FOURTH SECTION

CASE OF PALFREEMAN v. BULGARIA

(Application no. 840/18)

JUDGMENT

STRASBOURG

8 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Palfreeman v. Bulgaria,

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

Iulia Antoanella Motoc, President , Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, judges , and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to:

the application (no. 840/18) 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 an Australian national, Mr Jock Anthony Palfreeman (“the applicant”), on 22 December 2017;

the decision to give the Bulgarian Government (“the Government”) notice of the application;

the parties’ observations;

Having deliberated in private on 11 May 2021,

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

INTRODUCTION

1. The case concerns allegations, under Article 3 of the Convention, that a foreign prisoner was hit (including with truncheons), kicked and pushed by prison guards without justification, and that the investigation of that incident was not independent and thorough.

THE FACTS

2. The applicant was born in 1986. His current whereabouts are unknown. He was represented by Ms A. Kachaunova, a lawyer practising in Sofia and working with the Bulgarian Helsinki Committee (“the BHC”).

3. The Government were represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice.

4. Between August 2011 and September 2019 the applicant was serving a prison sentence in Sofia Prison (details about his conviction and his time in Sofia Prison may be found in Shahanov and Palfreeman v. Bulgaria , nos . 35365/12 and 69125/12, §§ 15-21, 21 July 2016, and Palfreeman v. Bulgaria (dec.), no. 59779/14, §§ 4-12, 16 May 2017). The applicant’s conviction and the serving of his sentence have attracted considerable public attention and extensive media coverage in Bulgaria.

5. In Sofia Prison, the applicant was kept in group ten, which is one of the units for foreign prisoners (see paragraph 62 below).

6 . The parties gave conflicting accounts of the events. The Government stated that theirs was based on the materials obtained in the course of the ensuing investigation (described in paragraphs 20 to 55 below).

7 . It was not disputed between the parties that at about 8.30 a.m. on 17 October 2013 two prison guards (the one in charge of the previous twenty-four hour shift, and the one taking charge of the next twenty-four-hour shift) entered the applicant’s cell, which the applicant shared with ten other foreign prisoners (five Iraqis, four Iranians and one Palestinian). It appears that none of those prisoners except the applicant spoke Bulgarian. The guards ordered the prisoners to get out of the cell and line up in the corridor for the routine morning roll-call. According to the applicant, none of his cellmates understood the order; he himself told the guards that he was ready for the roll-call. According to the Government, all inmates in the cell, including the applicant, deliberately ignored the order, even though it was repeated several times, and even uttered threats towards the guards (the applicant disputed this). The two guards got out of the cell, blocked its door from the outside, locked the door leading into the wing containing the cell, and reported the incident to the chief guard on duty.

8 . According to the applicant, at about 8.45 a.m. many guards entered the cell, handcuffed all prisoners in it, and led them out in the corridor, where they repeatedly hit them, including with truncheons, kicked them, and pushed them against the walls. After that the guards led the prisoners back into the cell and got out of the wing, locking its door. The prisoners gathered around that door, shouting that they had to be let out so as to be able to go to the exercise room or attend their Bulgarian language classes. A few minutes later another group of guards tried to storm the wing, but at first could not, as a prisoner had put a padlock on the inside of its door. The applicant used a telephone inside the wing to call his lawyer, the BHC and Australia’s honorary consul to alert them that he and his cellmates had been assaulted by guards and were likely to be assaulted again. The guards managed to break the padlock with the help of a prisoner whom they had called from the prison workshop, and entered the wing. They locked all other cells, lined the applicant and his cellmates up against the wall of the corridor, and again repeatedly hit and kicked them and pushed them against the wall. Then they took the applicant to another cell, where he remained for a few hours.

9 . According to the Government, shortly after the two guards had left the cell (see paragraph 7 in fine above), the applicant kicked its door open, got out in the corridor, and made the telephone calls. His cellmates then followed him into the corridor. It was only then that an intervention team assembled by the chief guard on duty to restore order stormed into the wing. They were somewhat delayed by the padlock put on the wing’s door, but broke it with the help of another prisoner, and then entered the wing and went to the applicant’s cell. Since neither the applicant nor his cellmates obeyed their order to step out for inspection, the guards used “leading techniques” (which consisted of grabbing the prisoners by the back and neck) to get them out in the corridor, but did not hit, push or kick them. They did not use truncheons either. After that the guards handcuffed the prisoners, searched the cell, and then uncuffed the prisoners and allowed them to go back into the cell.

10 . At some point between 11 a.m. and 12 noon the applicant was visited by his lawyer and a BHC staffer, who also spoke with his cellmates. According to the BHC staffer’s subsequent complaint to the Sofia district prosecutor’s office (see paragraph 20 below), during that visit she observed bruises consistent with truncheon blows on the backs and feet of all but one of those prisoners.

11 . The prison medical doctor examined the applicant between 2.40 p.m. and 2.42 p.m. He noted that the applicant was complaining of an assault in the morning, and recorded three bruises measuring 2 by 0.5 centimetres each under the applicant’s right shoulder. He also noted that the applicant was complaining of head and neck pain, but did not have visible injuries.

12 . The same day the applicant’s cellmates made handwritten statements about the incident in Bulgarian. Nine out of the ten statements contained allegations that the guards had beaten the inmates. Six of the statements said that they had been made with the help of another inmate (with Arab names) who apparently could write in Bulgarian. The other four statements, all made in what appears to be one and the same handwriting, do not specify who drew them up. In a statement made in the course of the ensuing investigation (see paragraph 22 below) one of the applicant’s cellmates said that his handwritten statement had been drawn up by the applicant.

13 . The same day one of the two guards who had first entered the applicant’s cell (the one in charge of the next shift) wrote a short report to the prison governor. He said that the prisoners had not obeyed his order to get up and line up for a roll-call, and had instead made threats against him. He had informed the chief guard on duty and had followed his instructions.

14 . Later that day the chief guard on duty informed the Chief Directorate for the Execution of Punishments and the Sofia City prosecutor’s office about the incident. He said that “leading techniques” and “auxiliary means” had been used to get the applicant and his cellmates of the cell.

