Published on 12 September 2022

FOURTH SECTION

Application no. 46563/15 Svetlomir Nikolov NESHKOV against Bulgaria lodged on 15 September 2015 communicated on 22 August 2022

STATEMENT OF FACTS

1. The applicant, Mr Svetlomir Nikolov Neshkov, is a Bulgarian national who was born in 1971 and is currently serving a sentence in Sofia Prison.

2. The facts of the case, as submitted by him and as appearing from the documents which he provided and the judicial decisions in proceedings which he brought under the anti-discrimination legislation (see paragraphs 9 to 15 below) , [1] may be summarised as follows.

3 . In late May 2014 the applicant, who is serving an aggregate sentence of nearly twenty-nine years imprisonment, was transferred to Belene Prison (see Neshkov and Others v. Bulgaria , nos. 36925/10 and 5 others, §§ 11 and 14, 27 January 2015). On 8 August 2014 he was appointed, along with seven other inmates, as assistant food server in the prison. He asserts that although he was working eight hours each day, weekends and public holidays included, the prison authorities only counted and credited four hours of work a day, and did not count and credit his work on weekends and public holidays. He also says that those authorities were not paying him for that work (in contrast to the inmate who had been appointed as head food server). On 14 January 2015 the applicant was stopped from performing that work.

4 . On 21 January 2015 the applicant lodged with the Pleven Administrative Court a claim against Belene Prison and the Chief Directorate for the Execution of Sentences in which he asked the court to:

(a) recognise, for the purposes of sentence reduction (see paragraphs 22 and 23 below), that between 8 August 2014 and 14 January 2015 he had been working in that prison eight hours a day, weekends and public holidays included;

(b) order the prison authorities to pay him for that work;

(c) order those authorities to reinstate him to the position of full-time assistant food server and pay him for that work, or find him alternative work; and

(d) credit all days between 14 January 2015 and his reinstatement into a work position as full workdays for the purposes of sentence reduction, and order the prison authorities to pay him for them.

5 . On 27 January 2015 the Pleven Administrative Court discontinued the proceedings before it and referred the case to the Pleven regional prosecutor’s office. It held that the applicant’s claim fell outside the administrative courts’ jurisdiction as it did not concern an administrative activity. So far as it touched upon sentence reduction through work (see paragraphs 22 and 23 below), it related directly to the duration of the applicant’s sentence, and by law the authority in charge of supervising the lawful execution of sentences was the Prosecutor’s Office. The claim was hence to be referred to the Pleven regional prosecutor’s office (see опр. № 140 от 27.01.2015 г. по адм. д. № 58/2015 г., АдмС-Плевен ).

6 . The applicant appealed. He submitted that his claim concerned the administration of the prisons and rights asserted by him vis-à-vis the prison authorities, and hence fell within the administrative courts’ jurisdiction. The Prosecutor’s Office could not afford him relief in respect of the matters which had aggrieved him since it could not order the prison authorities to take the steps desired by him; such an order could only be made by the courts. A refusal to examine his claim would be in breach of his constitutional right to a fair trial by an independent and impartial court.

7 . In its reply to the appeal, the Chief Directorate for the Execution of Sentences reiterated the points made by the Pleven Administrative Court.

8 . On 30 June 2015 the Supreme Administrative Court upheld the lower court’s decision, agreeing that the claim fell outside the administrative courts’ jurisdiction and within the Prosecutor’s Office’s purview. It went on to say that the prison authorities had discretion in whether they credited inmates’ workdays, and that this turned on their assessment of whether work objectives had been fulfilled or working time properly used (see paragraph 23 below). That assessment was not amenable to judicial review (see опр. № 7993 от 30.06.2015 г. по адм. д. № 2737/2015 г., ВАС, I о. ).

