CEDH · PRESS;GENERAL;ENG — 18 janvier 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   012 18.01.2005   Press release issued by the Registrar   CHAMBER JUDGMENT KEHAYOV v. BULGARIA   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Kehayov v. Bulgaria (application no. 41035/98).   The Court held unanimously: that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights; that there had been a violation of Article 5 § 3 (right to be brought promptly before a judge) of the Convention; that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court).   Under Article 41 (just satisfaction), the Court awarded the applicant 2,000   euros (EUR) for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)     1.     Principal facts   The applicant, Ivan Ivanov Kehayov, is a Bulgarian national, born in 1971 and living in Plovdiv.   On 27 December 1997 the applicant was arrested, brought before an investigator and detained on rape charges. A prosecutor confirmed the detention the same day.   Up until 16 June 1998 the applicant was detained in a cell at the Regional Investigation Office in Plovdiv measuring 10.5 m². The cell, which he shared with three other detainees, had no window and there was no outdoor access or out-of-cell activities, except for two short visits a day to the sanitary facilities. To relieve themselves outside the time earmarked for toilet visits, detainees had to use a bucket.   In April 1998 psychiatrists who examined the applicant to establish whether he was fit to stand trial reported that, a year or two earlier, he had undergone periods of depression and had been admitted for a day to a psychiatric hospital on suspicion of suffering from paranoid schizophrenia. However, the experts concluded that the applicant’s mental condition was sound.   On 5 January 1998 the applicant appealed to Plovdiv District Court against the detention order. On 19 and 21 January 1998 his lawyer requested access to the case file, which was refused by the trial judge.   The applicant’s appeal against his detention was heard on 23   January 1998. The judge refused to allow the applicant’s lawyer to represent him, considering that the written authority form was invalid. The applicant gave the judge another written authorisation, which he signed in the judge’s presence, but the court refused to accept the document as it did not include the case file number. Consequently, the applicant had to present his case without legal representation. The court dismissed his appeals against detention.   On 21 May 1998 the applicant’s lawyer again unsuccessfully requested access to the case file.   On 8 June 1998 the investigator gave the applicant and his lawyer access to all the material in the case.   On 16 June 1998 the applicant was transferred to Plovdiv Prison where the conditions were considered to be better.   During his trial, two further requests for release were dismissed. On 18 December 1998   Plovdiv District Court found the applicant guilty of rape and sentenced him to two years’ imprisonment.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 28 January 1998 and transmitted to the Chamber of the Court on 1 November 1998. On 26 October 2000 the Court declared the application partly inadmissible. On 13   March 2003 the Court declared the remainder of the application partly admissible.   Judgment was given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , Snejana Botoucharova (Bulgarian), Anatoli Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), judges , and also Søren Nielsen , Section Registrar .       3.     Summary of the judgment   Complaints   The applicant complained: that he was detained in inhuman and degrading conditions, particularly as he suffered from psychiatric problems; that, after his arrest, he was not brought before a judge; that his lawyer was refused access to the case file and on one occasion was not allowed to represent him; and, that his appeals against detention were not examined speedily. He relied on Article 3 and Article 5 §§ 3 and 4.   Decision of the Court   Article 3 The Court considered that the fact that the applicant had to spend almost 24 hours a day during nearly six months in an overcrowded cell with no natural light and with no physical exercise or other out-of-cell activities must have been detrimental to his health and must have caused intense suffering. Indeed, in May 1998, Plovdiv District Court, having heard the applicant’s request to be released in view of, among other things, the unacceptable conditions, recommended his transfer to another detention facility.   As to the applicant’s mental condition, the Court was unable to arrive at safe conclusions. While the psychiatrists who examined him in April 1998 found that he was mentally healthy, their conclusion only concerned the applicant’s legal capacity to stand trial. On the other hand, the applicant had not shown that he had been in need of psychiatric help while in detention and that such help had been denied.   While the Court did not accept the applicant’s contention that the detention conditions were intended to degrade or humiliate him, there was little doubt that certain aspects of the stringent regime could be seen as humiliating.   In particular, subjecting a detainee to the humiliation of having to relieve himself in a bucket in the presence of other inmates could have no justification, except in specific situations where allowing visits to the sanitary facilities would pose a concrete and serious safety risk. However, no security risks were invoked by the Government as grounds for the restrictive regime to which the applicant was subjected. Similarly, in the absence of compelling security considerations, there was no justification for depriving the applicant of out-of-cell activity or physical exercise for nearly six months.   While not underestimating the financial difficulties faced by the Bulgarian Government, the Court observed that a number of improvements to the detention facilities at the Plodiv Regional Investigation Office, which had been recommended by the Committee for the Prevention of Torture and which did not require significant resources, had not been implemented.   Given the unjustified and stringent regime to which the applicant was subjected, the material conditions in the cell and the time he spent there, the Court considered that the hardship he endured exceeded the unavoidable level inherent in detention and held, unanimously, that there had been a violation of Article 3.     Article 5 § 3 The Court observed that the applicant was arrested and brought before an investigator who did not have power to make a binding decision to detain him. In any event, neither the investigator nor the prosecutor who confirmed the detention were sufficiently independent and impartial for the purposes of Article 5 § 3, in view of the practical role they played in the prosecution and their potential participation as a party to the criminal proceedings. The Court therefore held, unanimously, that there had been a violation of Article 5 § 3.   Article 5 § 4 On 19 and 21 January and 21 May 1998 the applicant’s lawyer’s requests to consult the case file were refused. The applicant’s lawyer was therefore unable to study any of the documents that were essential for determining the lawfulness of his client’s detention. On the other hand, the prosecutor, who supervised the investigation, confirmed the detention order of 27 December 1997 and opposed the appeal against it, had the advantage of full knowledge of the file. The resulting situation was incompatible with the equality-of-arms requirement of Article 5 § 4.   The Court also noted that at the hearing on the applicant’s appeal against his detention on 23 January 1998 his lawyer was prevented from representing him, although he had handed the judge a written authorisation form signed by the applicant in the courtroom, in the judge’s presence. The alleged defect in that document – that the case number had not been indicated – was of such a minor nature that it could not possibly justify, under the relevant domestic law and the principles underlying Article   5 of the Convention, a decision to deprive the applicant of the benefit of legal representation. The Court observed that the judge could have asked the applicant whether or not the authorisation form concerned the case under examination.   The Court found, therefore, that there had been a violation of Article   5 § 4 in that the applicant’s lawyer was refused access to the case file on three occasions and was prevented from representing his client on 23 January 1998. The Court did not consider it necessary to examine whether there had been further violations of Article 5 § 4 in the same proceedings.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.