Bulgarian Helsinki Committee
Life Without Parole
An Inhuman and Degrading Punishment Special Report
Sofia April 2010
Life Without Parole ď ź An Inhuman and Degrading Punishment
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Life Without Parole An Inhuman and Degrading Punishment
Authors: Stanimir Petrov, Elitsa Gerginova Editor: Krassimir Kanev Editor of the English text and lay-out: Desislava Simeonova Š Bulgarian Helsinki Committee, April 2010 7 Varbitsa Street, 1504 Sofia, Bulgaria http://www.bghelsinki.org
Life Without Parole An Inhuman and Degrading Punishment
Table of contents
I. INTRODUCTION .......................................................................................................... 3 II. HISTORICAL OVERVIEW .......................................................................................... 4 III. LEGAL FRAMEWORK ................................................................................................. 6 Content and differentiation between life imprisonment and life without parole ....................... 6 Life imprisonment with the possibility of parole................................................................... 6 Execution of the life imprisonment and LWOP punishments ................................................ 8 IV. COMPARISON BETWEEN THE EUROPEAN AND THE BULGARIAN STANDARDS ON THE TREATMENT OF LIFE SENTENCED PRISONERS.............. 10 V. NUMBER OF PRISONERS SERVING LWOP, SENTENCES HANDED BY YEAR AND DISTRIBUTION BY PRISON ................................................................................. 12 VI. LEGAL STATUS OF PPRISONERS SERVING LWOP .............................................. 16 VII. SOCIAL PROFILE OF LWOP PRISONERS .............................................................. 18 VIII. LIVING CONDITIONS ........................................................................................... 20 IX. EMPLOYMENT .......................................................................................................... 28 X. RE-SOCIALIZATION ACTIVITIES............................................................................. 28 XI. DISCIPLINARY PRACTICE ....................................................................................... 30 ХII. MEDICAL SERVICES ................................................................................................ 30 XIII. SUPERVISION ON THE EXECUTION OF LWOP SENTENCES ......................... 31 XIV. CONCLUSION AND RECOMMENDATIONS....................................................... 31
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Life Without Parole ď ź An Inhuman and Degrading Punishment
I. INTRODUCTION Unlike all other sentences for which mechanisms to alleviate their severity exist (conditional release, pardon, commutation, leave, annual leave), the sentence “life without the possibility of parole� (hereinafter called LWOP) cannot be changed to the benefit of the imprisoned individual, regardless of the extent of their correction and rehabilitation, thus making the main purpose of the punishment devoid of meaning. The interest of the Bulgarian Helsinki Committee (BHC) in this specific area of penal enforcement is due both to the above arguments and to the international standards on the implementation of life imprisonment, which require an overall humanization of the Bulgarian penitentiary system. The purpose of this study is to analyze the legislation and the practice of handing the most severe punishment in Bulgaria, life without parole, including the conditions, in which this sentence is served in Bulgarian prisons. The study was conducted between June 2009 and February 2010 by BHC researchers Elitsa Gerginova and Stanimir Petrov, on proposal and under the general revision of Krassimir Kanev. Over this period, the researchers reviewed the international standards on the treatment of prisoners, the Bulgarian legislation and publications on the topic. They also processed data provided by the National Statistical Institute, the Directorate General of Execution of Sentences, the National Archive Fund and the administration of the prisons, pertaining to people serving LWOP sentences with all consequences arising thereof. At the same time, they developed a detailed questionnaire comprising general information (age, education, marital status, religious affiliation, etc.), first-hand impressions of the facilities, as well as information from interviews with life sentenced prisoners and penitentiary staff working with them. Most of the cells inhabited by these inmates in the maximum security zones in the eleven prisons, where they are serving their sentences, were visited for the purposes of the study. Interviews with the prisoners serving life sentences without parole were also conducted. The overall conclusion of the study confirmed the initial opinion of the BHC that LWOP contradicts the international standards on treatment of prisoners and should not be applied in the penitentiary system. It therefore needs to be urgently eliminated as a punishment under the Bulgarian Penal Code.
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Life Without Parole An Inhuman and Degrading Punishment
II. HISTORICAL OVERVIEW The first Bulgarian Penal Act1 that laid down the foundations for the development of penal law in the post-1878 Liberation period, did not provide for life without the possibility of parole, but introduced the sentence life with the possibility of parole. The most severe punishment at that time was the death penalty, followed by maximum security confinement, high security confinement, (short-term) detention and fine. Additional penal sanctions were also established: disqualification, confiscation of certain items and promulgation of the sentence. Maximum security confinement had two variations, lifelong and temporary, i.e. life imprisonment was a type of maximum security confinement. The temporary maximum security confinement varied between 1 and 15 years and, in some cases, up to 20. The 1896 Penal Act did not provide for a legal differentiation in the treatment and the legal status of the two categories of prisoners sentenced to lifelong and temporary maximum security confinement. The information on the execution of this sentence is scarce. “Those sentenced to maximum security confinement are kept in general wards and are given food and clothes provided in the prison”. 2 Life-sentenced solitary confined prisoners could be conditionally released when they had served no less than fifteen years, i.e. their sentences are comparable to present-day life with the possibility of parole, despite the significant difference in the number of years served as a prerequisite for release. Another difference is that, unlike now, in the past life sentenced prisoners were placed in “general wards”. The 1951 Penal Act 3 did not provide for life imprisonment in the penal system. Imprisonment was the most severe punishment, while capital punishment was allowed as a temporary and exceptional measure. Debates on the existence of the capital punishment began in Bulgaria in the late 1980s. The last death sentence was carried out at the Sofia Prison on November 4, 1989, six days before the beginning of the democratic changes in Bulgaria. A total of 14 death sentences were carried out in that year. In 1990, President Petar Mladenov issued a decree commuting the death sentences of 13 prisoners to imprisonment.4 On July 20, 1990 the Grand National Assembly adopted a decision to defer the execution of judgments, which have the force of res judicata until the issue of the execution of death penalties in Bulgaria was resolved. 5 This so-called moratorium guaranteed the life of all prisoners sentenced to death until the elimination of capital 1
Promulgated State Gazette No. 40, 1896, based on the Austro-Hungarian Penal Code and the Russian draft Penal
Code. See Karagyozova, M. “Life Imprisonment and Life without the Possibility of Parole”, Obshtestvo i Pravo magazine, No. 7, Sofia, 2009, p. 42. 3 The Izvestia magazine, No. 13, 13.02.1951. 4 See Vasileva, P. “The Concept Pro and Contra the Death Penalty”. The Zatvorno Delo Magazine, No. 1, Sofia, 2004, p. 13. 5 See Decision of the Grand National Assembly of 20.07.1990 on deferring the execution of absolute death sentences, promulg. SG No. 60, 27.07.1990, APIS Law Library, vol. 3, p. 5, No. 402. 2
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Life Without Parole An Inhuman and Degrading Punishment
punishment from the Penal Code in 1999. Nevertheless, the courts continued to issue “death by firing squad” verdicts until the end of 1998. Nine bills for amendments to the Penal Code, including providing for the introduction of “life imprisonment”, were submitted for a first reading by the National Assembly on July 24, 1994. In other words, the capital punishment issue was raised before the parliament. The 1995 amendments to the Penal Code6 reinstated life imprisonment in the penal system - not as a substitute to, but in parallel with capital punishment. In theory, there is an opinion7 that imprisonment as a sanction has reached extremely high limits - up to 30 years for certain crimes - thus transforming it in life imprisonment in some cases. In 1989, when it became clear that capital punishment had become obsolete in Europe, the Bulgarian legislators initiated steps towards making the penal law more human, despite opposition from public opinion. The abolition of capital punishment did not occur smoothly. To alleviate the raging opposition of the greatest supporters of capital punishment, the legislator replaced it with another severe sanction, LWOP.8 This is how the penal system ended with two types of life imprisonment, depending on the possibility of commuting it to imprisonment for a specific term or the lack of such a possibility. The above amendments to the Penal Code were not effected in conjunction and simultaneously with the abolition of capital punishment, and are therefore subject to some criticism.9 Twenty-two prisoners were on death row when the Penal Code amendment abolishing the capital punishment came into effect. On January 25, 1999, by Decree No. 4 of the Vice-President of the Republic of Bulgaria, one death penalty was commuted to life imprisonment and twenty were commuted to LWOP. On March 6, 1999, by Decree No. 17 of the Vice-President of the Republic of Bulgaria, the death sentence of one prisoner was commuted to LWOP. Obviously, the first 13 prisoners on death row in 1990 had the incredible luck of having their sentences commuted to term sentences, as the Penal Code at that time did not provide for life imprisonment. It wouldn't be surprising if some of them have already served their sentences and have been released.
