FOURTH SECTION

DECISION

Application no . 25626/08 Boyko Stoyanov STOYANOV and O thers against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 13 May 2014 as a Committee composed of:

George Nicolaou , President, Zdravka Kalaydjieva , Faris Vehabović , judges ,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 2 April 2008,

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

Having deliberated, decides as follows:

THE FACTS

1. The case originated in an application (no. 25626/08) 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 three Bulgarian nationals, Mr Boyko Stoyanov Stoyanov (“the first applicant”), Mr Todor Ganchev Nedelchev (“the second applicant”) and Mr Plamen Nikolov Dishkov (“the third applicant”), on 2 April 2008.

2. The applicants were represented by Mr M. Ekimdzhiev , Mr L. Takov and Ms E. Nedeva , lawyers practising in Plovdiv and Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice.

A. The circumstances of the case

3. The applicants were born in 1963, 1967 and 1976 respectively and live in Burgas .

1. The criminal proceedings against the applicants

4. On 3 December 2002 the first applicant was charged with murder and later on with illegal possession of firearms. In his statement of the same day, given in the presence of counsel, he denied involvement in the crime.

5. On 4 December 2002 the first applicant, again in the presence of his counsel, was questioned before a judge, and confessed to the murder. He stated that he had been aided and abetted by the second and third applicants and that the second applicant had paid him 10,000 United States Dollars two days after the murder.

6. Shortly afterwards the investigative authorities ordered an expert report about the first applicant ’ s mental state. In relation to that, the applicant was interviewed by a psychiatrist.

7. The second and third applicants were charged with aiding and abetting murder on 6 and 9 December 2002 respectively. The proceedings in respect of the third applicant were held in absentia as it was established that he had left Bulgaria two days after the murder and could not be found. On 12 December 2002 Interpol circulated a red notice declaring the third applicant a fugitive wanted for prosecution.

8. In a statement of 28 May 2003 made before an investigator the first applicant withdrew his statement of 4 December 2002 and claimed that he had confessed to the murder after he had been talked into it by the police authorities in exchange for special treatment during the criminal proceedings and out of fear for his personal integrity.

9. In a judgment of 2 July 2004 the Burgas Regional Court convicted the first applicant of murder and illegal possession of firearms, sentenced him to twenty years ’ imprisonment and acquitted the other two applicants. That judgment was upheld on appeal by the Burgas Court of Appeal on 13 June 2005.

10. In a judgment of 17 March 2006 the Supreme Court of Cassation quashed the lower court ’ s judgment and referred back the case for a fresh examination by the Burgas Court of Appeal. It found the lower court ’ s conclusions in respect of the second and third applicants unfounded and noted that their acquittal had been based on an imprecise and incomplete analysis of the evidence. Following this referral, the first applicant engaged another lawyer to represent him.

11. In a judgment of 9 March 2007 the Burgas Court of Appeal convicted the three applicants and sentenced them to different terms of imprisonment. The court held that the applicants ’ convictions had been based not only on the first applicant ’ s confession but also on the statements of numerous witnesses and on forensic evidence. In respect of the first applicant ’ s complaint that the confession was extracted under duress, the court held that the first applicant confessed before the court, in the presence of counsel and did not mention anything about coercion exerted on him by the police. The court further held that in addition to that, the first applicant did not mention anything in this respect during his interviews with a psychiatrist (see paragraph 6 above). In conclusion, the court found those allegations to be unfounded.

12. In a final judgment of 11 October 2007 the Supreme Court of Cassation upheld the applicants ’ convictions.

13. In November 2011 the third applicant was arrested in Portugal and extradited to Bulgaria shortly afterwards. On an unspecified date he submitted a request for reopening of the criminal proceedings against him. On 16 May 2012 the Supreme Court of Cassation granted the request.

14. The criminal proceedings against the third applicant were resumed at the investigation stage. It appears that they are still pending.

2. The first applicant ’ s detention at Burgas Prison between 19 June 2003 and 6 February 2008

15. From 19 June 2003 until 6 February 2008 the first applicant was detained at Burgas Prison in execution of his sentence.

16. The first applicant argues that he spent the first winter of prison service in a cell which was not heated. The Government contested that statement, arguing that all cells at Burgas Prison were heated in the winter. According to them, the prison was provided with a steam boiler and there were radiators in each cell.

17. The first applicant further states that on 16 February 2004 he was moved to a cell which measured seven by four metres and was occupied by twenty detainees. The cell was equipped with three-tier bunk beds and had three small windows. The natural light was insufficient and reached only those detainees who occupied the highest beds. He alleges that the sanitary conditions were poor and the cell was infested with pests. During that period he experienced headaches and pain in his eyes. However, he does not provide any medical documents in this respect and his prison record does not contain any such information either.

18. For a period of twelve days in June 2006 the prison authorities kept the first applicant ’ s cell locked as punishment for the smuggling of a mobile phone by another inmate whereas normally the cells were kept open during the day and were only locked at night. There were twenty-one detainees at that time in the cell. The cell was unlocked three times a day for a period of approximately forty minutes each. During that time the first applicant was allowed to use the toilet. There were four toilets at the disposal of one hundred and twenty detainees. While in the cell, the first applicant had no access to running water and the inmates used one bucket in order to relieve their needs. They were allowed to clean the bucket three times a day.

19. On an unspecified date the first applicant complained to the prosecutor about that situation. In a letter of September 2006 the prosecutor responded that the temporary restrictive measure was lawful.

