BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF NAVUSHTANOV v. BULGARIA
(Application
no. 57847/00)
JUDGMENT
STRASBOURG
24 May 2007
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 Navushtanov 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 V. Butkevych,
Mr R.
Maruste,
Mr J. Borrego Borrego,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 2 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57847/00) 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
Ivan Radkov Navushtanov who was born in 1978 and lives in Velingrad
(“the applicant”), on 30 December 1999.
- The
applicant was represented by Mr V. Stoyanov and Mrs V. Kelcheva,
lawyers practising in Pazardzhik.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Karadjova, of the Ministry of Justice.
- The
applicant alleged that there were numerous violations of his rights
under Article 5 of the Convention in respect to his detention
from 5 October 1999 to 21 April 2000. In addition, he claimed
that he had been subjected to inhuman or degrading treatment as a
result of having been detained in allegedly inadequate conditions of
detention at the Velingrad Investigation detention facility and the
Pazardzhik Prison.
- On
5 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3
of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant and
his detention in the context of these proceedings
- On
5 October 1999 the Prosecutor's Office, acting on the victim's
complaints and after having collected over forty-five pages of
evidence, opened a preliminary investigation against the applicant
concerning a series of five burglaries. The prosecutor in charge
ordered that the applicant be detained on remand in view of the fact
that there were another three preliminary investigations and sixteen
enquiries pending against him for various other offences.
- By
order of the same day, issued by an investigator and confirmed by a
prosecutor, the applicant was charged with the five burglaries and
was detained on remand. No specific reasons were cited in the order
of the investigator for detaining the applicant, but reference was
made to the aforesaid order of the prosecutor to detain the
applicant. The applicant was presented with the order and at
4:20 p.m. on the same day signed a statement that he had been
informed of its content.
- The
applicant was questioned on an unspecified date and confessed to
having committed the burglaries.
- The
charges against the applicant were amended on 18 October and 15
November 1999. The detention on remand was sustained on both
occasions without specific reasons being cited by the authorities.
- On
29 November 1999 the applicant appealed against his detention and
argued, inter alia, that he had a permanent address, was
planning to marry his pregnant girlfriend and had been in detention
since 5 October 1999.
- In
a decision of 2 December 1999 the Velingrad District Court dismissed
the appeal. Referring to the serious charges against the applicant,
the other three preliminary investigations and the sixteen enquiries
pending against him, the court considered that, if released, there
was a likelihood that he might abscond or re-offend.
- On
an unspecified date the charges against the applicant were amended
and he was charged with another three burglaries. Also on an
unspecified date he confessed to having committed these burglaries.
- The
preliminary investigation was completed on 21 December 1999.
- On
10 February 2000 an indictment was filed against the applicant with
the Velingrad District Court for a series of eight burglaries.
- A
hearing was conducted before the Velingrad District Court on 21 March
2000 at which the applicant confessed to the offences he had been
charged with.
- At
the next hearing on 19 April 2000 the applicant stated his readiness
to endure an appropriate sentence for his offences.
- By
judgment of the same day, 19 April 2000, the Velingrad District Court
found the applicant guilty as charged and sentenced him to two years'
imprisonment, suspended for a period of five years. In determining
his sentence, the domestic court took into account, inter alia,
that he did not have a criminal record and that he had confessed.
According to the minutes, the court also amended the measure for
securing the applicant's appearance in court to bail in the amount of
50 Bulgarian levs [BGN : approximately 25 euros (EUR)],
payable within three days, and ordered that he be released after
provision of the said recognisance.
- On
20 April 2000 a friend or relative of the applicant deposited the
recognizance into the bank account of the Velingrad District Court.
It is not clear when the District Court was informed that bail had
been provided. The applicant was released on 21 April 2000.
- Neither
the applicant nor the prosecution appealed against the judgment and
it entered into force.
B. The conditions of the applicant's detention
- The
applicant contended, which the Government did not challenge, that
from 5 October 1999 to 7 February 2000 he was detained at the
Velingrad Investigation detention facility. He was then transferred
to the Pazardzhik Prison where he remained until his release on 21
April 2000.
- In
the applicant's submission, at both of these detention facilities,
(1) there was insufficient fresh air in the cells; (2) there was
no exercise or healthy food; (3) hygiene was lacking (presence of
parasites and rodents); (4) he was denied access to newspapers,
books, radio and television; (5) he could not meet with his attorney
in private, and (6) he could not maintain an active correspondence.
