FOURTH SECTION
CASE OF BARBORSKI
v. BULGARIA
(Application no.
12811/07)
JUDGMENT
STRASBOURG
26 March 2013
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 Barborski v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 5 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
12811/07) 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 Ivan Vasilev Barborski
(“the applicant”), on 16 February 2007.
The applicant was represented by Mr I. Murgin, a
lawyer practising in Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, first Mrs N. Nikolova, and then Mrs. M. Kotseva of
the Ministry of Justice.
The applicant alleged, in particular, that his
detention from 2 October to 8 December 2005 and after 26 January 2007 had been
unlawful.
On 6 September 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1969 and lives in Sofia.
A. The
applicant’s convictions
By a judgment that became final on
30 November 2004, the Gabrovo Regional Court sentenced the applicant
to three years’ imprisonment in case no. 210/00.
By a judgment that became final on 13 May 2005,
the Kardzhali Regional Court sentenced the applicant to one year’s imprisonment
in case no. 46/04. The court deducted the period of one year during which the
applicant had been held in pre-trial detention (from 10 June 2003 to 10 June
2004).
B. Determination of an overall penalty
On an unspecified date in 2005 the applicant submitted
a request for an overall prison term for his two convictions.
By decision no. 394 of 1 July 2005, the Kardzhali
District Court imposed an overall prison term of three years and six months.
The court found that the applicant had started serving his sentence for case
no. 210/00 on 10 May 2003 and deducted the two years, two months and
twenty-nine days that he had already served as of 1 July 2005. Further, as an
order for the applicant’s pre-trial detention in case no. 46/04 had been in
effect from 10 June 2003 to 10 June 2004, the court deducted that period as
well.
The applicant appealed against the decision. In
a hearing held on 29 September 2005 he withdrew his appeal. As the public
prosecutor’s office had not appealed against the decision, the proceedings were
discontinued on the same date and decision no. 394 became final.
Consequently, on the same day the Kardzhali
district prosecutor instructed the prison authorities in Sofia, where the
applicant was detained, to release him as he had served his overall sentence in
its entirety.
The prison authorities did not follow the
instruction as they considered that the applicant’s overall prison term had
been miscalculated. In their view, the period in which an order for the
applicant’s pre-trial detention in case no. 46/04 had been in effect had been
wrongly deducted. In a letter dated 7 October 2005, they informed the Sofia and
Kardzhali public prosecutor’s office of their finding.
On 18 November 2005 the Supreme Cassation public
prosecutor’s office (SCPPO) instructed the Kardzhali public prosecutor’s office
to request that the District Court interpret its decision so as to clarify
whether the period of the applicant’s pre-trial detention in case no. 46/04
should have been deducted.
On 2 December 2005 the request was rejected by
the Kardzhali District Court, which held that its decision was clear.
On the same date, the SCPPO instructed the
Kardzhali district prosecutor to order the applicant’s release. It also stated
that, given that the total term of the two sentences had been miscalculated,
the possibility should be examined of submitting a request to re-open the
proceedings in order to determine an overall sentence. A copy of the letter was
sent to the applicant’s lawyer.
The applicant was released from prison on 8
December 2005.
C. Re-opened proceedings to determine the overall
penalty
In a letter of 12 December 2005 the Sofia Prison
authorities informed the SCPPO that, as a result of a miscalculation of the prison
term by the Kardzhali District Court, the applicant had served two months and
eleven days more than the prison term determined by that court.
On 10 April 2006 the Supreme public prosecutor’s
office submitted a request, under Article 362 of the 1974 Code of Criminal
Procedure, for the proceedings to be re-opened in order to determine an overall
sentence for the applicant’s two convictions.
By a final judgment of 10 October 2006 the
Supreme Court of Cassation granted the request. The court held that the period in
which the applicant had been held in pre-trial detention in case no. 46/04 had
been wrongly deducted, as he had been serving a concurrent prison sentence in
case no. 210/00.
On 26 January 2007 the applicant was returned to
prison to serve the remainder of his sentence.
