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FIFTH
SECTION
CASE OF SLAVCHO KOSTOV v. BULGARIA
(Application
no. 28674/03)
JUDGMENT
STRASBOURG
27 November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Slavcho Kostov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Stephen Phillips, Deputy Section
Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28674/03) against the Republic
of Bulgaria lodged on 29 August 2003 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 Slavcho Dimitrov Kostov (“the applicant”) who was
born in 1967 and lives in Zhelyu Voivoda.
- The
applicant was represented by Ms Ya. Dimova, a lawyer practising in
Sliven.
- The
Bulgarian Government (“the Government”) were represented
by their Agents, Ms M. Karadjova and Ms M. Kotzeva, of the Ministry
of Justice.
- The
applicant alleged, in particular, that he had been unlawfully held in
pre-trial detention in conditions that were inadequate and that in
the subsequent civil proceedings for damages the domestic courts had
awarded him insufficient compensation which had been rendered
meaningless by the requirement to pay excessive court fees on the
dismissed part of his claim.
- On
4 November 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. Criminal proceedings against the applicant
- The
applicant was detained on 16 September 1995 and was charged with
aiding and abetting another individual to commit murder and attempted
murder on the previous day, the 15th – the applicant had been
in the car of the victim when the latter and his wife had been shot
and was a close relative of the alleged murderer. The applicant was
placed in pre-trial detention on the same day.
- The
applicant was released on 12 October 1995 and a restriction was
placed on him not to leave his place of residence without the
authorisation of the public prosecutor's office.
- On
16 December 1996 the Sliven regional public prosecutor's office
terminated the criminal proceedings against the applicant as unproven
and lifted the restriction on his movement.
B. Conditions of detention
- Between
16 September and 12 October 1995 the applicant was detained at the
Sliven Regional Investigation Service detention facility.
- The
applicant contended that at this detention facility there had been
(a) overcrowding, as he had been accommodated in a cell with another
five detainees, (b) insufficient oxygen in the cell, (c) inadequate
hygiene, as he had had no access to a toilet and all six detainees
had had to drink from the same water container, (d) insufficient
food, (e) no possibility for visits by friends or relatives, and (f)
no access to newspapers or other media. He also claimed that as a
result of having been detained in such conditions his self esteem
had declined and he had endured physical and psychological suffering.
C. Civil action for damages against the State
- On
an unspecified date in 1999 the applicant initiated a civil action
for damages against the Chief Public Prosecutor's Office under
section 2 of the State and Municipalities Responsibility for Damage
Act 1988 (the “SMRDA”: renamed in 2006). He claimed that
he had been charged with an offence which he had not committed, that
on 16 September 1995 he had been detained for almost a month and that
a restriction had then been placed on his movement for more than a
year. The applicant also argued that he had had to endure physical
and mental pain and suffering as a result of the unlawful criminal
proceedings against him and the inadequate conditions of detention at
the Sliven Regional Investigation Service detention facility. In
addition, because of the prolonged restriction on his movement he
claimed to have suffered loss of income as he had been unable to
accept a job in Greece. The applicant sought 50,000 Bulgarian levs
(BGN: 25,641 euros (EUR)) in compensation of which BGN 35,000 (EUR
17,948) represented compensation for pecuniary damage and BGN 15,000
(EUR 7,692) represented compensation for non pecuniary damage.
- In
a judgment of 23 April 2001 the Sliven Regional Court found in favour
of the applicant and ordered the Chief Public Prosecutor's Office to
pay him BGN 5,000 (EUR 2,564). This represented compensation for the
non-pecuniary damage suffered by the applicant as a result of the
unlawful acts and actions of the public prosecutor's office during
the period from 16 September 1995 to 16 December 1996 in
charging him with aiding and abetting another individual to commit
murder, holding him in pre-trial detention and then replacing it with
a restriction not to leave his place of residence without the
authorisation of the public prosecutor's office. In reaching its
decision, the Regional Court took into account the fact that the
criminal proceedings and the associated restrictions imposed on the
liberty and movement of the applicant had lasted for more than a
year, which it found had caused him suffering and had brought about
the break-up of his relationship with his fiancée. The court
further found that he had been detained in “extremely harsh
conditions” at the Sliven Regional Investigation Service
detention facility, which it considered to have caused him physical
and mental pain and suffering and to have had a negative effect on
his dignity as he had been held in an overcrowded cell with another
six individuals, without access to a toilet, bathing or any other
facilities in order to maintain even basic hygiene, had been given
food only once a day, had not been allowed visits by friends or
relatives and had had no access to newspapers or any other media. The
Regional Court also took note of a report by the paramedic at the
said detention facility that the applicant had been healthy at the
time of his arrival there, but had then developed an inflammation of
the sciatic nerve accompanied by pain in the pelvis area and down the
left leg. Lastly, the court found that the applicant's reputation had
been damaged as a result of having been unlawfully held in pre-trial
detention and having had criminal proceedings initiated against him.