See art. 37, para 1, item 1 of the Penal Code, promulg. SG No. 50, 1995. See Mihaylov, D. Penal Law Issues, General Part. Sofia, 2007, p. 71. 8 See art. 37, para 2 of the Penal Code, promulg. SG, No. 153, 1998. 9 See Vladimirov, R. “The 1995 Penal Legislation Reform”. The Savremenno Pravo magazine, No. 4, p. 16 and Gruev, L. “The Sanction System of Bulgarian Penal Law”. Sofia, 1997, p. 70. 6 7
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Life Without Parole An Inhuman and Degrading Punishment
III. LEGAL FRAMEWORK Content and differentiation between “life imprisonment” and “life without the possibility of parole” Art. 38a. (new - SG, No. 50, 1995) (1) “Life imprisonment shall be the involuntary isolation of the prisoner until the end of his life in a penitentiary facility“. Life imprisonment restricts the possibility for the prisoner to move freely until the end of his life. There are several significant differences in comparison to imprisonment.10 Firstly, life imprisonment means deprivation of liberty until the end of one's life. The preventive nature of this penalty is obvious, as it is mostly aimed at limiting the possibility of the prisoner to commit another crime. Secondly, the prisoner is not required to provide community service. While not prohibited by law, there is also no obligation for the state to provide for such service. However, if work is done, the days worked do not count as working days. And last but not least, life imprisonment is served in special isolation conditions. This makes it an exceptionally costly penalty. Having denied this penalty for more than forty years, the Bulgarian penal law ended up with two types of life imprisonment – one that may be commuted to imprisonment, and another one that may not. This situation is the result from the fact that the issue of the reinstatement of life imprisonment was dealt with separately from the issue of the abolition of the capital punishment.
Life imprisonment with the possibility of parole When life imprisonment was introduced in 1995, the legislator assumed that the persons upon which this penalty can be imposed are in general subject to correction. Therefore, para 3 of art. 38a provides an opportunity to have such sentences commuted to imprisonment for up to 30 years. The only requirement is that the prisoner should have served at least 20 years. The commuting procedure is regulated under Part VII “Special Proceedings”, Chapter 35 “Proceedings Related to the Execution of Penal Sanctions”, Section V of the Penal Proceedings Code. It stipulates that a proposal to commute life imprisonment to imprisonment can be made by the regional prosecutor at the location where the sentence is served. The proposal is reviewed at the regional court at the location where the sentence is served, by a jury comprised of two judges and three jurors. The participation of the prosecutor, the warden and the prisoner is compulsory. The court rules by a ruling. Refusal is subject to appeal. Another proposal may not be submitted in less that two years from the date 10
See Stoynov, Al. Penal Law, General Part. Sofia, 1999.
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Life Without Parole An Inhuman and Degrading Punishment
of the ruling.11 According to art. 38a, para 2 of the Penal Code, life imprisonment is imposed when the crime committed constitutes an exceptionally serious criminal offence. The wording “exceptionally serious criminal offence” is incorrect. 12 The definition of “serious criminal offence” is contained in art. 93, item 7 of the Penal Code: “A serious criminal offence” shall be a crime punishable by law by an imprisonment for more than five years, life imprisonment or LWOP“. The criterion for “exceptional seriousness” remains unclear. It obviously cannot be judged on the basis of the possible penalties. It should be judged with regard to the damaging consequences that have occurred and other aggravating circumstances that reveal an extreme high degree of public danger of the act and the perpetrator, significantly exceeding the in the typical occurrences of such crimes. According to case law, the circumstances that need to be judged include the personality of the prisoner and the victim, the circumstances under which the crime was committed, the way in which the crime was committed and the consequences from the crime. Establishing that the perpetrator is incorrigible is not required when imposing this type of life imprisonment. Life without the possibility of parole This sentence was introduced at the end of 1998 as a substitute to capital punishment. This is why it is regulated by the same articles that regulated the latter, namely art. 37, para 2 and art. 38 of the Penal Code. It is the most severe of all punishments and its humanity is strongly contested.13 According to art. 37, para 2 of the Penal Code, the sentence is handed “for the most serious criminal offences that endanger the foundations of the republic, as well as for other especially dangerous premeditated crimes”. Unlike life imprisonment, there is absolutely no possibility of parole. The prisoner may never lawfully regain his freedom, except in the case of amnesty or pardon. LWOP was announced as a temporary and exceptional measure.14 With regard to the temporary nature, the legislator has obviously meant that the grounds for its use as punishment will cease to exist over time, like in the case of capital punishment, and it will be replaced by another penalty in the provision of art. 37, para 2 of the Penal Code. As to its exceptional nature, given the peculiarities of the specific crime that has been committed, the provisions in art. 38, para 1 of the Penal Code require that it be exceptionally serious and that the penal purposes stipulated in art. 36 cannot be See art. 449-450 of the Penal Proceedings Code. See Stoynov, Al. Penal Law, General Part. Sofia, 1999. 13 See Vandova, Y., Kanchev, D. “Is the punishment life without the possibility of parole under the Bulgarian penal law inhuman?” Pravata na Choveka magazine, No. 2, Sofia, 2008, pp. 15-28. See also Vasilev, P. “Applicability of Probation in Bulgaria”, available at: http://www.arspbg.org/docl/docl1.htm. 14 See Stoynov, Al. Penal Law, General Part. Sofia, 1999, p. 404. 11 12
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Life Without Parole ď ź An Inhuman and Degrading Punishment
achieved by means of a less severe punishment. In other words, in essence the perpetrator is incorrigible and the specific danger posed to the public by both the perpetrator and the act is extremely high and requires that the possibility of another crime be limited forever. Also, the general prevention goals cannot be achieved even by life imprisonment under art. 38a of the Penal Code. Given the specifics of the subject of the crime, para 2 of art. 38 of the Penal Code restricts the scope of LWOP by considering the age of the perpetrator and a possible pregnancy. LWOP may not be imposed on a person under twenty – or eighteen for military personnel and in times of war – at the crime of committing the crime. LWOP may not be imposed on a woman who was pregnant when committing the crime or when the sentence was handed. The grounds for these restrictions are humane. As per the Penal Code, life imprisonment or LWOP are always envisaged as an alternative to term imprisonment. And while life imprisonment (with or without the possibility of parole) is always handed down for crimes against the republic or against the person as an alternative to imprisonment, in the following chapters there is no logic and consistency in prescribing either life imprisonment, or LWOP, or both. For example, he who while driving rolling stock, an aircraft, a motor vehicle, a vessel, a combat or specialized vehicle, breaches the traffic rules and causes death to one or more persons, is punished by imprisonment of 10 to 20 years or, in especially grave circumstances, from 15 to 20 years or life imprisonment (art. 342 of the Penal Code). However, he who in time of war fails to perform his military service obligations by simulating sickness, forging a document or by other deceptive means, when the act is especially serious, shall be punished by imprisonment of 5 to 20 years or LWOP (art. 397 in conjunction with art. 383, para 3). Why has the legislator envisaged only life imprisonment in the first case and only LWOP in the second? Isn't it worrying that such a great variation, 5 years to LWOP, is foreseen for a single crime (see also art. 410b of the Penal Code)? LWOP alone (without life imprisonment) is foreseen for a series of other crimes, with the most severe punishment imposed not only on the commander but on every crew member of a sinking military vessel who leaves the vessel without an order from his commander (art. 399 of the Penal Code). Everyone who leaves a battlefield during combat or who surrenders to the enemy for fear or cowardice or who refuses to use a weapon during combat (art. 400 of the Penal Code) is also endangered by LWOP.
