Fifth Section

CASE OF IORG OV (II) v. BULGARIA

(Application no. 36295/02)

JUDGMENT

STRASBOURG

2 September 2010

FINAL

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

In the case of Iorgov (II ) v. Bulgaria ,

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

Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Mark Villiger, Mirjana Lazarova Trajkovska, Ganna Yudkivska, judges, Pavlina Panova, ad hoc judge, and Stephen Phillips , Deputy Section Registrar,

Having deliberated in private on 6 July 2010 ,

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

PROCEDURE

1 . The case originated in an application (no. 36295/02) against the Republic of Bulgari a 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 Plamen Parashkevov Iorgov (“the applicant”), on 15 August 2002.

2 . The applicant was represented before the Court by Mrs Y. Vandova, a lawyer practising in Sofia . The Bulgarian Government (“the Government”) were represented by their Agent, Ms M . Dimov a of the Ministry of Justice .

3 . The applicant complained that he had been given a sentence of life imprisonment with no possibility of early release , which he considered to be in violation of Article 3 of the Convention. Under the same A rticle he also complained about the conditions of his d e tention in Pleven prison . He further all e ged that he had no means of challenging the lawfulness of his detention, i n violation of Article 5 § 4 of the Convention.

4 . On 9 October 2007 the President of the Fifth Section decided to communicate the application to the Gov ernment. Applying Article 29 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

5 . Mr s Zdravka Kalaydjieva , the judge elected in respect of Bulgaria , having withdr awn fro m sitting in the case (Rule 28 of the R ules of Court ), on 30 January 2009 the Government appointed Mr s P. Panova to sit as an ad hoc judge in her stead (Article 27 § 2 of the Convention and Rule 29 § 1 as in force at the time ).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1957. He is currently serving a life sentence in Pleven , following the commutation of the death penalty to which the courts sentenced him .

7 . An initial application lodged by the applicant led to t h e finding of a violation of Article 3 of the Convention because of the s e v e rit y of the r e gime and conditions of d e tention impos e d on him in Sofia prison between 1990 and 1998 ( Iorgov v . Bulgari a , no. 40653/98, 11 March 2004). The pr e sent case concern s e v e n t s subsequent to the commutation of the applicant ' s death penalty in 1999 to one of life imprisonment and his transfer to Pleven prison .

A. The applicant ' s criminal background , the death sentence and its commutation

8 . Between 1976 and 1987 the applicant was convicted on one count of rape , two of robbery , one of aggrav at e d robbery and one of disturbing public order ( хулиганство) . As a result he was given three prison sentences and spent a total of eight years and eight months in prison before being released on 14 March 1989.

9 . On 4 August 1989 he was arrested near the border between Bulgaria and Yugoslavia . In the cours e of the ensuing investigations he confessed to having murdered three min o rs not far from his town, Gulyantsi , on 17 July 1989 , and expl ained that he had intended to leave the country illegally in order to avoid conviction . On 8 August 1989 h e was remand ed in custody .

10 . In the criminal proceedings against him he was charged with the murder of the three children, aged 12, 10 and 8 respectively , with the attempted rape of one of the three victims, with attempting to leave the country ill e gal ly and with four counts of trespassing followed by rape committed between 1984 and 1989. In a ju d gment of 9 May 1990 the Pleven Regional Court found him guilty of the murder of the three children , of the attempted rape of one of the victims, of attempting to leave the country illegally , and of rape committed in 1984 after unlawful ent ry into the victim ' s home .

11 . On the strength of the evidence produced, the court established the circumstances of the the triple murder as follows . The applicant , a lorry driver, had kn o w n the three victim s because he had spent some time with their families on a festive occasion . On 17 July 1989 he was asked to transport part of the harvest from the fields around Gulyantsi. That afternoon he chanced upon the three children playing by a river not far from the town. He persuaded them to get into his lorry and drove them to a wood ten kilometres away . There , he tied up the youngest two and tried to rape the girl, who was 12 years old. Then, fearing that they would report him, he strangled the children one by one . To make sure they were dead , he kicked each child in the head several times and slit their throats with a knife . The same day he returned to the scene of the crime and buried the three bodies .

