Bulgaria

1. National context

Bulgaria has a unified prison system, with all custodial establishments falling under the jurisdiction of the Chief Directorate for the Execution of Sentences, a separate administrative unit within the Ministry of Justice. The Execution of Sentences and Detention Order Act (ESDOA) consolidates the main legal provisions, regulating the system.[1] Other national sources of legislation, applicable to the execution of sentences are the Criminal Procedure Code,[2] the Criminal Code,[3] and the Regulations for the implementation of ESDOA[4].

There are two general types of correctional facilities for convicted prisoners, serving custodial sentences – prisons and correctional homes. Adults, sentenced to „deprivation of liberty”, „life imprisonment” or „life imprisonment without commutation” are detained in prisons, where male and female prisoners are kept in separate establishments. Juvenile offenders, aged 14-18, are allocated to correctional homes. Following legislative amendments in 2016, correctional homes lose their independent status and become integral parts of prisons. Out of the three existing custodial punishments, juveniles and young adult offenders, not reached 20 years at the time of committing the crime, could be sentenced to „deprivation of liberty” only. Persons on remand during criminal proceedings could also be detained in prisons. They are allocated in units, separate from the convicted prisoners.

As part of the organisational structure of each prison, the Minister of Justice could establish dormitories of open and closed type.[5] Prisons, prison dormitories of closed type and prison dormitories of open type are facilities under different security levels. There are four types of security regimes assigned to sentenced prisoners – light, general, strict and special. Prisons and closed-type prison dormitories accommodate inmates who serve sentences under special, strict and general regimes. Open-type prison dormitories accommodate inmates who serve sentences under general or light regimes.[6]

Investigative detention facilities(IDFs) are places for detention of persons on remand during criminal proceedings. IDFs are not specialised for different categories of detainees – males and females, adults and juveniles share the same IDFs but are placed in separate cells. There is an on-going process of phasing-out of IDFs and opening new units for remand prisoners within prisons. Thus, the number of IDFs in Bulgaria as of 3 June 2015 is 34, compared to 42 in 2014.

As of December 2015, the number of custodial establishments in Bulgaria, according to their type is as follows:

  • 11 prisons for adult male prisoners;
  • one prison for adult female prisoners;
  • two correctional homes for juvenile offenders (one male and one female);
  • four closed-type male dormitories;
  • 15 open-type male dormitories;
  • two open-type female dormitories;
  • two prison hospitals
  • 34 IDFs.

Unlike the convicted male inmates who are serving sentences in 11 prisons around the country, women and juveniles convicted of crimes continue to be discriminated against, in that they are forced to serve their sentences not in the vicinity of their place of residence, but in one single facility for each population. This greatly hinders visits and social contacts for those inmates whose relatives live far from the prison.

Over the last 10 years the total prison population in Bulgaria has declined – from 11,436 at the end of 2005, to 7,408 at the end of 2015. It has declined in the context of the overall decrease of the general population of the country and especially of the population aged 20-40 who are in principle most likely to be incarcerated. Out of the 7,408 prisoners at the end of December 2015, 7,120 were adult male prisoners, 246 – adult female prisoners, 42 – juvenile male prisoners; 689 of all incarcerated in prisons were remand prisons, whereas 171 were sentenced to life imprisonment. [7] As of 1 May 2015 the total number of prisoners convicted of offences against property was 56%.[8] Although in terms of absolute numbers Bulgaria is not ranked among the top incarcerators in Europe, its prison population rate is still among the highest.

As of July 2015 the overall capacity of the prison system based on 4 sq. m. per person was 8,791 places. However, the methodology used by authorities to determine prison facilities’ capacity is not publicly available. At that moment, officially, there were four overcrowded prisons, some of them handling double their capacity.

In January 2015 the European Court of Human Rights (ECtHR, the Court) adopted a pilot judgement against Bulgaria in the case of Neshkov and others v. Bulgaria.[9] The Court found that the conditions in which four of the applicants were detained had amounted to inhuman and degrading treatment, notably because of overcrowding, poor hygiene and deplorable material conditions. The ECtHR established also that there were no effective preventive or compensatory remedies available to inmates in Bulgaria, victims of inhuman and degrading treatment in prisons.

Following the pilot judgement, on 26 March 2015 the European Committee for Prevention of Torture (CPT) issued an unprecedented public statement concerning Bulgaria.[10] The Committee indicated the lack of substantial progress of the Bulgarian authorities in dealing with a number of long-standing concerns, some of them dating back to the very first periodic visit to Bulgaria in 1995.

2. Bodies in charge of prisoners’ complaints

2.1. Judicial bodies

Administrative courts

The Bulgarian administrative justice system consists of 28 administrative courts at regional level and a Supreme Administrative Court. The administrative courts have jurisdiction over all cases on motions for issuance, modification, revocation or declaration of nullity of administrative acts; remedies against unwarranted actions and omissions by the administration; compensation for detriment resulting from legally non-conforming acts, actions and omissions by administrative authorities and officials, etc. Both in theory and in practice however powers of the penitentiary authorities continue to be interpreted as a special category of powers, exercised in a legal vacuum, not necessarily bound by the principles of general administrative law and often not subject to the jurisdiction of the administrative courts. It is broadly accepted that if not stipulated otherwise in the law, the legality of the prison authorities’ acts is not subject to judicial control, but only to administrative supervision, exercised by an administrative authority higher up in the hierarchy.

In 2015 a joint panel of judges of the Supreme Administrative Court and the Supreme Court of Cassation adopted an interpretative decision, unifying the contradictory case law on disputes over jurisdiction on damages claims.[11] Section eight of the decision addressed the following question: which is the court competent to hear claims for damages for unlawful decisions, acts or omissions by prison administration in the course of implementing the sentences “deprivation of liberty” and “probation”, as well as the pre-trial detention measure – general courts or administrative courts. The joint panel of supreme judges ruled unanimously that the competent jurisdiction is the administrative court, stating clearly that the prison administration is part of the executive power and as such, its decisions and acts are administrative in nature. Nevertheless, even after the adoption of the interpretative decision, the Supreme Administrative Court continues to examine prison administration’s decisions and actions outside the scope of application of administrative law.[12] In terms of prisoners’ rights, administrative courts hear mostly claims for damages arising out of prisoners’ complaints of poor material conditions under State and Municipalities Responsibility for Damage Act 1988 (SMRDA).[13]

General courts – civil chambers

Prisoners have very limited access to civil courts. According to the ESDOA, governor’s decisions on deductions from prisoners’ monthly remuneration for damages are subject to appeal before the district court.[14] However, no case law related to this issue was identified.[15]

General courts – penal chambers

Penal chambers of general courts have a role in the implementation of the sentences. Decisions on all forms of sentence implementation which add new restrictions on the prisoner’s legal status or security regime are made by the regional court, exercising jurisdiction over the respective prison.[16] Further, the regional court is competent to decide on applications for early conditional release[17] and replacement of life imprisonment punishment with a deprivation of liberty for a definite term[18]. Third, decisions on solitary confinement for preventive purposes[19] or as a disciplinary sanction,[20] as well as decisions for confiscation of prisoners’ property made by the prison governor are appealable before the district court, exercising jurisdiction over the respective prison.[21]

Prosecutor

According to Article 127 (5) Bulgarian Constitution,[22] the prosecution office exercises control over the legality of the execution of sentences. More detailed regulation of the prosecutor’s powers in the field of execution of sentences is adopted in Article 146 Judiciary Act.[23]

Inspections to prisons may be carried out either upon the prosecutor’s initiative or as a result of complaints from prisoners, their relatives or information published in the media. Prosecutors may confer with the inmates in confidence, examine their applications and complaints, and order the administration of the respective facility to keep them informed of relevant matters. Article 146(2) of the Judiciary Act provides that public prosecutors may order the release of any person who is being detained unlawfully, give mandatory instructions for the correction of irregularities, or stay the enforcement of any unlawful decisions and seek their quashing. The prison administration is under the obligation to report to the district prosecutor on various occasions, including for each case of use of force, auxiliary means and weapon and for the imposition of preventive isolation. The district prosecutor is the competent authority to grant applications of prisoners for temporary suspension of the sentence.

