FIFTH SECTION

DECISION

Application no . 59779/14 Jock Anthony PALFREEMAN against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 16 May 2017 as a Chamber composed of:

Angelika Nußberger , President , Ganna Yudkivska , André Potocki , Síofra O ’ Leary, Carlo Ranzoni , Mārtiņš Mits , judges , Pavlina Panova , ad hoc judge , and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 13 August 2014,

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

Having noted that Mr Yonko Grozev , the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court) and that, accordingly, the President of the Fifth Section decided to appoint Ms Pavlina Panova to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Jock Anthony Palfreeman , is an Australian national who was born in 1986 and is currently serving a prison term in Sofia. He was represented before the Court by Mr K. Kanev , from the Bulgarian Helsinki Committee.

2 . The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova , of the Ministry of Justice.

A. The circumstances of the case

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

1. Background

4 . On the night of 27 December 2007 the applicant, who was serving in the British Army at the time of the incident, was leaving a bar in Sofia when he saw a group of about fifteen young people in the street outside the bar. Some of them got into a brawl with two Roma men. The applicant ran towards them, brandished a knife and started waving it at the group. During the ensuing fight he stabbed and killed one of the young people in the assembled group, the 20-year-old son of a politician. He also seriously injured another young man. Shortly afterwards, two police officers arrived and arrested the applicant.

5 . The applicant was tried for murder. His defence was that he had attempted to protect the Roma men who had been attacked by the group of young people. He also claimed that he had used his knife in self-defence when the group had become violent towards him. The prosecution maintained that the applicant had run into the group in a determined way in order to administer justice. By the time he had intervened, the attack on the Roma had come to an end and he had not been acting in self-defence when he had stabbed two members of the group.

6 . The applicant was convicted of murder in December 2009. The sentence was upheld on appeal and cassation. The applicant is currently serving a 20-year sentence in Sofia Prison. Both the case and the applicant have attracted significant public attention and extensive media coverage in Bulgaria.

7 . The applicant ’ s close and extended family members – parents, siblings, grandparents, cousins, aunts and uncle – live in Australia; he has no partner or children in Australia. Each journey between Australia and Bulgaria for the 40-minute time slots allowed for visits involves substantial expense and absence from Australia for approximately a week. Because of such constraints, the applicant ’ s parents have only managed to see him once every six months since he was imprisoned. Such visits have also become increasingly difficult for them with time. His grandparents are in their late eighties and so the journey to Bulgaria has become almost impossible for them. A number of cousins and other close relatives, including an uncle and four aunts to whom the applicant is very close, are unable to make the journey at all.

8 . On the basis of the information in the case file, it is clear that the applicant has been receiving regular visits in prison – from family members, friends and acquaintances; in particular, he was visited 48 times between September 2012 and July 2015; nine of those visits were from family members. Visits have been authorised when requested, including during periods falling outside the standard prison visiting schedule. According to a psychological assessment, made in April 2015 and submitted by the Bulgarian authorities, the applicant is socially and emotionally balanced and mature, with realistic self-esteem, a preserved sense of humour and no signs of depressive tendencies, stress or anxiety. He is the chairperson of the Bulgarian Prisoners Association and is fluent in the Bulgarian language, both orally and in writing. He displays leadership potential and strives to dominate in the prison community in which he is well integrated; he is popular among other inmates, both foreigners and Bulgarians, whom he is known to frequently assist with the drafting of their requests and/or complaints to the prison administration. He is housed in the wing for foreigners, assists foreign prisoners by interpreting between English and Bulgarian when necessary, and has regular access to a computer room, for a few hours a day, which makes it possible for him to pursue a distance ‑ learning university course leading to a degree. The applicant actively corresponds in writing with family and friends.

2. Refusal to transfer the applicant to Australia to serve the remainder of his sentence

9 . On 12 April 2012, at the applicant ’ s initiative, the Australian authorities contacted the Bulgarian authorities about the possibility of transferring the applicant to Australia for him to continue to serve his sentence there. On 25 June 2012 the Bulgarian Prosecutor General replied in writing that the question of the applicant ’ s transfer could only be considered once he had paid outstanding damages to the victims.