Execution of the life imprisonment and LWOP punishments Under the Enforcement of Sentences and Guarded Detention Act (ESGDA),15 insofar as no special provisions are applicable, the execution of life imprisonment and LWOP punishments is subject to the general provisions on imprisonment, as in essence life imprisonment is imprisonment for an unlimited period. Life imprisonment and 15
Promulg. SG No. 25, 03.04.2009, in force as of 01.06.2009.
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Life Without Parole An Inhuman and Degrading Punishment
LWOP are served in separate prisons or in separate wards in other prisons. 16 For prisoners sentenced to life imprisonment or LWOP, the initial special regime may be changed to a lighter one in case of good behaviour and when the prisoner has served at least five years of the sentence. Persons sentenced to life imprisonment and LWOP can be accommodated in common premises with the other prisoners and can participate in joint employment, training, educational, sports and other activities upon decision of the committee on the execution of penal sanctions, in case they were placed in high security confinement and based on an assessment of their personality.17 LWOP is a punishment that is alien to the modern European penal systems. It is also deeply inhuman, as it deprives the prisoner of any hope of freedom. It is in the light of the distinction, whether or not the punishment may be commuted to a term sentence, that the question whether imposing and serving LWOP violates art. 3 of the European Convention on Human Rights is answered. This article bans torture, inhuman or degrading treatment or punishment. The European Court of Human Rights (ECtHR) in Strasbourg has ruled on many occasions on the compliance of this punishment with the prohibition in art. 3 of the Convention. In the past eight or nine years the ECtHR has adopted a permanent interpretation, under which only the existence of legal (substantive and procedural) and factual (consistent with the age of the prisoners) possibilities for the reduction of life imprisonment to some final, albeit long, term of imprisonment, upon the expiration of which the prisoner will be released, is a criterion for the compliance of this punishment with the prohibition contained in art. 3. of the Convention.18 The current Penal Code does not allow any possibility for life without the possibility of parole to be commuted to term imprisonment. It therefore contradicts the criteria for a minimum threshold of the humanity of penalties, as adopted in the ECtHR case law, and should be abolished as a punishment under Bulgarian penal law.
See art. 197 ESGDA. See art. 198 ESGDA. 18 ECtHR, Einhorn v. France, complaint № 71555/01, admissibility decision of 16.10.2001; Stanford v. The United Kingdom, complaint № 73299/01, admissibility decision of 12.12.2002; Leger v. France, complaint № 19324/02, decision of 11.04.2006; Kafkaris v. Cyprus, complaint № 21906/04, decision of 12.02.2008. See also Kanev, K. Protection against Torture, Cruel, Inhuman or Degrading Treatment or Punishment. Bulgarian Helsinki Committee. Sofia, 2009, pp. 140-141. 16 17
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IV. COMPARISON BETWEEN THE EUROPEAN AND THE BULGARIAN STANDARDS ON THE TREATMENT OF LIFE SENTENCED PRISONERS On October 9, 2003 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2003)23 to member states on the management by prison administrations of life sentence and other long-term prisoners. For the purposes of the recommendation, a long-term prisoner is one serving a sentence or sentences totaling five or more years. The document makes no distinction between the recommendations on the management of life sentences and the management of other long-term sentences. The only exception is the requirement for “special management care and attention” that needs to be paid to the particular problems “posed by prisoners who are likely to spend their natural life in prison”. The use of the word “likely” indicates that the Committee of Ministers does not regard the life sentence as absolute and unconditional, unlike the Bulgarian penal enforcement law. Recommendation Rec(2003)23 reflects the civilized understanding of the European states that whatever the sentence of a prisoner, they need to have the opportunity to demonstrate with their conduct whether they should be given an opportunity for reintegration in society. Unlike this understanding, the Bulgarian National Standards on the Treatment of Life Sentenced Prisoners, adopted by the director-general of the Chief Directorate of Execution of Sentences on February 2, 2007, allow life sentenced prisoners no other option than to spend their entire life in prison, despite the statutory possibility of commuting the life sentence to a fixed sentence. The humanity of the European standard is evident in the requirement that life sentenced prisoners should be given a chance: “In order to allow terminally ill prisoners to die with dignity, consideration should be given to releasing them so that they may be cared for and die outside prison”. Both documents are focused on the management of life sentences, but this is the only similarity between them, as they reflect entirely different perceptions of the life sentence. The Bulgarian national standards indicate the understanding that the prisoners with life sentences are a separate category of inmates, characterized by the fact that they will spend the rest of their lives in isolation. It is not accidental that the first task formulated in these standards is “to ensure the necessary safety level for staff and prisoners”. Unlike this understanding, the main focus in Recommendation Rec(2003)23 is on working with prisoners to achieve the goal of the punishment, i.e. rehabilitation and successful reintegration in society, including of life sentenced prisoners. The main difference between the European and the Bulgarian standard is that the European one, albeit applicable to the life sentence, is in fact a standard on determinate
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Life Without Parole ď ź An Inhuman and Degrading Punishment
sentences. The differences between the two standards become most evident in the comparison of the basic principles defining the approach to the treatment of prisoners with life sentences:
BASIC PRINCIPLES
Recommendation Rec(2003)23 1.
2.
3.
(Individualisation principle) Consideration should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence. (Normalisation principle) Prison life should be arranged so as to approximate as closely as possible to the realities of life in the community. (Responsibility principle) Prisoners should be given opportunities to exercise personal responsibility in daily prison life.
4.
(Security and safety principle) A clear distinction should be made between any risks posed by life sentence and other long-term prisoners to the external community, to themselves, to other prisoners and to those working in or visiting the prison.
5.
(Non-segregation principle) Consideration should be given to not segregating life sentence and other long-term prisoners on the sole ground of their sentence.
6.
(Progression principle) Individual planning for the management of the prisoner's life or long-term sentence should aim at securing progressive movement through the prison system.
National standards 1. Introduction of criteria that describe in detail the enforcement of the most severe punishment. 2. Identification of the minimum requirements that have significant importance for respect of human rights and achieving the resocialization effect. 3. Establishing a professional attitude on behalf of staff, combining vigilance and rigour with respect for the prisoners' dignity. 4. Striking a balance between security, protection of the individual rights of life sentenced prisoners and the way they are treated.
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V. NUMBER OF PRISONERS SERVING LWOP, SENTENCES HANDED BY YEAR AND DISTRIBUTION BY PRISON Life without the possibility of parole under the Bulgarian Penal Code has existed since late 1998. Since then, the number of prisoners with such sentences has been growing steadily. Between 1999 and 2008, a total of 90 LWOP sentences have come into effect. Figure 1 below shows the number of sentences by year:
Fig. 1. Life without possibility of parole, sentences handed by year. 19 Source: National Statistical Institute
These 90 sentences should be increased by the 21 “death by firing squad” sentences, which in early 1999 were commuted to LWOP. The sentences handed in 2009, for which the National Statistical Institute has not yet published data, should also be added. However, data provided by the Chief Directorate of Execution of Sentences and later confirmed during the BHC researchers’ visits to all prisons, indicate that by August 1, 2009 there were a total of 58 prisoners serving life without the possibility of parole. Their distribution by prison is as follows:
Data taken from the annual publications of the National Statistical Institute: Crimes and Convicted Individuals, table 12 “Convicted individuals sentenced under the Penal Code chapters and articles and the penalties imposed”. Data provided by the administration of the Lovech prison, which the BHC visited in 2009, indicate that two LWOP sentences have been handed on a single inmate in different years, i.e. the number of the sentences handed is greater by one than the number of prisoners serving them. 19
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13
Fig. 2. Number of prisoners serving LWOP sentences, by prison, as at August 1, 2009. Source: Chief Directorate of Execution of Sentences
At this stage the BHC has no satisfactory explanation why the number of prisoners in prison is considerably smaller than the number of sentences handed (58 compared to 111 sentences handed on 110 persons, as per the data quoted above). It should be noted that this is the only category of prisoners that pardon has not been applied to, and that there are no legal possibility whatsoever to commute these sentences. To ascertain this fact, the BHC initiated two steps: 1.
