CASE OF PETROV v. BULGARIA
Partly admissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 13 (excessive length of the criminal proceedings);No violation of Art. 13 (monitoring of the applicant's correspondence);Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
5. On 12 November 1990 the applicant and a Mr S.V. were arrested in Sofia on suspicion of having stolen a car. They were charged by a military investigator, who was competent because at the time Mr S.V. was an army private, and placed in pretrial detention. 6. In the beginning of 1991 Mr S.V. managed to escape during a transfer from one detention facility to another. In May 1991 the applicant was released on bail. 7. On 24 July 1991 the applicant was arrested in Gabrovo on charges of theft. The case was assigned to the Pleven Regional Military Prosecutor’s Office on account of Mr S.V.’s being in the army. There it was joined to other cases pending against Mr S.V., some of which also concerned the applicant. 8. On 5 February 1993 the proceedings were stayed as Mr S.V.’s whereabouts were unknown. According to the applicant, Mr S.V. had settled in Greece, but during the following years had come back to Bulgaria every summer without ever having been stopped or bothered by the authorities, and had even renewed his identity documents. 9. In 2001 the applicant enquired about the state of the proceedings against him. He was informed that Mr S.V. had not been found yet and that the proceedings were still stayed. 10. On 27 July 2001 the investigation was taken up by the Pleven Regional Military Prosecutor’s Office. On 10 August 2001 this Office disjoined the cases against the applicant and assigned them to the Sofia, Varna, Plovdiv and Gabrovo District Prosecutor’s Offices, in accordance with their territorial competence, and to the Sofia Regional Military Prosecutor’s Office. 11. On 28 June 2002 the Plovdiv District Prosecutor’s Office discontinued the investigation against the applicant because the relevant limitation period has expired. On 28 August 2002 the Sofia District Prosecutor’s Office discontinued its investigation for the same reason. 12. On 5 March 2002 the Gabrovo District Prosecutor’s Office dropped certain charges against the applicant and indicted him for a number of others. The case was heard by the Gabrovo District Court, which convicted the applicant in a judgment of 4 November 2002. It seems that applicant did not appeal. Certain other charges against the applicant were dropped by the Gabrovo District Prosecutor’s Office on 28 October 2003. 13. It is unclear whether the cases against the applicant handled by the Varna District Prosecutor’s Office and the Sofia Regional Military Prosecutor’s Office have been discontinued or are still pending. 14. On 4 April 2001 the applicant was taken to the Lovech Prison to serve a sentence of three and a half years’ imprisonment imposed in 2000. Later this sentence was aggregated with several other punishments meted out in separate proceedings. He was released on 29 January 2003. 15. During his stay in prison, the applicant was not allowed to write to his lawyer representing him in various criminal proceedings and in the proceedings before the Court in sealed envelopes, or to talk to her on the telephone. His mail, including the letters to and from his lawyer, was systematically opened and checked. This was confirmed by a letter written on 15 November 2006 by the head of the “Execution of Punishments” directorate of the Ministry of Justice and produced by the Government before the Court. The letter said that pursuant to section 33(1)(c) of the 1969 Execution of Punishments Act (see paragraph 18 below) prisoners’ correspondence was subject to monitoring by the prison administration. It further said that as the applicant had been an inmate, his correspondence had been monitored to ensure the proper implementation of section 37(2) of the Regulations for the application of the Act (see paragraph 19 below). 16. In the summer of 2001 a telephone booth was installed in the prison and the inmates were allowed to use it to call their relatives twice a month. They were told that this facility concerned parents, brothers and sisters, children and spouses. At the request of several inmates the warden apparently informally accepted to extend it to unmarried partners. At first the applicant, who before his incarceration had lived for about four years with Ms S.P. and had had a child with her just forty days before going to prison, was also able to benefit from the opportunity to call his partner on the telephone. However, in August 2001 the warden refused to allow him to avail himself of this facility. The applicant objected, but the warden replied that the law provided for a right to call spouses only and that if the applicant was so attached to his partner and their child, he could always marry her. In the beginning of 2002, following an intervention by the Child Protection Agency, which the applicant’s lawyer had contacted about the matter, he was once again allowed to have telephone conversations with his partner. 17. Articles 30 and 34 of the 1991 Constitution read, as relevant: “Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.” “1. The freedom and secret of correspondence and other communications shall be inviolable. 2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.” 18. Section 33 of the 1969 Execution of Punishments Act (Закон за изпълнение на наказанията), as in force at the relevant time, read, in so far as relevant: “1. Prisoners are entitled ... to: ... (c) correspondence and food parcels, which are subject to inspection by the [prison] administration.” 19. Section 37(2) of the regulations for the application of the Act, as in force at the relevant time and until present, provides that if the contents of a letter are such that for security, prison regime or disciplinary reasons it cannot be delivered to the prisoner or dispatched by mail, the inmate must be informed of this and the letter must be put in his file. 20. In June 2002 new provisions regarding persons detained on remand were added to the Act. Subsection 3 of the newly enacted section 132d read as follows: “The correspondence of the accused and the indicted is subject to inspection by the [prison] administration.” 21. In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по конституционно дело № 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court, acting pursuant to a request by Chief Prosecutor, declared this provision unconstitutional. After analysing in detail the relevant constitutional and Convention provisions and making, inter alia, reference to the cases of Campbell v. the United Kingdom (judgment of 25 March 1992, Series A no. 233), Calogero Diana v. Italy (judgment of 15 November 1996, Reports of Judgments and Decisions 1996V) and Petra v. Romania (judgment of 23 September 1998, Reports 1998VII), the court held that a blanket authorisation to inspect the correspondence of all inmates without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles 30 § 5 and 34 of the 1991 Constitution. 22. The subjectmatter of the case was limited to reviewing the constitutionality of section 132d(3) of the 1969 Execution of Punishments Act. For this reason section 33(1)(c) of the Act, despite having almost identical wording, was not reviewed for constitutionality. 23. Under Bulgarian law, the decisions of the Constitutional Court declaring a statutory provision contrary to the Constitution have effect only for the future (ex nunc). 24. Section 37a(1) of the Regulations for the application of the 1969 Execution of Punishments Act, added in June 2001, provides that inmates may use a payphone installed in the prison in accordance with regulations issued by the head of the “Execution of Punishments” directorate of the Ministry of Justice. Subsection 2 provides that inmates may use the telephone to call only their relatives by direct ascending or descending line, their brothers, sisters and spouses. The telephone conversations are carried out under the supervision of a prison staff member, who makes sure in advance that the conversation is indeed with its purported addressee (subsection 3). 25. Section 18(2) of the 1991 Bar Act (Закон за адвокатурата), presently superseded by section 33(2) of the 2004 Bar Act, provided that the correspondence between lawyers and their clients was inviolable, could not be subject to interception and could not be used as evidence in court.