CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 2 septembre 2010

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Bulgaria (application no. 9411/05)     Excessive formalism displayed by the courts in requiring proof of non-pecuniary damage resulting from unlawful detention   Unanimously   Violation of Article 5 § 5 (right to liberty and security) of the European Convention on Human Rights     Principal facts   The applicant, Naiden Danev, is a Bulgarian national who was born in 1969 and lives in Sofia.   Criminal proceedings were instituted against him on 10 November 1997 following a search in which an assault rifle, two pistols and ammunition were found at his father’s home. The applicant was charged with unlawful possession of firearms and was remanded in custody. He was released on 26 November 1997 for lack of evidence. Mr Danev denied any involvement, a position supported by his father’s testimony, and no fingerprints of his had been found on the weapons. The public prosecutor discontinued the proceedings against him on 12 December 1997.   Under the State Responsibility for Damage Act, the applicant brought an action against the public prosecutor’s office and the investigation service, seeking compensation (4,000 Bulgarian levs (BGN)) for the damage sustained as a result of his detention. He submitted that the detention had been contrary to domestic law, that he had been held in solitary confinement and in poor conditions, and that he had suffered anxiety, particularly because of his inability to look after his daughter and his disabled brother. A witness examined by the court after Mr Danev’s release confirmed the problems faced by the applicant in that respect, testifying that on his release he had suffered from depression and insomnia.   In June 2003 the court awarded compensation of BGN 1,000 to the applicant, who appealed, arguing that the award was too low. Although the appellate court acknowledged that Mr Danev’s detention had been unlawful, it nevertheless dismissed his appeal on the ground that he had not proved that he had suffered any non-pecuniary damage.     Complaints, procedure and composition of the Court   Relying on Article 5 § 5 (right to liberty and security) of the Convention, the applicant alleged that his right to compensation for his unlawful detention had been infringed. Under Article 6 § 1 (right to a fair hearing), he also argued that the principle of equality of arms had not been observed in the appeal proceedings.   The application was lodged with the European Court of Human Rights on 28 February 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Karel Jungwiert (Czech Republic), Rait Maruste (Estonia), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Judges , Pavlina Panova (Bulgaria), ad hoc Judge, and also Stephen Phillips , Deputy Section Registrar.     Decision of the Court   Article 5 § 5   Although the applicant had obtained an implicit acknowledgment of a violation of Article 5 § 1 (c) of the Convention on account of the unlawfulness of his detention, the courts had nevertheless not found in his favour. His claim for compensation had been dismissed on the ground that he had not proved that he had suffered any non-pecuniary damage. In particular, the statements by the witness had been disregarded as they had concerned the applicant’s condition after and not during his detention.   That implied, firstly, that any non-pecuniary damage should be outwardly perceptible and, secondly, that the adverse effects of unlawful detention ended upon release. However, the Court considered that such effects on a person’s psychological condition could persist even after release.   Accordingly, the authorities had imposed an obligation on the applicant to prove that he had suffered non-pecuniary damage as a result of his unlawful detention by adducing evidence of outward signs of physical or psychological suffering during the detention. Moreover, the courts had not taken into consideration either the finding of a violation of the applicant’s right to liberty and security or his arguments concerning his fragile psychological condition while in detention as evidence of non-pecuniary damage.   That formalistic approach meant that the award of any compensation was unlikely in the large number of cases where an unlawful detention lasted a short time and did not result in an objectively perceptible deterioration in the detainee’s physical or psychological condition. Furthermore, the applicant did not appear to have had any other means of redress available.   The Court concluded that there had been a violation of Article 5 § 5.   Article 6   The applicant complained that the public prosecutor had taken part in the compensation proceedings against the State as a "special party". The Court had already found that that did not constitute a breach of the principle of equality of arms. The applicant’s complaints on the subject were thus manifestly ill-founded and were dismissed.   Article 41   By way of just satisfaction, the Court held that Bulgaria was to pay Mr Danev 1,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,000 for costs and expenses.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Emma Hellyer (telephone: +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Frédéric Dolt (telephone: + 33 3 90 21 53 39) Nina Salomon (telephone: + 33 3 90 21 49 79)   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 Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.