CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 20 avril 2021

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BULGARIA (Application no. 63254/16)             JUDGMENT   STRASBOURG 20 April 2021   This judgment is final but it may be subject to editorial revision. In the case of Iliev v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Tim Eicke, President,   Faris Vehabović,   Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr   Asen Dimov Iliev (“the applicant”), on 31 October 2016; the decision to give notice of the application to the Bulgarian Government (“the Government”); the parties’ observations; Having deliberated in private on 23 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns a complaint under Articles 3 and 13 of the Convention. The applicant is a prisoner serving a life sentence under the “special regime”. He complained of having been continually held in almost complete isolation, in the absence of purposeful activities for physical and mental stimulation and in poor material conditions, without there being an effective remedy in this connection. THE FACTS 2.     The applicant was born in 1961 and is detained in Pazardhzik. He was represented by Mr V.S. Stoyanov, a lawyer practising in Pazardzhik. 3.     The Government were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant started serving a sentence in Pazardzhik Prison on 20   December 1997. He was sentenced to life imprisonment in 2000 and was placed under the “special regime” in 2001. In 2009 his regime was changed to the lighter “severe regime”. On 20 May 2016 he was moved to Stara Zagora Prison. 6.     The parties disputed the conditions in which he had been detained in Pazardzhik Prison. According to the applicant, he was held in overcrowded cells, without a toilet or running water, and could not participate in sports, study, work or any other purposeful activities. According to the Government, the applicant was accommodated in an individual cell measuring about 7 sq.m., with good ventilation. He did not have sanitary facilities in the cell but was given regular access to a toilet. 7.     The applicant brought a claim for damages in the Pazardzhik Administrative Court in 2016 in relation to the conditions in which he had been held in Pazardzhik Prison. The court dismissed his claim in November 2016. Upon an appeal by the applicant, on 23 March 2018 the Supreme Administrative Court (“the SAC”) quashed that decision and remitted the case to the lower court for a new examination. In particular, the SAC found that the lower court had not dealt sufficiently, or sufficiently clearly, with the applicant’s specific complaints about the lack of a toilet and running water in his cell for the whole duration of his detention in Pazardzhik Prison, or with his complaints concerning the lack of educational activities and time permitted outdoors. 8 .     On 18 October 2018 the Pazardzhik Administrative Court dismissed the applicant’s claim, having examined it in the manner laid down in section   284 of the 2009 Act. The court assessed the conditions of the applicant’s detention in Pazardzhik Prison between 20   December 1997 and 20 May 2016 and found that they had been decent. In particular, he had been placed in an individual cell measuring 6.7 sq. m., so there had been no overcrowding. While there had been no toilet in his cell, three times a day he could use the communal sanitary facilities, where running hot and cold water had also been permanently available. He had been using two buckets in his cell, but it had not been established unequivocally that one of them had served as a toilet. Furthermore, as someone placed under the “severe regime”, the applicant had been entitled to be included in group activities with other inmates. 9 .     He had not made a specific complaint that his rights to rehabilitation had been violated, but had instead referred in a general manner to the type of rights he had under the relevant law. Moreover, he had been invited to take part in various activities but had refused to do so. He had also been provided with adequate medical care, had been allowed additional time outdoors, and had been given meals for his specific dietary needs. The court observed that the applicant had specified, upon the court’s request, that his claim for damages concerned the period between 20 December 1997 and 1   January 2019. However, given that he had been held in Stara Zagora Prison as of 20 May 2016 and that he had explicitly clarified before the court that his claim for damages did not concern Stara Zagora Prison, his claim related to the period spent in that prison was without merit. 10 .     The applicant challenged the judgment before the SAC, which upheld the lower court’s findings in a final judgment of 21 May 2019. 11 .     According to the latest information provided by the authorities, on 29 March 2017 the prison governor issued an order under section 198(4) of the 2009 Act, placing the applicant in the shared areas of the prison where he has the right to take part in all activities with the other detainees. He was also enrolled in the school at Stara Zagora Prison. In September 2017 he started working in a furniture workshop but had to stop for medical reasons. The prison administration actively works with him in order to ensure his inclusion in correctional and rehabilitation activities. RELEVANT LEGAL FRAMEWORK AND PRACTICE 12.     