FOURTH SECTION

CASE OF STOYAN KRASTEV v. BULGARIA

( Application no. 1009/12 )

JUDGMENT

Art 5 § 5 • Compensation • Inability for a sentenced prisoner to obtain compensation for unlawful confinement in an a disciplinary isolation cell • Applicability of Art 5 § 5 as regards the punishment cell depending on the existence of a separate “deprivation of liberty” within the prison under Article 5 § 1 • Case distinguishable from Court’s earlier cases concerning a significant change in the manner of implementation of detention • No modification of the legal grounds for the applicant’s deprivation of liberty • Isolation aimed at ensuring the safety of all detainees • Applicant’s claimed disturbance and distress not accepted • No major difference between both regime and conditions of detention in the prison • No further “deprivation of liberty” • Article 5 inapplicable

STRASBOURG

6 October 2020

FINAL

08/03/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Stoyan Krastev v. Bulgaria ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Faris Vehabović , President, Yonko Grozev , Iulia Antoanella Motoc, Stéphanie Mourou-Vikström , Georges Ravarani , Jolien Schukking, Péter Paczolay , judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to:

the application against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Stoyan Trayanov Krastev (“the applicant”), on 12 December 2011;

the decision to give notice to the Bulgarian Government (“the Government”) of the complaint relating to lack of compensation for the applicant ’ s isolation in prison and to declare inadmissible the remainder of the applicant ’ s complaints;

the parties ’ observations;

Having deliberated in private on 15 September 2020 ,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1 . The case concerns a complaint, made under Article 5 § 5 of the Convention, about the applicant ’ s inability to obtain compensation for his unlawful detention in an isolation cell for fourteen days while he was serving his prison term.

THE FACTS

2 . The applicant was born in 1966 and lives in Pernik. The applicant was represented by Mr I. Stoyanov , a lawyer practising in Blagoevgrad.

3 . The Government were represented by their Agent, Ms M. Dimova , of the Ministry of Justice.

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

5 . In April 2008 the applicant started serving a three-year prison sentence under the “general prison regime”. He spent the period between 24 April 2008 and 25 February 2009 in an open-type prison hostel ( затворническо общежитие от открит тип ), where, in accordance with an order of the warden, he worked as a driver on an external working site and slept away from the hostel.

6 . After 25 February 2009 he was no longer allowed to work outside the prison hostel, because of his frequent absences from his work post.

7 . On an unspecified date in 2009 the director of the Chief Directorate for the Execution of Sentences was informed that the applicant had made threats towards the prison warden and had repeatedly prompted other inmates to write letters of complaint against the prison administration.

8 . On 6 August 2009 the applicant was involved in a brawl with a fellow prisoner (see paragraph 13 below).

9 . On 12 August 2009 the director of the Chief Directorate for the Execution of Sentences ordered the applicant ’ s isolation in a disciplinary isolation cell for a period of fourteen days. The reason indicated in the order was that it was punishment for his arrogant behaviour and the threats he had made towards fellow detainees and prison staff. The order further stated that it was aimed at ensuring the applicant ’ s own physical safety and general security in the prison establishment. The head also gave instructions that the applicant was to be moved to Bobov Dol Prison, in view of the psychological tension and incompatibility between him and other inmates.

10 . The applicant was transferred to Bobov Dol Prison on 13 August 2009. He was detained in a disciplinary isolation cell between that date and 30 August 2009, save for the period between 17 and 19 August 2009 (exact hours not specified), when he was taken to Sofia Prison for investigative measures.

11 . On 17 August 2009, acting through his lawyer, the applicant challenged in court the order placing him in isolation. In particular he complained that his isolation was detrimental to his health and well-being.

12 . The Sofia District Court, finding that the order was an individual administrative act, declared the challenge admissible in respect of the punishment imposed and set aside the imposition of the punishment as unlawful in a final decision of 3 September 2009.

13 . In doing so the court established that the incident that had taken place on 6 August 2009 had risked provoking unrest in the prison and compromising the safety of the establishment and its detainees. It then found that the order of 12 August 2009 had been issued in breach of both substantive and procedural legal provisions. In particular, the order had not contained a title and had not indicated before which authority it could be challenged and within what time frame.

14 . In addition, the court held that the order had specified solely the sanction imposed on the applicant. However, there was no indication as to what type of offence he had committed that had justified the imposition of the punishment. That had deprived him of the opportunity to repent and accept the punishment, or to appeal against it if he considered it unjustified.

