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FIFTH
SECTION
CASE OF
TANKO TODOROV v. BULGARIA
(Application
no. 51562/99)
JUDGMENT
STRASBOURG
9
November 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 Tanko Todorov 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,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 16 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 51562/99) 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 Mr Tanko Zaprianov Todorov, a
Bulgarian national who was born in 1976 and lives in
the village of Chalakovi (“the applicant”), on 16
July 1999.
- The
applicant was represented by Ms E. Nedeva, a lawyer practising in
Plovdiv.
- The
Bulgarian Government (“the Government”) were represented
by their Agents, Ms M. Dimova and Ms M. Kotzeva, of the Ministry of
Justice.
- The
applicant alleged that his detention was excessively lengthy and
unjustified. He also claimed that the courts did not examine all
factors relevant to the lawfulness of his detention, that his appeal
of 2 September 1999 was not decided speedily and that the Supreme
Court of Cassation denied him the right to challenge the lawfulness
of his detention before a court with its refusal of 24 September 2001
to initiate cassation proceedings.
- By
a decision of 29 September 2005 the Court declared the application
partly admissible.
- The
parties did not file further written observations on the merits (Rule
59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings
- On
the night of 2 December 1997 a customer of a bar was brutally beaten
up after leaving with a friend to go home. The friend who accompanied
him witnessed the start of the attack from a distance. The victim
later died from his injuries.
- A
preliminary investigation into the murder was opened on the following
day.
- On
11 December 1997 the applicant, who had also been in the bar
on the night in question, was arrested and questioned by the
police. He signed a statement confessing to having beaten the victim,
which he subsequently retracted claiming that it was extracted from
him under duress.
- On
12 December 1997 the applicant was charged with murder and
detained on remand. Immediately thereafter, the
applicant was questioned by an investigator. In the presence of a
State-appointed attorney and after having been informed of his right
not to give testimony the applicant reiterated the statement
he had given on the previous day and made a
full confession.
- During
the preliminary investigation various witnesses were questioned, DNA
tests were performed on the applicant's clothes and a crime scene
experiment was conducted. Various experts' opinions were also
obtained, such as to assess the applicant's physical and mental
state, as well as his eyesight. A medical examination of the victim
was also conducted. In addition, an agronomical expertise was
commissioned to determine what the foliage cover of the trees was at
the time of the murder and whether that could have impaired the
witness's line of sight. A meteorological expertise was also obtained
to assess whether the weather could have had a similar hampering
effect.
- On
an unspecified date, the Prosecutor's Office filed an indictment for
murder against the applicant with the Plovdiv Regional Court.
- Subsequently,
the Plovdiv Regional Court remitted the case back to the
investigation stage on at least two occasions.
- Revised
indictments were entered against the applicant on 13 January and
14 October 1999. The final indictment against the applicant was for
murder with extreme viciousness. The prosecution claimed that the
applicant had beaten up the victim after he had refused to lend him
money to pay his bill in the bar.
- The
Plovdiv Regional Court conducted six hearings between 30 January
and 3 December 2001.
- In
a judgment of 3 December 2001 the Plovdiv Regional Court, acting as
the court of first instance, acquitted the applicant. According to
the minutes, it then ordered his release, but imposed a restriction
on him not to leave his place of residence without the permission of
the Prosecutor's Office. The court considered that it was unclear
whether the applicant's confession was given voluntarily. Assessing
it in the light of the other evidence and witnesses' statements, the
court found that the prosecution had failed to prove its case against
the applicant.
- The Prosecutor's Office appealed against the judgment
on 18 December 2001.
- It
is unclear how many hearings were conducted before the Plovdiv Court
of Appeals.