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. Release on bail
- Article 150
§ 5 of the CCP provided at the relevant time:
“When the
measure for securing [a person's appearance in court] is amended from
a more [restrictive] one to bail, the [person] shall be released
following provision of recognisance.”
D. The State
Responsibility for Damage Act
- The
State Responsibility for Damage Act of 1988 (the “SRDA”)
provides that the State is 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).
28. In respect of the
regime of detention and conditions of detention, the relevant
domestic law and practice under sections 1 and 2 of the SRDA 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 Prison was visited by the CPT in 1995. The Velingrad
Investigation detention facility has never been visited, but there
are general observations about the problems in all investigation
service establishments in the 1995, 1999 and 2002 reports.
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 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 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 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 5 OF THE CONVENTION
- The
applicant made several complaints falling under Article 5 of the
Convention, the relevant part of which provides:
“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:
...
(c) the
lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable
suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing
after having done so;
...
2. Everyone
who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against
him.
3. Everyone
arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and 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.”
A. Complaint under Article 5 § 3 of the
Convention that the applicant was not brought
promptly before a judge or other officer authorised by law to
exercise judicial power
- The
applicant complained under Article 5 § 3 of the
Convention that when he was detained on
remand on 5 October 1999 he was not brought promptly before a
judge or other officer authorised by law to exercise judicial power.
- The
Government disagreed and argued that the applicant's detention on
remand was mandatory at the time given the numerous other criminal
proceedings against him. They also referred to the Court's findings
in previous cases concerning the system of pre-trial detention in
Bulgaria before 1 January 2000, where it had found that neither
investigators before whom the accused persons were brought, nor
prosecutors who approved detention orders, could be considered as
“officer[s] authorised by law to exercise judicial power”
within the meaning of Article 5 § 3 of the Convention.
However, the Government argued that each case should be considered on
its merits and noted that the applicant had been brought promptly
before a judge after he had filed an appeal against his detention on
29 November 1999.
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
- The
Court reiterates, as noted by the Government, that in previous
judgments which concerned the system of detention pending trial, as
it existed in Bulgaria until 1 January 2000, it found that neither
investigators before whom the accused persons were brought, nor
prosecutors who approved detention orders, could be considered as
“officer[s] authorised by law to exercise judicial power”
within the meaning of Article 5 § 3 of the Convention
(see Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998 VIII, p.
3299, §§ 144-50; Nikolova, cited above,
§§ 49-53, and Shishkov v. Bulgaria, no.
38822/97, §§ 52-54, ECHR 2003 I (extracts)).
- The
present case likewise concerns pre-trial detention imposed before 1
January 2000. The applicant's pre-trial detention was ordered by an
investigator and confirmed by a prosecutor (see paragraph 7 above),
in accordance with the provisions of the CCP
then in force (see paragraph 22 above). However, neither the
investigator nor the prosecutor were sufficiently independent and
impartial for the purposes of Article 5 § 3 of the
Convention, in view of the practical role they played in the
investigation and the prosecution and the prosecutor's potential
participation as a party to the criminal proceedings (see paragraph
22 above and the references quoted therein). The Court refers to the
analysis of the relevant domestic law contained in its Nikolova
judgment (cited above – see paragraphs 28, 29 and 49-53 of that
judgment). Moreover, the Government's arguments do not expressly
challenge the above findings.
- It
follows that there has been a violation of the applicant's right to
be brought before a judge or other officer authorised by law to
exercise judicial power within the meaning of Article 5 § 3
of the Convention.
B. Complaints under Article 5 § 1 of the
Convention regarding the lawfulness of the applicant's detention
- The
applicant complained under Article 5 § 1 of the
Convention that he was unlawfully detained. He contended that the
evidence against him was not sufficient to lead to the conclusion
that he was guilty of an offence, considered that several domestic
provisions were breached and that no reasons were given for the need
to detain him. The applicant also argued that he was detained
unlawfully from 19 April 2000, when the courts ordered his release on
bail, to 21 April 2000, when he was freed.
- Referring
to the applicant's detention from 19 to 21 April 2000, the Government
noted that after the trial court had delivered its judgment it had
also amended the measure for securing the applicant's appearance in
court to bail of BGN 50. Accordingly, the latter's release was
thereafter conditional on the provision of recognizance. The bail
amount was deposited by a friend or relative of the applicant only on
20 April 2000 and he was released on the very next day, 21 April
2000. Thus, the Government argued that the applicant's detention
between 19 and 21 April 2000 was in conformity with domestic
legislation and was not in contravention with the Convention.
