CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mars 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s28D23796 { width:20.54pt; display:inline-block } .s64C69EF9 { width:181.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }                  FIFTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 75157/01 by Muslim Adnanovich SADAYKOV against Bulgaria The European Court of Human Rights (Fifth Section), sitting on 20   March 2007 as a Chamber composed of:   Mr   P. Lorenzen , President ,   Mrs   S. Botoucharova ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   R. Maruste ,   Mr   M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 2 May 2000, Having deliberated, decides as follows: THE FACTS The applicant, Mr Muslim Adnanovich Sadaykov, is a Russian national who was born in 1972 and lives in Grozny, Chechnya. He is represented before the Court by Ms Y. Vandova, a lawyer practising in Sofia, Bulgaria. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The criminal proceedings against the applicant On the evening of 24 September 1995, upon their leaving a night club near Varna, the applicant and four other persons, including Mr T.M. and Mr   G.H., were arrested on suspicion of trying to commit murder by putting explosives in another person’s car. The police seized an explosive device. The same day the applicant and Mr T.M. were charged with attempted murder and with illegal acquisition and possession of explosives. Mr G.H. was also charged, apparently in respect of the same explosives. The applicant was detained on remand. On 18 March 1996 the charges against the applicant were amended. From this moment on they were (i) attempted murder committed in concert with others and by means of explosives, contrary to Article 116 § 1 (6) of the Criminal Code, (ii) illegal acquisition and possession of explosives, contrary to Article 339 of the Code, and (iii) attempted murder by means of a knife, committed against the same person on the same evening as the other attempted murder. The preliminary investigation was concluded on 24 April 1996 and the investigator sent the file to the Varna Regional Prosecutor’s Office. It appears that the results of the investigation were presented to the applicant, in line with the relevant rules of criminal procedure. On 5 June 1996 the Varna Regional Prosecutor’s Office indicted the applicant and Mr T.M. Mr G.H. was not brought to trial. The Varna Regional Court held hearings on 24 July and 2 and 18   October 1996. On 18 October 1996 it found the applicant guilty of attempted murder by means of explosives and of illegal acquisition and possession of explosives, and not guilty of attempted murder by means of a knife, and sentenced him to fifteen years’ imprisonment. Mr T.M. was fully acquitted. The same day the Varna Regional Court confirmed the applicant’s detention. Both the Varna Regional Prosecutor’s Office and the applicant appealed to the Supreme Court. A hearing listed for 7 April 1997 had to be cancelled because the court had not appointed an interpreter for the applicant. On 27 June 1997 a hearing was held. On 18 July 1997 the Supreme Court quashed the applicant’s conviction and sentence and remitted the case to the lower court. It found that the conviction had been based on assumptions and controversial evidence, which the lower court had not properly analysed, especially as regards the explosive device found on the applicant. a hearing listed by the Varna Regional Court for 31 October 1997 did not take place because the applicant had fallen ill with hepatitis (see below) and had been admitted to a hospital. At a hearing which took place on 8 April 1998 the court only examined the applicant’s request for release. The case was adjourned because the interpreter and several witnesses and experts failed to show up. At a hearing held on 24 June 1998 the court heard the applicant and several experts, and examined the applicant’s request for release. The case was adjourned due to the absence of several witnesses. After holding a hearing on 3 November 1998, the Varna Regional Court gave its judgment. It again found the applicant guilty of attempted murder by means of explosives and of illegal possession of explosives, and sentenced him to seven years’ imprisonment. The court gave the reasons for its judgment on an unspecified later date. The applicant appealed to the Varna Court of Appeals [1] . On 14 April 1999 he requested to be brought to the court’s premises to acquaint himself with the materials in the case file, averring that he had learned Bulgarian. The court denied the request on the ground that the applicant was represented by counsel, who could inspect the file on his behalf. On 14 May 1999 the Varna Court of Appeals held a hearing. The applicant complained that, not having been allowed to see the file personally, he could not exercise his defence rights. The same day the Varna Court of Appeals upheld