15 . Finally, the order had listed the applicant ’ s writing letters of complaint against the prison administration as a breach of the regulations in place. That finding of a breach had been erroneous since prisoners had the right to complain and, moreover, the prompting of others to write letters of complaint was not unlawful either.

16 . Thereafter, the applicant brought proceedings under section 1(1) of the State and Municipalities ’ Responsibility for Damage Act (“the SMRDA”, see paragraph 24 below), seeking compensation in respect of his unlawful isolation. In particular, he claimed that as a result of his isolation he had experienced lasting and profound distress, severe psychological disturbance, and physical pain and suffering, as the isolation had worsened the symptoms related to his long-standing lower back pain.

17 . His related claim was dismissed on the merits by administrative courts at two levels of jurisdiction.

18 . The courts found that the applicant had demonstrated that he had been the subject of an unlawful act of the administration, within the meaning of section 1 of the SMRDA. However, he had been required to show that he had suffered for a significantly long period of time and sufficiently intensely for there to be any justification for awarding him compensation in respect of non-pecuniary damage. There was no documentary evidence to show that lasting stress and suffering, either during or after his isolation, had indeed occurred, contrary to the applicant ’ s claims. Consequently, the applicant had not demonstrated that he had suffered non-pecuniary damage as a result of his placement in the isolation cell. Likewise, there was no causal link between the unlawful administrative act in question and the applicant ’ s lower back pain.

19 . The final decision on the applicant ’ s claim was taken by the Supreme Administrative Court on 13 June 2011, which upheld the lower court ’ s findings in their entirety.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

20 . Section 101(7) of the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”) provides that isolating a prisoner in a punishment cell is one of the disciplinary punishments for breaches of order and discipline in prison. Under section 111 of the 2009 Act, the order for placing a prisoner in such a cell is subject to judicial review by an administrative court within three days of its being issued.

21 . Section 103 of the 2009 Act provided at the time of the events that those isolated in a punishment cell had no right to receive visits or food parcels. Regulation 96 of the Regulations for the Implementation of the 2009 Act (“the Regulations”) provided that, in addition to the above restrictions, prisoners placed in isolation punishment cells had no right to use a telephone or to keep money for personal use. Furthermore, punishment cells had to be located in the high-security wing of a prison and be isolated from the rest of the premises. The individuals placed in such cells had to take their meals in the cell and had the right to a shower twice a week. They were allowed outside for their daily walk, separated from all other prisoners. They had the right to keep the following items in the punishment cell: bedding, a blanket to be used only at night-time, underwear, t ‑ shirts, a pair of trousers, a jumper or a cardigan, a hat, socks, shoes, slippers, a handkerchief, a face cloth, soap, toothpaste and a toothbrush, shaving soap and a brush, toilet paper, spectacles, a wedding ring, postal envelopes and stamps, sheets of paper and a pen, and some reading material.

22 . Under regulation 52 of the Regulations, prisoners serving their sentence under the general prison regime are to be placed in establishments of a closed or open type. In the case of those serving their sentence in an open-type prison, the corridors of the wing in which their cell is located are locked at night. All prisoners serving their sentence under the general prison regime have the right to work in the service sector and those placed in an open-type establishment can work on sites outside the prison.

23 . The regime for life prisoners (“special prison regime”) is governed by regulations 213 to 220 of the Regulations. Regulation 213 provides that life prisoners must be kept in purpose-built prisons or separate high-security units in other prisons. It also provides that life prisoners must be kept in permanently locked cells under strict supervision, and may only take part in communal activities with other prisoners of the same category. Regulation 214 provides that life prisoners have to be kept isolated from other prisoners, including during transfers, medical appointments, visits, open-air activities or other occasions when they leave their cells.

24 . Section 1(1) of the SMRDA provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, acts or omissions by civil servants, committed in the course of or in connection with an administrative action. By Article 204 § 1 of the Code of Administrative Procedure 2006, a claim relating to damage allegedly caused by an unlawful decision can only be made if that decision has been duly set aside. Under Article 204 § 2 of the Code, the claim for damages may be brought jointly with an application for judicial review of the decision. Article 204 § 4 of the Code provides that if the application relates to an unlawful act or omission, its unlawfulness may be established, as a preliminary point, by the court hearing the claim for damages.

25 . Section 4 of the SMRDA provides that the State ’ s liability extends to all pecuniary and non-pecuniary damage which is a direct and proximate result of the impugned decision, act or omission.

26 . A selection of domestic judgments in which the Supreme Administrative Court has held that it is possible to seek damages under these provisions in relation to unlawful detention by the police can be found in the Court ’ s judgment in Dzhabarov and Others v. Bulgaria (nos. 6095/11 and 2 others, §§ 49-50, 31 March 2016) .

