ECHR confirms that right to freedom of expression breached in taking action against prisoners for making complaints

Case of Shahanov and Palfreeman v Bulgaria (Application nos. 35365/12 and 69125/12) [2016] ECHR 686 (21 July 2016)

Summary
The applicants, Mr Shahanov and Mr Palfreeman, are currently serving extended prison sentences in Bulgaria's Plovdiv and Sofia Prisons. Both applicants commenced proceedings against the Republic of Bulgaria in the European Court of Human Rights (ECHR) in 2012. The ECHR subsequently joined the proceedings due to their similarity.

The applicant's grievances concerned, in particular, disciplinary punishments imposed by prison authorities following complaints the prisoners had made against prison staff. The applicants alleged that the disciplinary punishments, which were enforced on the basis that the prisoners' complaints had been false and/or defamatory, unjustifiably interfered with their right to freedom of expression under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Mr Shahanov also held a separate complaint, alleging interference with his right to private and family life under article 8 of the Convention, on the basis that prison staff routinely open and read his private mail.

In its recent judgment, the ECHR found that both prisoners were justified in submitting their complaints, even where inquiries into these complaints did not subsequently identify any wrongdoing on the part of the prisons or their staff. As a result, the respondents were ordered to pay damages (as well as limited costs) to the applicants.

Facts
Mr Shahanov
The first applicant, Mr Nikolay Shahanov, is a Bulgarian national serving a sentence in Plovdiv Prison. In 2011, Mr Shahanov made two written complaints to the Minister for Justice. Mr Shahanov complained that another inmate claimed to be related to two officers in the prison. This inmate had also threatened other inmates, made unwarranted complaints to get special treatment and planned to escape with the assistance of his relatives. Additionally, Mr Shahanov asserted that prison authorities were routinely opening and reading his private correspondence.

An inquiry was opened in relation to Mr Shahanov's complaints and the relevant authority concluded that there was no familial relationship or improper contact between the other inmate and prison officers. Following this, the Governor of Plovdiv Prison ordered that Mr Shahanov be placed in solitary confinement for ten days for making false allegations and defamatory statements about the officers. Mr Shahanov sought judicial review of the Governor's order, which was subsequently upheld on the basis that the findings were accurate and the punishment was proportionate to Mr Shahanov's misconduct.

Mr Palfreeman
The second applicant, Mr Jock Palfreeman, is an Australian national serving an extended sentence in Sofia Prison. In 2012, Mr Palfreeman made a written complaint to the Governor of Sofia Prison. Mr Palfreeman complained that officers had been rude to two journalists that had visited him in prison and had also stolen the personal effects of a visitor of another inmate from the prison lockers. An inquiry that was subsequently held in relation to Mr Palfreeman's complaint found that there was no evidence to validate the prisoner's claims.

In response to the complaint, the Governor of Sofia Prison ordered that Mr Palfreeman would not be able to receive food parcels from outside the prison for three months. Mr Palfreeman appealed the Governor's order to the head of the Chief Directorate for the Execution of Sentences, but it was subsequently upheld. Mr Palfreeman also sought judicial review of the Governor's order in the Sofia District Court, however the Court held that only orders imposing solitary confinement were amenable to such review.

Relevant European law
Article 10(1), provides that every individual has the right to "freedom of expression", which includes the freedom to "impart information and ideas without interference by public authority". Article 10(2) qualifies Article 10(1) by stating that:

… the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society, in the interests of crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 8(1), which entitles every individual to "respect for his private and family life … and his correspondence", was relevant to the claim regarding Mr Shahanov's private correspondence. Public authorities are not entitled to interfere with this right "except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others" (Article 8(2)).

Decision
The ECHR found that Bulgaria's interference with the exercise of the applicants' rights under article 10 was apparent; the imposition of solitary confinement and the restriction on the receipt of food parcels was an interference, in the form of a penalty, with their rights to freedom of expression. Accordingly, the interference could only be compatible with the Convention if it was both "prescribed by law" and "necessary in a democratic society" for one of the aims set out in article 10(2).

Primarily, the Court accepted that the disciplinary punishments were "prescribed by law" (i.e. sections 100 and 101 of the Execution of Sentences and Pre-Trial Detention Act 2009) and was also satisfied that the interferences were intended to protect the reputation and rights of the officers who were the subjects of the applicants' complaints. The salient question was therefore whether the interferences were "necessary in a democratic society" to achieve [that] aim." This answer to this question turned on the proportionality of the interferences. Inassessing this, the Court considered four interconnected factors:

• the nature and exact manner of communication of the complaints;
• the contexts in which the complaints were made;
• the extent to which they affected the officers concerned; and
• the severity of the disciplinary punishments imposed on the applicants.

As a result of its assessment, the Court found:

• While the allegation were serious, the language used in the complaints was not "strong, vexatious or immoderate".
• The complaints concerned an inherent tension in the prison human rights context. Prison authorities seek to deter prisoners from, and discipline them for, making knowingly or recklessly false allegations or defamatory statements about officers, which are calculated to undermine their authority and public confidence in them. In a democratic society, this is a legitimate interest. At the same time, prisoners are in a uniquely vulnerable position when they seek to complain about officers that are tasked with their protection and discipline.
• The fact that the complaints were not made public (or outside the relevant channels for complaint) was important to the question of proportionality, as articulated in the relevant case law. This fact indicated the negative impact to the reputation of the prison staff would have been minimal.

Following the above assessment, the Court found that the "serious sanctions imposed on the applicants could only be regarded as necessary in exceptional circumstances", for example, where the applicants had knowingly made false accusations. This had not been the situation in either applicant's case and on this basis the Court found that there had been a breach of article 10 of the Convention.

The Court also considered Mr Shahanov's complaint about the prison authorities inspecting his mail, in breach of his rights under article 8 of the Convention, however dismissed it as "manifestly ill-founded".

Commentary
Overall, the recent decision of the ECHR clearly reiterates the importance of "… the possibility in a democratic society governed by the rule of law for a private person to report an alleged irregularity in the conduct of a public official to an authority competent to deal with such an issue."

In the prison context, the decision illuminates the inherent theoretical tension between the State's interest in maintaining public and prisoner confidence in the administration of prisons, and the rights of prisoners to complain about the conditions in which they live out their sentences. The Court's reasoning attempts to balance those conflicting interests in practice by identifying factual considerations which might mitigate against, or weigh in favour of, punishing a prisoner for making a complaint about the conduct of an officer.

The full text of the decision can be found here.

Emily Chalk is a Graduate at DLA Piper.