2.2. Non-judicial bodies

Minister of Justice

The Minister of Justice is charged with the overall direction and control of the execution of sentences. Among its other competencies, the Minister has the power to revoke administrative acts issued by the Chief Director for the Execution of Sentences and the prison governors that are unlawful or that are formally lawful but are not in line with the purpose of the law. This power could be delegated to the deputy Minister of Justice. The Minister can act on receipt of a complaint or on his/ her own motion. In addition, the ESDOA assigns to the Minister of Justice specific competence to examine prisoners’ complaints, challenging refusals of the Chief Director for the Execution of Sentences to transfer prisoners from one prison to another under the same security category.[24] Judicial review is not expressly provided for by the law, although in theory it is possible.

Chief Director for the Execution of Sentences

Chief Directorate for the Execution of Sentences is a second level unit within the Ministry of Justice, directly responsible for the operation of the penitentiary system in Bulgaria. The Chief Director for the Execution of Sentences, who is appointed by and is accountable to the Minister of Justice, is tasked with the direct management and supervision of the penitentiary system.[25] The Chief Director is competent to review decisions of the prison governors for prisoners’ transfers within the same prison (from the main building to the closed-type prison dormitory and vis-versa), decisions for the imposition of punishments, etc.

Prison governors

Prisoners have the right to submit complaints and request to the governor and to appear before him/ her in person. The prison governor is competent to receive and examine prisoners’ complaints on any non-legal issues – material conditions, hygiene, food, access to work, education and vocational training; complaints against prison staff or other inmates. Additionally, the prison governor has specific competences, envisaged by the ESDOA, such as to impose disciplinary punishments and to grant awards to prisoners; to authorise the use of instruments of restraint and weapon; to order transfer of prisoners from the main prison building to the prison dormitory of closed type to the same prison and via-versa, etc.

Inspectorate at the Ministry of Justice

The Inspectorate at the Ministry of Justice (Inspectorate) is a unit for internal administrative control. The Inspectorate has a general mandate, without specialisation in penitentiary issues. It carries out activities related to monitoring, prevention and revealing of corruption practices, investigates signals for corruption and other violations of representatives of the Ministry of Justice, refers cases for investigation to the prosecuting authorities, proposes the initiation of disciplinary proceedings against Ministry of Justice officials. The Inspectorate makes investigations following annually approved plan or ad hoc, as well as upon individual complaints. The number of inspectors is critically low – as of November 2015, there were six inspectors.

The Inspectorate is independent form the Chief Directorate for the Execution of Sentences. However, there is no publicly known case in which the Inspectorate has revealed major dysfunction of the administration of the penitentiaries. The information, presented in the reports and the overall conclusions of the inspectors tend to be rather contradictory to the situation, described by external monitoring bodies, such as the CPT. According to prisoners interviewed, during visits, the inspecting body collects information from the prison administration only, without interviewing prisoners, even when inspections are initiated upon prisoners’ complaints. The reports following inspections to the penitentiary institutions are not published online, but could be obtained by request in accordance with the.

Supervisory boards

The supervisory boards are specialised administrative structures, vested with the powers to exercise public control over the operation of the penitentiary facilities and the execution of the sentence “deprivation of liberty”, as well as to assist the resocialisation of prisoners. Their establishment, structure and functioning are governed by the ESDOA.[26] The supervisory boards are established within the municipal councils. The composition of the boards might differ from one municipality to another with the expectance of the mandatory membership of a probation officer and a representative of a prison. The members of the supervisory boards have the power to visit penitentiary institutions, interview prisoners, receive access to documents they need, request and receive information from the administration. The proposals and recommendations of the supervisory boards are mandatory for the prison governor. Upon failure to act on a proposal or recommendation of a supervisory board, the matter shall be referred to the Chief Director for the Execution of Sentences. The boards are funded by the municipality budget.

Although the law suggests the establishment of a supervisory board within each municipality, their actual number is small. By definition, the board is deprived of independence because of the mandatory participation of prison administration representatives in it. In practice, their role in the prisoners’ rights protection is insignificant.

Ombudsman, acting as a National preventive mechanism

The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) has entered into force in respect to Bulgaria on 1 July 2011. The Law on the Ombudsman[27] designates the Ombudsman as a national preventive mechanism (NPM).

NPM conducts both announced and unannounced visits to various places and institutions, including prison and prison dormitories. The Bulgarian model of NMP does not envisage mandatory cooperation with civil society organisations in the process of implementing of its mandate. During visits, the NMP team is authorised to:

  • to speak to prisoners in private either personally or through an interpreter if necessary,
  • to access all information relevant to the treatment of the persons detained and the conditions at the place of detention;
  • to require information from the staff of the institution, as well as to speak to any other persons within the site being inspected;
  • to arrange medical examinations of the persons.

After each visit, the experts draft a report which contains recommendations and suggestions aimed at improving the conditions of detention and treatment of persons deprived of liberty, and at preventing torture and other cruel, inhuman or degrading treatment or punishment. The reports are submitted to the relevant competent authorities, which are under the obligation to inform the Ombudsman within one month thereafter of the actions undertaken to implement the recommendations.

The Ombudsman may recommend to the Minister of Justice to close, reconstruct or expand a prison or a prison dormitories if the level of overcrowding or the poor hygiene or material conditions prevent prisoner rehabilitation are liable to put the inmates’ physical or mental health at risk.[28] The Minister must put the recommendation on the Council of Ministers’ agenda within one month, and the Council of Ministers must announce the measures taken to resolve the problem.[29] There is no such recommendations made so far.

3. Remedies

The Bulgarian system of remedies available to prisoners’ right violations was in the focus of Neshkov and others v. Bulgaria pilot judgement of the ECtHR. As regards the systemic problem underlying the breach of Article 13, the Court stipulated that specific changes in the Bulgarian legal system were required in the form of a preventive remedy capable of providing swift redress to prisoners held in non-compliant with Article 3 conditions and a compensatory remedy. The remedies should be made available within eighteen months after the Court’s judgment became final, or on 1 December 2016.

3.1. Preventive remedies

3.1.1. Non-judicial remedies

General complaint procedure in prisons

The legal regulation of the general internal complaint procedure available to prisoners is limited to Article 90 of ESDOA and Articles 77 and 78 of the Regulation for the implementation of ESDOA. It applies to all complaints and requests regardless of their nature, recipients, seriousness or urgency.