1. The applicant's
detention from 10 October 1999 to 19 April 2000
- The
Court notes that the applicant's detention from 10 October 1999 to 19
April 2000 fell within the ambit of Article 5 § 1 (c)
of the Convention, as it was imposed for the purpose of bringing him
before the competent legal authority on suspicion of having committed
an offence. There is nothing to indicate that the formalities
required by domestic law were not observed. As regards the alleged
lack of reasonable suspicion, the Court reiterates that the standard
imposed by Article 5 § 1 (c) of the Convention does
not presuppose the existence of sufficient evidence to bring charges,
or find guilt, at the time of arrest. Facts which raise a suspicion
need not be of the same level as those necessary to bring a charge
(see O'Hara v. the United Kingdom, no. 37555/97, § 36,
ECHR 2001-X).
- In
the present case, the Court considers that the authorities had
sufficient information to ground a “reasonable” suspicion
against the applicant as they had amassed a considerable amount of
evidence against him (see paragraphs 6 and 7 above).
- Consequently,
the Court concludes that in respect of this period there is no
appearance of a violation of Article 5 § 1 of the
Convention. It follows that the complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
2. The applicant's
detention from 19 to 21 April 2000
- The
Court observes that the main issue to be determined in the context of
this complaint is whether the disputed detention was “lawful”,
including whether it complied with “a procedure prescribed by
law”. The Convention here essentially refers back to national
law and states the obligation to conform to the substantive and
procedural rules thereof, but it requires in addition that any
deprivation of liberty should be consistent with the purpose of
Article 5 of the Convention, namely to protect individuals from
arbitrariness (see Benham v. the United Kingdom, judgment
of 10 June 1996, Reports 1996 III, pp. 752-53, § 40).
It is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law. However, since under
Article 5 § 1 of the Convention failure to comply with
domestic law entails a breach of the Convention, it follows that the
Court can and should exercise a certain power to review whether this
law has been complied with (see Benham, cited above, § 41).
- In
the present case, the Court notes that immediately after the
Velingrad District Court delivered its judgment on 19 April 2000 it
amended the measure for securing the applicant's appearance in court
to bail, payable within three days, and ordered his release subject
to the provision of recognisance (see paragraph 17 above). The Court
recognises that the statutory basis for the applicant's detention
thereby changed. Thereafter it was the court's order and Article 150
§ 5 of the CCP which provided for his continued detention
pending the provision of recognizance (see paragraph 26 above).
- The
Court further notes that on 20 April 2000 the
recognizance was deposited by a friend or relative of the applicant
into the bank account of the Velingrad District
Court (see paragraph 18 above). However, it observes that the
applicant does not claim or argue that on that same day the
authorities were informed or became aware of the said payment. The
applicant was released on the next day, 21 April 2000 (see
paragraph 18 above). Considering the above, the Court finds no
indication, and the applicant provides no arguments to that affect,
that the authorities did not act immediately upon becoming aware of
the payment of the bail amount and that they did not release him
promptly thereafter.
- Consequently,
the Court concludes that in respect of this period there is also no
appearance of a violation of Article 5 § 1 of the
Convention. It follows that the complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
C. Complaint under Article 5 § 2 of the
Convention that the applicant was not informed promptly of the
reasons for his arrest
- The
applicant complained under Article 5 § 2 of the
Convention that when he was arrested on 5 October 1999 he was not
informed promptly of the reasons for his arrest and of the charges
brought against him.
- The
Court reiterates that Article 5 § 2 of the Convention
contains the elementary safeguard that any person arrested should
know why he is being deprived of his liberty. This provision is an
integral part of the scheme of protection afforded by Article 5:
by virtue of paragraph 2 any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal
and factual grounds for his arrest, so as to be able, if he sees fit,
to apply to a court to challenge its lawfulness in accordance with
paragraph 4. Whilst this information must be conveyed “promptly”,
it need not be related in its entirety by the arresting officer at
the very moment of the arrest. Whether the content and promptness of
the information conveyed were sufficient is to be assessed in each
case according to its special features (see Fox, Campbell and
Hartley v. the United Kingdom, judgment of 30 August 1990,
Series A no. 182, p. 19, § 40 and H.B. v. Switzerland,
no. 26899/95, § 47, 5 April 2001).
