CASE OF VELYO VELEV v. BULGARIA
Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Non-pecuniary damage - award
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
5. The applicant was born in 1977 and lives in Stara Zagora. In 2003 he was convicted of a fraud offence and served a sentence of imprisonment in Stara Zagora Prison from 11 February 2003 to 9 August 2004. On 1 October 2004 he was arrested on suspicion of unlawful possession of firearms. Between 29 November 2004 and 20 April 2007 he was detained on remand in Stara Zagora Prison, where he claimed to have been detained with “recidivist” prisoners (see paragraph 20 below). 6. As he had never finished his secondary education, the applicant requested to be enrolled in the school operating inside Stara Zagora Prison. In August 2005 he submitted a written request to the governor of the Stara Zagora Prison, asking to be enrolled for the 2005/06 school year. He received no reply before the school year began on 15 September 2005, so he wrote again to the governor on 29 September 2005 and also to the Ministry of Education and the Prosecutor’s Office (in Bulgaria, the Prosecutor is the authority competent to oversee the lawful execution of pretrial and post-conviction detention). The applicant received a letter from the Prosecutor, dated 6 October 2005, which said that the prison administration had taken due account of the possibility for the applicant to study, in view of his previous sentence. The Prosecutor further stated that the applicant’s assertion regarding refused access to education had not been confirmed. The applicant also received a reply, dated 24 October 2005, from the Ministry of Education. The letter stated that individuals deprived of their liberty (лишени от свобода) were entitled to continue their education in prison and made no specific reference to remand prisoners. 7. In the meantime, on 19 October 2005 the applicant sent another request to the prison governor, the Ministry of Education and the Appellate Prosecutor. On 26 October 2005 the applicant filed a new request with the prison governor, again asking to be enrolled in the prison school for the 2005/06 school year. Referring to the letter of 24 October 2005, the applicant argued that the Ministry of Education had recognised his right to access to education in prison. On 7 December 2005 he received a reply signed by the Head of the Execution of Punishments Directorate of the Ministry of Justice, rejecting his request. The letter stated, inter alia: “It was established that [the applicant] has not yet been convicted. Once convicted, he is to be transferred to a prison for recidivists. The inclusion of recidivists in the educational and work programmes in a prison for non-recidivists would lead to a breach of the requirement that different categories of inmates are to be kept apart and are to participate separately in correctional programmes ...” 8. On 21 December 2005 the applicant appealed against the refusal to enrol him in the school, claiming that in the absence of a second sentence of imprisonment he could not be treated as а “recidivist”. In his written pleadings he relied explicitly on the right to education as guaranteed by Article 53 of the Constitution and by Article 2 of Protocol No. 1 to the Convention, as well as on Rule 77 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, which provided, inter alia, that “[p]rovision shall be made for the further education of all prisoners capable of profiting thereby”. In the applicant’s opinion the Execution of Punishments Act 1969 (see paragraphs 15-18 below) imposed the same obligation on the authorities to provide access to education to prisoners detained on remand as the obligation to provide such access to sentenced prisoners. The refusal pursued no legitimate aim and was contrary to the National Education Act 1991 and the United Nations Convention against Discrimination in Education (published in the Official Gazette in 1963). During the hearing he indicated that other persons in his situation were allowed to study and that the prison authorities had not shown any legal ground for their refusal. The prison governor admitted that there had previously been a practice of providing access to the school, but that this had been discontinued because of concerns about the influence of “recidivists” on “non-recidivists”. The applicant had been refused access as he was to be treated as a “recidivist” within the meaning of the Execution of Punishments Act 1969 (see paragraph 20 below) and could not attend the school because this would bring him into contact with non-recidivists. 9. In a judgment of 24 March 2006, the Stara Zagora Regional Court allowed the applicant’s appeal and ordered the governor to include him in the prison’s educational programme. It found, in particular, that the refusal of the prison governor was based on the assumption that the applicant was a “recidivist” and that since the Stara Zagora Prison was a prison for “nonrecidivists”, it was the duty of the prison administration to exclude him from programmes involving other inmates, most of whom were “nonrecidivists”. The court held that the applicant could not be considered a “recidivist”, as defined by section 158 of the Execution of Punishments Act because, although he had previously received a sentence of imprisonment, the current set of proceedings against him were still pending and he had not yet been convicted and sentenced a second time. The rule requiring that “recidivists” be kept separately from “non-recidivists” in prison was, therefore, inapplicable. 10. The prison governor appealed against that judgment. He argued that, in accordance with the principle for differentiated treatment of the various categories of prisoner, the applicant was accommodated in the group of those remand prisoners who, if convicted, would fall within the category of “recidivists”. Moreover, the Stara Zagora Prison was a prison for “non-recidivists” and the accommodation of “recidivists”, including remand prisoners treated as such, was exceptional. 11. Before the examination of the appeal, on 9 August 2006 the applicant requested the governor to enrol him in the prison school for the new school year, starting 15 September 2006. As he received no reply to his request, on 21 September 2006 he filed a similar request with the Execution of Punishments Directorate of the Ministry of Justice. 12. On 26 September 2006 the Supreme Administrative Court gave a final judgment in respect of the applicant’s complaint about exclusion from the school. Before the Supreme Administrative Court, the prosecutor (who intervenes in all Supreme Court proceedings) was of the view that the decision of the Stara Zagora Regional Court was correct and that the prison governor’s appeal should be dismissed. The prosecutor further expressed the view that the grounds for the cassation appeal were unclear and based on an incorrect interpretation of the applicable law, contrary to the correct interpretation given by the first-instance court in the decision appealed against. In its decision the Supreme Court noted that before the 2002 amendments, the Execution of Punishments Act imposed an obligation for the mandatory education of all prisoners under 40 years of age. The current provision envisaged mandatory education only for persons under the age of 16; for those aged 16 and over there was an obligation on the State to make education available for prisoners who wished to take part. However, convicted prisoners had a right under domestic law to access education only where they had been sentenced to one year or more of imprisonment, to ensure that they would have the possibility of completing a school year (see paragraphs 15-19 below). The Supreme Court concluded: “[T]he right to education (whether mandatory or voluntary) is envisaged and regulated in the legislation of the Republic of Bulgaria solely in regard of persons deprived of liberty as a result of a final conviction [лишаване от свобода] and not in regard of those deprived of liberty pursuant to a measure of remand [задържане под стража].” It followed that the question whether the prison authorities unlawfully considered the applicant to be a “recidivist” was irrelevant. 13. Referring to that judgment, on 6 November 2006 the Execution of Punishments Directorate replied to the applicant’s requests of 9 August and 21 September 2006, informing him that he would not be enrolled in the prison school for the year 2006/07. 14. Subsequently, the applicant was convicted and sentenced to imprisonment in respect of the firearms offence. He was removed from Stara Zagora Prison on 20 April 2007 and transferred to Pazardjik Prison to serve his sentence. The Government informed the Court that the applicant did not file any requests to take part in educational activities while at that prison. However, in his observations to the Court, the applicant stated that he did not file a request because there was no school at Pazardjik Prison. In addition, he sent the Court documents which indicated that at least one prisoner considered a “recidivist” had participated successfully in the education programme at Stara Zagora Prison. The applicant was released from Pazardjik Prison on 27 July 2008.