Article 90 (1) of ESDOA expressly recognises the right of prisoners to make requests and complaints in writing as well as to appear before the prison governor in person. Acting on express authorisation, lawyers and non-governmental organisations’ representatives may also lodge requests and complaints on behalf of prisoners.[30] The procedure is limited to individual complaints and requests and does not cover appeals of measures of general application. It is accessible to both convicted prisoners and pre-trial detainees. [31] Upon admission, prisoners are informed orally of their rights and obligations, including their right to make complaints, but do not receive written copy of this information. No standard complaint form exists. Further, Article 77 of the Regulations for Implementation of ESDOA adds that each request and complaint has to be registered in a special book, including the date of its receipt and dispatch, the name of the prisoner, the body to which it is addressed, the subject and answer.[32] This provision suggests that no complaints and requests could be made on confidential basis. In practice, complaints are registered if addressed to the prison governor or to another recipient through the prison governor. In most penitentiary facilities complaints addressed to recipients outside the prison could be made confidential if sent as regular mail. However, the confidentiality of the regular mail is also widely debatable.

The exact manner in which the inmates should hand in their complaints – where and to whom, is left unclear. The Prison and Prison Dormitories Internal Rules, adopted by the Minister of Justice, stipulates that complaints and requests in sealed envelopes are to be placed in special boxes, which are kept locked, whereas the procedure for opening the boxes is to be established individually by each prison governor. Such boxes however are not installed in all prison. Where they exist, they are located in full view of the prison staff, making it impossible for a prisoner to put a complaint into the box without being observed by a member of staff.

Complaints and requests directed to a body outside the prison are to be dispatched within three days.[33] All postage expenses incurred by prisoners, irrespective of the category of correspondence or the recipient, are borne by the sender. It is only for prisoners who are ascertained to have no financial means that the costs for correspondence are covered by the penitentiary. Prior to the amendments to Article 77 of the Regulations for Implementation of ESDOA which came into force in August 2014, the postage expenses on complaints and requests related to the execution of sentences were covered by the prison budget. Following the amendments, this form of financial support, facilitating prisoners’ access to justice, was taken off.

The law stipulates that any re-lodged requests and complaints are to be considered if they state new circumstances. Complaints and requests, addressed to the Chief Directorate for the Executions of Sentences are to be dealt with within a period of two weeks or one month, provided that the case is complex and requires further investigation. Importantly, Article 90 (5) of ESDOA prohibits the imposition of disciplinary punishments in retaliation for requests or complaints made by prisoners.

The above-described procedure has a general applicability to the administration of complaints and requests made by prisoners to the penitentiary administration in relation to prison material conditions, clothing, personal hygiene, food, exercise medical services, visits, correspondence and phone calls; access to employment, education and vocational training; complaints against prison guards, other staff or inmates. The penitentiary authorities, having general competence to receive, examine and settle complaints from prisoners are the Minister of Justice, the Chief Director for the Execution of Sentences and the prison governors.

The administrative mechanism for prisoners’ complaints and requests is outdated and inadequate for ensuring prisoners’ rights protection and “could not lead to effective redress because it [is] not sufficiently certain and predictable and could not solve problems, such as overcrowding, that affected all prisons in the country”.[34] The abstract provisions and the numerous gaps in the law allows for arbitrariness in its implementation. The exact manner in which a complaint is examined by the competent authority is unclear. The law does not specify any minimum procedural guarantees such as access to legal aid, right to interpretation or translation, right to reasoned decision-making, establishment of the facts, right to appeal. Other vital procedural aspects, including burden of proof, evidence collection, assistance to prisoners who have literacy problems and rapidity of the proceedings are also left unregulated.

The actual operation of the grievance procedure differs from prison to prison. Complaints boxes are rare. In most penitentiaries complaints are collected by the prison staff, which excludes any possibility for prisoners to have confidential access to the authority, competent to review the complaint or request. What is even more problematic is that replies to complaints and requests are very often addressed to the prison administration instead to the prisoners or are sent without envelopes, revealing the whole content of the letter. The operation of the complaint procedures in prisons has been long criticised by the CPT[35] and the administration of the Ombudsman, serving as the National Preventive Mechanism. Over the years, many prisoners interviewed by them express skepticism about the effectiveness of the complaints procedure. They claim that staff responsible for collecting prisoners’ correspondence withheld complaints or threatened inmates with reprisals in order to prevent them from complaining to an outside authority. More specifically, some prisoners testify that they would not make use of the possibility to complain because they fear retaliation from staff. Indeed, prisoners placed at different establishments point out that complaints lodged at internal level frequently had resulted in some form of punishment of the prisoner concerned.

Transfer of prisoners

Along with the general complaint procedure, the ESDOA provides for a number of other special internal procedures that might be examined in the light of the prevention of inhuman and degrading treatment with respect to poor material conditions, overcrowding and access to healthcare in prisons. One such procedure, discussed also in the Neshkov pilot judgement of the ECtHR, is the procedure of transfer of inmates from one prison to another.

Following their initial allocation to a penitentiary facility, prisoners may apply to be transferred to a different facility, operating under the same security category. Requests for transfer could be made also by prison governors and prisoners’ relatives. Prisoners have no legal right to be transferred but a transfer might be considered for one of the following grounds, listed in Article 62 (1) of ESDOA: school attendance or vocational training, hospitalisation, change of address of family members or relatives, psychological incompatibility with other inmates, conflicts with the prison guards or other safety or security reasons. The transfer decision is up to the discretion of the Chief Director. Unsatisfactory decisions could be challenged before the Minister of Justice,[36] whereas judicial review is not expressly provided for by the law. There are no specific rules, governing the review procedure.

In Neshkov and others v. Bulgaria pilot judgment, the ECtHR states that the transfer procedure could not be considered as an effective preventive remedy in respect of situations of overcrowding and poor material conditions in the system as a whole. It emphasises that “under Bulgarian law decisions of the prison authorities on transfers between prisons are apparently regarded as fully discretionary and not compellable by means of an injunction […]. Inmates do not have a right to be transferred if they so request, which means that the possibility is not a remedy for the purposes of Article 13 of the Convention […].”[37]

Complaints to the prosecutor

Inmates can submit complaints and requests to the prosecution office. There are no specific regulations, governing the procedure. In practice, the rules on disposal of complaints and requests, postal expenses and receipt of replies, described in the general complaint procedure above apply. According to inmates, it is very rare that during their visits to the penitentiaries, prosecutors meet in person with prisoners. Following its visits to Bulgaria CPT emphasises the importance of inspecting authorities not limiting their activities to seeing prisoners who have expressly requested to meet them, but rather taking the initiative by visiting detention areas and entering into contact with inmates.[38]

In the Neshkov judgement the Court clearly observed that complaints to the prosecutor are not effective remedies against prisoners’ rights violations. The Court points at two major shortcomings of the complaint procedure: “the complaint to a public prosecutor is not based on a personal right for the person concerned to obtain redress, and there is no requirement for such a complaint to be examined with the participation of the inmate concerned or for the prosecutor to ensure his or her effective participation in the proceedings”.

Complaints to the Ombudsman, acting as a National Preventive Mechanism

The Ombudsman receives complaints from inmates through mail and during visits to the penitentiaries, without explicit legal ground for this. There are no precise rules that guarantee prisoners’ access to the complaint procedure. Also, the Ombudsman has no power to render legally binding decisions. Taking this into consideration, in Neshkov case the EChHR concluded that in the light of Article 13 of the Convention, the Ombudsman is not an effective remedy to prisoners. The CPT has also recommended that the presently existing NPM should be reinforced so as to enable it to visit each penitentiary establishment in Bulgaria on a frequent ban.

