CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 novembre 2008

.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 } .s653E6C45 { font-family:Arial; font-size:6.67pt; 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 } .s504DB88A { font-family:Arial; color:#999999 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .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 } EUROPEAN COURT OF HUMAN RIGHTS   784 6.11.2008   Press release issued by the Registrar   CHAMBER JUDGMENT KANDZHOV v. BULGARIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Kandzhov v. Bulgaria (application no. 68294/01).   The Court held unanimously that there had been:   a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights; a violation of Article 5 § 3 (right to be brought promptly before a judge) of the Convention; and, a violation of Article 10 (freedom of expression).   Under Article 41 (just satisfaction), the Court awarded Mr   Kandzhov 4,000   euros   (EUR) in respect of non-pecuniary damage and EUR   2,000 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Aleksandar Bogdanov Kandzhov, is a Bulgarian national who was born in 1971 and lives in Pobeda (Bulgaria).   On 10 July 2000 he was arrested for putting up two posters allegedly insulting the Minister of Justice and gathering signatures calling for the Minister’s resignation.   On 11 July 2000 the Pleven District Prosecutor’s Office received a complaint by the Minister of Justice who requested that criminal proceedings be instituted against the applicant for insult and for hooliganism under the relevant provisions of the Criminal Code.   The same day a prosecutor of the Pleven District Prosecutor’s Office ordered that the applicant be detained for 72 hours, pending a ruling by the Pleven District Court on whether he should be placed in “pre ‑ trial detention”. He noted that proceedings had been instituted against the applicant on charges of insult and hooliganism and stated that there was a real risk that he would flee or re ‑ offend. The applicant’s counsel immediately appealed against the order to the Pleven Regional Prosecutor’s Office. She received no reply.   At 11 a.m. on 14 July 2000 the Pleven District Court, after examining the request to place the applicant in “pre-trial detention”, decided to release him on bail. The applicant apparently paid the bail immediately after the hearing and was released.   He was subsequently indicted on a charge of aggravated hooliganism. The insult charges had, it appears, been dropped earlier. In April 2001 he was convicted as charged and sentenced to four months’ imprisonment, suspended for three years.   The applicant appealed and in September 2001 the Pleven Regional Court quashed the lower court’s judgment and acquitted him. This verdict was upheld by the Supreme Court of Cassation in January 2002.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 5 January 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Rait Maruste (Estonian), President , Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Mark Villiger (Swiss) [2] , Isabelle Berro-Lefèvre (Monegasque), Mirjana Lazarova Trajkovska (citizen of “the former Yugoslav Republic of Macedonia”), Zdravka Kalaydjieva (Bulgarian), judges , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [3]   Complaints   Relying on Article   5 §§   1 and   3 and Article   10, the applicant complained that his arrest and detention for displaying a banner allegedly insulting the Minister of Justice and gathering signatures calling for the Minister’s resignation had been unlawful, and that after his arrest he had not been brought promptly before a judge.   Decision of the Court   Article 5 § 1   The Court had first to determine whether the applicant’s arrest and detention on charges of hooliganism and insult were “lawful” within the meaning of Article 5 § 1 and whether his deprivation of liberty had been based on a “reasonable suspicion” of his having committed an offence.   In so far as the charge of insult was concerned, at the relevant time it was a privately prosecutable offence and could not attract a sentence of imprisonment. The levelling of charges of insult could not therefore have served as a basis for the applicant’s detention between 11 and 14 July 2000. By making an order to this effect the Pleven District Prosecutor’s Office had blatantly ignored the clear and unambiguous provisions of domestic law.   As regards the period immediately preceding the Prosecutor’s order, it was clear that the police had no power to conduct preliminary investigations in respect of privately prosecutable offences such as insult. The applicant’s police detention on this basis had therefore also been unlawful.   As regards the charge of hooliganism, the Supreme Court of Cassation specifically found that the applicant’s actions had been entirely peaceful, had not obstructed any passers ‑ by and had been hardly likely to provoke others to violence. On this basis, it had concluded these actions had not amounted to the constituent elements of the offence of hooliganism. Nor had the orders for the applicant’s arrest and for his detention – which had not been reviewed by a court – contained anything which could be taken to suggest that the authorities could have reasonably believed that the conduct in which he had engaged had constituted hooliganism. It followed that the applicant’s detention between 10 and 14 July 2000 had not constituted a “lawful detention” effected “on reasonable suspicion” of his having committed an offence and that there had therefore been a violation of Article 5 § 1.   Article 5 § 3   The applicant had been brought before a judge three days and 23 hours after his arrest. In the circumstances, this did not appear prompt as was required under Article 5 § 3. He had been arrested on charges of a minor and non-violent offence. He had already spent 24 hours in custody when the police proposed to the prosecutor in charge of the case to request the competent court to place the applicant in pre-trial detention. The prosecutor had ordered that he be detained for a further 72 hours, without giving any reasons why he considered it necessary, save for a stereotyped formula saying that there was a risk that he might flee or re ‑ offend. The matter had been brought before the Pleven District Court only at the last possible moment, when the 72 hours had been about to expire. The Court could see no special difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicant before a judge much sooner. This was particularly important in view of the dubious legal grounds for his detention.   There had therefore been a violation of Article   5   § 3.   Article 10   For the Court, it was clear that in gathering signatures calling for the resignation of the Minister of Justice and in displaying two posters making statements about the Minister, the applicant had been exercising his right to freedom of expression. His arrest and subsequent detention for doing so, quite apart from the opening of criminal proceedings against him, therefore amounted to an interference with the exercise of this right.   Such interference gave rise to a breach of Article 10 unless it could be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 of Article 10 and had been “necessary in a democratic society” to attain them.   It had already been established that the applicant’s arrest and detention had not been “lawful”. It followed that the applicant’s arrest and detention had not been “prescribed by law” under Article 10 § 2.   Furthermore, assuming that the measures taken against the applicant could be taken to pursue the legitimate aims of preventing disorder and protecting the rights of others, they had clearly been disproportionate to these aims. These measures had clearly not been “necessary in a democratic society”. In a democratic system the actions or omissions of the Government and of its members had to be subject to close scrutiny by the press and public opinion. Furthermore, the dominant position which the Government and its members occupied made it necessary for them – and for the authorities in general – to display restraint in resorting to criminal proceedings, and the associated custodial measures, particularly where other means were available for replying to the unjustified attacks and criticisms of their adversaries.   There had therefore been a violation of Article 10.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Adrien Raif-Meyer (telephone: 00 33 (0)3 88 41 33 37) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   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. [1] Under Article 43 of the Convention, 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. [2] Judge elected in respect of Liechtenstein. [3] This summary by the Registry does not bind the Court.