Communicated on 10 June 2015

FOURTH SECTION

Application no. 59779/14 Jock PALFREEMAN against Bulgaria lodged on 13 August 2014

STATEMENT OF FACTS

The applicant, Mr Jock Palfreeman , is an Australian national, who was born in 1986 and is detained in Sofia Prison.

A. The circumstances of the case

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

1. Background

The applicant is serving a 20-year prison sentence for murder in connection with which he has been detained in Sofia Prison since 2007. He is accommodated in the group for sentenced foreigners.

All close family members and friends of the applicant live in Australia. In order to make the journey between Australia and Bulgaria to see him during a 40-minute slot allowed for visits, they have to incur substantial expenses and make arrangements to be absent from Australia for approximately a week each time they visit him. Because of the associated constraints, the applicant ’ s parents have only managed to see him once every six months since his sentence, something which was becoming increasingly difficult for them with time. As to his grandparents, given that they were in their late eighties and frail, the journey to Bulgaria has become almost impossible. A number of cousins and other close relatives, among whom an uncle and four aunts to whom the applicant is very close, are unable to make the journey and visit him in Bulgaria. He submits that the inability to maintain regular contact with his extended family members affects negatively his well-being and prospects for rehabilitation.

2. Refusal to transfer the applicant to Australia to serve the remainder of his sentence

On 12 April 2012, upon the initiative of the applicant, the Australian Government approached the Bulgarian authorities in connection with the applicant ’ s transfer to Australia with a view to him continuing to serve his sentence there. On 25 June 2012 the Bulgarian Prosecutor General replied in writing that the question of the applicant ’ s transfer could only be considered once he had paid the outstanding damages to the victims.

On 14 May 2013 a delegate of the Australian Attorney General wrote to the Bulgarian Prosecutor General, formally seeking the Bulgarian Government ’ s agreement to the applicant ’ s transfer under the Council of Europe Convention on the Transfer of Sentenced Prisoners of 1983 (the “Transfer Convention”). The Australian authorities pointed out that the applicant met the eligibility conditions for international prisoners transfer and proposed a number of terms in that respect. These included the condition that his transfer would not take place until his financial liabilities in Bulgaria had been paid. The request also listed the following terms: in Australia, the applicant would continue to serve his full prison sentence and would become eligible for early release once he had served half of it, this being an option also under Bulgarian law; all reductions of the applicant ’ s sentence confirmed by the Bulgarian authorities would be reflected accordingly in the remaining sentence; if he benefitted from conditional early release in Australia, the applicant would be subject to parole conditions.

On 10 June 2013 a prosecutor heading the International Cooperation Department of the Bulgarian Prosecution General Service advised in writing the Deputy Prosecutor General on the request for transfer and the applicable rules; the conclusion in the paper was that there was no obstacle to the applicant ’ s transfer. In particular, the Australian authorities ’ proposal for transfer met all conditions under Article 3 of the Convention for International Transfer of Prisoners. While the payment of outstanding liabilities in Bulgaria was not a condition under the Transfer Convention, the Australian authorities had proposed that as a prerequisite for the applicant ’ s transfer. Given that the Transfer Convention required that an agreement between the requesting and the sentencing country be reached, there was no obstacle to the inclusion in such an agreement of a condition for prior payment of outstanding dues. That condition served equally well the interests of the Bulgarian State, as well as of the victims and the convicted individual.

In a letter of 8 July 2013, sent via the Bulgarian Ministry of Justice, the Prosecutor General informed the Australian Attorney General that the applicant ’ s transfer had been refused. The letter emphasised in particular that the applicant still needed to serve over 14 years of his sentence, that he had not repented or even recognised his personal responsibility for the crime he had committed, and that he was negatively predisposed and suspicious of the Bulgarian justice system. The Prosecutor General found that the purpose of the punishment, namely to convert the convicted individual into a law-abiding citizen, had not been achieved. In view of the above, and referring to the fact that under the Transfer Convention transfer was an option, not a mandatory consequence of every request, transfer was refused.

On 9 July 2013 the Bulgarian Prosecutor General announced on the Internet site of his office that he had refused to grant the transfer of the applicant to Australia to serve the remainder of his sentence.

3. Appeal against the transfer refusal

On an unspecified date the applicant appealed before the Sofia City Administrative Court against the refusal to transfer him to Australia. In particular, he emphasised that the refusal was against the fundamental rationale behind the Transfer Convention which was to provide a possibility to States to cooperate towards achieving the purposes of justice and social rehabilitation of convicted individuals. The Sofia City Administrative Court declared the appeal inadmissible, finding more specifically that the Prosecutor ’ s refusal of transfer was not an individual administrative act, given that the Prosecutor was part of the judicial and not the executive branch of power.