II. RELEVANT DOMESTIC LAW
Article 25 § 1 of the 1968 Criminal Code provides
that when an individual is convicted of two or more separate offences, an overall
sentence will be imposed if all the crimes were committed prior to the first
conviction. Paragraph 2 of that provision states that the time already served for
the first sentence will be deducted from the time left to serve for the overall
sentence.
Article 59 § 1 of the Code provides that the
period of pre-trial detention will be deducted from the overall sentence.
Article 371 of the Code of Criminal Procedure
1974 (“the 1974 Code”) (in force until 29 April 2006 when it was replaced by a
new Code) provided that judgments and decisions were enforced after they become
final. A copy of the judgment is sent to the prosecutor who is competent to
take the necessary measures for its execution; in the case of a custodial
sentence the prosecutor orders the prison authorities to detain the prisoner in
execution of the sentence (Article 375 § 2 of the 1974 Code).
Article 361 § 1 of the 1974 Code provided that
the Chief Public Prosecutor could request the re-opening of criminal
proceedings. Article 360 § 1 stipulated that the request should be submitted
within one year of the entry into force of the judgment or decision concerned. Pursuant
to Article 362 § 2 (5), a request could be submitted in respect of
sentences, judgments and decisions which had not been subject to cassation
review and on the same grounds as those applying to cassation appeals. Those
provisions were superseded by Articles 420 § 1, 421 § 1 and 422 § 1 (5) of the
Code of Criminal Procedure adopted on 29 April 2006. The wording of the
new articles is virtually the same as the previous ones, except for the
time-limit for submitting requests for re-opening proceedings, which was set at
six months.
Section 2 of the State and Municipalities’
Responsibility for Damage Act of 1988 (“the 1988 Act”) provides, as far as relevant:
“The State shall be liable for damage caused to [private
persons] by organs of ... the investigation, the public prosecution, the courts
... for:
...
6. the execution of a sentence in excess of the set
term.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that his detention from
2 October 2005 to 8 December 2005 had been unlawful, in contravention of Article
5 § 1 (a) of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
...”
A. Admissibility
1. Observance
of the six-month rule
The Government submitted that the application
had been lodged after the expiry of the six-month time-limit provided for in
Article 35 § 1 of the Convention. In particular, they argued that the applicant
should have lodged his application following his release from prison in
December 2005. Instead, he remained inactive until 2007.
The applicant contested the Government’s
assertion.
The Court observes that the applicant was
released from prison on 8 December 2005 (see paragraph 16 above). It further
notes that in the communication of 2 December 2005 the Supreme Cassation prosecutor’s
office clearly stated that it intended to submit a request to re-open the
proceedings in order to determine an overall sentence. Such a request was
indeed submitted on 10 April 2006 (see paragraph 15 above). In those
circumstances, it does not seem unreasonable that the applicant waited for the
outcome of the re-opened proceedings before lodging his application with the
Court. Those proceedings ended on 10 October 2006 and the application was lodged
on 16 February 2007. It was therefore timely.
Consequently, the Court dismisses the Government’s
preliminary objection concerning the six-month rule.
2. Exhaustion of domestic remedies
The Government, with reference to domestic
case-law, also contended that the applicant had failed to exhaust domestic
remedies, as he had not brought an action under section 2(6) of the 1988 Act.
The applicant disagreed.
The Court observes that in cases where a person’s
detention extends beyond the period of his or her sentence (see paragraph 25
above), damages can be sought under section 2(6) of the 1988 Act. In the
present case, however, the Supreme Court of Cassation found in its judgment of
10 October 2006 that the prison term imposed on the applicant had been miscalculated,
and he was returned to prison. In view of that judgment, therefore, the time
served by the applicant does not appear to have exceeded the prison sentence
imposed by the domestic courts. Furthermore, the domestic case-law referred to
by the Government does not concern circumstances such as those obtaining in the
present case. The Court therefore cannot support the assertion that an action
under the 1988 Act would have been an effective remedy for the applicant in the
circumstances of the present case.
It follows that the Government’s objection of
non-exhaustion of domestic remedies must be dismissed.