15 . On 8 November 2013 the prison governor punished the applicant with extra cleaning duties for seven days for his failure to obey the prison guard’s order to get out of the cell for a roll-call.

16 . On 22 November 2013 the governor further punished the applicant with two months’ deprivation of the right to receive food parcels from outside prison for his having pushed his cell door open and his having gone out in the corridor to make telephone calls.

17 . One day after the incident, on 18 October 2013, the BHC staffer who had visited the applicant (see paragraph 10 above) asked the Ombudsman of the Republic to investigate it.

18 . Five days later, on 23 October 2013, two members of the Ombudsman’s staff visited Sofia Prison and interviewed the applicant, his cellmates, and inmates from the adjoining cell. They also obtained the reports about the incident by the two guards who had first entered the applicant’s cell and by the chief guard on duty, as well as the note by the prison’s medical doctor (see paragraphs 11, 13 and 14 above). They also noted that the wing in which foreign inmates were kept was not equipped with security cameras.

19 . In his report, dated 21 November 2013, the Ombudsman said that the bruises observed on the bodies of some of the inmates plainly suggested that force had been used against them. Although the use of some force had been justified by their refusal to obey the order to get out of the cell for a roll-call, it could not be established for how long that use of force had lasted. If it had continued even after the prisoners had been taken out of their cell, it had been manifestly disproportionate. The use of truncheons had been unlawful, in particular because the prisoners had not put up active resistance.

20 . Five days after the incident, on 22 October 2013, the BHC staffer who had visited the applicant (see paragraph 10 above) asked the Sofia district prosecutor’s office to investigate the possible ill ‑ treatment of him and of his cellmates. The following day, 23 October 2013, the applicant and two of his cellmates also complained to that office about the incident, alleging that they had been pushed, hit (including with truncheons) and kicked by the guards.

21 . Based on the complaint by the BHC staffer, on 4 November 2013 the Sofia district prosecutor’s office instructed the police to carry out a “preliminary investigation” (see paragraph 56 below) with a view to enabling it to determine whether it was warranted to open criminal proceedings.

22 . On 12, 13 and 14 December 2013 the investigator, a police officer whose duty station was in Sofia Prison (“the officer”), obtained statements from nine of the applicant’s cellmates about the incident; one cellmate had already been extradited. The statements, all printed in Bulgarian, were made with the help of two other prisoners who spoke, respectively, Arabic and Farsi, and also Bulgarian. According to all nine statements, the guards who had taken the prisoners out of the cell had not beaten them, and had made physical contact solely for the purpose of leading them out of the cell. According to five of the statements, the prisoners had been handcuffed while being led out of the cell, and had had their cuffs removed after the roll-call.

23 . On 21 December 2013 the officer obtained a statement from the prison medical doctor. It repeated the information already featuring in the note drawn up when he had examined the applicant (see paragraph 11 above).

24 . On 27 December 2013 and 8 January 2014 the officer obtained statements from the two guards who had entered the cell at the beginning of the incident. According to them, no guard had used force with respect to the prisoners other than “leading techniques”.

25 . On 7, 8 and 13 January 2014 the officer obtained statements from twelve guards who had participated in the intervention team tasked with restoring order in the applicant’s cell (see paragraph 9 above). The text of eleven of those statements, all printed, was identical. According to them, the guards had used force only after inviting the applicant and his cellmates to comply with the order to come out for a roll-call and warning them that if they failed to do so, force would be used against them. None of the prisoners had been hit; they had only been gripped and led outside the cell, and then handcuffed to prevent a further escalation of the situation. After that the cell had been searched, and the prisoners uncuffed and allowed back in. The twelfth statement, by a unit commander, contained slightly more detail, but maintained the same about the sequence of events. It further specified that no “truncheons or physical force [had been] used other than allowed by law”.

26. On unspecified dates the officer obtained statements from the BHC staffer and from the applicant himself. The Government did not provide copies of those statements. It appears that the BHC staffer maintained that she had seen traces of truncheon blows on the applicant.

27 . In his report, dated 17 January 2014, the officer summarised the statements which he had obtained, and said that they did not confirm the applicant’s allegations that he and his cellmates had been taken out and back in the cell several times and throughout that time beaten and kicked. The assertion of the BHC staffer about traces of truncheon blows were disproved from the statement of the prison medical doctor; the three bruises noted by him were not indicative of truncheon blows. The applicant’s assertions that he and his cellmates had been taken out of the cell and then back in, while constantly being assaulted, was not confirmed by the remaining statements. The applicant’s further assertion that the guards had been equipped with metal truncheons could not be true since no such truncheons were available in Sofia Prison. On that basis, the officer recommended that no criminal proceedings be opened in connection with the incident.

28 . On 30 January 2014 the Sofia district prosecutor’s office refused to open criminal proceedings in connection with the incident. The reasons for its decision repeated nearly verbatim the text of the officer’s report.

29 . The applicant, one of his cellmates, and the BHC staffer appealed to the Sofia City prosecutor’s office under Article 213 § 2 of the Code of Criminal Procedure (see paragraph 57 below). They argued that the findings of fact underpinning the refusal to open criminal proceedings were erroneous. The BHC staffer, who was the only one to have had the possibility to see the materials in the case file and obtain a copy of the Sofia district prosecutor’s decision (see paragraph 28 above), submitted that that office had not taken into account the assertions in the handwritten statements made by the applicant’s cellmates on the day of the incident (see paragraph 12 above), which contradicted their later printed statements. Moreover, the Sofia district prosecutor’s office had not itself carried out any investigative steps, but had fully delegated those to a police officer working inside Sofia Prison, and had then uncritically accepted that officer’s report. It had also accepted without reserve the finding that the bruises on the applicant’s back had not been caused by truncheon blows.

30 . On 14 April 2014 the Sofia City prosecutor’s office allowed the appeal by the BHC staffer (it made no reference to the other two appeals). It found, in particular, that there existed obvious discrepancies between the prisoners’ initial handwritten statements (see paragraph 12 above) and the ensuing statements obtained from them (see paragraph 22 above) about whether they had been beaten. It was hence necessary to obtain further statements from them, with the help of “sworn translators”. They had to be asked specifically whether they had been ill-treated and whether they had been offered medical assistance in a manner intelligible to them. For his part, the prison medical doctor had to be invited to elucidate the origin of the applicant’s injuries.

