FOURTH SECTION

CASE OF RADKOV AND SABEV v. BULGARIA

( Applications nos. 18938/07 and 36069/09 )

JUDGMENT

STRASBOURG

27 May 2014

DÉFINITIF

27/08/2014

Cet arrêt est devenu définitif en vertu de l’article 44 § 2 de la Convention. Il peut subir des retouches de forme.

In the case of Radkov and Sabev v. Bulgaria ,

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

Ineta Ziemele , President , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges , and Françoise Elens-Passos , Section Registrar ,

Having deliberated in private on 6 May 2014 ,

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

PROCEDURE

1 . The case originated in two applications (nos. 18938/07 and 36069/09 ) 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 two Bulgarian nationals, Mr Plamen Todorov Radkov and Mr Miroslav Sabev Sabev (“the applicants”), on 13 February and 11 June 2007 respectively .

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

3 . The applicants alleged that their handcuffing during a court hearing on 26 January 2007 had breached their right not to be subjected to inhuman and degrading treatment .

4 . On 21 January 2013 the applications were communicated to the Gove rnment.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicants were born in 1972 and 1966 respectively. At the time of the events in question they were detained in Lovech Prison, serving sentences of life imprisonment , after being convicted of numerous crimes, including murder , rape and armed robberies .

6 . On an unspecified date in 2006 the two applicants brought proceedings against the Ministry of Justice under the State and Municipalities Responsibility for Damage Act , seeking damages for the allegedly poor conditions of detention in Lovech Prison. The case was examined by the Sofia City Court, which accepted a request by the applicants to have two of their fellow inmates questioned as witnesses regarding the livi ng conditions in the prison.

7 . A special court hearing for that purpose took place on 26 January 2007 in a hearing room in Lovech Prison .

8 . The applicants were brought to the hearing with their arms handcuffed behind their backs and their ankles shackled . Once the hearing began, Mr Radkov requested that his handcuffs be removed because he was uncomfortable. The judge presiding over the hearing refused , without giving any specific reasons . Mr Sabev then asked that it be noted in the record of the hearing that his handcuffs had not been removed either . The applicants ’ arms remained hand cuffed behind their backs until the end of the hearing.

9 . T he two witnesses heard by the court – who were from the same group of life prisoners – had their handcuffs removed.

10 . A prosecutor w as also present at the hearing.

11 . The hearing continued for about an hour.

II. RELEVANT DOMESTIC LAW

12 . At the time of the events at issue , the prisoners ’ regime s were governed by the 1969 Execution of Punishments Act and the regulations for its implementation. The regime of life pri soners was governed by sections 127a-127e of the 1969 Act, which were added in 1995. Section 127b(1) provided that when imposing a life sentence , the sentencing court had to order the prisoner ’ s detention under the strictest of regime s , which entailed heightened security and supervision (regulation 56(1) of the implementing regulations).

13 . Sections 84b-84e of the 1969 Act regulated the use of force, including handcuffs, by the prison administration. It was , in particular , provided that force could be used where and in s o far as necessary.

14 . Article 106 of the Code of Civil Procedure as in force at the relevant time, provided, inter alia , that during court hearings the presiding judge was responsible for maintaining order in the hearing room.

15 . The State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”) provides in section 1 (1) that the State and the municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions on the part of their own authorities or officials while discharging their administrative duties . Section 2 of the same Act governs the State ’ s liability for damage caused to private individuals as a result of exhaustively specified types of decisions and actions by the courts, the prosecution or the investigative authorities ; these do not include security arrangements in the courtrooms.

THE LAW

I. JOINDER OF THE APPLICATIONS

16 . Given that the two applications at hand concern identical facts and complaints , the Court decides that the y should be joined pursuant to Rule 42 § 1 of the Rules of Court.

