether he received a reply. After his transfer to Bobov
Dol Prison the complaint was destroyed. The Court has not been
informed of the administration’s reply.
B. The applicant’s claim for damages against the
authorities
- On
27 October 2004 the applicant brought a claim before the Lovech
District Court against the Ministry of Justice. He sought 3,000
Bulgarian levs (BGN) under section 1 of a 1988 Act governing State
liability for damage (see paragraph 25 below), alleging that he had
suffered distress and humiliation as a result of the poor conditions
of his detention. The claim concerned the period from 8 March 2000 to
27 October 2004.
- The
judges who dealt with the case visited the prison and inspected the
cells in which the applicant had been kept. They heard witnesses and
gathered other evidence.
- In
a judgment of 8 July 2005 the Lovech District Court partly allowed
the claim. It found that by failing to ensure access to toilet
facilities and running water the authorities had failed to comply
with their obligation to ensure conditions of detention compatible
with human dignity. It held:
“There is no doubt that having to use a bucket for
toilet needs, in a cell measuring around ten square metres, without
sufficient ventilation, in the presence of others, diminishes human
dignity, falls foul of all sorts of criteria of hygiene [and] poses a
serious risk to the inmates’ health. The conditions, in which
[the applicant was] placed, amounted to degrading treatment ...”
- In
the court’s opinion, that situation was incompatible with
Article 3 of the Convention and several provisions of domestic law.
In reaching that conclusion the court had regard to this Court’s
case-law and the recommendations of the Committee for the Prevention
of Torture concerning the use of buckets in the cells (see paragraph
27 below).
- The
court went on to examine the applicant’s allegation that the
food had been insufficient and of poor quality. However, it found
that this was unsubstantiated, as the food served to the inmates was
prepared in strict compliance with the portions and requirements
adopted by the Ministry of Health.
- In
assessing the amount of damages to be awarded to the applicant, the
court said:
“The non-pecuniary damage [in this case] amounted
to encroachment upon the identity, honour and dignity of [the
applicant, and to] daily psychological and physical discomfort when
using a bucket for sanitary needs. [The applicant] failed to
establish the extent to which that affected [him] psychologically and
caused him to suffer morally. Neither every unpleasant sensation or
feeling nor every episode of depression can give rise to an
entitlement to receive compensation for non-pecuniary damage. In view
of that, in determining the amount of compensation the court takes
into account the subjective feelings characteristic of an individual
of that age, sex and state of health, as well as [the applicant’s]
personality, and concludes that [his] psychological sphere was
affected in a way and to a degree typical for any person placed in
the same situation. There is no indication that [the applicant’s]
physical or psychological health worsened as a result of the
defendant’s unlawful failure to act.”
- The
court also emphasised that the claim concerned a long period, lasting
from 8 March 2000 to 27 October 2004. On the basis of those
considerations, it awarded the applicant BGN 250 (the equivalent of
128 euros (EUR)).
- As
it dismissed part of the claim, the court ordered the applicant to
pay a court fee in the amount of BGN 150, which represented a
percentage of the dismissed part (see paragraph 26 below). Thus, the
sum that the applicant was to receive came to BGN 100 (the equivalent
of EUR 51).
- On
9 August 2005 the applicant appealed, claiming a higher amount in
damages.
- In
a final judgment of 6 January 2006 the Lovech Regional Court upheld
the district court’s judgment, fully agreeing with its
reasoning and saying that
“no evidence [had been] presented for any specific
damage or deterioration of [the applicant’s] state of health or
psychological well being”.
II. RELEVANT DOMESTIC LAW
A. Enforcement of sentences
- The
1969 Enforcement of Sentences Act, in force until 1 June 2009,
provided for different detention regimes for prisoners. Under section
127b, inmates who served a sentence of life imprisonment were to be
initially detained under a “special regime”, which could
later be modified into a less strict one.
- Regulation
56 of the Act’s implementing regulations, in force until
1 February 2010, specified that inmates detained under a
“special regime” were to be kept in closed premises and
under reinforced security.
- By
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 1969 Enforcement of Sentences Act.
