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FIFTH
SECTION
CASE OF KOSTADINOV v. BULGARIA
(Application
no. 55712/00)
JUDGMENT
STRASBOURG
7
February 2008
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 Kostadinov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Javier
Borrego Borrego,
Renate
Jaeger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 15 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55712/00) 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 Stefan Lazarov
Kostadinov (“the applicant”) who was born in 1976 and
lives in Pazardzhik, on 12 October 1999.
- The
applicant was represented by Mrs V. Kelcheva and Mr V. Stoyanov,
lawyers practising in Pazardzhik
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
- The
applicant alleged, in particular, that he had been subjected to
inhuman or degrading treatment while detained in the Pazardzhik
Regional Investigation Service detention facility and the Pazardzhik
Prison; that his detention had been unjustified and of excessive
length; that in response to his application for release of 29 March
1999 the domestic courts had not examined all the factors relevant to
the lawfulness of his detention and that his applications for release
of 29 March and 1 July 1999 had not been decided speedily; and that
he had not had an enforceable right to seek compensation for being a
victim of arrest or detention in breach of the provisions of Article
5 of the Convention.
- In
a decision of 22 May 2006 the Court declared the application partly
admissible and invited the parties to submit additional observations
in writing which should cover, in particular, the question of whether
the applicant was detained at the Pazardzhik Prison in inadequate
conditions.
- The
applicant filed additional observations on the merits while the
Government did not (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant and
his detention in the context of those proceedings
- On
18 January 1999 a preliminary investigation was opened against the
applicant for robbery. On the same day, the applicant was charged
with the offence and remanded in custody upon a decision of an
investigator which was confirmed by the public prosecutor's office.
It was alleged that the applicant, together with another individual,
had robbed an individual of 17,480,000 old Bulgarian levs (BGL;
approximately 8,964 euros (EUR)) and in the process had used force
and rendered the victim unconscious. In ordering that the applicant
be remanded in custody the investigator referred to, inter alia,
the personality of the detainee, the gravity of the offence and, in
general terms, the likelihood that he might abscond or re-offend.
- The
applicant filed an application for release on 27 January 1999, which
was dismissed by the Pazardzhik District Court on 3 February 1999.
The court found, inter alia, that the applicant was charged
with a serious intentional offence, which warranted mandatory
detention, and that it was likely that he might commit offences
against some of the witnesses, thereby obstructing the investigation.
In conclusion, no evidence warranting an exception to the requirement
of mandatory detention was found to exist.
- On
1 March 1999 the applicant filed another application for release
arguing, inter alia, that in the course of the preliminary
investigation it had been established that the amount which he had
allegedly taken from the victim had been only BGL 5,000,000
(approximately EUR 2,564) because the latter had been robbed on
more than one occasion on the day in question.
- The
applicant's application for release was dismissed by the District
Court on 15 March 1999, which found, inter alia, that the
applicant was charged with a serious intentional offence, which
warranted mandatory detention, that he might obstruct the
investigation and that due to his lack of income he was likely to
re-offend. In conclusion, no evidence warranting an exception to the
requirement of mandatory detention was found to exist.
- On
29 March 1999 the applicant filed his third application for release
claiming, inter alia, that there was no evidence that he would
abscond, re-offend or obstruct the investigation, that he suffered
from jaundice and that his health was deteriorating as a result of
his detention.
- The
applicant's application for release was dismissed by the District
Court on 23 April 1999, which found, inter alia, that the
applicant had been charged with a serious intentional offence, which
warranted mandatory detention, that he was in good health and that
there were indications that he might commit offences against some of
the witnesses, thereby obstructing the investigation. In conclusion,
no evidence was established to exist warranting an exception to the
requirement of mandatory detention.
- The
applicant contended that the charges against him were amended on
9 June 1999, which the Government did not challenge.
- The
preliminary investigation against the applicant was partially
terminated on 30 June 1999. The only outstanding charge against him
concerned common robbery of BGL 17,480,000 (approximately EUR 8,964).
