There has long been controversy over the issue of detainees' rights. Many people - and governments - feel that these "rights" are in fact privileges, which one can lose by running afoul of the law. This opinion isn't shared by others, particularly members of civil society and human rights organizations, and it isn't shared by the European Court of Human Rights, which ruled in Velev v. Bulgaria that being detained does not deprive one of their rights, and access to their rights may not be limited in an arbitrary and unjustified way.

The claimant in this case, Velyo Velev, had been incarcerated in the Stara Zagora Detention Center for 29 months, from November 2004 to April 2007, for being accused of possessing an illegal firearm. It was not his first offense, and Mr. Velev was considered a "recidivist." During the period of his incarceration, he requested to be allowed to take part in education activities, which would allow him to complete his secondary education studies. His request was denied by the authorities, and their decision was confirmed in a judgment by the Bulgarian Supreme Administrative Court. One of the reasons given for refusing his request was that it is the state's prerogative to limit the rights of detainees - in this case, Mr. Velev's right to education.

None of the arguments presented by the state were able to convince the ECtHR. The claim that refusing Mr. Velev access to education was based on a concern that he would come in contact with "non-recidivists" and could have a negative influence on them. This argument was rejected by the Court, which said there was no basis for such concerns and noted that the state failed to provide any statistical data justifying limiting one's access to education. The other main argument of the state - that Mr. Velev would be transferred to a prison for repeat offenders upon his final sentencing and therefore shouldn't assimilate into Stara Zagora more than necessary - was also dismissed by the Court, which determined that Bulgaria had erred in its initial categorization of the claimant as a recidivist, as he had not yet formally been convicted of the weapons charge.

The Court granted Mr. Velev damages totaling 2,000 euros and ruled that there had been no grounds to limit his right to education. In fact, the Court said, the only national regulation that should have been applied to Mr. Velev's case was one obliging detention centers' authorities to encourage the detainees to participate in education activities.

The Court underscored that the signatory states bound by Article 2 of the 1st Addendum Protocol of the Convention are not obliged to provide detainees with educational activities if such provision is materially difficult or impossible given the existing resources of the center. However, an institution that is already equipped with such facilities is not allowed to refuse their detainees access to them without justification. The Court reminded the state of the recommendations of the Council of Europe's European Prison Rules, stating, inter alia, that "Each detention facility aims at providing all inmates with access to possibly broad education programs, which - taking into account individual ambitions of the prisoners - are capable of meeting their needs."

This case is a reminder that the right to education is also a subject of controversy in many other EU states. It is very often seen by the authorities as a reward or privilege, instead of a basic right.

The article originally appeared in "Prawnik," an appendix to Dziennik Gazeta Prawna