The relevant domestic law in force before amendments in 2017 to the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”) is set out in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and   61199/12, §§ 108-129 and 136, ECHR 2014 (extracts)). 13.     The relevant domestic law in force after the 2017 amendments to the 2009 Act is set out in Dimitar Angelov v. Bulgaria (no. 58400/16, §§ 26-37, 21 July 2020). THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 14.     The applicant complained under Article 3 of the Convention that he had been continually serving his life sentence in inhuman and degrading conditions, because of his prolonged isolation and lack of purposeful activities for physical and mental stimulation and inadequate material conditions. 15.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 16.     The Government argued that the applicant had only complained of the material conditions of his detention in Pazardzhik Prison before the domestic courts. Furthermore, if he considered that he continued to be held in inadequate conditions in prison, the applicant should have attempted to use the preventive remedy available to him since the first half of 2017 in order to seek immediate relief. 17.     In respect of his complaint about the inadequate material conditions of his detention in Pazardzhik Prison up to 20 May 2016, the Government stated that it was manifestly ill-founded. In particular, as could be seen from the domestic judgments, he had been held in decent conditions corresponding to the requirements of Article 3 of the Convention. 18.     In any event, the applicant has been meeting with a social worker and was given work in prison. Since March 2017 he has been accommodated together with other inmates and included in common activities (see paragraph 11 above) and has had plenty of opportunities to take part in cultural, religious and other social activities. Complaint about isolation and the absence of purposeful activities in detention Admissibility 19.     The Court observes that the domestic courts concluded that the applicant had not made before them a proper complaint about the absence of purposeful activities in detention (see paragraphs 8 and 10 above). He had enumerated his rights under the different relevant provisions of domestic law, but had not claimed that he had been personally and negatively affected by the lack of purposeful activities in detention. The applicant did not argue otherwise or elaborate further on this point in his submissions to the Court. 20.     In the circumstances, the Court finds that the applicant did not make, domestically, a specific complaint concerning his isolation and the lack of purposeful activities offered to him in detention, in particular in his claim for damages for past periods. Claims for damages in relation to inadequate conditions of detention, lodged before the 2017 amendments of the 2009 Act had entered into force, were examined in the manner laid down in the new compensatory remedy under the 2009 Act (see Dimitar Angelov , cited above, § 37; see also paragraph 8 above). Thus, it cannot be said that a claim for damages in connection with a related complaint would have faced no prospect of success. 21.     The Court further observes that, if the applicant considered that he continued to be held in inhuman and degrading conditions of detention, he failed to use the general preventive remedy at any point in time after it entered into force in May 2017. 22 .     Accordingly, and in view of its findings in Dimitar Angelov (cited above, § 68) that there were available effective domestic remedies in respect of the applicant’s complaint related to isolation and absence of purposeful activities in detention, the Court finds that his related complaint to the Court must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies. Complaint about inadequate material conditions of detention Admissibility 23.     To the extent that it can be understood that the applicant’s complaint before the Court concerns the period after 20 May 2016, when he was moved to Stara Zagora Prison where he continued serving his sentence, it does not appear that the applicant complained domestically about this (see paragraph 9 above). Accordingly, the Court finds that the complaint in relation to the material conditions of detention during that period is inadmissible and must be rejected under Article   35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 24.     The Court finds that the applicant’s complaint in relation to the conditions of detention in Pazardzhik Prison is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 25.     