CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 31 janvier 2023

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BULGARIA (Application no. 39232/17)             JUDGMENT   STRASBOURG 31 January 2023   This judgment is final but it may be subject to editorial revision. In the case of Stefanova v. Bulgaria, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Peeter Roosma , President ,   Yonko Grozev,   Ioannis Ktistakis , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   39232/17) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 May 2017 by a Bulgarian national, Ms Albena Todorova Stefanova, born in 1973 and living in Sofia (“the applicant”) who was represented by Mr S. Karov, a lawyer practising in Burgas; the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Ms I. Nedyalkova, of the Ministry of Justice; the parties’ observations; the decision to reject the Government’s objection to examination of the application by a Committee; Having deliberated in private on 10 January 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns a complaint under Article 5 § 5 of the Convention that, when the applicant sought compensation for having been unlawfully detained by the police, the Supreme Administrative Court (hereinafter “the SAC”) refused such compensation, on the ground that she had not sufficiently proven any mental suffering. 2 .     The applicant was detained by the police on 24 July 2014 and released on the next day, after the expiry of twenty-four hours. After she contested the detention order, on 18 September 2014 the Yambol Administrative Court quashed it as unlawful, noting that while the police seemed to have suspected that the applicant had committed a criminal offence, this had not been properly indicated in the order, nor had the police referred to any factual circumstances to justify such a suspicion. Subsequently the applicant sought non-pecuniary damage. The Administrative Court allowed her action at first instance, but in a final judgment of 16 January 2017 the SAC dismissed the claim. It found that the applicant had not proven that she had sustained any damage, relying in particular on the testimony of a police officer who described the applicant at the time of her arrest as “visibly calm” and “self-confident”. The SAC refused, on the other hand, to take into account the witness statement of a lawyer who had met the applicant after her release, considering him partial. According to the lawyer, the applicant had been “indignant”, “emotional” and “crushed” by the arrest. THE COURT’S ASSESSMENT          ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION    Admissibility 3.     The Administrative Court found that the applicant’s detention on 24 and 25 July 2014 had been unlawful, in particular because the police had not duly indicated the grounds of their suspicion that the applicant had committed a criminal offence (see paragraph 2 above). Thus, the Administrative Court’s reasoning can be seen as an acknowledgment that the detention was contrary to domestic law and therefore to paragraph 1(c) of Article 5 (see Danev v.   Bulgaria , no. 9411/05, § 30, 2   September 2010). 4 .     Referring to additional facts not taken into account by the Administrative Court, the Government argued that, as a matter of fact, the police had had sufficient grounds to suspect that the applicant had committed a criminal offence, meaning that her detention had been lawful. However, the Court notes that the detention was recognised to be unlawful by the Administrative Court. It is not the Court’s task to reconsider the findings of the national courts. 5.     The applicant’s detention having implicitly been found to be contrary to Article 5 § 1(c) of the Convention, Article 5 § 5 was therefore applicable to her case (see, mutatis mutandis , Houtman and Meeus v. Belgium , no.   22945/07, § 46, 17 March 2009). 6.     The complaint under examination is furthermore not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible.    Merits 7.     In previous cases against Bulgaria the Court has criticised the level of proof required by the national courts as regards non-pecuniary damage stemming from unlawful detention. It has held that detention carried out in breach of Article 5 § 1 of the Convention can normally be presumed – although this presumption can be rebutted – to cause some mental suffering to the detainee, not only while it lasts but also thereafter. Such suffering, which will not necessarily rise to the level of a psychological trauma or disorder, or produce outward manifestations or symptoms, does not invariably lend itself to extrinsic proof, such as witness evidence. The Court has thus held that an automatic refusal to award any compensation to a person who has been unlawfully detained simply because he or she has not provided such evidence is excessively formalistic and in breach of Article 5 § 5 of the Convention (see Danev , cited above, §§ 33-34, and Dzhabarov and Others v.   Bulgaria , nos. 6095/11 and 2 others, § 84, 31 March 2016). In Dzhabarov and Others (§§ 50 and 85 of the judgment) the Court noted additionally that there was case-law of the SAC stating that that the mere fact of unlawful detention must be regarded as giving rise to   non-pecuniary   damage, which had to be considered as the correct approach under Article 5 § 5 of the Convention. 8.     The present case concerns the same formalistic approach on the part of the SAC as criticised by the Court in the cases cited above. The SAC did not question the conclusion reached previously that the applicant’s detention had been unlawful. It held nevertheless that the applicant had not sufficiently proven her mental suffering, referring to a statement by a police officer that she had been “calm” and “self-confident” at the time of her arrest (see paragraph 2 above). The SAC did not therefore properly account for considerations such as elaborated in the previous paragraph. Such an approach deprived the applicant of the compensation due to her for her unlawful detention (see Danev , cited above, § 35). 9.     There has accordingly been a violation of Article   5 § 5 of the Convention.       APPLICATION OF ARTICLE 41 OF THE CONVENTION 10.     The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 5 § 5 of the Convention. Done in English, and notified in writing on 31 January 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Olga Chernishova   Peeter Roosma   Deputy Registrar   President