31 . On 22 April 2014 the Sofia district prosecutor’s office referred the case back to the police with instructions to, in particular, obtain a detailed statement from the prison medical doctor about the origin of the applicant’s injuries. The case was assigned to the same police officer (see paragraph 22 above).

32 . In his statement, dated 3 June 2014, the medical doctor said that he could provide no further details, since he was not a forensic specialist and had not been present when the applicant had received his injuries. He enclosed a copy of the page of his journal in which he had described the injuries.

33 . On 4 June 2014 the officer obtained a statement from the prisoner who had been called by the guards to break the padlock (see paragraph 8 above). He described his own role in the events, and stated that he had not seen what had happened after that.

34 . On 11 July 2014 the Sofia district prosecutor’s office again refused to open criminal proceedings. The text of its decision repeated nearly verbatim that of its earlier decision (see paragraph 28 above), with the addition of four paragraphs at the end in which it (a) summarised the two additional statements obtained during the additional investigation, and (b) noted that an assertion by the BHC staffer that some of the applicant’s cellmates had been denied medical attention was not sufficiently specific or supported by evidence. Those paragraphs were likewise copied nearly word for word from the police officer’s report about the additional investigation.

35 . The applicant and the BHC staffer who had lodged the complaint to the prosecuting authorities appealed to the Sofia City prosecutor’s office under Article 213 § 2 of the Code of Criminal Procedure (see paragraph 57 below). They argued that the additional investigation had been cursory and had not even tried to engage with the points outlined in the decision of the Sofia City prosecutor’s office to quash the first refusal to open criminal proceedings (see paragraph 30 above).

36 . On 17 November 2014 the Sofia City prosecutor’s office dismissed the appeals, stating that all instructions that it had given when quashing the first refusal to open criminal proceedings (see paragraph 30 above) had been complied with, and that the Sofia district prosecutor’s office had properly analysed the available materials. [1]

37 . On 12 May 2015 the applicant wrote to the Sofia appellate prosecutor’s office. He reiterated his arguments and requested, with reference to Article 46 § 3 of the Code of Criminal Procedure (see paragraph 61 below), that the second refusal to open criminal proceedings be quashed.

38 . On 6 July 2015 the Sofia appellate prosecutor’s office dismissed the applicant’s “appeal” and upheld the decision of the Sofia City prosecutor’s office. It found that there were no materials showing that the applicant or his cellmates had been ill-treated by prison guards, and that all instructions given by the Sofia City prosecutor’s office when quashing the first refusal to open criminal proceedings (see paragraph 30 above) had been complied with.

39 . The applicant wrote to the Supreme Cassation Prosecutor’s Office, reiterating his arguments. He again requested, with reference to Article 46 § 3 of the Code of Criminal Procedure (see paragraph 61 below), that the second refusal to open criminal proceedings be quashed.

40 . On 2 September 2015 the Supreme Cassation Prosecutor’s Office agreed that the Sofia district prosecutor’s office had failed to comply with the instructions given by the Sofia City prosecutor’s office in its decision quashing the first refusal to open criminal proceedings (see paragraph 30 above). It therefore allowed the applicant’s “signal”, quashed the decision of the Sofia appellate prosecutor’s office, and referred the case back to the Sofia district prosecutor’s office, directing it to comply fully with the instructions given by the Sofia City prosecutor’s office.

41 . On 19 October 2015 the Sofia district prosecutor’s office referred the case back to the police with instructions to comply fully with the instructions given by the Sofia City prosecutor’s office in its decision quashing the first refusal to open criminal proceedings (see paragraph 30 above). The case was assigned again to the same police officer (see paragraphs 22 and 31 above).

42 . On 1 December 2015 the officer sent the case to the Sofia district prosecutor’s office together with his report. That report repeated verbatim the content of the previous reports, with five additional paragraphs at the end in which the officer noted that (a) eight of the applicant’s cellmates had been released from prison on various dates in 2014 (five of them before the decision of the Sofia City prosecutor’s office ordering the taking of additional statements from them), that (b) one of them had been extradited, and that (c) the Ministry of Internal Affairs did not have sworn translators, and had only budgeted funds for retaining experts in criminal proceedings.

43 . In a decision of 10 December 2015 whose text repeated the officer’s report nearly verbatim, the Sofia district prosecutor’s office for a third time refused to open criminal proceedings.

44 . The applicant and the BHC staffer appealed to the Sofia City prosecutor’s office under Article 213 § 2 of the Code of Criminal Procedure (see paragraph 57 below).

45 . On 20 January 2016 the Sofia City prosecutor’s office quashed the refusal and referred the case back to the Sofia district prosecutor’s office with instructions to obtain statements from all inmates who had witnessed the incident and were still in Sofia Prison.

46 . On 27 January 2016 the Sofia district prosecutor’s office referred the case back to the police with instructions to comply fully with the instruction of the Sofia City prosecutor’s office to obtain statements from all inmates who had witnessed the incident and were still in Sofia Prison (see paragraph 45 above). The case was assigned once again to the same police officer (see paragraphs 22, 31 and 41 above).

47 . On 23 February 2016 that officer obtained a statement from the only one of the applicant’s cellmates who was still in Sofia Prison. The (printed) text of that statement was almost identical with that of his earlier statement of 13 December 2013 (see paragraph 22 above).

48 . The officer’s report, dated 14 March 2016, repeated verbatim his previous report, with the addition at the end of a paragraph mentioning the taking of the additional statement (but not describing its content). He recommended that no criminal proceedings be opened.

49 . In a decision of 29 March 2016 whose text repeated nearly verbatim the officer’s report, the Sofia district prosecutor’s office for a fourth time refused to open criminal proceedings.

50 . The applicant appealed to the Sofia City prosecutor’s office under Article 213 § 2 of the Code of Criminal Procedure (see paragraph 57 below). He pointed out that the Sofia district prosecutor’s office had not even mentioned the content of the additional statement obtained from his cellmate, and argued that the issues highlighted by the Sofia City prosecutor’s office in its decision to quash the first refusal to open criminal proceedings (see paragraph 30 above) remained outstanding.