12 . The court sentenced him to death for the murder of the three children , considering that, under the circumstances , that was the only penalty that fulfilled the purpose of criminal repression set forth in Article 36 of the Criminal Code : this was an exception ally serious crime , with several aggravating circumstances ( the victim s were all young children and had been killed in a particul arly cruel manner in order to cover up another crime – the rape of one of them ), and the accus e d had already been convicted of other crimes, but the sentences he had served had not had the desired deterrent effect . Th e court ' s decision was upheld by the Supreme Court on 24 October 1990. The applicant the n submitted a request for the revision of the judgment , which was rejected on 8 Ap ril 1994.

13 . The last ex e cutions of convicts sentenced to death in Bulgari a took place in N ovemb er 1989. On 20 July 1990 the National Assembl y placed a morato rium on all ex e cutions of prisoners sentenced to death . On 23 D e cemb er 1998 the National Assembly abolished capital punishment and replaced it in the Criminal Code with a new penalty , life imprisonment with out commutation (доживотен затвор без замяна) . By a decree of 25 January 1999, the V ice- P r e sident of Bulgaria commu ted the death sentences of the 19 convicts who had been awaiting execution since the introduction of the moratorium, including the applicant , to sentences of life imprisonment with out commutation .

14 . On 3 N ovemb er 2009 , when news of the parties was last received , the applicant was still in Pleven prison . He had already served twenty years and three months of his life sentence .

B. C onditions of d e tention in Pleven prison and prison r e gime applied to the applicant

1. C onditions of d e tention between 1999 and 2003

15 . On 27 April 1999 the applicant was transferred to Pleven p rison. In a d e cision of 5 July 1999 the Veliko Tarnovo Court of Appeal ordered him to be placed under the strictest regime, the “special regime”. It based its decision on section 127b of the Execution of Sentences Act .

16 . The applicant was placed in the section of the prison reserved for prisoners serving life sentences , located on the third floor and s e par ated from the rest of the building by a locked door . It comprised six cells, a corridor and a bathroom with lavatories .

17 . Each cell measured 4. 50 m² and was s e par at e d from the neighbouring cell s by two solid m e tal panels , and from the corridor by iron bars . The dividing panels jutted out about 30 inches past the bars, making visual contact between the prisoners impossible . Each cell had a metal bed and bedside table . A metal plate welded to the bars served as a table and another, welded to the bed served as a bench . The re was a shelf on the wall for the d e t ainee s ' clothes.

18 . The only daylight came from the windows in the corridor, which were too small to provide sufficient light or ven tilation . There was a fluorescent lamp , contr olled by the warder , on the ceiling outside each cell . At night light was provided by a 60 - w att electric bulb fixed to the end of the metal partition panel, out of reach of the detainees. It was left on all night, but the light it gave out was not bright enough to read or write by. There was a window in the bathroom, but it was covered with a metal plate . Heating was provided by radiat o rs attached to the corridor walls, about two yards from the cell bars.

19 . The applicant went to shower once a week , and that was his only access to hot water . He was allowed to use the sanitation facilities in his detention quarters three times a day . The rest of the time he had to use a plastic bucket as a toilet .

20 . The applicant had the right to one hour ' s exercise in the open air per day . Until the beginning of 2002 prisoners serving life sentences were taken out for their open-air exercise one by one, handcuffed and escorted by guards . I t was then decided to take them out two at a time, still in handcuffs, and after a while the use of handcuffs was dropped . I n 2002 the applicant and the other prisoners serving life sentences were allowed to play table tennis once a week in the activity room adjacent to their quarters. They were also allowed to watch a film and see a priest once a week. From 18 O ctob er 2000 onwards the prison authorities allowed the applicant to work in his cell , folding envelopes.

