CASE OF MARIN KOSTOV v. BULGARIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1981 and is currently serving a prison sentence in Pleven Prison. 6. The applicant was detained in Belene Prison from an unspecified date in August 2002 until 29 March 2007, when he was moved to Pleven Prison. He stated that the conditions of detention in Belene Prison had been inhuman and degrading. 7. It appears that the applicant submitted frequent complaints to various institutions against the administration of Belene Prison. 8. On an unspecified date in 2005 he complained to the prosecuting authorities that some of the letters he had sent had been withheld by the administration and had never reached their addressees. Following an inquiry, his complaint was dismissed both by the regional prosecutor on 14 July 2005 and on appeal on 17 August 2005 by the prosecutor in appeal proceedings who established that between January 2004 and June 2005 the applicant had sent thirty-one letters, which had been duly entered in the prison register and forwarded to their addressees. 9. On 26 and 31 October 2006 the director of Belene Prison ordered the confinement of the applicant in an isolation cell for two five-day periods following two violent incidents between the applicant and another prisoner which had occurred at short intervals. The applicant appealed. 10. The Levski District Court opened two sets of proceedings and on 10 November 2006 examined the applicants’ appeals in two separate hearings held consecutively. The applicant appeared in person while the prison administration did not send a representative. 11. At the start of the first hearing the court stated that it had summoned Mr K., a prison guard, as a witness. It noted that Mr K. had not appeared, the prison administration having submitted a medical certificate to the effect that he had been admitted to hospital. The applicant requested that another prison guard, Mr S., be questioned but nevertheless agreed that the court should proceed with the examination of the case. 12. On the merits, the applicant stated that he had been insulted and attacked by an inmate. He denied having insulted the inmate concerned and claimed that he was not responsible for the incident and that the punishment was unjustified. 13. In a final decision of the same date the District Court upheld the order of 31 October 2006, stating that the director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order. The director had considered the applicant’s and witnesses’ statements and the report of a prison employee. The court further noted that the written statements of the witnesses corroborated the director’s conclusions and did not support the applicant’s account of the events. As to the punishment, it had been determined with due regard to the gravity of the offence and the applicant’s conduct as a whole. 14. Then the court proceeded with the second hearing. It noted that the prison guard Mr S., who had been summoned as a witness, was also in hospital. The applicant insisted on the appearance of Mr S. and stated that he wanted to call a second witness, Mr F. He also asked to be assigned a court-appointed lawyer and sought an adjournment. 15. The court dismissed those requests, stating that it was obliged to complete the examination of the applicant’s appeal within three days of its being lodged and that the absence of a lawyer was not a reason for adjourning the hearing. 16. On the merits, the applicant explained that the incident had been similar to the first one and that he had been insulted and attacked by the same inmate. 17. In a final decision of the same date the District Court upheld the order of 26 October 2006. It found that on 28 September 2006 a conflict had arisen between the applicant and another prisoner which had developed into a fight. That had necessitated the intervention of the guard on duty. The director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order. He had considered the applicant’s and witnesses’ statements and the report of a prison employee. The court further noted that the written statements of the witnesses corroborated the director’s conclusions and did not support the applicant’s account of the events. As to the punishment, it had been determined with due regard to the gravity of the offence and the applicant’s conduct as a whole. 18. On 18 December 2006, while the applicant was isolated in a disciplinary cell in connection with the above punishments, his mother sent him a parcel which was not delivered to him. On an unspecified date in December 2006 the applicant asked why his right to receive parcels had been restricted. The prison administration informed him that no parcel had arrived. 19. On 3 January 2007 the applicant complained to the public prosecutor that the prison administration had refused to give him the parcel. He requested that the matter be investigated and the responsible officials punished. He stated that the prison employees often made such mistakes in respect of prisoners. Lastly, he stated that the incident amounted to a criminal offence under Article 171 of the Criminal Code, which made it an offence to, inter alia, hide or destroy a package intended for another person. 20. On 8 January 2007 the applicant gave a copy of his complaint to a prison employee, who transmitted it to the prison director. Following an internal inquiry, it was established that on 18 December 2006 a parcel for the applicant had indeed arrived and was sent back to the sender because the applicant was not entitled to receive parcels while in isolation. In relation to the above, the director of Belene Prison considered the applicant’s statements to the public prosecutor defamatory and on 29 January 2007 punished him with fourteen days’ isolation in a disciplinary cell. He also justified the punishment on grounds of the applicant’s overall conduct, referring to the punishments imposed on him on 26 and 31 October 2006 (see paragraph 9 above) and the fact that the applicant had frequently sent similar complaints to various institutions. The applicant appealed. 