CASE OF KASHAVELOV v. BULGARIA
No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1964 and is currently serving a life term in Sofia Prison. 6. On 5 August 1996 the applicant was arrested on suspicion of having abducted a person. On 14 August 1996 he was charged with that offence. In September 1996 he was charged with murdering three police officers, and on 4 June 1997 with at least ten other offences. 7. On an unspecified date in 1998 the prosecuting authorities submitted an indictment against the applicant to the Sofia City Court. However, on 18 September 1998 the judge rapporteur referred the case back to them, citing irregularities in the manner in which some of the charges and evidence had been presented to the applicant. 8. On 12 October 1998 the prosecuting authorities submitted to the Sofia City Court an indictment against the applicant and three others. The charges included the murder of three police officers, several attempted murders, robberies, thefts, unlawful deprivation of liberty, and unlawful possession of firearms. On 29 December 1998 the judge rapporteur set the case down for trial over several days in May 1999. 9. The Sofia City Court held at least seven hearings between May 1999 and 8 March 2000, and on the latter date convicted the applicant of aggravated murder, hooliganism, attempted armed robbery, deprivation of liberty and unlawful possession of firearms, and acquitted him of the other charges. It sentenced him to life imprisonment without commutation and ordered that he should begin serving his sentence under the strictest prison regime (the so-called “special regime” – see paragraph 21 below). 10. On appeal, the Sofia Court of Appeal held at least five hearings, the last of which took place on 14 January 2002. On 10 February 2003 it partly quashed the lower court's judgment, acquitting the applicant of one of the charges of attempted armed robbery and of the charges of unlawful possession of firearms, and re-qualifying one of the other charges. It upheld the remainder of the judgment, including the applicant's sentence. 11. On 27 February 2004 the Supreme Court of Cassation partly quashed the Sofia Court of Appeal's judgment and remitted the case to that court for reconsideration of the charges of attempted robbery. It upheld the remainder of the judgment, including the applicant's sentence. 12. On remittal, the Sofia Court of Appeal held at least two hearings. On 31 August 2004, it upheld the Sofia City Court's judgment, acquitting the applicant of the charges of attempted armed robbery. No appeal was lodged, and the judgment became final on 6 October 2004. 13. On 7 February 1997 the applicant was moved to the detention centre of the National Investigation Service. On 2 December 1997 he was transferred to Sofia Prison. Between 1997 and 2004, he was held there as a detainee awaiting the final determination of the criminal charges against him. Since 17 November 2004, his stay in the prison has been continued on the basis of his final sentence of life imprisonment. 14. On 4 December 1997 the prison's governor, relying on the relevant regulations (see paragraphs 17 and 18 below) and having regard to a note in which the investigating authorities had described the charges against the applicant, his character, and their assessment of the risk that he could pose to prison staff, ordered that he be placed within an isolated group of prisoners subjected to stringent security measures and be deprived of the right to take part in communal activities. In a follow-up decision of 14 May 1999 the governor ordered that the applicant be handcuffed each time he was separated from that group. According to the Government, the applicant was being handcuffed only when taken out of the premises occupied by the group – for outdoor activities, visits to the prison doctor, dentist or library, or receiving visitors or lawyers. He was allowed to exercise in a special secluded yard. The applicant contended that he was being handcuffed each time when taken out of his cell. 15. The applicant alleged that he was held alone in a locked cell measuring 1.9 by 4.05 metres. He could leave the cell only for his daily onehour walk. During the first eight or nine months in prison he took his walk alone. After that, he was allowed to join one or two other life prisoners, but was prohibited from talking to them. Since October 2001, he was again taking his daily walks alone, in a concrete enclosure covered with a wire-net and measuring 6.7 by 11 metres. The only other times when the applicant was allowed out of his cell were the scheduled visits to the sanitary facilities, for five to ten minutes twice a day. According to him, those were the only occasions when he could stock up on drinking water. Later, he was allowed to spend more time using the sanitary facilities. The applicant further alleged that during the first six months of his stay in prison he was being deprived of one of his daily meals once every four days, and for an initial period of about a year and a half he was not allowed to use his own bed sheets and pillows. 16. The Government disputed those allegations, saying that the applicant had not been subjected to serious isolation inside his prison group. They pointed out that, save for a limited number of restrictions flowing from the “special regime” to which the applicant was subjected, he enjoyed the opportunities available to all other inmates, such as the possibility to work, access to free health and dental care, access to the prison library and temple, receiving visitors, parcels, telephone calls and correspondence, etc. They cited a note drawn up by the prison's governor, which said the following: “[The applicant] is even now extremely hostile towards the legal order of the Republic of Bulgaria. He does not accept his conviction and sentence, and considers the criminal proceedings against him to be unfair and biased. He shows complete disregard to others, and acts rudely and arrogantly when approached. Extremely mistrustful, suspicious and hostile towards all prison staff. His irascibility, undisguised cruelty and spitefulness, and constant nervous tension make him especially dangerous and unpredictable. His attitude towards the other inmates in his group does not differ markedly