- In
a judgment of 20 September 2004 the Plovdiv Court of Appeals quashed
the lower-court's judgment and examined the case on the merits. It
found the applicant guilty of murder with extreme viciousness,
sentenced him to seventeen years' imprisonment and ordered that he
pay damages to the victim's family. In reaching its decision, the
Plovdiv Court of Appeals found that the first-instance court had
given too much weight to the applicant's assertions that his
confession had been extracted under duress, which it considered to be
unsubstantiated. In addition, it found the applicant's version of the
events on the night of the murder to be in contradiction with the
other evidence in the case and to be in conflict with his actions on
the next day when he tried to hide the clothes he had worn on the
previous night and, subsequently, when he presented the police with
other garments for examination.
- On
an unspecified date the applicant filed a cassation appeal against
the judgment.
- It
is unclear whether and when the applicant's appeal was examined by
the Supreme Court of Cassation.
B. The applicant's detention and his appeals against it
- The
applicant was arrested by the police on 11
December 1997 and questioned.
- On
the next day, 12 December 1997, he was detained on remand by order of
an investigator, which was confirmed by the Prosecutor's Office later
on the same day. The applicant was assisted by a State-appointed
attorney. The grounds for detaining him on remand, as stated in the
decision of the investigator, were that “there is a danger that
the charged may abscond or re-offend”.
- The
applicant's detention was confirmed by a prosecutor on 11 May 1998
without citing any grounds.
- At
the latest, the trial stage of the criminal proceedings against the
applicant began on 14 October 1999.
- The
applicant made several unsuccessful appeals against his detention.
Information was provided only about some of them.
- The
applicant's appeals dating from 18 June, 2 September and some time at
the beginning of November 1999 were dismissed by the Plovdiv Regional
Court on 13 July, 15 September and 5 November 1999, respectively.
Separately, an appeal dated 16 September 1999 was rejected on the
next day by a judge-rapporteur of the Plovdiv Regional Court because
he found that it had been filed only one day after the court had
ruled on a previous appeal and considered that there was a lack of
new circumstances justifying a new right of appeal.
- In
each of his appeals, the applicant petitioned for his release and
argued that there was no risk that he would abscond, re-offend or
obstruct the investigation, because he had a permanent address, had
no prior criminal record, was the main breadwinner in the family, the
financial and living conditions of his wife and children had
worsened, the two-year maximum period of pre-trial detention under
Section 152 § 4 of the Code of Criminal Procedure (“CCP”)
was being violated and, in any case, that there was insufficient
evidence that he had perpetrated the offence.
- In
its decisions to dismiss the applicant's appeals the Plovdiv Regional
Court found that there was a risk that the applicant might abscond,
re-offend or obstruct the investigation essentially because he was
charged with a serious intentional offence.
In respect of the claimed violation of the two-year maximum period of
pre-trial detention the court found that it had not been exceeded
because that period concerned only detention pending the
investigation stage of the proceedings and was not applicable to
detention at the trial stage.
- The
Plovdiv Regional Court explicitly refused to examine the specific
evidence in the case as to whether there was a reasonable suspicion
against the applicant. In its decision of 13 July 1999 it stated that
“[t]he court does not find it necessary to consider the
evidence in substance....”
- Similarly in its decision of 15
September 1999 it considered that “[t]he court cannot go
into the specifics of the case and examine the collected evidence in
the context of the [present] proceedings....”
- On
an unspecified date in 2000 the applicant filed another appeal
against his detention under the rules introduced on 1 January 2000.
- On
11 May 2000 the Plovdiv Court of Appeals dismissed the appeal, with
reasoning similar to that contained in the previous decisions of the
Plovdiv Regional Court.
- On
29 August 2001 the applicant appealed before the Supreme Court of
Cassation against the aforementioned decision of the Plovdiv Court of
Appeals of 11 May 2000. The basis for the appeal was paragraph 19 of
the Amendments to the CCP promulgated on 27 April 2001.
- On
24 September 2001 the Supreme Court of Cassation refused to initiate
cassation proceedings. It found that it was not competent to review
the lawfulness of a detention at the trial stage.
- The
applicant was released on 3 December 2001 by virtue of the judgment
of the Plovdiv Regional Court.
