Published on 22 May 2023

THIRD SECTION

Application no. 6035/19 Jock Anthony Palfreeman against Bulgaria lodged on 15 January 2019 communicated on 3 May 2023

SUBJECT MATTER OF THE CASE

The applicant is an Australian national. Between August 2011 and September 2019 he was serving a sentence of imprisonment, first in Sofia Prison and then, from June 2017 onwards, in Kazichene open-type prison hostel (details on his time in Sofia Prison can be found in Shahanov and Palfreeman v. Bulgaria , nos. 35365/12 and 69125/12, §§ 15-21, 21 July 2016; Palfreeman v. Bulgaria (dec.), no. 59779/14, §§ 4-14, 16 May 2017; and Palfreeman v. Bulgaria [Committee], no. 840/18, §§ 4-55, 8 June 2021).

While in Sofia Prison, the applicant became president of the Bulgarian Prisoners’ Rehabilitation Association, founded in 2012 by prisoners and former prisoners to defend their rights. He was well-known for publicly criticising the prison authorities in relation to various matters. The association had a logo, some versions of which carried the inscription: “When injustice is law, resistance becomes duty”. The logo featured on coloured stickers which its members would stick on various places in prisons in Bulgaria.

On 31 May 2018 prison officers searched Kazichene open-type prison hostel for stickers of the association, and found eight of them. They also seized a computer used by the applicant. On 11 June 2018 a search was carried out in his cell. The seized computer was also inspected, and video files with pornographic content were found on its hard drive.

On 21 June 2018 the applicant was given additional cleaning duties for seven days by way of disciplinary punishment in relation to the stickers, on the basis that it had been him who had stuck them. On 25 June 2018 he was deprived of the right to receive food parcels from outside prison for three months by way of disciplinary punishment for having swallowed a memory card during the search of his cell (which he denies). The same day he was also banned, likewise by way of disciplinary punishment, from taking part in collective activities in relation to the files with pornographic content found on the hard drive of the seized computer.

The applicant appealed against all three punishments to the governor of Sofia Prison. He alleged in particular that the real reason for them had been his advocacy of prisoners’ rights. In July 2018 a senior inspector acting on behalf of the governor dismissed the appeals.

In December 2018 the applicant sought judicial review of the three punishments. The Sofia City Administrative Court dealt with them in three separate cases. In the case relating to the memory card, in January 2019 it found the claim inadmissible, on the basis that under the relevant statute the only kind of prison disciplinary punishment amenable to judicial review was isolating an inmate in a punishment cell. In the case relating to the stickers, in April 2019 the court found the claim admissible, based on the general judicial-review clause in Article 120 § 2 of the Constitution, but unfounded, on the basis that the stickers had been offensive to prison staff. In the case relating to the files with pornographic content, in October 2019 the court found the claim admissible and well-founded, on the basis that it had been insufficiently established that it had been the applicant who had placed the files on the hard drive. Following appeals by the applicant against the two adverse decisions, in May 2019 and December 2020 respectively the Supreme Administrative Court upheld both of them.

The applicant complains under Articles 10 and 11 of the Convention of his disciplinary punishment in relation to the stickers, and under Article 13 of the Convention that he did not have an effective remedy in respect of that punishment. He further complains under Article 18 of the Convention read in conjunction with Articles 8, 10 and 11 that the real purpose of the disciplinary punishments imposed on him was to silence him and discourage his advocacy of prisoners’ rights. Lastly, he complains under Article 14 of the Convention read in conjunction with Articles 8, 10 and 11 that he was treated differently on account of his status as someone engaging in advocacy of prisoners’ rights.

QUESTIONS TO THE PARTIES

1. Did the disciplinary punishment imposed on the applicant in relation to the stickers found in Kazichene open-type prison hostel amount to “interference” with the exercise of his right to freedom of expression under Article 10 of the Convention (see, mutatis mutandis , Yankov v. Bulgaria , no. 39084/97, § 126, ECHR 2003-XII (extracts), and Shahanov and Palfreeman v. Bulgaria , nos. 35365/12 and 69125/12, § 54, 21 July 2016)? If so, was that interference “prescribed by law” and “necessary in a democratic society” within the meaning of Article 10 § 2?

2. Has there been a breach of Article 13 of the Convention? In particular, did the applicant have an effective remedy in respect of the alleged breach of Article 10 of the Convention?

3. Has there been a breach of Article 18 of the Convention read in conjunction with, in particular, Articles 8 and 10 of the Convention? In particular, did the disciplinary punishments imposed on the applicant pursue an ulterior purpose, as alleged by him?