- The
applicant filed his fourth application for release on 1 July 1999,
which was examined by the District Court on 27 July 1999. The court
found in favour of the applicant and released him on bail of 200 new
Bulgarian levs (approximately EUR 102). It found, inter alia,
that the applicant had no criminal record and had good character
references, and that the preliminary investigation had already been
completed.
- The
applicant was released on the same day, 27 July 1999.
- The
preliminary investigation against the applicant was further partially
terminated on 8 October 1999 as a result of its findings pertaining
to the amount and currency of the stolen money. The only outstanding
charge against the applicant concerned common robbery of 5,000 German
marks (approximately EUR 2,564).
- An
indictment against the applicant was filed with the District Court on
an undetermined date.
- In
a judgment of an unspecified date the District Court acquitted the
applicant. That judgment was subsequently upheld, also on an
unspecified date, by the Pazardzhik Regional Court.
B. The conditions of detention
- Between
18 January and 1 July 1999 the applicant was detained at the
Pazardzhik Regional Investigation Service detention facility. From 1
July to 27 July 1999 he was detained at the Pazardzhik Prison.
- The
applicant contended, in respect of both detention facilities, that
there had been (a) insufficient oxygen in the cells;
(b) inadequate hygiene, the use of a bucket for the sanitary
needs of the detainees and the presence of parasites (fleas and wood
worms), skin infections (scabies) and rodents (mice and rats); (c)
insufficient natural light; (d) no special recreational area;
(e) unhealthy food; (f) no access to literature,
newspapers, magazines, radio or television; (g) no possibility
for the applicant to meet with his attorney in private at his
initiative; and (h) no possibility to maintain active correspondence.
- The
applicant's contentions in respect of the conditions of detention at
the above facilities are corroborated by the signed declarations of
two other detainees, Mr D. Alexov and Mr R. Dobrev.
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)).
B. Scope of judicial control on pre-trial detention
- On
the basis of the relevant law before 1 January 2000, when ruling on
applications for release 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).
C. State and Municipalities Responsibility for Damage
Act 1988
- The
State and Municipalities Responsibility for Damage Act 1988 (the
“SMRDA”: renamed in 2006) provided at the relevant time
that the State was liable for damage caused to private persons by
(a) the illegal orders, actions or omissions of government
bodies and officials acting within the scope of, or in connection
with, their administrative duties; and (b) the organs of the
investigation, the prosecution and the courts for unlawful pre trial
detention, if the detention order has been set aside for lack of
lawful grounds (sections 1-2).
- In respect of the regime of detention and conditions
of detention, the relevant domestic law and practice under sections 1
and 2 of the SMRDA has been summarised in the cases of Iovchev
v. Bulgaria (no. 41211/98, §§ 76-80,
2 February 2006) and Hamanov v. Bulgaria (no.
44062/98, §§ 56-60, 8 April 2004).
III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION
OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (“THE
CPT”)
- The
CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its
most recent visit report have since been made public.
- The
Pazardzhik Regional Investigation Service detention facility and the
Pazardzhik Prison were visited in 1995.
A. Relevant findings of the 1995 report (made public in
1997)
1. General observations
- The
CPT found that most, albeit not all, of the investigation service
detention facilities were overcrowded. With the exception of one
detention facility where conditions were slightly better, the
conditions were as follows: cells did not have access to natural
light; the artificial lighting was too weak to read by and was left
on permanently; ventilation was inadequate; the cleanliness of the
bedding and the cells as a whole left much to be desired; detainees
could access a sanitary facility twice a day (morning and evening)
for a few minutes and could take a weekly shower; outside of the two
daily visits to the toilets, detainees had to satisfy the needs of
nature in buckets inside the cells; although according to the
establishments' internal regulations detainees were entitled to a
“daily walk” of up to thirty minutes, it was often
reduced to five to ten minutes or not allowed at all; no other form
of out-of-cell activity was provided to persons detained.