51 . On 8 July 2016 the Sofia City prosecutor’s office dismissed the appeal and upheld the refusal. It noted, in particular, that only one of the applicant’s cellmates remained in Sofia Prison, and that it had hence been impossible to obtain additional statements from the others. It also found that the Sofia district prosecutor’s office had properly analysed the available materials.

52 . On 28 July 2016 the applicant wrote to the Sofia appellate prosecutor’s office. He repeated his arguments, and requested, with reference to Article 46 § 3 of the Code of Criminal Procedure (see paragraph 61 below), that the refusal to open criminal proceedings be quashed.

53 . On 20 September 2016 the Sofia appellate prosecutor’s office dismissed the applicant’s “appeal” and upheld the decision of the Sofia City prosecutor’s office. It likewise noted that only one of the applicant’s cellmates had remained in Sofia Prison, and that it had hence been impossible to obtain additional statements from the others, whose whereabouts after their release were unclear. It went on to say that the lower prosecutor’s offices had duly analysed the available materials.

54 . On 28 April 2017 the applicant wrote to the Supreme Cassation Prosecutor’s Office. He reiterated his arguments and requested, again with reference to Article 46 § 3 of the Code of Criminal Procedure (see paragraph 61 below), that the refusal to open criminal proceedings be quashed.

55 . On 20 July 2017 the Supreme Cassation Prosecutor’s Office dismissed the applicant’s “appeal” and upheld the decisions of the lower prosecutor’s offices. It noted that the additional investigations had not confirmed the applicant’s allegations of ill-treatment.

RELEVANT LEGAL FRAMEWORK

56 . The prosecuting authorities are required to open criminal proceedings only if the report or complaint which they have received contains “sufficient information” to permit a “well-founded suspicion” that an offence has been committed (Article 211 § 1 of the Code of Criminal Procedure). If a complaint or a report to the prosecuting authorities does not contain such “sufficient information”, they may order the police or another authority to carry out a “preliminary investigation” (“ предварителна проверка ”) and report back to them (section 145(1)(3) of the Judiciary Act 2007), so that they can decide, in the light of the additional material thus obtained, whether to open criminal proceedings.

57 . Article 213 of the Code of Criminal Procedure, as worded when it first came into force in April 2006, consisted of two paragraphs. The first provided that a prosecutor could refuse to open criminal proceedings, in which case he or she had to inform the victim (or the next of kin) and the person who had reported the alleged offence. The second paragraph provided that a prosecutor from the “higher prosecutor’s office” could quash that decision, either of his or her own initiative or following an appeal by the persons mentioned in the first paragraph, and order the opening of criminal proceedings.

58 . Article 213 was amended with effect from August 2016. The second paragraph was deleted, and a sentence was added to the first paragraph, saying that the refusal to open criminal proceedings was amenable to appeal before the “higher prosecutor’s office”. The explanatory notes to the bill which led to the amendment (bill no. 602-01-34) stated that its purpose was to remove the possibility for a higher prosecutor to mandate a specific outcome of the case before the lower prosecutor (that is, to order the opening of criminal proceedings), and thus to ensure that lower prosecutors, though being supervised in the manner in which they applied the law, would nevertheless retain their ability to decide, based on their inner belief, how to deal with a case (at p. 7).

59 . Although the Code of Criminal Procedure does not say so in terms, it is settled that a prosecutor’s refusal to open criminal proceedings is not amenable to judicial review (see опр. № 9896 от 21.07.2009 г. по адм. д. № 9215/2009 г., ВАС, VII о.; опр. № 280 от 24.11.2011 г. по в. ч. н. д. № 427/2011 г., ВнАС; опр. № 17 от 31.01.2012 г. по в. ч. н. д. № 90/2012 г., САС; and опр. № 347 от 03.11.2014 г. по в. ч. н. д. № 996/2014 г., САС).

60 . According to Article 200 of the Code, as worded from the time when it first came into force in April 2006, any decision by a prosecutor which is not amenable to judicial review is amenable to appeal before a prosecutor from the “higher prosecutor’s office”, whose decision is in turn not amenable to appeal.

61 . By Article 46 § 3 of the Code (since December 2020, § 4), as worded when it first came into force in April 2006, a prosecutor from the “higher prosecutor’s office” could quash or vary a decision by a subordinate prosecutor, give mandatory instructions, and even carry out him- or herself the requisite investigative steps. With effect from August 2016, that provision was amended based on the same bill that led to the amendment of Article 213 (see paragraph 58 above), to specify that the prosecutor from the “higher prosecutor’s office” could do so of his or her own initiative, but only with respect to lower prosecutors’ decisions not reviewed by a court.

RELEVANT INTERNATIONAL REPORTS

62 . In its report about its visit to Bulgaria in March-April 2014 (CPT/Inf (2015) 12), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) noted that its “delegation [had] received a significant number of allegations of deliberate physical ill-treatment of prisoners by custodial staff” in Sofia Prison. Most of those allegations had referred to “the admission unit (Group 8), the units for foreign prisoners (Groups 10 and 13) and the unit for sentenced prisoners (Group 11)” (paragraph 51).

63 . In its report about its visit to Bulgaria in June-July 2015 (CPT/Inf (2015) 36), the CPT recorded that in “Sofia Prison, it [had been] alleged that the situation had deteriorated as the ill-treatment [had] reportedly no longer [been] mostly limited to individual incidents but [had] also involved mass beatings of prisoners in cells”, with some members of staff being “said to be particularly aggressive and hostile towards foreign prisoners or sexual offenders” (paragraph 33). The CPT went on to note, in paragraph 34:

“In Sofia Prison, on 6 July 2014 eight sentenced foreign nationals from the same cell were allegedly beaten all over with truncheons, including their heads and limbs. After the incident, the prisoners were examined by the surgeon at the Prison Hospital. Unfortunately, the description of the injuries is very superficial and inaccurate (not mentioning the type of injuries, colour, dimensions, exact location, estimated age, estimated type of the instrument used etc.), and lack the conclusions of the examining doctor on the degree of consistency between the allegations and the injuries displayed. Furthermore, the content of the certificates issued was not recorded in the medical files of the prisoners, the general register of medical consultations or the register of traumatic events.”

