CASE OF SHAHANOV AND PALFREEMAN v. BULGARIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev
6. Mr Shahanov, who was born in 1977, is serving a life sentence in Plovdiv Prison. 7. Mr Palfreeman, who was born in 1986, is serving a sentence of twenty years’ imprisonment in Sofia Prison. 8. In 2011, when serving his sentence in Plovdiv Prison, Mr Shahanov was sharing a cell with eight other inmates. On 24 October 2011 he made two complaints to the Minister of Justice: one written by him personally and one written on his behalf by his wife. In the complaints he stated, inter alia, that another inmate in his ward, X, was bragging that two prison officers, Y and Z, were relatives of his; was threatening and intimidating the other inmates and fomenting intrigues and tension among them; was often making unwarranted complaints to get special attention and treatment; and was planning to escape from prison with the help of his relatives. Mr Shahanov requested that steps be taken to move X to a prison where he did not have relatives. 9. An inquiry was opened pursuant to Mr Shahanov’s complaints, and written statements were taken from X, other inmates, Y, Z, and other prison officers. 10. In a letter of 28 November 2011, the head of the Chief Directorate for the Execution of Sentences informed the governor of Plovdiv Prison that the inquiry had not found familial relationships or improper contacts between X and any of the prison officers, or a risk for Mr Shahanov. The letter went on to say that the governor should advise all inmates that making defamatory statements about, or false allegations against, prison officers was a disciplinary offence under section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below). 11. The next day, 29 November 2011, the governor of Plovdiv Prison ordered that Mr Shahanov be placed in solitary confinement for ten days for making defamatory statements and false allegations against prison officers, contrary to the above-mentioned provision. 12. On 30 November 2011 Mr Shahanov sought judicial review of the order. 13. The Plovdiv District Court heard Mr Shahanov’s claim on 2 December 2011 and, in a final decision of the same date (опр. oт 02.12.2011 г. по ч. н. д. № 8203/2011 г., РС-Пловдив), upheld the order. It held that it was lawful and that, in view of the results of the inquiry carried out pursuant to Mr Shahanov’s complaints and the evidence gathered in the proceedings before it, the prison governor had been correct to find that Mr Shahanov had made defamatory statements and false allegations against prison officers. The court went on to say that the punishment matched the seriousness of the offence. 14. Mr Shahanov asserted that his correspondence was routinely opened and read by the prison authorities. In support of his assertion, he submitted seven letters sent in 2012, six of which were addressed to his counsel, whose envelopes bore the stamp “checked” on their backs. For their part, the Government submitted a letter from the administration of Plovdiv Prison according to which Mr Shahanov’s correspondence was being controlled in the manner envisaged in the applicable regulations, which meant that the prison authorities only checked the physical content of the letters, not their text. All letters were sealed and opened by a prison officer in front of the prisoner. The stamp “checked” affixed on the back of an envelope only meant that the letter had been physically inspected for the presence of prohibited items. 15. On 23 May 2012 Mr Palfreeman was visited by two journalists. At the same time, a fellow inmate of Israeli nationality also had a visitor. After the visits, Mr Palfreeman learned that his visitors had been treated rudely, and that his fellow inmate’s visitor had had personal items stolen from lockers in the prison where he had left them during the visit. 16. The next day, 24 May 2012, with the help of another inmate who knew Bulgarian, Mr Palfreeman wrote the following complaint to the governor of Sofia Prison: “On 23 May 2012, during the midday visit, personal items of visitors were stolen from the visitors’ lockers, which are only accessible to the guards. The stolen items are a mobile telephone case, MP3 headphones, a mobile telephone battery, and a sum of money. Also, the guards behaved very rudely and coarsely with the visitors, yelling at them and insulting them for no reason. Could you please carry out an inquiry into the conduct of that shift, and take measures to ensure that the guards work in a disciplined way and with respect towards inmates and others.” 17. Disciplinary proceedings were opened against Mr Palfreeman in relation to that complaint. On 11 June 2012 a hearing took place before the prison’s disciplinary commission. 18. In an order of 12 June 2012, the governor of Sofia Prison noted that an inquiry carried out pursuant to Mr Palfreeman’s complaint had shown that the two persons who had visited him had not left any items in the visitors’ lockers, and had not made any complaints about missing items on their way out of the prison. There was no evidence that they had been treated rudely by prison staff either. By making allegations to that effect, Mr Palfreeman had therefore acted contrary to section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below). The nature and the gravity of the offence, Mr Palfreeman’s attitude towards his act, and his overall conduct and state of health militated in favour of punishing him with three months’ deprivation of the right to receive food parcels from outside prison. 19. Mr Palfreeman appealed to the head of the Chief Directorate for the Execution of Sentences and sought judicial review. He argued, inter alia, that his disciplinary punishment was in breach of section 90(5) of the 2009 Act (see paragraph 25 below) and this Court’s case-law, that deprivation of the right to receive food parcels was a serious sanction in view of the insufficient quantity of food provided by the prison, and that it was an attempt to cow him into not making complaints against the prison administration. 20. On 14 August 2012 the head of the Chief Directorate for the Execution of Sentences dismissed the appeal. Noting that the inquiry into Mr Palfreeman’s allegations had not confirmed any of them, he found that, by deliberately making false allegations, the applicant had committed the disciplinary offence under section 100(2)(7) of the 2009 Act. The sanction fully corresponded to the nature and the gravity of his act, his attitude towards it, and his previous conduct. 21. In a final decision of 19 July 2012 (опр. от 19.07.2012 г. по н. ч. д. № 13436/2012 г., СРС), the Sofia District Court held that it could not deal with Mr Palfreeman’s claim for judicial review, as only orders imposing solitary confinement were amenable to such review. All other types of disciplinary punishments were only subject to appeal before the head of the Chief Directorate for the Execution of Sentences (see paragraphs 30-32 below).