- The
CPT further noted that food was of poor quality and in insufficient
quantity. In particular, the day's “hot meal” generally
consisted of a watery soup (often lukewarm) and inadequate quantities
of bread. At the other meals, detainees only received bread and a
little cheese or halva. Meat and fruit were rarely included on the
menu. Detainees had to eat from bowls without cutlery – not
even a spoon was provided.
- The
CPT also noted that family visits and correspondence were only
possible with express permission by a public prosecutor and that, as
a result, detainees' contacts with the outside world were very
limited. There was no radio or television.
- The
CPT concluded that the Bulgarian authorities had failed in their
obligation to provide detention conditions which were consistent with
the inherent dignity of the human person and that “almost
without exception, the conditions in the investigation service
detention facilities visited could fairly be described as inhuman and
degrading”. In reaction, the Bulgarian authorities agreed that
the CPT delegation's assessment had been “objective and
correctly presented” but indicated that the options for
improvement were limited by the country's difficult financial
circumstances.
- In
1995 the CPT recommended to the Bulgarian authorities, inter alia,
that sufficient food and drink and safe eating utensils be provided,
that mattresses and blankets be cleaned regularly, that detainees be
provided with personal hygiene products (soap, toothpaste, etc.),
that custodial staff be instructed that detainees should be allowed
to leave their cells during the day for the purpose of using a toilet
facility unless overriding security considerations required
otherwise, that the regulation providing for thirty minutes' exercise
per day be fully respected in practice, that cell lighting and
ventilation be improved, that the regime of family visits be revised
and that pre-trial detainees be more often transferred to prison even
before the preliminary investigation was completed. The possibility
of offering detainees at least one hour's outdoor exercise per day
was to be examined as a matter of urgency.
2. Pazardzhik Regional Investigation Service detention
facility
- The
CPT established that the Pazardzhik Regional Investigation Service
detention facility had fifteen cells, situated in the basement, and
at the time of the visit accommodated thirty detainees, including two
women in a separate cell.
- Six
cells measuring approximately twelve square metres were designed to
accommodate two detainees; the other nine, intended for three
occupants, measured some sixteen-and-a-half square metres. This
occupancy rate was being complied with at the time of the visit and
from the living space standpoint was deemed acceptable by the CPT.
However, all the remaining shortcomings observed in the other
investigation service detention facilities – dirty and
tattered bedding, no access to natural light, absence of activities,
limited access to sanitary facilities, etc. – also applied
there. Even the thirty-minute exercise rule, provided for in the
internal regulations and actually posted on cell doors, was not
observed.
3. Pazardzhik Prison
- In
this report the CPT found, inter alia, that the prison was
seriously overcrowded and that prisoners were obliged to spend most
of the day in their dormitories, mostly confined to their beds
because of lack of space. It also found the central heating to be
inadequate and that only some of the dormitories were fitted with
sanitary facilities.
B. Relevant findings of the 1999 report (made public in
2002)
- The
CPT noted that new rules providing for better conditions had been
enacted but had not yet resulted in significant improvements.
- In
most investigation detention facilities visited in 1999, with the
exception of a newly opened detention facility in Sofia, conditions
of detention were generally the same as those observed during the
CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic
access to toilet/shower facilities and a total absence of outdoor
exercise and out of cell activities. In some places, the
situation had even deteriorated.
- In
the Plovdiv Regional Investigation Service detention facility, as
well as in two other places, detainees “had to eat with their
fingers, not having been provided with appropriate cutlery”.
C. Relevant findings of the 2002 report (made public in
2004)
- During
the 2002 visit some improvements were noted in the country's
investigation service detention facilities, severely criticised in
previous reports. However, a great deal remained to be done: most
detainees continued to spend months on end locked up in overcrowded
cells twenty-four hours a day.
