31820/18;31826/18

FIFTH SECTION CASE OF YORDANOV AND DZHELEBOV v. BULGARIA (Applications nos. 31820/18 and 31826/18)             JUDGMENT               STRASBOURG 4 June 2020   This judgment is final but it may be subject to editorial revision. In the case of Yordanov and Dzhelebov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Gabriele Kucsko-Stadlmayer, President,  Mārtiņš Mits,  Lәtif Hüseynov, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 14 May 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in two applications against Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.  The applicants were represented by Mr V. Stoyanov, a lawyer practising in Pazardzhik. 3.  The Bulgarian Government (“the Government”) were given notice of the applications. THE FACTS 4.  The list of applicants and the relevant details of the applications are set out in the appended table. 5.  The applicants complained under Articles 3 and 13 of the Convention of the allegedly inadequate conditions of their detention and of the alleged lack of an effective domestic remedy in that respect. THE LAW JOINDER OF THE APPLICATIONS 6.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 7.  The applicants complained of the allegedly inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 8.  The Court notes that the applicants were detained in poor conditions. The details of their detention are set out in the appended table. The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96-101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122-41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149-59, 10 January 2012). 9.  In its pilot judgment in the case of Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, 27 January 2015, the Court already found a violation in respect of issues similar to those in the present case. 10.  Having examined all the material submitted to it, the Court finds no fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the complaints at issue in the present case. Having regard to its case-law on the subject, it considers that in the instant case the applicants’ conditions of detention were inadequate. 11.  These complaints are therefore admissible and disclose a breach of Articles 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 12.  The applicants also complained of the alleged lack of an effective remedy in respect of their complaints under Article 3 of the Convention. They relied on Article 13 of the Convention, which reads as follows: Article 13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...” 13.  In its admissibility decision in the case of Atanasov and Apostolov v. Bulgaria ((dec.), nos. 65540/16 and 22368/17, § 28, 27 June 2017), the Court found that the new preventive and compensatory remedies under the Execution of Punishments and Pre-Trial Detention Act 2009 (“the 2009 Act”), put in place in early 2017 in response to the Court’s pilot judgment in Neshkov and Others (cited above) constitute effective domestic remedies in respect of complaints under Article 3 of the Convention relating to inhuman or degrading conditions of detention of persons serving a sentence of imprisonment or placed in pre-trial detention. 14.  Both applicants in the present case brought claims for damages in relation to the poor conditions of their detention which were still pending at the time of the introduction of the new compensatory remedy under the new section 284 of the 2009 Act on 7 February 2017. By paragraph 49 of the transitional and concluding provisions of the Act amending the 2009 Act, pending claims for damages in relation to poor conditions of detention – which were previously examined under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”) – were to be dealt with in the manner laid down by section 284(1) of the amended 2009 Act (see Atanasov and Apostolov, cited above, § 28). 15.  As a result, the claims brought by the applicants in the present case were examined, at least on appeal, before the Supreme Administrative Court, in line with the requirements of the new compensatory remedy (see Atanasov and Apostolov, cited above, §§ 58-65). Both applicants were also awarded damages. The mere fact that the compensation awarded to an applicant following the use of an otherwise effective compensatory remedy is too low does not in itself call into question the effectiveness of that remedy (see, mutatis mutandis, Delle Cave and Corrado v. Italy, no. 14626/03, §§ 43 and 45, 5 June 2007, and Simaldone v. Italy, no. 22644/03, § 71, 31 March 2009). It follows therefore that the applicants had at their disposal an effective remedy with respect to the conditions of their detention. 16.  Accordingly, these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.  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.” 18.  Having regard to the documents in its possession and its settled case‑law (see, in particular, Muršić, cited above, § 181) the Court considers it reasonable to award the sums indicated in the appended table. 19.  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, Decides to join the applications; Declares the complaints under Article 3 of the Convention concerning the inadequate conditions of the applicants’ detention, as set out in the appended table, admissible, and the remainder of the applications inadmissible; Holds that these complaints disclose a breach of Article 3 of the Convention; Holds (a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table for non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that the respondent State is to pay directly to the applicants’ representative the amounts set out in the appended table in respect of costs and expenses; (c)  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. Done in English, and notified in writing on 4 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Liv Tigerstedt Gabriele Kucsko-Stadlmayer Acting Deputy Registrar President APPENDIX List of applications raising complaints under Article 3 and Article 13 of the Convention (inadequate conditions of detention and lack of any effective remedy in domestic law) No. Application no. Date of introduction Applicant’s name Date of birth   Representative’s name and location Facility start and end date Duration Specific grievances Domestic award (in euros) Amount awarded for non-pecuniary damage per applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2]     31820/18 28/06/2018 Yordan Georgiev YORDANOV 09/02/1971 Valeri Stoyanov STOYANOV Pazardzhik Pazardzhik Detention Facility 06/11/2012 to 13/12/2012 1 months and 8 days             Pazardzhik Detention Facility 27/08/2015 to 06/11/2015 2 month(s) and 11 day(s) Lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, passive smoking, no or restricted access to running water, no or restricted access to toilet, poor quality of food, lack or insufficient quantity of food, overcrowding, the applicant had to use a bucket or a plastic bottle to relieve his needs.   Lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air, passive smoking, overcrowding, no or restricted access to running water, no or restricted access to toilet, poor quality of food, lack or insufficient quantity of food, the applicant had to use a bucket or a plastic bottle to relieve his needs.   116 euros (EUR) (200 Bulgarian levs (BGN), plus BGN 27 in interest, calculated until 30/03/2018 when the Supreme Administrative Court gave its final judgment). 2,000     31826/18 28/06/2018 Georgi Yankov DZHELEBOV 31/08/1991 Valeri Stoyanov STOYANOV Pazardzhik Stara Zagora Prison 15/04/2015 to 21/05/2015 1 month and 7 days   Pazardzhik Prison 22/05/2015 to 07/12/2015 6 months and 16 days   Pazardzhik Prison 29/07/2016 to 17/09/2016 1 month and 20 days Overcrowding, no or restricted access to toilet, mouldy or dirty cell, infestation of cell with insects/rodents.     Overcrowding.           On two occasions the applicant was placed in an isolation cell to serve a disciplinary punishment (29/07 – 02/08/2016 and 10/08 – 24/08/2016). He had to eat in the cell and use a bucket to relieve his needs, overcrowding, no or restricted access to toilet, no or restricted access to running water, mouldy or dirty cell.   EUR 266 (BGN 450, plus BGN 71 in interest, calculated until 27/03/2018 when the Supreme Administrative Court gave its final judgment). 4,100   [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.