I I. ALLEGED VIOLATION S OF ARTICLE S 3 AND 13 OF THE CONVENTION

17 . The applicant s complained that their handcuffing during the court hearing of 26 January 2007 had amounted to inhuman and degrading treatment and that they had had no effective means at their disposal to remedy the situation. Both of them relied on Article 3, Article 6 § 1 and Article 13 of the Convention . Mr Sabev relied addition ally on Article 14.

18 . The Court is of the view that the above complaints are most appropriately examined solely under Articles 3 and 13 of the Convention, which read :

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Arguments of the parties

1. The Government

19 . The Government urged the Court to dismiss the applications for non ‑ exhaustion of do mestic remedies, arguing that an action for damages under section 1(1) of the SMRDA (see paragraph 15 above) could have adequately remedied the applicants ’ grievances . In support of that argument the Government submitted a judgment of the Supreme Administrative Court of 11 July 2012 ( Решение â„– 10168, ВАС Трето отделение, 11 / 07 / 2012 ), which had upheld a lower court ’ s judgment in so far as it awarded damages to a life prisoner detained in Bobov Dol Prison who had been handcuffed and had his ankles shackled during a visit from his mother. The domestic courts had found that the defendant, the Chief Directorate for the Execution of Punishments, was liable under section 1(1) of the SMRDA 1988 for the actions of its officials, and that in the case in point the wearing of handcuffs and shackles by the claimant had been a violation of the law, which did not authori s e their use in such circumstances.

20 . On the merits of the case, the Government pointed out that the applicants were particularly dangerous, even measured against the group of other life prisoners , and that this necessitated intensified security measures . The Government submitted two reports on Mr Sabev drawn up by the administration of Lovech Prison , dated July 2007 and June 2013 respectively , an d a report on Mr Radkov dating from July 2013 prepared by the administration of Belene Prison , to which this applicant had been transferred in 2011. The s e documents described the two applicants as aggressive , mistrustful and manipulative and assessed the risk of their attempting to abscond as high.

21 . Regarding the particular circumstances at issue , the Government argued that the wearing of handcuffs by the applicants during the court hearing of 26 January 2007 did not amount to ill-treatment in contra vention of Article 3 of the Convention. They pointed out that the presiding judge ’ s refusal to order the removal of the applicants ’ handcuffs was reasonable and justified, as there was a genuine risk that the applicants would try to abscond or resort to force or disrupt the hearing. The Government pointed out addition ally that the hearing in question had not lasted long, that the applicants had n ot been publicly visible in handcuff s as the hearing had t aken place in prison, and that the treatment complained of had n either been particularly grave nor resulted in any damage to the applicants ’ health. Moreover , Mr Sabev had not even expressly asked the presiding judge to order the removal of his handcuffs.

22 . Lastly, the Government submitted a memo randum prepared by the administration of Lovech Prison, explaining that court hearings on the prison premises were very rare and that , when such occasions ar o se, life prisoners w ould be escorted to and from the hearing room in handcuff s . During the hearing the handcuffs were to be removed only by order of a judge.

2. The applicants

23 . The applicants disputed the Government ’ s arguments. As regards the objection o f non-exhaustion of domestic reme dies based on the fact that they had not brought an action under section 1(1) of the SMRDA , the applicants pointed out that this provision applied to acts and omissions by administrative bodies and not by the courts, whereas their complaints concerned an action by the court, namely the presiding judge ’ s refusal to allow their handcuffs to be removed during a hearing. The applicants argued that the document described in paragraph 22 above – explaining that during court hearings in Lov ech Prison it was for the judge to decide whether or not to keep the participating prisoners handcuffed – proved their point. They pointed out, in addition, that section 2 of the SMRDA, which governed the State ’ s liability for actions of the courts, was likewise inapplicable, since it applied to the circumstances listed exhaustively therein but not to circumstances such as theirs.

