CASE OF MANOLOV v. BULGARIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
4. The applicant was born in 1970. 5. On an unspecified date in the second half of 1994 the applicant was arrested and detained in investigation detention facilities in Kyustendil and Sofia in the framework of a criminal investigation against him. On 25 November 1994 he was transferred to Pazardzhik Prison. 6. On 11 July 1996 the Kyustendil Regional Court found the applicant guilty of a number of violent offences committed between May 1993 and August 1994 and sentenced him to death. On 4 February 1999 the Sofia Court of Appeal upheld the applicant’s conviction but, following the abolition of the death penalty with effect from 27 December 1998 and the concomitant introduction of the sentence of life imprisonment without commutation (see paragraph 30 below), replaced his sentence with life imprisonment without commutation. 7. On 27 January 2000 the applicant was transferred from Pazardzhik Prison to Bobov Dol Prison, where he has been serving his sentence ever since. By order of the prison governor, he was placed alone in a constantly locked cell, as required under the legal provisions governing the regime of life prisoners (see paragraph 30 below). 8. In a decision of 30 November 2001, which became final on 25 April 2002, the Sofia Court of Appeal decided that the applicant was to serve his sentence under the “special regime” applicable to life prisoners at that time (see paragraph 30 below). 9. On 19 April 2007 a special commission in charge of deciding on changes in a prisoner’s regime decided to place the applicant under the “enhanced regime” (see paragraph 30 below). 10. On 1 June 2009, when the Execution of Punishments and Pre-Trial Detention Act 2009 superseded the Execution of Punishments Act 1969, the applicant was placed under the “severe” regime (see paragraph 30 below). His continued to be kept isolated from the rest of the prison population, as normally required under the relevant provisions of the 2009 Act and the regulations for its application (ibid.). The above-mentioned commission has apparently not decided to place the applicant together with the main prison population, as permitted under those provisions under certain conditions (ibid.). 11. In Bobov Dol Prison, the applicant was kept in an individual cell measuring thirteen and a half square metres. The Government submitted that not later than 2007 significant improvements had been made to that cell. In particular, central heating was installed and the old wooden window frames were replaced by modern ones measuring 138 cm by 50 cm and providing enough temperature isolation and access to sunlight. According to evidence put before the Kyustendil Administrative Court and its judgment of 9 June 2011 (see paragraph 28 below), those works were completed in October or November 2006. 12. At all relevant times the applicant’s cell contained an in-cell toilet and a water tap. 13. The applicant’s assertions in respect of the material conditions of his detention are voluminous and lack clarity in that grievances apparently relating to different periods of time are not clearly distinguished. The applicant alleged that during unspecified periods of his incarceration in Bobov Dol Prison he had encountered the following problems: food had been substandard and insufficient in quantity, with some meals containing pieces of plastic, hairs and fur, and the meat meals often containing meat substitutes or no meat at all; the plates in which the food was being served had been dirty and greasy; tap water had been muddy; there had been iron pieces bulging from the bed-spring which had made his bed very uncomfortable, and the bedding provided had been unclean; the taking of a shower (twenty minutes per week) and applicant’s visits to the doctor had been counted as part of his daily outdoor activities; the yard in which he took his daily outdoor exercise had not had toilet facilities, which had prevented him from relieving his needs before the end of the exercise period, and inmates had not been provided with waterproof clothing when spending time outdoors; guard dogs had been placed several metres from the window of the applicant’s cell and with their constant barking at night had prevented him from sleeping; other inmates and the applicant himself had found and killed rats in the cells; the temperature in the applicant’s cell had not risen above twelve degrees Celsius in winter and the heating coal provided in winter had been insufficient; there had been no heating in the bathroom and inmates had been freezing when taking showers in winter; the applicant’s cell lacked sufficient sunlight; for a long time the cell’s floor had been left riddled with holes and not covered with linoleum; and the cleaning products provided for the in-cell toilet had been insufficient, consisting of a mere two spoonfuls of chlorine a month, which had made the smell unbearable as the main part of the cell was only separated from the toilet area by a screen. 14. The evidence submitted by the applicant in support of those allegations consisted of his own statements, a statement written in the same handwriting as in all other letters sent by the applicant but co-signed by two other inmates on an unspecified date, and copies of more than fifty complaints that the applicant had sent to the prison administration and various other authorities between 2000 and 2009 and of some of the replies received. The vast majority of those complaints concerned the food served in prison: concrete instances in which the applicant had allegedly not received a full portion, yoghurt had been missing, the food had had a bad taste or smell, or meat had not been provided or had been of low quality. Some of those complaints had been acknowledged as well-founded by the prison administration and the applicant had been assured that measures would be taken. 