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FIFTH
SECTION
CASE OF PETAR VASILEV v. BULGARIA
(Application
no. 62544/00)
JUDGMENT
STRASBOURG
21
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Petar Vasilev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R.
Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 62544/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Petar Hristov Vasilev
who was born in 1967 and lives in Varna (“the applicant”),
on 8 June 2000.
- The
applicant was represented by Ms E. Dimitrova, a lawyer practising in
Varna.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Karadjova, of the Ministry of Justice.
- On
9 June 2005 the Court declared the application partly inadmissible
and decided to communicate to the Government the applicant's
complaints concerning (1) the scope and nature of the judicial
control of lawfulness performed by the domestic courts in the
appeals' proceedings dating from December 1999 onwards; (2) the
speediness of the domestic decisions in response to the applicant's
appeals of 1 December 1999 and 2 May 2000; (3) the right of
participation of the applicant in the court hearings in response to
his appeals of 1 December 1999 and 2 May 2000; and, (4) the right to
have the appeal of October 2000 examined by a court. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant
- On
18 March 1999 a truck containing kitchen appliances was stolen while
it was parked in a residential neighbourhood. Several hours later,
acting on a tip-off, the police apprehended the applicant, who gave
flight, and an accomplice while they were unloading the kitchen
appliances from the stolen truck.
- On
19 March 1999 the applicant was charged, inter alia, with
grand larceny, which constituted a serious intentional offence. The
charges against him were amended on 14 and 29 April 1999.
- The
preliminary investigation was concluded on 30 April 1999.
- On
7 July 1999 the Varna Regional Prosecutor's Office filed an
indictment against the applicant with the Varna Regional Court. The
applicant was charged that in collusion with other persons, his
co-accused and an unidentified third individual who escaped arrest,
attempted to commit grand larceny of the kitchen appliances and to
steal the truck.
- The
Varna Regional Court started hearing the case on 9 February 2000.
- In
a judgment of 28 November 2000 the applicant was found guilty by the
Varna Regional Court of larceny of significant value (Article 195 §
2 of the Criminal Code) in respect of the kitchen appliances. The
charges of grand larceny, theft of the truck and collusion were
dismissed as unproven. The applicant was sentenced to five years'
imprisonment and a previous suspended sentence of two years'
imprisonment was also enforced. The time spent by the applicant in
pre-trial detention was deducted from the sentence to be served. On
an unspecified date the applicant appealed against the judgment.
- In
a judgment of 28 August 2001 the Varna Court of Appeals upheld the
lower court's judgment and found that the sentence imposed on the
applicant was just and fair, considering the offence for which he had
been found guilty. On an unspecified date the applicant filed a
cassation appeal against the judgment.
- In
a final judgment of 8 April 2002 the Supreme Court of Cassation
upheld the lower court's judgment.
B. The applicant's detention and his appeals against it
- The
applicant was arrested on 18 March 1999 on suspicion of having
committed grand larceny.
- When
he was charged with the offence on 19 March 1999 the applicant was
detained on remand under an order issue by an investigator and
confirmed by the Prosecutor's Office. The reason given for detaining
the applicant was that he had committed the offence soon after having
been released on bail on 1 March 1999 in the context of a preliminary
investigation concerning a charge of extortion. Those proceedings
were subsequently terminated on 18 November 1999 and the imposed bail
was lifted.
- When
the charges against the applicant were amended by an investigator on
14 April 1999 no specific grounds were given for continuing his
detention.
- On
an unspecified date the applicant filed his first appeal against his
detention, which the Varna Regional Court examined at a hearing on
26 April 1999. The court dismissed it as it found that the
applicant's detention was mandatory insofar as he was charged with a
serious intentional offence and also that there was a risk that he
might abscond or re-offend given his past criminal record, the
existence of a suspended sentence against him which would be enforced
if he was found guilty in these proceedings and the fact that he had
re-offended soon having after been released on bail in the context of
the preliminary investigation for extortion.
- When
the charges against the applicant were amended by an investigator on
29 April 1999 no specific grounds were given for continuing his
detention.
- The
applicant's next appeal, dated 19 July 1999 and followed up by a
second request of 3 September 1999, was dismissed by a decision of
the Varna Regional Court on 24 September 1999, which was upheld on
11 October 1999 by the Varna Court of Appeals. The courts found
that the applicant's detention was mandatory as he was charged with a
serious intentional offence, that he had re-offended soon after being
released on bail in the context of the second criminal proceedings
and that there was a risk that he might abscond or re-offend.