In a letter to the Vice-President of the Republic of Bulgaria from August 26, 2009, the BHC requested information on the number of prisoners sentenced to LWOP who have been pardoned. The answer from the vice-president’s office makes it clear that the documentation of the President through to January 21, 2002 has been submitted to the National Archive Fund. After this date, pardon files had been created for 16 prisoners sentenced to life without the possibility of parole, but pardon was denied to all of them. Upon a visit to the State Archive Fund and a review of the Vice-President’s documentation, the BHC established that no prisoners serving LWOP were pardoned prior to this date, which means that pardon is only a theoretical possibility for them.
2.
In a letter to the Prosecutor-General from January 6, 2010 the BHC requested information whether the statute under art. 38, para 3 of the Penal Code – commuting life imprisonment to imprisonment – is also applicable to those serving LWOP, as well as information on the number of prisoners serving LWOP for whom the prosecution has proposed commutation of their sentences to life imprisonment, as provided under art. 449 of the Penal Proceedings Code. The Prosecutor-General’s response included an analysis of
Life Without Parole An Inhuman and Degrading Punishment
art. 38a, para 3 of the Penal Code, stating that: “The statute under art. 38, para 3 of the Penal Code is only applicable to life imprisonment under art. 38a” (i.e., life with the possibility of parole). Therefore there are no prerequisites for the submission of proposals under art. 449 to commute life without the possibility of parole to a custodial sentence, and such proposals have not been formulated“. The response makes it clear that the Prosecutor-General believes that art. 449 of the Penal Proceedings Code is not applicable to prisoners serving LWOP. We can make several assumptions why there is such a large discrepancy between the number of sentences handed and the actual number of prisoners serving sentences: 1. The number of prisoners serving LWOP in prisons is greater. This assumption turned out to be untrue. In the second half of 2009, the BHC visited all prisons and collected information on the number of prisoners in this category. The information confirmed that the number of LWOP prisoners serving their sentences - 58, as provided by the Chief Directorate of Execution of Sentences, was correct. 2. The annual data of the National Statistical Institute about the number of prisoners sentenced to LWOP is higher and probably either some of the life imprisonment sentences were wrongly entered as LWOP (instead of life sentences) or some of the sentences included were at first or second instance, in other words, not final. To verify these assumptions, the BHC contacted the National Statistical Institute. In an interview with a senior expert at the Healthcare and Justice Statistics Department, the BHC learned that the most severe punishment in the country is subject to special attention during the processing and the publication of the data. When courts submit information on the handing of such sentences, NSI staff contact these courts for confirmation that the sentences reported are really LWOP and that they are final.20 3. If the first two assumptions are correct, then it would be logical to assume that the missing prisoners sentenced to LWOP have died. To verify this, the BHC asked the Chief Directorate of Execution of Sentences to provide information about the total number of the deceased serving such a sentence. The response from February 9, 2010 makes it clear that the number of the deceased is not 52 – which is what it should have been had the first two assumptions been correct – but 11. That the number of the deceased prisoners in this category is not great is also evident from the Chief Directorate of Execution of Sentences’ reference quoted above, according to which by August 1, 2009 the number of Interview with Ms. Ani Bachvarova, senior expert at the Healthcare and Justice Statistics Department, National Statistical Institute, February 26, 2010. 20
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prisoners sentenced to LWOP who had earlier been sentenced to death (and had their death sentences commuted), was 19. This means that over the more than 10 years that had passed since their death sentences were commuted in 1999, only two prisoners of a total of 19 had passed away. 4. It could be assumed that some of the prisoners serving LWOP have developed a mental illness, have been deemed incapacitated and have been released on such grounds. The BHC checked with the Judiciary Ward at the State Psychiatric Hospital in Lovech and with the Specialized Hospital for Mental Disorders at the Lovech prison. Their response was that no prisoners in this category have had their sentence terminated after being diagnosed.21
Interview with Dr. Neshkov, head of the Specialized Hospital for Mental Disorders at the Lovech prison, February 26, 2010. 21
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VI. LEGAL STATUS OF PRISONERS SERVING LWOP Chapter 15 “Execution of life imprisonment and life without the possibility of parole”, art. 187, para 2 of ESGDA stipulates: “Insofar as not provided otherwise under this chapter, the execution of life imprisonment and life without the possibility of parole shall be subject to the general provisions”. Apart from the conditions on regime replacement and those on placement in common premises, the chapter doesn't impose any other restrictions of the fundamental rights of prisoners sentenced to LWOP, i.e. they should enjoy the same rights as the other prisoners. According to art. 197 of ESGDA, life imprisonment and life without the possibility of parole are enforced in separate prisons or in separate wards in other prisons. Art. 71, para 2 of ESGDA specifies: “Prisoners under a special regime shall be accommodated in permanently locked premises under closer supervision and guard”. Art. 213 of the Regulations on the Application of ESGDA add: “They may participate in collective activities only with prisoners of the same category”. The high security prison areas for life sentenced or LWOP prisoners are not the same in all prisons. In some prisons, these areas also host the penal cells, as well as the long-term isolation cells for accused and defendants under closer supervision and guard. In other prisons, the cells for life sentenced or LWOP prisoners are in separate hallways, thus reducing regime restrictions concerning lavatory access, outdoor stay and other out-of-cell activities. Data provided by the Chief Directorate of Execution of Sentences reveal that out of a total of 58 prisoners serving LWOP, the regime of 18, or approximately one-third, was changed from “special” (maximum security) to “secure”. As per art. 198, para 1 of ESGDA, the initial (maximum security) special regime may be replaced with a lighter one if the prisoner demonstrates good conduct and has served no less than 5 years of the sentence. “Pure special regime”, a term that does not exist in penitentiary norms, but is used by the administration, is applied only for two LWOP prisoners in the Sofia prison and one in the Burgas prison, for security reasons. This means that they are handcuffed every time they are taken out of their cells and taken elsewhere, including to the medical office, for a visit, to the library, etc. They spend the whole out-of-door stay handcuffed. For the prisoner at the Burgas prison, this is due to “exhausted means”, i.e. all attempts to positively influence him have failed. The change of regime does not mean that the prisoners sentenced to LWOP can automatically be moved to common premises under a lighter regime. The most important thing that is done prior to making a decision on integration in the general population is risk assessment. It is based on a series of behavioral and psychological factors. Should the assessment team come up with a positive opinion, the life sentenced prisoner may be moved to share a cell with other inmates. This is the only legal
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Life Without Parole ď ź An Inhuman and Degrading Punishment
possibility for these prisoners to be taken out of the high security area. The prison in Pleven is an example of this practice. There, three inmates were accommodated in common premises and this did not create any tension or conflict in the groups. It was therefore deemed that this practice could be expanded to other prisons. At a later stage, a total of 7 prisoners were moved to common premises at the prisons in Varna, Burgas and Sofia. As for the remaining 11 prisoners serving life sentences, for some of them the administration is not convinced that they would be able to share premises with other inmates without a problem; others wouldn't move to common premises, even though the administration has approved the move, as the living conditions in the individual cells are better than those in cells occupied by 10 to 14 inmates. With the exception of the four prisons mentioned above, in all other prisons during the second half of 2009 the administration was either getting individual prisoners ready for gradual integration (Plovdiv, Belene) or thought that there are no inmates who meet the conditions and deserve to be taken out of the high security area. While trying to provide LWOP prisoners the necessary diversity of living conditions, the managements of some prisons have proposed to the Chief Directorate of Execution of Sentences to initiate a rotation of this category of prisoners, i.e. to have them sent to other prisons for certain periods of time. However, so far the arguments that relocating prisoners would reduce the tension in the high security areas have not been deemed substantiated. The average prison stay of prisoners sentenced to LWOP does not exceed that of other inmates with long-term sentences. According to data provided by the Chief Directorate of Execution of Sentences, by August 1, 2009 there were no LWOP prisoners who have served more than 25 years of their sentence. Four have spent more than 20 years in prison (those who were sentenced to death prior to 1989 and whose death sentences were commuted). By the same date, approximately Âź of all 58 prisoners sentenced to LWOP have served between 15 and 20 years in prison. The data gives the impression that a significant share of the prisoners sentenced to LWOP are already of old age. However, the data indicate that only three convicts are over 60. Most of the prisoners in this category are aged 35 to 50. In several cases the crime was committed shortly after the perpetrator had turned 20, the age under which a life sentence may not be imposed under the Penal Code. These prisoners are currently in their thirties. Although the Penal Code lists scores of crimes for which a LWOP sentence may be handed, there are only several crimes for which the courts have actually handed such sentences. Most often, the prisoners serving LWOP have been found guilty of more than one premeditated murder committed with particular cruelty and in a painful manner. In several cases the victims were children or elderly people. In most cases the murders were preceded by robbery or rape, and were followed by horrifying attempts to cover up the evidence of the crime.
