CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 février 2013

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } FOURTH SECTION DECISION Applications nos. 15018/11 and 61199/12 Mitko Georgiev Harakchiev against Bulgaria and Liudvik Slavov Tolumov against Bulgaria The European Court of Human Rights (Fourth Section), sitting on 19   February 2013 as a Chamber composed of:   Ineta Ziemele, President ,   David Thór Björgvinsson,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Vincent A. De Gaetano, judges , and Lawrence Early, Section Registrar , Having regard to the above applications lodged on 22 February 2011 and   11 September 2012 respectively, Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court. Having deliberated, decides as follows: THE FACTS 1.     The applicant in the first application (no. 15018/11), Mr Mitko Georgiev Harakchiev, is a Bulgarian national who was born in 1968. He is serving a sentence of life imprisonment without commutation in Stara Zagora Prison. 2.     The applicant in the second application (no. 61199/12), Mr Liudvik Slavov Tolumov, is also a Bulgarian national who was born in 1954. He is serving a sentence of life imprisonment with commutation in Plovdiv Prison. 3.     Both applicants are represented before the Court by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. A.     The circumstances of the case 4.     The facts of the case, as submitted by the applicants and as established by the Court on the basis of other materials, may be summarised as follows. 1.     Mr Harakchiev (a)     Mr Harakchiev’s criminal background and his life sentence without commutation 5.     Mr Harakchiev has a number of convictions for various offences not involving violence. 6.     On 21 January 2003 the Haskovo Regional Court convicted him of the illegal possession of a firearm and four armed robberies of motor vehicles, two of which had been characterised by murder attempts and two by murders, and sentenced him to life imprisonment without commutation. 7.     On 26 June 2003 the Plovdiv Court of Appeal upheld Mr   Harakchiev’s conviction and sentence. 8.     In a final judgment of 23 November 2004 (реш. № 476 от 23   ноември 2004 г. по н. д. № 901/2003 г., ВКС, ІІІ н. о.) the Supreme Court of Cassation likewise upheld Mr Harakchiev’s conviction and sentence. It held, inter alia , that in view of the gravity of his offences – in particular, the determination and the cruelty with which they had been committed – a more lenient punishment, such as life imprisonment with commutation, would not be adequate. That conclusion could not be altered by the fact that Mr Harakchiev had confessed and had helped the authorities to uncover his criminal activities. (b)     Conditions of detention in Stara Zagora Prison and prison regime applied to Mr Harakchiev 9.     After his conviction and sentence became final, on an unspecified date Mr Harakchiev was transferred to Stara Zagora Prison to serve his life sentence without commutation and several other custodial sentences imposed in different proceedings. 10 .     The conditions of Mr Harakchiev’s detention, as described by him, may be summarised as follows. 11.     Mr Harakchiev’s cell is in the prison’s high ‑ security wing designated for life prisoners. The cell, which is apparently quite small, has small windows covered with bars blocking access to natural light. At night the cell is lit by a sixty ‑ watt light bulb. 12.     The prison does not have an air ‑ conditioning system. As a result, in summer the temperature in the cells is very high, and there is no fresh air. In winter, heating is only turned on for one hour in the morning, at noon and in the evening. 13.     Cleanliness in the common and the service areas of the prison is maintained solely by bleaching them with calcium hypochlorite. 14.     Mr Harakchiev relieves himself in a plastic bucket left in his cell. There is no running water in the cell, which prevents him from washing his hands after relieving himself. 15.     He can go out of the cell three times a day for forty ‑ five minutes, to take his meal in a special eating room. During each of those periods, he can empty the bucket, wash his hands and fill plastic bottles with drinking water. 16.     The inmates in Stara Zagora Prison take a shower once every fourteen or fifteen days. 17.     Visits by relatives and lawyers take place in a special room. The prisoners and the visitors are separated by a fine wire ‑ net, and the prisoners have to remain seated. A prison officer is always present. 18.     Food is of low quality, tasteless and insufficient in quantity. Meat is served once a week. During the rest of the week, it consists of beans, lentils, cabbage and potatoes, served as soups or stews. 19 .     Medical assistance in the prison consists of routinely giving all inmates aspirin or analgin. Inmates have to purchase other medicines themselves. (c)     Claims brought by Mr Harakchiev in relation to the conditions of his detention in Stara Zagora Prison 20.     Since his incarceration Mr Harakchiev has brought a number of claims against the authorities under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 90 below). 21 .     