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Case of Shahanov and Palfreeman v. Bulgaria
Case of Shahanov and Palfreeman v. Bulgaria
JUDGMENT
STRASBOURG
21 July 2016
FINAL
21/10/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT 1
PROCEDURE
1. The case originated in two applications (nos. 35365/12 and 69125/12)
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 Nikolay Ivanov
Shahanov, and an Australian national, Mr Jock Palfreeman (“the
applicants”), on 1 June and 3 October 2012 respectively.
2. Mr Shahanov was represented by Ms S. Stefanova and
Mr M. Ekimdzhiev, lawyers practising in Plovdiv. Mr Palfreeman was
represented by Mr K. Kanev, chairman of the Bulgarian Helsinki
Committee, a non-governmental organisation based in Sofia. The Bulgarian
Government (“the Government”) were represented by their Agents,
Ms L. Gyurova and Mr V. Obretenov, of the Ministry of Justice.
3. The applicants alleged, in particular, that disciplinary punishments
imposed on them by the prison authorities in response to complaints that
they had made in relation to prison officers had unjustifiably interfered with
the exercise of their right to freedom of expression. Mr Shahanov also
alleged that the prison authorities routinely opened and read his
correspondence.
4. On 25 November 2013 the Government were given notice of the
complaints concerning the interferences with the applicants’ right to
freedom of expression and the complaint concerning the alleged monitoring
of Mr Shahanov’s correspondence. The remainder of the two applications
was declared inadmissible under Rule 54 § 3 of the Rules of Court.
5. Mr Yonko Grozev, the judge elected in respect of Bulgaria, withdrew
from sitting in the two cases. Accordingly, the President of the Section
2 SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT
THE FACTS
22. Article 45 of the Constitution of 1991 provides that the citizens have
the right to make complaints, proposals and petitions to the authorities.
SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT 5
25. Section 90(5) (at the relevant time; now, following an amendment
that came into force on 1 January 2013, section 90(6)) of the Execution of
Sentences and Pre-Trial Detention Act 2009 provided that prisoners could
not bear disciplinary liability for making requests or complaints.
26. In April 2014 the head of the Chief Directorate for the Execution of
Sentences relied on that provision to set aside an order imposing a
disciplinary punishment on a prisoner for making a petition to the Minister
of Justice. The prisoner then brought a claim for non-pecuniary damages
under section 1(1) of the State and Municipalities Liability for Damage Act
1988 (see paragraphs 33 and 35 below) in relation to that. The claim was
dismissed by the administrative courts on the basis that even though the
order imposing the disciplinary punishment had been set aside as unlawful,
the prisoner had failed to prove that he had suffered pain, medical problems
or special humiliation as a result of it (see реш. № 114 от 31.12.2014 г. по
адм. д. № 102/2014 г., АС-Ловеч, upheld by реш. № 428 от 14.01.2016 г.
по адм. д. № 2026/2015 г., ВАС, III о.).
27. By section 100(2)(7) of the 2009 Act, as in force between June 2009
and the end of 2012, it was a disciplinary offence for a prisoner to make
defamatory statements or false allegations against prison officers or other
inmates.
28. In April 2012 the Government brought before Parliament a bill for
the amendment of the 2009 Act. Paragraph 33 of the bill proposed to add, at
the end of section 100(2)(7), wording making it a disciplinary offence for a
prisoner to make threats of physical violence. When Parliament’s Legal
Affairs Committee considered the bill between its first and second reading,
it proposed to delete the text concerning defamatory statements and false
allegations, and only leave the text relating to physical violence and threats
of such violence. At the second reading of the bill on 19 December 2012,
Parliament adopted the amended proposal without any debate. The
amendments were published in the State Gazette on 28 December 2012 and
6 SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT
came into effect on 1 January 2013. Section 100(2)(7) now provides that it
is a disciplinary offence to use physical violence against fellow inmates or
prison officers, or make threats of such violence.
29. By section 101 of the 2009 Act, the disciplinary punishments that
can be imposed on prisoners, then as now, are: (a) written reprimand;
(b) extra duties in maintaining cleanliness and hygiene for up to seven days;
(c) cancellation of a reward (such as extra visiting time or home leave) that
has not been used; (d) prohibition to take part in collective events;
(e) deprivation of the right to receive food parcels for up to three months;
(f) deprivation of home leave for up to three months; (g) confinement to a
disciplinary cell for an uninterrupted period of up to fourteen days; and
(h) confinement to a disciplinary cell during work-free or education-free
hours or work-free days or holidays, for a total period of up to fourteen
days.
30. By section 110(1) of the 2009 Act, all orders whereby prison
governors impose disciplinary punishments on prisoners are amenable to
appeal before the head of the Chief Directorate for the Execution of
Sentences. Appeals do not have automatic suspensive effect, but the head of
the Directorate may stay the execution of the punishment (section 110(2)).