10 . On 14 May 2013 a representative of the Australian Attorney General wrote to the Bulgarian Prosecutor General, formally seeking the Bulgarian Government ’ s agreement to transfer the applicant under the Council of Europe Convention on the Transfer of Sentenced Prisoners of 1983 (the “Transfer Convention”, see paragraphs 1 7 -2 1 below). The Australian authorities pointed out that the applicant met the eligibility conditions for the transfer of international prisoners and proposed a number of conditions in that respect. They included the following: that his transfer would not take place until his debts in Bulgaria had been paid; that the applicant would continue to serve his prison sentence in full in Australia and would become eligible for early release once he had served half of it, this also being an option under Bulgarian law; that all reductions of the applicant ’ s sentence confirmed by the Bulgarian authorities would be reflected in the remaining sentence; and that if the applicant benefitted from a conditional early release in Australia, he would be subject to parole conditions.

11 . In a letter of 8 July 2013, sent via the Bulgarian Ministry of Justice, the Prosecutor General informed the Australian Attorney General that the applicant ’ s transfer had been refused. The letter emphasised that, having carefully considered the relevant provisions in the Transfer Convention and Bulgarian law, the prosecutor found that the conditions for transfer were not met. In particular, transfer was an option and not a mandatory consequence of a request made under the Transfer Convention. The applicant still needed to serve over 14 years of his 20-year sentence. Importantly, he had not shown remorse and had categorically been denying personal responsibility for the crime he had committed. In addition, he had expressed a negative and suspicious attitude towards the Bulgarian justice system as a whole and had been demonstrating hostility and mistrust towards the orders issued by members of the prison administration. In view of the above and of the fact that he had only served a fraction of his sentence, the prosecutor found that the purpose of the punishment, including for the purposes of international law, namely to turn the convicted individual into a law-abiding citizen, had not been achieved.

12 . On 9 July 2013 the Bulgarian Prosecutor General announced publicly the refusal to allow the transfer of the applicant to serve the remainder of his sentence in Australia.

3. Appeal against the transfer refusal

13 . On an unspecified date the applicant appealed to the Sofia City Administrative Court against the refusal to transfer him to Australia. In particular, he emphasised that the refusal was against the fundamental rationale behind the Transfer Convention, which was to provide a possibility for States to cooperate towards achieving the purposes of justice and the social rehabilitation of convicted individuals. The Sofia City Administrative Court declared the appeal inadmissible, finding that the Prosecutor ’ s refusal to transfer the applicant was not an individual administrative act, given that the Prosecutor was part of the judicial and not the executive branch of power.

14 . The applicant appealed. In a final decision of 24 April 2014, the Supreme Administrative Court held that the refusal of the Prosecutor General was not amenable to review by the administrative courts.

B. Relevant domestic and Council of Europe law

1. Criminal Procedural Code

15 . Article 453 § 1 regulates the transfer of individuals who have been sentenced. The Prosecutor General is the competent national authority to decide on requests for the transfer of foreigners convicted by a Bulgarian court to their country of nationality in order to serve their sentence. The Prosecutor General agrees such transfers with the relevant competent body of the administering State, after agreement by the prisoner in question.

2. The Council of Europe Convention on the Transfer of Sentenced Persons 1983 (“the Transfer Convention”)

17 . The Transfer Convention provides for a formal mechanism by which prisoners can be transferred from one to another contracting State. Both member States and non-member States of the Council of Europe can accede to this Convention, which entered into force on 1 October 1994 in respect of Bulgaria and on 1 January 2003 in respect of Australia.

18 . The Explanatory Report to the Transfer Convention states in paragraph 8 that the purpose of the Convention is:

“to facilitate the transfer of foreign prisoners to their home countries.”

19 . Article 2 of the Convention provides :

“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.

2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.”

20 . Article 3 sets out various conditions which must be met in order for a person to be transferred. A sentenced person may be transferred only if he is a national of the administering State. Both the sentencing and the administering State must consent to the transfer.