In a final judgment of 12 February 2009 (реш. № 1993 от 12   февруари 2009 г. по адм. д. № 9586/2008 г., ВАС, III о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr   Harakchiev under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 90 below) in relation to the failure of the prison administration to provide him with newspapers. The court held that Mr Harakchiev had not proved that he had suffered non ‑ pecuniary damage as a result of that. 22 .     In a final judgment of 26 May 2009 (реш. № 6892 от 26 май 2009   г. по адм. д. № 14849/2008 г., ВАС, III о.) the Supreme Administrative Court dismissed Mr Harakchiev’s claim for damages in relation to a failure of the prison administration to organise his daily walk in the open air in such a way as to compensate him for the fact that he was prevented from going outside on one occasion because of bad weather. The court – overturning the lower court’s ruling on that point – held that Mr   Harakchiev had failed to establish that he had suffered non ‑ pecuniary damage; that could not simply be taken for granted on the basis of the failure of the prison administration to organise the daily walk. 23 .     In a final judgment of 18 January 2010 (реш. № 695 от 18 януари 2010   г. по адм. д. № 8404/2009 г., ВАС, ІІІ о.) the Supreme Administrative Court dismissed a claim for damages brought by Mr   Harakchiev in relation to the failure of the prison administration to allow him to watch films in the prison’s video projection room. The courts held, inter alia , that that would have been incompatible with the requirement, flowing from his prison regime, to remain isolated in a locked cell. 24 .     In a final judgment of 9 November 2010 (реш. № 13333 от 9   ноември 2010 г. по адм. д. № 6668/2009 г., ВАС, III о.) the Supreme Administrative Court allowed a claim for damages brought by Mr   Harakchiev in relation to the failure of the prison administration, for a period of about five years, to provide him with shoes free of charge, as required by statute. The court, relying on Article 3 of the Convention, held that that failure had humiliated Mr Harakchiev and had systematically impinged on his human dignity. It observed that his feelings of humiliation had been exacerbated as a result of his full isolation. It awarded him 3,000   Bulgarian levs (BGN) (1,533.88 euros (EUR)), plus interest. (d)     Mr Harakchiev’s correspondence in prison 25.     Mr Harakchiev submits that his main mode of communication with his legal representatives before the Court is by letter. He alleges that all letters from his legal representatives to him are opened and read by the prison authorities, and that he has to present all his letters to his legal representatives to the prison authorities in an unsealed envelope. He says, without giving any further particulars, that the monitoring of his correspondence is proved by the fact that some of his letters did not reach his legal representatives. Lastly, he submits that the prison authorities monitor prisoners’ letters by opening and reading them. 26.     Mr Harakchiev does not present any evidence in support of his allegations. 2.     Mr Tolumov (a)     Mr Tolumov’s life sentence with commutation 27.     Mr Tolumov was sentenced to life imprisonment with commutation. He was incarcerated in Plovdiv Prison in execution of his sentence on 14   October 2006. (b)     Conditions of detention in Plovdiv Prison and prison regime applied to Mr   Tolumov 28.     Mr Tolumov is alone in a cell in Plovdiv Prison’s high ‑ security wing designated for life prisoners. 29.     The conditions of his detention, as described by him, may be summarised as follows. 30.     His cell does not have ventilation or access to natural light. It is lit by a light bulb situated behind a metal grill built into the wall. The light is left on night and day, and the bulb is not capable of providing enough light. 31.     The cell is furnished with a plank ‑ bed, a metal cabinet built into the wall, a wooden cabinet, a table, which is fixed to the floor, and two stools, also fixed to the floor. As the cell is right next to the toilets, the humidity from them penetrates the walls and the floor, which produces mould. 32.     Mr Tolumov relieves himself in a plastic bucket left in his cell. There is no running water in the cell, which prevents him from washing his hands after relieving himself. 33.     He can go out of the cell three times a day for thirty minutes. During each of those periods, he can empty the bucket, wash his hands and take drinking water in plastic bottles. 34.     The inmates in Plovdiv Prison take a shower once a week. Apparently the water is heated by an electric boiler and there is never enough hot water for all inmates. 35.     Plovdiv Prison does not have an air ‑ conditioning system. As a result, in summer the temperature in the cells is very high, and there is no fresh air. In winter, heating is turned on only during the day. 36.     Lifers in Plovdiv Prison can go into the open air once a day, for one hour. Each time they are handcuffed. 37.     Visits by relatives and lawyers take place in a special room. The prisoners and the visitors are separated by a fine wire ‑ net, and the prisoners have to remain seated. A prison officer is always present. 38.     Food is of low quality, tasteless and insufficient in quantity. Prisoners subjected to the “special regime” are entitled to one food parcel of up to five kilograms every six months. 