24 . T he applicants disputed the Government ’ s contention that their handcuffing had been necessary and justified. They argued that the judge ’ s refusal to have their handcuffs removed during the court hearing was arbitrary, as she had not given any reasons for that decision. Moreover, they argued that the reports submitted by the Government – which had been prepared by the prison administration and describ ed them as particularly dangerous – were irrelevant because they had not served as a basis f or the disputed decision ; what was more , all these documents had been prepared at subsequent date s .

25 . The applicants also argued that their handcuffing during the court hearing had been unnecessary, given that the hearing had taken place in the prison and in the presence of prison warde r s . They pointed out that the prison inmates who were to be examined as witnesses – and who were also “ lifers ” – had had the ir handcuffs removed. Thus, the applicants concluded that the measure complained of had been deliberate ly intended to cause them pain and humiliate them.

B. The Court ’ s assessment

1. Admissibility

26 . The Court takes note of the Government ’ s argument that the applicants failed to exhaust the available domestic remedies since they did not bring a tort action under section 1(1) of th e SMRDA .

27 . The Court reiterates that, in accordance with Article 35 § 1 of the Convention, i t may deal with an issue only after all the domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

28 . As regards the present case, t he Court finds that the question of exhaustion of domestic remedies partly relates to the merits of the applicants ’ complaint s under Article 13 of the Convention. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits .

29 . T he Court notes in addition that the present applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention , or inadmissible on any other grounds. They must therefore be declared admissible.

2 . Merits

(a) Article 3

30 . The Court has stated on previous occasions that handcuffing does not normally give rise to an issue under Article 3 of the Convention in cases where the measure has been imposed in connection with lawful arrest or detention and does not entail use of force or any public exposure in exce ss of what can be reasonably considered necessary and proportionate in the circumstances. In this regard, it is importan t whether there is reason to believe that the person concerned would resist arrest or abscond, or cause injury or damage, or suppress evidence (see Raninen v. Finland , 16 December 1997, § 56, Reports of Judgments and Decisions 1997 ‑ VIII; Hénaf v. France , no . 65436/01, § 56, ECHR 2003 ‑ XI; Kashavelov v. Bulgaria , no. 891/05, § 38, 20 January 2011 ; and Kummer v. the Czech Republic , no. 32133/1 1, § 63 , 25 July 2013 ). In any case, the Court attaches particular importance to the circumstances of each case and examines whether the use of restraints was necessary (see Gorodnichev v. Russia , no. 52058/99, § 102, 24 May 2007 , and Stoleriu v. Romania , no. 5002/05, § 74, 16 July 2013 ).

31 . Moreover, in order to fall within the scope of Article 3, the handcuffing, like any other form of treatment, must attain a minimum level of severity. The assessment in that regard will depend on the circumstances of the case in their entirety ( see Gorodnichev , cited above, § 100). I n considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as regards the consequences, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen , cited above, § 55 , and Peers v . Greece , no. 28524/95, § 68 , ECHR 2001 ‑ III ). Being publicly visible may also be a relevant factor in assessing whether a form of treatment is “degrading” within the meaning of Article 3, but the Court does not consider that the absence of this public aspect will necessarily prevent a particular form of treatment from falling into that category ; the a pplication of measures of restraint to an applicant in a non-public setting may still give rise to a violation of Article 3 in a situation where no serious risks to security could be shown to exist (see Ashot Harutyunyan v . Armenia , no. 34334/04 , § 125, 15 June 2010 ).

32 . T urning to the circumstances of the case before it, the Court notes that the applicants complain ed of having had their arms handcuffed behind their backs during a court hearing held on 26 January 2007 on the premises of Lovech Prison. T he Court observes – as also pointed out by the Government (see paragraph 21 above) – that th is treatment did not continue for a very long time , as the hearing lasted for about an hour (see paragraph 11 above) ; the treatment was not particularly severe and did not result in damage to the applicants ’ health. Moreover, the applicants were not publicly visible in handcuff s, since the hearing took place in prison and there w ere apparently no members of the public present .