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Life Without Parole ď ź An Inhuman and Degrading Punishment
VII. SOCIAL PROFILE OF LWOP PRISONERS The handing of the most severe sentence in the country is not conditional on the existence of a prior conviction. For half of the prisoners sentenced to LWOP the crime for which they were sentenced was a first conviction. However, it was most often committed with inhuman cruelty and in an especially painful for the victim manner. In this respect, the most typical situation was at the Sofia prison, where approximately 90% of the LWOP prisoners were not multiple offenders. The situation was similar at the Bobovdol prison, where 75% of the prisoners were not multiple offenders. At the prisons in Varna, Vratsa, Burgas, Lovech, Stara Zagora and Pleven, the ratio between first-time offenders and multiple offenders was generally 50:50. In two prisons, in Plovdiv and Pazardzhik, all prisoners in this category were multiple offenders. The study of the ethnic profile of prisoners sentenced to LWOP showed that the relative share of the Bulgarians among them is around 65%. Minorities are overrepresented in this category of prisoners, too, although not to such an extent as among the other prisoners. The prisons in Sofia, Bobovdol, Plovdiv and Vratsa, where all prisoners serving LWOP are of Bulgarian origin, are indicative in this respect. Approximately 2/3 of the prisoners at the prisons in Burgas, Lovech, Belene, Stara Zagora and Pleven are of Bulgarian origin. The relative share of the Bulgarians was low only at the Varna and Pazardzhik prisons, 20% and 33%, respectively. The study of the educational status of LWOP prisoners revealed a pattern that is not typical among other categories of inmates. The main conclusion with regard to the literacy in this specific category is that as a whole they have obtained a higher degree of education in comparison to other inmates. For example, the relative share of university graduates among LWOP prisoners is 7%, while its share among the inmate community as a whole does not exceed 1%. Forty-three percent of those sentenced to LWOP have completed secondary education, significantly more than among other categories. Thirty-three percent have completed 8th grade, and only 14% have completed 4th grade or are illiterate. During the first five years of their sentence, LWOP prisoners are not allowed to go to school as they have no right to attend collective events. They can study on individual curricula only, in line with art. 162, para 4 of ESGDA. Prisoners sentenced to LWOP are yet to make use of this opportunity to continue their education at the Lovech prison. Should they desire to attend school, the prisoners must wait for their regime to be changed from maximum security to a lighter regime, as per art. 198, para 2 of ESGDA. The same holds true for their participation in educational, vocational and training courses. In response to a BHC query about the number of prisoners sentenced to LWOP who are continuing their education at prison schools, the Chief Directorate of Execution of Sentences stated that there are no students among this category of prisoners.
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Life Without Parole ď ź An Inhuman and Degrading Punishment
The marital status of prisoners sentenced to LWOP does not differ substantially from that of other inmates. Only 21% of the life sentenced prisoners are married, while 62% are single. The rest are either divorced or widowed, or have cohabited without marriage. The ESGDA does not restrict the prisoners' right to marry. According to art. 89 of ESGDA, they are eligible to marry. In 2009 the Chief Directorate of Execution of Sentences gave a prisoner serving a LWOP sentence at the prison in Pleven permission to marry.
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Life Without Parole ď ź An Inhuman and Degrading Punishment
VIII. LIVING CONDITIONS The ESGDA does not require that prisoners sentenced to LWOP are placed in single cells. Data provided by the Chief Directorate of Execution of Sentences makes it clear that 11 prisoners accommodated in single cells do not wish to be moved, although their regime has been relaxed and they are eligible for accommodation under other regime conditions. Two of them have refused to be moved to common premises outside the high security area, while the remaining nine were not willing to live together with other life sentenced prisoners. At the time of the BHC visits, all prisoners sentenced to LWOP at the prisons in Belene, Plovdiv, Pazardzhik and Bobovdol were placed in single cells. At the prisons in Sofia, Stara Zagora, Vratsa and Pleven, there were two prisoners who shared a cell while the rest were in single cells. Since it is not required that LWOP prisoners are separated from life sentenced prisoners, it is possible that a life sentenced prisoner is placed in the same cell with a LWOP prisoner. Neither the inmates nor the prison administrations reported any problems arising from the accommodation of prisoners under such arrangements. In fact, they expressed satisfaction with the opportunity to choose cell and accommodation depending on the compatibility of prisoners' personalities. At the prison in Burgas, probably due to the large number of prisoners sentenced to LWOP, three cells were occupied by two inmates each, while at the prison in Varna there was one cell occupied by four inmates, two of them sentenced to LWOP. In Lovech, one cell was occupied by two prisoners, one by three and two cells with single occupants. The surface area of the single cells for LWOP prisoners varies from 6-6.5 m2 (Varna, Burgas) to 10-12 m2 (Sofia, Belene). In some prisons, however, both larger and smaller cells are used. Such is the case in Belene, where the surface area of one cell is 3.8 m 2; it had been occupied by a high-risk inmate for seven years. The average surface area available to an inmate placed in the high security area is greater than the respective surface area of the common cells in other prison wards. With the exception of the prisons in Vratsa (overhauled at the end of 2009, including new wiring, new floorings, plastering, lavatories, showers, etc.), Bobovdol, Pazardzhik and Plovdiv, the cells in the high security area are very much depreciated, the floors and the walls are dirty and the furniture is hopelessly obsolete. Some cells are equipped with double bunks, the socalled “second watchtower�, although the upper bed is rarely used. There are small tables in all cells, but chairs are not always available (Burgas, Pleven), which hinders normal eating in the cell (only the prison in Varna has a canteen in the high security area, but it is not used for its intended purpose). The furniture is supplemented by drawers and hangers, rarely by shelves. The furniture used by LWOP prisoners (beds, tables, chairs, drawers, etc.) is fixed to cell floors and walls. The sanitary and hygienic conditions in the high security areas are not different than those in other prison wards. The only exception was the high security area at the prison
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Life Without Parole An Inhuman and Degrading Punishment
in Varna, which the BHC found to be the most neglected. A strong smell of urine permeated the hallway. The food cupboard in the hallway was covered by grease accumulated for years. The floor plastering in some cells was broken and the walls were dirty and chipped. After a recent fight between inmates, prisoners were ordered to eat in their cells. Inmates claim that this has allowed cockroaches to breed. The same holds true for rats; both security staff and inmates were unanimous that rats get out of their holes and walk down the hallways even in broad daylight. The holes can be easily seen in the lower portions of the doors and in the hallway walls. According to security staff, trying to have them poisoned is unthinkable for security reasons. The medical staff at the prison medical facility, who under art. 150, para 1, item 1 of ESGDA are responsible the hygiene and the cleanliness, are obviously incapable of controlling the hygiene and destroying the cockroaches and the rodents. According to prison staff, no funds were available in 2009 and no contract was signed with an exterminator. The natural light in the cells is most often insufficient. When the artificial light is off, twilight reigns in the cells. The windows of these cells are typically 1 meter long and 60-80 centimeters wide. In most prisons the windows are located two meters above the floor. Combined with the fact that cell furniture is permanently fixed, this doesn't allow the inmates to look outside.22 The windows of the cells in the high security area have new PVC frames in five prisons (Burgas, Lovech, Vratsa, Bobovdol and Plovdiv). The artificial lighting is different, varying from a standard bulb hanging on a cable to three bulbs in a large cell for three inmates (Varna), luminescent lighting (Belene) or two new 25W lamps fixed to the ceiling (Vratsa). With several notable exceptions (Varna), in all prisons the artificial lighting remains on day and night – the so-called “24-hour watch light” – which prison staff claim is due to security reasons, i.e. the inside of the cell must be visible at all times through the spy hole in the door. This has caused discontent among some inmates, who claim it makes it hard for them to fall asleep, especially when the lighting is luminescent. In Vratsa, the only prison that was overhauled in 2009, the light switches are in the hallway. Although the watch lights in the cells are never switched off, the electricity is switched off at 10.30 p.m. and is switched on again at 6.30 a.m. In individual cases, electricity is available for a longer period, especially during football championships or as a reward during some weekdays. The TV channels are rarely selected (Stara Zagora) and inmates have access to all channels offered by the cable operator. There is no ventilation equipment in high security prison areas. The ventilation is natural only, i.e. by means of opening the windows which in the winter results in a Rule 18.2 of the Revised European Prison Rules stipulates: “In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system”. 22