3.1.2. Judicial remedies

General courts – civil chambers

Prisoners have very limited access to civil courts. According to ESDOA, governor’s decisions on deductions from prisoners’ monthly remuneration for damages are subject to appeal before the district court.[39] However, no case law related to this issue was identified.[40]

General courts – penal chambers

Penal chambers of general courts have a role in the implementation of the sentences. First, decisions on all forms of sentence implementation which adds new restrictions on the prisoner’s legal status or security regime are made by the regional court, exercising jurisdiction over the respective prison.[41] Further, the regional court is competent to decide on applications for early conditional release[42] and replacement of life imprisonment punishment with a deprivation of liberty for a definite term[43]. Third, decisions on solitary confinement for preventive purposes[44] or as a disciplinary sanction,[45] as well as decisions for confiscation of prisoners’ property made by the prison governor are appealable before the district court, exercising jurisdiction over the respective prison.[46]

As we could see, general courts, whether district or regional, are competent to hear various disputes, concerning prisoners’ rights. However, they have legislatively determined jurisdiction, which does not cover complaints against inhuman and degrading treatment related to overcrowding, poor material conditions, lack of sanitary facilities, access to healthcare.

Administrative courts

The evolution of administrative law in Bulgaria during the last decade brought certain developments in the field of penitentiary law as well. Essentially, new avenues for judicial protection against unlawful acts, decisions and omissions by administrative authorities were introduced in 2006 with the adoption of the Administrative Procedure Code.[47] Prisoners have used these avenues – the preventive and the mandatory injunctions against administrative acts, to challenge some aspects of conditions of detention, including health care quality and accessibility. Below, a short description of these proceedings and analysis of their effectiveness in prisoner’s rights protection are provided.

Prohibitive injunctions against the administrative authorities

Article 250 of the Administrative Procedure Code provides that any person who has the requisite legal interest may request the termination of actions carried out by an administrative authority or a public official that have no basis in the law or in an administrative decision. The remedy is of a general nature, available to all persons, including persons deprived of their liberty. The request has to be dealt with immediately by a single judge, who may order an inquiry to be conducted by the police or another authority to establish whether the actions are still performed, on whose behalf and on what grounds. The decision of the court is subject to appeal, which does not have suspense effect.

Mandatory injunctions against the administrative authorities

Article 256 and 257 of the Administrative Code of Procedure provide that a person may bring proceedings to enjoin an administrative authority to carry out an act that it has the duty to carry out under a legal provision. A request under Article 256 has to be filed within 14 days of the submission of a request to the administrative body to perform the said action. The inaction of an administrative authority on an obligation arising directly from a statutory instrument is appealable indefinitely, applying, mutatis mutandis, the provisions on contestation of individual administrative acts. If the court allows the claim, it enjoins the authority to carry out the action and fixes a time‑limit.

Procedural rules, applicable to both the prohibitive and mandatory injunctions

The request is to be made to the administrative court, exercising jurisdiction over the territory where the alleged actions are said to be carried out. The petitioner is charged a fixed court fee of 10 levs (5 euro). He/ she might also request the court to be except from the fee due to lack of financial means. Access to state-funded legal aid is available under the general regulations of the Legal Aid Act.[48] The presence of the petitioner at the court proceedings is not obligatory.

In the light of the national case law, the overall assessment made by the Court in Neshkov and in Harakchiev and Tolumov cases was that the injunction proceedings could not be considered as effective preventive remedies for overcrowding and poor material conditions in prisons. According to the Court, these judicial avenues for redress “could be moulded to accommodate grievances relating to conditions of detention if all unclear points, such as the courts’ approach to such claims, the proper defendants, the duration of the injunctions against the authorities and the exact way in which they are to be enforced, even where overcrowding is concerned, were properly elucidated”.[49]

3.1.3. Conclusion

In the Neshkov pilot judgement, the Court anonymously found that none of the existing domestic remedies against inhuman and degrading treatment of prisoners as regards to poor material conditions and overcrowding in prisons in Bulgaria or the combination of them – injunction proceedings, possibilities for transfer from one prison facility to another, complaint procedures before the prosecutor and the Ombudsman, were in position to bring improvement in the conditions of detention of prisoners.

According to the Court, the best way of putting an effective preventive remedy into place would be the set up a special authority to supervise correctional facilities. The Court marks that a special authority normally produces speedier results than ordinary judicial proceedings. To be considered an effective remedy, the authority should have the power to monitor breaches of prisoners’ rights, be independent from the authorities in charge of the penitentiary system, have the power and duty to investigate complaints with the participation of the complainant, and be capable of rendering binding and enforceable decisions. The Court adds that other options for complying with the requirements of Article 13 would be to set up a procedure before existing authorities such as public prosecutors or to mould existing forms of injunctive relief to accommodate grievances relating to conditions of detention.

3.2. Compensatory remedy

The possibility for bringing claims for damages under SMRDA constitute the single compensatory remedy available to victims of inhuman and degrading treatment suffered as a result of conditions of detention in Bulgaria. Although the SMRDA is in force since 1989, it was only in 2003 that the courts started awarding damages as result of conditions of detention in penitentiary facilities. At present, the claim for damages is a general compensatory mechanism, available to all persons, including persons detained in prisons and IDFs.

Article 1 of the SMRDA provides that the state is liable for damages 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. The authority, competent to hear claims against such unlawful administrative decisions, acts or omission of administrative officials is the administrative court, in a single-judge panel. If the claim relates to unlawful act or omission, its unlawfulness has to be established by the court hearing the claim for damages. The administrative courts are not involved in the implementation of sentences, thus, in principle, claims for damages brought by prisoners as a result of conditions of incarceration should not be able affect negatively prisoners’ access to parole and other possibilities for relaxation of the regime.

A flat-rate court fee is due for filing a claim under the SMRDA, which is BGN 10 for physical persons (EUR 5.12). By motion of the court, the fee might be waived if the claimant manages to prove he/ she lacks financial means. The claimants pay all costs incurred in the proceedings only if the claim has been rejected in its entirety or if they withdraw or waive their claim entirely.[50] If the court decides in favour of the claim, in whole or in part, the defendant is ordered to pay the costs relating to such proceedings, as well as the claimant’s state fee.[51] Again, by motion of the court, a claimant who is in position to prove lack of financial means might be granted legal aid. The Bulgarian Bar though is not organised in a way to provide specialised legal aid in prisoners’ right cases.

The claim for damages has to indicate the exact defendant. In the case of damages incurred as a result of detention in prisons or IDFs, it is the Chief Directorate for the Execution of Sentences. However, it is often that prisoners, due to lack of legal knowledge and legal assistance, make their claims against the Ministry of Justice instead. Claims, stating incorrect defendant are dismissed by the courts.