from the one described above. He refuses to socialise with others, hates everything and everyone. He enters into sporadic contacts with the group's hygienist when necessary. Refuses to take part in communal activities. On several occasions he was offered work, which he pointedly turned down. When taken out for visits and in the presence of larger groups of people, he often loudly makes negative remarks about the courts and the prison administration. He often rehearses his 'defence speech' naked in his cell.” 17. The applicant disputed those allegations and pointed out that the governor did not cite any specific facts to support them. 18. At the material time the regime of pre-trial detainees kept in prisons was governed by regulations issued in 1993 (Наредба № 12 от 15 април 1993 г. за положението на обвиняемите и подсъдимите в местата за лишаване от свобода). In May 1999 those were superseded by similar regulations (Наредба № 2 от 19 април 1999 г. за положението на обвиняемите и подсъдимите с мярка за неотклонение задържане под стража), which remained in force until September 2006. 19. Regulation 15(1)(3) of the 1993 regulations, superseded by regulation 14(3) of the 1999 Regulations, provided that detainees could be placed in a locked cell and be deprived of the right to take part in communal activities if considered a security risk. That measure could be imposed by the prison's governor, who had to have regard to the detainee's personal characteristics and psychological state, and to the dangerousness of the offence in relation with which he or she had been detained. Regulation 15(3) in fine of the 1993 regulations, superseded by regulation 15 of the 1999 regulations, provided that detainees subjected to such measures had to be kept isolated from the general prison population each time they were taken out of their cells, for court transfers, medical treatment, receiving visitors, outdoor activities, etc. 20. Until June 2009 the regime of prisoners serving a life sentence was governed by the Execution of Punishments Act (1969) (Закон за изпълнение на наказанията) and the regulations for its implementation. In June 2009 and February 2010 these were superseded by, respectively, the Execution of Punishments and Pre-Trial Detention Act (Закон за изпълнение на наказанията и задържането под стража) and the regulations for its implementation. 21. The regime of life prisoners was governed by sections 127a-127e of the 1969 Act, added in 1995. Section 127b(1) provided that when imposing a life sentence the court had to order the prisoner's placement under the strictest regime, called “special regime”. Individuals placed under that regime were to be kept in locked single cells and subjected to heightened security and supervision (regulation 56(1) of the implementing regulations). Those provisions were maintained in 2009 Act (sections 61(1), 71(2) and 198(1)) and the 2010 regulations (regulation 213). Regulation 213 additionally provides that life prisoners can take part in communal activities only with prisoners of the same category. Under regulation 214, they have to be kept isolated from the general prison population even when taken out of their cells for transfers, medical treatment, visits, outdoor activities, etc. 22. Section 127b(2) of the 1969 Act, superseded by section 198(1) of the 2009 Act, provided that, if they had good conduct, after five years life prisoners could be placed under a lighter regime. The time spent in pre-trial detention does not form part of that period (regulation 167(2) of the implementing regulations of the 1969 Act, superseded by regulation 218 of the implementing regulations of the 2009 Act). The decision to place a life prisoner under a lighter regime is taken by a commission consisting of prison staff and various other officials (section 17 of the 1969 Act, superseded by sections 73 and 74 of the 2009 Act). Under section 58 of the 1969 Act, the commission's decisions could be challenged by the Minister of Justice. Under section 74(2) of the 2009 Act, only the decisions to place a prisoner under a stricter regime can be challenged, by way of judicial review. Once under a lighter regime, life prisoners can, under certain conditions, be placed together with the general prison population (section 127b(4) of the 1969, superseded by section 198(2) of the 2009 Act). 23. The CPT has visited Bulgaria seven times. Sofia Prison was visited in 2006 and 2008. 24. The report on the 2006 visit (CPT/Inf (2008) 11) says: “101. There were 15 lifers at Sofia Prison at the time of the visit; two were being accommodated in the mainstream prison population, while the rest were held in a separate unit in the section used for disciplinary isolation ... Lifers in the separate unit were accommodated in single cells measuring 7.5 m²; the cells had a small barred window, set too high in the wall to afford a view out. There was integral sanitation which reduced the limited space in the cell; however, the cells would provide adequate sleeping accommodation for one person provided these prisoners were offered a varied programme of out-of-cell activities during the daytime. However, in contrast to the situation observed in [two other prisons], life-sentenced prisoners in Sofia Prison lacked communal activities. They were locked up in their cells except for periods of outdoor exercise (1.5 hours like the rest of the inmates at Sofia Prison), which all but four lifers took together. The lack of group activities is not justifiable in security terms, given that life-sentenced prisoners already exercise together. The delegation was told of plans to set up a group room for association and other activities for lifers, which would be opened in the near future. In-cell activities included watching TV and reading books from the library and a daily newspaper; further, nine lifers worked in their cells (making gift bags). One prisoner interviewed by the delegation complained that he had been refused permission to have a personal computer in his cell to do a computer literacy course. The four lifers who did not join the others for communal exercise were segregated under orders reviewed every 6 months. Whenever they were outside the cell, they were handcuffed, including for exercise which they took alone in a secure yard. In the CPT's opinion, there can be no justification for handcuffing a prisoner exercising alone in a secure yard, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review their current policy as regards the handcuffing of the above-mentioned life-sentenced prisoners, in the light of these remarks.” 