21. The District Court held a hearing on 5 February 2007. An employee of the prison submitted that the parcel had been lawfully returned because prisoners were not allowed to receive parcels while punished with solitary confinement. The witness further stated that he had suggested that the applicant be punished because the latter had made insulting and defamatory statements against the prison administration. The witness pointed out that this was the applicant’s third breach of the disciplinary rules. 22. The applicant replied that he would not have complained to the public prosecutor had the prison administration informed him about the parcel. He stated that he had not received a reply from the public prosecutor. 23. In a final decision of the same date the District Court upheld the order of 29 January 2007. It referred to the statements of the witness and the information contained in the disciplinary file and held that the order was reasoned and lawful and that the conduct of the applicant within the last year had been taken into consideration. 24. On an unspecified date in 2007 the applicant requested the General Directorate of Enforcement of Sentences at the Ministry of Justice to transfer him to another prison, stating that the administration of Belene Prison had subjected him to harassment. In particular, he referred to the dispute about the parcel and the ensuing punishment (see paragraphs 18-23 above). 25. On 16 March 2007 the Deputy Minister of Justice granted the applicant’s request and ordered that he be moved to Pleven Prison. He noted that the prison authorities had given inaccurate information to the applicant about the parcel and that, therefore, the applicant had acted in good faith in complaining to the public prosecutor. The honesty of his intention was also evident from the fact that he had provided the prison administration with a copy of his complaint. The Deputy Minister further noted that prisoners were entitled to make applications and complaints to public bodies and stressed that the disciplinary liability envisaged in the Enforcement of Sentences Act could not be used to restrict that right. Noting that the punishment of 29 January 2007 had been upheld by the court and had become final, the Deputy Minister considered that the applicant had understandably lost confidence in the administration of Belene Prison and that that risked jeopardising his reform, should he remain in that prison. 26. Under section 76(k) of the Execution of Sentences Act (ESA) of 1969, in force at the relevant time, a prisoner who violated prison regulations or disciplinary rules or failed to fulfil his duties could be punished by, inter alia, confinement in an isolation cell for up to fourteen days. During confinement, prisoners could not use the telephone or receive any visits or parcels but were still entitled to one hour’s daily exercise in the open air, separated from the other prisoners (section 76a of the ESA and section 103 of the ESA Implementing Regulation of 1969). 27. Section 46 of the ESA Implementing Regulation of 1969 provided that where a prisoner used defamatory or offensive language in his or her submissions or complaints, he or she was liable to disciplinary and criminal punishment. On 1 June 2009 the ESA of 1969 was superseded by the new Enforcement of Sentences and Detention Orders Act (the “ESDOA”). Pursuant to section 90 (5) of the ESDOA, prisoners shall not be liable to disciplinary punishment because of having made a request or lodged a complaint. 28. In accordance with sections 78 and 78b of the ESA of 1969, an appeal lay to the General Directorate of Enforcement of Sentences or the district court against punishment by confinement in an isolation cell. The former was obliged to examine the case within two months, and the latter within three days. Execution of the punishment was not suspended pending the outcome of the appeal, unless the relevant appeal body decided otherwise. In proceedings before the district court the public was excluded and the absence of the prisoner’s lawyer was not an obstacle to the examination of the case. The court was obliged to examine all circumstances relevant to the lawfulness of the punishment. Its decision was final. 29. Pursuant to the ESA of 1969 and the relevant Implementing Regulation, the General Directorate of Enforcement of Sentences at the Ministry of Justice was responsible for managing and supervising prisons. Its General Director could annul the decisions of prison directors. 30. Under the Judiciary Act of 2007 and the ESA of 1969, the public prosecutor was competent to supervise prisons and the enforcement of sentences. His powers included examining complaints from prisoners, giving mandatory instructions to the prison administration for correcting irregularities, and suspending unlawful acts which were amenable to appeal. 31. Disputes between prisoners and the prison administration concerning the enjoyment of rights such as visiting rights or the rights to receive correspondence or parcels were not amenable to appeal before the court. 32. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as amended in July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials committed in the course of or in connection with the performance of administrative action.” 33. The relevant extracts from the Recommendation on the European Prison Rules read as follows: “70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. 70.2 If mediation seems appropriate this should be tried first. 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority. 70.4 Prisoners shall not be punished because of having made a request or lodged a complaint. ... 70.7 Prisoners are entitled to seek legal advice about complaints and appeals procedures and to legal assistance when the interests of justice require.”