FIFTH SECTION

DECISION

Application no. 38419/13 Petar Hristov PETROV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 21 April 2020 as a Committee composed of:

Ganna Yudkivska, President , Yonko Grozev, Lado Chanturia, judges , and Victor Soloveytchik, Deputy Section Registrar ,

Having regard to the above application lodged on 29 May 2013,

Having regard to the decision by the Section President, acting as a single judge, to declare part of the application inadmissible,

Having regard to the observations submitted by the respondent Government and to the decision of the Section President not to accept the applicant ’ s observations because they had been submitted outside the time ‑ limit without any request for an extension having been made before the time-limit expired (Rule 38 § 1 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Petar Hristov Petrov, is a Bulgarian national who was born in 1959 and at the time of his latest communication with the Court on 31 May 2016 was detained in Varna Prison.

2 . The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov of the Ministry of Justice.

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

4 . The applicant was detained in Belene Prison between an unknown date in November 2011 and 12 September 2013, and then again between 30 November 2013 and 27 November 2014.

5 . At the end of February 2015 he was released from prison. On 6 April 2015 he started serving a fresh prison sentence in Belene Prison. He remained there until 22 April 2015, when he was admitted to the hospital. Between May and August 2015 the serving of his sentence of imprisonment was interrupted on medical grounds. He returned to Belene Prison on 28 August 2015.

6 . On an unspecified date in 2016 the applicant was transferred to Varna Prison.

7 . According to the applicant, during his detention in Belene Prion he shared cells measuring sixteen square metres with eight or nine other inmates, which means that each of them had on average between 1.6 and 1.8 square metres of floor space. The applicant further said that the cells had been stuffy, very hot in summer, and infested with mosquitoes in spring and summer. He also maintained that inmates had not been given enough personal hygiene products, cleaning products and utensils, such as buckets, mops and brooms, that food had been of poor quality and in insufficient quantity, and that tap water had had sand in it.

8 . According to the Government, the applicant had spent a bigger portion of his detention in the prison hospital. His room there had been heated and he had had access to shower and sanitary facilities. Some of the windows had been equipped with mosquito nets. During his stay in the prison hospital, the applicant had had to share his room with four to five other inmates. He had also been provided with a wheelchair and had had regular access to fresh air.

9 . It appears that at the time of the applicant ’ s incarceration in Belene Prison on 6 April 2015 his diabetes caused complications, including damage to the peripheral blood vessels in his left foot.

10 . On 9 April 2015 he was examined in a medical centre. The doctor noted a poor hygiene of his feet and the presence of a dry gangrene in the area of distal phalanx of the hallux of his left foot. He further noted that there were no medical documents indicating that the applicant had been examined by a doctor during his time outside the prison (see paragraph 5 above) or that he had undergone any medical treatment. The applicant was referred to a surgeon for further consultation .

11 . On 22 April 2015 he was sent to Pleven Military Hospital . There, he was diagnosed with diabetes-related gangrene in the left hallux, which was amputated the next day. The applicant was discharged from that hospital on 27 April 2015 in seemingly good condition, and sent to Sofia Prison Hospital.

12 . On 7 May 2015 he was, however, again admitted to Pleven Military Hospital due to pain and blackening of his entire left foot. On 8 May 2015 the second toe and the first two metatarsal bones of that foot were amputated up to the Lisfranc joint. In spite of that, the gangrene was not contained and the necrosis of the applicant ’ s foot continued.

13 . On 14 May 2015 the applicant was discharged from Pleven Military Hospital and sent to Sofia Prison Hospital for further treatment. On the following day, 15 May 2015, the doctors in Sofia Prison Hospital concluded that the surgical intervention could not be performed there and that the execution of the applicant ’ s sentence of imprisonment had to be suspended for three months on medical grounds.

14 . On 29 May 2015 the applicant was admitted to Sveta Marina Hospital in Varna, where his entire left foot was amputated the next day. On 3 June 2015 he was discharged from that hospital.

15 . On 12 August 2015 he was examined by an orthopaedist. On 20 September 2015 he also consulted a surgeon. The results of these examinations are unknown.

16 . On 28 August 2015 the interruption of the execution of the applicant ’ s sentence came to an end, and he was again placed in Belene Prison.

17 . On an unspecified date in 2016 he was transferred to Varna Prison.

18 . As a result of the Court ’ s pilot judgment in the case of Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, 27 January 2015), in early 2017 Bulgaria put in place dedicated preventive and compensatory remedies in respect of inhuman or degrading conditions of detention in correctional and pre-trial detention facilities, including in respect of issues related to alleged inadequate medical treatment in prison. The compensatory remedy came into effect on 7 February 2017. It is open not only to those in custody on or after that date, but also to those who have spent time in such facilities before that, if they have complained to this Court under Article 3 of the Convention about the conditions of their detention and if the Court declares their complaints inadmissible on the basis that they have not resorted to that remedy. The relevant provisions of the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”), as amended in 2017, were set out in detail in the Court ’ s decision in Atanasov and Apostolov v. Bulgaria ((dec.), nos. 65540/16 and 22368/17, §§ 16, 26 and 27, 27 June 2017).

19 . The relevant domestic law before the 2017 amendments to the 2009 Act was set out in Neshkov and Others (cited above, §§ 92-139).

COMPLAINTS

20 . The applicant complained under Article 3 of the Convention that the conditions of his incarceration in Belene Prison in 2011-15 had been poor. He also complained that the prison authorities had failed to provide him with timely medical care for the gangrene of his left foot that had led to its amputation.