2. C onditions of detention since 2003

21 . I n O ctob er 2003, at the applicant ' s initiative , the prison governor took certain steps to improve the detention conditions of prisoners serving life sentences : the cell s were left open between 5 . 30 a.m. and 8 p.m. , allowing the prisoners to communicate and to use the lavatory when necessary , and giving them access to running water. The metal plate over the bathroom window was removed to let the daylight in. The electric light bulbs were moved closer to the cells and the m e tal wall by the applicant ' s bed was covered with insulating material .

22 . I n 2003 and 2004 the applicant ' s detention regime was relaxed twice in succession. On 6 Ap ril 2004 he joined a group of ordinary prisoners and left the quarters reserved for prisoners serving life sentences . Since that date he has been sharing a 23 m² cell with five other prisoners . The door of the cell is left open in the daytime and he can talk to the other prisoners in his group in the corridor .

C. T he applicant ' s health and the m e dica l care he received in prison

24 . The applicant suffers from back pain (discopath y ), for which he was treated in hospital in 2000. According to him , the pain subsequently grew worse and on 13 February 2002 he was examin e d by a doctor, who recomm e nd ed physiotherapy . He received no such treatment and complained about it to the M inist e r of Justice. In a letter of 4 April 2002 the Director General of Prison Administration inform ed the applicant that the treatment recommended was not the usual m e thod for treating his condition and , as he was under medical supervision, medicine could be admin is tered to him in Pleven prison.

25 . According to a re port by the direct o r of the prison ' s m e dical centre, pr e sent e d by the Government , the applicant consult ed neurology sp e cialists about his back pains on several occasions . I n 2003 he apparently underwent thorough medical exam ination s which revealed no complication s .

26 . I n March 2003, following a skin infection , the applicant underwent surgery at the Sofia prison hospital . He was there from 15 March to 18 April 2003. The doctors noted an improvement in his health by the time he left the hospital . The applicant says that since he was transfer red to a shared cell he has had no particul ar health problem s.

27 . According to the report by the director of the prison ' s medical centre , the applicant consult ed the prison dentist over a hundred times for diff e rent types of denta l treatment between 1999 and 2004.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The sentencing system in B ulgar ian criminal law over the years

28 . Under Articles 37 (2) and 38 of the Criminal Code (C C ) as applicable prior to the abolition of capital punishm e nt , the courts could pronounce the death penalty only for particularly serious crimes and only if they considered that the punitive and deterrent purposes of a criminal p e nalty could not be achieved by a lesser sentence . Until 1995 the harshest sentence after the death penalty was i mprisonment, for up to 30 years in exception al cases (A rticle 39 of the C C ). I n 1995 a new penalty was introduced: life imprisonment (доживотен затвор) , d e fin ed by Article 38a (1) of the C C as “confin ement of the convicted person in a prison e s tablis h ment until the end of his life” . This sentence could be commu ted by a court to 30 years ' i mprisonment after the convict had served 20 years of his sentence (A rticle 38a ( 3 ) of the C C ).

29 . The death penalty was abolished on 23 December 1998. A new penalty was introduced: life imprisonment with out commutation (доживотен затвор без замяна) . This penalty replaced capital punishm e nt in the provis ions of the Criminal Code . At present it is considered as an alternative to imprisonment and ordinary life imprisonment for crimes consid e r e d particul arly serious, such as murder or aggravated armed robbery . The relevant part of the explanatory memorandum that accompanied the law abolishing the death penalty read as follows :

“ ... It is propos e d in the draft law to re place the death penalty with a new penalty, life imprisonment without commutation , which diff e r s from life imprisonment . This penalty will remove the prisoner from soci e t y , depriving him of the possibilit y of comm i tt ing new offences , and the penalty will have a deterrent effe c t on other would-be offenders ... ”

30 . Thus , since the abolition of the death penalty , Bulgarian l e gislation has provided for three types of custodial penalty : i mprisonment, for a period of up to thirty years , life imprisonment with a possibilit y of commutation , and life imprisonment with out the possibility of commutation . According to the statisti c s pr oduced by the respondent G overnment , on 15 S eptemb er 2009 the re were 60 people serving life sentence s with out the possibility of commutation in Bulgarian prisons. Another 89 prisoners were serving ordina ry life sentences .