B. State liability for damages
- Section
1(1) of the 1988 Act originally called the State Responsibility for
Damage Caused to Citizens Act, renamed on 12 July 2006 the State and
Municipalities Responsibility for Damage Act (“the 1988 Act”)
provides that the State is liable for damage caused to private or
legal persons by illegal orders, actions or omissions of government
or municipal bodies and officials acting within the scope of, or in
connection with, their administrative duties. Under section 4, the
compensation awarded should cover all pecuniary and non-pecuniary
damage which is the direct and proximate result of the illegal act of
omission.
- Under
section 10(2), as worded until May 2008, no court fees or costs were
payable by the claimant upon the bringing of a claim. However, if the
claim was eventually wholly or partly dismissed, the court was to
order the claimant to pay “the court fees and costs due”.
The courts interpreted that provision as meaning that claimants
should pay court fees calculated as a pro rata percentage of
the dismissed part of their claims. In May 2008 that provision was
superseded by a new section 9a, which provides for a flat-rate fee
for bringing a claim under the Act.
III. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”)
- The
CPT has not visited Lovech Prison. During its visits to other prisons
in Bulgaria, it noted the use of buckets by prisoners for sanitary
needs. Finding this practice “unacceptable”, it several
times recommended that it be discontinued (see, for example,
paragraphs 73 and 77 of the report on its 2006 visit to Bulgaria
(CPT/Inf (2008) 11), concerning Sofia Prison, and paragraphs 82, 87
and 118 of the report on its 2002 visit to Bulgaria (CPT/Inf (2004)
21), concerning Burgas and Pleven Prisons).
- In
the report on its 2008 visit (CPT/Inf (2010) 29) the CPT examined the
situation of prisoners serving life imprisonment in Sofia Prison and
expressed concern as to the legal provisions in force whereby such
prisoners were systematically subjected to “special regime”
for an initial period of time. It recommended that this practice be
reviewed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained that the conditions in Lovech Prison were
degrading, in breach of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant complained further that he had not had effective remedies
in respect of the conditions of his detention. He relied on
Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1. The Court considers that this complaint falls to be
examined solely under Article 13 of the Convention, which
provides:
“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.”
- The
Government pointed out that the applicant had already been awarded
damages in the domestic proceedings on account of the poor living
conditions in Lovech Prison for the period from 8 March 2000 to
27 October 2004. They argued that he had failed to exhaust
domestic remedies, as it had been open for him to seek damages in
respect of his remaining stay in that prison. Furthermore, the
Government were of the view that the suffering inflicted on the
applicant had not reached the minimum level of severity required
under Article 3 of the Convention. Lastly, they pointed out that
following a refurbishment of Lovech Prison in the autumn of 2008 the
cells had been equipped with sanitary facilities.
- Furthermore,
without putting forward any specific arguments, the Government argued
that there had been no violation of Article 13.
- The
applicant contested those arguments. He considered that the amount
awarded in response to his claim had been inadequate. He argued that
the conditions of his detention had amounted to inhuman and degrading
treatment, which had also been recognised by the domestic courts.
- Under
Article 13, the applicant pointed out that he had used a remedy which
was available in principle, namely a claim under the 1988 Act.
However, even though the domestic courts had acknowledged that he had
been detained in degrading conditions, they had awarded him the
equivalent of EUR 51, which, in his view, did not amount to adequate
compensation. Referring to Iovchev v. Bulgaria (no. 41211/98,
2 February 2006), the applicant contended that the domestic courts’
formalistic approach, under which, while finding that the conditions
of his detention were inhuman and degrading, they required separate
proof that he had suffered on account of them, had deprived that
remedy of any effectiveness that it may have had in principle.
A. The period from 8 March 2000 to 27 October 2004
1. Admissibility
(a) Article 3 of the Convention
- The
Court observes that the applicant brought a claim under section 1
of the 1988 Act in respect of the conditions of his detention during
that period. The claim was partly allowed and resulted in an award of
damages (see paragraphs 12-21 above). The question therefore arises
whether the applicant can still be considered a victim of a violation
of Article 3 in respect of that period. Even though they did not
phrase it explicitly, the Government did raise such an argument, as
they referred to the fact that the applicant had been awarded
compensation (see paragraph 31 above).
