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CASE OF KEHAYOV v. BULGARIA
(Application no. 41035/98)
JUDGMENT
STRASBOURG
18 January 2005
FINAL
18/04/2005
This judgment will become final in the circumstances
set out in Article 44 § 2 of the Convention. It may be subject
to editorial revision.
In the case of Kehayov v. