FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40653/98 by Plamen Parashkevov IORGOV against Bulgaria

The European Court of Human Rights (First Section), sitting on 3 October 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner, judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 4 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Plamen Parashkevov Iorgov, is a Bulgarian national, who was born in 1957. He was not legally represented.

The respondent Government were represented by Mrs G. Samaras, co ‑ agent, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant's conviction and sentence

On 9 May 1990 the applicant, who had three previous convictions and prison sentences, was convicted of the murder on 17 July 1989 of three children, aged 8, 10 and 12, attempted rape of one of them, attempted rape of a woman in 1984 and attempted illegal crossing of the State border in August 1989. The court imposed the capital punishment.

The applicant's conviction and sentence were upheld on appeal on 24 October 1990 by the Supreme Court. On 8 April 1994 a five-member chamber of the Supreme Court dismissed the applicant's ensuing petition for review (cassation).

2. Moratorium on executions and abolition of the death penalty

The last executions were carried out in Bulgaria in November 1989. Following a period of a de facto moratorium on executions, on 20 July 1990 the Parliament adopted a decision “on deferral of the execution of death sentences” which read:

“The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in Bulgaria.”

Since the capital punishment remained in the Penal Code, the courts continued sentencing convicted persons to death or - as in the applicant's case - upholding on appeal death sentences delivered before 20 July 1990.

On 10 December 1998 Parliament abolished the death penalty replacing it by life imprisonment without parole eligibility.

By decision of 25 January 1999 the applicant's death sentence was commuted to life imprisonment without parole eligibility.

On 29 September 1999 Bulgaria ratified Protocol No. 6 to the Convention.

3. The conditions of the applicant's detention pending the moratorium on executions

a) the regime of detention

According to section 130 of the Execution of Sentences Act, as in force at the time of the moratorium on executions, persons awaiting execution were to be detained in complete isolation, correspondence and visits being only possible if permitted by the competent prosecutor.

On 2 August 1990 the Deputy Director of Central Prisons Board instructed prisons administrations that the Parliament's decision suspending executions also suspended by implication this restrictive regime of detention.

The instruction stated, in so far as relevant, that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “special regime” (the regime of detention of recidivists and, after 1995, persons sentenced to life imprisonment: sections 43 and 127b of the Execution of Sentences Act as in force at the time). Inmates should have a bed, bedcover, a bed-side piece of furniture and a centrally operated radio loudspeaker. They should be allowed unlimited correspondence, newspapers and books, one visit per month, one hour of daily outdoor walk without contact with other categories of prisoners and the receipt of one food parcel every six months and a small amount of money. If possible, they could work in the cell.

On 26 July 1996, the Director of the Central Prisons Board and a prosecutor of the Chief Public Prosecutor's Office issued an instruction which stated that, “in view of the continuing moratorium on executions”, persons sentenced to death should be allowed unlimited correspondence, one hour daily outdoor walk, one visit per month and the receipt of two food parcels and 30 packs of cigarettes per month and small amounts of money.

b) the actual conditions

The applicant was detained in the Sofia prison, in a wing for prisoners under the “special regime” provided for by section 56 of the Regulations on the Application of the Execution of Sentences Act, approximately twenty inmates. He changed cells several times.

Following a period of solitary confinement, on an unspecified date in 1990 the applicant was transferred to a cell where he lived with two or three other detainees.

The applicant alleges that on 21 June 1995 he and eight other death ‑ sentence prisoners were moved to independent cells, where each of them was alone. It appears that the applicant remained in this cell at least until the end of 1998.

The cell floor measured 2/4 metres. The ceiling was 3.30 metres high. Until October 1998, when new larger windows were installed in all cells, the cell window was small and did not allow sufficient light or fresh air. As a result, in summer it was very hot. However, in winter it was very cold because the heating, covered by a bricks layer, was not working properly.

There was one 60-Watts electric bulb in the cell. As it was installed on the wall above the door, its light was insufficient which made reading tiring for the eyes. It appears that the light was on all nights.

The applicant alleged that between June 1995 and January 1997 he had been sleeping on a plank-bed. In his recollection, a centrally operated radio loudspeaker was installed in March 1996. A proper bed and a bed-side piece of furniture were provided in January 1997. After April 1998 the applicant possessed a portable radio receiver which was sent to him in a parcel.

The Government provided photographs, apparently made in the summer of 1998, of the applicant's cell. It is visible that the cell's furbishing consisted of a bed, a bed-side piece of furniture and a small table. A loudspeaker and hangers were suspended on the wall. Books, a metal bowl, plastic bottles, clothes and blankets are visible on the photograph.

Inmates were given one hour out-of-cell time in the morning in an open yard. There they could walk together with other inmates from the high security wing. The applicant could also leave his cell once again, in the evening, to use the sanitary facilities. During the remaining part of the day, he had to use a bucket full of water which served as a chamber pot. As a result, there was allegedly a constant stink in his cell.

Inmates could have a shower once per week, for several minutes.

One or two visits of one-half hour were allowed per month. Visits by lawyers were not limited. For the period 1990-1998 the applicant had thirty ‑ five visits.

During the relevant period there has been no limitation on correspondence. Between 1990 and 1 August 1998 the applicant received eighty-three food parcels and fifty-six money orders. He was also entitled to a small amount of money per month, which he used to buy toilet items and food from the prison shop. Nevertheless, he was often lacking items such as tooth paste, shaving cream, razors, cigarettes and coffee.

The applicant received the same medical service as all other prison inmates. The Government submitted a copy of his medical record according to which he had been seen by a doctor or a dentist almost every month during the period 1990-1998. The infirmary was opened eight hours per day.

In July 1997 the applicant underwent surgery of a swollen gland at the prison hospital. It appears that the applicant was known to the medical personnel with his frequent unwarranted requests for medical examinations.

During the relevant period the applicant sent numerous complaints in respect of the conditions of his detention to the Director of the Sofia Prison, to the Director of the Central Prisons Board, the Chief Public Prosecutor's Office and to other institutions. He received answers to only a part of his complaints. With the exception of a request to use a radio receiver and several requests for medical treatment, all other complaints allegedly did not bring about any improvement of his situation.

On an unspecified date in 1999 the applicant was moved to the Pleven prison.

4. The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) on their visit to Bulgaria in 1995

The CPT has not visited the Sofia prison where the applicant was detained.

In 1995 it visited, however, two inmates sentenced to death and detained in the Stara Zagora prison facilities and described the conditions of detention there as follows:

“The material conditions in the cells left a great deal to be desired: mediocre access to natural light and weak artificial lighting; inadequate heating; cell furnishings in a poor state of repair; dirty bed linen, etc.  As regards out-of-cell activities, they were limited to 15 minutes per day for use of the sanitary facilities, one hour outdoor exercise (which the prisoners alleged was not guaranteed every day) and one visit per month.  The two prisoners were not allowed to work (not even inside their cells), nor to go to the library, the cinema room or the refectory (their food was brought to the cell). In short, they were subject to an impoverished regime and, more particularly, were offered very little human contact. The latter consisted essentially of the possibility to talk to each other during outdoor exercise (which they took together), and occasional dealings with prison officers. Practically the only forms of useful occupation at their disposal were reading newspapers and books, and writing letters.

The above-described situation is in accordance with the rules concerning prisoners sentenced to death, adopted after the moratorium on the execution of the death penalty... Nevertheless, in the CPT's view it is not acceptable.

It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. The delegation found that the regime applied to prisoners sentenced to death in Stara Zagora Prison did not provide such stimulation.

The CPT recommends that the regime applied to prisoners sentenced to death held in Stara Zagora Prison, as well as in other prisons in Bulgaria, be revised in order to ensure that they are offered purposeful activities and appropriate human contact.  Further, the CPT recommends that steps be taken to improve the material conditions in the cells occupied at Stara Zagora Prison by prisoners sentenced to death.”

COMPLAINTS

The applicant complained, relying on Articles 3, 8 and 13 of the Convention, that he suffered for many years of the uncertainty as to his execution, that there were no clear legal rules concerning the conditions of his detention, that the material conditions in his cell and in the prison in general until the abolition of the death penalty were inhuman, that the authorities did not react adequately and timely to his complaints in this respect and that the medical care he received was inadequate.

Invoking Article 6 of the Convention, the applicant claimed his innocence. He stated that another person had murdered the children in his presence and that his allegations in this respect had not been examined carefully. His conviction had been secured through a forced confession.

On 14 August 2002 the applicant submitted a new complaint concerning the conditions of his detention after the abolition of the death penalty and his transfer to the Pleven prison.

THE LAW

1. The applicant complained, relying on Articles 3, 8 and 13 of the Convention, that he suffered for many years as a result of the uncertainty as to his execution and generally of the conditions of detention until the abolition of the death penalty and the lack of positive reaction of the authorities to his complaints.

The above complaints fall to be examined under Articles 3 and 13 of the Convention.

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

a) The Government submitted that the applicant had not exhausted all domestic remedies as he had not complained, after 1995, to all levels of the prosecution authorities and had not brought a civil action for damages. The Government also alleged that the complaint under Article 3 of the Convention was abusive as the applicant had made untrue statements such as that he did not receive parcels and that medical care had been refused.

The applicant replied that he had tried all possible appeals and that his allegations were true.

The Court, having regard to the numerous complaints submitted by the applicant to the prison authorities, considers that the Government's objection as to the exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention is unfounded. Further, the Court does not find grounds to declare the application abusive.

The Government's objections as to the exhaustion of domestic remedies and alleged abuse must therefore be rejected.

b) As to the substance of the complaints, the Government stated that the size of the applicant's cell and all material conditions of detention, including medical care, had always been in conformity with the European Prison Rules.

The Government submitted that the delay between the moratorium on executions in 1990 and the final abolition of the death penalty in 1998 had been inevitable as the public debate and the evolution of societal attitudes had required time. Therefore, the very fact that the abolition of the death penalty was an important and difficult step in the protection of human rights should not be overlooked in assessing the case

The applicant described the conditions in his cell between 1995 and the end of 1998 and reiterated his complaints. He also stated that he had been living under a constant fear of execution.

The Court considers, in the light of the parties' submissions, that the above complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2. The applicant complained under Article 6 of the Convention of the alleged unfairness and the outcome of the criminal proceedings against him.

The Government stated, inter alia , that the complaint was introduced after the expiry of the six months period under former Article 26 of the Convention (Article 35 § 1).

The Court finds that the above complaint, insofar as it concerns proceedings before 7 September 1992, the date of the Convention's entry into force in respect of Bulgaria, is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

As regards the remainder, the Court observes that the application was introduced on 4 December 1997 whereas the final decision within the meaning of Article 35 § 1 of the Convention was that of the Supreme Court of 8 April 1994.

It follows that the remainder of the above complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. On 14 August 2002 the applicant submitted a new complaint concerning the conditions of his detention after the abolition of the death penalty and his transfer to the Pleven prison.

Having regard to the stage of the proceedings, the Court considers that in the interests of the proper conduct of the proceedings this complaint should be disjoined and examined as a separate application.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints that he suffered for many years as a result of the uncertainty as to his execution and generally of the conditions of detention until the abolition of the death penalty and the alleged lack of positive reaction of the authorities to his complaints;

Disjoins the applicant's complaint of the conditions of his detention after the abolition of the death penalty and his transfer to the Pleven prison and adjourns its examination;

Declares the remainder of the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President