the lower court’s judgment. It held that according to the testimony of numerous witnesses explosives were undoubtedly found on the applicant. The applicant appealed, arguing that the judgment had not been duly reasoned and was based on conflicting evidence, which the court had not properly analysed. In particular, he complained that the Varna Court of Appeals had not examined his arguments (i) that an individual who had been arrested with him and charged with the possession of the same explosive device – Mr G.H. – had not been brought to trial; (ii) that the same type of explosives had been found in Mr G.H.’s car; (iii) that the investigation had not examined whether certain hairs found on the impugned explosive device belonged to Mr G.H.; (iv) that Mr T.M., the applicant’s co ‑ accused, had testified that the applicant had not left the night club and had not carried any explosives; and (v) that the origin of the explosive device seized by the police was unclear. On 21 September 1999 the Supreme Court of Cassation held a hearing. In a final judgment of 3 November 1999 it reversed the lower court’s judgment in respect of the attempted murder and acquitted the applicant of these charges, holding that the fact that an explosive device had been found on him was not in itself indicative of an attempt to commit murder. The lower courts had erred by holding that the applicant had been unsuccessful in trying to use the device. This finding was not supported by the evidence. By contrast, the court upheld the part of the lower court’s judgment relating to the possession of explosives. It found that the testimony of numerous eyewitnesses showed that an explosive device had been found in the inner pocket of the applicant’s jacket. It had first been seen there by the victim, had then been taken by force from him by another witness, had passed through the hands of several other witnesses, and had eventually been handed over to the police. The police had initially placed the device on a window sill and then put it away from the night club, in the nearby lawn. The court also held that the charges against Mr G.H. were not connected with those against the applicant and that the latter’s defence rights had accordingly not been prejudiced by the fact that Mr G.H. had not been brought to trial. By virtue of this final judgment the applicant was found guilty of illegal possession of explosives and sentenced to two years’ imprisonment, which he had already served in pre ‑ trial custody. Throughout the proceedings the applicant was represented by at least one counsel. 2.     The applicant’s detention on remand and his illness in custody The applicant was arrested on 24 September 1995 and detained on remand. At a hearing held on 27 June 1997 by the Supreme Court the applicant requested to be released. The court did not examine the request. On an unspecified date, probably in July or August 1997, the applicant filed another request for release. On 3 August 1997 the Varna Regional Court decided to examine the request at a hearing on the merits of the criminal case listed for 31 October 1997. However, it did not examine it because that hearing did not take place, as on 17 October 1997 the applicant fell ill with a severe form of hepatitis virosa B and was admitted to the Varna Clinic for Infectious Diseases, where he stayed until 21 November 1997. After his release from hospital the applicant was provided with medical care in the prison and was examined in the clinic on several occasions. On 31 October 1997, while the applicant was still in hospital, his counsel made a new request for his release. On 6 November 1997 the Varna Regional Court dismissed it on the ground that the applicant was accused of a serious wilful crime, did not have a permanent place of abode and was being treated in a hospital. The applicant appealed to the Supreme Court of Cassation, which dismissed the appeal at a hearing held on 22 January 1998. The applicant was not informed about the hearing and did not attend. A prosecutor was present. Prior to the hearing, on 12 January 1998, the prosecutor had made written submissions, commenting on the applicant’s appeal. These submissions were not communicated to the applicant. It appears that at a later date the applicant lodged with the Varna Court of Appeals another appeal against a refusal of the Varna Regional Court to release him. On 4 May 1998 the Varna Court of Appeals dismissed the appeal. At a hearing held on 8 April 1998 by the Varna Regional Court the applicant once more requested to be released. The court refused, but decided to gather expert evidence about the applicant’s medical condition. At a hearing held on 24 June 1998 by the Varna Regional Court the applicant filed another request for release, averring that his illness required healthy food which he could not get in prison. According to him, the food there consisted of “beans and soy cubes”. The Varna Regional Court dismissed the request, relying on the conclusions of a medical expert report, which had been drawn up shortly before that. The report stated that the applicant’s health condition had normalised at the beginning of February 1998, that in April 1998 it was good, and that the applicant should follow a diet and remain under medical supervision for a year after his recovery. The applicant filed an appeal. On 10 July 1998 the Varna Court of Appeals upheld the lower court’s decision on similar grounds. The applicant was released from prison on 8 November 1999. 