- The
Court observes that in the present case by order of 5 October
1999 the applicant was charged with a series of five burglaries and
was detained on remand. Contrary to his contentions, he was presented
with the order on the same day and at 4:20 p.m. signed a statement
that he had been informed of its content (see paragraph 7 above). The
applicant does not state or imply that he signed the aforementioned
statement under duress or without having had the opportunity to read
it. Thus, the Court finds no indications that he was not promptly
informed of the reasons for his arrest and of the charges brought
against him.
- Consequently,
the Court concludes that there is no appearance of a violation of
Article 5 § 2 of the Convention. It follows that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the
Convention.
D. Complaint under Article 5 § 3 of the
Convention pertaining to the applicant's right to trial within a
reasonable time or release pending trial
- The
applicant complained under Article 5 § 3 of the
Convention that his detention was unjustified and excessively
lengthy.
- The
Government disagreed with the applicant and noted that he had been
detained from 5 October 1999 to 21 April 2000. They further noted
that the preliminary investigation had been completed on 21 December
1999, the first hearing before the Velingrad District Court had been
conducted on 21 March 2000 and that the latter had delivered its
judgment on 19 April 2000 which the applicant did not appeal against
it. The Government therefore argued that the investigation and trial
stage of the criminal proceedings had been completed quickly within
only six-and-a-half months. Thus, they considered that the
applicant's right to be tried within a reasonable time had not been
violated.
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
- The
Court notes that the applicant was in pre-trial detention from
5 October 1999 to 19 April 2000, a period of six months and
fourteen days.
- The
Court further 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, cited above, §§ 57-67). Likewise, in
the decisions of the authorities of 18 October and 15 November
1999 to extend the applicant's detention they failed to cite any
reasons and to assess specific facts and evidence about a possible
danger of the applicant absconding, re-offending or obstructing the
investigation (see paragraph 9 above). 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 they seem to have
considered his detention mandatory and to have primarily relied on
the statutory provisions requiring such detention for serious
intentional offences.
- 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.
E. Complaint under Article 5 § 4 of the
Convention regarding the limited scope and nature of the judicial
control of lawfulness of the applicant's detention
- The
applicant complained under Article 5 § 4 of the
Convention, in conjunction with Article 13, that in its decision
of 2 December 1999 the Velingrad District Court did not examine all
factors relevant to the lawfulness of his detention and that he had
no right of appeal against the aforesaid decision.
- The
Government challenged the assertions of the applicant. They
alleged that the Velingrad District Court, in its decision of 2
December 1999 for dismissing the applicant's appeal against his
detention, had taken into account his prior convictions for serious
offences, the existence of other preliminary investigations and
enquiries pending against him and the fact that his detention on
remand was thus mandatory under the applicable domestic legislation.
The Government therefore considered that the domestic court examined
all factors relevant to the lawfulness of the applicant's detention
when it dismissed his appeal on 2 December 1999.
- In
respect of the applicant's reliance on Article 13 of the
Convention, the Court considers that this complaint should
be understood as referring to the applicant's alleged inability to
effectively challenge his detention under Article 5 § 4
of the Convention. In addition, the
Court observes that Article 5 § 4 of the Convention
constitutes a lex specialis in relation to the more general
requirements of Article 13 (see, among other authorities,
Nikolova, cited above, § 69). Accordingly, the Court
must examine the complaint only under Article 5 § 4 of
the Convention.
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
- The
Court notes at the outset that this complaint is very similar to
those in previous cases against Bulgaria where violations were found
(see Nikolova, §§ 54 66 and Ilijkov,
§§ 88 106, both cited above).
- Likewise,
the Court finds that the domestic court in the present case, when
examining the applicant's appeal against his detention on 2
December 1999, simply relied on the seriousness of the charges
against the applicant and the existence of other preliminary
investigations pending against him. It failed to take into account
the fact that the applicant did not have a criminal record
at the time and had confessed to the charges against him. Moreover,
it did not cite any specifics facts or evidence about the possible
danger of the applicant absconding, re-offending or obstructing the
investigation. Thus, it appears that it relied on the
statutory provisions requiring mandatory detention for serious
intentional offences 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 24 above).
- In
view of the aforesaid, the Court finds that the Velingrad District
Court, in its decision of 2 December 1999 for dismissing the
applicant's appeal against his detention, denied him the guarantees
provided for in Article 5 § 4 of the Convention on
account of the limited scope and nature of the judicial control of
lawfulness of the applicant's detention.
Thus,
there has been a violation of the said provision in that respect.
F. Complaint under Article 5 § 5 of the
Convention
- The
applicant complained under Article 5 § 5 of the
Convention that he did not have 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.