The Court notes that the applicant did not have a toilet and running water in his cell in Pazardzhik Prison and that access to the communal sanitary facilities was provided to him three times a day in accordance with a rota (see paragraph 8 above). This was the situation in respect of the period between 20 December 1997 and 20 May 2016. The Court has consistently criticised the use of buckets in the absence of in-cell toilet facilities (see, among many others, Radev v. Bulgaria , no.   37994/09, § 43 with further reference, 17 November 2015). It has also held that, despite being accommodated alone in a cell, subjecting a detainee to the inconvenience of having to relieve himself in a bucket cannot be deemed warranted, except in specific situations where allowing visits to the sanitary facilities would pose actual and serious security risks (see Malechkov v.   Bulgaria , no. 57830/00, § 140, with further references, 28   June 2007). No such risks were pointed out by the Government. Nor did they demonstrate to the Court that the applicant had been able to leave his cell every time he needed to use the toilet and the sink in the common sanitary facilities. In the circumstances, the Court cannot but conclude that the applicant had to resort to the buckets in his room when he needed to answer the call of nature, save for the three times a day when he was allowed to use the toilet outside his cell (compare with Halil Adem Hasan v. Bulgaria , no. 4374/05, § 56, 10   March 2015). 26.     The Court finds that the above is sufficient for it to hold that there has been a violation of Article 3 of the Convention on account of the lack of unrestricted access to sanitary facilities available to the applicant in Pazardzhik Prison between 20 December 1997 and 20 May 2016. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 27.     In respect of his complaint that he did not have an effective domestic remedy in relation to his complaint under Article 3 of the Convention, the applicant relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 28.     The Court already found that there existed domestic remedies which were effective for the purposes of Article 35 § 1 of the Convention (see paragraph 22 above). In view of the close link between that provision and Article 13, this finding is equally valid in the context of this complaint (compare with Dimitar Angelov , cited above, § 81 with further reference). 29.     Furthermore, the Court’s conclusion above of a violation of Article 3 of the Convention does not affect its findings under the admissibility part, namely that the remedies available to the applicant were effective in principle. The reason for this is that the right to an effective remedy is not to be interpreted as a right to a favourable outcome for the person using it and that the mere fact that the applicant was unsuccessful at the domestic level does not in itself call into question the effectiveness of the remedies. 30.     It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 31.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 32.     The applicant claimed EUR 30,000 in respect of non-pecuniary damage. 33.     The Government submitted that the claim was exorbitant. 34.     The Court considers, with regard to the breach of Article 3 of the Convention relating to the material conditions of his detention, that he must have sustained non-pecuniary damage as a result of the violation of his rights under that provision. Having regard to the length of the period concerned and to its settled case ‑ law (see, in particular, Muršić v. Croatia [GC], no. 7334/13, § 181, 20 October 2016), the Court considers it reasonable to award the applicant EUR 7,500, plus any tax that may be chargeable on that amount. Costs and expenses 35.     The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court, in particular for legal fees for the proceedings before the Court. 36.     The Government pointed out that he had not submitted a contract for legal representation, only a time sheet. In addition, this sum had not actually been paid by the applicant to his legal representative. 37.     According to the Court’s settled case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Dimitar Angelov , cited above, § 89 with further reference). A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them. The fees payable to a representative under a conditional fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (ibid.). 38.     In the present case the applicant did not submit a contract for legal representation or any document showing that he was under a legal obligation to pay the fees. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him. 39.     Accordingly, the Court rejects the claim for costs and expenses in its entirety.   Default interest 40.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaint under Article 3 of the Convention regarding inadequate material conditions of the applicant’s detention in Pazardzhik Prison between 20 December 1997 and 20 May 2016 admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 3 of the Convention on account of the lack of unrestricted access to sanitary facilities available to the applicant in Pazardzhik Prison between 20   December 1997 and 20   May 2016; Holds (a)   that the respondent State is to pay the applicant, within three months, the following amount, to be converted into Bulgarian levs at the rate applicable at the date of settlement: EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 April 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Ilse Freiwirth   Tim Eicke Deputy Registrar   President