3.     The applicant’s detention pending deportation On 8 November 1999 the applicant was re ‑ arrested on his way out of the prison. That happened because in a letter of 5 November 1999 the Varna deputy Regional Prosecutor had informed the Varna Regional Department of the Ministry of Internal Affairs (“the RDMIA”) that during his trial the applicant had threatened prosecutors and judges that he would “deliver justice” after his release. Apart from that, the validity of the applicant’s Russian passport and of his permit to reside in Bulgaria had expired. As a result, on 8 November 1999 the RDMIA had ordered that the applicant be immediately brought by force to the border and be deported from the country, and be banned from entering Bulgaria until 1 November 2009. The order was based on sections 41(2) and 10(3) and (6) of the Aliens Act of 1998 (see below, Relevant domestic law and practice) and was reasoned as follows: “[the applicant] threatens public order and has been charged under Articles 116 and 339 § 1 of the Criminal Code”. Upon his arrest the applicant was informed about the order, but was not provided with a copy of it and was not advised of the possibilities of appeal. He did not have access to a lawyer and did not appeal against it, although the order was amenable to appeal. The applicant was not deported immediately. Instead, he was brought to the sobering ‑ up facility of a police station in Varna, where he was kept until 13 November 1999. On that day he was escorted to Ruse, from where he had to leave the country. He was apparently provided with a temporary passport. However, during the passport control at the border it turned out that since September 1995 he was under a prohibition to leave the country and that this prohibition had not been lifted. The applicant was accordingly taken back to the sobering-up facility in Varna, where he spent three more days, until the prohibition was lifted. On 16 November 1999 he was deported to Russia. No order was made for the applicant’s detention between 8 and 16   November 1999. According to the RDMIA, the applicant was placed in a “home for the temporary placement of adults” in Varna. It is unclear whether the applicant was in fact kept in such a home or in the police station. 4.     The applicant’s action under the State Responsibility for Damage Act In the beginning of 2000 the applicant filed an action under section 2(1), (2) and (3) of the State Responsibility for Damage Act (see below, Relevant domestic law and practice) against the Prosecutor’s Office, the Varna Regional Court, the Varna Court of Appeals and the Varna Regional Investigation Service. He averred that he had remained in custody twice as long as his custodial sentence. He also alleged that he had sustained serious distress and psychological suffering on account of the criminal proceedings against him, his pre ‑ trial detention and his illness while in custody, all of which were even harder to support due to the fact that he was in a foreign country. He sought 80,000 Bulgarian levs (BGN) as compensation for the resulting non ‑ pecuniary damage. After holding six hearings, the Sofia City Court gave judgment on 8   January 2002. It held that the applicant had been unlawfully accused and convicted of an offence, that he had sustained serious psychological pain on account of that, that he had fallen ill while in custody, and that all of this had been exacerbated by the fact that he had been alone in a foreign country. The court also held that the applicant’s remaining in custody on top of his two years’ sentence amounted to unlawful deprivation of liberty. It awarded him the sum of BGN 8,000, plus interest, and rejected the remainder of his claim (BGN 72,000). It also ordered the defendants to pay costs and court fees pro rata the allowed part of the claim. Both the applicant and the Prosecutor’s Office appealed. The Sofia Court of Appeals held one hearing on 3 July 2002 and on 30 July 2002 upheld the lower court’s judgment, fully agreeing with its reasoning. However, noting that the lower court had inadvertently ordered the defendants and not the applicant to pay the court fee, it instructed it to correct this mistake. Both the applicant and the Prosecutor’s Office appealed to the Supreme Court of Cassation. After holding a hearing on 30 April 2004, on 2 June 2005 the