THE LAW

27 . The applicant complained that he had been unable to obtain compensation for his unlawful deprivation of liberty, in breach of his right provided in Article 5 § 5 of the Convention, which reads as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

(a) The parties ’ arguments

28 . The Government submitted that the applicant had failed to comply with the six-month rule. In particular, the claim under the SMRDA, which he had brought in the domestic courts, was not specifically designed to compensate for damage caused by unlawful detention. While it could be considered an effective remedy in respect of unlawful police detention orders, it could not be regarded as such for the complaint which the applicant had raised before the Court. Therefore, the six-month time-limit had to start running from the end of the alleged unlawful detention.

29 . The applicant disagreed. He pointed out that the final domestic act for the purposes of the six-month rule had been the courts ’ decision at the end of the proceedings for damages which he had brought in accordance with domestic law, seeking compensation for being unlawfully deprived of his liberty. The administrative courts had held that the isolation in question had been unlawful. Consequently, the claim for damages in that connection could have been an adequate remedy for his complaint.

(b) The Court ’ s assessment

30 . The Court notes that the administrative act placing the applicant in isolation was declared unlawful at domestic level, following a specific complaint by the applicant ’ s lawyer. In that connection, the administrative courts accepted that the applicant had been subjected to an unlawful act within the meaning of the SMRDA (see paragraph 18 above). Furthermore, the compensatory remedy under the SMRDA had the potential of resulting in damages being awarded in relation to that unlawful act (see paragraph 24 above). Consequently, by pursuing the two sets of proceedings – against the order for his isolation and for compensation on that account – the applicant attempted to exhaust the available domestic remedies. In doing so, he raised in substance at domestic level his complaint that he had been unlawfully deprived of liberty by virtue of being isolated and sought to obtain compensation in that respect. It cannot be said that the applicant ’ s claim under the SMRDA before the administrative courts was doomed to failure from the outset ( Jeronovi č s v. Latvia [GC], no. 44898/10, § 75 in fine , 5 July 2016). The six-month time-limit therefore started running from the final decision in these proceedings, which was given by the Supreme Administrative Court on 13 June 2011 (see paragraph 19 above). The application introduced on 12 December 2011 was lodged in good time. The Court accordingly dismisses the Government ’ s objection relating to the six ‑ month time-limit.

31 . The Court considers that the primary question it must determine in relation to the applicant ’ s complaint is whether his placement in isolation for fourteen days amounted to a separate deprivation of liberty for the purposes of Article 5 and, therefore, whether Article 5 § 1 of the Convention applies. Only if Article 5 § 1 were found to be applicable would the applicant ’ s complaint under Article 5 § 5 of the Convention be applicable too. It considers, however, that this question is closely linked to the merits of the applicant ’ s complaint (see, for a similar approach, Munjaz v. the United Kingdom , no. 2913/06, § 61, 17 July 2012, and Kasparov v. Russia , no. 53659/07, § 30, 11 October 2016). It therefore joins this preliminary issue to the merits.

32 . The Court further finds that this complaint is not inadmissible on any other grounds and therefore declares it admissible.

B. Merits

1 . The parties ’ arguments

(a) The applicant

33 . The applicant submitted that his isolation in the punishment cell had represented a further deprivation of liberty in addition to the sentence of imprisonment which he had been serving at the time. He specified that he had been deprived of social contact with all other inmates and prohibited from watching television or listening to the radio. Likewise, he had been made to eat alone in his cell and to spend the time allocated every day to being in the open air separated from all other prisoners. He had also been subjected to a higher level of security measures.

(b) The Government

34 . The Government pointed out that the disciplinary punishment imposed on the applicant had not represented a new type of detention on a separate legal ground and consequently did not fall under Article 5 § 1 of the Convention. The enforcement of the disciplinary punishment in question had been a legitimate deprivation of liberty on the basis of the lawful initial sentence delivered by the criminal courts, and which the applicant had been serving under the “general prison regime”.

35 . The Government emphasised that disciplinary measures did not, as such, constitute a deprivation of liberty, even if they had an impact on the conditions under which the person was detained. In certain cases involving disciplinary measures, issues might arise under Articles 3 and 8 of the Convention, but not under Article 5, as disciplinary measures applied to a person serving a lawful prison sentence were only a modification of the conditions of lawful detention. There was no general rule that either solitary confinement or seclusion per se amounted to a further deprivation of liberty. Whether or not there was a further deprivation of liberty in respect of a person who had been lawfully detained ought to depend on the circumstances of each case.