In a serious of decisions, the ECtHR has accepted that a claim under Article 1 of SMRDA could in principle be regarded as an effective domestic remedy in respect to complaints under Article 3 of the convention relating to conditions of detention. However, in view of it purely compensatory nature, the claim was regarded as effective only if the alleged violation had come to an end because the person concerned has been released or placed in Article 3-compliant conditions. In other case, the court found that the remedy failed to operate properly because of the administrative courts’ formalistic approach to various points. Nevertheless, in the Neshkov pilot judgement, the Court has clearly established that the claim for damages under SMRDA is not an effective compensatory remedy as required by Article 13 of the Convention in terms of violations of Article 3 related to conditions of incarceration. The arguments of the Court include the following major points:

  • Only 30 % of the cases under Article 1 (1) of SMRDA, brought by prisoners have resulted in an award of compensation;
  • The administrative courts take into account only the concrete statutory or regulatory provisions, governing conditions of detention, but not the general rule prohibiting inhuman and degrading treatment. Moreover, there are only few provisions in the national legislation, governing the exact practical aspects of detention, thus the courts easily find no illegality regarding the conditions of detention. Thus, the courts focus more on the examination of the lawfulness of the actions, within the meaning of the national law, than on the prisoners’ right to be free from inhuman and degrading treatment.
  • In some cases, the courts require the prisoners to split up their claims for damages to reflect individually each issue that affect them and proceed to examine the claims separately, without adopting a cumulative approach to the conditions of detention.
  • Bulgarian courts do not recognise that poor material conditions of detention must be presumed to cause non-pecuniary damages to the persons concerned.[52]

3.2.1. Conclusion

According to the ECtHR, one solution for allowing effective protection at domestic level of the rights and freedoms enshrined in Convention is the establishment of a general remedy allowing those complaining of Convention breaches to seek the vindication of their rights in a procedure specially designed for that purpose. Another option would be the introduction of special rules laying down in detail the manner in which claims concerning conditions of detention are examined and determined within the existing law procedure. Redress could take the form of monetary compensation or, for those still in custody, a proportionate reduction in sentence. Any remedy would have to operate retrospectively.

Since Neshkov pilot judgement, the national case law on compensation for inhuman and degrading treatment in prisons has demonstrated some positive developments. These developments include several cases in which the national courts make direct references to the Convention and to the pilot judgement, as well as to the other sources of international standards and reports of monitoring bodies, cited by the ECtHR in the judgement.[53] Further, a slight increase in the amount of the compensations awarded to prisoners is observed. The timely translation into Bulgarian and the publication on the webpage of the Ministry of Justice of the pilot judgement and the CPT’s last report on the situation in the Bulgarian penitentiary facilities have contributed to these developments. However, it has to be highlighted that these positive trends concern almost exclusively the practice of the two administrative courts, under which jurisdiction fall Varna and Burgas prisons. This clarification is important since four of the five applicants in the Neshkov judgement have been detained in these prisons. The CPT reports and the public statement have been also focusing on the situation of overcrowding, extremely poor material conditions, etc. in Varna and Burgas prison. Thus, it is still unclear whether the positive developments form part of a stable trend, common to the practice of the whole judiciary, or is rather a short-term limited reaction of some administrative courts, directly affected by the international criticism on the penitentiary system.

4. Disciplinary proceedings

Bulgarian penitentiary legislation provides a list of eight disciplinary punishments that can be imposed on inmates for prison rules violations.[54] Disciplinary punishments are imposed by order of the prison governor or the Chief Director for the Execution of Sentences.[55] The disciplinary power of the latter, however, is rarely exercised.

Remedies

Prison disciplinary practices have been subject to criticism on multiple occasions due to their arbitrariness and the lack of judicial oversight on imposed punishments. With the exception of solitary confinement, all other punishments are imposed by the administration, without independent oversight.

Judicial protection[56]

An order, imposing a disciplinary punishment of solitary confinement to a disciplinary cell is appealable before the district court. Appeals have to be made in writing through the prison governor within three days after the order has been brought to the notice of the inmate. The prison system does not offer any forм of assistance for drafting the complaints; there are also no standard complaint forms or possibility for translation of documents. Upon receipt of the appeal, the punishing authority can revoke the order on its own initiative. If the order is not revoked, the said authority forwards the appeal and all other relevant records from the disciplinary file to the district court within a three-day period of time. The appeal procedure does not suspend the execution of the punishment, unless the deciding authority rules otherwise for a particular occasion.

The appeal case is tried by a single-judge panel in the criminal division of the district court, exercising jurisdiction over the place of the prison. The criminal division judges of the district courts are not in charge of any adjustments of the sentences such as parole procedures.

The case has to be heard immediately, but no later than three days after receipt of the records. There are no court fees involved in the appeal procedure. The court appoints a defendant (attorney) to the appellant if he/she has not done so. Parties to the appeal proceedings are the authority who has issued the order, the appellant and the attorney. However, non-appearance of the defendant or the administrative authority at the court hearing does not constitute an impediment to the pursuit of the proceedings. The case is heard without the appellant only if he/ she does not wish to appear or if his/ her appearance is precluded on health grounds. The case is tried at a public hearing. The court collects evidences following requests made by the parties, and of its own initiative and assesses all circumstances pertaining to the lawfulness of the order. It makes pronouncement by a ruling which has to be announced to the parties at the hearing. By virtue of its ruling the court may:

  1. upheld the order;
  2. revoke the order;
  3. revoke the order and remit the case to the administrative authority, imposed the punishment accompanied by mandatory guidelines on the application of the law.

The court ruling is final.

The most significant deficiencies of the remedy relate to the lack of rules, intended to facilitate prisoners’ access to the appeal procedure. The three-day period for appeal is highly insufficient for the proper organisation of the inmate’s defense before the court. State-funded legal assistance is available only after the initiation of the proceedings, but not earlier, at the stage of drafting the complaint. Literacy problems, lack of information, poverty and fear from reprisals prisoner’s access to the court. The court itself also often demonstrates reluctance to intervene in the prison disciplinary policies.

Administrative protection[57]

Appeals against orders for disciplinary punishments, other than confinement in punitive cell, are made to the Chief Director for the Execution of Sentences, in case the sanction is imposed by the prison governor, or to the Minister of Justice, in case the punishing authority is the Chief Director for the Execution of Sentences. The legislation provides for a single level of administrative review. Appeals have to be made in writing through the prison governor within seven days after the order has been brought to the notice of the inmate. However, neither assistance for drafting the complaints, nor a standard complaint form are offered to prisoners. State-funded legal assistance and translation of documents are also unavailable. Upon receipt of the complaint, the punishing authority can revoke or amend its order. If not done so, the complaint, accompanied by the disciplinary file and a written statement of the punishing authority is sent to the reviewing body. The appeal procedure does not suspend the execution of the punishment, unless the deciding authority rules otherwise for a particular occasion. There are no hearing sessions or further investigation of the case envisaged. Following the initiation of the appeal, the inmate has no rights to participate in the proceedings either by submission of additional written arguments, or by having the right to be heard by the competent authority. A decision on the appeal is made within one month of its receipt. It is not subject to judicial review.

The remedy described is rather ineffective. The lack of judicial control opens up the door for arbitrariness. Although punishments such as an extra cleaning duty or deprivation of a food parcel for a certain period of time are minor in terms of severity in comparison to the disciplinary isolation, they are equally taken into consideration in the decision–making procedures for parole, temporary release, change of security regime, access to work, etc.

5. Prisoner’s rights protection and early release

The institute of early conditional release is regulated by the Criminal Code (legal criteria),[58] the Criminal Code of Procedure (procedure)[59] and the ESDOA (other aspects)[60]. Early conditional release in Bulgaria is defined as an exceptional benefit that could be granted to the offender, rather than a right. It is a highly discretionary procedure.