39.     Medical assistance in the prison consists of routinely giving all inmates aspirin or analgin. Inmates have to purchase other medicines themselves. (c)     Mr Tolumov’s correspondence in prison 40 .     Mr Tolumov submits that all letters from his legal representative before the Court are being opened and read by the prison administration. He also submits that he has to give all letters to his legal representative to the prison administration without sealing the envelopes. The monitoring of his correspondence was proved by the letter “P” written on the back of each envelope. 41 .     In support of his allegations, Mr Tolumov submitted photocopies of the envelopes of three letters that he had addressed to his legal representative in January, February and March 2012. They bear illegible postmarks. On the back of each, there is a stamp reading “checked”. B.     Relevant domestic law and practice 1.     The sentencing system in Criminal Code 1968 over the years 42 .     Article 36 of the Criminal Code 1968 defines the aims of criminal punishment. Its first paragraph provides that the penalty is imposed with a view to (a) reforming the convict and rehabilitating him or her to comply with the law and good morals; (b) deterring the convict and preventing him or her from committing further offences; and (c) cautioning and deterring other members of society. Its second paragraph states that punishment shall not be intended to cause physical suffering or humiliation of human dignity. 43 .     The various criminal penalties are listed in Article 37 of the Code, and Articles 38 ‑ 52 specify the characteristics of those penalties. 44 .     Under Articles 37 § 2 and 38 of the Code, as worded before the abolition of capital punishment in December 1998, the courts could impose the death penalty only for particularly serious wilful offences and only if they considered that the punitive and deterrent purposes of a criminal penalty could not be achieved by a lesser sentence. Under Article 38 § 4 of the Code, the death penalty could not be carried out until the President of the Republic had considered commuting it. Until 1995 the harshest sentence after the death penalty was imprisonment for up to thirty years in exceptional cases (Article 39 of the Code). In 1995 a new penalty was introduced: life imprisonment ( доживотен затвор ), defined by the newly added Article 38a § 1 of the Code as “confinement of the convicted person in a prison establishment until the end of his or her life”. This sentence may be commuted by a court to thirty years’ imprisonment after the convict had served twenty years of his or her sentence (Article 38a § 3 of the Code). 45 .     The death penalty was abolished with effect from 27 December 1998. At the same time, a new penalty was introduced: life imprisonment without commutation ( доживотен затвор без замяна ). This penalty replaced capital punishment in the provisions of the Code dealing with specific offences. 46 .     Article 37 § 2 of the Code, as worded following the amendment, reads as follows: “The most serious offences, which threaten the foundations of the Republic, as well as other particularly serious wilful offences, shall, provisionally and exceptionally, be punishable by life imprisonment without commutation.” 47 .     Article   38 of the Code, as worded following the amendment, reads as follows: “1.     The penalty of life imprisonment without commutation ... shall be imposed only if the specific offence is particularly serious and the aims [of the punishment, as] laid down in Article 36 cannot be attained by means of a lesser punishment. 2.     The penalty of life imprisonment without commutation cannot be imposed on a person who at the time of the commission of the offence has not attained the age of twenty or, as regards persons serving in the armed forces or during a time of war, the age of eighteen. The penalty of life imprisonment without commutation cannot be imposed on a woman who was pregnant at the time of the commission of the offence or is pregnant at the time when the sentence is being handed down.” 48 .     The relevant part of the explanatory note that accompanied the amendment abolishing the death penalty read as follows: “... The draft law proposes to replace the death penalty with a new penalty, life imprisonment without commutation, which differs from life imprisonment. This penalty will remove the prisoner from society, depriving him of the possibility of committing new offences, and the penalty will have a deterrent effect on other would-be offenders ...” 49 .     Thus, since the abolition of the death penalty, the Code has provided for three types of custodial penalty: imprisonment for a period of up to thirty years, life imprisonment with a possibility of commutation, and life imprisonment without the possibility of commutation. 2.     Acts of clemency and adjustment of sentence and their applicability to life imprisonment without commutation (a)     Release on licence 50 .     Under the provisions of Article 70 § 1 of the Criminal Code 1968, release on licence is applicable only to fixed ‑ term prison sentences. Offenders sentenced to life imprisonment, with or without the possibility of commutation, are not eligible for release on licence. (b)     Commutation of sentence by judicial decision 51 .     