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Life Without Parole An Inhuman and Degrading Punishment
significant decrease of cell temperature. In most prisons the central heating is switched on only for an hour in the morning and an hour in the afternoon, even during the coldest days. All high security areas lack normal washing and drying facilities. Washing clothes and underwear is even more difficult when there is no tap water in the cells and access to a lavatory is restricted to several minutes. Clothes are dried on lines in the cells as LWOP prisoners have no access to external or internal common drying facilities. LWOP prisoners take their food not in a canteen but in their cells. For this purpose, everyone has plates and a spoon in the cell, washing them when he is allowed access to the lavatory when there is no tap water in the cell. In most LWOP prisoner cells visited by the BHC, improvised shelves and cupboards were used to store food received as a postal package; those who were able to get food with the necessary quality and quantity reported that they did not eat the food provided by the prison. Sanitary facilities in the cells are of special importance to prisoners sentenced to LWOP, as unlike other prisoners they are kept in permanently locked cells. Currently, sanitary facilities in the cells of LWOP prisoners are available at the prisons in Sofia, Bobovdol, Pleven, Lovech, Vratsa, Belene and in two cells at the prison in Burgas. The remaining cells in Burgas, as well as those in Plovdiv, Stara Zagora, Varna and Pazardzhik have no sanitary facilities. The high security areas in the Lovech and Burgas prisons are the only ones where the toilets are a separate room accessed by a door. In Lovech they are in the cell itself (taking up surface area, but cell size is sufficient for this). In the high security area in Burgas, three adjacent cells were converted in two, each with its own sanitary facility. For this purpose, the middle cell was split in two, then each half was added to a cell as a sanitary facility. However, prison capacity doesn’t allow for such reconstruction. The sanitary facilities in the other prisons are located in an internal corner of the cell, behind a meter-high wall (a curtain in Sofia). In some places, the prisoners use makeshift screens, usually made of bed linen. In most cases, the sanitary facility comprises a toilet seat with a built-in flush tank. In Burgas, despite the luxurious look of the toilet seat, the tank is empty as it is not connected to the water-supply system; water is brought from the common sanitary facility. The toilets in the high security area in Sofia are of the squat type, with showers installed above them. In some prisons with cell toilets, there is also a small sink with cold tap water; in Lovech, there is also hot water. In high security areas without toilets in the cells the access to a sanitary facility is for 30 minutes in the morning, at lunchtime and in the evening. This time needs to be used, apart from personal hygiene, for cleaning the buckets and washing the dishes kept in the cells. Queues occur often, as the cells are unlocked in groups of several and sanitary facility capacity doesn’t allow for use by a large number of prisoners. For example, the sanitary facility in the high security area in Burgas has two toilets, while in Varna apart from the two toilets there is also an urinal – a cement channel in the floor using with a gravity drain (without running water)
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Life Without Parole An Inhuman and Degrading Punishment
through one of the holes. In the best case, there are three taps (usually a part of a builtin common sink). Should the prisoners need access to a sanitary facility outside the scheduled hours, they need to notify the security personnel. Most prisons have no alarm system.23 So the inmates are forced to bang on the doors or to shout to have their cells opened. This often causes dissent and conflict with security personnel. To avoid this, inmates are often forced to meet their physiological needs by using buckets and bottles; in case they are not alone in a cell, they have to do this in front of their inmates. This practice has given prisoners grounds to file lawsuits with Bulgarian courts. In the end, one of them has managed to prove that the practice constitutes inhuman and degrading treatment on behalf of the state against the applicant. Below is an excerpt from court decisions on a lawsuit filed by a LWOP prisoner who managed to get a convicting verdict against the Ministry of Justice on two occasions: Excerpts from Decision No. 456/2006 of the Veliko Tarnovo Court of Appeals:
“On September 8, 1999 N. D. D. was transferred to the Lovech prison, where he stayed for different periods of time in cells No. 18, 19 and 22 at the 11th ward. The judicial technical assessment, accepted and heard by the appellate court, provides a conclusion on cell parameters - 13.12 m2, 12.80 m2 and 12.68 m2, respectively. It also provides the uncovered cell space - 6.29 m2, 5.90 m2 and 5.78 m2, respectively. The assessment indicates that in each of these cells there is a plastic bucket for physiological needs, as the cells have no sanitary facilities. The inmates in five cells used a common sanitary facility under a schedule defined by the prison administration. Prisoners are allowed 1 hour of outdoor stay a day. Apart from that, they are taken out of their cells during different times (15 minutes in the morning for personal hygiene, 10 minutes before lunch and 10 minutes before dinner), to a total of 45 minutes per day. The assessment has also established that the prisoners occupying the above mentioned cells get their meals in the cell. The living conditions described above, under which the plaintiff was placed at the prison in Lovech, are inconsistent with those prescribed by the legislation of the Republic of Bulgaria regulating the execution of penal sanctions in prison – art. 2, art. 9, art. 23 and art. 34 of the Execution of Penal Sanctions Act (EPSA). The provisions of art. 167 of the Regulation on the Enforcement of EPSA on closer supervision and security for persons serving „life imprisonment“ are not grounds to restrict their normal human rights and to degrade their dignity…The appellate court holds that the defendant should be held responsible for the fact that due to the inaction of prison administration officials the plaintiff has not Rule 18.2 of the Revised European Prison Rules stipulates: ”In all buildings where prisoners are required to live, work or congregate: c. there shall be an alarm system that enables prisoners to contact the staff without delay“. 23
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Life Without Parole An Inhuman and Degrading Punishment
been provided material living conditions consistent with the minimum requirements under which the punishment may not be allowed to become a means of inflicting degradation and torture. As a consequence from the fact that during his stay at the Lovech prison the plaintiff was placed under conditions that are inconsistent with the minimum requirements (insufficient area, extremely small space for movement in the cell, lack of sanitary facilities and therefore use of a plastic bucket for physiological needs in the cell where the prisoners take their meals), he has suffered negative experiences arising from the inconveniences caused by the conditions and the degradation of his human dignity...” Excerpt from decision No. 204 / 2007 of the Veliko Tarnovo Court of Appeals:
“That plaintiff claims that he has been inhabiting cells without sanitary facilities and tap water. These were replaced by a plastic bucket and 1.5 liter bottle for physiological needs. He claims that the conditions in the cells didn’t meet the generally accepted idea of hygiene and decency and the minimum standards under the European Prison Rules. The claim also states that the illegal inaction on behalf of the defendant, who hasn’t exercised sufficient control on the activities of the Execution of Penal Sanctions Directorate-General with regard to ensuring normal human living conditions during the plaintiff’s stay at the prisons in Plovdiv and Lovech, has led to intensive and irreparable degrading of his dignity in front of the other inmates, in whose presence he was forced to relieve himself in a plastic bucket which didn’t close well and emitted irreparable smell day and night. The appellate court accepts the following factual circumstances: The plaintiff has stayed in cells lacking sanitary facilities and tap water. The testimony before the court of first instance of the witnesses I. A. and P. R., who shared a cell with the plaintiff, helped establish the following: outside the scheduled hours, the inmates have used a plastic bucket located about a meter away from the table where they had their meals, and close to the beds. It was not separated from the furniture by a screen. They had to use it often, which was unpleasant for the plaintiff as a bad smell permeated the cell for hours. They had to open a window but this was impossible during the winter, since it was permanently closed. The witness P. R. has witnessed the plaintiff make complaints in this respect, and the latter could hardly wait to go out for clean air.” In both lawsuits, the courts held that the Ministry of Justice pay the plaintiff a compensation for non-pecuniary damages under art. 1, para 1 of the State and Municipalities’ Liability for Damages Act.