The Bulgarian law allows for two types of early release – conditional and unconditional. Access to unconditional release is granted to juvenile prisoners only. The court may grant early conditional release when the prisoner has served not less than half of his/ her sentence (formal criteria), has good behaviour and demonstrates that he/ she has rehabilitated. Recidivists must have served two-thirds of their sentences and have not more than three years of imprisonment left. A person could benefit from early conditional release only once.

Decisions upon conditional release are made by the regional court, exercising jurisdiction over the prison in which the offender is serving his/ her sentence upon proposals of the regional prosecutor or the Commission for the Execution of Sentences to the prison. Prisoner does not have direct access to the procedure. In general, prosecutors refrain from exercising their powers of proposing prisoners for early conditional release and most of the proposals reaching the court are submitted by the Commissions for the Execution of Sentences.

The Commission for the Execution of Sentences is a collective administrative body established within every prison by virtue of Article 73 of the Execution of Sentences and Detention Order Act. Membership of the Commission is defined in the legislation and comprises of the prison’s governor who is also the chair of the body, a representative of the local Supervisory Board and three prison administration officers – the deputy governor responsible for the prison security, the head of the social department and a psychologist. The sessions of the Commission shall be attended by a prosecutor of the regional prosecutor’s office but he/ she does not take part in the decision-making process.

Every two months the Commission holds sessions and reviews the cases of all offenders, having served the minimum required term to be eligible for early conditional release. Further, eligible prisoners have to demonstrate that they have rehabilitated. However, there are no clear and uniform criteria, governing the decision-making process of the Commission. In practice, a non-exhaustive list of issues, considered by the Commission include: nature of the criminal offence and the penalty, the behaviour of the offender while in prison, risk assessment, admission of guilt. Decisions are taken by simple majority behind closed doors, without the involvement of prisoners. There is no requirement for making the decision known to the concerned parties. The statistics indicate that the number of prisoners proposed for early release is exceptionally low – less than 10% of the eligible ones. The law does not envisage a procedure for administrative or judicial review of the negative decisions of the Commission on early conditional release.

Together with the prisoner’s file, the proposal for conditional release is submitted to the regional court. The case is decided in a public hearing with the participation of the prosecutor and the prison governor. The prisoner proposed for early release is present but does not have the formal status of a participant in the proceedings. He/ she might be awarded legal aid. The court decides cases for early conditional release of prisoners largely based on the argument, included in the proposal of the Commission. On average, 90% of the offenders, proposed by the Commissions are granted release.

Sentence reduction by work and education

In Bulgaria there is a sentence reduction system based on involvement in work, formal education or other forms of vocational training and capacity-building programmes.[61] Both remunerated and voluntary workers have access to the reduction system. The scheme is as follows – two days of work/ education/ involvement in a rehabilitative programme equal three days of the prison term.[62] The reduction is conditional upon the behaviour of the prisoner – it could be revoked if the person systematically avoids working, commits deliberate crime, or grave offences of the institutional order and thereby demonstrates that he/ she does not correct himself/ herself. The authority competent to revoke the sentence is the regional court.[63] It may revoke entirely or in part the reduction gained during the two years prior to the perpetration of the last offence. The major issue with regard to the functioning of the reduction system is the unequal access to work.

6. Concrete state of prisoners’ rights

ECtHR

Litigation on inhuman and degrading conditions in Bulgarian penitentiary institutions produced a substantial body of case-law by the ECtHR over the past 20 years.[64] These cases concern inhuman and degrading treatment of the applicants due to poor conditions in prisons, owing in particular to overcrowding, poor sanitary and material conditions, no regular access to running water or to a toilet, limited possibilities for out-of-cell activities, no access to natural light, bad quality of the food provided and prolonged application of a special restrictive penitentiary regime combined with the effects of inadequate material conditions in prisons. The ever-worsening situation in prisons and the lack of effective remedies against poor condition culminated in Neshkov and others v. Bulgaria pilot judgement of the ECtHR, delivered on January 27 2015. The ECtHR unanimously held that poor conditions of detention in various correctional facilities in Bulgaria and the excessive overcrowding breached Article 3 of the Convention. It further found violation of Article 13 in respect to the lack of effective remedies by which prisoners could seek redress for poor material conditions and overcrowding. The Court justified the pilot-judgment procedure with the systematic, serious and persistent nature of the problems identified in the Bulgarian prison system.

Other leading judgements of the ECtHR against Bulgaria on prisoners’ rights violation include:

  • Harakchiev and Tolumov judgement[65], concerning the automatic imposition of “special security regime” of lifers for at least five years, which regime involves solitary confinement and exclusion of all forms of collective activities and education (violation of Article 3 of the Convention), as well as the lack of opportunity for the prisoner sentenced to “life imprisonment without commutation” to rehabilitate for the purposes of having access to presidential clemency (violation of Article 3 of the Convention).
  • Radkov and Sabev[66] and Kashavelov[67] judgements on the systematic handcuffing of lifers (violation of Article 3 of the Convention).
  • Dimcho Dimov[68] judgement on the immobilisation of a prisoner for a period of nine days (violation of Article 3).
  • Petrov[69] and Tsonyo Tsonev[70] judgements on the arbitrary monitoring of prisoners’ correspondence.
  • Marin Kostov[71] and Yankov[72] judgements on the imposition of disciplinary punishments for prisoners lodging complaints or criticising the prison administration (Article 10 of the Convention).

Apart from the ECtHR, there are several other organisations that methodically and closely monitor prisons in Bulgaria, document prisoners’ right violations, make recommendations to the national authorities or undertake other steps to improve the situation. Among them are CPT, the United Nations Committee against Torture (CAT) and the Bulgarian Helsinki Committee (BHC).

CPT

Since 1995, the CPT has carried out ten visits to Bulgaria – six periodic (in 1995, 1999, 2002, 2006, 2010, 2014) and four ad hoc (in 2003, 2008, 2012, 2015). The reports on these visits and the responses of the Bulgarian authorities are available on the Committee’s website. In December 2015 the Bulgarian government agreed to the automatic publication of all future reports of the CPT without prior authorisation.[73]

Pursuant to Article 10 (2) of the European Convention on the Prevention of Torture or Inhuman and Degrading Treatment or Punishment on 26 March 2015 the CPT made a public statement concerning Bulgaria.[74] It was CPT’s first public statement against Bulgaria and its seventh against a member states of the Council of Europe.

The public statement was a result of the persistent lack of responsiveness of the Bulgarian authorities to the repeated recommendations made by CPT throughout the years for the improvement of treatment and conditions in police and penitentiary establishments. In the statement, the Committee underlined that most of their recommendations remained unimplemented or partially implemented, some of them dating back to the first periodic visit to Bulgaria in 1995. It further explained that the government’s responses to their findings and concerns had been brief, containing very little new information and failing to address the majority of the Committee’s recommendations, usually merely quoting the existing legislation and/or explaining the lack of action by referring to budgetary constraints. Information, concerning allegations of ill-treatment and inter-prisoner violence had been simply dismissed”.[75] With regard to the Ministry of Justice detention facilities, the CPT expressed serious concern over the lack of improvement and continuing shortcomings in the following areas: deliberate physical ill-treatment of inmates, including juveniles, by staff; inter-prisoner violence, prison overcrowding, “ever-worsening state of dilapidation” of material conditions in a number of prison facilities, inadequate prison health-care services and low custodial staffing levels, corruption, lack of out-of-cell activities, as well as concerns related to discipline, segregation and contact with the outside world. The CPT concluded that in order for the Bulgarian government to improve the situation of persons placed in custody, the entire approach to the issue of deprivation of liberty should radically change. This approach should integrate not only improvement of material conditions, but also amendments in the legislation and concrete and effective measures to their implementation.