- Concerning
prisons, the CPT drew attention to the problem of overcrowding and to
the shortage of work and other activities for inmates.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to inhuman or degrading treatment while detained at
the Pazardzhik Regional Investigation Service detention facility and
the Pazardzhik Prison.
Article
3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government did not submit observations on the admissibility and
merits of the applicant's complaints.
- The
applicant restated his complaints and relied on the findings of the
CPT to corroborate his contentions. In respect of the conditions at
the Pazardzhik Prison he also referred to the findings of the
Bulgarian Helsinki Committee in its annual reports of 2001, 2004 and
2005, where they had allegedly deemed the conditions of detention at
this facility to have been inadequate. In particular, the 2001 report
detailed that there was overcrowding and insufficient access to
sanitary facilities as there was only one toilet per thirty to forty
prisoners. The applicant also alleged that during the period of his
detention in the Pazardzhik Prison he had not been allowed any
visitors and had had a daily walk of only an hour and that the food
had been insufficient and of substandard quality. In spite of being
held at this facility for just a month he argued that the minimum
level of severity had been attained and that there had therefore been
a violation of Article 3 of the Convention on that account.
A. Establishment of the facts
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, it has generally
applied the standard of proof “beyond reasonable doubt”.
However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000 VII, and Fedotov v. Russia, no.
5140/02, § 59, 25 October 2005).
- The
Court notes that the primary account of the conditions of the
applicant's detention at the two detention facilities is that
furnished by him.
- The Court observes that the applicant did provide
signed declarations by two other detainees at the detention
facilities in question (see paragraph 22 above), but as both of these
individuals have had cases before the Court with identical complaints
(Alexov v. Bulgaria (dec.), no. 54578/00, 22 May 2006 and
Dobrev v. Bulgaria, no. 55389/00, 10 August 2006),
considers that their statements should not be considered objective
and should not therefore be given any particular weight.
- The
Court reiterates that Convention proceedings, such as the present
application, do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he
who alleges something must prove that allegation) because in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting these allegations. The failure
on a Government's part to submit such information without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of the applicant's allegations (see Ahmet
Özkan and Others v. Turkey, no. 21689/93, § 426,
6 April 2004 and Fedotov, cited above, § 61).
- In
the present case, the Government did not submit observations on the
admissibility and merits of the applicant's complaints regarding the
conditions of detention in the Pazardzhik Regional Investigation
Service detention facility and the Pazardzhik Prison (see paragraph
43 above). Moreover, they did not offer a convincing explanation for
their failure to submit relevant information regarding the two
detention facilities when invited to do so after the admissibility
decision (see Fedotov, cited above, § 61).
- In
these circumstances, the Court will examine the merits of the
applicant's complaints in respect of the conditions of detention at
these facilities solely on the basis of his submissions (see Fedotov,
cited above, § 61 and Staykov v. Bulgaria,
no. 49438/99, § 75, 12 October 2006).
- While
not directly relevant, because the CPT visited the Pazardzhik
Regional Investigation Service detention facility and the Pazardzhik
Prison four years before the period of detention complained of by the
applicant (see paragraphs 20 and 28 above), the Court considers that
the relevant observations of the CPT in respect of the conditions of
detention at these facilities during its visits may also inform it in
its decision (see paragraphs 27-41 above and, for a similar approach,
Iovchev, § 130 and Staykov, §§ 75
and 79, both cited above).
B. General principles
- The Court reiterates at the outset that Article 3
of the Convention enshrines one of the most fundamental values of
democratic society. It prohibits in absolute terms torture or inhuman
or degrading treatment or punishment, irrespective of the
circumstances and the victim's behaviour (see, among others, Kudła
v. Poland [GC], no. 30210/96, § 90, ECHR 2000 XI
and Poltoratskiy v. Ukraine, no. 38812/97, § 130,
ECHR 2003 V).