The Code of Criminal Procedure 1974 and the Code of Criminal Procedure 2005 provide for the possibility for a regional court, at the request of the regional prosecutor, to commute a life sentence to an ordinary prison sentence (Articles 427 and 428 of the 1974 Code and Articles 449 and 450 of the 2005 Code). The regional court gives a reasoned decision; a negative decision may be challenged in the higher courts. If the prosecutor’s proposal is rejected, no further commutation request may be submitted for two years. The legislation makes no provision for the prosecuting authorities to apply for adjustment of the sentence of offenders sentenced to life imprisonment without commutation. (c)     Presidential clemency 52 .     Under Article 98 point 11 of the 1991 Constitution, the power of clemency is a prerogative of the President of the Republic. Article 74 of the Criminal Code 1968, which explains the scope of this presidential power, reads as follows: “The President may use his [or her] power of clemency to grant a pardon in respect of all or part of the sentence and, in the case of the death penalty, a sentence of life imprisonment without commutation or a sentence of life imprisonment, grant a pardon or commute the sentence.” 53 .     It is a discretionary power which the President has since 1991 traditionally delegated to the Vice ‑ President of the Republic. The Vice ‑ President may decide to exercise the power, in either form, at any time while the sentence is being served. His or her decision is unconditional and irrevocable. Refusal by the Vice ‑ President to exercise his or her power is not subject to judicial or administrative review. 54 .     From 1 January 2002 to 31 December 2009 the Vice ‑ President received 6,967 applications for clemency. 477 of these were granted. 55 .     In practice a committee of experts from the President’s administration examined requests for presidential clemency and made proposals to the Vice ‑ President. In forming its opinion in each case the committee took into account the position of the President’s legal advisers on criminal policy and relied on the information communicated by the prison administration about the convict concerned. Before reaching a decision, the Vice ‑ President could interview the prisoner. 56 .     According to a report by the Director General of Prison Administration dated 15 September 2009, prisoners serving a life sentence without commutation had submitted about a hundred applications for clemency to the successive Vice ‑ Presidents. None had been granted. According to the head of the Vice ‑ President’s Office, from 21 January 2002 to 7 September 2009 the advisory Committee received twenty ‑ nine applications for clemency from sixteen persons sentenced to life imprisonment without commutation. None had been granted. He further explained that the Vice ‑ President was not required to give reasons for his or her refusal, but the prisoners concerned could renew their applications for clemency without restrictions. 57 .     In two decrees of 23 January 2012 the newly elected President, who had taken office the previous day, 22 January 2012, delegated, like his predecessors, to the Vice ‑ President power of clemency. He in addition set up a Clemency Commission to advise the Vice ‑ President in the exercise of that power, and laid down rules of procedure governing the work of the Commission. 58 .     Rule 1 § 3 of those Rules provides that in its work the Commission will take into account, inter alia , the relevant case ‑ law of international jurisdictions and committees on the interpretation and application of international human rights instruments in force in respect of Bulgaria. The Commission deliberates twice a month (Rule 5 § 2). Each request for clemency is allocated to one member of the Commission who has to report on it (Rule 4 § 1 (1)) within two weeks (Rule 6). Decisions are taken by a majority, with the chairperson having the casting vote in the case of a tie (Rule 5 § 4). The chairperson then reports the Commission’s recommendations to the Vice ‑ President (Rule 4 § 1 (5)). Prisoners who have requested clemency are to be informed in writing of the Vice ‑ President’s decision, and every three months the Commission has to publish a report on its activities. 59 .     In practice, throughout 2012 the Commission published comprehensive monthly reports. 60 .     On 24 January 2013 the Commission published its first annual report, approved by the Vice ‑ President. It is a comprehensive document containing information about the Commission’s activities in 2012, analytical information about the types of grounds on which requests for clemency filed during the year had been based, statistical data, the Commission’s approach to the examination of requests for clemency, the types of outcome suggested by the Commission (non ‑ examination of the request, refusal, or full or partial pardon), and the Commission’s conclusions and recommendations. 61 .     