The Regional Court dismissed as unsubstantiated the remainder of the
claims in respect of pecuniary and non-pecuniary damage and, by
applying section 10 (2) of the SMRDA, ordered the applicant to pay
court fees of four percent on the dismissed part of his claim, which
amounted to BGN 1,800 (EUR 923).
- Both
the applicant and the Sliven regional public prosecutor's office
appealed against the judgment.
- In
a judgment of 16 November 2001 the Burgas Court of Appeal reached
similar conclusions on the facts of the case. It also found that the
applicant had had a good reputation and no criminal record and that
the criminal proceedings against him, his arrest and detention in
inadequate conditions and the restriction on his movement had damaged
his reputation and had caused him pain and suffering. Nevertheless,
the Court of Appeal considered the amount awarded to be excessive and
lowered the compensation for non-pecuniary damage to BGN 3,000 (EUR
1,538). It upheld the remainder of the judgment of the Regional Court
and ordered the applicant to pay an additional BGN 80 (EUR 41) in
court fees, proportionate to the additionally dismissed part of his
claim.
- The
parties' ensuing cassation appeals were both dismissed by the Supreme
Court of Cassation on 18 April 2003.
D. Subsequent developments
- Criminal
proceedings were initiated against the applicant on an unspecified
date in 2004 for having committed perjury in the proceedings
regarding the murder of 15 September 1995.
- On
an unspecified date the applicant concluded a plea bargain agreement
with the Sliven district public prosecutor's office whereby he
pleaded guilty to perjury and was sentenced to ten months'
imprisonment, which was suspended for three years. The plea bargain
agreement was approved by the Sliven District Court on 10 February
2005.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Grounds for detention
- The
relevant provisions of the CCP and the Bulgarian courts' practice
before 1 January 2000 are summarised in the Court's judgments in
several similar cases (see, among others, Nikolova v. Bulgaria
[GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov
v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001;
and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR
2003-XII (extracts)).
B. State and Municipalities Responsibility for Damage
Act 1988
- The
SMRDA provided at the relevant time that the State was liable for
damage caused to private persons by (a) the illegal orders, actions
or omissions of government bodies and officials acting within the
scope of, or in connection with, their administrative duties; and (b)
the organs of the investigation, the prosecution and the courts for,
inter alia, unlawful pre trial detention, if the
detention order had been set aside for lack of lawful grounds, or for
being charged with an offence if the criminal investigation had been
terminated because the suspect was the perpetrator (sections 1-2).
- In respect of the regime of detention and conditions
of detention, the relevant domestic law and practice under sections 1
and 2 of the SMRDA has been summarised in the cases of Iovchev v.
Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006)
and Hamanov v. Bulgaria (no. 44062/98, §§ 56 60,
8 April 2004).
- The
system of court fees, which existed at the relevant time, in
proceedings under the SMRDA and the practice of the domestic courts
has been summarised in the cases of Stankov v. Bulgaria (no.
68490/01, §§ 19 21, ECHR 2007 ...) and
Mihalkov v. Bulgaria (no. 67719/01,
§§ 19 23, 10 April 2008).
- Following
the judgment in the case of Stankov (cited above) the system
of court fees was changed as of 30 May 2008. At present, a flat rate
court fee is due for filing a claim under the SMRDA, which varies
depending on the type of the claimant and is either BGN 10 or BGN 25
(EUR 5.12 or EUR 12.82). The court fee due for each subsequent appeal
or request for reopening is half the aforestated amounts – BGN
5 or BGN 12.50 (EUR 2.56 or EUR 24.38: section 9a of the SMRDA
and sections 2a and 18 (3) of Tariff of state fees collected by the
courts under the Code of Civil Procedure).