- The
Government disagreed and claimed that the applicant had available a
procedure under the SRDA whereby he could have claimed and obtained
compensation for having been unlawfully detained.
1. Admissibility
- 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).
- The
Court further observes that it has found that there were violations
of the applicant's right to be brought before a judge or other
officer authorised by law to exercise judicial power (see paragraph
48 above), that the authorities failed to justify
his continued detention (see paragraph 67 above) and that they denied
him the guarantees provided for in Article 5 § 4 of
the Convention (see paragraph 74 above). Thus, Article 5 § 5
of the Convention is applicable.
- The
Court also notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- In
view of the above, the Court must establish whether or not Bulgarian
law afforded the applicant an enforceable right to compensation for
the breaches of Article 5 of the Convention in his case.
- The
Court notes that by section 2(1) of the SRDA, 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 27 and 28
above).
- In
the present case, the applicant's detention on remand was considered
by the domestic courts as being 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 SRDA. Nor does
section 2(2) apply (see paragraphs 27 and 28 above).
- It
follows that in the applicant's case the SRDA 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 27 and 28 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.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the
Convention that he was subjected to inhuman or degrading treatment
while being detained at the Velingrad Investigation 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.”
A. The parties' submissions
1. The Government
- The
Government challenged the applicant's submissions. They argued that
his grievances in respect of the conditions of his detention were
formulated in a very general manner and that they lacked coherent and
precise elements supported by evidence of a violation. In respect of
the applicant's reliance on the reports of the CPT, the Government
noted that there had only been a visit to the Pazardzhik Prison in
1995 and that it had not been only critical of the conditions at that
facility.
- To
support their arguments in respect of the Pazardzhik Prison the
Government presented a report from the prison warden, dated 21 July
2005, detailing the conditions of the applicant's detention at that
detention facility, together with a number of supporting documents,
orders, schedules, time tables and invoices (the “warden's
report”). The information provided therein is summarised below.
- The applicant was held at the Pazardzhik Prison from
8 February to 21 April 2000. He was attached to second
prisoners' company and was placed in a cell with other first time
offenders.
- The
second prisoners' company was accommodated in five cells with a total
living area of 172.86 sq. m, designated for a maximum of twenty-eight
detainees. The cells ranged in size from 17.72 sq. m to 56.70
sq. m and were intended for two to eight persons, depending on their
size. During the year 2000 the average occupancy rate of the cells in
the second prisoners' company was twenty-five persons which allowed
for more living area for each detainee.
- At
the time, the cells did not have sanitary facilities, so communal
such facilities were provided which comprised of four separate toilet
cabins and two extended sinks with four taps of running water each.
Access to these facilities was possible at set periods several times
during the day, usually before and after meals and the various other
daily activities. As an exception, access to the sanitary facilities
was also possible at other times.
- All
the cells had access to direct sunlight from windows which could be
opened to allow fresh air to circulate. Artificial light was
available from 10 p.m. to 6 a.m.
- Each
detainee was provided with clothes, a bed with a mattress and bed
linen (sheets, a pillow cover and two blankets), which was changed
every two weeks. They were also provided with a locker where they
could place their personal belongings. Detainees were required to
bathe once a week, if they did not work, and daily, if they did. A
washing machine was also available for them to wash their clothes. In
1999 boilers were installed in each corridor to provide detainees
with easier access to hot water.
- The
detainees were provided free-of-charge with toiletry products and
materials to wash and disinfect their clothes and living areas, as
evidenced by an order of the prison warden of 20 January 1999.
However, it was noted that the level of cleanness depended in part on
the detainees who were responsible, under the supervision of the
prison authorities, for maintaining their living areas clean.
- The
prison authorities entered into a contract on 16 February 2000 with
an anti-infestation company to undertake an assessment of the status
of contamination of the prison by insects and rodents, and to
exterminate them. Thereafter, extermination activities were performed
on a regular basis, as evidenced by three invoices for such services
dating from later in the same year.
- The
prison kitchen prepared the food for the detainees. The daily menus
were set and controlled for quantity and quality by the prison
authorities with the aim of providing for a balanced diet. As
evidence, the menus for the weeks of 7 to 13 February 2000 and 17 to
23 April 2000 were presented to the Court. Thus, it can be observed
that during the two weeks in question the detainees were provided
with a meat or meat containing dish once a day for six days of each
week, on the seventh day they had fish, vegetarian dishes and dairy
products were provided daily, while fresh vegetables were given only
twice during the period.