- In
another appeal, dated 1 and 10 December 1999, the applicant claimed
that there was insufficient evidence that he was guilty, that there
was a change in the circumstances regarding his detention because his
health had deteriorated and his family was having grave financial
difficulties without him. By decision of 15 December 1999 the Varna
Regional Court, in camera, dismissed his appeal, which was later
upheld by the Varna Court of Appeals on 27 December 1999. The courts
found that there were no new circumstances requiring a reassessment
of the need to continue the applicant's detention, because he had
failed to substantiate his assertions regarding his deteriorating
health and the dire financial condition of his family. The courts
also noted that there was another preliminary investigation pending
against him.
- At
a hearing on 6 March 2000 before the Varna Regional Court the
applicant's counsel once again appealed against his detention and
claimed that his family's situation had worsened and that his health
was continuing to deteriorate. The court dismissed the appeal on the
same day, which upon further appeal was upheld by the Varna Court of
Appeals on 20 March 2000. The courts considered that the applicant's
assertions did not introduce any new facts or circumstances
warranting a reassessment of the grounds of his detention. In
addition, they considered that the applicant's detention was
mandatory as he was charged with a serious intentional offence, that
in such cases there was a statutory presumption that he might abscond
or re-offend and that the applicant had failed to present sufficient
evidence to the contrary.
- In
his next appeal, dated 26 April 2000 but filed on 2 May 2000, the
applicant claimed that the courts had previously failed to examine
specific evidence that he might abscond or re-offend in order to
justify his continued detention. He claimed that they had simply
relied on the nature of the offence with which he was charged with
and had considered that detention was mandatory in such cases. The
Varna Regional Court did not immediately examine the applicant's
appeal, so on 29 May 2000 the applicant petitioned the President of
the Varna Regional Court to remove the presiding judge in his case,
because she was allegedly delaying the proceedings and had dismissed
his appeals against his detention without citing specific evidence in
support of her decisions.
- Both
requests of the applicant were examined and dismissed by the trial
court, in camera, on 30 May 2000. The Varna Regional Court considered
that the applicant had once again failed to present any new evidence
or to indicate new circumstances warranting a reassessment of the
grounds for his detention. At a hearing on 15 June 2000 the
applicant's counsel reiterated his appeal against his detention
citing the previous grounds for his request. The Varna Regional Court
dismissed the appeal on the same day as it considered that the
applicant's assertions did not constitute new facts warranting a
reassessment of the grounds for his detention. The applicant appealed
against both decisions on 16 June 2000, but on 26 June 2000 the Varna
Court of Appeals upheld the decisions of the lower court on similar
grounds.
- On
23 October 2000 the applicant filed his last appeal against his
detention. He claimed that the length of the detention itself, which
at that time was over nineteen months, was in contravention with the
aims and purposes of the measure to detain a defendant on remand. He
claimed that there was no longer evidence that he might abscond,
re-offend or hinder the investigation and objected to the courts'
reliance on the seriousness of the offence as the primary ground for
refusing his appeals against his detention. The Varna Regional Court
ruled on this appeal after having delivered its judgment at the
hearing on 28 November 2000. According to the minutes of the hearing,
it confirmed the applicant's detention on remand on the basis of the
gravity of the perpetrated offence, the applicant's conduct and the
severity of the imposed sentence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Grounds for
detention
- The
relevant provisions of the Code of Criminal Procedure (the “CCP”)
and the Bulgarian courts' practice before 1 January 2000 are
summarised in the Court's judgments in several similar cases (see,
among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§
25-36, ECHR 1999-II, Ilijkov v. Bulgaria, no. 33977/96, §§
55-59, 26 July 2001 and Yankov v. Bulgaria, no. 39084/97, §§
79-88, ECHR 2003-XII (extracts)).
- As
of 1 January 2000 the legal
regime of detention under the CCP was amended with the aim to ensure
compliance with the Convention (TR 1-02 Supreme Court of
Cassation). The effected amendments and the resulting practice of the
Bulgarian courts are summarised in the Court's judgments in the cases
of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35,
10 August 2006) and Yordanov v. Bulgaria (no. 56856/00,
§§ 21-24, 10 August 2006).
B. Scope of judicial control on pre-trial detention
- On
the basis of the relevant law before 1 January 2000, when ruling on
appeals against pre-trial detention of a person charged with having
committed a “serious” offence, the domestic courts
generally disregarded facts and arguments concerning the existence or
absence of a danger of the accused person's absconding or committing
offences and stated that every person accused of having committed a
serious offence must be remanded in custody unless exceptional
circumstances dictated otherwise (see decisions of the domestic
authorities criticised by the Court in the cases of Nikolova
and Ilijkov, both cited above, and Zaprianov v. Bulgaria,
no. 41171/98, 30 September 2004).