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.
- The
Sliven Regional Investigation Service detention facility was visited
in 2006.
- A
summary of the relevant findings and observations of the CPT, prior
to its 2006 visit report, is contained in the Court's judgments in
the cases of Dobrev v. Bulgaria (no. 55389/00, §§
44-56, 10 August 2006) and Malechkov v. Bulgaria (no.
57830/00, §§ 38-50, 28 June 2007).
- In
several of its reports the CPT has recommended that States apply a
minimum standard of 4 sq m per detainee in multiple-occupancy cells
(see, for example, the CPT reports on the 2002 visit to Bulgaria,
CPT/Inf (2004) 21, paragraphs 82 and 87, on the 2004 visit to
Poland, CPT/Inf (2006) 11, paragraphs 87 and 111, and the 2006 visit
to Bulgaria, CPT/Inf (2008) 11, paragraphs 55, 77 and 90).
Relevant findings of the 2006
report (made public in 2008)
Sliven Regional Investigation Service
- The
CPT found that cells were often overcrowded – up to four
persons in cells measuring 7 sq m. The cramped conditions were
aggravated by the lack of direct access to natural light, poor
artificial lighting and the absence of a differentiated day/night
system, and inadequate ventilation. Further, the cells were in a poor
state of hygiene and repair: the beds were dilapidated and in a bad
state of repair, giving a very uneven base for the thin, tattered
mattresses, and the blankets which were filthy. Similar to the
reports cited above (see paragraph 26 above), the CPT recommended
that cell occupancy rates be reduced to an acceptable level by
applying a minimum standard of 4 sq m per detainee in
multiple-occupancy cells.
- The
CPT further found that detainees were usually taken to the toilet
three times during the day and kept plastic bottles or buckets in the
cells for other occasions. They could take a shower once a week
(sometimes, twice a week in the summer months). As regards personal
hygiene items, only soap was occasionally provided.
- Bed
linen was usually provided by detainees' families. There were no
laundry facilities and detainees washed their clothes and bed linen
themselves when they were taken to have a shower. Further, no
cleaning materials were made available.
- Food
was provided three times a day, but the daily food allowance was less
than BGN 1.50 (EUR 0.77) per person and detainees complained about
the quantity and/or quality of the food.
- There
was no outdoor exercise yard due to the fact that the detention
facility was located on one of the top floors in the building of the
police station. Thus, the CPT found that detainees continued to spend
months on end locked up in their cells twenty four hours a day.
Inside the cells, in addition to books and newspapers, detainees were
in principle allowed to have battery-operated radio and TV sets.
- As
to the arrangements for the provision of health care to detainees,
the CPT found that there could be gaps of several days (up to a week)
between admission and the initial medical examination by a doctor.
Further, the general medical screening was cursory and did not
identify detained persons' health needs. Access to outside hospital
facilities was in principle not a problem, but authorisation was
needed from a prosecutor for such a transfer, and medical
recommendations could be slowed down or overridden by legal
considerations.
THE LAW
I. CONDITIONS OF DETENTION
- The
applicant complained under Article 3 of the Convention in respect of
the conditions of detention at the Sliven Regional Investigation
Service detention facility and that he was awarded inadequate
compensation for the aforesaid violation by the domestic courts. In
particular, he contended that the compensation awarded was very low
and was rendered meaningless by the fact that he had to pay high
court fees on the dismissed part of his claim.
- The
Court finds that the applicant's complaints fall to be examined under
Articles 3 and 13 of the Convention, which provide:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13 (right to an effective remedy)
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
1. The Government
- The
Government contended that the applicant had been detained in
conditions which complied with the requirements related to respecting
his personal dignity. They further claimed that the method of
implementing the measure had not subjected him to exhaustion and
hardships exceeding the unavoidable level of suffering resulting from
the detention and that his health and good general condition had been
duly ensured.