31. The courts have consistently held that, even though the Act does not
contain a clause expressly excluding judicial review, neither the order
imposing a disciplinary punishment nor the decision of the head of the
Directorate to uphold that order are subject to such review (see, among
other authorities, опр. № 2558 от 25.11.2010 г. по н. а. х. д. № 6300/2010
г., РС-Варна; опр. № 3744 от 20.08.2012 г. по адм. д. № 7633/2012 г.,
АС-София, upheld by опр. № 992 от 22.01.2013 г. по адм. д. №
12518/2012 г., ВАС, V о.; опр. № 342 от 21.01.2015 г. по адм. д. №
5247/2014 г., АС-София; and опр. № 3401 от 23.06.2015 г. по адм. д. №
5604/2015 г., АС-София).
32. By section 111(1) of the Act, orders imposing solitary confinement
are subject to review by the territorially competent district court. An
amendment to section 111(4) that came into force in the beginning of 2013
made it clear that claims for judicial review do not have automatic
suspensive effect, a point which had previously been unclear. The court may
however stay the execution of the punishment (section 111(4), as in force
since 1 January 2013). The court’s decision is final (section 111(4), as
worded before the end of 2012, and new section 111(5), in force since
1 January 2013).
SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT 7
33. Section 1(1) of the State and Municipalities Liability for Damage
Act 1988 provides that the State is liable for damage suffered by individuals
or legal persons as a result of unlawful decisions, acts 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 2006, a
claim relating to damage allegedly caused by an unlawful decision can only
be made if that decision has been duly set aside. Article 204 § 4 of the Code
provides that if the claim relates to an unlawful act or omission, its
unlawfulness may be established, as a preliminary point, by the court
hearing the claim of damages.
34. In two cases in 2011 and 2014, joint panels of the Supreme
Administrative Court and the Supreme Court of Cassation held that claims
for damages by prisoners with respect to disciplinary punishments fell to be
examined by the civil courts under the general law of tort rather than by the
administrative courts under section 1(1) of the 1988 Act (see опр. № 96 от
02.12.2011 г. по адм. д. № 82/2011 г., ВКС и ВАС, см. петчл. с-в, and
опр. № 1 от 08.01.2014 г. по ч. гр. д. № 39/2013 г., ВКС и ВАС,
см. петчл. с-в). However, in a binding interpretative decision of 19 May
2015, the Plenaries of the Civil Chambers of the Supreme Court of
Cassation and the First and Second Sections of the Supreme Administrative
Court, sitting jointly, held, inter alia, that all claims for damages relating to
actions, omissions or decisions of the prison authorities were under the
jurisdiction of the administrative courts and fell to be examined under
section 1(1) of the 1988 Act (see тълк. пост. № 2/2015 г. от 19.05.2015 г.,
ВКС, ГК, и ВАС, I и II К., тълк. д. № 2/2014 г., ВКС).
35. In many cases finally disposed of before or after that interpretative
decision, the administrative courts examined claims for damages by
prisoners in relation to disciplinary punishments under section 1(1) of the
1988 Act (see, among others, реш. № 114 от 31.12.2014 г. по адм. д.
№ 102/2014 г., АС-Ловеч, upheld by реш. № 428 от 14.01.2016 г. по
адм. д. № 2026/2015 г., ВАС, III о.; реш. № 7245 от 29.05.2014 г. по
адм. д. № 13900/2013 г., ВАС, III о.; and реш. № 5318 от 04.08.2014 г.
по адм. д. № 2590/2013 г., АС-София-град, upheld by реш. № 13437 от
10.12.2015 г. по адм. д. № 13556/2014 г., ВАС, III о.).
36. Those courts have consistently held that such claims can only be
allowed if the disciplinary punishment in relation to which damages are
sought has already been set aside by the competent district court or by the
Chief Directorate for the Execution of Sentences (see the decisions cited in
the previous paragraph, as well as опр. № 17175 от 19.12.2013 г. по
адм. д. № 16006/2013 г., ВАС, IV о.; реш. № 6165 от 09.05.2014 г. по
адм. д. № 13064/2013 г., ВАС, III о.; опр. № 6454 от 02.06.2015 г. по
8 SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT
F. Prisoners’ correspondence
THE LAW
A. Admissibility
43. The Government submitted that the applicants had failed to exhaust
domestic remedies. Each of them could have brought a claim for damages
under the general law of tort. Case-law of the Bulgarian courts existed
which showed that this avenue was open to prisoners who wished to
complain of disciplinary punishments.
44. Mr Shahanov submitted that the authorities could only incur liability
under the general law of tort or section 1(1) of the State and Municipalities
Liability for Damage Act 1988 in respect of acts found to be unlawful.
However, the disciplinary punishment imposed on him had had a clear legal
basis and had been upheld in a final judicial decision.
45. Mr Palfreeman likewise submitted that the liability of the authorities
could only be engaged in respect of unlawful acts, whereas his disciplinary
punishment had been found to be lawful and had been fully upheld. In any
event, deliberate acts by the authorities meant to stifle the exercise of a
prisoner’s right to freedom of expression could not be made good by the
mere award of compensation.