Supreme Court of Cassation upheld the lower court’s judgment. It held that the applicant was entitled to a compensation under section 2(1), (2) and (3) of the State Responsibility for Damage Act and that the amount awarded was correctly assessed by the lower courts. On 24 June 2005 the applicant asked the Sofia City Court to issue him a writ of execution. In a decision of 27 June 2005 the court, noting that it had omitted to order the applicant to pay the court fees on the rejected part of his claim, which amounted to BGN 2,880, did so. In a ruling of the same date the court allowed the issuing of a writ of execution, but on the condition that the applicant paid the court fee. The applicant appealed against this ruling to the Sofia Court of Appeals. He does not provide any information on how this appeal unfolded. B.     Relevant domestic law and practice 1.     The Aliens Act of 1998 By section 41(2) of the Aliens Act of 1998 („Закон за чужденците в Република България“), as in force at the material time, the Minister of Internal Affairs or an official authorised by him or her could make an order for the taking of an alien to the border by force in case the alien had not left the country after the expiry of his or her residence permit. Section 10(1)(3) of the Act, as in force at the material time, provided that an alien could not be issued a Bulgarian visa if information existed that he or she was a “member of a criminal gang or organisation, or carrie[d] out terrorist activities, smuggling, or illicit transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies having a possible double use, as well as illicit traffic of intoxicating and psychotropic substances and precursors and raw materials for their production”. Section   10(1)(6) provided that a visa could not be issued in case the alien had “committed on the territory of the Republic of Bulgaria a wilful crime punishable by more than three years’ imprisonment”. According to section 44(4) of the Act, as in force at the material time, the Minister of Internal Affairs or other officials authorised by him or her could order an alien’s forceful placement in special homes until they were taken to the border. In April 2003 section 44 was amended. According to its new subsections 8 and 9, the placement of aliens in “special homes” pending their deportation is done pursuant to a special order, separate from the one for taking them to the border by force. A regulation issued on 13 January 2004 by the Minister of Internal Affairs provides detailed rules about these homes („Наредба № І ‑ 13 от 29 януари 2004 г. за реда за временно настаняване на чужденци, за организацията и дейността на специалните домове за временно настаняване на чужденци“, обн., ДВ, бр. 12 от 13 февруари 2004 г.). By section 46 of the Act, the orders for taking an alien to the border by force were made and appealed against in accordance with the provisions of the Administrative Procedure Act of 1979, i.e. were subject to an appeal before the higher administrative authority and judicial review. According to this Act, as in force at the relevant time, an administrative appeal had to be made within seven days from the serving of the order (section 22(1)) and an application for judicial review had to be made within fourteen days from the decision of the higher administrative authority or its failure to make one, or from the expiration of the time ‑ limit for filing an administrative appeal (section 37(1)). 2.     The State Responsibility for Damage Act of 1988 Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), as in force at the relevant time, read as follows: “The State shall be liable for the damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the carrying out of administrative action.” Section 2 of the Act, which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant: “The State shall be liable for damage caused to individuals by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1.     pre ‑ trial detention ..., if [the detention order] has been set aside for lack of lawful grounds; 2.     accusation of a crime, if the accused has been acquitted... 3.     conviction of a crime ..., if the person concerned is subsequently acquitted...” In a binding interpretative decision of 22 April 2005 (тълкувателно решение № 3 от 22 април 2005 г. по гр.д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation held, inter alia , that where the accused has been acquitted, the State is liable not only for the bringing of criminal charges, as specified by section 2(2) of the Act, but also for the pre ‑ trial detention imposed during the proceedings. The compensation for non ‑ pecuniary damage should encompass the damage suffered on account of both, whereas the compensation for pecuniary damage should be assessed separately. In previous judgments (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) the Supreme Court of Cassation has awarded compensation in such circumstances under section 2(1) of the Act. The view taken appears to have been that in such cases the acquittal had retroactively rendered the pre ‑ trial detention unlawful. By section 10(2) of the Act, no court fees or costs are payable by claimants upon the filing of actions under it, but in case the actions are eventually fully or partly dismissed, the court orders them to pay “the court fees and costs due”. The courts have construed this provision as meaning that claimants should pay court fees and costs pro rata the dismissed part of their claims. COMPLAINTS 1.     