CAT

UN CAT has analysed the situation of closed institutions in Bulgaria as commentary to Bulgaria’s periodic reports to the Committee. The last UN CAT commentary is published in 2011, while the previous commentaries are dated 2004 and 1999.

In its Concluding Observations on the 2004 examination of Bulgarian third periodic report under UN CAT, the UN Committee expressed serious concerns over the fact that due to lack of an independent investigative system to investigate complaints in places of detention, allegations of ill-treatment are not always investigated properly and impartially, resulting in an apparent impunity of those responsible.[76] Therefore, the Committee recommended the establishment of an effective, reliable and independent complaint system that allows for the prompt and impartial investigation into allegations of ill-treatment and torture.

Inter-prisoner violence was also a matter of great concern to the Committee. In the Concluding Observations of 2004, it was recommended that the Bulgarian government take measures to ensure close monitoring of inter-prisoners and other violence, including sexual violence, in detention facilities with a view to preventing it. In its Concluding Observations on the 2011 examination of Bulgarian fourth and fifth periodic reports, the Committee expressed its concerns over reports of increased inter-prisoner violence, including sexual violence and made the following detailed recommendations to the government:

  • Enhance efforts to prevent inter-prisoner violence by addressing the factors which contribute to it such as overcrowding, lack of sufficient staff, lack of space and poor material conditions, lack of purposeful activities, availability of drugs, and feuding gangs;
  • Pay attention to protection of prisoners from inter-prisoner violence, in particular those belonging to the lesbian, gay, bisexual and transgender group, and to the psychosocial profile of the prisoners and those who engage in violence, investigate and sanction incidents;
  • Increase the number of staff, including those with training in the management of inter-prisoner violence;
  • Increase the quality and frequency of supervision and monitoring, especially at night, including through the introduction of additional video surveillance equipment;
  • Impartially, thoroughly and promptly investigate all incidents of death in custody, including suicide, make the results of investigations public and prosecute the persons responsible for committing violations leading to deaths.[77]

In its 2011 consideration of Bulgaria’s fourth and fifth periodic reports, on the issue of independent monitoring of places of detention and other places where people are deprived of liberty in Bulgaria, the UN CAT welcomes Bulgaria’s ratification of the Optional Protocol to the Convention against Torture. The Committee, however, expresses concern that independent monitoring by civil society organisations is not allowed in all cases of detention and that non-governmental organisations such as the Bulgarian Helsinki Committee require a prosecutor’s permission for access to pretrial detainees. It thus recommends that the state ensure independent, effective and regular monitoring of all places of detention by independent non-governmental bodies.[78]

BHC

The BHC has maintained a programme for monitoring prisons in Bulgaria since 1994. The organisation’s monitoring activities are based on an agreement between the Ministry of Justice and the BHC on the basis of Article 4 ESDOA. In line with the agreement BHC can visit, with no escort from guards, prison cells, medical facilities, isolation wings, kitchens, schools and other premises where prisoners are held, receive documents and interview convicted prisoners in private. They can interview remand prisoners only with the permission of the respective prosecutor. On daily basis the BHC receives complaints from prisoners.

Throughout the years, BHC has produced a number of reports and other publications, documenting and analysing the situation in prisons and investigative detention facilities. Annually, the it publishes information about prison conditions in a special chapter of its reports on the situation of human rights in Bulgaria. The most alarming problems, documented by the BHC include widespread ill-treatment of prisoners, inter-prisoner violence, poor medical care, excessive overcrowding, arbitrary disciplinary proceedings, monitoring of correspondence, discrimination against female and juvenile prisoners, lack of rehabilitative work with prisoners.

Developments

The simultaneous adoption of a pilot judgement and a public statement against Bulgaria, both covering issues of inhuman and degrading treatment of prisoners, significantly accelerated the external pressure on the Bulgarian penitentiary system. As a result, in 2015 the Ministry of Justice has initiated reforms in several crucial areas of the prison system, including changes in the prisons’ management, improvement of the material conditions, introduction of a new mechanism for reporting of violence and physical abuse in prisons and IDFs. At the end of 2015, the Ministry of Justice released a package of draft legislative amendments concerning reforms in the penitentiary system – primarily measures against overcrowding in prisons. New legal regulations of initial allocation of prisoners, transfer of prisoners, early conditional release and electronic monitoring of offenders were among the most significant measures proposed.

Further, in response to Neshkov pilot judgement, the Ministry has proposed the establishment of a new special compensatory and preventive remedies in respect to conditions of detention. With regard to the compensatory remedy, the draft law envisaged a special procedure that should provide monetary compensation for damages suffered as a result of inhuman and degrading treatment of prisoners and detainees in IDFs. According to the proposed legislative amendments, the remedy should be introduced by adding a new section to the SMRDA and a new set of procedural rules, including: shifted burden of proof; a requirement for the court to adopt a cumulative approach with respect to assessing the conditions and the other aspects of detention; a possibility for the court to call for a hearing public officials or other individuals, whose statements might help for the proper adjudication of the case.

With regard to the preventive remedy, the Ministry of Justice proposed the introduction of a new special complaint procedure before the administrative court. According to the proposed legislative amendments, the remedy should be introduced by adding a new chapter in the ESDOA, under the name “Protection of torture, cruel, inhuman or degrading treatment in the course of execution of the sentence “deprivation of liberty” or the measure “detention on remand””. The procedure should allow prisoners to complain before the administrative court about the conditions of their detention that violates the prohibition of torture, cruel, inhuman or degrading treatment, stipulated in Article 3 of ESDOA, including in cases of overcrowding. The administrative court should have the power to effectively improve the situation of those complaining, including through ordering their transfer to another cell or detention facility. The court should hear the case within seven days following the submission of the complaint. The decision of the administrative court should be appealable before another panel of the same court.

Nevertheless, following changes in the leadership of the Ministry of Justice in December 2015, in 2016 the draft law as outlined above was amended. Some key provisions meant to strengthen prisoners’ rights protection and to improve procedures of early release, access to court, transfer of prisoners and use of force were dropped, rendering the high expectations of the international organisations and the national observers on the willingness of the Bulgarian government to implement substantive prison reforms seem rather premature.


[1] Execution of Sentences and Detention Orders Act (Закон за изпълнение на наказанията и задържането под стража) (ESDOA) (2009), available in Bulgarian at: http://www.lex.bg/bg/laws/ldoc/2135627067.

[2] Criminal Procedure Code (Наказателно-процесуален кодекс) (2006), available in Bulgarian at: http://lex.bg/laws/ldoc/2135512224

[3] Criminal Code (Наказателен кодекс) (1968), available in Bulgarian at: http://lex.bg/bg/laws/ldoc/1589654529

[4] Regulations for the Implementation of the Execution of Sentences and Detention Orders Act (Правилник за прилагане на Закона за изпълнение на наказанията и задържането под стража) (2010), http://www.lex.bg/laws/ldoc/2135661301 .

[5] ESDOA, Art. 41 and 42.

[6] ESDOA, Art. 65.

[7] Ibid.