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).
C. Extraordinary right of appeal under the Amendments
of the CCP of 27 April 2001
- The
relevant paragraph 19 provided the following:
“Decisions of the appellate courts regarding the
[grounds for] detention in pending cases, which have entered into
force, can be appealed or challenged before the Supreme Court of
Cassation within six months of entry into force of the present
[amendments].”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention was
excessively lengthy and unjustified.
Article
5 § 3 of the Convention provides, insofar as relevant:
“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.”
- The
Government stated that the applicant's pre-trial detention was based
on the reasonable suspicion that he had committed the murder of
2 December 1997. They further contended that the authorities had
acted as diligently as possible in the present case and that the
length of the detention was the result of a number of objective
factors. In particular, the case was extremely complex and required
the examination of numerous witnesses, commissioning of various
experts' opinions, performing DNA tests and conducting a crime-scene
experiment. Thus, the Government considered that there were no
unreasonable delays attributable to the authorities.
- The
applicant replied that the authorities never examined carefully the
question whether or not there was a real danger of him absconding or
committing offences if released but that they had applied the
defective automatic approach according to which persons accused of
serious intentional offences must be detained. He recalled that he
had had no prior criminal record and that his
family's financial and living conditions required consideration.
The applicant also considered that the period of detention was
excessive irrespective of whether the case was at the stage of the
preliminary investigation or pending before the courts.
- The
Court observes, at the outset, that the applicant was detained on
remand falling under Article 5 § 1 (c) of the Convention from 11
December 1997 to 3 December 2001, a period of three years, eleven
months and twenty-three days (see paragraphs 9, 16, 22 and 36 above).
- 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).
Likewise, in their decisions to extend the applicant's detention the
authorities failed to assess specific facts and evidence about the
possible danger of the applicant absconding, re-offending or
obstructing the investigation. In some decisions they referred to the
serious intentional offence with which he was charged (see
paragraph 29 above), while in others no grounds were cited at
all (see paragraph 24 above). Moreover, they refused to examine
the specific evidence in the case as to whether there was a
reasonable suspicion against the applicant (see paragraphs 30
and 31 above).
- Consequently,
in so far as the authorities did not consider it necessary to justify
the continuation of the applicant's detention on each and every
occasion and to rely on specific facts and evidence in that respect,
it appears that they applied the defective approach according to
which remand in custody was imposed and maintained automatically
whenever the charges concerned a serious offence, without analysis in
concreto.
- Accordingly,
the Court finds that the authorities failed to justify the
applicant's continued detention on remand for a period of almost four
years. Thus, there has been a violation of Article 5 § 3 of the
Convention in that respect.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the courts did not examine all factors
relevant to the lawfulness of his detention. In addition, he
maintained that some of his appeal were decided in violation of the
requirement for a speedy decision under Article 5 § 4 of the
Convention. Finally, the applicant complained that the Supreme
Court of Cassation failed to rule on his appeal against his detention
of 29 August 2001.
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 stated that the courts had periodically examined all
aspects of the lawfulness of the applicant's detention and had done
so in observance of the presumption of innocence, the justification
of the detention and other relevant factors, such as his personality.
In addition, it contended that the applicant's appeals were decided
speedily.
- The applicant replied that the courts had not examined
carefully whether there had been a danger of him absconding or
re-offending if released and had refused to examine all aspects
relevant to the lawfulness of his detention. He referred to previous
cases against Bulgaria, where the Court found a violation when the
domestic courts primarily relied on the seriousness of the offence to
justify a continuation of the period of detention and disregarded the
detainees' arguments concerning the alleged lack of danger of
absconding, re-offending or hampering the investigation (see Nikolova
and Ilijkov, both cited above). The applicant also argued that
the courts had failed to speedily examine his appeals of 18
June and 2 September 1999. Finally, the applicant
maintained that the courts failed to rule on his appeals of 16
September 1999 and 29 August 2001.