2. The Court ’ s assessment

36 . The Court has repeatedly held that, in order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be the person ’ s concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see, among many other authorities, De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017; Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 57, ECHR 2012; Guzzardi v. Italy , 6 November 1980, § 92, Series A no. 39, and Mogoş v. Romania ( dec. ), no. 20420/02 , 6 May 2004). The difference between deprivation of and restriction upon liberty is one of degree or intensity and not of nature or substance (see De Tommaso , cited above, § 80; Austin and Others , cited above, § 57).

37 . Admittedly, in determining whether or not there has been a violation of Convention rights it is often necessary to look beyond the appearances and the language used and concentrate on the realities of the situation (see, in relation to Article 5 § 1, Van Droogenbroeck v. Belgium , 24 June 1982, § 38, Series A no. 50). Importantly, the characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court ’ s conclusion as to the existence of a deprivation of liberty (see Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012).

39 . In order to establish whether a deprivation of liberty has taken place in the instant case, the Court must examine the applicant ’ s concrete situation and assess the type, duration, effects and manner of implementation of the measure in question. The Court considers that these criteria must apply with greater force when determining whether a person who has already been deprived of his liberty has been subjected to a further deprivation of liberty or merely to a further restriction upon his liberty (see Munjaz , cited above, § 67).

40 . It is undisputed that in the present case the applicant was lawfully detained in prison pursuant to a sentence of imprisonment passed down by a court. It is likewise undisputed that, after 25 February 2009, he was not allowed to work outside the prison and was serving his sentence under the “general prison regime” with all the constraints that this entailed (see paragraphs 6 and 22 above).

41 . The principal issue is whether the order by the head of the Chief Directorate for the Execution of Sentences to place the applicant in a punishment cell (see paragraph 9 above) in itself disclosed a separate deprivation of his liberty within the prison, as distinct from the deprivation of liberty he had to endure in parallel under his prison sentence. The question of the compliance of that order with domestic law is not decisive for this examination, to the extent that it would only be of relevance once an answer is given to the preliminary question mentioned immediately above, namely whether the confinement in the punishment cell represented a separate deprivation of liberty (see, mutatis mutandis , Gulub Atanasov v. Bulgaria , no. 73281/01, § 67, 6 November 2008).

42 . The Court finds it appropriate to distinguish the situation in the present case from the one in Schneiter v. Switzerland (( dec. ), no. 63062/00, 31 March 2005), in which it held that Article 5 was applicable to the applicant ’ s confinement in isolation. In Schneiter , the applicant was initially placed in a psychiatric hospital, from which he walked out on one occasion. Following his voluntary return and subsequent aggressive conduct, he was placed in solitary confinement for eleven days.

43 . Similarly, the situation in the present case should be distinguished from that in Mancini v. Italy (no. 44955/98, ECHR 2001 ‑ IX), and Gulub Atanasov , cited above), in both of which the Court found that replacing house arrest with another, more invasive and restrictive, type of detention amounted to a separate deprivation o f liberty falling under Article 5 § 1 of the Convention. In Mancini , two accused persons were unlawfully held in custody for six days at a time when a lawful order for their house arrest was in force; in Gulub Atanasov , the applicant ’ s house arrest was replaced by internment in a psychiatric institution. The Court found more specifically in Mancini (cited above) that a transfer from house arrest to a detention in prison altered the type of deprivation of liberty to which an applicant was subjected. The reason was that the latter entailed a change in the nature of the place of detention from a private home to a public institution. Unlike house arrest, detention in prison required integration of the individual into an overall organisation, sharing of activities and resources with other inmates, and strict supervision by the authorities of the main aspects of his day-to-day life (ibid., §§ 13-26). Similarly, in Gulub Atanasov (cited above, § 71), the Court found that despite the fact that the applicant ’ s situation in law remained unchanged, in practice the nature and degree of the restrictions on his liberty while in the hospital must have been very different from those associated with house arrest.

44 . The Court notes that in the three cases mentioned in the preceding two paragraphs (namely Schneiter , Mancini and Gulub Atanasov ), there was a significant change in the manner of implementation of the detention, crucially resulting in a major difference between the residual liberties available to the applicants during their initial confinement and their subsequent detention. In Mancini and Gulub Atanasov , there was also a physical change in the location and type of establishment. That undoubtedly involved a considerable difference not only in terms of the physical conditions of the applicants ’ detention but also in respect of the effects it had on them.