- To
fall within the scope of Article 3, ill-treatment must attain a
minimum level of severity. The assessment of this minimum is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see
Kudła, § 91, and Poltoratskiy, § 131,
both cited above).
- Treatment
has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering. It has deemed treatment to be “degrading”
because it was such as to arouse in the victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them (see
Kudła, cited above, § 92). The question whether
the purpose of the treatment was to humiliate or debase the victim is
a further factor to be taken into account, but the absence of any
such purpose cannot conclusively rule out a violation of Article 3
(see Kalashnikov v. Russia, no. 47095/99, §§ 95
and 101, ECHR 2002 VI).
- The
suffering and humiliation involved must go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Measures depriving a person of
his liberty may often involve such an element. Yet it cannot be said
that detention in itself raises an issue under Article 3.
Nevertheless, under this provision the State must ensure that a
person is detained in conditions which are compatible with the
respect for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent
in detention and that, given the practical demands of imprisonment,
his health and well-being are adequately secured by, among other
things, providing him with the requisite medical assistance (see
Kudła, cited above, § 92-94).
- When
assessing conditions of detention, account has to be taken of the
cumulative effects of those conditions and the duration of the
detention (see Kalashnikov, cited above, §§ 95
and 102; Kehayov v. Bulgaria, no. 41035/98, § 64,
18 January 2005; and Iovchev, cited above, § 127).
In particular, the Court must have regard to the state of health of
the detained person (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3296, § 135).
- An important factor, together with the material
conditions, is the detention regime. In assessing whether a
restrictive regime may amount to treatment contrary to Article 3
in a given case, regard must be had to the particular conditions, the
stringency of the regime, its duration, the objective pursued and its
effects on the person concerned (see Kehayov, § 65
and Iovchev, § 128, both cited above; and, mutatis
mutandis, Van der Ven v. the Netherlands, no. 50901/99,
§ 51, ECHR 2003 II).
C. Application of these principles to the present case
1. Pazardzhik Regional Investigation Service detention
facility
- The
Court observes that the applicant was detained on the premises of the
Pazardzhik Regional Investigation Service detention facility between
18 January and 1 July 1999, a period of five months and
eighteen days.
- The
Court notes that the applicant did not expressly complain of the size
of his cell and of overcrowding, but did contend that the cell had
lacked sufficient oxygen and natural light.
- The
Court further notes that the applicant contended that the material
conditions in the cell had been unsatisfactory, that hygiene had been
inadequate and that there had been parasites (fleas and wood worms),
skin infections (scabies) and rodents (mice and rats).
- The
applicant further argued that the sanitary facilities had been
inadequate and that he had had to use of a bucket for his sanitary
needs. The Court considers that subjecting a detainee to the
embarrassment of having to relieve himself in a bucket in the
presence of his cellmates and of being present while the same bucket
was being used by them (see Peers v. Greece, no. 28524/95,
§ 75, ECHR 2001 III and I.I. v. Bulgaria, § 75,
Kalashnikov, § 99 and Kehayov, § 71, all
cited above) cannot be deemed warranted, except in specific
situations where allowing visits to the sanitary facilities would
pose concrete and serious security risks. In so far as the Government
failed to submit observations on the admissibility and merits of this
complaint, no such risks have been invoked as grounds for the
limitation on the visits to the toilet by the detainees in the
Pazardzhik Regional Investigation Service detention facility during
the period in question.
- The
applicant also contended that there had been no special recreational
area that could be used. The Court considers that as no possibility
for outdoor or out-of-cell activities was provided, the applicant had
to spend in his cell – which was situated in the basement –
practically all of his time (see Peers, § 75 and I.I.
v. Bulgaria, § 74, both cited above). The Court considers
that the fact that the applicant was confined for practically
twenty-four hours a day during more than five months to his cell
without exposure to natural light and without any possibility for
physical and other out-of-cell activities must have caused him
considerable suffering. The Court is of the view that in the absence
of compelling security considerations there was no justification for
subjecting the applicant to such limitations. In so far as the
Government failed to submit observations on the admissibility and
merits of this complaint, no such considerations have been put
forward for assessment by the Court.