- Detainees
were provided with an hour of daily outdoor exercise, which was
increased to an hour and forty-five minutes at the beginning of 2000.
A sports hall with weightlifting equipment and facilities to play
table tennis and badminton was also available for use by the
detainees to which they had daily access for fifty minutes.
- The
detainees from the second prisoners' company had access to the prison
library, which had over 8,500 books, for half an hour every day, as
evidenced by a schedule approved by the prison warden on 26 April
1999.
- Newspapers
were also available as the prison had taken out a number of such
subscriptions, as evidenced by two invoices for the year 2000 dating
from 14 December 1999 and 17 January 2000. Individual
subscriptions by detainees were also allowed.
- In
the prison there was also a chapel, a priest and organised religious
services, as evidenced by a schedule approved by the warden on 6
April 2000.
- There
was also an equipped cinema hall where films were shown once a week,
as evidenced by three invoices from 2000 for renting ninety-five
films. In 1999 each cell and dormitory was connected to a cable
television network offering over fifty channels. Detainees had to
provide their own television sets.
- At
the time, the prison also had an internal radio station which
transmitted to each cell, and detainees could have their own radios.
- The
correspondence of the detainees with their lawyers, relatives and
friends was unrestricted and was not registered. There was also no
restriction on the number of petitions, appeals or requests they
could make. Telephone conversations could also be organised with
relatives and lawyers.
- During
working hours, detainees could also meet privately, without
restriction or limitation, with their lawyers in a specially
designated room.
- In
respect of the applicant, the warden's reports noted that when he was
transferred to the prison he had declared in writing on 9 February
2000 that he did not want his relatives to be informed of his place
of detention. In addition, he had been found to be completely healthy
at the medical check-up on the same day, did not make any complaints
and until his release did not seek medical attention at the prison's
infirmary.
- Lastly,
it was claimed that significant improvements had been undertaken in
the prison following the CPT's visit in 1995 and that, as of the date
of the report, all cells and dormitories had access to sanitary
facilities with running hot water. Separately, the prison switched
from electricity to gas in 2002 which improved its central heating
and hot-water-provision' capabilities. In conclusion, it was claimed
that, as of the date of the warden's report, all the prescriptions
for improving the conditions at this detention facility had been met
with the exception of the overcrowding and the provision of medical
services.
2. The applicant
- The
applicant simply reiterated his complaints and contended that the
conditions of detention in which he was held at the Velingrad
Investigation detention facility and the Pazardzhik Prison were
inadequate and amounted to inhuman and degrading treatment under
Article 3 of the Convention. He relied, inter alia, on
the findings of the CPT in their reports and the declarations of two
other detainees at the Velingrad Investigation detention facility,
Mr V.G. and Mr. D.A., who corroborated his claims.
B. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
C. Merits
1. General principles
108. 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, cited
above, § 135).
113. 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).
2. Application of these principles to the present case
(a) Velingrad Investigation detention
facility
- The
Court reiterates that
allegations of ill-treatment must be supported by appropriate
evidence. In assessing evidence, the Court 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
Velingrad Investigation detention facility
is that furnished by him (see paragraph 21 above). It
also notes that he provided
signed declarations by another two detainees at this detention
facility (see paragraph 106 above). However,
in so far as those individuals also made applications before the
Court with identical complaints (Ganchev v. Bulgaria
(dec.), no. 57855/00, 30 June 2005 and application
no. 57180/00),
it finds that their statements should not be considered objective and
that they should not therefore be given any particular weight (see
Yordanov, cited above, § 82 and Dobrev,
cited above, § 117).
- In
any event, 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, § 60).
- In
the present case, in their observations the Government restricted
themselves to responding only to the applicant's complaints in
respect of the Pazardzhik Prison (see paragraphs 86-105 above).
Moreover, they did not offer any convincing explanation for their
failure to submit relevant information regarding the
Velingrad Investigation detention facility (see
Fedotov, cited above, § 61).
- In
these circumstances, the Court will
examine the merits of the applicant's complaint in respect of the
conditions of detention at the Velingrad Investigation
detention facility 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
Velingrad Investigation detention facility was never itself
visited and the reports cover somewhat different periods, the Court
considers that the general
observations of the CPT in respect of the conditions of detention in
all Investigation Service detention facilities during its visits, in
so far as relevant, may also inform it in its decision (see
paragraphs 29-41 above and, for a similar approach, Iovchev,
cited above, § 130 and Staykov v. Bulgaria,
no. 49438/99, §§ 75 and 79, 12 October
2006).