The applicant appealed. In a final decision of 24 April 2014 the Supreme Administrative Court found that the refusal of the Prosecutor General was not amenable to review by the administrative courts.

B. Relevant domestic law and international materials

1. Criminal Procedural Code

Article 453 § 1 regulates the transfer of sentences individuals. According to it the Prosecutor General is the competent national body to decide, in cooperation with the relevant competent body of the other State and after an agreement of the prisoner in question, on requests for transfer of persons convicted by a Bulgarian court for the purposes of serving their sentence in a country whose citizens they are. The Prosecutor General ’ s decision is not subject to judicial review.

2. Council of Europe documents

a. The Council of Europe Convention on the Transfer of Sentenced Persons 1983

The Transfer of Sentenced Persons Convention provides for a formal mechanism by which prisoners can be transferred from Bulgaria to other contracting States.

The Explanatory Report to the Convention states at paragraph 8 that the purpose of the Convention is:

“ to facilitate the transfer of foreign prisoners to their home countries.”

Paragraph 9 of the Explanatory Report states:

“In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internationalisation of crime. As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned.”

The preamble to the Convention itself states, inter alia , that:

“Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons;

Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and

Considering that this aim can best be achieved by having them transferred to their own countries ...”

Article 2 of the Convention provides :

“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.

2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.”

Article 3 sets out various conditions which must be met in order for a person to be transferred. It stipulates that a sentenced person may be transferred only if he is a national of the receiving State. It also provides that the sentencing State and the receiving State must both consent to the transfer. Under Article 4 any sentenced person to whom this Convention may apply shall be informed by the sentencing State of the substance of this Convention and if the sentenced person has expressed an interest to the sentencing State in being transferred under this Convention, that State shall so inform the proposed receiving State as soon as practicable after the judgment becomes final.

b. The European Prison Rules

The European Prison Rules (Rec (2006) 2) adopted by the Committee of Ministers on 11 January 2006, state:

“17.1 Prisoners shall be allocated, as far as possible, to prisons close to their homes or places of social rehabilitation. ...

24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.

24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.

24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.”

c. The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“CPT”)

1. In its 2 nd General Report (CPT/ Inf (92)3), the CPT stated:

“51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations.”

2. The CPT emphasised the particular significance of the maintenance of family visits for prisoners who are detained far from their families and stated:

“ The CPT wishes to emphasise in this context the need for some flexibility as regards the application of rules on visits and telephone contacts vis-à-vis prisoners whose families live far away (thereby rendering regular visits impracticable). For example, such prisoners could be allowed to accumulate visiting time and/or be offered improved possibilities for telephone contacts with their families.

... Naturally, the CPT is also attentive to the particular problems that might be encountered by certain specific categories of prisoners, for example: women, juveniles and foreigners.”

d. Council of Europe Recommendation (Rec (2003) 23) of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long term prisoners

3. The Council of Europe Recommendation on the management by prison administrations of life sentences and other long term prisoners states in paragraph 22:

“Special efforts should be made to prevent the breakdown of family ties. To this end:

prisoners should be allocated, to the greatest extent possible, to prisons situated in proximity to their families or close relatives;

letters , telephone calls and visits should be allowed with the maximum possible frequency and privacy. If such provision endangers safety or security, or if justified by risk assessment, these contacts may be accompanied by reasonable security measures, such as monitoring of correspondence and searches before and after visits.”

COMPLAINTS

The applicant complains under Article 8 of the Convention that the Bulgarian authorities ’ refusal to allow his transfer to Australia, to continue to serve his 20-year prison sentence given in Bulgaria, made it impossible for him to maintain private and family life, given that all of his family and other close relatives live in Australia.

The applicant further complains under Article 6 § 1 that he did not have access to a court to challenge the prosecutor ’ s refusal to allow his prison transfer to Australia. Alternatively, he submits that he did not have an effective domestic remedy in relation to his complaint under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the refusal by the Bulgarian authorities to allow the applicant ’ s transfer to Australia, in order to continue serving his sentence handed down in Bulgaria, a violation of the applicant ’ s right to respect for his private and family life as protected under Article 8 of the Convention?

2. In particular, was the refusal necessary in terms of Article 8 § 2?

3. Did the applicant have at his disposal an effective domestic remedy within the meaning of Article 13 in conjunction with Article 8 of the Convention for challenging the prosecutor ’ s refusal to transfer him to a prison in Australia?