CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 septembre 2007

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Lorenzen , President ,   Mrs   S. Botoucharova ,   Mr   V. Butkevych ,   Mr   R. Maruste ,   Mr   J. Borrego Borrego ,   Mrs   R. Jaeger ,   Mr   M. Villiger, judges, and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 28 May 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mr Valeri Lyubenov Ivanov, is a Bulgarian national who was born in 1959 and lives in Pleven. He is represented before the Court by Ms Z. Stefanova, a lawyer practising in Sofia. 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 and his detention On 26 July 1990 the applicant was charged under Article 212 § 4 of the Criminal Code with the fraudulent use of forged documents with a view to obtaining an unlawful gain, an offence punishable by ten to twenty years' imprisonment. In particular, it was alleged that he had signed two forged invoices, prepared by others, in order to unlawfully obtain a sum of money. On 27 July 1990 he was arrested and on 7 August 1990 he was released on bail. In October 1990 the investigation was stayed, apparently because the applicant could not be summoned at his address, and then resumed in 1993. In 1994 it was stayed again because the applicant's whereabouts were unknown. On 17 January 1996 the Sofia City Prosecutor's Office remitted the case for additional inquiries, instructing the investigator to commission a graphological expert report. It apparently gave instructions that the charges against the applicant be changed to forgery of documents, contrary to Article 308 § 1 of the Criminal Code, an offence punishable by up to three years' imprisonment. Apparently, according to the graphological expert report, it was probable that the applicant had signed two forged invoices. However, the report was not able to give a definite conclusion on the issue. It seems that on the basis of this report the investigator in charge of the case proposed that the charges against the applicant be dropped. Meanwhile, the applicant had started divorce proceedings against his wife and left the family dwelling in Sofia. He did not inform the prosecution authorities of his new address and did not have any other registered address to be summoned at. Therefore, on 8 and 18 April 1996, respectively, the applicant was reported for local and national tracing, to no avail. On 28 March 1997 a prosecutor from the Sofia City Prosecutor's Office stayed the investigation. She reasoned that it was necessary to gather writing samples from the applicant to check whether the signatures on the invoices were indeed those of the applicant. It was also necessary to organise confrontations between the applicant and certain witnesses. However, that was not possible, as the applicant had left his place of abode without informing the prosecution authorities of his new address and as his whereabouts could not be established. For this reason, the prosecutor ordered that the applicant be detained pursuant to Article 153 § 1 of the Code of Criminal Procedure of 1974 (“the CCP” – see below, Relevant domestic law and practice) and, when found, be brought by force. More than four years later, on 13 October 2001, the police apprehended the applicant. He was detained in the Sofia Central Prison. On 16 and 17 October 2001 the applicant's counsel requested that the applicant's detention be replaced with a more lenient security measure. On 18   October 2001 the Sofia City Prosecutor's Office replied that the body competent to examine such a request was the Sofia City Court. It informed the counsel that the criminal proceedings against the applicant had been resumed on 17 October 2001 and that it had submitted to the Sofia City Court a request for imposing pre ‑ trial detention pursuant to the procedure provided for by Article 152a of the CCP, as amended since 1   January 2000 (see below, Relevant domestic law and practice). At a hearing held on 18 October 2001 the Sofia City Court dismissed the prosecution's request and discontinued the proceedings, holding that the applicant had been arrested on the basis of a prosecutor's order made on 28   March 1997 (in line with the CCP before its amendment on 1   January 2000 – see below, Relevant domestic law and practice) and that, therefore, his detention could not be ordered anew by a court. The transitional provisions of the Act for the amendment of the CCP did not provide for the confirmation of detention orders made by prosecutors before the entry of the amendment into force. The court went on to state that the only possibility for the applicant was to appeal against his detention under the new Article   152b of the CCP (see below, Relevant domestic law and practice). The prosecution appealed, but on 26 October 2001 the Sofia Court of Appeals discontinued the proceedings, holding that it could only review decisions in which the lower courts had ruled on the merits of a detention, not decisions in which those courts had found that they were incompetent to do so. Meanwhile, on 19 October 2001, the applicant filed an appeal against his detention. It was submitted through the Sofia City Prosecutor's Office to the Sofia City Court. The Sofia City Court examined the appeal at a public hearing held on 6 November 2001, at which the applicant was present, and