[8] Chief Directorate for the Execution of Sentences, Information for the prison population in Bulgaria as of 1 May 2015, presented by types of offences committed.

[9] ECtHR, Neshkov and others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, pilot judgement of 27 January 2015.

[10]Public Statement concerning Bulgaria, CPT/ Inf (2015)17, available at: http://www.cpt.coe.int/documents/bgr/2015-17-inf-eng.pdf.

[11] Joint panel of judges of the Supreme Administrative Court and the Supreme Court of Cassation, Interpretative Decision of 19 May 2015 on case No. 2/2014.

[12] Supreme Administrative Court, Decision of 24 September 2015 on administrative case No. 10084/2015.

[13] State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди) (SMRDA), available in Bulgarian at: http://www.lex.bg/laws/ldoc/2131785730.

[14] ESDOA, Art. 123 (2), (3).

[15] Research was conducted in the database of two online legal platforms – apis.bg and ciela.net.

[16] Criminal Procedure Code, Art. 443-446.

[17] Criminal Procedure Code, Art. 437-442.

[18] Criminal Procedure Code, 449-450.

[19] ESDOA, Act, Art. 120.

[20] ESDOA, Art. 111.

[21] ESDOA, Art. 122.

[22] Constitution of the Republic of Bulgaria (Конституция на Република България) (1991), available in English at: http://www.parliament.bg/en/const.

[23] Judiciary Act (Закон за съдебната власт) (2007), available in Bulgarian at: http://www.lex.bg/laws/ldoc/2135560660.

[24] ESDOA, Art.62 (3)

[25] ESDOA, Art.13(2)(1)

[26] ESDOA, Art. 170-171.

[27] Law on the Ombudsman (Закон за омбудсмана) (2004), Art. 28a-28e, available in Bulgarian on: http://www.lex.bg/laws/ldoc/2135467520.

[28] ESDOA, Art. 46 (1).

[29] ESDOA, Art. 46(2).

[30] ESDOA, Art. 90(2).

[31] ESDOA, Art. 240: “Save insofar as otherwise provided for in this Part, the provisions regarding the persons sentenced to deprivation of liberty shall furthermore apply to the accused and the defendants who are detained in custody as a precautionary measure to secure the appearance thereof”.

[32] Regulations for Implementation of ESDOA (Правилник за прилагане на Закона за изпълнение на наказанията и задържането под стража), available in Bulgarian at: http://www.lex.bg/laws/ldoc/2135661301.

[33] ESDOA, Art. 77(2).

[34] ECtHR, Neshkov and others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, pilot judgement of 27 January 2015, para.176

[35] Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995, §173; Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 April to 7 May 1999, §156-157; Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 to 29 October 2010, §149; Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 4 to 10 May 2012, §62.

[36] ESDOA, Art. 62 (3).

[37] ECtHR, Neshkov and others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, pilot judgement of 27 January 2015, para.211.

[38] Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 April to 7 May 1999.

[39] ESDOA, Art. 123 (2), (3).

[40] Research was conducted in the database of two online legal platforms – apis.bg and ciela.net.

[41] Criminal Procedure Code, Art. 443-446.

[42] Criminal Procedure Code, Art. 437-442.

[43] Criminal Procedure Code, 449-450.

[44] ESDOA, Act, Art. 120.

[45] ESDOA, Art. 111.

[46] ESDOA, Art. 122.

[47] Administrative Procedure Code (Административно-процесуален кодекс) (2006), available in Bulgarian at: http://www.lex.bg/laws/ldoc/2135521015.

[48] Legal Aid Act (Закон за правната помощ) (2005), Article 23(4), available in Bulgarian at: http://www.lex.bg/laws/ldoc/2135511185.

[49] ECtHR, Neshkov and others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, pilot judgement of 27 January 2015, para.284.

[50] SMRDA, Art. 10 (2).

[51] SMRDA, Art. 10 (3).

[52] ECtHR, Neshkov and others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, pilot judgement of 27 January 2015, para.202-204.

[53] Burgas Administrative Court, Decision No. 1686 from 12 November 2015, regarding Administrative Case No. 419/2015; Burgas Administrative court, Decision No.1218 from 2 July 2015, regarding Administrative Case No.650/2015; Burgas Administrative Court, Decision No.1467 from 14 October 2015, regarding Administrative Case No. 428/ 2015; Burgas Administrative Court, Decision No.1875 from 10 December 2015, regarding Administrative Case No. 1620/ 2015; Varna Administrative Court, Decision No. 2764 from 23 December 2015, regarding Administrative Case No. 1927/2015; Varna Administrative Court, Decision No. 1746 from 19 November 2015, regarding Administrative Case No. 717/2015.

[54] ESDOA, Article 101.

[55] ESDOA, Article 104.

[56] ESDOA, Article 111.

[57] ESDOA, Article 110.

[58] Criminal Code, Articles 70-73.

[59] Criminal Procedure Code, Articles 437-442.

[60] ESDOA, Article 74, (1)(6).

[61] Criminal Code, Article 41 (3), ESDOA, Article 178.

[62] Criminal Code, Art. 41(3).

[63] Criminal Цode, Art. 41(4).

[64] ECtHR, Dobrev v. Bulgaria, no. 55389/00, judgment of 10 August 2006; Malechkov v. Bulgaria, appl. no. 57830/00, judgment of 28 June 2007; Isyar v. Bulgaria, appl. no. 391/03, judgment of 20 November 2008; Kostadinov v. Bulgaria, appl. no. 55712/00, judgment of 7 February 2008; Gavazov v. Bulgaria, appl. no. 54659/00, judgment of 6 March 2008; Shahanov v. Bulgaria, appl. no. 16391/05, judgment of 10 January 2012; Harakchiev and Tolumov v. Bulgaria, appl. nos. 15018/11, 61199/12, judgment of 08 July 2014; Manolov v. Bulgaria, appl. no. 23810/05, judgment of 04 November 2014.

[65] ECtHR, Harakchiev and Tolumov v. Bulgaria, appl. nos. 15018/11, 61199/12, judgment of 08 July 2014.

[66] ECtHR, Radkov and Sabev v. Bulgaria, appl. nos. 18938/07, 36069/09, judgment of 27 May 2014.

[67] ECtHR, Kashavelov v. Bulgaria, appl. no. 891/05, judgment of 20 January 2011.

[68] ECtHR, Dimcho Domov v. Bulgaria, appl. no. 57123/08, judgement of 16 December 2014.

[69] ECtHR, Petrov v. Bulgaria, appl. no. 15197/02, judgment of 25 May 2008.

[70] ECtHR, Tsonyo Tsonev v. Bulgaria, appl. no. 33726/03, judgment of 1 October 2009.

[71] ECtHR, Marin Kostov v. Bulgaria, appl. no. 13801/07, judgment of 24 July 2012.

[72] ECtHR, Yankov v. Bulgaria, appl. no. 39084/97, judgement of 11 December 2003.

[73] See http://www.cpt.coe.int/en/documents/2016-03-04-eng.htm.

[74] Public Statement Concerning Bulgaria, CPT/Inf (2015) 17.

[75] Public Statement Concerning Bulgaria, CPT/Inf (2015) 17, para. 4.

[76] CAT/C/CR/32/6 (2004) Consideration of reports submitted by States parties under article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, §5(c).

[77] CAT/C/BGR/CO/4-5 (2011) Consideration of reports submitted by States parties under article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, §23.

[78] Ibid, § 11.