25. The report on the 2008 visit (CPT/Inf (2010) 29) says: “74. [A]t the time of the visit, there were 18 life-sentenced prisoners at Sofia Prison. Three of [them] had been integrated into the mainstream prisoner population, while the remainder were being held in a separate unit (Group 1). 75. Material conditions of detention in the lifer unit had remained basically unchanged since the 2006 visit ... The installation of integral sanitation in the cells, with a shower head over the toilet and access to hot water all day, was a positive feature; however, as a result, prisoners had less occasions to leave their cells and interact with staff. Some of the lifers had their own television sets and play-stations in their cells. At the time of the 2006 visit, lifers had had hot plates in their cells, to cook food, which increased their sense of independence and helped to pass the time. The hot plates had reportedly been withdrawn a few weeks before the visit for safety reasons, and lifers had immersion coils for heating water. 76. As regards activities, one notable change since the 2006 visit was the entry into operation of a social room (“club”) in the lifer unit. This good facility was decorated in pleasant light colours and furnished with bookcases, a chess table with two chairs, a larger table with five chairs, a cupboard with games including a backgammon board, a television set with DVD player and a sink. Lifers were divided into three subgroups on the basis of common interests (playing cards, chess, discussing legal matters, etc.) and each group was allowed to use the social room for one hour each weekday. At weekends, there were only the two officers present, which made it difficult to organise activities. Lifers who were willing to work (12 of the 15 in the lifers unit) worked in their cells on the same kinds of piece work as was observed on the 2006 visit (e.g. putting strings on boutique bags). Further, outdoor exercise for one and a half hours per day was offered to all lifers. The delegation noted that a shelter had been provided at one end of the exercise yard. Despite the above-mentioned welcome introduction of a social room, which increased the amount of time spent out of the cells and in association with other prisoners, the daily regime in the lifer unit remained monotonous. The CPT recommends that the Bulgarian authorities strive to enhance the programme of activities provided to life-sentenced prisoners at Sofia Prison, if necessary, by increasing staffing. 77. Staff on the lifer unit indicated that two of the inmates were in their first 5 years of a life sentence and were therefore subject to particular security restrictions. The two lifers were escorted in handcuffs and were not allowed television. It was up to the Director to review the use of handcuffs, but there was no time limit on their use and no regular review period. As already stated in the report on the 2006 visit, the CPT considers that there can be no justification for routinely handcuffing a prisoner within a secure environment, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review the policy of handcuffing life-sentenced prisoners when outside their cells. 78. The CPT has in the past expressed its serious misgivings about the current legal provisions whereby lifers are systematically subjected to a strict and segregated regime for an initial period ordered by the sentencing court (i.e. 5 years). This approach runs counter to the generally accepted principle that offenders are sent to prison as a punishment, not to receive punishment. The Committee does not question that it may be necessary for some prisoners to be subject, for a certain period of time, to a special security regime. However, the decision whether or not to impose such a measure should lie with the prison authorities, be based on an individual risk assessment and be applied only for the shortest period of time. A special security regime should be seen as a tool of prison management, and not be made part of the catalogue of criminal sanctions to be imposed by courts. In many countries, lifers are not viewed as necessarily more dangerous than other prisoners; many of them have a long-term interest in a stable and conflict free environment. Therefore, the approach to the lifer management should proceed from individual risk and needs assessment to allow decisions concerning security, including the degree of contact with others, to be made on a case-by-case basis. Whereas lifers should not be systematically segregated from other prisoners, special provision should be made to assist lifers and other long-term prisoners to deal with the prospect of many years in prison. In this respect, reference should be made to Rule 103.8 of the European Prison Rules which states that “particular attention shall be paid to providing appropriate sentence plans and regimes for life-sentenced prisoners”, taking into consideration the principles and norms laid down in the Council of Europe Recommendation on the “management by prison administrations of life-sentence and other long term prisoners”. Pursuant to Bulgarian law, after the initial 5 years of their sentence, lifers are eligible for allocation within the mainstream prisoner population if they have behaved well and have had no disciplinary punishments. However, in practice, only a minority of lifers (3 out of 18 at Sofia Prison) had found their way into the mainstream, some after many years served in the lifer unit. The CPT invites the Bulgarian authorities to build on the success of the “experiment” of integrating some life-sentenced prisoners into the mainstream prison population, which should be considered as an appropriate part of the management of this category of prisoner and reinforced by legislative measures. More generally, the CPT recommends that the Bulgarian authorities review the legal provisions and practice concerning the treatment of life-sentenced prisoners, in the light of the above remarks.”