B. Acts of cl e mency and adjust ment of sentence and their applicabilit y to life imprisonment with out commutation

1 . Release on licence

31 . Under the provis ions of Article 70 ( 1 ) of the C C , release on licence is applicable only to fixed-term prison sentences . Offenders sentenced to life imprisonment, with or without the possibilit y of commutation , are not eligible for release on licence .

2. C ommutation of sentence by judicia l decision

32 . The C ode of Criminal P roc e dure 1974 ( the C C P) and the new Code of Criminal Procedure 2006 ( the NC C P) provide for the possibilit y for a r e gional court, at the request of the r e gional prosecutor , to commute a life sentence to an ordinary prison sentence ( A rticles 427 and 428 of the CCP 1974 and A rticles 449 and 450 of the N CCP ). The r e gional court gives a reasoned d e cision ; a n e gative decision may be challenged in the higher courts . If the prosecutor ' s propos al is rejected, no further commutation request may be submitted for two years . The l e gislation makes no provision for the prosecuting authorities to apply for adjustment of the sentence of offenders sentenced to life imprisonment with out commutation .

3. Presidential clemency

33 . Under Article 98 point 11 of the Constitution, the power of clemency is a presidential pr e rogative . Article 74 of the CC , which explains the scope of this pr e sidenti a l power , reads as follows :

“ T he P r e sident may use his power of clemency to grant a pardon in respect of all or part of the sentence and , in the case of the death penalty , a sentence of life imprisonment with out commutation or a sentence of life imprisonment , grant a pardon or commute the sentence .”

34 . I t is a discr e tion ary power which the P r e sident has d e l e g ated to the V ice- P r e sident of the R e publi c . The Vice-President may decide to exercise the power, in either form, at any time while the sentence is being served . His decision is u ncondition al and irr e vocable. Refusal by the Vice-President to exerc ise his power is not subject to judicia l or administrati ve review .

35 . I n pra c ti c e a commi ttee of experts from the President ' s administration examine s requests for pr e sidenti al clemency and makes propos al s to the Vice-President . In form ing its opinion in each cas e the commi ttee takes into account the position of the pr e sident ' s legal advisers on criminal policy and relies on the information communi cated by the prison administration about the convict concern e d . Before reaching a d e cision, the Vice-President may interview the prisoner .

36 . In the p e riod from 1 January 2002 to 31 D e cemb er 2009 the V ice ‑ P r e sident received 6 , 967 applications for clemency . 477 of these were granted .

37 . According to a re port by the D irect o r G e n e ral of Prison Administration dat e d 15 S eptemb er 2009 , submitted by the Government , prisoners serving a life sentence with out commutation had submitted about a hundred applications for clemency to the successive Vice-President s of the R e publi c. None was granted . According to a lett er from the head of the Vice-President ' s Office submitted by the Government , from 21 January 2002 to 7 September 2009 the advisory C ommi ttee received 29 applications for clemency from 16 prisoners sentenced to life imprisonment with out commutation . None was granted . The lett er explains that the Vice-President is not required to give reasons for his refus al, but the prisoners concerned can renew their applications for presidential clemency without any restrictions .