According to the report, in 2012 840 persons had filed 988 requests for presidential clemency. Sixty ‑ five of those persons had filed more than one request. The vast majority of requests (98%) filed by prisoners (as opposed to relatives of theirs) had relied on one or a combination of the following reasons: 34% on the convicts’ attitude to their offence, with some prisoners expressing regrets and others seeking to vindicate their acts or challenge the correctness of their convictions or sentences; 18% on the convicts’ rehabilitation following their incarceration; 48% on humanitarian grounds (family difficulties, need to take care of children or elderly relatives, need to provide financial assistance to family members, need to reunite with family members, ill health, old age); and 7% had sought to portray the prisoners as victims of the prison, the courts or the system, with some requests citing the ill effects of incarceration or the impossibility for personal development in prison. The remaining 2% of requests had not cited specific grounds. Only four requests had been filed not by the person concerned him ‑ of herself, but by a legal representative. 62 .     In 2012 the Commission had held thirty ‑ three rounds of deliberations, three to five times a month. 63 .     The practice of the Commission had been based on the idea that clemency was a subsidiary means of reduction of the sentence, and was applicable in situations in which, on the one hand, there were no other means to alleviate the criminal repression, and on the other, the continued execution of the sentence was morally unjustifiable and inconsistent with the spirit of the law – when, due to circumstances obtaining after conviction, the situation of the convict was unusual, and the continued execution of the sentence did not have the intended beneficial effects but constituted unnecessary repression compromising the humane goals of criminal policy. 64 .     In the examination of each request for clemency, the Commission had had regard to the totality of the prisoner’s circumstances: the existence of a criminal model of behaviour and its characteristics; the gravity of the offence; the particularities of the criminal environment; the motives behind the offence; the post ‑ offence behaviour; the criminal record, including the effectiveness of previous criminal sanctions; the victims; the time elapsed since the commission of the offence and the point when the conviction had become final; any interruptions in the serving of the sentence; the part of the sentence that had already been served and the manner in which it had been served; the prisoner’s perspective of personal development, including the risk of re ‑ offending; the successfulness of the correctional process; the degree to which the aims of punishment were being attained; the existence of persons or institutions which could re ‑ socialise the prisoner; the prisoner’s state of health and its effects on the serving of the sentence; the prisoner’s family circumstances and their effects on his or her legal or moral obligations (state of health and age of the prisoner’s family members, the existence of any pregnancies, young children, unemployed family members); any post ‑ conviction changes in the law removing or reducing criminal liability for the acts committed by the prisoner; and the availability of other means of alleviating the criminal repression. 65 .     The Commission had proposed to the Vice-President to pardon three prisoners. 66 .     One of them had been a fifty ‑ eight year old person sentenced to death in 1990 for a murder, the infliction of grievous bodily harm and a rape, whose death sentence had been commuted to life imprisonment without commutation in 1999, following the abolition of capital punishment in Bulgaria (see paragraph 45 above). In 2012 he had requested that his sentence be commuted to life imprisonment with commutation, citing his repentance and good behaviour, and the inhumanity of his sentence. The Commission had noted that that person had already spent twenty ‑ two years in prison, eighteen of which in isolation, under the “special regime” applicable to life prisoners without commutation (see paragraphs 70, 71, 73 and 76 below). The Commission had researched his case for six months, and had found a special circumstance – sustainable positive changes in his personality, which made it intolerable for him to continue to serve a sentence of life imprisonment without commutation. That development had been unequivocally established on the basis of the available documents, the reports of the experts who had worked with the prisoner throughout the years of his incarceration, a special psychological expert report obtained by the Commission, and an assessment, based on a variety of methods, of the risk of re ‑ offending. All of those showed that that prisoner was particularly different from other lifers and other prisoners serving long terms of imprisonment. His criminal proclivities had given place to the display of attitudes and behaviour of compassion towards other prisoners and re ‑ consideration of his offences. The offender’s profile showed a successful correctional process – which was rare even for persons convicted of similar offences and sentenced to terms of imprisonment that were much shorter than the amount of time that the prisoner had already served. These factors placed him outside the scope of application of Article 38 § 1 of the Criminal Code 1968 (see paragraph 47 above). 