- In
their submissions, the Government relied on a report of 13 January
2006 from the Execution of Sentences Directorate of the Ministry of
Justice, which contended that the applicant had been held in
conditions normally provided to such detainees at the time in
question. In particular, the report stated that the Sliven Regional
Investigation Service detention facility had eleven cells of nineteen
cubic metres each which were furnished with wooden beds, mattresses,
pillows, bed covers and bed linen. Food had been provided three times
a day. Detainees had had access to sanitary facilities and could take
a hot shower once a week. As the detention facility had been located
on the sixth floor of the police station there had been no outside
area for exercise. Further, cells had had no direct sunlight so only
artificial light was available. Detainees also had had the
opportunity to purchase books, newspapers and magazines. A paramedic
had been available to deal with any medical complaints by detainees
and specialised medical personnel could have been called or a
transfer to an outside medical facility could have been be made if a
detainee's medical condition required it. Lastly, detainees had had
the possibility to complain to a prosecutor if they felt their rights
had been violated, which the Government noted had not been done by
the applicant.
- In
conclusion, the Government claimed that the applicant had been held
in conditions of detention which fulfilled the requirement for
respect of his human dignity, that the distress and hardship he had
endured during the period had not exceeded the unavoidable level of
suffering inherent in detention and that the resulting anguish had
not gone beyond the threshold of severity under Article 3 of the
Convention.
- In
respect of the compensation awarded to the applicant, the Government
argued that it had been properly calculated by the domestic courts
and that the requirement to pay court fees on the dismissed part of
the claim had no relevance to the adequacy of the compensation
awarded. They further argued that it had been the applicant's own
fault that such high court fees had had to be paid because he had
filed a claim for a very large amount which the domestic courts had
dismissed as unsubstantiated. Further, the Government considered that
the applicant could have, but failed to request to be released from
the obligation to pay court fees in the proceedings.
2. The applicant
- The
applicant restated his complaints and referred to other similar cases
against Bulgaria where the Court found that there had been
violations, to the findings of the CPT in their reports and the
domestic courts in the proceedings under the SMRDA.
B. Admissibility
1. Victim status
- The
Court notes that the applicant initiated an action against the State
under the SMRDA and that the domestic courts established, inter
alia, that he had been
held at the Sliven Regional Investigation Service detention
facility in “extremely harsh
conditions” of detention and awarded him compensation for,
inter alia,
the period of his detention in such conditions (see paragraph 12
above). Thus, it must be assessed whether the applicant can still
claim to be a victim of a violation under Article 3 of the
Convention.
(a) Principles established under the
Court's case-law
- The Court summarised the principles governing the
assessment of an applicant's victim status in paragraphs 178 92
of its judgment in the case of Scordino v. Italy (no. 1)
([GC], no. 36813/97, ECHR 2006 ...). In so far as relevant to
the case under consideration, they are:
(a) Under
the subsidiarity principle, it falls first to the national
authorities to redress any alleged violation of the Convention. In
this regard, the question whether an applicant can claim to be a
victim of the violation alleged is relevant at all stages of the
proceedings under the Convention;
(b) A
decision or measure favourable to the applicant is not in principle
sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the
Convention;
(c) The
applicant's ability to claim to be a victim will depend on the
redress which the domestic remedy will have given him or her;
(d) The
principle of subsidiarity does not mean renouncing all supervision of
the result obtained from using domestic remedies, otherwise the
rights guaranteed by the Convention would be devoid of any substance.
In that connection, the Convention is intended to guarantee not
theoretical or illusory rights, but rights that are practical and
effective.
(b) Application of the foregoing
principles
- It
follows from the foregoing principles that the Court must verify
whether the authorities acknowledged, at least in substance, that
there had been a violation of a right protected by the Convention and
whether the redress can be considered as appropriate and sufficient
(see Scordino (no. 1), cited above, § 193).
(i) The finding of a violation
- The
Court accepts that in the proceedings under section 2 of the SMRDA
the domestic courts acknowledged in substance that the applicant had
been held at the Sliven
Regional Investigation Service detention facility
in conditions of detention contrary to Article 3 of the Convention
(see paragraphs 12-15 above).
(ii) The characteristics of the redress
- The
issue which needs to be determined by the Court is whether the
compensation awarded to the applicant amounted to sufficient redress.