C. The prison r e gimes of prisoners serving a life sentence with out commutation

38 . According to Article 127b of the 1999 version of the Law on the Execution of Punishments 1969, in the event of an ordina ry life sentence the court was to order the offender ' s placement under the stric test regime , called the “ special r e gime ” . P rison ers placed under that regime were confined to locked single cells kept under special surveillance (Section 56 of the implementing regulations ). Following its amendment on 25 June 2002, the Law on the Execution of Punishments express ly provided for prisoners sentenced to life imprisonment with out commutation to be plac e d under the same prison r e gime as th os e serving an ordinary life sentence. The diff e rent r e gimes for custodial sentences, including the special r e gime , were d e fin ed in sections 49 to 65 of the Law on the Execution of Punishments .

39 . On 1 June 2009 that Law was re plac e d by a new Law on the Execution of Punishments , which retained its provis ions concern ing the ex e cution of the two types of life sentence . The implementing regulations d e fin ed the diff e rent prison r e gimes , including the sp e cial regime , and the means of ex e cution of custodial sentences ( section s 47 to 54).

I II . REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)

40 . CPT delegations visit e d Pleven prison in April 2002 and S eptemb er 2006. The r e ports on the two visits were published ( in English only ).

41 . The part s of the r e port o n the visit in 2002 concerning the conditions of d e tention of prisoners serving life sentences and the m e dica l care dispensed in prison read as follows :

“ ... iii. life-sentenced prisoners

92. In its previous reports, the CPT made recommendations concerning the conditions under which life-sentenced prisoners were held, and the regime applicable to them. The evidence gathered during the 2002 visit suggests that steps have been taken by the Bulgarian authorities to improve the situation of life-sentenced inmates in the light of these recommendations. In this regard, the CPT ' s delegation was pleased to learn of plans to progressively integrate life-sentenced prisoners into mainstream prison regimes. Pursuant to the recent amendments to the Law on the Execution of Punishments (cf. Art. 127b), the commission set up at each prison for the purpose of making decisions on prisoners ' regime can decide, on the basis of individual risk assessment, to transfer life-sentenced prisoners to ordinary units with the right to participate in work, education, sport and other activities.

...

94. ... the four life-sentenced inmates at Pleven Prison ... were accommodated in individual front-grilled cells of a mere 4.5 m², in a specific section of the third floor. Access to natural light and fresh air was through small windows in the corridor situated in front of the cell; as a consequence, lighting and ventilation were poorer than elsewhere in the establishment and the cells could apparently become very hot and stuffy in summer. The cell equipment consisted of a bed, locker, table and chair; in addition, prisoners could have a personal television set.

The CPT recommends that immediate steps be taken to improve material conditions of detention of life-sentenced prisoners at Pleven Prison. These improvements should include providing larger cells (cells of 4.5 m² are unsuitable for use as prisoner accommodation) and better access to natural light and ventilation.

95. ... , life-sentenced prisoners ' access to the toilet facilities was restricted to three times a day. At other times, they had to use a bucket within their cells. ...

96. ... life-sentenced inmates referred to recent improvements to their regime, involving ... the possibility of playing table-tennis. Further, ... the inmates concerned had been given some productive/creative work which they could carry out in their cells. Finally, they were now allowed to use the phone. These are all steps in the right direction.

However, life-sentenced prisoners complained about the lack of possibilities for associating among themselves and with other prisoners. The little time available for face-to-face interaction during daily outdoor exercise (which, at Pleven Prison, they took in groups of two) and recreational/sports activities did not offer adequate scope for human contact. The Committee recommends that life-sentenced prisoners at Pleven Prison be allowed to take outdoor exercise together (and not only in groups of two).

...

103. The delegation heard hardly any complaints about access to the doctor and no particular difficulties were noted as regards the transfer of prisoners to outside hospitals or other specialist medical services. However, ... , there were some complaints about the standard of treatment and care, in particular as regards the range of medication prescribed and the quality of dental care. ...”

“ iii. life-sentenced prisoners

98. In its previous visit reports, the CPT paid close attention to the situation of prisoners serving life sentences (see paragraph 92 o f CPT/Inf (2004) 21; paragraphs 118-124 of CPT/Inf (2002 1). The delegation which carried out the 2006 visit examined progress made in this area.