THE LAW

64. The applicant alleged that in the morning of 17 October 2013 he had, without justification, been pushed, kicked and hit with truncheons by prison guards, including when handcuffed, and that the ensuing investigation into that matter had been ineffective. He relied on Article 3 of the Convention, which provides:

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

(a) The parties’ submissions

65. The Government submitted that the application was out of time. According to them, the six-month time-limit laid down in Article 35 § 1 of the Convention had started to run on 8 July 2016, when the Sofia City prosecutor’s office had upheld the fourth refusal of the Sofia district prosecutor’s office to open criminal proceedings. That was because under Article 213 of the Code of Criminal Procedure, as amended in August 2016, a refusal to open criminal proceedings was only amenable to appeal once, before the immediately superior prosecutor’s office (which had not been the case until that amendment). The applicant’s further legal challenges, to the Sofia appellate prosecutor’s office and the Supreme Cassation Prosecutor’s Office, had not been regular appeals, as in them he had merely urged those offices to exercise their powers under Article 46 § 3 of the same Code to quash the lower prosecutor’s decisions of their own initiative. That possibility was not constrained by time-limits, and the exercise of that power was discretionary. The decision of the Sofia appellate prosecutor’s office of 20 September 2016 and that of the Supreme Cassation Prosecutor’s Office of 20 July 2017 could not therefore be taken into account when calculating the six-month time-limit. Even if the decision of the Sofia appellate prosecutor’s office could be seen as given pursuant to Article 213 of the Code (since it had referred to it), and thus as the final link in the chain of regular appeals available to the applicant, it had been received by him on 26 September 2016, more than six months before he had lodged his application. It was also unclear why he had then waited more than seven months, until 28 April 2017, before making his further legal challenge to the Supreme Cassation Prosecutor’s Office.

66. The applicant submitted that Article 213 of the Code of Criminal Procedure did not in terms bar further appeals, and that the phrase “higher prosecutor’s office” in that provision did not denote solely the immediately superior prosecutor’s office. In his case, all levels of prosecutor’s office had dealt with the substance of his legal challenges rather than find them inadmissible. Previous cases against Bulgaria showed that the possibility to obtain the quashing of a refusal to open criminal proceedings under Article 46 § 3 of the same Code was an effective remedy.

(b) The Court’s assessment

67 . In Bulgaria, an appeal to the higher prosecutor’s office against a refusal by the competent prosecutor’s office to open criminal proceedings is an effective remedy which needs to be used before complaining to the Court under Article 3 of the Convention of deliberate ill-treatment by the police (see Kemerov v. Bulgaria (dec.), no. 44041/98, 2 September 2004, and Dimov v. Bulgaria , no. 56762/00, § 80, 8 March 2007). In such cases, the person concerned should normally bring the matter to the attention of the highest prosecuting authority, that is, the Supreme Cassation Prosecutor’s Office (formerly the Chief Public Prosecutor’s Office) (see Kemerov v. Bulgaria (No. 2) (dec.), no. 16077/05, 22 June 2010). As borne out by the facts of several such cases which have come before the Court, that is the usual remedy in those situations (see, for instance, Vladimir Georgiev v. Bulgaria , no. 61275/00, §§ 17-19, 16 October 2008; Sashov and Others v. Bulgaria , no. 14383/03, §§ 21-25, 7 January 2010; Hristovi v. Bulgaria , no. 42697/05, §§ 24-31 and 53, 11 October 2011; and Boris Kostadinov v. Bulgaria , no . 61701/11, §§ 25-29, 21 January 2016).

68 . In Dimcho Dimov v. Bulgaria (no. 57123/08, § 44, 16 December 2014), the Court held that the same remedial route was the one to be followed when the authors of the alleged ill-treatment were prison guards. In that case, the applicant had likewise appealed all the way up to the Supreme Cassation Prosecutor’s Office (ibid., §§ 21-24 and 46).

69 . In Hristovi (cited above), the Government raised an objection similar to the one in the present case, and the Court held that the “final decision” within the meaning of Article 35 § 1 of the Convention had been that in which the Chief Public Prosecutor’s Office had dealt with the merits of the applicants’ latest legal challenge against the refusal to open criminal proceedings into their allegations of ill-treatment by the police (ibid., § 57).

70 . The present case does not present a material difference. In particular, it does not appear that the August 2016 amendment to Article 213 of the Code of Criminal Procedure (see paragraph 58 above) had the effect which the Government sought to ascribe to it. The provision’s text, before as well as after the amendment, did not in terms proscribe further appeals. Moreover, the explanatory notes to the bill which led to the amendment show that its purpose was not to reduce the levels at which a prosecutor’s refusal to open criminal proceedings could be challenged, but to prevent higher prosecutors from mandating whether lower prosecutors should open criminal proceedings when quashing their refusals to do so (see paragraph 58 in fine above).

71 . When dealing with the applicant’s case, neither the Sofia appellate prosecutor’s office nor the Supreme Cassation Prosecutor’s Office appear to have considered that this amendment, or the terms of Article 200 of the same Code, as worded ever since 2006 (see paragraph 60 above), prevented them from going into the merits of his legal challenges, which they consistently described as “appeals”. Nor does it appear they saw themselves as exercising discretionary powers of reopening rather than acting in their normal supervisory capacity vis-à-vis the lower prosecutor’s offices, just as they had already done back in 2015 (see paragraphs 38, 40, 53 and 55 above). The fact that under the terms of Article 46 § 3 of the Code, as amended also in August 2016, they could do so of their own initiative (see paragraph 61 above) does not alter that conclusion.

72 . It follows that in the present case the “final decision” within the meaning of Article 35 § 1 of the Convention was that of the Supreme Cassation Prosecutor’s Office of 20 July 2017 (see, mutatis mutandis , L.R. v. North Macedonia , no. 38067/15, §§ 66-67, 23 January 2020). The application was lodged with the Court on 22 December 2017, less than six months after that decision.