21 . Under Article 4, any sentenced person to whom the Transfer Convention may apply shall be informed by the sentencing State of the substance of this Convention and if she or he expressed an interest in being transferred under this Convention, the sentencing State shall so inform the administering State as soon as practicable after the judgment becomes final.

COMPLAINTS

22 . The applicant complained under Article 8 of the Convention that the Bulgarian authorities ’ refusal to allow his transfer to Australia had made it impossible for him to maintain a private and family life, given that all of his family and other close relatives live in Australia. The applicant also complained under Article 13 in conjunction with Article 8 that he had not had an effective domestic remedy in relation to his complaint under Article 8 of the Convention.

THE LAW

23 . The Court notes that the applicant complained in substance of a violation of his right to respect for his private and family life because he had been unable to maintain contact with his parents and other family members as a result of the Bulgarian authorities ’ refusal to allow his transfer to serve the rest of his sentence in an Australian prison.

24 . This complaint falls to be examined under Article 8 of the Convention which reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

25 . The Government argued that the Prosecutor General had discretion to decide on the request for a transfer, there being no obligation under the Transfer Convention to automatically authorise such requests. Furthermore, the authorities had not prevented visits to the applicant in the Bulgarian prison in which he was held and had even allowed visitors outside of regular visiting hours. Finally, there was nothing to prevent the applicant from making a new request to be transferred to an Australian prison as there was no limit on the number of such requests which could be made.

26 . The Court notes that, while an issue could eventually arise as to whether the application should be rejected for failure to comply with the six-month rule, it does not consider it necessary to deal with that as, in any event, it finds the complaint incompatible ratione materiae with the provisions of the Convention for the reasons stated below.

27 . The threshold issue to be addressed in the present case is precisely whether the refusal by Bulgaria to transfer the applicant to Australia falls within the scope of Article 8 of the Convention.

28 . The Court reiterates, at the outset, that the applicant, like any other prisoner, has a right to private and family life under Article 8 of the Convention. The Court has repeatedly held that there is no question that a prisoner forfeits all of his Article 8 rights merely because of his status as a person detained following conviction (see Khoroshenko v. Russia [GC], no. 41418/04, §§ 116-117, ECHR 2015 with further references; also Khodorkovskiy and Lebedev v. Russia , nos. 1 1082/06 and 13772/05, § 836, 25 July 2013).

29 . However, detention which is lawful for the purposes of Article 5 of the Convention entails by its nature various limitations on private and family life. It would be fundamentally wrong to analyse each and every case of detention following conviction from the standpoint of Article 8, and to consider the “lawfulness” and “proportionality” of the prison sentence as such as domestic authorities have a wide discretion in matters related to execution of sentences (see Khodorkovskiy and Lebedev , cited above, §§ 835-836; see also Labaca Larrea v. France ( dec. ), no. 56710/13, § 41, 2 March 2017).

30 . Admittedly, the Court has also held, in the context of intra-state transfers, that that discretion, particularly as regards the distribution of the prison population, is not absolute (see Rodzevillo v. Ukraine, no. 38771/05 , § 83, 1 4 January 2016).

31 . T he fact that the applicant continues to enjoy certain Article 8 rights is not, however, determinative of whether a refusal to transfer him to another State, and moreover to a State outside the Council of Europe and not a party to the Convention, comes within the scope of that provision.

32 . As regards that central question, the Court notes, firstly, that there is no evidence that Bulgarian law confers on the applicant a right to be transferred to Australia. The applicant did not refer to any relevant legal provisions which would indicate the existence of such a right; nor has any domestic court decision ordering such a transfer been submitted to the Court. Accordingly, it cannot be maintained that the applicant has any substantive right under Bulgarian law to be transferred to his country of origin (see, similarly, Plepi v. Albania and Greec e, ( dec. ), nos. 11546/05, 33285/05 and 33288/05, 4 May 2010 and Serce v. Romania , no. 35049/08 , § 53, 30 June 2015 ).