99. At the time of the visit, Pleven Prison was holding 8 life-sentenced prisoners, of whom 5 were held in a special section and 3 had been placed in a unit for prisoners serving sentences under strict regime. ...

Since 2004, Pleven Prison had embarked on an “experiment” of integrating certain life-sentenced prisoners into the general prison population. At the time of the 2006 visit, three such prisoners were being accommodated in a unit for prisoners serving sentences under strict regime (and one more was expected to be moved there soon). They were held in a cell measuring some 22 m² with three other prisoners. Conditions in the cell were generally adequate (large windows, various items of furniture, elements of personalisation). One of the prisoners had a job as a cleaner and the other two occasionally made gift bags in the cell. The cell doors were open throughout the day and life-sentenced prisoners enjoyed the same rights as the remainder of prisoners under strict regime. It appeared from conversations with other prisoners and staff that the arrival of the life-sentenced prisoners in the unit had not caused any particular dissatisfaction or problems.

...

102. The “experiment” at Pleven Prison of integrating life-sentenced prisoners into the general prison population is a positive example to be followed in the rest of the country ' s prisons. At present, the formal criteria for changing the regime of a lifer is to have served at least 5 years under special regime (not counting the period on remand), to have good behaviour and to have formally applied for the change of regime. The CPT wishes to stress that, whereas initial segregation of a person awaiting or starting a life sentence might be deemed appropriate on the basis of individual risk assessment in a specific case, persons awaiting or serving a life sentence should not be subject to a systematic policy of segregation. ...”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

43 . The applicant alleged that the life sentence imposed on him by v ice-pr e sident ial decree, in denying him any possibility of early release, is inhuman and d e grading . He also complained about the conditions of his d e tention in Pleven prison , the excessively strict prison r e gime appli ed to him , the lack of a legal framework for the r e gime concerned and the qualit y of the m e dica l care dispens e d to the prisoners. He relied on Articles 3, 5 § 1 and 8 of the Convention. The Court considers that these complaints fall to be examined under Article 3 of the Convention, which provides:

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

A. Admissibility

44 . The Court notes that th ese complaint s 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. They must therefore be declared admissible.

B. The merits

1. C ompatibilit y of the applicant ' s punishment with Article 3 of the Convention

(a) The parties ' submissions

45 . Affirming that he was not eligible for release on licence or commutation of his sentence to a fixed term of imprisonment , the applicant submitted that life imprisonment with out commutation was an irreducible sentence de facto and de jure . As to the likelihood of being granted presidential clemency , he submitted that the V ice- P r e sident had never granted clemency to anyone sentenced to life imprisonment with out commutation .

46 . The applicant maintained that he had not applied for pr e sidenti al clemency for two reasons . He had allegedly attempted – but to no avail – to have the criminal proceedings reopened, in the hope that a less severe sentence would be pronounced . And in various interviews in the country ' s media , diff e rent V ice- P r e sidents had allegedly stated that they reserved their power of clemency for cases where there were humanita rian grounds – where the detainee was seriously ill, for example – or for prisoners who had committed less serious offences , and under no circumstances could a murderer hope for an act of cl e mency . The applicant consid ered that as there was no real hope of early release for him , his punishment was inhuma n a nd d e grad ing .

47 . The Government did not address this issue. They did, however, submit various documents cont aining factu al information on the exerci s e of the pr e sidenti al power of clemency in the case of prisoners sentenced to life imprisonment with out commutation , in general (paragraph 37 above ) and in respect of the applicant i n particul a r. According to the r e port by the Director General of Prison Administration dated 15 September 2009, the applicant had applied for pr e sidenti al clemency . The prison authorities had forwarded his personal file to the V ice- P r e sident ' s advisory Committee, at the same time expressing the opinion that no cl e menc y should be shown . In a letter dat e d 7 S eptemb er 2009 (paragraph 37 above) the head of the then Vice ‑ President ' s office confirme d that the applicant had applied for clemency but his application had been rejected . The lett er did not state the reasons for the rejection .