46. In this case, the Court does not have to decide whether, and in what
circumstances, the mere award of compensation is capable of rectifying a
breach of Article 8 or Article 10 of the Convention resulting from a
disciplinary punishment imposed on a prisoner. It is clear from the case-law
of the Bulgarian courts that claims for damages by prisoners relating to
disciplinary punishments normally and, after the interpretative decision of
19 May 2015, exclusively fall to be examined under section 1(1) of the State
and Municipalities Liability for Damage Act 1988 (see paragraphs 33-35
above). However, a prisoner is only entitled to damages under this provision
if the disciplinary punishment which he has had to suffer has been
previously set aside (see paragraph 36 above), which is not the case here.
The punishments imposed on Mr Shahanov and Mr Palfreeman were
upheld, respectively, by the Plovdiv District Court and the Chief Directorate
for the Execution of Sentences (see paragraphs 13 and 20 above, as well as
Marin Kostov v. Bulgaria, no. 13801/07, § 36, 24 July 2012).
10 SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT
B. Merits
believed his allegations to be true, and had simply meant to alert the
governor about possible wrongdoing by prison staff. He had not disrupted
prison order or smeared the reputation of specific prison officers. His
punishment had been imposed as a reprisal for his having exercised his right
to make complaints. The findings of fact in the order imposing the
punishment were demonstrably false and made after a faulty investigation.
52. Mr Palfreeman went on to submit that the punishment – deprivation
of the right to receive food parcels for three months – had been particularly
harsh in his case. He was an Australian whose family lived in Australia and
could only visit him, under very restrictive conditions, once or twice a year.
That is why food parcels provided a special link with them. These parcels
also helped him supplement the meagre diet available in Sofia Prison.
Article 10 of the Convention (see Yankov, cited above, § 141). Nor were the
statements made outside the proper channels of complaint (contrast Puzinas
v. Lithuania (no. 2), no. 63767/00, §§ 30 and 34, 9 January 2007). Their
negative impact, if any, on the officers’ reputation was thus quite limited.
Moreover, in Mr Palfreeman’s case the complaint did not mention specific
prison officers (see paragraph 16 above).
63. It is true that the applicants’ allegations were capable of having an
effect on the professional standing of the prison officers concerned, of
undermining their authority with respect to prisoners, and of taking up time
and resources. But they were made by the applicants in the exercise of the
possibility in a democratic society governed by the rule of law for a private
person to report an alleged irregularity in the conduct of a public official to
an authority competent to deal with such an issue. This possibility is one of
the precepts of the rule of law (see Zakharov, § 26; Kazakov, § 28; and
Siryk, § 42, all cited above), and serves to ensure that confidence in the
public administration is maintained. Indeed, in Bulgaria the right of citizens
to make complaints to the authorities has been enshrined as a fundamental
right in Article 45 of the Constitution (see paragraph 22 above). It is then
for the authority concerned to decide what procedural steps may be required
in response to such complaints. However, the mere fact that the applicants’
complaints led to inquiries cannot be seen as unduly impinging on the
officers’ reputation. It was precisely the purpose of those inquiries to
confirm or lay to rest the applicants’ allegations.
64. The possibility to report alleged irregularities and make complaints
against public officials takes on an added importance in the case of persons
under the control of the authorities, such as prisoners. Prisoners should be
able to avail themselves of that opportunity without having to fear that they
will suffer negative consequences for doing so (see Yankov, § 134, and
Marin Kostov, § 47, both cited above). Indeed, section 90(5) of the 2009
Act, which appears to draw its inspiration from Rule 70.4 of the 2006
European Prison Rules, seeks to prevent precisely that (see paragraphs 25
and 38 above). It is striking that the authorities which dealt with the
applicants’ legal challenges against the disciplinary punishments – the
Plovdiv District Court in Mr Shahanov’s case and the Chief Directorate for
the Execution of Punishments in Mr Palfreeman’s case – did not touch
upon, let alone substantively discuss, the question whether the disciplinary
punishments interfered with the applicants’ right to freedom of expression
and, in this respect, the right to make complaints (see, mutatis mutandis,
Marin Kostov, cited above, § 49).
65. The serious sanctions imposed on the applicants could only be
regarded as necessary in exceptional circumstances. For example, it should
be convincingly demonstrated that the persons concerned, despite being
aware that their allegations were false, proceeded to criticise the conduct of
the officials anyway. However, in the instant case, given the nature of the
14 SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT
A. Damage
C. Default interest
87. 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.
5. Holds
(a) that the respondent State is to pay the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the respondent State at the
rate applicable at the date of settlement:
(i) to Mr Shahanov, EUR 5,500 (five thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage, and EUR 1,500 (one thousand five hundred euros), plus
any tax that may be chargeable to him, in respect of costs and
expenses, this latter sum to be paid to his legal representatives;
18 SHAHANOV AND PALFREEMAN v. BULGARIA JUDGMENT