- The
applicant further contended that the food provided had been
unhealthy.
- He
also claimed that he had not been allowed to read books, newspapers
or magazines, to listen to the radio, to watch television and to
maintain active correspondence. Accordingly, his access to and
knowledge of the outside world had been substantially restricted.
- The
Court notes that the applicant did not claim that his physical or
mental health had deteriorated during or as a result of his detention
at the Pazardzhik Regional Investigation Service detention facility.
Accordingly, no considerations in this respect are warranted.
- While
there is no indication that the detention conditions or regime were
intended to degrade or humiliate the applicant or that they had a
specific impact on his physical or mental health, there is little
doubt that certain aspects of the stringent regime described above
could be seen as humiliating.
- In
conclusion, having regard to the cumulative effects of the
unjustifiably stringent regime to which the applicant was subjected
and the material conditions in which he was kept, the Court considers
that the distress and hardship he endured exceeded the unavoidable
level of suffering inherent in detention and the resulting anguish
went beyond the threshold of severity under Article 3 of the
Convention.
- Therefore,
there has been a violation of Article 3 of the Convention on
account of the applicant's detention at the Pazardzhik Regional
Investigation Service detention facility.
2. Pazardzhik Prison
- The
Court observes that the applicant was detained on the premises of the
Pazardzhik Prison between 1 July and 27 July 1999, a period of
twenty-six days.
- The
applicant contended that the conditions of detention at the
Pazardzhik Prison had been the same as those in the Pazardzhik
Regional Investigation Service detention facility. Accordingly, the
analyses undertaken in respect of the conditions of detention at the
Pazardzhik Regional Investigation Service detention facility apply,
as relevant, to the Pazardzhik Prison. In his submissions on the
merits the applicant also stressed that there had been overcrowding,
insufficient access to sanitary facilities, that he had not been
allowed any visitors, had had a daily exercise walk of an hour and
that the food had been insufficient and of substandard quality.
- Similar
to its findings in respect of the Pazardzhik Regional Investigation
Service detention facility, the Court considers that the distress and
hardship endured by the applicant exceeded the unavoidable level of
suffering inherent in detention. In addition, taking into account
that the applicant was transferred to this detention facility after
being held for more than five months at the Pazardzhik Regional
Investigation Service detention facility in inadequate conditions of
detention and despite the relatively short period of detention at
this facility, the Court considers that the anguish resulting from
the adverse conditions of detention at the Pazardzhik Prison went
beyond the threshold of severity under Article 3 of the Convention.
- Thus,
there has been a violation of Article 3 of the Convention on
account of the applicant's detention at the Pazardzhik Prison.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant made several complaints under Article 5 of the Convention,
the relevant part of which provides:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be ... entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.
4. 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.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
- The
applicant also complained under Article 13 of the Convention that he
had not had at his disposal effective domestic remedies for his
Convention complaints. In the admissibility decision of 22 May 2006
the Court considered that this complaint fell to be examined only
under Article 5 §§ 4 and 5 of the Convention, which
are lex specialis in relation to the more general
requirements of Article 13 (see, among other authorities,
Nikolova, cited above, § 69 and Tsirlis and
Kouloumpas v. Greece, judgment of 29 May 1997, Reports
1997 III, p. 927, § 73).
A. Complaint under Article 5 § 3 of the Convention
- The
applicant complained under Article 5 § 3 of the Convention that
his detention had been unjustified and of excessive length.
- The
Government did not challenge the applicant's assertion.
- The
Court observes that the applicant was in pre-trial detention from
18 January 1999 to 27 July 1999, a period of six months and
seven days.