(b) The Court ' s assessment

2. C onditions of d e tention in Pleven prison and all e g ed lack of proper medical care

(a) The parties ' submissions

61 . The applicant submitted that , combin e d with the s e v e rit y and the non - r e g ulatory nature of the prison r e gime a ppli ed in his case, and the lack of activit i e s i n prison, the poor living conditions in the quart er s reserved for prisoners serving life sentences amounted to inhuman and d e grad ing treatment . He also complained about the lack of proper m e dica l and dental care , and argued that his all e gations were corrobor ated by the r e ports on visits by the CPT to Pleven prison .

62 . The Government disputed that submission. They relied on a re port of the D irect o r G e n e ral of Prison Administration, which purportedly showed the improvements that had been made to the applicant ' s prison r e gime and how well he had been integrated into a group of ordina ry prisoners. They also referred to the r e port dr awn up by the CPT following its visit to Pleven prison i n 2006 to show that the applicant was not subjected to inhuman or degrading treatment . They added that the applicant ' s health was r e gul arly monitored by the prison doctors , that he had consulted outside doctors on various occasions and that he had received proper treatment for his health problems , particularly his denta l problems .

(b) The Court ' s assessment

63 . Article 3 of the Convention requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for their human dignity, and that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). After exam ining Mr Iorgov ' s previous application , the Court had found that he had been subjected to inhuman and degrading treatment, in particular because of the harshness of the prison r e gime and his u njustifi e d isolation for a long p e riod, in addition to the poor mat e ri al conditions of his detention and the lack , during the moratorium imposed by the National Assembly, of clear r e g ul ation s governing the statu s and r e gime of prisoners against whom death sentences had been pronounced ( see the Iorgov judgment cited above , §§ 84 and 86). The pr e sent application concern s the p e riod that followed the commutation of the applicant ' s death sentence into a life sentence with out commutation and his transfer to Pleven prison .

64 . The Court notes, first of all, that the prison regime imposed on the applicant after his sentence was commuted was d e cid e d by a court (paragraph 15 above ) based on the provis ions in force at the time . As the courts , by analogy, applied the l e gislative provision s aimed at prisoners serving ordinary life sentences , the Court cannot conclu d e that their d e cision was arbitra ry . That d e cision subjected the applicant to a prison r e gime provided for under a domestic law which specified the arrangements for the execution of the sentence (paragraph 38 above ).

65 . T he Court further notes that at the start of his d e tention at Pleven prison the security measures applied to the applicant effectively limit e d contact between him and the other prisoners, as well as his activit i e s and h is access to sanitary facilities (paragraphs 16, 19 and 20 above ). However, Mr Iorgov ' s situation gradually but surely became more flexible , with greater freedom of movement and the possibilit y to engage in various activities: i n 2000 he was aut h oris e d to work in his cell ; i n 2002 the s e curit y measures appli ed during the time he spent in the open air were relaxed ; starting in 2003, his cell was left open all day ; and i n 2004 he joined a group of ordinary prisoners and was transf e r e d to a shared cell of acceptable size in another part of the prison (paragraphs 20, 21 and 22 above ). These changes gave him much easier access to the sanita ry facilitie s and enabled him to take part in activit i e s with the other prisoners . He participated in sporting activities (table tennis , football, volleyball) and in the organisation of diff e rent e v e nts (paragraph 23 above ). I n 2007 he was given a paid job keep ing the cell s on the third floor of the prison clean . These changes were also reported by the CPT d e l e gations that visit e d the prison in 2002 and 2006 (paragra ph s 41 and 42 above ).