33 . However, the Court must also examine whether the measure complained of could be considered justified in the circumstances (see paragraph 31 above) . The Government defended it by pointing out that the applicants were particularly dangerous and that there was a risk of their attempting to abscond, resort ing to force or otherwise disrupt ing the hearing. In support of this argument they submit ted three reports on th e applicants (see paragraph 20 above). While not wishing to undervalue the conclusions drawn in these reports, and being aware of the caution the authorities need to exercise when dealing with individuals – such as the applicants – who have been convicted of violent offences and are a pparently aggressive even in prison (see Kashavelov , cited above, § 39), the Court is not convinced by the Government ’ s arguments. It notes that the hearing at issue took place in an already secure environment and that t he Government have not disputed the applicants ’ statement (see paragraph 25 above) that there were also prison warde r s present. T hese and any other possible security measures were apparently sufficient to permit the removal of the handcuffs of th os e inmates who were to be examined as witnesses and who were also life prisoners. The se measures must therefore also have significantly reduced any risk posed by the applicants. Moreover, the applicants ’ feet remained shack l ed the entire time . The Government have not shown why in these circumstances any risk posed by the applicants a lso required that they should have their arms handcuffed behind their backs , and remain in this strenuous position throughout the hearing. Nor did the judge presiding over the hearing give any particular reasons in that regard (see paragraph 8 above). Lastly, the Court notes that the hearing at issue was part of proceedings in which the applicants sought to defend their right not to be detained in inhuman and degrading conditions (see paragraph 6 above ).

34 . While it cannot conclude that the treatment complained of was, as argued by the applicants (see paragraph 25 above), deliberately intended to humiliate or debase them, the Court , given the above considerations, is equally not satisfied that it was justified by the possible risk of their attempting to abscond, resort to force or disrupt the hearing (see Gorodnichev , cited above, § 108). Accordingly, the treatment was “degrading” within the meaning of Article 3 of the Convention (see, mutatis mutandis , Petyo Petkov v. Bulgaria , no. 32130/03 , § 47 , 7 January 2010 ) .

35 . It follows that there was a violation of this provision.

(b) Article 13

36 . The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of t he obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06 , § § 217-18 , ECHR 2012 ).

37 . Given its above findings that the applicant ’ s complaint s under Article 3 of the Convention are admissible and that there has been a violation of that provision , the Court is of the view that the app licants had an “arguable claim” , and that an effective domestic remedy under Article 13 was th erefore requir ed .

38 . As to remedies to prevent or halt the violation, the Court notes that at the court hearing of 26 January 2007 the applicants were allowed to – and did – express their dis satisfaction at having to wear handcuffs. However, this did not result in the handcuffs being removed, the presiding judge refus ing to issue such an order , and failing to give any reason s (see paragraph 8 above ; see also, mutatis mutandis , Petyo Petkov , cited above, § 64 ).

39 . As to compensatory remedies, the Court recalls that the Government argued that the applicants could have brought an action for damages under section 1(1) of the SMRDA (see paragraph 19 above) . This is a remedy which applies exclusively to actions and omissions by administrative bodies; however, the applicants did not complain of such actions or omissions, because their complaint did not relate to handcuffing or any other restrictions imposed on them by the administration of Lovech Prison before or after the court hearing of 26 January 2007, but specifically to the situation during the hearing. I t has not been disputed by the parties that the responsibility for maintaining order during the hearing – including whether or not to order the removal of the applicants ’ handcuffs – lay with the judge who was presiding over it. This was provided for in domestic law (see paragraph 14 above) and was restated by the prison administration in their memorandum explaining the organisation of court hearings on prison premises which was submitted by the Government (paragraph 22 above).

40 . Thus, the Court does not find it proven that a tort action under section 1(1) of the SMRDA constitute d an effective remedy in the case (see, mutatis mutandis , Shesti Mai Engineering OOD and Others v. Bulgaria , no. 17854/04 , § 73 , 20 September 2011 ) . Accordingly, it dismisses the Government ’ s objection of non-exhaustion of domestic remedies , which it joined to the merits of the complaint under Article 13 (see paragraph 28 above) .