- The
Court notes that the complaint is similar to those in previous cases
against Bulgaria where violations were found (see, for example,
Ilijkov, cited above, §§ 67-87 and Shishkov
v. Bulgaria, no. 38822/97, §§ 57-67, ECHR
2003 I (extracts)). Likewise, the authorities in the present
case failed to give sufficient reasons for the applicant's continued
detention, primarily relied on the statutory provisions requiring
mandatory detention for serious intentional offences (Article 152 §§
1 and 2 of the Code of Criminal Procedure) and the lack of specific
evidence that the applicant would not abscond, re-offend or obstruct
the investigation.
- The
Court recognises that the majority of length-of-detention cases that
have come before it concern longer periods of deprivation of liberty
and that against that background six months and seven days may be
regarded as a relatively short period in detention. However, Article
5 § 3 of the Convention cannot be seen as authorising pre-trial
detention unconditionally provided that it lasts no longer than a
certain minimum period. Justification for any period of detention, no
matter how short, must be convincingly demonstrated by the
authorities (see Shishkov, cited above, § 66). That
does not seem to have happened in the present case.
- In
view of the above, the Court finds that there has been a violation of
Article 5 § 3 of the Convention on account of the
authorities' failure to justify the applicant's continued detention.
B. Complaints under Article 5 § 4 of the
Convention in respect of the applicant's applications for release of
29 March and 1 July 1999
- The
applicant complained under Article 5 § 4 of the Convention that
in response to his application for release of 29 March 1999 the
domestic courts had not examined all factors relevant to the
lawfulness of his detention and that his applications for release of
29 March and 1 July 1999 had been decided in violation of the
requirement for a speedy decision.
- The
Government did not challenge the applicant's assertions.
- 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).
1. The applicant's application for release of 29 March
1999
- In
the present case, when examining the applicant's application for
release of 29 March 1999, the District Court in its decision of
23 April 1999 relied on the statutory provisions requiring
mandatory detention for serious intentional offences (Article 152 §§
1 and 2 of the Code of Criminal Procedure), and 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 (see
paragraph 12 above). Under that practice, release was only possible
if there was conclusive evidence of exceptional factors, such as
illness, which would exclude any possibility of the detainee
absconding or committing crimes. Only such evidence would be
considered by the courts.
- Accordingly,
the Court finds that the District Court, in its decision of 23 April
1999, denied the applicant the guarantees provided for in Article 5
§ 4 of the Convention on account of the limited scope and
nature of the judicial control of the lawfulness of his detention.
- In
view of the above finding, the Court does not deem it necessary to
enquire whether the judicial review in response to the applicant's
application for release was provided speedily (see, mutatis
mutandis, Nikolova, § 65, and Ilijkov, §
106, both cited above).
2. The applicant's application for release of 1 July
1999
- The
Court reiterates that Article 5 § 4 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).
- In
the present case, the District Court examined the applicant's
application for release of 1 July 1999 within twenty-six days. The
Court considers this period to be in breach of the requirement for a
speedy decision under Article 5 § 4 of the Convention (see
Kadem v. Malta, no. 55263/00, §§ 43-45,
9 January 2003, where the Court found a period of seventeen days
to be too long, and Rehbock v. Slovenia,
no. 29462/95, §§ 82-86, ECHR
2000 XII, where two periods of twenty-three days were
considered excessive).
- It
follows that in respect of the applicant's application for release of
1 July 1999 there has been an interference with his right to a
speedy judicial decision concerning the lawfulness of his detention
in breach of Article 5 § 4 of the Convention.
C. Complaint under Article 5 § 5 of the Convention
- The
applicant complained under Article 5 § 5 of the Convention that
he had not had an enforceable right to seek compensation for being a
victim of arrest or detention in breach of the provisions of Article
5.
- The
Government did not challenge the applicant's assertion.
- The
Court observes at the outset the similarity of the complaint to those
in a number of other cases against Bulgaria where violations where
found (see, for example, Yankov, cited above, and
Belchev v. Bulgaria, no. 39270/98, 8 April
2004).