- 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).
- The
Court notes 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). In particular, the courts considered that certain
aspects of the lawfulness and the justification of the applicant's
detention were beyond their jurisdiction (see Nikolova, cited
above, § 61). In particular, the courts repeatedly failed to
address the applicant's arguments and to assess specific facts and
evidence about the possible danger of the applicant absconding,
re-offending or obstructing the investigation, but simply relied on
the seriousness of the charge against him to justify his continuing
detention (see paragraph 29 above). In addition, they explicitly
refused to examine the reasonableness of the suspicion grounding the
arrest of the applicant, as noted in the decisions of the Plovdiv
Regional Court of 13 July and 15 September 1999 (see paragraphs 30
and 31 above).
- In
view of the above, the Court finds that the applicant was denied the
right to have the continued lawfulness of his detention reviewed
effectively by a court.
Thus,
there has been a violation of Article 5 § 4 of the Convention 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).
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 9,000 euros (EUR) in respect of non-pecuniary
damage. He claimed that he had felt anguish having been unjustifiably
deprived of his liberty for a considerable period of time and without
the possibility to effectively challenge his detention in court.
- The
applicant also claimed EUR 1,660 in respect of pecuniary damage as a
result of loss of employment income during the period of his
detention when he was allegedly unable to work. He based the amount
of his claim on the statutory minimum monthly salary in force over
the given period and claimed that if had he been at liberty, he could
have worked and therefore derived the stated income.
- The
Government challenged the applicant's claims for damage. They argued
that they were arbitrarily determined, excessive and that they did
not correspond to the awards made by the Court in previous similar
cases. Moreover, the Government considered the applicant's claim in
respect of pecuniary damage to be unsubstantiated.
- The
Court finds that the applicant's claim in respect of pecuniary damage
is hypothetical and unsubstantiated in so far as he did not present
any documents or evidence to show that he had been employed prior to
his detention or that he had offers of employment for any period
thereafter. Accordingly, the Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, noting its finding
of violations of Article 5 §§ 3 and 4 of the Convention
(see paragraphs 48 and 54 above) and deciding on an equitable basis,
it awards the applicant EUR 1,500 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed EUR 5,930 for 145 hours of legal work by his lawyer
before the domestic courts, at an hourly rate ranging from EUR 30 to
EUR 75 depending on the type of work involved. He also sought
EUR 4,875 for 90.5 hours of legal work by his lawyer before the
Court, at the hourly rate of EUR 50 or EUR 75 depending on the work
involved. Lastly, the applicant claimed EUR 169 for translation,
phone, photocopying, postal and office expenses of his lawyer. The
total amount thus sought was EUR 10,974. He submitted a legal
fees agreement between him and his lawyer, invoices for translation
costs and postal receipts. The applicant requested that the costs and
expenses incurred should be paid directly to his lawyer, Ms E.
Nedeva.
- The
Government stated that the number of hours claimed was excessive,
that the hourly rate for the work performed by the applicant's lawyer
was determined arbitrarily and that the claimed expenses were
excessive and that they did not correspond to previous such awarded
by the Court in similar cases.
- 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 were reasonable as to quantum. In the instant case, it
considers that the number of hours claimed, both for the work before
the domestic courts and before the Court, seems excessive and that a
reduction is necessary on that basis. Having regard to all relevant
factors and noting that the applicant was paid EUR 701 in legal aid
by the Council of Europe, the Court considers it reasonable to award
the sum of EUR 500 in respect of costs and expenses, plus any tax
that may be chargeable 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
5 § 3 of the Convention on account of the authorities' failure
to justify the applicant's continued detention;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the applicant having been
denied the right to have the continued lawfulness of his detention
reviewed effectively by a court;
- 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
1,500 (one thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, payable
into the bank account of the applicant's lawyer in Bulgaria, Ms E.
Nedeva;
(iii) any
tax that may be chargeable 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 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