41 . Nor could an action brought under section 2 of th e SMRDA have resulted in the award of compensation to the applicants . This provision does not refer to security arrangements in courtrooms (see paragraph 15 above) and in a number of earlier judgments the Court has held that it is not applicable to circumstances which are not expressly listed therein (see, for example, Gutsanovi v. Bulgaria , no. 34529/10 , § 95 , ECHR 2013 (extracts); Barborski v. Bulgaria , no. 12811/07 , § 33 , 26 March 2013 ; Makedonski v. Bulgaria , no. 36036/04 , § 28 , 20 January 2011 ; and Bochev v. Bulgaria , no. 73481/01, § 77 , 13 November 2008 ) .

42 . The Government have not referred to any other remedies, compensatory or not , that would be applicable in th is case.

43 . The foregoing is sufficient to enable the Court to conclude that the applicants did not have at their disposal an effective domestic remedy for their complaint under Article 3 of the Convention .

44 . There has accordingly been a violation of Article 13 .

I II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

45 . 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.”

A. Damage

46 . Each of the applicant s claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

47 . The Government considered these claims exaggerated. Th ey urged the Court to conclude that the finding of a violation constituted sufficient just satisfaction in itself .

48 . The Court is of the view that the applicants must have sustained non ‑ pecuniary damage as a result of the breach es of their right s. As to quantum, judging on an equitable basis, it awards each of them EUR 1,000.

B . Default interest

49 . 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 ,

1. Decides to join the applications;

2. Decides , by six votes to one, to join to the merits the question of the exhaustion of domestic remedies ;

3 . Declares , by six votes to o ne , the applications admissible;

4 . Holds , by six votes to o ne , that there has been a violation of Article 3 of the Convention;

5 . Holds , by six votes to o ne , that there has been a violation of Article 13 of the Convention and accordingly dismisses the Government ’ s preliminary objection based on non-exhaustion of domestic remedies ;

6 . Holds , by six votes to o ne ,

(a) that the respondent State is to pay each of the applicant s , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in non-pecuniary damage , 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points ;

7 . Dismisses , unanimously, the remainder of the applicant s ’ claim s for just satisfaction.

Done in English, and notified in writing on 27 May 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Françoise Elens-Passos Ineta Ziemele Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge F. Vehabović is annexed to this judgment.

I.Z. F.E.P.

DISSENTING OPINION OF JUDGE VEHABOVIĆ

As regards exhaustion of domestic remedies and Article 13 of the Convention

I am unable to share the view of the majority of the Chamber on this issue for the following reasons.

It is a principle of international law that protection of human rights should be carried out by national governments. National remedies are viewed as more effective than international ones because they are easier to access, proceed more quickly and require fewer resources than a claim before an international body. Access to international enforcement mechanisms is seen as a last resort, after the State has failed to remedy the violation or to deliver justice.

Exhaustion of domestic remedies requires the use of all available procedures to seek protection against future human rights violations and to obtain justice for past abuses. A complaint to an international body should include proof that domestic remedies have been exhausted or an attempt has been made to exhaust domestic remedies, including information about any legal proceedings that took place in the country.

“[To meet the exhaustion requirement] 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 Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996-IV).

“The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights ... Accordingly, it has recognised that [the rule] must be applied with some degree of flexibility and without excessive formalism ... [T]he rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant ... ” (see Aksoy v. Turkey , 18 December 1996, § 53, Reports of Judgments and Decisions 1996-IV).

In the light of the facts of the present case, the applicants, serving sentences of life imprisonment after being convicted of numerous crimes including murder, rape and armed robberies, initiated proceeding against the Ministry of Justice under the State and Municipalities Responsibility for Damage Act (SMRDA), seeking damages for the allegedly poor conditions of detention in Lovech Prison. Their application was accepted and a special court hearing took place on 26 January 2007 in a hearing room in Lovech Prison. However, during the hearing, which took about one hour, the applicants ’ arms were handcuffed behind their backs and their ankles were shackled, although one of them requested the presiding judge to remove the handcuffs. This decision of the presiding judge was included in the transcri pt of the hearing.

