CONCURRING OPINION OF JUDGE TULKENS

(Translation)

In the present case the Court has limited its finding of a violation of Article 3 of the Convention to the regime and conditions of the applicant's detention (see paragraph 86 of the judgment), without including the fact that for many years he suffered uncertainty as to whether the death penalty to which he had been sentenced would be carried out.

The applicant was sentenced to death on 9 May 1990 and his sentence was upheld on appeal on 24 October 1990 by the Supreme Court. In the meantime, on 20 July 1990 , Parliament had adopted a decision pursuant to which “the execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of capital punishment in Bulgaria ”. This moratorium on executions was maintained until 10 December 1998 , when Parliament voted to abolish the death penalty, replacing it by life imprisonment without eligibility for parole.

Admittedly, as the judgment points out, the applicant's situation was not comparable to that of persons on death row (see paragraph 78 of the judgment). His position was, moreover, different from that of the applicants in the Ukrainian cases concerning persons sentenced to death at a time when executions continued in Ukraine (see paragraph 79).

Nevertheless, I feel that the Court should have taken into account the length of the period in issue and the ever-present risk of the death penalty being carried out. Firstly, while the moratorium on executions was an indispensable, and probably the only possible, first step in the political process leading to the abolition of the death penalty, the applicant's sufferings must have been exacerbated by the very fact that no change in his legal position as a person sentenced to death occurred for more than eight years. It took that long, including more than six years after the Convention's entry into force in respect of Bulgaria , for the Bulgarian legislature to abolish the death penalty. Secondly, the moratorium had been introduced by means of a mere decision by Parliament which could have been amended at any stage. That eventuality was by no means hypothetical, as is clear from the political debate on the death penalty in Bulgaria until its abolition in 1998 (see paragraphs 20-28 of the judgment). Lastly, as to the consideration that not a single violation of the moratorium on executions occurred in Bulgaria during these eight years, that fact could only be observed with hindsight and was therefore not capable of reducing the risk or the applicant's feelings of fear throughout that lengthy period.

In those circumstances, I consider that the Court should have concluded that the combined effects of the custodial regime and material conditions to which the applicant was subjected and the uncertainty as to the abolition of the death penalty must have caused him anguish and anxiety and that the minimum threshold of severity under Article 3 of the Convention had been reached.