- 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 essentially entails on the part of the Court
an ex post facto examination of the applicant’s
situation. A decision or measure of the domestic authorities
favourable to the applicant is in principle not sufficient to deprive
him or her of his or her status as a victim unless those authorities
have acknowledged, and then afford adequate redress for, the breach
of the Convention (see, as a recent authority, Ciorap v. Moldova
(no. 2), no. 7481/06, § 18, 20 July 2010).
- 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 1988 Act is in principle an effective remedy for poor conditions
of detention and is capable of providing adequate compensation to
persons who have been kept in such conditions (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). Indeed, the applicant in the instant case
brought such a claim. However, the Court is not persuaded that it
provided him adequate redress, for the following reasons.
- Firstly,
the domestic courts, while acknowledging that the conditions of the
applicant’s detention were in breach of Article 3 of the
Convention and had continued for a long time, awarded him a much
lesser amount than the one that he sought, on the sole ground that he
had failed to adduce evidence that he had suffered damage. The Lovech
District Court stated that there was no indication that the
applicant’s physical or psychological health had worsened (see
paragraph 17 above). The Lovech Regional Court endorsed that
reasoning, finding that no evidence had been presented to show that
the applicant had suffered “any specific damage or
deterioration of [his] state of health or psychological well-being”
(see paragraph 21 above). The courts did not consider that the
evidence proving that the conditions in Lovech Prison were poor could
also serve as proof that the applicant had endured non pecuniary
damage – such as stress, anxiety and frustration – on
their account. Instead, they apparently expected separate, extrinsic
evidence of such damage. As a result, the applicant was awarded BGN
250 (the equivalent of EUR 128) (see paragraph 18 above).
- In
Iovchev v. Bulgaria (cited above, § 146) the
Court, faced with a similar situation, held that such a formalistic
approach could render a claim under section 1 of the 1988 Act
ineffective as a remedy. It observed that as a result of that
approach, in cases where the non pecuniary damage stemming from
poor conditions of detention cannot be established on the basis of
objective, extrinsic proof, the persons concerned would not be
awarded compensation for conditions of detention that are in breach
of Article 3. While, unlike Mr Iovchev, the applicant in the
present case was awarded a small amount, in view of the developments
outlined in the preceding paragraph the Court sees no reason to reach
a different conclusion.
- Moreover,
the applicant did not receive even that amount. While he was awarded
BGN 250 in damages, he had to pay BGN 150 in court fees due in
respect of the dismissed part of his claim, ultimately receiving only
BGN 100 (the equivalent of EUR 51). The fees were calculated in
line with the rule laid down in section 10(2) of the 1988 Act (see
paragraphs 19 and 26 above). In Stankov v. Bulgaria (no.
68490/01, §§ 59 and 67, ECHR 2007 VIII) the Court
found that that rule often resulted in a disproportionate restriction
of the right of access to a court of litigants whose claims were in
principle justified. Like Mr Stankov, the applicant cannot be
criticised for having claimed an excessive sum, as there is no
indication that at the relevant time there existed a well-developed
and accessible case-law which might have assisted him in determining
the likely quantum of an award in respect of poor conditions of
detention (see also, mutatis mutandis, Slavcho Kostov v.
Bulgaria, no. 28674/03, §§ 62 and 63, 27 November
2008).
- An
applicant’s status of a victim of a violation of Article 3 may
depend on the level of compensation awarded at domestic level (see
Gäfgen v. Germany [GC], no. 22978/05, § 118,
ECHR 2010 ..., and Ciorap (no. 2), cited above, §§
18 and 24). In other contexts, the Court has accepted that awards
that are lower than those that it would make but consonant with the
legal tradition and the standard of living in the country concerned –
but not unreasonably low – may be sufficient to deprive
applicants of their victim status (see Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 206, ECHR 2006 V, and
Simaldone v. Italy, no. 22644/03, § 30, ECHR 2009 ...
(extracts)). However, the award in the present case did not meet that
condition. It was unreasonably low, especially considering that it
was intended to provide reparation for a period lasting more than
four years (see, mutatis mutandis, Ciorap (no. 2),
cited above, §§ 24 and 25). The Court concludes that it
failed to provide the applicant adequate redress and deprive him of
his victim status.
- The
Court further considers that the complaint under Article 3, in so far
as it concerns that period, is not manifestly ill founded within
the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
(b) Article 13 of the Convention
- The
Court considers that this complaint is linked to the one examined
above and must therefore likewise be declared admissible.