There is an artificial dilemma in this case regarding the legal nature of the decision of the presiding judge to proceed with the hearing in these circumstances.

The first part of the dilemma relates to the general rule that courts, besides adopting a judgment on the merits of the complaints, also decide, by means of rulings or conclusions, on requests relating to the proper conduct of the hearing itself. Depending on the legal nature of these decisions some of them might be considered as “sanctions” within the meaning of the Convention. Nevertheless, in the present case, after the initial decision of the presiding judge, the applicants did not even try to lodge an appeal in order to contest this decision or to ask for redress for the fact that the hearing had taken place while they were in handcuffs .

The second part of the dilemma concerns the applicability of the SMRDA, and in particular section 1(1) thereof, as a basic legal act which allegedly covers this type of situation. Under this Act the State and the municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions on the part of their own authorities or officials in the performance of their administrative duties.

Regardless of which domestic law or act applies to the current circumstances, there is a clear constitutional obligation on the courts in Bulgaria to deal with issues suc h as these types of complaints.

The Constitution of the Republic of Bulgaria provides:

Chapter I

Article 5

“(1) The Constitution shall be the supreme law, and no other law shall contravene it.

(2) The provisions of the Constitution shall apply directly.

...

(4) International treaties which have been ratified in accordance with the constitutional procedure and which have been promulgated and have come into force with respect to the Republic of Bulgaria shall be part of the legislation of the State. They shall have primacy over any conflicting provision of domestic legislation.”

Chapter II

Fundamental rights and duties of citizens

Article 29

“(1) No one shall be subjected to torture or cruel, inhuman or degrading treatment, or to forcible assimilation.”

Chapter VI

The judiciary

Article 117

“(1) The judiciary shall protect the rights and legitimate interests of all citizens, legal entities and the State.”

Consequently, the applicants could have contested the impugned measure before the domestic courts in order to prove either that domestic proceedings in these types of cases were ineffective or that no effective remedy at all existed besides the legal obligation arising from the Constitution. In contrast to the applicants ’ allegations, the Government submitted a judgment of the Supreme Administrative Court of 11 July 2012 according to which an action for damages could have adequately remedied the applicants ’ grievances. Unfortunately, however, the Chamber concluded that this judgment, according to the law applied (the SMRDA), related only to administrative acts and not to decisions of the presiding judge, which were of a legal rather than an administrative nature as required by the SMRDA. Even assuming this to be so, the Government ’ s argument, in the absence of any proof of the ineffectiveness of that law (or of other legal remedies, including those relating to the proper conduct of hearings) in the current circumstances, or of any attempt on the applicants ’ part to use some other legal avenue as guaranteed by the Constitution, cannot simply be rejected since this example clearly relates to a dispute over administrative decision such as those covered by the SMRDA.

For these reasons I disagree with the decision of the majority of the Chamber to join consideration of the question of exhaustion of domestic remedies to the merits of the complaints under Article 13 of the Convention.

As regards Article 3 of the Convention

In paragraph 30 of the judgment it is rightly pointed out that the Court has consistently held that handcuffing does not normally give rise to an issue under Article 3 of the Convention in cases where the measure has been imposed in connection with lawful arrest or detention and does not entail the use of force or any public exposure in excess of what can be reasonably considered necessary and proportionate in the circumstances (see Raninen v. Finland , 16 December 1997, § 56, Reports 1997-VIII; Kashavelov v. Bulgaria , no. 891/05, § 38, 20 January 2011; and Kummer v. the Czech Republic , no. 32133/11, § 63, 25 July 201 3).

