Information Note on the Court’s case-law 209

July 2017

Atanasov and Apostolov v. Bulgaria (dec.) - 65540/16 and 22368/17

Decision 27.6.2017 [Section V]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Complaints relating to conditions of detention following introduction of new domestic remedies in response to Neshkov and Others pilot judgment: inadmissible

Facts – In its pilot jud gment in Neshkov and Others v. Bulgaria (36925/10 et al., 27 January 2015, Information Note 181 ), the Court required Bulgaria to put in place a combination of effective preventive and compensatory r emedies in respect of the poor conditions of detention in Bulgarian correctional facilities.

In January 2017 new legislation (Act of 25 January 2017 amending the Execution of Punishments and Pre-Trial Detention Act 2009) was introduced in response to the pilot judgment. The new legislation amended the definition of inhuman and degrading treatment in relation to conditions of detention; laid down a requirement that each inmate have at least 4 square metres of living space; introduced more flexibility in the allocation and re-allocation of convicted prisoners to correctional facilities and in the imposition and modification of prison regimes; widened the scope for early conditional release; and introduced dedicated preventive and compensatory remedies in resp ect of poor conditions of detention.

At the same time, the Bulgarian authorities carried out a programme of works in correctional facilities, refurbishing many of them and putting into operation two new closed-type prison hostels with a total capacity of 5 40 inmates. As a result of that programme and of the drop in the number of prisoners in the country the overcrowding in some parts of the correctional system noticeably receded.

Both applicants were convicted prisoners who complained under Article 3 of the Convention of their conditions of detention.

Law – Article 35 § 1: The Court had to examine whether the new remedies created as a result of the amendment of the 2009 Act were effective and complied with the precepts set out in Neshkov and Others , and whether the applicants were required to have recourse to those remedies in order to comply with Article 35 § 1 of the Convention. Since the remedy had been put in place in response to a pilot judgment, it could be taken into account even though it wa s not yet in force when the applications were lodged.

(a) Preventive remedy – The preventive remedy (new sections 276 to 283 of the 2009 Act) afforded inmates the possibility to enjoin the prison authorities to refrain from, end or prevent torture or crue l, inhuman or degrading treatment, including through the various ways in which conditions of detention could fall short of the requirements of Article 3 of the Convention. Applications were heard before an administrative court in adversarial judicial proce edings in the inmate’s presence. The procedure was intended to be simple and speedy and did not place an undue evidential burden on the inmate as the court was required to establish the facts of its own motion by resorting to all possible sources of inform ation. If well-founded, an application had to result in an injunction requiring the prison authorities to take, within a certain time, specific steps to prevent or end the breach. Lastly, in view of the improvement of the overcrowding situation in Bulgaria n correctional and pre-trial detention facilities and the likelihood that that situation would remain manageable, such injunctions did not at this juncture appear hard or impossible to comply with in cases of overcrowding.

(b) Compensatory remedy – The co mpensatory remedy (new sections 284 to 286 of the 2009 Act) enabled inmates or former inmates to seek damages before an administrative court in respect of their conditions of detention. As with the preventive remedy, claims were heard before an administrat ive court, the remedy was simple to use and did not place an undue evidentiary burden on the inmate. There was nothing to suggest that claims would not be heard within a reasonable time. The criteria for examining inmates’ claims appeared to be fully in li ne with the principles flowing from the Court’s case-law under Article 3 of the Convention, including that conditions of detention and their effect on the inmate must be assessed as a whole – and be regarded as a continuing situation rather than a string o f unrelated actions and omissions – and that poor conditions of detention must be presumed to cause non-pecuniary damage. As regards quantum, the new remedy did not lay down a scale for the sums to be awarded in respect of non-pecuniary damage and would th us have to be determined under the general rule under Bulgarian tort law – in equity. It could not be assumed that the Bulgarian courts would not give proper effect to the new statutory provisions or fail to develop a coherent body of case-law in their app lication. They should, however, be careful to apply them in conformity with the Convention and the Court’s case-law.

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In conclusion, the two new remedies, which were meant to operate in parallel, could be regarded as effective with respect to inhuman or degrading conditions of detention in correctional and pre-trial detention facilities in Bulgaria and the applicants were therefore required to exhaust them.

Conclusion : inadmissible (failure to exhaust domestic remedies).

© Council of Europe/European Cou rt of Human Rights This summary by the Registry does not bind the Court.

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