9 . On 6 January 2015 the applicant complained to the Commission for Protection from Discrimination that the governor of Belene Prison and the Chief Directorate for the Execution of Sentences had been discriminating against him in connection with the possibility of working in prison, as other inmates had been treated more favourably than him in that respect, in particular for the purposes of sentence reduction. In February 2015 the applicant filed clarifications to his complaint.

10 . The Commission obtained evidence and additional submissions from the applicant and the prison authorities, and held five hearings, two of which in the prison itself. In the light of some of the submissions of the respondents, in September 2016 the applicant amended his complaint.

11 . In July 2017 the Commission dismissed the complaint. It found that the prison authorities had not discriminated against the applicant in relation to his right to work in prison. It noted that by law those authorities were under no duty to provide paid work to each inmate, and had a discretion in that respect, depending on the available work, the inmate’s health, age and character, as well as the risk that he or she might flee, cause damage, reoffend, and so on. The applicant had not been treated less favourably than other inmates in Belene Prison in relation to that (see реш. № 222 от 07.07.2017 г. по пр. № 93/2015 г., КЗД ).

12 . The applicant sought judicial review of the Commission’s decision. The Sofia City Administrative Court summoned the governor of Belene Prison and the Chief Directorate for the Execution of Sentences as interested parties, and they both made written submissions. The applicant and counsel for the Commission made oral submissions at the public hearing held by the court in January 2018.

13 . In February 2018 the Sofia City Administrative Court dismissed the claim, agreeing with the Commission that the applicant had not been discriminated against. In particular, he had not been treated less favourably than other inmates in Belene Prison. He had been allowed to work between August 2014 and January 2015, and had been stopped from work in January 2015 because he had been moved to another group in which there had not been enough workplaces available (see реш. № 994 от 19.02.2018 г. по адм. д. № 11787/2017 г., АдмС-София ).

14 . The applicant appealed on points of law.

15 . In April 2020 the Supreme Administrative Court dismissed the appeal. It agreed that the law did not lay down an unqualified duty for the prison authorities to provide paid work for inmates. It had to be borne in mind in that connection that unpaid work likewise led to the reduction of a sentence (see paragraph 22 below). It was plain that between August 2014 and January 2015 the applicant had engaged in unpaid voluntary work in Belene Prison. He could not hence complain that he had been treated less favourably than inmates there provided with paid work during that time. Moreover, contrary to what he asserted, Belene Prison had in place a procedure and criteria for appointing inmates to paid work positions. The non-provision of paid work to the applicant had thus not been unlawful or discriminatory. In his complaint to the Commission, he had not alleged that he had been discriminated against in relation to a particular appointment procedure. Nor was it apparent that he had been treated less favourably than others based on any personal characteristic of his (see реш. № 5100 от 29.04.2020 г. по адм. д. № 5329/2018 г., ВАС, V о. ).

RELEVANT LEGAL FRAMEWORK

16 . The service of a prison sentence is to be accompanied by suitable paid work, whose aims are to rehabilitate the inmates and enable them to gain or enhance a professional qualification (Article 41 § 1 of the Criminal Code). Inmates are entitled to work, and their choices in terms of type of work are to be accommodated where possible (section 77(1) and (2) of the Execution of Sentences and Pre-Trial Detention Act 2009).

17 . The Supreme Administrative Court has held that the law does not enshrine an absolute right for inmates to work, and that the prison authorities have no unconditional duty to provide them with work, and has on that basis dismissed claims for damages in that respect (see реш. № 7074 от 23.05.2013 г. по адм. д. № 9200/2012 г., ВАС, III о. ; and реш. № 4641 от 19.04.2016 г. по адм. д. № 5665/2015 г., ВАС, III о. ).