dismissed it. It held that the materials in the file grounded a reasonable suspicion that he had committed the offence with which he had been charged. This offence was punishable by more than ten years' imprisonment. It further noted that the proceedings had been stayed on several occasions because the applicant could not be found, that he had absconded, had been reported for local and national tracing, and that there was still a risk that he would abscond. It went on to state that the opinion of the investigator in charge of the case suggesting that the investigation be discontinued had not put an end to the proceedings and had not dispensed the applicant from informing the authorities of the change of his place of abode. On 8 November 2001 the applicant lodged an appeal, mainly arguing that the Sofia City Court had failed to give reasons for holding that there existed a reasonable suspicion against him. At a public hearing on 13 November 2001, at which the applicant was present, the Sofia Appellate Court dismissed the appeal, holding that there was a reasonable suspicion that the applicant had committed an offence, as according to the graphological expert report it was possible that he had signed the invoices. It further held there was still a real risk that the applicant could abscond – he had failed to inform the authorities of the change of his place of abode, had failed to register his new place of abode before 12 November 2001 (the day preceding the hearing), had lost his identity papers and had been reported for local and national tracing. One of the judges dissented, stating that the applicant should be released on bail. On 18 December 2001 three graphology experts, having examined samples of the applicant's signature, submitted a written report in which they stated that the applicant had not signed the forged invoices. This report was served on the applicant and his counsel on 21 December 2001. On 21 December 2001 the applicant's counsel requested the applicant's release. This request, which was addressed to the Sofia City Court, was filed with the Sofia Investigative Service and the Sofia Prosecutor's Office. It was received by the Sofia City Court on 2 January 2002. The Sofia City Court held a public hearing on 9 January 2002 and ordered the applicant's release on bail. It held that the expert report of 18   December 2001 had undermined the reasonable suspicion against the applicant, that the applicant had not committed another offence in the meantime, had founded a new family and had a young child, and that the offence with which he had been charged had been committed a long time ago. However, in changing his place of abode the applicant had hampered the criminal proceedings; therefore the court imposed bail amounting to 1,000 Bulgarian levs (BGN). On 10 January 2002 the applicant appealed, arguing that the bail amount was exorbitant and he could not afford to pay it. On 16 January 2002 the Sofia Court of Appeals varied the decision of the Sofia City Court. It found, inter alia, that following the expert report of 18   December 2001 there existed no reasonable suspicion against the applicant. The court revoked the bail, prohibited the applicant from leaving his town of residence and ordered his immediate release, unless he was being held in custody on other grounds. The applicant was then returned to the detention unit of the Sofia City Investigation Service. As the information about the applicant was not kept in this detention unit, but in the Sofia Central Prison, where he had been initially detained, on the evening of 16 January 2002 the applicant was moved there. However, as the workday of the competent official had ended at 5 p.m., the verification whether there existed other grounds for keeping the applicant in detention was not made the same evening and the applicant spent the night in custody. On the morning of 17 January 2002 the applicant's counsel was informed that the applicant would not be released, because his detention file did not make reference to the current numbers of the files kept by the prosecution authorities. These numbers had apparently been changed following the applicant's arrest in 2001 and the ensuing resuming of the criminal proceedings against him. The prison administration insisted on having a formal document issued by the prosecution authorities and certifying the change of numbers. The applicant was released on the afternoon of 17   January 2002, after his counsel had provided the requested certificate. In a decision of 13 May 2002 the Sofia City Prosecutor's Office discontinued the proceedings against the applicant, reasoning that the charges against him had not been proven in a categorical manner and because the relevant limitation period had expired. Upon the appeal of the applicant, in a decision of 10   June 2002 the Sofia City Court varied the prosecutor's decision, upholding the discontinuation of the investigation, but holding that it was necessary because there was no indication that the applicant had been involved in criminal activities. 2.     