- On
this point, the Court notes that in the proceedings under the SMRDA
the applicant sought BGN 50,000 (EUR 25,641) in compensation from the
public prosecutor's office, of which BGN 35,000 (EUR
17,948) represented compensation for pecuniary damage and BGN
15,000 (EUR 7,692) represented compensation for
non pecuniary damage.
- The
domestic courts dismissed the applicant's claim for pecuniary damage,
but awarded him BGN 3,000 (EUR 1,538) as compensation for the
non-pecuniary damage suffered as a result of all the unlawful acts
and actions of the public prosecutor's office during the whole period
from 16 September 1995 to 16 December 1996 – for having
charged him with aiding and abetting another individual to commit
murder, for holding him in pre-trial detention and for then replacing
it with a restriction not to leave his place of residence without the
authorisation of the public prosecutor's office. In addition, the
applicant was ordered to pay court fees of BGN 1,880 (EUR 964)
on the dismissed part of his claim.
- The
Court further notes that the conditions in which the applicant had
been held at the Sliven
Regional Investigation Service detention facility
were examined by the domestic courts and were found to have been
“extremely harsh” (see paragraph 12 above). However, they
were not the sole or the primary reason for the decision to award the
applicant compensation and the domestic courts did not indicate how
much they were awarding for each of the violations found. Thus, the
Court cannot determine how much of the BGN 3,000 (EUR 1,538)
compensation, if any, the applicant was awarded for having been held
at the Sliven Regional
Investigation Service detention facility in conditions which the
domestic courts considered “extremely
harsh” (ibid.). In any event, it cannot be more than
that amount or the BGN 1,120 (EUR 574) which effectively remained for
the applicant after payment of the court fees of BGN 1,880 (EUR 964).
- In
view of the above, the Court finds that the compensation awarded to
the applicant cannot be considered to represent sufficient redress
for the alleged violation of Article
3 of the Convention. He may therefore still claim to be a victim
within the meaning of Article 34 of the Convention.
2. Conclusion
- The
Court finds 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. Article 3 of the Convention
- The
relevant general principles under Article 3 of the Convention are
summarised in the Court's judgments in the cases of Navushtanov
v. Bulgaria (no. 57847/00, §§ 108-13, 24 May
2007), Dobrev (cited above, §§ 120-24) and Yordanov
v. Bulgaria (no. 56856/00, §§
85-89, 10 August 2006).
- The
Court observes that the applicant was detained at
the Sliven Regional Investigation Service detention facility
from 16 September and 12 October 1995 (see paragraph 9 above),
so the period to be taken into account is twenty six days.
- The
Court notes that in the proceedings under the SMRDA, the domestic
courts found that the applicant had been held in “extremely
harsh conditions” at the
Sliven Regional Investigation Service detention facility (see
paragraph 12 above). In particular, they found that the said
conditions had caused him physical and mental pain and suffering and
had had a negative effect on his dignity as he had been held in an
overcrowded cell with another six individuals, without access to a
toilet, bathing or any other facilities in order to maintain even
basic hygiene, had been given food only once a day, had not been
allowed visits by friends or relatives and had had no access to
newspapers or any other media (see paragraphs 12 and 14 above).
- The
Court further notes that while the Government strongly disagreed with
the applicant's description of the conditions in which he was held,
the CPT in its 2006 visit report to the Sliven Regional Investigation
Service detention facility found a number of shortcomings in respect
of the conditions there, some of which are similar to those claimed
by the applicant and established by the domestic courts in the
proceedings under the SMRDA (see paragraphs 10, 12, 14, 27-32 and
35-37 above).
- In
these circumstances, the Court considers that the distress and
hardship endured by the applicant exceeded the unavoidable level of
suffering inherent in detention and went beyond the threshold of
severity under Article 3.
- Therefore,
there has been a violation of Article 3 of the Convention on account
of the applicant's detention at the Sliven Regional Investigation
Service detention facility.
2. Article 13 in conjunction with Article 3 of the
Convention
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 varies depending on the
nature of the applicant's complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be effective in
practice as well as in law (see McGlinchey and Others v. the
United Kingdom, no. 50390/99, § 62, ECHR 2003 V, with
further references).