THE LAW

ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

21 . In respect of his complaints that the conditions of his detention in Belene Prison had amounted to inhuman and degrading treatment and that he had not been provided with timely medical care the applicant relied on Article 3 of the Convention, which provides:

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

22 . The Government, whose observations were submitted prior to the introduction in 2017 of the new remedy referred to in paragraph 18 above, submitted that the applicant had failed to present evidence that he had exhausted domestic remedies. In their view, the Court thus had to declare his complaints inadmissible. With respect to the complaint that the applicant had not been provided with timely medical care for the gangrene in his left foot, the Government also stated that the applicant had made a declaration that he no longer intended to pursue this part of the application. The Court therefore had to strike it out of its list of cases in accordance with Article 37 § 1 (a) of the Convention .

23 . In the Government ’ s opinion, the applicant had spent most of his detention in a prison hospital under constant medical care. They considered that the conditions of his detention did not reach the threshold of severity under Article 3 of the Convention and did not therefore amount to inhuman and degrading treatment. Finally, they pointed out that the authorities had provided the applicant with timely medical care and their actions had not caused the subsequent amputation of his foot.

24 . The applicant submitted his observations outside the time-limit and since no extension of the allotted time had been requested, they were not included in the case file (Rule 38 § 1 of the Rules of Court).

25 . With respect to the Government ’ s submission that the applicant no longer intends to pursue his application, the Court notes that the Government submitted a copy of a statement made by the applicant addressed to Belene Prison ’ s director in which he said that he “ withdr [ ew ] all his allegations” in respect of Dr G. featuring in his application to the Court.

26 . In accordance with Article 37 § 1 (a) of the Convention, the applicant ’ s intention to withdraw from the proceedings before the Court must be unequivocally established (see, among other authorities, Association SOS Attentats and de Boëry v. France [GC] (dec.), no. 76642/01, § 30, ECHR 2006-XIV) . In the instant case, the Court notes that the applicant ’ s declaration was not addressed to the Court. Nor is it apparent from its wording that the applicant unequivocally wishes to withdraw his application to the Court: the declaration only contains an indication of his intention to withdraw his allegations with regard to the prison doctor, but there is nothing to suggest that the applicant in fact wishes to withdraw his complaints before the Court. There are therefore no grounds to strike his application out of the Court ’ s list under Article 37 § 1 (a) of the Convention.

27 . The Court observes that the Government, who submitted their observations prior to the introduction in 2017 of the new remedy referred to in paragraph 18 above, made a general non-exhaustion objection related to the alleged possibility for the applicant to seek compensation. In these circumstances, the Court must examine not only whether such an effective possibility existed before 2017 but also whether the compensatory remedy introduced in Bulgarian law in 2017 should be used by the applicant in the light of its decision on that issue in the case of Atanasov and Apostolov v. Bulgaria ((dec.), nos. 65540/16 and 22368/17, §§ 44-68, 27 June 2017 ).

28 . In its pilot judgment in Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, §§ 194-207 and 279-89 , 27 January 2015), the Court found that, in view of the overall manner in which the Bulgarian courts approached claims by detainees relating to the conditions of their detention, at the relevant time a claim for damages under section 1(1) of the 1988 Act in relation to allegedly inhuman or degrading conditions of detention did not offer a reasonable prospect of success and was not an effective remedy. It also found that no other such remedies existed, and held that Bulgaria had to make them available. As a result, in early 2017 Bulgaria put in place a preventive and a compensatory remedy designed to provide redress in respect of inhuman or degrading conditions in correctional and pre-trial detention facilities (see paragraph 18 above). In June 2017 the Court held that those remedies could be seen as effective, and that the compensatory remedy should also be used by pre-trial detainees and prisoners who had been released before its introduction and had in the meantime complained to the Court about the conditions of their detention (see Atanasov and Apostolov , cited above, §§ 44-68).

29 . As in the above mentioned pilot judgment, the Court finds that the domestic remedies which existed until 2017 were not effective and the applicant was not required to use them (see, Neshkov and Others , cited above, §§ 194-207 and Atanasov and Apostolov , cited above, § 45).

30 . At the same time, in so far as the applicant complained of the conditions in which he had been kept in Belene Prison in 2011-15 and of the alleged lack of proper medical care for the gangrene in his left foot, it is still open to him to seek compensation under the relevant provisions of the 2009 Act, as amended in 2017 (see paragraph 18 above). As already noted in Atanasov and Apostolov (cited above, § 45), that newly created remedy, which was put in place in response to the Court ’ s pilot judgment in Neshkov and Others (cited above), must, as an exception to the general rule, be taken into account even though it was not in existence when the applicant lodged his application. It should be noted in this connection that it will be open to the applicant to have resort to this new remedy within six months of being notified of the present decision (see Atanasov and Apostolov , cited above, § 27 ).

31 . The Government ’ s objection must therefore be allowed.

32 . It follows that these complaints are inadmissible for non-exhaustion of domestic remedies, and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible f or non-exhaustion of domestic remedies the applicant ’ s complaints under Article 3 of the Convention relating to (a) the conditions of his detention in Belene Prison in 2011-15, and (b) the alleged failure to provide him with timely medical care for the gangrene in his left foot.

Done in English and notified in writing on 18 June 2020 .

Victor Soloveytchik Ganna Yudkivska Deputy Registrar President