45 . Notwithstanding the above, in two other cases, namely Bollan and Munjaz (both cited above), the Court found that Article 5 did not apply.

46 . In particular, in Bollan (cited above), on the facts of the case and applying the above-mentioned criteria (see paragraphs 36 and 39 above), the Court found that the confinement of the applicant in her cell for less than two hours disclosed a variation in the routine conditions of her detention, the nature and degree of which did not in the circumstances involve a deprivation of liberty.

47 . In Munjaz , (cited above, §§ 69-72) during his initial confinement, the applicant had already been subjected to serious restrictions typical of a high-security psychiatric hospital. His subsequent seclusion in the same hospital had been imposed in order to contain his disturbed behaviour which was likely to harm others. The duration of his isolation – some forty-five days in all – was not decisive on its own but was considered a factor in the overall assessment of the situation. Importantly in that case, the seclusion was implemented so as to allow secluded patients the most liberal regime that was compatible with their condition. In particular, the patient had been allowed to associate during the various periods of isolation.

48 . In the present case, and more specifically as regards the type of detention at stake, the Court observes that the impugned order of 12 August 2009 did not purport to modify the legal grounds for the applicant ’ s deprivation of liberty. Instead, it was a disciplinary measure imposed on him within the confines of the prison to which he was transferred to continue serving his lawfully imposed three-year sentence. The order was made following the rise in tensions and a physical altercation in the prison, in which the applicant had been involved, and one of the order ’ s aims was to ensure the safety of all detainees (see paragraphs 7 , 8 and 9 above).

49 . As regards the duration of that detention, namely fourteen days, the Court reiterates that this element is not decisive on its own ( Munjaz , cited above, § 71).

50 . Concerning the effects which that detention had on the applicant, the Court observes that the profound disturbance and distress which he claimed he had suffered as a result were not accepted as established by the administrative courts which heard his related claims (see paragraph 18 above). In this connection the Court finds relevant that the applicant had at the time been serving his prison sentence under the “general prison regime” and had been continually confined for a number of months to prison after being forbidden to work outside or otherwise to leave the prison (see paragraph 6 above).

51 . Finally, and of greatest weight to the Court ’ s conclusion, the manner in which the applicant ’ s isolation was implemented has to be scrutinised. The Court observes that the conditions in the disciplinary cell in which he was kept in isolation for fourteen days were clearly harsher when compared with those applicable under the “general prison regime” (see paragraphs 23 and 22 above). In fact, the conditions to which the applicant was subjected while in that cell were comparable to the conditions of detention applied under the “special prison regime” to life and whole-life prisoners in Bulgaria (see paragraph 23 above), which have been the subject of examination by the Court under Article 3 of the Convention (see, among other authorities, Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12, ECHR 2014) . He was kept in the high-security prison wing with increased restrictions on his movement, an obligation to take his meals in his cell and a ban on watching television or listening to the radio during those fourteen days. Despite this, taking all the relevant circumstances into account, the Court is not convinced that those differences disclosed anything more than a variation in the regime and conditions in which the applicant was kept while in prison.

52 . The Court is accordingly not satisfied that there was a major difference between the residual liberties available to the applicant during the time he spent serving his sentence under the “general prison regime” in prison and his subsequent detention in isolation, likewise in prison. Customarily, situations of confinement under conditions of isolation similar to those in the present case have been systematically examined by the Court under Article 3 of the Convention, and a significant body of case-law has been accumulated in cases concerning longer-term isolation (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 85 to 91, 12 May 2017; Savičs v. Latvia , no. 17892/03, § 130, 27 November 2012; Manolov v. Bulgaria , no. 23810/05, §§ 41, 42 and 45, 4 November 2014; Halil Adem Hasan v. Bulgaria , no. 4374/05, § 52, 10 March 2015, and Radev v. Bulgaria , no. 37994/09, § 48, 17 November 2015).

53 . For the reasons given above, the Court finds that the applicant ’ s isolation had no repercussions on the conformity of his deprivation of liberty with the requirements of Article 5 (see, mutatis mutandis , Lavents v. Latvia , no. 58442/00 , § 64, 28 November 2002). Consequently, the applicant ’ s isolation did not amount to a further deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Article 5 § 1 is therefore not applicable to the applicant ’ s isolation in the disciplinary punishment cell.

54 . The Court therefore finds that, since Article 5 is inapplicable, there has been no violation of Article 5 § 5 of the Convention in this case.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

Done in English, and notified in writing on 6 October 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Faris Vehabović Deputy Registrar President