- In
the case of a breach of Articles 3 of the Convention, which ranks
among its most fundamental provisions, compensation for the
non pecuniary damage flowing from the breach should in principle
be part of the range of available remedies. Indeed, when it finds a
violation of that provision, the Court itself will as a rule award
compensation for non pecuniary damage, recognising pain, stress,
anxiety and frustration (ibid., § 66).
- In
the present case, the Court has found the respondent State
responsible under Article 3 of the Convention for the applicant
having been held at the Sliven Regional Investigation Service
detention facility in inadequate conditions of detention (see
paragraph 55 above). The applicant's complaint in this regard is
therefore arguable for the purposes of Article 13. It follows that he
should have been able to obtain compensation for this (see Iovchev,
cited above, §§ 142-44).
- In
view of the above, the Court notes that in the proceedings under the
SMRDA the domestic courts examined the conditions in which the
applicant had been held at the Sliven Regional Investigation Service
detention facility, found them to be “extremely harsh”
and awarded him compensation of BGN 3,000 (EUR 1,538) for the
non-pecuniary damage suffered as a result of, inter alia,
having been held in such conditions of detention (see paragraphs
12-15 above). Thus, the applicant had at his disposal and made use of
a domestic remedy which dealt with the substance of his complaint
under Article 3 of the Convention regarding the conditions of
detention and awarded him relief.
- However,
the Court notes that the compensation awarded was also intended to
redress the non-pecuniary damage suffered by the applicant as a
result of the public prosecutor's office having charged him, held him
in pre-trial detention and then restricted his freedom of movement
(see paragraphs 12-15 above). In addition, the domestic courts, by
applying section 10 (2) of the SMRDA, ordered the applicant to pay
court fees of BGN 1,880 (EUR 964).
Thus, the primary issue to be assessed is whether the said
compensation, taken together with the requirement to pay over half of
the awarded amount in court fees, adequately redressed the violation
of the applicant's right under Article 3 of the Convention.
- In
respect of the size of the compensation awarded, the Court refers
entirely to its assessment in respect of the applicant's victim
status under Article 3 of the Convention (see paragraphs 40-48 above)
and the impossibility to determine what part, if any, of the
compensation of BGN 3,000 (EUR 1,538),
of which BGN 1,880 (EUR 964) had to be paid
as court fees, the applicant received as redress for having been held
in inadequate conditions of detention.
- In
respect of the court fees that the applicant was ordered to pay, the
Court refers to its recent findings in the cases of Stankov (cited
above, §§ 43-67), Mihalkov (cited above,
§§ 55-65) and Tzvyatkov v.
Bulgaria (no. 20594/02, §§
24-27, 12 June 2008) made in the context of the right of
access to court under Article 6 of the Convention, which it considers
equally relevant and applicable to the present instance. In
particular, in the aforementioned cases the Court found a violation
of Article 6 as it considered that although the imposition of court
fees was an aim which was compatible as such with the good
administration of justice, the practical difficulties in assessing
the likely award under the SMRDA, taken together with the relatively
high and wholly inflexible rate of court fees, amounted to a
restriction on the applicant's right to a court which was
disproportionate to the otherwise legitimate aim (see Stankov,
cited above, § 67). In the present case, the applicant was
ordered to pay court fees of BGN 1,880 (EUR 964) which represents
approximately sixty three percent of the compensation of BGN 3,000
(EUR 1,538) awarded by the domestic courts for all the established
violations (see paragraphs 12-15 above).
- As
to the Government's claim that the applicant himself had been
responsible for the fact that he had been ordered to pay a
significant sum in court fees (see paragraph 38 above), the Court
notes that in the case of Stankov (cited above, §§
60-63) it dismissed a similar argument as it found that it had been
unclear how anyone, even a lawyer, could determine what would have
been a “reasonable” claim under the SMRDA in respect of
an action for damage for a violation of the right to liberty. The
Court considers this assessment to be just as valid for claims for
damage under the SMRDA regarding conditions of detention as it has
not been shown that at the relevant time there existed developed or
accessible case-law which might have assisted a claimant in
determining the likely amount for an award. Neither was the amount of
compensation fixed by law. The applicant cannot therefore be
criticised for having made the claim which he did (ibid.).