18 . That court’s position on whether the prison authorities’ refusal to let an inmate work is amenable to judicial review is contradictory. In four decisions given in 2020, it held that such refusals are not amenable to judicial review (see опр. № 2512 от 17.02.2020 г. по адм. д. № 1492/2020 г., ВАС, III о. ; опр. № 7349 от 12.06.2020 г. по адм. д. № 4820/2020 г., ВАС, III о. ; опр. № 7426 от 15.06.2020 г. по адм. д. № 4547/2020 г., ВАС, III о. ; and опр. № 11092 от 14.08.2020 г. по адм. д. № 4548/2020 г., ВАС, III о. ). In another series of cases decided in 2019-21 it by contrast (a) held that the law enshrines a right for inmates to be provided with appropriate work, and that the prison authorities’ decisions to refuse requests in that respect are amenable to judicial review, even though those authorities enjoy a discretion in the matter (see опр. № 10074 от 01.07.2019 г. по адм. д. № 7167/19, ВАС, III о. ), and (b) examined on the merits appeals relating to claims for judicial review of refusals to assign work to inmates or to stop inmates from work (see реш. № 12867 от 19.10.2020 г. по адм. д. № 1092/2020 г., ВАС, III о. ; реш. № 13731 от 5.11.2020 г. по адм. д. № 1094/2020 г., ВАС, III о. ; and реш. № 3227 от 11.03.2021 г. по адм. д. № 9676/2020 г., ВАС, III о. ).

19 . For all work outside voluntary non-remunerated work and normal order- and hygiene-maintenance duties, inmates are to be paid at least 30% of the remuneration for that work, with the exact percentage being determined by the Minister of Justice (section 78(1) and (2) of the 2009 Act).

20 . If inmates agree expressly in writing to that, the prison authorities may engage them in voluntary unremunerated work relating to prison maintenance or hygiene, the maintenance or preservation of public monuments or other State or municipal property, disaster relief or prevention, the organisation of educational or similar courses for other inmates, or other activities (section 80(1) of the 2009 Act).

21 . In November 2019 the Kyustendil Administrative Court allowed a claim for damages by an inmate against the prison authorities in relation to a failure to pay him for five days of work assigned to him by those authorities (see реш. № 277 от 20.11.2019 г. по адм. д. № 31/2019 г., АдмС-Кюстендил (apparently final)).

22 . Paid work by an inmate operates to reduce the duration of his or her sentence, with two workdays counting as three days of imprisonment (Article 41 § 3 of the Criminal Code and section 178(1) of the 2009 Act). Voluntary work (see paragraph 20 above) counts for reducing the sentence in the same way (section 80(2) of the Act).

23 . Only days on which an inmate has fulfilled his or her work objectives are credited; partial fulfilment is credited pro rata (section 178(2) of the 2009 Act). If there are no formal objectives, what counts is a proper use of working time (section 178(3)). This is to be assessed daily, unless that is impossible, in which case it is to be assessed weekly or monthly, or in the case of specific work at longer intervals (regulation 189(1) and (2) of the Act’s implementing regulations). Work during weekends or public holidays counts irrespective of whether it has been duly authorised or complies with the Labour Code’s standards (regulation 60(1)). Time spent off work owing to a work accident or an occupational disease also counts, except in cases of deliberate self-harm (section 83(1) and (2)). So does time spent on maternity leave (section 83(3)). Inmates are to be informed monthly of the number of workdays with which they have been credited (regulation 189(4)).

