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.