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Life Without Parole An Inhuman and Degrading Punishment
All prisons comply with the requirement under art. 213 of the Regulation on the Enforcement of EPSA that convicts sentenced to life imprisonment and LWOP be kept in permanently locked premises. The only exception is the prison in Pleven, where the high security area is structured as an investigation detention facility. The cells have no windows. Light comes in through the hallway windows. The doors are replaced by bars that remain open during the day. When BHC visited the prison, only the hallways were locked. On the other hand, there were five cameras in the hallway for video surveillance of both the hallway and the cells. The cameras were installed on the hallway ceiling, between the cells, so every camera could monitor two cells at the same time. Despite the freedom enjoyed by the occupants of the common hallway, however, they expressed great discontent with this practice, as they believed that the sleeping rooms and the sanitary facilities in the cells cannot be subject to permanent surveillance and that this is a severe violation of their right to privacy. Art. 167 of ESGDA stipulates that: “Access to penitentiary facilities shall be provided to clergymen of the religious communities registered in the Republic of Bulgaria“. If they are not accommodated in common premises, the prisoners sentenced to LWOP cannot take part in religious services and rituals. At the same time, the law stipulates: “The clergyman may meet the prisoners in private“, so if the inmates in this category so desire, they could meet their religious needs. Each prison has a functioning chapel and full-time clergymen. The share of believers among LWOP prisoners is not great. According to the prison administration, very few of them have expressed desire to meet the orthodox priest. Evangelist churches are active in two prisons and meetings between LWOP prisoners and clergymen from these denominations have been organized. In another three prisons, prisoners sentenced to LWOP stated they were Muslim and wanted to meet an imam. The prisoner H. A. H., serving LWOP, filed a request with the warden and the minister of justice, claiming that he was practicing Islam and he wanted pork meat and products thereof excluded from his food. When this didn't happen, he filed a lawsuit against the Ministry of Justice. He lost the case at the district court, lost again at the district court, but won at the Supreme Cassation Court, which decided to have the plaintiff compensated for the inaction of the prison administration. The results from the lawsuits related to a second complaint of this prisoner were similar. He won another lawsuit, for a different period of time, at the cassation instance, when he proved that he has suffered damages while practicing Islam because pork meat and products made of it were not excluded from his meals. Just like the other inmates, those sentenced to LWOP have the right to visits not less than twice a month. They make use of this right considerably less than the other inmates. The share of those who have visits is no more than 60%, including the prisoners that have had only one visit over the past 2 or 3 years. No more than 30% of the prisoners enjoy regular visits. This may be explained by the duration of their
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Life Without Parole An Inhuman and Degrading Punishment
sentences and the gradual breach of contacts with relatives, acquaintances and friends, sometimes even due to the exceptional cruelty of the crime committed. The BHC found extended visits at two prisons. Since the beginning of 2009, a total of seven prisoners serving life imprisonment and LWOP at the prison in Sofia have been allowed as a reward a 3-hour visit without bars between the prisoner and the visitor. A similar incentive for the inmates is used at the prison in Bobovdol. Prisoners sentenced to LWOP are not allowed to have unlimited correspondence without an explicit decision of the court. When they were given the right to phone conversation, the share of those among them who kept correspondence dropped significantly. The study showed that their relative share does not exceed 35%, and that a large share of the correspondence is not with relatives and kin but with different institutions – requests and complaints with regard to the sentence or the legal status of the plaintiffs. The hallways in the high security area, as well as the other prison hallways, are equipped with telephones which may be used by the prisoners sentenced to LWOP under a schedule approved in advance. In May, 2002 the Supreme Administrative Court reviewed a case filed by convicts sentenced to life imprisonment and LWOP against a provision in the Regulation on the Enforcement of EPSA which stipulates that „convicts sentenced to life imprisonment shall not be allowed to use a coinoperated telephone“. The court held that the Regulation on the Enforcement of EPSA contradicts the Execution of Penal Sanctions Act and that the right to use a telephone to establish contact with other persons is granted by law and may not be revoked, restricted or prohibited by a lower normative act, such as a regulation. Phone calls are only possible if the prisoners have money for prepaid cards. The price for the phone calls from the telephones installed in prison hallways (not only for LWOP prisoners) is several times higher than the price for phone calls outside the prison (BGN 1 on the average, compared to BGN 0.20 outside of prison). This not only has a negative influence on inmates' contacts with kin, relatives and lawyers but also forces them to look for alternatives, such as bringing and selling mobile phones behind prison walls (a practice the prison administration admits cannot be stopped). At the same time, there is always the risk that the mobile phone may be found by the administration and its owner severely punished. Unlike the other inmates, LWOP prisoners remain permanently locked in their cells 23 hours a day. Therefore, they badly need the 1-hour outdoor stay. The management of most prisons has realized this and, whenever possible, has increased the outdoor stay. In the Pleven and Lovech prisons, following the 1-hour outdoor stay the prisoners who so wish may have another hour for sports activities. At the Vratsa prison, the prisoners are allowed one hour in the fitness room and their outdoor stay increases as the day grows, reaching a maximum of an hour and twenty minutes. However, not all
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Life Without Parole ď ź An Inhuman and Degrading Punishment
prisoners use the additional time for sports activities. The outdoor stay has also been increased in Pazardzhik (by 40 minutes), Plovdiv (by 30 minutes) and Stara Zagora (by 20 minutes). A new outdoor courtyard was built in 2009 in Burgas. All prisoners, including those sentenced to LWOP, will have the right to two hours of outdoor stay, subject to hiring and providing sufficient security personnel. At the Sofia prison, the outdoor stay has been increased to an hour and a half, but prisoners residing in the high security area have the right to an additional hour and a half to visit the club located in the same hallway. Thus, the time spent by prisoners in their cells has been reduced to 21 hours per day. In the Varna prison, a tennis table has been installed in the hallway of the high security area; it may be used for half an hour twice a week. During the remaining days, religious talks are organized at the high security area's canteen. Once a week, the occupants of the high security area at the prison in Burgas have access to the library. Also once a week, they are allowed access to the chapel. In most prisons the open-air courtyards for the prisoners from the high security area are different than those for the other inmates. Their surface area is significantly smaller and in some prisons (Plovdiv, Belene) does not allow for normal intensive movement. Following the escape of a prisoner sentenced to LWOP, the outdoor stay at the Varna prison was relocated from the common courtyard to a small courtyard with an additional net on top of it, which the inmates called “the Cuban square�. They regarded the use of this courtyard as a collective punishment for the escape of the prisoner residing in the high security area.
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Life Without Parole An Inhuman and Degrading Punishment
IX. EMPLOYMENT In response to a BHC query on the number of prisoners sentenced to LWOP, including the number of those employed, the Chief Directorate of Execution of Sentences provided a table dated August 27, 2009. According to the table, a total of seven prisoners were employed as of August 1, 2009 and were working in their cells, while one was working outside his cell. The employment, which depends greatly on external company orders, went down in the second half of 2009. When an order was withdrawn, five prisoners who were folding envelopes for the prison printing office in Sofia, had to cease work. The prison administration finds it difficult to provide employment even for inmates accommodated in boarding houses who are allowed to work outside of prison. It is even more difficult to find work for those sentenced to life imprisonment and LWOP, given that they must work in their cells. No employment has been provided to the prisoners at four prisons (Varna, Stara Zagora, Pazardzhik and Lovech). Despite the difficulties, the other prisons have managed to find work for one or more prisoners, for different periods of time: packaging of surgical gloves in Plovdiv; folding of gift envelopes in Sofia, Belene, Pleven and Bobovdol; making archive boxes in Varna. Two prisoners sentenced to LWOP and one prisoner accommodated in a common cell outside the high security area continued to work at the Burgas prison during the second half of 2009, assembling brushes and felt-tip pens. One of the prisoners at the prison in Pleven had also kept his job, folding envelopes. A prisoner in the high security area at the Sofia prison is periodically asked to write scripts for celebrations organized in the prison.