The applicant's action under the State Responsibility for Damage Act of 1988 On 13 February 2003 the applicant lodged an action under the State Responsibility for Damage Act of 1988 (“the SRDA” – see below, Relevant domestic law and practice), naming as defendants the Sofia Investigation Service, the Prosecutor's Office, the Sofia City Court and the Directorate for the Enforcement of Punishments at the Ministry of Justice. He sought compensation for the non ‑ pecuniary damage sustained on account of (i) his allegedly unlawful detention between 27 July 1990 and 7 August 1990, (ii)   his allegedly unlawful detention between 13 October 2001 and 17   January 2002, (iii) the allegedly unlawful bringing of charges against him, (iv) the delay in bringing him before a judge after his arrest on 13   October 2001, (v) the refusal of the Sofia City Court on 18 October 2001 to examine the lawfulness of his detention, (vi) the courts' failure to examine his appeal against detention speedily, and (vii) the delay in releasing him after the court order to that effect. In a judgment of 25 November 2003 the Sofia City Court allowed claim (ii) and awarded the applicant BGN 4,000, with interest, holding that he had adduced ample proof of his pain and suffering on account of his detention in 2001 ‑ 02. It dismissed the remainder of the claims. It held that the applicant had not proved that he had suffered any damage on account of his detention in 1990, and that he had not adduced any proof that he had suffered on account of the criminal charges pending against him. The court went on to say that the SRDA did not contain any causes of action in respect of claims (iv), (v) and (vi). It finally held that the refusal of the prison administration to set the applicant free immediately after the court order for his release was not unlawful, as it had found that the numbers of the files did not coincide and had to make sure that the applicant was not to remain in custody on other grounds. In any event, the award of compensation under claim (ii) covered the entirety of the applicant's detention in 2001 ‑ 02, all the way until 17 January 2002. The applicant and the defendants appealed. In a judgment of 14 April 2005 the Sofia Court of Appeals quashed the Sofia City Court's judgment. It allowed claims (i) and (iii), awarded the applicant BGN 5,500, plus interest, and dismissed the remainder of the claims. It held that the applicant had sustained frustration on account of the investigation against him and his detention in 1990; it awarded him a global amount of BGN   5,500, because it found that these two heads of damage were indistinguishable in practice. It further held that no compensation was to be awarded in respect of the applicant's detention in 2001 ‑ 02, because it had come about as a result of his absconding and the ensuing need to trace his whereabouts. Concerning claims (iv), (v) and (vi), the court agreed with the lower court that the SRDA did not set out such causes of action. Finally, the court held that the court order for the applicant's release had been officially sent to the prison administration on 17 January 2002, the day of his release. The fact that the applicant's counsel had presented a copy of the order the previous day, after working hours, was irrelevant. The applicant appealed on points of law, challenging the only part of the Sofia Court of Appeals' judgment which was subject to such an appeal – the part dismissing claim (ii) (the other claims were below the relevant threshold). In a final judgment of 30 January 2007 the Supreme Court of Cassation upheld the judgment of the Sofia Court of Appeals, but reduced the amount of compensation to BGN 4,000. It held, inter alia , that the applicant's detention in 2001 ‑ 02 was due to his changing his place of abode without notifying the investigation authorities and his failure to cooperate with them, and that the resulting damage was entirely due to his fault. B.     Relevant domestic law and practice 1.     Pre-trial detention (a)     Legal criteria for pre ‑ trial detention The legal criteria for pre ‑ trial detention before 1 January 2000 and after that date have been summarised in paragraphs 39 ‑ 42 of the Court's judgment in the case of Kolev v. Bulgaria (no. 50326/99, 28 April 2005). In addition, pre ‑ trial detention could be ordered in case the accused failed to appear before the competent body without good cause (Article 153 § 1 of the CCP, as in force until August 1997). This provision was subsequently expanded to include the failure of the accused to inform the investigation authorities about a change of their place of abode. The failure to comply with this obligation was considered by the Supreme Court of Cassation as a separate ground for detention (реш. № 597 от 14 януари 2002 г. по н.д. 564/2001, І н.о. на ВКС). (b)     Power to order pre ‑ trial detention Until the reform of the CCP of 1 January 2000 the accused could be detained by decision of an investigator or a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25 ‑ 27 and 29 of the Court's judgment in the case of Nikolova v.   Bulgaria ([GC], no. 31195/96, ECHR 1999 ‑ II). After 1 January 2000 pre ‑ trial detention could be ordered only by the respective first ‑ instance court (Article 152a § 1 of the CCP, as in force after 1 January 2000). (c)     Appeals against detention before the trial Article 152b of the CCP, as in force after 1 January 2000, provided for the possibility for appeal against detention. The appeal was to be filed through the prosecution authorities, which had to forward it immediately to the competent court (Article 152b § 3 of the CCP). A hearing was to be fixed within three days from the day when the appeal had been received by the court. The decision of the first-instance court was subject to further appeal before the higher court within seven days (Article 152b § 4 of the CCP). 