address these persisting problems are unacceptable for the NPM. It is necessary to
undertake decisive actions, including through changes in the regulatory environment, to
overcome the above problems.
First, it should be noted that one of the possible ways to reduce overcrowding is
associated with extending the application of punishments, alternative to the
imprisonment. This requires changes both in the practice of imposing penalties by the
courts, and amendments of the Criminal Code, that to lower the criminal liability and the
imposition of penalties for petty crime especially with lower danger for the public.
Another measure is to increase the share of the release on parole, for example
through more widespread electronic monitoring of the persons released. Amendments
are needed to Ordinance No 15 on the electronic monitoring of the behaviour of the
convicted persons with a view to extending the sphere of application of this monitoring.
It is necessary to introduce a preventive remedy for protection of prisoners. The
European Court of Human Rights (ECHR) shows that the PDL should have available
remedy, which can lead to improved conditions of detention. In the case of "Ananiev and
others against Russia" the ECHR establishes what conditions must meet a preventive
remedy in order to be effective. The Court stated that to be effective, the system must
ensure rapid and thorough investigation of complaints of the prisoners, to ensure their
effective participation in the examination of their complaints and to have a wide range of
legal instruments to eliminate the violations found.
Another important measure is the provision of a compensatory remedy. The
European Court of Human Rights held that the claim for compensation for damages
under the Law on Liability of State and Municipalities of 1988 (LLSM) in principle is an
effective remedy in respect of the poor conditions of detention. The Court specifies that
since the above remedy may not lead to actual improvement of the existing situation, it
can not provide adequate compensation in a situation where the material conditions
remain unchanged. The Court finds that remedy ineffective due to the following
deficiencies of the courts: 1) the cumulative effect of the various aspects of poor material
conditions is not taken into consideration, and 2) a formalistic approach on the need to
prove the non-pecuniary (moral) damage, in particular in cases where the material
conditions are accepted by the national courts as problematic in terms of Art. 3 of the
Convention, is applied.
The employment in the penitentiary establishments (prisons) falls outside the
system of national labour and social security legislation. Prisoners carry out work
without individual contracts of employment and opportunity for pension social security.
Medical care in the PE (prisons) falls outside the national healthcare system.
Medical institutions are under the control of the Minister of Justice and the control of
medical services by non-medical authorities can not achieve the necessary and required
integration and compatibility with the standards in the national health system.
Under Recommendation No Rec (2006) 2 of the Committee of Ministers of the
Member States on the European Prison Rules, it is necessary to establish detailed
procedures for the use of force, including: various types of force that can be used; the
circumstances where any type of force can be used; staff members who are entitled to
use different types of force; the level of authority required before the use of force and
the reports that are to be prepared on the use of force. Bulgarian LESD does not provide
such a detailed and thorough determination of the types of force and the circumstances
in which it can be used. The NPM believes that legally must be determined also the
obligation of the prison administration to submit for certification the injured party to a
physician external to the penitentiary system at each signal for use of force and aids.
2. Unaccompanied minors or juvenile seeking international protection
52
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