X. RE-SOCIALIZATION ACTIVITIES The National Standards on the Treatment of Life-Sentenced Prisoners24, adopted on February 2, 2007, contain the following requirement: “The treatment regime for lifesentenced prisoners shall include: wherever possible, appropriate work, training, development of social habits, education, programs aimed at maintaining the physical and mental health, medical services and other activities“. The provision of art. 87 of ESGDA is also in force with regard to prisoners sentenced to LWOP: “The prisoners may receive and read newspapers, magazines and books and study foreign languages. They may listen to radio and watch television in compliance with procedures approved by the warden of the respective penitentiary institution”. Most LWOP prisoners had their own TV sets, some had radios. The only exception were two inmates in Sofia and Belene, who according to the administration refused to have TVs in their cells. Their risk assessment is very high, which is why they are not offered any alternative, such as visiting a club or any other activity inside or outside of their cells. 24
See Appendix 3.
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Life Without Parole An Inhuman and Degrading Punishment
Some of the prisoners sentenced to LWOP, who have been occupying the same cells for years, try to make the interior of the cell as close to home as possible, with improvised cupboards, newspapers, books, curtains, a place for dishes, etc. Due to a lack of living space in most prisons, the clubs in the high security area have been transformed into cells. The high security areas in Lovech, Bobovdol, Varna, Belene, Pazardzhik, Plovdiv and Stara Zagora have no club premises. Clubs exist in Sofia (equipped with a TV set, computers, a library, chess boards and daily newspapers) and Pleven. Opportunities for meaningful activities were provided to only a few prisoners sentenced to LWOP in several prisons. In Sofia, one of them had the opportunity to paint while another one was allowed to write scripts for celebrations, which is regarded as work. A prisoner in Lovech was also allowed to paint, while another one, in Varna, made tapestries, which his mother sold and then send the money to him in prison. A young prisoner in the high security area in Stara Zagora was allowed to complete a computer course and he was expecting to join a yoga course as well. Providing comprehensive services to prisoners sentenced to LWOP is extremely difficult given the fact that the sentence does not give them hope of returning to free life. Nevertheless, in several prisons the BHC established serious attempts on behalf of the teams working with such prisoners to provide the necessary psychological support and to give a sense of perspective, to encourage self-assistance, social contacts and involvement in various activities, to neutralize negative depressive and psychosomatic symptoms. 25 However, the BHC found that most prisons did not meet the requirements of the standards: development of a sentence management plan; collective summary and analysis of the information on every individual case; elaboration of a report in line with the risk assessment and methodological guidance for specific actions. This holds true in an even greater extent for another obligation of the administration – “…to provide access to cultural, information and sports activities for prisoners with life sentences”. Several prisoners sentenced to LWOP complained about this, reporting during the BHC visits that no individual work is being done and that no cultural, informational or sports events are organized for them.
National Standards on the Treatment of Life-Sentenced Prisoners, adopted by the director-general of the Chief Directorate of Execution of Sentences on February 2, 2007. 25
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Life Without Parole An Inhuman and Degrading Punishment
XI. DISCIPLINARY PRACTICE Although the prisoners in the high security area are subject to the greatest restrictions, the system of penalties and incentives for behavioral control of prisoners sentenced to LWOP is not so well developed as in the common wards. This may be explained by the higher educational status of these prisoners, by the lack of conflict due to single cell occupancy, by the better adaptation to regime requirements due to the much longer stay in prison, and by the lack of turnover among the inmates. The new ESGDA provides a definition of “violation” and lists the hypotheses, in which a violation exists. Cases of penalties imposed on LWOP prisoners were reported in the prisons in Burgas, Pazardzhik, Belene and Varna. At the Stara Zagora prison, a prisoner whose regime was changed from the initial “special” (maximum security) to “high security confinement” was returned on a “special” regime again in 2009 after writing complaints against the prison. If the prisoner has not made defamatory statements and has not falsely accused staff as per art. 100, para 2, item 7 of ESGDA, he should not be subject to disciplinary liability for the requests and complaints filed, as stipulated by art. 90, para 5 of ESGDA. Rewards were given much more often than penalties at the prisons in Sofia, Lovech, Burgas, Belene, Vratsa, Pleven and Stara Zagora. The variation in the incentives given to prisoners sentenced to LWOP is not as wide as that of the incentives available to the other inmates. The rewards are limited to a written commendation, extended visiting hours and an extraordinary food package. The better educational status of the occupants of the high security areas allows them to better justify the requests and complaints they file. Some complaints are with regard to conflict behaviour of other inmates in the high security area, others are related to physical, sanitary or hygienic conditions, food quality and medical services. In several cases the prisoners sentenced to LWOP claim that they were victims of unfair trial, but there are also such who claim that in essence the LWOP sentence constitutes torture and inhuman treatment.
ХII. MEDICAL SERVICES The medical services to prisoners sentenced to LWOP do not pose problems different than those faced by the other inmates. Their health status is affected by the isolation and the lack of mobility but, on the other hand, this reduces the risk of infectious diseases that are much more common among prisoners in common wards. The access to medical facilities for LWOP prisoners is not different than the access for the other inmates. As prison medical offices are incapable of checking all prisoners who report sick in a day, each ward has access to the medical personnel on two working days. Should they need a medical check, the inmates from the high security area have their names written in a notebook provided by security staff. When there is no urgency, the
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Life Without Parole An Inhuman and Degrading Punishment
prisoners whose names are in the notebook are taken out of the high security area and taken to the medical facility during the days allocated for the high security area. During a BHC visit to the prison in Varna, a LWOP prisoner reported that he was in need of treatment, but the medical center did not provide the medicines he needed. Medical staff asked him whether he could afford to buy a certain medicine and have it delivered by relatives. The practice in cases when this was impossible, was to start treatment only if the medical center had the necessary medicines.
XIII. SUPERVISION ON THE EXECUTION OF LWOP SENTENCES Prisoners serving their sentences in the high security areas are not subject to special supervision. The specifics of their punishment and the different treatment in comparison to the other inmates requires also special monitoring of their rights. Nevertheless, the institutions authorized to exercise supervision - inspectorate, prosecution, ombudsman, monitoring committees - do not conduct topical inspections of the high security areas. Also, the supervision of the execution of LWOP was not included in the detailed National Standards on the Treatment of Life-Sentenced Prisoners.
XIV. CONCLUSION AND RECOMMENDATIONS The reform of the Bulgarian penitentiary system began much later than the reform of other areas of public life. The issues of the outdated penal policy, expressed also in the existence of the “life without the possibility of parole” punishment in the Bulgarian Penal Code, complement the material problems of the system arising from the public unpopularity of the measures that need to be implemented. In essence, LWOP constitutes inhuman and degrading treatment, which is inconsistent with the European penal policy. In order to have this problem solved, the BHC is addressing the following recommendations to the responsible state institutions: 1.
To eliminate the punishment “life without the possibility of parole” from the Penal Code.
2.
To commute the LWOP sentences of all prisoners to other punishments.
3.
To continue making steps towards accommodating and dislocating lifesentenced prisoners not only on the basis of the sentence, but also on the basis of the assessment of their needs and the updated risk assessment.
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Life Without Parole ď ź An Inhuman and Degrading Punishment
4.
Based on the needs and the risk assessment, and considering the variety of personal characteristics, to develop individual sentence management plans and have them reviewed on a regular basis as well as in all cases when the needs or the characteristics of the prisoners have changed.
5.
To include in the sentence management plans optimum regime and resocialization activities, including human contacts, in order to compensate life in isolation.
6.
To improve the living conditions in the wards, in which life sentenced prisoners serve their sentences.
7.
To improve the visit conditions for life sentenced prisoners by providing better opportunities for personal contacts, as well as opportunities for intimate visits.
8.
To allow life sentenced prisoners access to various items that could help make their everyday life more meaningful.
9.
To comply with Recommendation Rec(2003)23 under which the individual planning of life sentence management needs to ensure the achievement of progressive change.
10.
To have life imprisonment organized in such a way as to make it as close as possible to the realities of living in the community.
11.
Not to allow segregation of life sentenced prisoners on the basis of their sentence only.
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