2.     The SRDA Section 2 of the SRDA (“Закон за отговорността на държавата за вреди причинени на граждани”; in 2006 the title of the Act was changed to the State and Municipalities Responsibility for Damage Act – “Закон за отговорността на държавата и общините за вреди”) sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts. It 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...” 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 retroactively had rendered the pre ‑ trial detention unlawful. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the SRDA is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). COMPLAINTS 1.     The applicant complained under Article 5 § 1 (c) of the Convention that his detention between 13 October 2001 and 16 January 2002 had been unlawful. In particular, he submitted that (i) the 1997 prosecutor's decision for his detention had not been based on a reasonable suspicion of him having committed an offence, but had been made solely because he had changed his place of abode without informing the authorities, (ii) after the graphological expert report of 18 December 2001, which had concluded that he had not signed the forged invoices, the reasonable suspicion against him had vanished, (iii) the authorities had not examined the other prerequisites for his pre ‑ trial detention, namely the risk of him absconding or re ‑ offending, (iv) his detention had been ordered by a prosecutor, whereas after the reform of the CCP on 1 January 2000 pre ‑ trial detention could be imposed only by a court. 2.     The applicant complained under Article 5 § 3 of the Convention that he had been brought before a judge six days after his arrest on 13 October 2001 and that the judge before whom he had been brought on 18 October 2001 had held that he had been incompetent to examine the lawfulness of his detention. He submitted that as a result of this the first judicial examination of his detention had taken place on 6 November 2001, when the Sofia City Court had examined his appeal against detention. 3.     The applicant complained under Article 5 § 4 of the Convention that the appeal against detention which he had lodged on 21 December 2001 had not been speedily examined by the Sofia City Court and the Sofia Court of Appeals. 4.     The applicant complained that he had unlawfully been kept in detention for about twenty ‑ four hours after the Sofia Court of Appeals had ordered his immediate release on 16 January 2002. He relied on Article 5 §   4 of the Convention. 5.     The applicant complained that Bulgarian law did not provide effective remedies in respect of the alleged violations of Article 5 of the Convention. He submitted that he had no means of obtaining compensation for them and relied on Article 13 of the Convention. 6.     The applicant complained about the fairness of the proceedings under the SRDA. He submitted that the courts had wrongly dismissed most of his claims. THE LAW 1.     In respect of his complaint that he could not obtain a speedy examination of his appeal against detention (complaint no. 3) the applicant relied on Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The Court considers that the applicant's complaint that he had unlawfully been kept in detention for about twenty ‑ four hours after the Sofia Court of Appeals had ordered his immediate release on 16 January 2002 (complaint no. 4) falls to be examined under Article 5 § 1 (c) of the Convention, which provides as follows: “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; ...” The Court considers that the applicant's complaint that he had no means for obtaining compensation for the alleged violations of Article 5 of the Convention (complaint no. 5) falls to be examined under paragraph 5 thereof, which reads: “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 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. 2.     The Court considers that the applicant's complaint that his detention between 13 October 2001 and 16 January 2002 had been unlawful and not based on a reasonable suspicion (complaint no. 1) falls to be examined under Article 5 §§ 1 (c) and 3 of the Convention. The text of Article 5 § 1 (c) has been set out above. Article 5 §   3 provides, as relevant: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” In respect of his complaint that he had not been promptly brought before a judge after his arrest on 13 October 2001 (complaint no. 2) the applicant relied on Article 5 § 3 of the Convention, which provides, as relevant: “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...” In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant's complaints concerning the alleged lack of speedy examination of his appeal against detention (complaint no. 3), his unlawful detention for twenty ‑ four hours after the court order for his release (complaint no. 4), and the alleged lack of means for obtaining compensation for the alleged violations of Article   5 of the Convention (complaint no. 5); Declares the remainder of the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President