- In
June 2002, interpreting the amended provisions on pre-trial
detention, the Supreme Court of Cassation stated that when examining
an appeal against pre-trial detention the courts' task was not only
to verify whether the initial decision on remand in custody had been
lawful but also to establish whether continued detention was still
lawful and justified. In such proceedings the courts had to examine
all available evidence on all relevant aspects, including the amount
of the recognisance as the case may be (TR 1 02 Supreme Court of
Cassation).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained under Article 5 § 4 of the Convention
(1) that the courts failed to examine all aspects relevant to
the lawfulness, within the meaning of the Convention, of his
deprivation of liberty, (2) that he was not afforded the right to a
public hearing in response to all of his appeals, (3) that some of
them were not decided “speedily”, and (4) that his appeal
of 23 October 2000 was not ruled on by the courts.
Article
5 § 4 of the Convention provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
- The
Government contested the applicant's arguments and claimed that the
authorities afforded him with an effective procedure through which he
could effectively challenge the lawfulness of his detention. They
considered that the domestic courts had adequately and thoroughly
examined all aspects of the lawfulness of the applicant's detention
and had done so despite of the existence during part of the period in
question of a requirement for mandatory detention in cases involving
a serious intentional offence. The Government referred to the
reasoning of the domestic courts in dismissing the applicant's
appeals against his detention and that they found his detention to be
warranted insofar as there was a risk that he might abscond or
re-offend given his past criminal record, the existence of a
suspended sentence against him and the fact that he had re-offended
soon after having been released on bail in another set of
proceedings. In addition, they referred to the possibility utilised
on four occasions by the applicant to appeal further to the Varna
Court of Appeals which also examined the grounds of his appeals and
dismissed them. The Government also noted that the applicant had
failed in his appeal of 6 March 2000 to present evidence that there
was no danger that he might abscond or re-offend.
The
Government consented that not all of the applicant's appeals were
examined at a public hearing. However, they argued that over the
given period eight appeals were filed by the applicant against his
detention, which were examined by the domestic courts. Some of them
were dismissed in camera while others at a public hearing, which they
argued to have been in compliance with the applicable legislation at
the relevant time. Moreover they noted that some of the appeals were
examined before the changes to the legal regime of detention of 1
January 2000 and some immediately afterwards.
Lastly,
the Government stated that the applicant's appeals were decided
speedily and that his appeal of 23 October 2000 was dismissed at the
public hearing of the Varna Regional Court on 28 November 2000.
- The
applicant reiterated his complaints and claimed that the authorities
failed to provide him with a procedure through which he could
effectively challenge the lawfulness of his detention. He also
claimed that the other preliminary investigations against him, the
existence of which the authorities had relied upon in their decisions
to maintain his detention, had in the meantime been terminated and
that the courts had not made the necessary effort to check whether
their status had changed and simply reiterated their previously used
arguments to dismiss his appeals. In addition, irrespective of
whether there had been other preliminary investigations pending
against him, at the time of his detention in March 1999 he had had a
clean criminal record which should have been taken into account by
the authorities. Separately, he claimed that the courts failed to
seriously consider his allegations of a notable deterioration of his
health while in detention and should have ordered that specialised,
objective examinations be conducted in order to assess his claims. In
any event, the applicant argued that in response to his appeals the
domestic courts had failed to perform objective and thorough analyses
and to consider his specific situation, condition and circumstances.
The applicant also challenged the need, as claimed by the Government,
for him to have had to provide the courts with evidence in support of
his appeals so as to convince them of the lack of justification of
his detention. Moreover, he noted that the existence of a defective
legal regime of detention prior to 1 January 2000 and his attempts to
utilise it cannot in any way be an argument to his detriment.
In
respect of the lack of public hearings in response to some of his
appeals, the applicant noted that the legal regime of detention under
the CCP, both before and after 1 January 2000, required such appeals
to be heard in open court and in the presence of the detained, a
requirement with which the domestic courts had not always complied
with.
Lastly,
the applicant sustained his claim that some of his appeals were not
decided speedily and that these delays were not caused by him.
A. Admissibility
- The Court notes that on 9 June 2005 it declared
inadmissible the applicant's complaints relating to the appeals'
proceedings prior to December 1999.
- The Court further notes that the applicant's
complaints in relation to the period following the abovementioned
date are not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention. It also notes that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
- The
Court reiterates that arrested or detained persons are entitled to a
review bearing upon the procedural and substantive conditions which
are essential for the lawfulness, in the sense of the Convention, of
their deprivation of liberty. This means that the competent court has
to examine not only compliance with the procedural requirements set
out in domestic law, but also the reasonableness of the suspicion
grounding the arrest and the legitimacy of the purpose pursued by the
arrest and the ensuing detention (see Nikolova, cited above, §
58).