The applicants were detained in Lovech Prison, serving sentences of life imprisonment after being convicted of numerous crimes including murder, rape and armed robberies. As noted in paragraphs 12-15 of the judgment, at the time of the events at issue prisoners ’ regimes were governed by the 1969 Execution of Punishments Act and the regulations for its implementation. The rules governing the regimes of life prisoners stated that, when imposing a life sentence, the sentencing court had to order the prisoner ’ s detention under the strictest regime, which entailed heightened security and supervision of the implementing regulations.

Moreover, the reports from two prison authorities concluded, after assessing the applicants ’ personalities, that the applicants were particularly dangerous, even when measured against the group of other life prisoners. The evaluation included in the reports by the administration of Lovech Prison of July 2007 and June 2013, and the report by the administration of Belene Prison, described the two applicants as aggressive, mistrustful and manipulative and assessed the risk of their a ttempting to abscond as high.

I believe that it is up to the domestic authorities to evaluate the actual risk that might exist and to apply the measures that they deem appropriate provided that these are not contrary to the requirements of the Convention, and in particular Article 3. The Court has in many cases agreed with this general approach. If other circumstances are taken into account (see paragraph 32 of the judgment), such as the fact “that this treatment did not continue for a very long time, as the hearing lasted for about an hour ... the treatment was not particularly severe and did not result in damage to the applicants ’ health”, then it seems that the level of severity and intensity of the impugned measure can hardly be said to reach the threshold of Article 3. Moreover, the applicants were not publicly visible in handcuffs and there were apparently no members of the public present.

In addition, given the penalty, the criminal profile of the applicants and their history of violence, I consider that the extent of the interference, which was limited to a hearing that lasted only for one hour, without exposure to the public, was proportionate to the needs of security. It is clear that the measure applied related to detention and was closely connected to the personalities of the persons concerned. The same approach was taken in the case of Paradysz v. France (no. 17020/05 , § 95, 29 October 2009), in which the Court concluded that the use of handcuffs and shackles during transport from prison to hospital was a process related to the detention and the personality of the person concerned and did not reach the minimum level of severity required in order to fall within the ambit of Article 3 of the Convention. A hearing that takes place on prison premises, taking into account the personalities of the persons concerned, can hardly be said to reach the minimum level of severity required by Article 3 even if the persons concerned were handcuffed and shackled during a relatively short hearing. Even in the case of Kashavelov , cited above, which is referred to in paragraph 33 of the judgment, the Court found (§ 33) that “[i]t is aware that those [prison] authorities need to exercise caution when dealing with individuals who have been convicted of violent offences, refuse to accept the fact of their imprisonment, and are consequently hostile towards prison staff and other inmates. However, it observes that the systematic use of handcuffs in respect of the applicant started about thirteen years ago, in December 1997, and apparently continues to this day.” The other case referred to in the present judgment, namely Gorodnichev v. Russia (no. 52058/99, § 108, 24 May 2007), relates to the use of handcuffs during a public hearing at which the applicant was subjected to public exposure wearing handcuffs. I believe that the national authorities enjoy a wide margin of appreciation in these cases to assess each individual and the possible risks he or she poses to public order, and to take the necessary measures in accordance with the requirements of Article 3. I see no cause to depart from these cases. The Court found a violation of Article 3 in the cases referred to because of treatment imposed on the individuals concerned that went far beyond the minimum severity and intensity required under Article 3. It appears that these cases do not support the conclusion reached in the present judgment in respect of the severity of the measures applied and their impact on individuals ’ dignity in the given circumstances.

I naturally accept that the Court must remain free to alter its current approach but for the time being I maintain my position in support of the approach adopted hitherto in the application of Article 3 in similar cases. Furthermore, I see no extraordinary circumstances in this case that would justify departing from the established approach in the application of Article 3.

Consequently, I also disagree with point 6 of the operative part of the judgment as regards the obligation for the Bulgarian Government to pay compensation to the applicants in respect of non-pecuniary damage.