CEDH · PRESS;GENERAL;ENG — 11 décembre 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .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 } .s331C3E28 { margin-top:0pt; margin-bottom:6pt } .s48A8B0C6 { margin-top:6pt; margin-bottom:6pt } .s47E2B0C6 { margin-top:6pt; margin-bottom:0pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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     634   11.12.2003   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF YANKOV v. BULGARIA     The European Court of Human Rights has today notified in writing a judgment [1] in the case of Yankov v. Bulgaria (application no. 39084/97). The Court held, unanimously, that there had been: a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights; a violation of Article 10 (freedom of expression) of the Convention; a violation of Article 13 (right to an effective remedy); a violation of Article 5 § 3 (right to be brought promptly before a judge and right to trial within a reasonable time or release pending trial); a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) ; a violation of Article 5 § 5 (enforceable right to compensation); and, a violation of Article 6 § 1 (right to a fair trial within a reasonable time).   Under Article 41 (just satisfaction), the Court awarded the applicant 8,000 euros (EUR) for non-pecuniary damage and EUR 4,000 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts The applicant, Todor Antimov Yankov, is a Bulgarian national who was born in 1943 and lives in Plovdiv, Bulgaria. He was the executive director of an agricultural investment fund and a financial company. He was also a former economics teacher and had a doctorate in the subject.   On 12 March 1996, he was arrested on suspicion of engaging in illegal financial dealings. He was detained pending trial for two years and nearly four months.   While in detention Mr Yankov applied unsuccessfully to be released on numerous occasions, submitting, among other things, that: the fact that all the evidence had been collected during the first few months of the investigation minimised any danger of him obstructing the course of justice after that time; that he had no criminal record; and, that there was no danger of his absconding in view of his age, family ties and state of health (he suffered from, among other things, high blood pressure, arterio-sclerosis, a kidney stone, diabetes and depression). He had also asserted that the evidence against him was weak and that the charges had been based on a false interpretation of the relevant law.       In February 1998 he was sent to hospital to undergo specialised medical treatment. On 10 March 1998, while the applicant was being searched prior to a meeting with his lawyers, the draft of a book he had been writing was confiscated by a prison officer on the ground that the applicant had intended to give it to his lawyer. The text, which described the applicant’s detention and the criminal proceedings against him, called the prison warders   “well-fed idlers” and “simple villagers” and a named police officer “a provincial parvenu” and apparently referred to prosecutors and investigators in general as “powerful unscrupulous people”. The applicant maintained that he intended only to read passages from his manuscript to his lawyer as it was only a rough draft. The same day the prisoner governor issued and enforced an order against the applicant “for having made offensive and defamatory statements against officers, investigators, judges, prosecutors and state institutions”.   The applicant’s head was shaved and he was placed in solitary confinement until March 17. He submits that his cell had no toilet and that he had to use a bucket which was not emptied regularly, that hygiene was poor and that there was insufficient light. When, on 19 March 1998 the applicant appeared at a public hearing before the district court, it was noticeable that his head had recently been shaved.   The applicant was admitted to hospital on 25 March 1998. On 10 July 1998 he was released on bail on health grounds.   On 30 October 1998 Plovdiv District Court found the applicant guilty, in particular, of ordering illegal money transfers abroad and sentenced him to five years’ imprisonment. On 5 June 2000 his conviction and sentence were quashed and the preliminary investigations were resumed. The proceedings were still pending in November 2002, since when the Court has received no further information on the subject.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 5 September 1997 and transmitted to the Court on 1 November 1998. It was declared partly inadmissible on 11 May 2000 and on 12 September 2002 the Court declared the remainder of the application admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Françoise Tulkens (Belgian), Nina Vajić (Croatian), Egil Levits (Latvian), Snejana Botoucharova (Bulgarian), Anatoli Kovler (Russian), Vladimiro Zagrebelsky (Italian), judges , and also Søren Nielsen , Deputy Section Registrar . 3.     Summary of the judgment [2]   Complaints   The applicant complained that his treatment in custody was contrary to Article 3 (prohibition of inhuman or degrading treatment or punishment) of the Convention, in that he was placed in an isolation cell and forced to have his head shaved. He also alleged that the disciplinary measure imposed on him for writing a book infringed Article 10 (right to freedom of expression), that his detention was in breach of Article 5 (right to liberty and security) and that the length of the criminal proceedings was unreasonable, contrary to Article 6 § 1 (right to a trial within a reasonable time). He also relied on Article 13 (right to an effective remedy).   Decision of the Court   Article 3 The Court observed that a prisoner whose head had been shaved forcibly would be very likely to experience a feeling of inferiority. Evidence of the treatment inflicted would also be immediately visible to others, including prison staff, co-detainees and visitors or the public, if the prisoner was released or brought into a public place soon afterwards. The Court considered that the forced shaving of detainees’ hair was in principle an act which might have the effect of diminishing their human dignity or might arouse in them feelings of inferiority capable of humiliating and debasing them.   The act complained of had no legal basis and valid justification. Even if it was not intended to humiliate, the removal of the applicant’s hair without specific justification was in itself arbitrary and punitive and therefore likely to appear to him to be aimed at debasing and/or subduing him.     