2. Merits
(a) Article 3 of the Convention
- 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 v. Poland (no.
28300/06, §§ 85-88, ECHR 2009 ...(extracts)),
Orchowski v. Poland (no. 17885/04, §§
119-229, ECHR 2009 ... (extracts)) and Norbert Sikorski v.
Poland (no. 17599/05, §§ 126 31, 22 October
2009).
- The
Court notes that the complaint examined here concerns the period from
8 March 2000 to 27 October 2004, that is, a period of four
years, seven months and nineteen days.
- For
a part of that period, that is, after 27 November 2003, the applicant
was detained under a “special regime”, which required
that he be kept in closed premises and under reinforced security (see
paragraphs 7 and 23 above).
- Initially,
the applicant was kept in an individual cell measuring four square
metres and later in a larger cell measuring 12.6 square metres. The
cell was not equipped with toilet facilities or sinks and the inmates
were allowed to go to the toilet and to wash three times a day, for
ten minutes each time. Outside those periods, if they needed to
relieve themselves they had to use a plastic bucket, which they could
empty and clean when going to the toilet (see paragraph 8 above).
- The
Court notes that the district court judges who dealt with the
applicant’s claim personally inspected those cells and on the
basis of that inspection and other evidence found that the conditions
of the applicant’s detention amounted to degrading treatment.
They also found that having to relieve oneself in a bucket in the
presence of other inmates, in a small cell without sufficient
ventilation, was not compatible with the requirements of Article 3
(see paragraphs 13-15 above). That ruling was later upheld by the
Lovech Regional Court (see paragraph 21 above).
- The
Court sees no reason to depart from the domestic courts’
findings (see, mutatis mutandis, Ciorap (no. 2), cited
above, §§ 22 and 23). Although they were apparently
referring only to the period when the applicant shared a cell, the
Court sees no reason not to extend that conclusion to the time when
he was kept in an individual cell (see paragraph 8 above). It is
true that in Kehayov v. Bulgaria (no. 41035/98, § 71,
18 January 2005), it held that
“subjecting a detainee to the humiliation of
having to relieve himself in a bucket in the presence of other
inmates can have no justification, except in specific situations
where allowing visits to the sanitary facilities would pose a
concrete and serious safety risk”.
However,
later, in Malechkov v. Bulgaria (no. 57830/00, § 140, 28
June 2007), the Court said that
“despite [of his or her] being accommodated alone
in a cell, subjecting a detainee to the inconvenience of having to
relieve himself in a bucket cannot be deemed warranted, except in
specific situations where allowing visits to the sanitary facilities
would pose concrete and serious security risks”.
- The
CPT, in its reports on Bulgaria, also found that the practice was
“unacceptable” (see paragraph 27 above). It cannot be
overlooked that the applicant remained in such conditions for a
considerable period of time (see paragraph 45 above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that between 8 March 2000 and 27 October 2004 the
applicant was detained in degrading conditions in Lovech Prison. It
does not therefore find it necessary to assess whether, as the
applicant contended, the food provided in that prison was of poor
quality. It notes that the domestic courts dismissed that allegation
as unsubstantiated (see paragraphs 16 and 21 above), whereas that the
applicant has not presented any evidence to cast doubt on that
finding.
- There
has therefore been a violation of Article 3 of the Convention.
(b) Article 13 of the Convention
- The
Court already found that the claim that the applicant brought under
section 1 of the 1988 Act, concerning the period from 8 March 2000 to
27 October 2004, failed to provide him adequate redress, chiefly as a
result of the domestic courts’ excessively formalistic approach
(see paragraphs 38-40 above). Like 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, as 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
adequate redress. As the Court observed in several recent cases which
concerned persons who continued to be kept in allegedly poor
conditions of detention (see Orchowski, § 109, and
Norbert Sikorski, § 116, both cited above; 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), 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.
- The
Court finds that the availability of domestic procedures to inmates,
aimed at obtaining specific improvements of the conditions of
imprisonment, is of crucial importance for the effective protection
from inhuman and degrading treatment at the national level, and
particularly so in cases concerning long-term imprisonment, where, as
indicated in the preceding paragraph, merely awarding damages cannot
be deemed as adequate redress.