The applicant complained under Article 3 of the Convention that the authorities had refused to release him despite his falling ill with hepatitis. He further complained that while in custody he had not been provided with adequate medical care (in particular, regular check ‑ ups) and suitable food and amenities. 2.     The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand. He also complained under Article 14 of the Convention in conjunction with Article 5 § 3 thereof that his requests for release had been dismissed because he was a foreigner. 3.     The applicant complained under Article 5 § 4 of the Convention that his appeal against the Varna Regional Court’s refusal to release him on 6   November 1997 had been examined by the Supreme Court of Cassation in breach of the principle of equality of arms. In particular, the prosecution had filed written submissions which had not been communicated to him, and had made oral submissions at the hearing on 22 January 1998, to which he had not been able to reply. 4.     The applicant complained under Article 5 § 4 of the Convention that the Supreme Court of Cassation and the Varna Regional Court had not examined his requests for release of 27 June 1997 and July 1997. He also complained that his request for release of 31 October 1997 had not been examined in a timely manner. 5.     The applicant complained under Article 6 §§ 1 and 3 (b) and (c) of the Convention that the Varna Court of Appeals had denied him access to the case file, thus depriving him of the right to defend himself in person and putting him at a disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms. 6.     The applicant complained under Article 6 § 1 of the Convention that the Varna Court of Appeals had not duly examined his arguments relating to the authorship of the offence of possession of explosives, and had not properly analysed the evidence relating to that charge. The applicant’s arguments in this respect, which, if considered, would have led to his acquittal on this charge, had not been properly addressed by the Supreme Court of Cassation either. 7.     The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. 8.     The applicant complained under Article 5 § 1 (f) of the Convention that his deportation and his prohibition to enter Bulgaria for a period of ten years had been unlawful and had been ordered and executed by incompetent authorities. Moreover, the order for his expulsion had not provided reasons. Finally, no order had been made for his detention under section 44(4) of the Aliens Act of 1998 and his detention had lasted unreasonably long. 9.     The applicant complained under Article 5 § 4 and Article 13 of the Convention that he could not effectively challenge his deprivation of liberty between 8 and 16 November 1999. 10.     The applicant complained under Article 18 of the Convention that the order for his deportation amounted to an abuse of power. 11.     The applicant complained under Article 6 § 1 of the Convention that he had not had the practical possibility of seeking judicial review of the order for his expulsion and for his banning from entering the country for a period of ten years. THE LAW A.     Complaints under Article 5 §§ 1 and 4 of the Convention about the lawfulness of the applicant’s detention pending deportation and the lack of judicial review thereof (complaints nos. 8 and 9) The relevant parts of Article 5 of the Convention provide as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 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. ...” The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. B.     The remainder of the applicant’s complaints The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints concerning the lawfulness of his detention pending deportation and the lack of judicial review thereof (complaints nos. 8 and 9); Declares the remainder of the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President [1] .     In 1997 ‑ 98 the Bulgarian judicial system was reorganised, with the introduction of courts of appeals having jurisdiction to hear appeals from the judgments of the regional courts, previously examined by the Supreme Court. The Supreme Court was split into a Supreme Court of Cassation, which hears appeals from the judgments of the courts of appeals, and a Supreme Administrative Court.