73. The Government’s objection must therefore be rejected.

74. The Government further argued that the application was manifestly ill-founded, as the findings of the domestic investigation had not confirmed the applicant’s allegations, which were “distorted and obviously untruthful”.

75. The applicant submitted that the facts of the case showed that neither his complaint about the alleged ill-treatment nor his complaint about the alleged failure to investigate it properly were manifestly ill-founded.

76. In the light of the all the materials in the case, the Court finds that the questions whether the investigation was effective and whether its findings can serve as a basis for assessing the well-foundedness of the applicant’s complaint that he was ill-treated by prison guards both require an examination of the merits. The application is hence not manifestly ill-founded, which means that the Government’s objection in that respect must be rejected (see, mutatis mutandis , S.M. v. Croatia [GC], no. 60561/14, § 239, 25 June 2020).

77. The application is not inadmissible on other grounds either. In particular, the decisions of the prosecuting authorities given after the rejection of the applicant’s previous application relating to the same incident (see footnote 1 above and paragraphs 37-55 above) constitute “relevant new information” for the purposes of Article 35 § 2 (b) of the Convention, which means that the present application is not “substantially the same” as that previous application (see Kemerov (No. 2) , cited above).

78. The application must therefore be declared admissible.

79. The general principles governing (a) the characteristics of an effective investigation into allegations of ill-treatment of people in custody, (b) the use of force with respect to such people, and (c) the Court’s approach to proof in such situations are settled. They have been set out in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), and, with reference specifically to the prison context, in, for instance, Dedovskiy and Others v. Russia (no. 7178/03, §§ 71-73, 87 and 89-90, ECHR 2008 (extracts)), Vladimir Romanov v. Russia (no . 41461/02, §§ 55-59, 63 and 81, 24 July 2008), Saçılık and Others v. Turkey , nos. 43044/05 and 45001/05, §§ 85-86 and 88-91, 5 July 2011) and Karabet and Others v. Ukraine (nos. 38906/07 and 52025/07, §§ 259-62, 297-99 and 302-03, 17 January 2013).

80. The first point which needs to be emphasised here is that (a) there is a potential for violence in prisons and disobedience by inmates may quickly degenerate into a riot, which means that (b) the use of force may be necessary on occasion to ensure prison security, but at the same time (c) such force may be used only if unavoidable, and must not be excessive, since recourse to force which has not been made strictly necessary by a detainee’s own conduct diminishes human dignity and amounts to “degrading treatment”, and is hence an infringement of the right set forth in Article 3 of the Convention.

81. The second point to be highlighted is that when the events lie wholly, or in large part, within the knowledge of the authorities, as in the case of people within their control in custody, it is for the authorities to (a) explain convincingly the origin of any injuries which cannot reasonably be attributed to causes other than ill-treatment by State agents, and (b) show that the use of force with respect to a detainee was unavoidable and not excessive.

82. The parties’ accounts of the incident on 17 October 2013 differed widely, the Government’s version being based on the materials obtained in the domestic investigation (see paragraphs 6 to 9 above). Before it can decide whether it can rely on those materials, and more generally on the findings of that investigation, when examining the merits of the complaint that the applicant was ill-treated, the Court must assess the thoroughness of the authorities’ efforts to ascertain the truth. It will thus deal with the complaint that this investigation was not effective first (see Karabet and Others , cited above, §§ 251-53).

(a) Effectiveness of the investigation

(i) The parties’ submissions

83 . The applicant submitted the investigation had not been thorough. He criticised the decision of the Sofia district prosecutor’s office to order a preliminary investigation rather than directly opt for criminal proceedings. He further took issue with the delay in the taking of the statements, and with the fact some of them had been taken with interpretation by other prisoners, with one of whom he was on bad terms. He also argued that the police officer in charge of the investigation had not been independent, since his duty station had been inside the prison, and that that officer had failed to check all possible sources of information about the incident. Another problem had been the absence of an independent and thorough medical examination. The higher prosecutor’s offices had in the end not corrected the investigation’s failings.

84 . The Government submitted that the applicant’s claims of ill ‑ treatment had not been arguable, and that the authorities had thus been under no duty to investigate them. In the alternative, the Government argued that the investigation had fully met the relevant requirements. The police officer in charge of it had not been dependent on the prison authorities, even though his duty station had been in the prison. He had, moreover, worked under the supervision of a public prosecutor, who had himself been fully independent. The investigation had also been prompt and thorough. The investigator had taken statements from all prisoners and guards involved in the incident, as well as from the prison medical doctor and the BHC staffer. The prisoners’ statements, translated into Bulgarian by prisoners with satisfactory linguistic skills, had been consistent, and had been confirmed by the subsequent statement of another prisoner. The investigator had also obtained all available written materials. It was true that he had not sought an opinion by a forensic specialist about the nature and possible origin of the applicant’s injuries, but the evidence of the prison medical doctor had been sufficient in that respect, in particular to exclude the hypothesis of truncheon blows. It also had to be borne in mind that the applicant’s bruises had been so minor that they had probably healed by the time when he had complained to the prosecuting authorities.

(ii) The Court’s assessment

85 . The allegation in the applicant’s and the BHC staffer’s complaints to the Sofia district prosecutor’s office that prison guards had subjected the applicant to treatment contrary to Article 3 of the Convention on 17 October 2013 (see paragraph 20 above) was arguable. It was made shortly after the events and was corroborated by the note by the prison medical doctor, which described three bruises on the applicant’s back, by the initial declarations of the applicant’s cellmates that guards had beaten all prisoners in the cell, and by the report of the Ombudsman after the visit of his staff to Sofia Prison (see paragraphs 11, 12 and 19 above). The authorities were thus under a duty to investigate the matter effectively.