- The
Court observes that the applicant was detained on the premises of the
Velingrad Investigation detention facility from 5 October 1999 to
7 February 2000 (see paragraph 20 above). The period to be taken
into account, therefore, is four months and three days.
- The
applicant was detained in a cell, which lacked fresh air and was
unhygienic. He also had no
possibility for outdoor or out-of-cell activities and communication
with the outside world was very limited. Moreover, the food
provided at this facility was substandard (see paragraph 21 above).
- The
Court observes however that the applicant was detained at this
facility for a period of not longer than four months and, quite
significantly, did not complain of any overcrowding or that his
physical or mental health deteriorated during or as a result of his
detention there.
- Thus,
while recognising that the applicant may have endured some distress
and hardship during the period of his detention at the Velingrad
Investigation detention facility, the Court does not find that in the
particular circumstances of the present case the treatment complained
of went beyond the threshold of severity under Article 3 of the
Convention.
- Therefore,
there has been no violation of Article 3 of the Convention on
account of the applicant's detention at the Velingrad Investigation
detention facility.
(b) Pazardzhik
Prison
- The
Court observes that the applicant was detained on the premises of the
Pazardzhik Prison from
7 February to 21 April 2000 (see paragraph 20 above). The period
to be taken into account, therefore, is two months and thirteen days.
- The
applicant initially complained that he was detained in a cell, which
lacked fresh air, was unhygienic and had parasites and
rodents. The CPT, during its visit in 1995, found that the Pazardzhik
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. In addition, it found that the central
heating was far from sufficient, inadequate and only some of the
dormitories were fitted with sanitary facilities (see paragraph 36
above).
The
Court takes note, however, of the Government's detailed submissions
and the supporting documents they presented (see paragraphs 86-105
above) arguing that the conditions of the applicant's detention were
materially different from what the CPT had observed at the Pazardzhik
Prison in 1995. Moreover, it notes that none of the Government's
claims or arguments were subsequently challenged by the applicant.
Accordingly, the Court must afford them the required weight when
accessing the merits of the applicant's complaint in respect of the
Pazardzhik Prison.
- In
view of the above and based on the information provided by the
Government (see paragraph 89 above), the Court notes that on average
the living area available per detainee in second prisoners' company
during the year 2000 was 6.91 sq. m. The CPT, meanwhile, has set 7
sq. m as an approximate, desirable guideline for a single-occupancy
police cell [see “The CPT Standards” – CPT/Inf/E
(2002) 1 - Rev. 2006, paragraph 43], but there is no such guideline
in respect of prison cells. However, the CPT has in general applied a
standard of a minimum of 4 sq. m per prisoner in multiple occupancy
cells [see, for example, the CPT reports on the 2002 visit to
Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, and on the 2004
visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111], and a
minimum of 6 sq. m. per prisoner in single occupancy cells [see,
for example, the CPT report on the 2004 visit to Poland, CPT/Inf
(2006) 11, paragraphs 87 and 111]. Separately, the Court notes that
during the period of the applicant's detention there were no sanitary
facilities in the cells, but that access to such facilities was
provided several times daily (see paragraph 90 above). There was
direct sunlight and the windows in the cells could be opened to allow
fresh air to circulate (see paragraph 91 above). Detainees were
provided with clothes, a bed with a mattress, bed linen and a locker
for personal belongings. The bed linen was changed every fortnight.
The detainees had to bathe at least once a week, had access to a
washing machine and after 1999 had easier access to hot water on
account of the boilers installed in each corridor (see paragraph 92
above). Detainees were provided free-of-charge with toiletry products
and materials to wash and disinfect their clothes and living areas
(see paragraph 93 above). Efforts were also made to exterminate any
insects and rodents (see paragraph 94 above).
- The
applicant further complained
that the food provided was of insufficient quantity and substandard.
However, the Court notes that
the Government claimed, which the applicant did not subsequently
challenge, that at the time of the applicant's detention the prison's
kitchen prepared the food and adhered to menus set and controlled for
quantity and quality by the prison authorities providing for a
balanced diet. Considering the menus presented by the Government in
respect of two of the weeks of the applicant's detention at this
facility, the Court does not find that the food during those periods
was substandard or inadequate (see paragraph 95 above).