67 .     The Commission had come to the view that the commutation of that prisoner’s sentence to life imprisonment with commutation would serve the aims of punishment and would not lessen the moral condemnation of his acts. A pardon would not be tantamount to forgiveness of his criminal past but an acknowledgement of his efforts to distance himself from that past. It would also demonstrate to all other persons sentenced to life imprisonment without commutation that they would be able to improve their situation, because their efforts would be recognised by society, which continued to consider them as members. Lastly, the commutation of life imprisonment without commutation to life imprisonment with commutation did not give rise to a risk of re ‑ offending. 68 .     The Commission had proposed to the Vice ‑ President to commute the prisoner’s sentence on 20 December 2012, and the Vice ‑ President had agreed with the proposal and had done so by decree of 21 January 2013. 3.     The prison regime of prisoners serving a life sentence (a)     Under the Execution of Punishments Act 1969 69 .     Until June 2009 the regime of life prisoners was governed by sections 127a ‑ 127e of the Execution of Punishments Act 1969 ( Закон за изпълнение на наказанията – “the 1969 Act”), added in 1995, when life imprisonment was introduced as a form of punishment (see paragraph 44 above), as well as by the regulations for the implementation of the Act. Following its amendment with effect from June 2002, the 1969 Act expressly provided for prisoners sentenced to life imprisonment without commutation to be placed under the same prison regime as those serving an ordinary life sentence. 70 .     Section 127b(1) provided that when imposing a life sentence the court had to order the prisoner’s placement under the strictest regime, the so ‑ called “special regime”. Prisoners placed under that regime were to be kept in locked single cells and subjected to heightened security and supervision (regulation 56(1) of the implementing regulations). 71 .     Section 127b(2) provided that, if they were of good conduct, after five years life prisoners could be placed under a lighter regime. The time spent in pre ‑ trial detention did not form part of that period (regulation   167(2) of the implementing regulations). The decision to place a life prisoner under a lighter regime was taken by a commission consisting of prison staff and various other officials (section 17). Under section 58, the commission’s decisions could be challenged by the Minister of Justice. Once under a lighter regime, life prisoners could, under certain conditions, be placed with the general prison population (section 127b(4)). (b)     Under the Execution of Punishments and Pre ‑ Trial Detention Act 2009 72 .     In June 2009 and February 2010 the 1969 Act and the regulations for its implementation were superseded by, respectively, the Execution of Punishments and Pre ‑ Trial Detention Act 2009 ( Закон за изпълнение на наказанията и задържането под стража – “the 2009 Act”) and the regulations for its implementation, issued on 2 February 2010. 73 .     Section 61(1) of the 2009 Act provides that when sentencing a convict to life imprisonment with or without commutation the court must order that he or she be placed under the “special regime” (the three regimes applicable in prisons are the “special regime”, the “severe regime” and the “general regime” – section 65(2)). By section 71(2), persons placed under the “special regime” must be kept in constantly locked cells and be under heightened supervision. Section 71(3), which was inserted in December 2012 and came into effect on 1 January 2013, provides that persons sentenced to life imprisonment with or without commutation and placed under the “severe regime” are likewise to be kept in constantly locked cells and be placed under heightened supervision unless it is possible, having regard to the requirements of section 198(2), to place them with the general prison population. According to the explanatory note to the draft bill laid before Parliament, this new provision was necessary to fend off legal challenges brought by lifers to their being kept constantly under lock and key even though their regime had been changed from “special” to “severe” (see paragraphs   85 ‑ 89 below). 74 .     Sections 197 ‑ 199 specifically deal with the regime of life prisoners with or without commutation. 75 .     Section 197(1) provides that those punishments are to be served in purpose ‑ built prisons or, failing such prisons, in separate units of other prisons. Section 197(2) provides that in the absence of special provisions applicable to the regime of life prisoners, the provisions governing other forms of imprisonment apply to them as well. 76 .     Section 198(1) provides that a life prisoner may be placed under a more lenient regime if he or she has shown good behaviour and has served not less than five years of his or her sentence. Section 198(2) provides that life prisoners may be placed with the general prison population and take part in common work, training, educational activities, sport, or other activities by decision of the Execution of Sentences Commission on the basis of a personality assessment, provided that they have already been placed under the “severe regime”. That commission consists of the prison’s governor, a member of a supervisory board, the prison’s deputy governor in charge of security, the head of the prison’s social and educational department, and the prison’s psychologist (section 73(1)). It deliberates at least twice a month (regulation 55(1) of the Act’s implementing regulations). 