86 . The Sofia district prosecutor’s office ordered a “preliminary investigation” by the police (see paragraphs 21 and 56 above). The Court has held, in relation to similar procedures in Romania, Russia and Ukraine, that, when it comes to credible allegations of deliberate treatment contrary to Article 3, opting for such procedures rather than directly opening a fully-fledged criminal investigation may often be problematic (see, for instance, Sergey Savenko v. Ukraine , no. 59731/09, § 28, 24 October 2013; Lyapin v. Russia , no. 46956/09, §§ 133-37, 24 July 2014; Poede v. Romania , no. 40549/11, § 60, 15 September 2015; Gheorghiţă and Alexe v. Romania , no. 32163/13, § 53, 31 May 2016; V.K. v. Russia , no. 68059/13, § 186, 7 March 2017; and Grigoryan and Sergeyeva v. Ukraine , no. 63409/11, § 61, 28 March 2017). The Court has also highlighted some of the limitations of that procedure in Bulgaria (see Sashov and Others , cited above, § 64, and Anzhelo Georgiev and Others v. Bulgaria , no. 51284/09, § 72, 30 September 2014). But it is ultimately not for the Court to say whether the authorities’ choice to first carry out a preliminary investigation rather than directly open criminal proceedings (see paragraph 56 above) was warranted in the circumstances (see, mutatis mutandis , Sashov and Others , cited above, § 64). It suffices to note that, in the event, that investigation suffered from several deficiencies.

87 . First, it was entrusted solely to a police officer whose duty station was in Sofia Prison (see paragraph 22 above). Although that officer was not employed by the same service as the prison guards alleged to have ill-treated the applicant (contrast Sapožkovs v. Latvia , no. 8550/03, §§ 71-73, 11 February 2014), his de facto proximity to them undermines the possibility of seeing him as sufficiently independent in practical terms (see, mutatis mutandis , Karabet and Others , cited above, §§ 278-80). It is true that the officer worked under the supervision of the Sofia district prosecutor’s office (see paragraphs 21, 31, 41 and 46 above). But that office does not appear to have actually scrutinised his work: on all four occasions when the officer reported back to it, it simply copied nearly word for word his reports, without itself analysing the material in the case (see paragraphs 28, 34, 43 and 49 above, and compare with Matko v. Slovenia , no. 43393/98, § 90, 2 November 2006; Butolen v. Slovenia , no. 41356/08, § 76, 26 April 2012; Mikiashvili v. Georgia , no. 18996/06, § 87, 9 October 2012, and Sapožkovs , cited above, § 76). That office was also apparently reluctant to ensure that the officer duly complied with the instructions by the higher prosecutor’s offices for additional investigative steps (see paragraphs 31-34, 41-43 and 46-49 above).

88 . Secondly, the investigation was limited to taking statements from those involved in the incident, with no apparent efforts to interview them in some detail (see, mutatis mutandis , Lyapin , § 134, and Boris Kostadinov , § 61, both cited above). Indeed, the identical content of the printed statements of nearly all guards who had taken part in the intervention team (see paragraph 25 above), raises doubts about whether these genuinely amounted to what they could say about the incident, especially since the investigation could potentially result in the opening of criminal proceedings against them (see Gablishvili and Others v. Georgia , no. 7088/11, § 68, 21 February 2019). For their part, the printed statements of the applicant’s cellmates, taken with the assistance of two prisoners used as informal interpreters (rather than professional ones), flatly contradicted their earlier handwritten statements (see paragraphs 12 and 22 above). In spite of the instructions of the Sofia City prosecutor’s office that this discrepancy be elucidated (see paragraph 30 above), reiterated by the Supreme Cassation Prosecutor’s Office (see paragraph 40 above), the additional investigations failed to do so. It is true that this was partly due to the fact that all but one of those prisoners had in the meantime been released (see paragraph 42 above). But no efforts appear to have been made to locate at least some of them outside prison, and the text of the additional statement from the one prisoner who remained in Sofia Prison was copied wholesale from his earlier statement (see paragraph 47 above), which throws up doubts about its genuineness. In any event, the lack of a proper explanation for the discrepancy was largely attributable to the way in which the investigating officer had gone about taking the statements in the first place.

89 . Last but not least, the medical examination undergone by the applicant after the incident was cursory, apparently taking no more than two or three minutes, and was carried out by a medical doctor who – by his own admission – was not suitably qualified to give an opinion about the origin of the applicant’s injuries (see paragraphs 11, 23 and 32 above). The superficial nature of such medical examinations in Sofia Prison and the failure of the examining medical doctor to give an opinion about the degree of consistency between the prisoners’ allegations of ill-treatment and their injuries was also noted by the CPT in the course of its visit there less than two years after the incident at issue in the present case (see paragraph 63 above). When, as here, detainees have been injured in a security operation in a prison, the authorities have a duty to arrange for them to undergo a prompt and comprehensive medical examination (see Dedovskiy and Others , § 90, and Karabet and Others , § 264, both cited above). The Court has also emphasised in this connection that since proper medical examinations are a key safeguard against ill-treatment in custody, the medical doctors who perform them must have both formal and de facto independence, and also be suitably trained (see, among other authorities, Vladimir Romanov , cited above, § 86).

90. In sum, the investigation was neither sufficiently independent nor capable of answering convincingly the main questions arising in the case: what sort and degree of force had prison guards used against the applicant, and whether that force had been made strictly necessary by his own conduct. It did not therefore discharge the respondent State’s duty under Article 3 of the Convention to investigate effectively the allegation that the applicant was ill-treated in prison (see, mutatis mutandis , Boris Kostadinov , cited above, §§ 62-63).

91 . It follows that there has been a breach of this Article under its procedural limb.

(b) Alleged ill-treatment on 17 October 2013

(i) The parties’ submissions

92. The applicant submitted that the bruises on his back showed that he had suffered some sort of physical abuse. According to him, those bruises were possibly consistent with truncheon blows. Contrary to the assertions of the authorities, neither he nor his cellmates had acted in a way warranting the use of force against them. It was important to remember that the events had taken place while he had been in custody. The burden was thus on the authorities to refute his allegations, which they had failed to do, chiefly owing to the defects in the investigation. His allegations were also indirectly confirmed by the findings of the CPT.

93. The Government submitted that the force used by the prison guards, which had not included truncheons, had been made necessary by the conduct of the applicant and his cellmates. There was no medical or other evidence to support the applicant’s allegations of numerous injuries or truncheon blows. The three small bruises on his back could well have resulted from the minimal amount of force used to get him out of the cell, and were inconsistent with the acts of violence alleged by him.