15. In some of those complaints the applicant raised concerns in relation to the poor quality of coal given to inmates before the installation of a central heating system in October 2006, the fact that bed linen or clothes had not been properly washed, the choice of products available for purchase at the prison canteen, and the fact that a refrigerator in the canteen used to store personal food items had not functioned for a certain period of time. 16. For their part, the Government denied the applicant’s allegations concerning the material conditions of his detention. They said that the quality and quantity of food served to inmates had been fully adequate, and that hygienic conditions in the prison canteen, including in relation to cutlery, had been maintained in line with the applicable standards. Water in the prison had not been muddy; it came from the same pipeline as the water supplied to the town of Bobov Dol. Inmates could also buy bottled mineral water from the prison canteen. The allegation that iron pieces had protruded from the applicant’s bed was not true, and his bed sheets had been changed and washed every week. Bathing time had not been counted as part of the outdoor walk time; unlike other inmates, who had only had one hour of daily outdoor walk time, life prisoners had been allowed one and a half hours. The only reasons for interrupting that walk had been rowdy conduct or bad weather; in the latter case, more outdoor time had been made available later on. The yard designated for the daily outdoor walk did not have a toilet for security and hygiene reasons. Such a toilet was in any event not needed because that yard was adjacent to the applicant’s cell, which was equipped with a toilet. If the applicant had felt an urgent need to go to the toilet during his daily walk, he could have always used that one, and would have never been prevented from doing so. The prison administration was not under a duty to provide inmates with waterproof clothing; when such clothing had been provided as a matter of courtesy, the inmates had very quickly damaged it. It was not true that guard dogs had been kept near the applicant’s cell; such dogs had not been used at all in the zone at issue. Nor had there been rats inside the applicant’s cell; its door, windows and piping had been built in a way not permitting rats to come in, and the prison administration was under a duty regularly to carry out pest control. The applicant’s cell had had central heating since 2007, and the temperature inside the cell and the bathroom had been around eighteen degrees Celsius. The cell’s window, which, like all windows in Bobov Dol Prison, had had its old wooden frame replaced with a new PVC one, did not have any covers preventing sunlight from coming in and could be freely opened, and the cell’s floor was covered with linoleum which was in a good condition. Cleaning products were distributed weekly. Cable television was available in the cell. Lastly, works were under way for enlargement of the area for outdoor walks. 17. Apparently in view of the fact that the applicant is serving a sentence of life imprisonment without commutation, he is always handcuffed when taken out of his cell, including inside the prison. The handcuffs are removed once the destination has been reached, if security conditions permit. In particular, the applicant is handcuffed when taken out of his cell for his daily outdoor walk, but the handcuffs are removed during the walk. 18. It does not appear that the applicant has ever been involved in violent incidents in prison or disciplined for violent or aggressive conduct. There is no indication that he has ever tried to abscond from prison either. 19. The facts summarised in this subsection were set out by the applicant in two separate applications to this Court lodged by him in August 2010 (application no. 53109/10) and September 2011 (application no. 67629/11). In those applications he complained about various issues, such as an alleged lack of access to a court, the outcome of proceedings for damages, the impossibility to vote in the October 2011 presidential elections in Bulgaria, and an alleged interference with his right to correspondence. 20. From the materials submitted by the applicant in those two cases it transpires that in 2010-11 he brought a number of claims for damages under section 1 the State and Municipalities Liability for Damage Act 1988 (see paragraph 30 below) before the territorially competent Kyustendil Administrative Court. Those claims concerned dozens of allegations concerning various aspects of the conditions of his detention and specific incidents allegedly breaching his rights. 21. The claims that directly relate to the subject matter of the present case concerned, inter alia: the allegedly poor quality of tap water in Bobov Dol Prison; the allegedly insufficient heating; the allegedly insufficient surface of the area for outdoor walks; the alleged failure of the prison authorities to transfer the applicant to a collective cell with a view to enabling him to have contacts with other inmates; the alleged failure of the prison authorities to provide any educational courses for the applicant or to enable him to take part in artistic, cultural, sport, religious or other activities; the fact that the applicant had been routinely handcuffed when taken out of his cell; and allegedly frequent body searches by prison guards. 22. Other claims concerned matters such as an alleged refusal of the prison authorities in 2010 to provide the applicant with copies of receipts showing that he had paid for mail sent by him; alleged delays and obstacles in respect of mail that the applicant had wished to send; an alleged refusal to allow the applicant to use a combined MP3/radio device as opposed to separate radio and MP3 devices, which were allowed; an alleged refusal of the prison administration to wash the applicant’s underwear, etc. 23. In relation to several claims, the Kyustendil Administrative Court instructed the applicant to clarify the link between the facts described in his statement of claim and the alleged damage, and to submit a declaration of means. As the applicant did not comply with those instructions, the court discontinued the proceedings in respect of some of the claims. 