Additionally,
a court examining an appeal against detention must provide guarantees
of a judicial procedure. The proceedings must be adversarial and must
always ensure “equality of arms” between the parties, the
prosecutor and the detained person. In the case of a person whose
detention falls within the ambit of Article 5 § 1 (c), a hearing
is required (see Assenov and Others v. Bulgaria, judgment of
28 October 1998, Reports of Judgments and Decisions 1998 VIII,
p. 3302, § 162 and Nikolova, cited above, § 58).
Lastly,
Article 5 § 4 of the Convention also guarantees the right to a
speedy judicial decision concerning the lawfulness of detention (see
Rutten v. the Netherlands, no. 32605/96, § 52, 24 July
2001, unreported).
- In
respect of the applicant's complaint regarding the limited scope and
nature of the judicial control of lawfulness, the Court notes at the
outset that this complaint is very similar to those in previous cases
against Bulgaria where violations were found (see Nikolova, §§
54 66 and Ilijkov, §§ 88 106, both
cited above).
- Likewise,
the Court finds that the domestic courts in the present case, when
examining the applicant's appeals against his detention, relied on
the statutory provisions requiring mandatory detention for serious
intentional offences, the Supreme Court's practice which excluded any
examination of the question whether there was a “reasonable
suspicion” against the detainee and of facts concerning the
likelihood of flight or re-offending. Under that practice, a person
charged with a “serious intentional offence” was detained
on remand unless he or she demonstrated beyond doubt, the burden of
proof being borne by him or her, that there did not exist even a
hypothetical danger of absconding, re-offending or obstructing
justice. The presumption that such danger existed could be overturned
only in exceptional circumstances, such as where the detained person
was immobilised by illness (see paragraph 24 above and the references
quoted therein).
- In
addition, the Court notes that the domestic courts, citing lack of
new circumstances, effectively refused to examine in substance a
number of the applicant's appeals simply because of their similarity
with some of his previous appeals (see paragraphs 19, 20 and 22
above). Thus, they failed to take into account newly raised arguments
relating to his health and family situation. Moreover, they failed to
consider that the time elapsed and the stage of the proceedings were
separate factors unto themselves which reflect upon and might negate
the need for the applicant's continued detention.
- The
domestic courts in the present case also appear to have
misinterpreted the amendments of the CCP of 1 January 2000 and to
have continued to apply the previously existing defective approach
under which the applicant had to demonstrate beyond doubt that there
did not exist even a hypothetical danger of him or her absconding,
re-offending or obstructing justice.
- Considering
the above, the Court finds that the applicant was denied the
guarantees provided for in Article 5 § 4 of the Convention on
account of the limited scope, or lack, of judicial review of the
lawfulness of his detention on remand after December 1999. Thus,
there has been a violation of the said provision in that respect.
- In
view of this finding, the Court does not deem it necessary to inquire
whether these defective judicial reviews were provided speedily nor
whether all of them resulted in a final judicial decision (see,
mutatis mutandis, Nikolova, § 65, and Ilijkov,
§ 106, both cited above).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- At
the time of submitting his application the applicant requested to be
awarded damages for the alleged violations of the Convention in an
amount deemed appropriate by the Court. Following communication of
part of his complaints to the respondent Government the applicant did
not submit a comprehensive claim for just satisfaction together with
his observations in reply. He simply claimed 40,000 euros (EUR) as
compensation for the pecuniary and non pecuniary damage arising
out of the violation of Article 5 § 4 of the Convention. The
Government did not comment.
- The
Court notes that the applicant failed to substantiate his claim for
just satisfaction in the above stated amount. However, having regard
to all the circumstances of the case and to its case law in similar
cases (see, mutatis mutandis, Tanko
Todorov v. Bulgaria, no. 51562/99, § 60, 16 October
2006 and Spasov v. Bulgaria, no. 51796/99, § 69, 23
October 2006), and deciding on an equitable basis, the Court
awards the applicant EUR 800 in respect of non-pecuniary damage, plus
any tax that may chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed all the incurred costs and expenses but failed
to indicate the size of his claim. The Government did not comment.
- The
Court reiterates that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents and within the
time-limit fixed for the submission of the applicant's observations
on the merits, “failing which the Chamber may reject the claim
in whole or in part”. In the instant case, it observes that the
applicant failed to present a legal fees agreement with his
representative or an approved timesheet of the legal work performed
before the Court. In addition, he did not present any invoices or
receipts for any other costs. In view of the applicant's failure to
comply with the aforesaid requirement, the Court makes no award for
costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the limited scope, or
lack, of judicial review of the lawfulness of the applicant's
detention on remand after December 1999;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 800 (eight hundred euros)
in respect of non-pecuniary damage, to be converted into Bulgarian
levs at the rate applicable on the date of settlement, plus any tax
that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