(ii) The Court’s assessment

94 . It is clear that some sort of incident requiring the intervention of prison guards in the applicant’s cell and the use of force towards prisoners took place in the morning of 17 October 2013. Two contemporaneous reports attest to that, albeit without giving detail (see paragraphs 13 and 14 above). This also emerges from the statements made by the applicant’s cellmates on the day of the incident (see paragraph 12 above), as well as from all statements, by the same and other prisoners, and by prison guards, obtained in the course of the ensuing investigation (see paragraphs 22, 24, 25, 33 and 47 above). The disciplinary punishments imposed on the applicant a few days later also tend to confirm that (see paragraph 15 and 16 above). They also show that the applicant was one of the prisoners who had played a role in the incident.

95 . For its part, the note by the prison medical doctor shows that a few hours after the incident the applicant had three bruises on his back and was feeling pain in his head and neck (see paragraph 11 above).

96 . Since the incident occurred in an establishment under the control of the authorities, the burden was on them to explain convincingly the origin of the applicant’s injuries, and to show that the use of force with respect to him had been indispensable and not excessive.

97 . The normal way for the authorities to discharge that burden was by investigating the incident effectively. But their investigation suffered from flaws (see paragraphs 87-89 above) which are serious enough to prevent the Court from using its results to make any firm findings about the way in which the incident unfolded, and on that basis assess the key points in the case – what amount and type of force was used with respect to the applicant, and whether that force had been made strictly necessary by his own conduct (see, mutatis mutandis , Saçılık and Others , cited above, § 107). It is true that not every breach of the investigative duty under Article 3 entails a finding that the State’s negative duty under that provision has also been breached, since in all such cases the Court must establish, based on all the material before it, whether the explanation given by the authorities at national level or by the Government in the proceedings before the Court is convincing and plausible (see Buntov v. Russia , no. 27026/10, § 152, 5 June 2012). But in this case the investigation’s findings appear unreliable, whereas the Government’s account was wholly based on the materials obtained in the course of that investigation (see paragraph 6 above, and, mutatis mutandis , Morgunov v. Russia , no . 32546/08, § 41, 11 April 2017; Sitnikov v. Russia , no. 14769/09, § 41, 2 May 2017; and Kondakov v. Russia , no. 31632/10, § 36, 2 May 2017). The Court concludes that the Government failed to submit sufficient information or evidence calling into question the applicant´s version of the events.

98. The CPT’s findings during its two subsequent visits to Sofia Prison – the first of which less than a year after the incident in issue in the present case – in which it recorded similar allegations of ill-treatment of foreign inmates (see paragraphs 62 and 63 above), although not directly on point, tend to lend further credibility to the applicant’s account.

99 . Reiterating that the use of any force with respect to a detainee which has not been made strictly necessary by his or her own conduct diminishes human dignity and amounts to “degrading treatment”, and is hence an infringement of the right set forth in Article 3 of the Convention, the Court finds that there has been a breach of that provision under its substantive limb.

100. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

101. The applicant sought 20,000 euros (EUR) in respect of the non ‑ pecuniary damage allegedly suffered as a result of the breaches of the substantive and procedural limbs of Article 3 of the Convention.

102. The Government submitted that the claim was exorbitant and that the applicant had not specified the degree of his suffering.

103. The Court finds that the applicant must have endured both physical and mental suffering as a result of the degrading treatment to which he was subjected by prison guards on 17 October 2013. To this should be added the mental suffering caused by the ensuing absence of an effective investigation. Ruling in equity, as required under Article 41 of the Convention, the Court awards the applicant EUR 5,200, plus any tax that may be chargeable.

104. The applicant sought reimbursement of EUR 2,500 for four hours of work by his representatives from the BHC on the domestic proceedings and twenty-one hours of work by them on the proceedings before the Court, both at the rate of EUR 100 per hour. He also claimed EUR 8.30 in respect of postage. In support of his claim, he submitted postal receipts, a timesheet and a contract for legal services between him and the BHC. He requested than any sum awarded under this head be made directly payable to the BHC.

105. The Government pointed out, in particular, that under the terms of the contract between the applicant and the BHC he owed no fees to the BHC, which meant that none of the costs claimed by him had been actually incurred.

106 . According to the Court’s settled case-law, costs and expenses may be awarded under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum. A representative’s fees have been actually incurred if the applicant has paid them or is liable to pay them, which is not the case if a representative has acted free of charge (see McCann and Others v. the United Kingdom , 27 September 1995, § 221, Series A no. 324; Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017; and B and C v. Switzerland , nos. 889/19 and 43987/16, § 79, 17 November 2020).

107 . In the present case, clause 4(1) of the contract between the applicant and the BHC says that he “does not owe remuneration to the BHC for the conduct of the proceedings”, and that he agrees that the BHC “may seek remuneration for the legal services performed, the representation and the expenses relating to the case from the Court which, in the event of a favourable outcome, will order the Bulgarian Government to bear them pro rata”. It is thus plain that the applicant is not liable to pay anything to the BHC in relation to the case, and that none of the costs and expenses claimed on his behalf were actually incurred by him.

108 . Representatives cannot seek just satisfaction on their own account, since they are not an “injured party” within the meaning of Article 41 (former Article 50) (see Luedicke, Belkacem and Koç v. Germany (Article 50), 10 March 1980, § 15, Series A no. 36; Airey v. Ireland (Article 50), 6 February 1981, § 13, Series A no. 41; and Campbell and Cosans v. the United Kingdom (Article 50), 22 March 1983, § 14 (a), Series A no. 60).

109. The claim must therefore be rejected in full.

110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, in respect of non ‑ pecuniary damage, within three months, EUR 5,200 (five thousand two hundred euros), plus any tax that may be chargeable, to be converted into Bulgarian levs at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Iulia Antoanella Motoc Deputy Registrar President

[1] In an application lodged with the Court on 23 January 2015 (no. 6422/15), the applicant made, inter alia , the same complaints as in the present case. On 26 March 2015 the competent single judge rejected them under Article 35 §§ 1 and 4 of Convention, finding that since he had not (yet) challenged the decision of the Sofia City prosecutor’s office before the higher prosecutor’s offices, the applicant had not exhausted domestic remedies. The applicant was informed of that decision by a letter dated 2 April 2015.