20. In the period from 2 October 2006 to 14 March 2007 the first applicant was accommodated in a more secure area on account of his behavior in breach of the relevant internal regulations. He does not provide any details about that.

21. On 14 March 2007 the first applicant was transferred to a less strict area of the prison. Again, the first applicant does not submit any specific information regarding the conditions of his detention. On 26 November 2007 he started working in the prison kitchen.

22. Meanwhile, in June 2007 the first applicant was prescribed treatment by a doctor for varicose veins. He claims that the treatment was not efficient and that he needed an operation.

23. In addition, according to the first applicant throughout his detention the food had been insufficient and of poor quality.

3. The first applicant ’ s detention after 6 February 2008

24. On 6 February 2008 the first applicant was transferred to Stara Zagora Prison.

25. On 14 August 2009 the first applicant was moved back to Burgas Prison. He has not provided specific information about the conditions of his detention after this transfer. The Government submits that on 19 October 2009 the first applicant started working in the kitchen of Burgas Prison. He was accommodated on the fifth floor of the prison with other working inmates, in a brighter and more spacious cell with bigger windows. As a regular practice the prison was disinfested twice a year. The first applicant ’ s varicose veins were surgically treated on 5 October 2010.

B. Relevant domestic law

26. The relevant provisions of the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”) and the courts ’ case ‑ law on their application have been set out in the Court ’ s judgment in the case of Kirilov v. Bulgaria (no. 15158/02, §§ 21-22, 22 May 2008).

COMPLAINTS

27. The first applicant complained under Article 3 of the Convention about the allegedly inhuman and degrading conditions of his detention at Burgas Prison.

28. All applicants complained, relying on Article 6 §§ 1 and 2, about the outcome and fairness of the criminal proceedings against them and, in particular, that the domestic courts based their conclusions on an allegedly forced confession, the Supreme Court of Cassation in its judgment of 17 March 2006 had overstepped its competencies, the applicants ’ requests for the collection of evidence had been dismissed and that the experts had not been independent. In addition to that, the first applicant complained that his lawyer did not have the necessary qualification to represent him before the cassation instance and the third applicant complained that the criminal proceedings against him were held in absentia .

29. Lastly, all the applicants complained under Articles 6 § 1 and 13 about the length of the criminal proceedings against them.

THE LAW

A. Complaint under Article 3 in respect of the conditions of the first applicant ’ s detention at Burgas prison in the period from June 2003 to February 2008

30. The first applicant complained that the conditions of his detention at Burgas Prison in the period from June 2003 to February 2008 were inhuman and degrading, in breach of Article 3 of the Convention, which reads as follows:

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

31. The Government submitted that the first applicant had failed to exhaust domestic remedies as he had not brought a claim against the relevant authorities under section 1 of the 1988 Act neither following the lifting of the restrictive regime of June 2006, nor after his transfer to Stara Zagora Prison. They went on to argue that he did not request the director of the Chief Directorate for Execution of Sentences to transfer him to another prison and did not file complaints with the prison warden or with the prosecutor about the conditions of his detention. They further claimed that, in any event, following the lifting of the restrictive measure the conditions of the first applicant ’ s detention improved in order to reach the Convention standards.

32. The first applicant responded that those remedies were not effective and that the conditions of his detention had not changed since 2003.

33. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international organ to use first the remedies provided by the national legal system. Under that Article, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many authorities, Akdivar and Others v. Turkey , 16 September 1996, §§ 65-66, Reports of Judgments and Decisions 1996 ‑ IV; Mammadov v. Azerbaijan , no. 34445/04, § 23, 11 January 2007 ).

35. The Court notes at the outset that the conditions of the first applicant ’ s detention at Burgas Prison for the impugned period changed on several occasions as he was moved to different sections of that prison (see paragraphs 20-21 above). However, the first applicant fails to provide any specific information about the conditions of his detention following those transfers, and in particular, for the period after October 2006. At the same time his claim about the permanence and unchangeability of the conditions appears rather vague and very general.

36. The Court is of the view, however, that it need not assess whether and to what extent the conditions of the first applicant ’ s detention changed in the course of his first stay at Burgas Prison as, in any event, the impugned situation ceased to exist after his transfer to Stara Zagora Prison in February 2008. The first applicant does not submit any information or raise any complaints in respect of the conditions of his detention in Stara Zagora Prison after February 2008 or in Burgas Prison after August 2009. In the absence of any complaints about the conditions of his detention after his transfer in February 2008, the Court is of the view that at that point the first applicant could have had recourse to the remedy under the 1988 Act. As for the first applicant ’ s argument that that remedy should not have been tried as it was ineffective, the Court refers to its reasoning in the Bulgarian cases cited in paragraph 34 above, in which it dealt with similar objections and rejected them.

B. Other alleged violations of the Convention

38. The applicants also complained, relying on Article 6 §§ 1 and 2, about the outcome and fairness of the criminal proceedings against them and, in particular, that the domestic courts based their conclusions on an allegedly forced confession, in its judgment of 17 March 2006 the Supreme Court of Cassation had overstepped its competencies, the applicants ’ requests for the collection of evidence had been dismissed, the experts had not been independent and the first applicant ’ s lawyer did not have the necessary qualification. The third applicant complained, in particular, about his trial held in absentia . Lastly, all the applicants complained under Articles 6 § 1 and 13 about the length of the criminal proceedings against them.

39. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

40. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President