PALFREEMAN v. BULGARIA
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev
1. The applicant, Mr Jock Anthony Palfreeman, is an Australian national who was born in 1986 and is currently serving a prison term in Sofia. He was represented before the Court by Mr K. Kanev, from the Bulgarian Helsinki Committee. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On the night of 27 December 2007 the applicant, who was serving in the British Army at the time of the incident, was leaving a bar in Sofia when he saw a group of about fifteen young people in the street outside the bar. Some of them got into a brawl with two Roma men. The applicant ran towards them, brandished a knife and started waving it at the group. During the ensuing fight he stabbed and killed one of the young people in the assembled group, the 20-year-old son of a politician. He also seriously injured another young man. Shortly afterwards, two police officers arrived and arrested the applicant. 5. The applicant was tried for murder. His defence was that he had attempted to protect the Roma men who had been attacked by the group of young people. He also claimed that he had used his knife in self-defence when the group had become violent towards him. The prosecution maintained that the applicant had run into the group in a determined way in order to administer justice. By the time he had intervened, the attack on the Roma had come to an end and he had not been acting in self-defence when he had stabbed two members of the group. 6. The applicant was convicted of murder in December 2009. The sentence was upheld on appeal and cassation. The applicant is currently serving a 20-year sentence in Sofia Prison. Both the case and the applicant have attracted significant public attention and extensive media coverage in Bulgaria. 7. The applicant’s close and extended family members – parents, siblings, grandparents, cousins, aunts and uncle – live in Australia; he has no partner or children in Australia. Each journey between Australia and Bulgaria for the 40-minute time slots allowed for visits involves substantial expense and absence from Australia for approximately a week. Because of such constraints, the applicant’s parents have only managed to see him once every six months since he was imprisoned. Such visits have also become increasingly difficult for them with time. His grandparents are in their late eighties and so the journey to Bulgaria has become almost impossible for them. A number of cousins and other close relatives, including an uncle and four aunts to whom the applicant is very close, are unable to make the journey at all. 8. On the basis of the information in the case file, it is clear that the applicant has been receiving regular visits in prison – from family members, friends and acquaintances; in particular, he was visited 48 times between September 2012 and July 2015; nine of those visits were from family members. Visits have been authorised when requested, including during periods falling outside the standard prison visiting schedule. According to a psychological assessment, made in April 2015 and submitted by the Bulgarian authorities, the applicant is socially and emotionally balanced and mature, with realistic self-esteem, a preserved sense of humour and no signs of depressive tendencies, stress or anxiety. He is the chairperson of the Bulgarian Prisoners Association and is fluent in the Bulgarian language, both orally and in writing. He displays leadership potential and strives to dominate in the prison community in which he is well integrated; he is popular among other inmates, both foreigners and Bulgarians, whom he is known to frequently assist with the drafting of their requests and/or complaints to the prison administration. He is housed in the wing for foreigners, assists foreign prisoners by interpreting between English and Bulgarian when necessary, and has regular access to a computer room, for a few hours a day, which makes it possible for him to pursue a distancelearning university course leading to a degree. The applicant actively corresponds in writing with family and friends. 9. On 12 April 2012, at the applicant’s initiative, the Australian authorities contacted the Bulgarian authorities about the possibility of transferring the applicant to Australia for him to continue to serve his sentence there. On 25 June 2012 the Bulgarian Prosecutor General replied in writing that the question of the applicant’s transfer could only be considered once he had paid outstanding damages to the victims. 10. On 14 May 2013 a representative of the Australian Attorney General wrote to the Bulgarian Prosecutor General, formally seeking the Bulgarian Government’s agreement to transfer the applicant under the Council of Europe Convention on the Transfer of Sentenced Prisoners of 1983 (the “Transfer Convention”, see paragraphs 17-21 below). The Australian authorities pointed out that the applicant met the eligibility conditions for the transfer of international prisoners and proposed a number of conditions in that respect. They included the following: that his transfer would not take place until his debts in Bulgaria had been paid; that the applicant would continue to serve his prison sentence in full in Australia and would become eligible for early release once he had served half of it, this also being an option under Bulgarian law; that all reductions of the applicant’s sentence confirmed by the Bulgarian authorities would be reflected in the remaining sentence; and that if the applicant benefitted from a conditional early release in Australia, he would be subject to parole conditions. 11. In a letter of 8 July 2013, sent via the Bulgarian Ministry of Justice, the Prosecutor General informed the Australian Attorney General that the applicant’s transfer had been refused. The letter emphasised that, having carefully considered the relevant provisions in the Transfer Convention and Bulgarian law, the prosecutor found that the conditions for transfer were not met. In particular, transfer was an option and not a mandatory consequence of a request made under the Transfer Convention. The applicant still needed to serve over 14 years of his 20-year sentence. Importantly, he had not shown remorse and had categorically been denying personal responsibility for the crime he had committed. In addition, he had expressed a negative and suspicious attitude towards the Bulgarian justice system as a whole and had been demonstrating hostility and mistrust towards the orders issued by members of the prison administration. In view of the above and of the fact that he had only served a fraction of his sentence, the prosecutor found that the purpose of the punishment, including for the purposes of international law, namely to turn the convicted individual into a law-abiding citizen, had not been achieved. 12. On 9 July 2013 the Bulgarian Prosecutor General announced publicly the refusal to allow the transfer of the applicant to serve the remainder of his sentence in Australia. 13. On an unspecified date the applicant appealed to the Sofia City Administrative Court against the refusal to transfer him to Australia. In particular, he emphasised that the refusal was against the fundamental rationale behind the Transfer Convention, which was to provide a possibility for States to cooperate towards achieving the purposes of justice and the social rehabilitation of convicted individuals. The Sofia City Administrative Court declared the appeal inadmissible, finding that the Prosecutor’s refusal to transfer the applicant was not an individual administrative act, given that the Prosecutor was part of the judicial and not the executive branch of power. 14. The applicant appealed. In a final decision of 24 April 2014, the Supreme Administrative Court held that the refusal of the Prosecutor General was not amenable to review by the administrative courts. 15. Article 453 § 1 regulates the transfer of individuals who have been sentenced. The Prosecutor General is the competent national authority to decide on requests for the transfer of foreigners convicted by a Bulgarian court to their country of nationality in order to serve their sentence. The Prosecutor General agrees such transfers with the relevant competent body of the administering State, after agreement by the prisoner in question. 16. A new provision in the Code of Criminal Procedure, Article 437 § 2, in force since 7 February 2017, provides a possibility for an individual serving a sentence of imprisonment to personally request conditional early release under Article 70 § 1 (1) of the Criminal Code if he or she has served at least half of the prison sentence. 17. The Transfer Convention provides for a formal mechanism by which prisoners can be transferred from one to another contracting State. Both member States and non-member States of the Council of Europe can accede to this Convention, which entered into force on 1 October 1994 in respect of Bulgaria and on 1 January 2003 in respect of Australia. 18. The Explanatory Report to the Transfer Convention states in paragraph 8 that the purpose of the Convention is: “to facilitate the transfer of foreign prisoners to their home countries.” 19. Article 2 of the Convention provides: “1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention. 2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.” 20. Article 3 sets out various conditions which must be met in order for a person to be transferred. A sentenced person may be transferred only if he is a national of the administering State. Both the sentencing and the administering State must consent to the transfer. 21. Under Article 4, any sentenced person to whom the Transfer Convention may apply shall be informed by the sentencing State of the substance of this Convention and if she or he expressed an interest in being transferred under this Convention, the sentencing State shall so inform the administering State as soon as practicable after the judgment becomes final.