The applicant must also have had reason to believe that the intention was to humiliate him, as his head had been shaved in the context of a punishment imposed on him for writing critical and offensive remarks about prison warders, among others. The applicant’s age (55 at the relevant time), and the fact that he appeared at a public hearing nine days after his head had been shaved, were also relevant.   Shaving the applicant’s hair in the context of his confinement in an isolation cell for writing critical and offensive remarks constituted unjustified treatment of sufficient severity to be characterised as degrading. There had, therefore, been a violation of Article 3.   Article 10 The Court noted that the Bulgarian authorities punished the applicant without even mentioning in their decisions why they considered his statements to be defamatory.   Although the comments made could be considered insulting, they were far from being grossly offensive. They also appeared in a manuscript written in a language and style characteristic of personal memoirs or a similar literary form and in the context of substantive criticism of the administration of justice and officials involved in it. The Bulgarian authorities should therefore have shown restraint in their reaction.   The Court was also struck by the fact that the applicant was punished for having recorded his thoughts in a personal manuscript which, apparently, he had not shown to anyone at the time it was seized. He had neither “uttered” nor “disseminated” any offensive or defamatory statements. In particular, there was no allegation that he had circulated the text among the other detainees. In addition, as a draft document, the manuscript was not ready for publication and there was no immediate danger of its dissemination, even if it had been taken out of the prison.   While the members of the prison administration who saw the applicant’s manuscript after its seizure must have felt personally insulted by certain remarks which concerned them, it was difficult to accept that that was an adequate reason to punish the applicant. Civil servants should not be unduly influenced by personal feelings. A fair balance had not been struck between the applicant’s right to freedom of expression and the need to maintain the authority of the judiciary and to protect the reputation of civil servants. By punishing the applicant, a prisoner, with seven days’ confinement in a disciplinary cell for having included moderately offensive remarks in a private manuscript critical of the justice system, which had not been circulated among the detainees, the authorities overstepped their margin of appreciation. There had, therefore, been a violation of Article 10.   Article 13 in conjunction with Articles 3 and 10 The Bulgarian Government had not contended that there existed any effective remedy against the shaving of the applicant’s head, which was an act without any legal basis.   Concerning the interference with the applicant’s freedom of expression, the Court noted that his manuscript was seized on the spot and that he was placed in an isolation cell immediately after the disciplinary order against him was issued. It had not been shown that he was given a reasonable opportunity to appeal prior to the execution of the punishment.     At the relevant time and until 2002 no judicial appeal was posssible under Bulgarian law against disciplinary confinement of a prisoner in an isolation cell.   Finding that the applicant had no effective remedy against either the degrading treatment to which he was subjected or the interference with his freedom of expression, the Court held that there had been a violation of Article 13.   Article 5 § 3   Right to be brought before a judge Following his arrest, the applicant was brought before an investigator who did not have power to make a binding decision to detain him. 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. There had, therefore, been a violation of Article 5 § 3 in that the applicant was not brought before a judge or other officer authorised by law to exercise judicial power.   Right to trial within a reasonable time or release pending trial The Court found that by failing to address concrete relevant facts and by relying solely on a statutory presumption based on the gravity of the charges and which shifted to the accused the burden of proving that there was not even a hypothetical danger of absconding, re-offending or collusion, the authorities prolonged the applicant’s detention on grounds which could not be regarded as sufficient.   The courts also applied a provision of the Code of Criminal Procedure, paragraph 3 of section 152, which excluded any possibility of the release of a person against whom more than one investigation was pending. It was noteworthy in this respect that the separation or joinder of criminal investigations was a matter determined by the prosecution authorities without judicial control.   The Court therefore found that the authorities failed to justify the applicant’s remand in custody for the period of two years and almost four months. There had therefore been a violation of Article 5 § 3 in that the applicant’s pre-trial detention was not justified throughout and was excessively lengthy.   Article 5 § 4 The Court recalled that, although the applicant had put forward arguments questioning the grounds for his detention, in their decisions, the Bulgarian courts devoted no consideration to any of these arguments, apparently treating them as irrelevant to the question of the lawfulness of his pre-trial detention. The courts failure to take into account concrete facts capable of putting in doubt the existence of the conditions essential for the “lawfulness” of the applicant’s detention was in violation of Article 5 § 4.   Article 5 § 5 Finding that Bulgarian law did not give the applicant an enforceable right to compensation concerning his detention, the Court held that there had been a violation of Article 5 § 5.   Article 6 § 1 The proceedings having lasted at least six years and five months, the Court held that there had been a violation of Article 6 § 1.   ***   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. More detailed information about the Court and its activities can be found on its Internet site. [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. [2] This summary by the Registry does not bind the Court.