- In
conclusion, as established in paragraph 47 above, the Court cannot
determine how much compensation, if any, the applicant was awarded
for the violation of his right under Article 3 of the Convention, but
it cannot be more than the BGN 1,120 (EUR
574) which remained after payment of the court fees of BGN
1,880 (EUR 964). The Court considers such an amount inadequate
for the violation found.
- In
view of the above, the Court finds that in the present case the
proceedings under the SMRDA were deprived of their effectiveness as a
result of the applicant having been awarded an unquantifiable amount
as compensation for the violation of his right under Article 3 of the
Convention, which was further rendered meaningless by the requirement
to pay court fees of BGN 1,880 (EUR 964).
There
has therefore been a violation of Article 13 in conjunction with
Article 3 of the Convention.
- Having
regard to its finding above, the Court considers that no separate
issue arises under Article 6 § 1 of the Convention.
II. RIGHT TO LIBERTY
- The
applicant complained he was detained unlawfully in violation of
Article 5 of the Convention and that he was awarded inadequate
compensation for the aforesaid violation by the domestic courts.
The
relevant part Article 5 of the Convention 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;
...
5. Everyone
who has been the victim of arrest or detention in contravention of
the provisions of this Article shall have an enforceable right
to compensation.”
- The
Government disagreed with the applicant and argued that his detention
had not been unlawful and that simply the criminal proceedings
against him had been terminated as unproven. They also noted that he
had later been charged with perjury in the proceedings regarding the
murder of 15 September 1995 and had confessed to that offence (see
paragraphs 16 and 17 above). Thus, the Government considered that it
could not be claimed that the applicant had had no link to the
offence for which he had been initially detained.
- In
respect of the awarded compensation, the Government considered that
it provided adequate redress for the applicant's detention. They also
argued that he had sought too much compensation from the public
prosecutor's office which he had been unable to prove and that the
domestic courts had therefore dismissed most of it as
unsubstantiated.
A. Article 5 § 1 (c) of the Convention
- The
Court notes that under the SMRDA a person who has been charged with
an offence and has then had the criminal investigation discontinued
by the authorities has an automatic right to compensation. The courts
in the applicant's case granted him compensation primarily on that
basis and in their judgments used the word “unlawful”
about his pre-trial detention. However, the Court cannot consider the
judgments in the civil case brought by the applicant as a finding of
unlawfulness of his detention within the meaning of the Convention.
The Court's approach in such cases has been to examine itself whether
the detention was indeed unlawful or otherwise in breach of Article 5
of the Convention (see, N.C. v. Italy, no. 24952/94:
notably §§ 31-60 of the Chamber judgment in that case
(11 January 2001) and §§ 50 and 51 of the Grand
Chamber judgment in the same case (ECHR 2002); see also, mutatis
mutandis, Benham v. the United Kingdom,
judgment of 10 June 1996, Reports of Judgments and Decisions
1996 III, pp. 752-54, §§
40-47).
- The
Court recognises that the applicant's detention from 16 September
to 12 October 1995 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. Regarding 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 appear to have had sufficient
information to ground a “reasonable” suspicion against
the applicant because he had been in the car of the victim when the
latter and his wife had been shot and was a close relative of the
alleged murderer.
- It
follows that the complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Article 5 § 5 of the Convention
- The
provision applies in respect of deprivation of liberty that is
unlawful under domestic law or is effected in conditions otherwise
contrary to paragraphs 1, 2, 3 or 4 of Article 5. Neither Article 5 §
5 nor any other provision of the Convention guarantees an
unconditional right to compensation for detention on remand in the
event of acquittal or discontinuation of the proceedings (see,
mutatis mutandis, Sekanina v. Austria, judgment of
25 August 1993, Series A no. 266 A, pp. 13 and 14, § 25). The
right to compensation set forth in paragraph 5 presupposes that a
violation of one of the preceding paragraphs of Article 5 has been
established, either by a domestic authority or by the Court (see, for
example, Stoichkov v. Bulgaria, no. 9808/02, § 72, 24
March 2005).