77 .     Section 199(1) provides that life prisoners cannot be placed under the “general regime” and cannot be given awards that cannot be used inside the prison. Section 199(2) provides that persons sentenced to life imprisonment with commutation whose sentence has been commuted by a court to a fixed term of imprisonment (see paragraph 51 above), may be transferred from prison to an open penitentiary facility, where they may be placed under the “general regime” or the “light regime” (which is available only in open penitentiary facilities – section 65(3)). 78 .     The regime of life prisoners is, in addition, governed by regulations   213 ‑ 220 of the implementing regulations of the 2009 Act. The regulations in respect of prisoners serving a sentence of life imprisonment without commutation are the same as for those serving a sentence of life imprisonment with commutation (regulation 220). 79 .     Regulation 213 provides that life prisoners are to be kept in purpose ‑ built prisons or separate high ‑ security units in other prisons. It also provides that life prisoners are to be kept in constantly locked cells under heightened supervision, and can take part in communal activities only with other prisoners of the same category. 80 .     Regulation 214 provides that life prisoners have to be kept isolated from other prisoners also during transfers, medical treatment, visits, open air activities or other occasions when they leave their cells. 81 .     Regulation 216(1) provides that life prisoners may work in their cells or in purpose ‑ built workstations, if available. Records have to be kept of their work days (regulation 216(2)). 82 .   Regulation 217, which echoes section 198(2) of the Act (see paragraph 76 above), provides that life prisoners may be placed with the general prison population and take part in common work, training, educational activities, sport, or other activities by decision of the Execution of Sentences Commission on the basis of a personality assessment, provided that they have already been placed under the “severe regime”. 83 .   Regulation 218, which echoes section 198(1) of the Act (see paragraph 76 above), provides that a life prisoner may be placed under a more lenient regime if he or she has shown good behaviour and has served not less than five years of his or her sentence (periods of pre ‑ trial detention do not count). 84 .     Regulation 219(1), which echoes section 197(1) of the Act (see paragraph 75 above), provides that for a period of five years after their sentence has become final, life prisoners may be placed in special units of existing prisons or in a purpose ‑ built prison, set by the Minister of Justice. During that period, a special team is in charge of the prisoner (regulation   219(2)). After the expiry of the period, and following an overall assessment of the prisoner, he or she may be placed in another prison and under different conditions (regulation 219(3)). (c)     The legal challenge to the 2009 Act’s implementing regulations 85 .     In 2010 two life prisoners brought a legal challenge to regulations   213, 214 and 219 of the implementing Regulations of the 2009 Act. They argued that they ran counter to the provisions of the Act. 86 .     In a judgment of 28 March 2011 (реш. № 4373 от 28 март 2011 г. по адм. д. № 10758/2010 г., ВАС, І о.) a three ‑ member panel of the Supreme Administrative Court upheld the challenge. It found that the Minister of Justice had failed to follow the proper procedure for issuing the regulations. In particular, he had not published the draft regulations on the Ministry’s website with a view to making them available to the public and obtaining comments, as required under section 26(2) of the Normative Acts Act 1973. This had been a serious omission. The panel went on to find that regulation 213, in as much as it required that life prisoners be kept constantly under lock and key, ran counter to section 197(1) of the 2009 Act (see paragraphs 75 and 79 above), because it laid down a requirement that did not flow from the text of the statute, which was impermissible for an implementing regulation; such a regulation could only particularise the manner of application of requirements flowing from the text of the statute. Regulation 213 could not be regarded as based on any other section of the 2009 Act either. The remaining part of regulation 213, as well as regulations   214 and 219 (see paragraphs 79, 80 and 84 above), were not contrary to the provisions of the 2009 Act. 87 .     On an appeal by the Minister, in a final judgment of 14 September 2011 (реш. № 11411 от 14 септември 2011 г. по адм. д. № 6341/2011 г., ВАС, петчл. с ‑ в) a five ‑ member panel of the Supreme Administrative Court overturned the three ‑ member panel’s judgment. It held that the failure to publish the draft regulations on the Ministry’s website had not amounted to a material breach of the rules of procedure. It went on to state that regulation 213 did not run counter to the provisions of the 2009 Act – it could be regarded as based on section 197(1) read in conjunction with section 71(1) of the Act (see paragraph 73 above) – the latter applied to all prisoners placed under the “special regime” and required that they be kept in separate and constantly locked cells. 