66 . The material conditions of d e tention also improved : a number of changes were made in 2003 to the section of the prison reserved for prisoners serving life sentences (paragraph 21 above ). And in 2004 the applicant was transf e r r ed to a shared cell in another part of the prison and has not complain ed about the conditions in his new cell (paragraph 61 above ).

67 . As to the m e dica l care dispensed to the applicant, the Court notes that he suffered from back pain and contract e d a skin infection. The case file shows that he received proper m e dica l care, including in hospital, and that he himself admitted that he had had no further health problems after his transfer t o a shared cell (paragraph 26 above , in fine ). Furthermore, he regularly consult e d the prison dentist, and the information communi cated to the Court does not indicate that the treatment dispensed was ineffective (paragraphs 25 to 27 above ).

68 . I n conclusion, in view of the gradual improvement of the applicant ' s conditions of d e tention and prison r e gime and in the light of the information in its possession concerning the m e dica l care dispens e d to the applicant in Pleven prison , the Court considers that Mr Iorgov was not subjected to inhuma n or d e grad ing treatment there . There has therefore been no violation of Article 3 of the Convention in this respect.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

69 . Relying on A rticles 5 § 1, 5 § 4 and 13 of the Convention, the applicant complained of the lack of judicia l review under domestic law enabl ing him to question the lawfulness of his d e tention once his death penalty was commut ed to a life sentence with out commutation . The Court will examine this complaint under Article 5 § 4 of the Convention, which provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

70 . The Government did not address this issue.

A. Admissibility

B. The merits

74 . The Court notes that at the time when the courts sentenced the applicant to death , that was the heaviest penalty provided for in the domestic l e gislation . Moreover, Protocol No . 6 to the Convention, providing for the abolition of the death penalty in peacetime , did not enter into force in Bulgaria until 1 October 1999, five years after the applicant was sentenced and a few months after his initial sentence was commut ed.

75 . In sentencing the applicant to death the domestic courts found that the seriousness of the crimes commi tted warranted nothing but the harshest penalty (paragraph 12 and 28 above ). In view of the very nature of capital punishment and the reasons given by the domestic courts for impos ing such a sentence in the applicant ' s case , the Court accepts that the determin ation of the need for the sentence impos e d on the applicant did not depend on any circ um stance that was likely to change in time ( unlike in the Stafford judgment sited above , § 87). Deciding which particular sentence should be imposed is a matter for the national court s, which are best placed to establish the facts and apply the domestic law. What matters in the instant case is that when the applicant was sentenced the domestic courts took into account all the relevant circumstances in deciding whether or not to impose the harshest sentence provided for in domestic law .

76 . Furthermore , the commutation of a death penalty to a life sentence by a non-judicial organ exerci sing the power of clemency does not alter the cause-and-effect relationship between the initial conviction and the individual ' s continued d e tention , which continues to be consid e r e d as “ d e tention after conviction by a court ” within the meaning of Article 5 § 1 a) ( Kotälla v . the Netherlands , no. 7994/77, Commission d e cision of 6 May 1978, D e cisions and Re ports no. 14, p. 238). It follows that the applicant ' s detention subsequent to the V ice- P r e sident ' s decree continues to have its l e gal basis in the initial conviction prono u nc e d by the courts .

III. THE OTHER ALLEGED VIOLATIONS

78 . The applicant complained that there had been no domestic remedy by which he could have complained about the conditions of his d e tention and the lack of medical care in prison. He further contend ed that the commutation of his death penalty to a life sentence with out commutation amounted to imposi ng a heavier penalty on him than that to which he had initial ly been sentenced .

79 . Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible in so far as it concern s the applicant ' s complaints under Articles 3 and 5 § 4 of the Convention and declare s the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 3 of the Convention in respect of the sentence imposed on the applicant, his conditions of d e tention and the qualit y of the m e dica l care he received in prison;

3. Holds that there has been no violation of Article 5 § 4 of the Convention;

Done in French and English , and notified in writing on 2 September 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Peer Lorenzen Deputy Registrar President