- In
the present case, the Court found that it cannot consider the
domestic judgments in the civil case brought by the applicant as a
finding of unlawfulness of his detention within the meaning of the
Convention and, following its own assessment, rejected the complaint
under Article 5 § 1 of the Convention as manifestly ill-founded
(see paragraphs 70-72 above). Accordingly, Article 5 § 5 of the
Convention is not applicable in the present case.
It
follows that this part of the applicant's complaint is incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
III. RIGHT TO FREEDOM OF MOVEMENT
- The
applicant complained, relying on Article 5 of the Convention, that
his right to liberty was violated as a result of the prolonged
restriction imposed on him not to leave his place of residence and
that he was awarded inadequate compensation for the aforesaid
violation by the domestic courts.
- The
Court notes that from 12 October 1995 to 16 December 1996 a
restriction had been imposed on the applicant not to leave his place
of residence, the village of Zhelyu Voivoda, without the permission
of the public prosecutor's office. The Court finds that the measure
in issue did not amount to a deprivation of liberty within the
meaning of Article 5 § 1 of the Convention as the mere
restrictions on the liberty of movement resulting from special
supervision fall to be dealt with under Article 2 of Protocol No. 4
of the Convention (see Guzzardi v.
Italy, judgment of 6 November 1980, Series
A no. 39, p. 33,
§ 92; Raimondo v.
Italy, judgment of 22 February 1994, Series
A no. 281 A, p.
19, § 39; and Toeva v.
Bulgaria (dec.), no. 53329/99, 9 September 2004).
The
relevant part of Article 2 of Protocol No.
4 of the Convention provides:
“1. Everyone ... shall ... have the
right to liberty of movement and freedom to choose his residence.
...
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
- The
Court notes that Protocol No. 4 of the Convention entered into force
in respect of Bulgaria on 4 November 2000, while the restriction
complained was in force from 12 October 1995 to 16 December 1996.
It
follows that this complaint is incompatible ratione temporis
with the provisions of the Convention within the meaning of Article
35 § 3 and
must be rejected in accordance with Article 35 §
4.
IV. 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 10,000 euros (EUR) in respect of non pecuniary
damage, stating, in particular, that his detention had been unlawful,
and that he had been held in inadequate conditions of detention and
had not been compensated accordingly. The Government did not comment.
- The
Court considers that the applicant has undoubtedly suffered
non pecuniary damage as a result of his detention for almost a
month in inadequate conditions in the Sliven Regional Investigation
Service detention facility which the domestic courts described as
“extremely harsh” and in respect of which the Court found
a violation of Article 3 of the Convention (see paragraphs 12-15 and
55 above). In addition, he must also have suffered a certain distress
in losing in court fees almost two-thirds of the compensation awarded
in the proceedings under the SMRDA in respect of which the Court
found a violation of Article 13 of the Convention (see paragraph 65
above). Thus, having regard to the specifics of the present case, its
case-law in similar cases (see, mutatis mutandis, Kehayov
v. Bulgaria, no. 41035/98, §§
90-91, 18 January 2005; Iovchev, cited above, §§ 156-58;
and Stankov, cited above, §§ 69-71) and deciding on
an equitable basis, the Court, recognising that the applicant
received the balance of BGN 1,120 (EUR
574) from the domestic courts, awards EUR 1,500 under
this head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the legal work by his lawyer in
the proceedings before the Court. The Government did not comment.
- The
Court reiterates that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents and within the
time-limit fixed for the submission of the applicant's observations
on the merits, “failing which the Chamber may reject the claim
in whole or in part”. In the instant case, it observes that the
applicant failed to present a legal-fees agreement with his
representative or an approved time sheet of the legal work performed
before the Court. In addition, he did not present any invoices or
receipts for any other costs. In view of the applicant's failure to
comply with the aforesaid requirement, the Court makes no award for
costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaints concerning
the applicant's detention in allegedly inadequate conditions of
detention at the Sliven Regional Investigation Service detention
facility and the availability of an effective remedy in that respect;
- Declares
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant having been detained
in inadequate conditions of detention at the Sliven Regional
Investigation Service detention facility;
- Holds that there has been a violation of Article
13 of the Convention on account of the proceedings under the SMRDA
having lost their effectiveness in providing adequate redress for the
violation under Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one thousand five
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into Bulgarian levs at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27
November 2008, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