24 . In November 2014 the Supreme Administrative Court held that the prison authorities’ assessment of the above points is not amenable to judicial review (see опр. № 13107 от 04.11.2014 г. по адм. д. № 13355/2014 г., ВАС, I о. ). After it reiterated this position in the applicant’s case, adding that the matter fell within the purview of the prosecutor’s office (see paragraph 8 above), the lower administrative courts seem to have fully adhered to its approach (see опр. № 706 от 18.12.2015 г. по адм. д. № 836/2015 г., АдмС-Велико Търново (apparently final); опр. № 74 от 20.01.2016г. по адм. д. № 1096/2015 г., АдмС-Плевен (final: see опр. № 3276 от 22.03.2016 г. по адм. д. № 2338/2016 г., ВАС, I о. ); реш. № 298 от 11.01.2019 г. по адм. д. № 8728/2018 г., АдмС-София (final: see разп. № 9375 от 18.06.2019 г. по адм. д. № 6822/2019 г., ВАС, III о. ); реш. № 475 от 22.01.2019 г. по адм. д. № 3189/2018 г., АдмС-София (final: see опр. № 775 от 17.01.2020 г. по адм. д. № 4212/2019 г., ВАС, III о. ); опр. № 1832 от 11.07.2019 г. по адм. д. № 1483/2019 г., АдмС-Варна (apparently final); опр. № 199 от 30.01.2020 г. по адм. д. № 1332/2019 г., АдмС-Плевен (apparently final); опр. № 9508 от 01.12.2021 г. по адм. д. № 5459/2020 г., АдмС-София (apparently final); and опр. № 952 от 17.06.2022 г. по адм. д. № 748/2022 г., АдмС-Бургас (unclear whether already final)).

25 . Article 41 § 4 of the Criminal Code provides that if an inmate systematically eschews work, or commits a wilful offence or serious breaches of prison order, and thereby shows that he or she is not rehabilitating, the court may fully or partly cancel the workdays credited for the purposes of sentence reduction during the two years preceding the latest misconduct.

26 . Such cancellation can be proposed by the regional prosecutor in charge of the place where the sentence is being served or by the prison governor, and is to be examined by the regional court in whose region the sentence is being served (Articles 443 and 444 § 1 of the Code of Criminal Procedure). An appeal lies to the relevant court of appeal (Article 444 § 2).

27 . If the Commission for Protection from Discrimination (which can act, inter alia , pursuant to complaints by aggrieved parties) finds that there has been a breach of the Protection from Discrimination Act 2003, it can (a) order that that breach be averted or stopped, or that the status quo ante be restored, (b) impose sanctions (such as fines), (c) order coercive measures, or (d) give binding directions (section 47(2), (3) and (4) of that Act). People who have obtained a favourable decision by the Commission and wish to obtain compensation for damage suffered as a result of the breach established by it can claim compensation from the authorities that have caused that damage (section 74(1)).

COMPLAINT

28 . The applicant complains under Articles 6 § 1 and 13 of the Convention that the Pleven Administrative Court refused to examine the claim relating to his prison work.

QUESTIONS TO THE PARTIES

1. Did Article 6 § 1 of the Convention apply to the three matters which the applicant tried to bring for adjudication before the Pleven Administrative Court: the alleged failure of the prison authorities to (a) count and credit correctly his workdays in prison, (b) pay him for his work in prison, and (c) provide him with work after 14 January 2015? In particular, did those matters concern “rights” of the applicant which were, at least on arguable grounds, recognised under Bulgarian law and which were “civil”?

2. Did Article 5 § 4 of the Convention apply to the first of those matters: the alleged failure of the prison authorities to count and credit correctly the applicant’s workdays in prison? In particular, did that matter concern the lawfulness of the applicant’s detention, in the light of the two-for-three rule in Article 41 § 3 of the Criminal Code and section 178(1) of the Execution of Sentences and Pre-Trial Detention Act 2009?

3. If Article 6 § 1 and/or Article 5 § 4 of the Convention applied, did the Pleven Administrative Court’s refusal to examine any of the aspects of the applicant’s claim deprive him of access to a court, in breach of those provisions? Also, did the proceedings before the Commission for Protection from Discrimination, coupled with the proceedings for judicial review of its decision (see paragraphs 9 to 15 of the Statement of facts), make good the Pleven Administrative Court’s refusal and provide the applicant with the requisite access to a court in respect of the above-mentioned matters?

[1] . The applicant did not mention those proceedings in this application or in any follow-up correspondence relating to it. In November 2020 he lodged a separate application (no. 49702/20) in relation to them. On 10 December 2020 that application was declared inadmissible by a single judge (Article 27 § 1 of the Convention).