33 . While it is true that the examination of whether or not a right claimed by an applicant exists or not in the domestic legal order is one more common under, for example, Article 6 (see Frydlender v. France [GC], no. 30979/96 , § 27, ECHR 2000-VII; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 40, ECHR 2007 - II; Gorou v. Greece (no. 2) [GC], no. 12686/03, § 24, 20 March 2009) or Article 1 of Protocol No. 1 to the Convention (see Gratzinger and Gratzingerova v. the Czech Republic ( dec. ) [GC], no. 39794/98, §§ 72-74, ECHR 2002-VII), the Court has also considered the position in domestic law and national judicial practice as part of its analysis of the applicability of Article 8 to a given complaint (see, for example, Manenc v. France ( dec. ), no. 66686/09, 21 September 2010, and Aldeguer Tomás v. Spain , no. 35214/09 , §§ 76-77, 14 June 2016).

35 . The Court observes, secondly, that the provisions of international agreements may, for their part, create individual rights protected by the Convention. This could arise where the international treaty provision is directly applicable (see S.A. Dangeville v. France , no. 36677/97, §§ 46-48, ECHR 2002 - III) or where requisite domestic legislation applying it has been enacted (see Beaumartin v. France , 24 November 1994, §§ 27-28, Series A no. 296 - B). However, the provisions of the Transfer Convention applicable between Bulgaria and Australia are confined to providing an inter-State procedural framework for the transfer of sentenced persons. The Transfer Convention does not generate any individual substantive right per se . Nor does it contain an obligation on the State parties to comply with a request for transfer (see Plepi , cited above; Passaris v. Greece ( dec. ), no. 53344/07, 4 September 2009 and Serce , cited above, § 54 ).

36 . Thirdly, and most importantly, the Convention itself does not grant prisoners the right to choose their place of detention (see Vintman v. Ukraine , no. 28403/05 , § 78, 2 3 October 2014 and Rodzevillo v. Ukraine , cited above, § 83, as regards intra-state transfer requests; and Plepi , cited above, and Serce , cited above, § 55, as regards inter-state transfer requests) . Separation of the applicant prisoner from his family and being kept at a distance from them are regarded as inevitable consequences of detention following the exercise by the domestic authorities of their prerogatives in the area of criminal sanctions (see Selmani v. Switzerland ( dec. ), no. 70258/01, 28 June 2001; Serce , cited above, § 55; and Labaca Larrea , cited above, § 42 ).

37 . In the recent judgment in Serce , cited above, the Court confirmed the incompatibility ratione materiae of a complaint very similar to that in the present case. The applicant, a Turkish national serving an 18-year prison sentence in Romania, complained about the refusal of the Romanian authorities to transfer him to another Council of Europe member state, Turkey, to serve the remainder of his sentence there, close to his wife and children. Despite having found that the unhygienic conditions in which he had been detained in Romania, the lack of activities or work and the prison overcrowding to which he was subject breached his Article 3 rights, the Court confirmed that Article 8 of the Convention was not applicable to his request for an inter-state prison transfer.

38 . Even assuming that Article 8 of the Convention could be considered applicable to an inter-state prison transfer request such as that at issue in the instant case, the Court notes that the refusal of the Bulgarian authorities to accede to the Australian authorities ’ transfer request was reasoned and the procedure showed no signs of arbitrariness (see paragraph 11 above). In addition, as indicated in the Bulgarian Government ’ s submissions and as follows from the provisions of the Transfer Convention, it is open to the Australian State, on the basis of a request to that effect by the applicant, to reintroduce a new request in future, explaining why the Bulgarian State should exercise its discretion, in accordance with that Convention, to transfer the applicant to Australia to serve the remainder of his sentence. Finally, it appears from the information before the Court (see paragraph 8 above), that the applicant was able to maintain some family and social ties and that the authorities accommodated visits from overseas by flexibly applying the prison visiting schedule.

39 . It follows, however, from the reasons outlined in paragraphs 2 9 -3 7 above, that the applicant ’ s complaint under Article 8 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3(a) of the Convention. Having regard to the reasoning and conclusion set out above as regards the complaint under Article 8, the Court finds that the applicant has no arguable claim for the purpose of Article 13 of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The application must therefore be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 8 June 2017 .

Milan BlaÅ¡ko Angelika Nußberger              Deputy Registrar President