88 .     Two judges dissented, saying that the failure of the Ministry to publish the draft regulations on its website had indeed been a serious omission and had vitiated the process of adoption of the regulations. 89 .     As a result of the dismissal of that legal challenge, two claims for damages brought by the same life prisoners under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 90 below) and based on the suffering allegedly endured as a result of their impoverished regime were rejected by the Supreme Administrative Court as inadmissible (опр. № 3355 от 7 март 2012 г. по адм. д. № 3154/2012 г., ВАС, петчл. с ‑ в; опр. № 5065 от 6 април 2012 г. по адм. д. № 14339/2011 г., ВАС, петчл. с ‑ в). The court held that those claims could only be pursued if the statutory instrument against which they were directed had been set aside in prior proceedings, which was not the case. 4.     The State and Municipalities Liability for Damage Act 1988 90 .     Section 1(1) of State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”) provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with administrative action. By Article 204 § 1 of the Code of Administrative Procedure, such a claim can be brought only if the administrative decision (or statutory instrument, as the case may be) has been duly set aside. If the claim relates to an unlawful action or omission, the unlawfulness may be established by the court hearing the claim (Article 204 § 4). 91 .     Since 2003 the Bulgarian courts have started to award compensation under this provision to persons claiming to have suffered non-pecuniary damage as a result of poor material conditions of detention (see the domestic cases cited in Hristov v. Bulgaria (dec.), no. 36794/03, 18 March 2008; Kirilov v. Bulgaria , no. 15158/02, §§ 43 ‑ 48, 22 May 2008; Shishmanov v. Bulgaria , no 37449/02, §§ 58 ‑ 62, 8 January 2009; Titovi v.   Bulgaria , no. 3475/03, § 34, 25 June 2009; Simeonov v. Bulgaria , no.   30122/03, §§ 43 ‑ 47, 28 January 2010; Georgiev v. Bulgaria (dec.), no.   27241/02, 18 May 2010; Iliev and Others v. Bulgaria , nos. 4473/02 and 34138/04, 10 February 2011; and Radkov v. Bulgaria (no. 2) , no. 18382/05, 10 February 2011). 92.     The courts have dealt with a number of claims brought by life prisoners under section 1(1) of the 1988 Act. 93 .     In a final judgment of 5 March 2009 (реш. № 1466 от 5 март 2009   г. по гр. д. № 6339/2007, ВКС, V г. о.) the Supreme Court of Cassation upheld an award of BGN 1,000 (EUR 511.29) to a life prisoner in relation to the lack of sanitary facilities in his cell and the consequent need to use a bucket for sanitary purposes between November 2000 and November 2005. In a judgment of 11 July 2012 (реш. № 10166 от 11 юли 2012 г. по адм. д. № 15508/2011 г., ВАС, ІІІ о.) the Supreme Administrative Court [1] awarded the same amounts to each of two lifers placed under the “special regime”, in respect of the non ‑ pecuniary damage suffered by them as a result of having to relieve themselves in plastic buckets due to the lack of sanitary facilities in their cells between mid ‑ April 2006 and March 2008, when they had been moved to cells containing such facilities. The court relied on this Court’s judgments in Iovchev v. Bulgaria (no. 41211/98, 2 February 2006), Radkov (no. 2) (cited above) and Shahanov v. Bulgaria (no. 16391/05, 10 January 2012), and held that that had constituted treatment contrary to Article 3 of the Convention and therefore sounded in damages under section 1(1) of the 1988 Act. 94 .     However, in another case (реш. № 67 от 6 март 2012 г., адм. д. №   393/2010 г., АСК) the Kyustendil Administrative Court refused to award damages for the use of shackles during the transportation of a life prisoner. To find that that had not been unlawful, it had regard, inter alia , to the “special regime” applicable to life prisoners, and the requirement, flowing from that regime, to isolate such prisoners even during transfers, and to subject them to heightened supervision. The judgment was upheld by the Supreme Administrative Court. 95 .     Similarly, in a final judgment of 23 February 2009 (реш. № 82 от 23   февруари 2009 г. по гр. д. № 6452/2007 г., ВКС, III г. о.) the Supreme Court of Cassation dismissed a claim for damages brought by a life prisoner in relation to the failure of the prison administration to allow him to engage in work, educational and cultural activities and sport together with other inmates. The court held that the “special regime” applicable to life prisoners and the requirement of that regime that they be isolated from the general prison population made such activities impossible. It went on to say that the claimant had been able to engage in individual educational activities. 96 .     In a final judgment of 14 January 2010 (реш. № 568 от 14 януари 2010 г. по адм. д. № 4934/2009 г., ВАС, III о.) the Supreme Administrative Court dismissed a claim for damages brought b