To conclude, the Court notes that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The applicant argued that his detention between 2
October and 8 December 2005 had been unlawful because the prison term imposed
by decision no. 394 had expired.
The Government submitted that the Sofia Prison
authorities had not arbitrarily refused to release the applicant but rather had
established that his prison term had been miscalculated, and had alerted the
public prosecutor’s office accordingly. The Government maintained that the
applicant had withdrawn his appeal against decision no. 394, which had led to
its becoming final. Despite that erroneous decision, the authorities had nonetheless
released the applicant on 8 December 2005. Later, when the proceedings were
re-opened, the whole period of the applicant’s detention was deducted from the remainder
of his sentence. He had thus not been detained unlawfully but in accordance
with a procedure prescribed by law, within the meaning of the Convention.
The Court emphasises that Article 5 enshrines a
fundamental human right, namely the protection of the individual against
arbitrary interference by the State with his or her right to liberty.
Subparagraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of
permissible grounds on which persons may be deprived of their liberty. No
deprivation of liberty will be compatible with Article 5 § 1 unless it
falls within one of those grounds (see, as a recent authority, Austin and
Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 60, 15 March 2012).
Article 5 § 1 (a) permits the lawful detention
of a person after conviction by a competent court. The purpose of detention
must therefore be the execution of a prison sentence imposed by a court.
The Court observes that the applicant was
detained following conviction by a competent court (see paragraphs 6 and 9
above). It follows that his detention falls within the scope of Article 5 § 1
(a). There is no question that the conviction was lawful under Bulgarian law;
nor can it be argued that his detention did not conform with the purpose of
detention under that Convention provision.
The Court notes that decision no. 394, which
became final on 29 September 2005, imposed an overall penalty for the
applicant’s two convictions. The applicant was released on 8 December 2005, which,
according to the Sofia Prison authorities, was two months and eleven days after
the expiry of the sentence imposed by decision no. 394 (see paragraph 17
above). The applicant himself claims that he should have been released on 2
October 2005.
Therefore, the Court must establish whether the
applicant’s detention between 2 October and 8 December 2005 was in conformity
with the requirements of Article 5 § 1 (a).
The Government stated that the Sofia Prison
authorities had refused to release the applicant because they had established
that the Kardzhali District Court had miscalculated the length of the prison term
to be served by him. However, the prison authorities cannot be considered a
“competent court” within the meaning of Article 5 § 1 (a), and their decision
to keep the applicant in custody cannot therefore serve as justification for his
detention within the meaning of that Convention provision.
The Government also submitted that the period of
detention served by the applicant up until 8 December 2005 had been deducted
from the remaining prison term determined by the final judgment of 10 October
2006 (see paragraph 19 above). The Court, however, is unconvinced that the
above contention justifies the applicant’s detention between 2 October and
8 December 2005. During that period the applicant’s prison term was
governed by decision no. 394, and it is not disputed by the Government that the
term thus determined expired prior to the applicant’s release on 8 December
2005. In so far as the Government claim that decision no. 394 was erroneous, the
Court considers it noteworthy that the prosecution authorities had the
opportunity to lodge an appeal against it but did not do so. In the absence of
such an appeal the impugned decision became final and enforceable. It is true
that the prosecution authorities requested the re-opening of the
proceedings and that in those proceedings the domestic court agreed with the
prosecution authorities’ finding that the applicant’s prison term had indeed
been miscalculated (see paragraph 19 above). However, such post factum validation
of the mistake with respect to the applicant’s detention during the period in question
does not alter the fact that, under Article 5 § 1, detention should be justified
throughout its duration. The Court considers that prior to the judgment of 10
October 2006, the assessment by the prosecution and the prison authorities of
the Kardzhali District Court’s decision did not suffice to justify the
applicant’s detention during the period under examination.