- In
so far as the Court has found that there have been violations of
Article 5 §§ 3 and 4 of the Convention (see paragraphs 80,
86 and 89 above), Article 5 § 5 of the Convention is also
applicable (see Steel and Others v. the United Kingdom,
judgment of 23 September 1998, Reports 1998-VII, p. 2740,
§ 81). The Court must therefore establish whether or not
Bulgarian law afforded the applicant an enforceable right to
compensation for the breaches of Article 5 of the Convention.
- The
Court notes that by section 2(1) of the SMRDA, a person who has been
remanded in custody may seek compensation only if the detention order
has been set aside “for lack of lawful grounds”, which
refers to unlawfulness under domestic law (see paragraphs 25 and 26
above). In the present case, the applicant's pre-trial detention was
considered by the domestic courts to be in full compliance with the
requirements of domestic law. Therefore, the applicant did not have a
right to compensation under section 2(1) of the SMRDA.
- It
follows that in the applicant's case the SMRDA did not provide for an
enforceable right to compensation. Furthermore, it does not appear
that such a right is secured under any other provision of Bulgarian
law (see paragraphs 25 and 26 above).
- Thus,
the Court finds that Bulgarian law did not afford the applicant an
enforceable right to compensation, as required by Article 5 § 5
of the Convention.
There
has therefore been a violation of that provision.
III. 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
- The
applicant claimed 5,000 euros (EUR) as compensation for each of the
alleged infringements of his rights under the Convention. He referred
to the size of awards in other similar cases against Bulgaria and
claimed that the standard of living was constantly improving in the
country, which required that awards be adapted accordingly.
- The
Government did not submit comments on the applicant's claims for
damage.
- The
Court notes that the violations established fell under Articles 3 and
5 of the Convention (see paragraph 68, 72, 80, 86 and 89 above). It
further notes the applicant's argument in respect of the alleged
improvements in the standard of living in Bulgaria, which the Court
finds unquantifiable on the basis of the information presented but at
the same time relevant when determining its award under Article 41 of
the Convention. In view of the above, the specific circumstances of
the present case, its case-law in similar cases and deciding on an
equitable basis, the Court awards EUR 5,000 under this head,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 4,600 for each of his lawyers for their
work before the Court. He submitted legal fees agreements between him
and each of his lawyers and time sheets detailing the work they had
done. The applicant also requested that any award made in respect of
costs and expenses incurred should be paid directly to his lawyers,
Mrs V. Kelcheva and Mr V. Stoyanov.
- The
Government did not submit comments on the applicant's claims for
costs and expenses.
- The
Court reiterates that according to its case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. Having regard to all the
relevant factors, the Court considers it reasonable to award EUR
2,000 in respect of costs and expenses, plus any tax that may be
chargeable to the applicant on that amount.
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
- Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the
applicant's detention at the Pazardzhik Regional Investigation
Service detention facility;
- Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the
applicant's detention at the Pazardzhik Prison;
- Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the
authorities' failure to justify the applicant's continued detention
on 23 April 1999;
- Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the
limited scope and nature of the judicial control of the lawfulness of
the applicant's detention in response to his application for release
of 29 March 1999;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the applicant's
application for release of 1 July 1999 not having been examined
“speedily”;
- Holds that there has been a violation of
Article 5 § 5 of the Convention on account of the
applicant not having had available an enforceable right to
compensation for being a victim of arrest or detention in breach of
the provisions of Article 5 of the Convention;
- Holds
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into Bulgarian levs at the rate applicable
on the date of settlement:
(i) EUR
5,000 (five thousand euros) in respect of non-pecuniary damage,
payable to the applicant himself;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses, payable
in two equal instalments of EUR 1,000 (one thousand euros) into the
bank accounts of the applicants' lawyers in Bulgaria, Mrs V. Kelcheva
and Mr V. Stoyanov;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