- In
the present case, on one occasion in 2004 the applicant complained
about the conditions of his detention to the prison administration.
However, the complaint was later destroyed and the Court has not been
informed of any reply on the part of the administration (see
paragraph 11 above). In any event, the Government did not claim that
this complaint had prompted the authorities to take steps to improve
the conditions of the applicant’s detention. The authorities
made improvements in Lovech Prison, but this happened much later, in
the autumn of 2008 (see paragraphs 6 and 31 above), and apparently
without any connection with the applicant’s complaint. The
Government did not refer to any specific possibilities for the
applicant to initiate procedures and obtain, in so far as his
complaints might be well-founded, any practical improvement of the
conditions of detention.
- There
has therefore been a violation of Article 13 of the Convention.
B. The remainder of the applicant’s stay in
Lovech Prison
Admissibility
(a) Article 3 of the Convention
- In
respect of the period after 27 October 2004, the Government
raised a non-exhaustion objection, because the applicant had not
sought damages under the 1988 Act (see paragraph 31 above).
- 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 (see
Sławomir Musiał, §§ 77 and 82,
Orchowski , §§ 108 and 109, and Norbert Sikorski,
§ 116, all cited above). 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, §§ 77-85, and Łomiński,
§§ 68-76, both cited above).
- For
the same reason, it can be concluded that as long as the applicant
continued to be kept in the same conditions, a claim for damages
would not have in itself constituted an effective remedy. However,
the Court cannot fail to notice that on 5 November 2008 the applicant
was transferred to another prison (see paragraph 6 above). He has not
complained about the conditions there and has not provided any
information about them (see paragraphs 10 and 29 above, and compare
with Georgiev and Łatak, §§ 78 and 81,
both cited above). A claim under section 1 of the 1988 Act cannot
therefore be ruled out as ineffective under the above-mentioned test.
Nor can it be considered devoid of any prospect of success. It is
true that, as a result of the courts’ approach, the applicant’s
claim concerning his stay in prison before 27 October 2004 did not
result in an adequate amount of compensation (see paragraphs 38-40
above). However, it cannot be overlooked that, in view of the general
state of the domestic courts’ jurisprudence, claims under
section 1 of the 1988 Act are as a rule an effective avenue of
redress in respect of poor conditions of detention (see paragraph 37
above). In those circumstances, the Court is not persuaded that a
second claim by the applicant would have likewise failed to provide
him adequate redress. The applicant has not brought such a claim.
- It
follows that, in so far as it concerns the applicant’s
detention in Lovech Prison after 27 October 2004, the complaint under
Article 3 must be rejected under Article 35 §§ 1 and 4 of
the Convention for non-exhaustion of domestic remedies.
(b) Article 13
- In
view of its finding that the applicant did have an effective remedy
in respect of his complaint under Article 3, and bearing in mind the
close affinities between Article 13 and Article 35 § 1 of the
Convention, the Court concludes that the applicant’s complaint
under Article 13 is manifestly ill founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the
Convention (see Slimani v. France, no. 57671/00, § 42,
ECHR 2004 IX (extracts)).
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 claimed EUR 45,000 in respect of non-pecuniary damage,
pointing out that his detention in conditions contrary to Article 3
of the Convention had continued for a very long period of time.
- The
Government contested this claim.
- The
Court considers that the applicant must have
sustained non pecuniary damage as a result of the breaches of
his rights found in the case. The Court considers it reasonable to
award the amount which the applicant sought before the domestic
courts, namely BGN 3,000, the equivalent of EUR 1,530, taking
also into account that its finding of a violation of Article 3 was
only based on the applicant’s having to use buckets for
sanitary needs in the prison (see paragraphs 44-52 above). To this
should be added 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 stipulates 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, in so far as it
concerns the applicant’s detention from 8 March 2000 to 27
October 2004, admissible and the remainder inadmissible;
- Holds that in respect of the period from 8 March
2000 to 27 October 2004 there has been a violation of Article 3 of
the Convention;
- Holds that in respect of the period from 8 March
2000 to 27 October 2004 there has been a violation of Article 13
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,530 (one thousand five
hundred and thirty euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Bulgarian levs
at the rate applicable on 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
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