- The
applicant also complained that there was no possibility for outdoor
or out-of-cell activities at this detention facility. The
Court notes, however, that the Government claimed, which the
applicant did not subsequently challenge, that
detainees were provided with an hour of daily outdoor
exercise, which was increased to one hour and forty-five minutes at
the beginning of 2000. An equipped sports hall was also available for
use by detainees to which they had was daily access (see paragraph 96
above). There was also a chapel, a priest and organised religious
services (see paragraph 99 above).
- The
applicant complained that
he could not maintain an active correspondence, that he was not
allowed to read newspapers or books and that he had no access to a
radio or a television. However,
the Court notes that the Government claimed, which the
applicant did not subsequently challenge, that detainees'
correspondence with their lawyers, relatives and friends was not
restricted and that telephone conversations could also be organised
in certain cases (see paragraph 102 above). It further notes that
there was a prison library with a significant number of books and
newspapers (see paragraphs 97 and 98 above). Films were screened on a
weekly basis and there was the possibility to watch cable television
in each cell. Radios were also permitted (see paragraphs 100 and 101
above).
- The
applicant also complained that he was denied the right to meet with
his attorney in private. The Court notes, however, that the
Government claimed, which the applicant did not subsequently
challenge, that during working hours, detainees could meet privately,
without restriction or limitation, with their lawyers in a specially
designated room (see paragraph 103 above).
- The
Court notes that the applicant did not complain that his physical or
mental health deteriorated during or as a result of his detention at
this facility. Accordingly, no considerations in this respect are
warranted.
- Having
regard to the regime to which the applicant was subjected and the
material conditions in which he was held at the Pazardzhik
Prison for a period of two-and-a-half months, the Court
concludes that the distress and hardship he endured during the period
of his detention at this facility did not exceed the unavoidable
level of suffering inherent in detention and that the resulting
anguish did not go beyond the threshold of severity under Article 3
of the Convention.
- Therefore,
there has been no violation of Article 3 of the Convention on
account of the applicant's detention at the Pazardzhik Prison.
V. 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 EUR 10,000 euros as compensation for each of the
alleged violations of his rights under the Convention.
- The
Government did not submit comments on the applicant's claims for
damage.
- Having
regard to the specific circumstances of the present case and the
violations found (see paragraphs
48, 67, 74 and 84 above), its case-law in similar cases and
deciding on an equitable basis, the Court awards EUR 1,000 under
this head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for 156 hours of legal work by his
lawyers in the proceedings before the Court at an effective hourly
rate of EUR 64. In addition, he claimed BGN 39.37 (approximately
EUR 20) for postal expenses of his lawyer. He submitted a legal
fees agreement between him and his lawyers, a timesheet and postal
receipts. The applicant requested that the costs and expenses
incurred should be paid directly to his lawyers, Mr V. Stoyanov
and Mrs V. Kelcheva.
- 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 were reasonable as to quantum. In the instant case, the
Court considers the number of hours claimed excessive given that a
number of the applicant's complaints were either declared
inadmissible or no violation of the Convention was established (see
paragraphs 53, 57, 61 123 and 133 above). Moreover, there was a lack
of substantive submissions in response to some of the Government's
observations (see, for example, paragraph 106 above). Thus, it
considers that a significant reduction is necessary on both accounts.
Having regard to all relevant factors, 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
- Declares admissible the complaints concerning
(a) the applicant not being promptly brought before a judge or other
officer authorised by law to exercise judicial power; (b) the
justification of his continued detention; (c) the limited scope and
nature of the judicial control of lawfulness of the applicant's
detention; (d) the lack of an enforceable right to compensation
for being a victim of arrest or detention in breach of the provisions
of Article 5 of the Convention; and (e) the applicant's
detention in allegedly inadequate conditions of detention at the
Velingrad Investigation detention facility and the Pazardzhik Prison;
- Declares the
remainder of the application inadmissible;
- Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the
applicant not having been promptly brought before a judge or other
officer authorised by law to exercise judicial power;
- 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
limited scope and nature of the judicial control of lawfulness of the
applicant's detention;
- 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 that there has been no violation of
Article 3 of the Convention on account of the applicant's
detention at the Velingrad Investigation detention facility;
- Holds that there has been no violation of
Article 3 of the Convention on account of the applicant's
detention at the Pazardzhik Prison;
- 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
1,000 (one thousand euros) in respect of non-pecuniary damage,
payable to the applicant himself;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, payable in
two equal instalments of EUR 250 (two hundred and fifty euros) into
the bank accounts of the applicants' lawyers in Bulgaria, Mr
V. Stoyanov and Mrs V. Kelcheva;
(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 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