In view of the above considerations, the Court
finds that the applicant’s detention between 2 October and 8 December 2005 in
excess of the sentence imposed by decision no. 394 was not made “after a
conviction by a competent court”, within the meaning of Article 5 § 1 (a). There
has accordingly been a violation of Article 5 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained, under Article
5 § 1 (a), that his detention to serve the remainder of his prison sentence, as
determined by the judgment of the Supreme Court of Cassation of 10 October
2006, had been unlawful. He also complained, relying on Article 5 § 4 and Article
13, that he had had no possibility to challenge the lawfulness of his detention
after the judgment of the Supreme Court of Cassation of 10 October 2006.
The Court has examined the complaints as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application
must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
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 2,000 euros (EUR) in
respect of pecuniary damage, which represented loss of earnings. He did not submit
any documents or specific details in respect of this claim. He further claimed
EUR 10,000 in respect of non-pecuniary damage, which represented the stress and
anxiety that he had endured as a result of his unlawful detention.
The Government submitted that the claims were
unsubstantiated and excessive.
The Court considers that the applicant’s claims
for pecuniary damage are unsubstantiated. It therefore rejects them.
The Court considers that the applicant must have
sustained non-pecuniary damage as a result of the Convention breach in
his case. Having regard, however, to the fact that the whole period of the
applicant’s detention in respect of which the Court found a violation of the
Convention was deducted from the remainder of his sentence, the Court considers
that, in the circumstances of the present case, the finding of a violation
constitutes sufficient just satisfaction for the applicant in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 700 for the costs
and expenses incurred before the domestic courts and EUR 500 for those incurred
before the Court. He submitted that he did not possess any documents or
receipts in respect of the expenses incurred in the domestic proceedings, as he
had not anticipated that they would be required for the proceedings before the
Court. No documents in support of the claim for expenses incurred before the
Court were submitted either; the applicant claimed that he would pay those
expenses after the conclusion of the proceedings.
The Government contested the claims, pointing
out that they were not supported by any documents.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of 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. In the present case, in the absence of any
documentary evidence in respect of costs and expenses, the Court considers the
applicant’s claims unsubstantiated. It therefore rejects the claims.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
unlawfulness of the applicant’s detention between 2 October and 8 December
2005 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention;
3. Holds that the finding of a violation of
Article 5 § 1 constitutes sufficient just satisfaction for the non-pecuniary
damage sustained by the applicant;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction and costs and expenses.
Done in English, and notified in writing on 26 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Ziemele
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge I. Ziemele is
annexed to this judgment.
I.Z.
F.A.
CONCURRING OPINION OF JUDGE ZIEMELE
I follow the Chamber’s reasoning on all of the substantive
points. I also agree in substance that in this case no award in respect of
non-pecuniary damage needed to be made. I cannot agree however with the
language in paragraph 53 of the judgment and point 3 of the operative
provisions, stating that the Court has decided not to award any compensation
for non-pecuniary damage as it considers that the finding of a violation
is sufficient compensation.
On several occasions I have pointed out (see, for example,
Dissenting opinion of Judges Ziemele and Karakaş in the case of Disk
and Kesk v. Turkey, no. 38676/08, 27 November 2012) that in my
view the Court’s approach in stating, from time to time, that a judgment
declaring a violation is in itself a form of compensation is not compatible
with the general principles of international law as regards State
responsibility which have been followed in the Court’s case-law (see also Judge
Spielmann’s dissenting opinion in the case of Guiso-Gallisay v. Italy
(just satisfaction) [GC], no. 58858/00, 22 December 2009).
In other words, where a court establishes that there has been
a breach of an international obligation by a State, it must assess how best
that breach should be repaired. This is a different question from that of
establishing whether there has been a violation. Normally, any
violation would give rise to some award of damages. It is only in exceptional
circumstances that the Court may decide not to make an award in respect of
non-pecuniary damage if, in its opinion, various relevant factual circumstances
preclude such an award. In any event, the Court must fully address the question
of reparation for damage or, failing that, appropriate compensation, including
assessment of non-pecuniary damage. In this case, while a violation was found,
there were reasons, as presented in paragraph 53, that militated in favour of
no award of damages. That is all the Court needed to say, without commenting on
the finding of a violation as a form of reparation.