24. At least four cases proceeded to judgment on the merits. 25. In a case decided on the merits on 25 February 2011, the Kyustendil Administrative Court dismissed the applicant’s claim for damages concerning the fact that tap water in Bobov Dol Prison had on occasions been muddy and unfit for drinking. The court noted that although there was evidence that sometimes, especially after heavy rains, the quality of that water had been bad, the laboratory analysis had confirmed that it had been safe for drinking. The prison was connected to the general water supply system and got the same water as that supplied to households nearby. The applicant’s allegations, for instance that he had endured acute stomach pain and had required medical assistance, had not been made out. Moreover, the applicant had had the possibility to buy bottled mineral water from the prison canteen or, if he did not have the necessary means for that, boil tap water using a device which he confirmed that he had in his cell, or filter it. The applicant’s appeal on points of law against that judgment was not examined by the Supreme Administrative Court as he failed to pay the requisite fee of BGN 5 for the processing of the appeal (see опр. № 9496 от 28 юни 2011 г. по адм. д. № 8190/2011 г., ВАС, ІІІ о.). 26. A case decided on the merits by the Kyustendil Administrative Court on 1 March 2011 concerned a specific incident on 2 September 2009 in which prison staff had entered the applicant’s cell for a search accompanied by a dog trained to find narcotic drugs. The court dismissed the applicant’s claim that he had endured stress because of his fear of dogs. There was no evidence that the dog, which had been kept on a leash, had been handled in an inappropriate manner. That case ended in a judgment of the Supreme Administrative Court of 14 November 2011 (реш. № 14766 от 14 ноември 2011 г. по адм. д. № 8803/2011 г., ВАС, ІІІ о.) whereby the applicant’s appeal on points of law against the Kyustendil Administrative Court’s judgment was dismissed. 27. Another case decided on the merits by the Kyustendil Administrative Court on 17 March 2011 concerned thirty-three separate allegations relating to various aspects of the conditions of the applicant’s detention. It appears that in his statement of claim the applicant had made confused assertions about the periods of time to which those claims related and that he eventually only claimed non-pecuniary damages in respect of a limited period of time in the first half of 2010. The court dismissed all of the applicant’s claims. With regard, in particular, to the surface of the area for daily outdoor walks, it found that it was one hundred square metres. It went on to note that the bodily searches to which the applicant had been subjected had not involved any undressing or inappropriate touching of his private parts but patting, through his clothes, with a view to determining whether or not he had had on him any unauthorised items. The systematic handcuffing of the applicant was not in breach of the Execution of Punishments and PreTrial Detention Act 2009 or the regulations for its application, was not inconsistent with the applicant’s prison regime, could be considered necessary in view of the seriousness of the offences in relation to which he had been sentenced to life imprisonment, and had not been intended to humiliate the applicant. With regard to the claim that the applicant had not been transferred to a multi-occupancy cell despite the possibility to do so for life prisoners serving their life sentence under the “severe” regime, the court found that those matters fell within the discretion of the special commission for the execution of sentences; there had therefore not been a failure on the part of the prison authorities to observe a binding legal obligation. The same went for educational courses. The applicant’s appeal on points of law against that judgment was not examined by the Supreme Administrative Court as he failed to pay the requisite fee of 5 Bulgarian levs (BGN) (the equivalent of 2.56 euros (EUR)) for the processing of the appeal (see опр. № 9090 от 23 юни 2011 г. по адм. д. № 8057/2011 г., ВАС, ІІІ о.). 28. The applicant’s claim concerning the allegedly low temperatures in his cell related to two winters: the periods between October 2005 and April 2006, and the period between October 2006 and April 2007. The court ordered an expert report, which showed that the amount of coal provided to inmates in Bobov Dol Prison in 2005-06 had been adequate and that central heating had been installed in the prison in October 2006. In a judgment of 9 June 2011 the Kyustendil Administrative Court found that the prison administration had provided the applicant with enough coal to secure a temperature of approximately twenty degrees Celsius in his cell during the first period, and that central heating had been installed before the second period. The applicant’s claim was therefore dismissed. That judgment was apparently not validly appealed against. 29. From other materials submitted by the applicant it appears that in 2012 he tried to bring a number of further claims under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 30 below) in relation to various instances in which his rights had allegedly been breached by the prison authorities. None of those claims was accepted for examination by the Kyustendil Administrative Court as a result of apparent failures on the part of the applicant to formulate his claims properly and pay the requisite court fees. In a series of decisions given in 2012-13 the Supreme Administrative Court upheld the lower court’s decisions not to examine the claims on the merits.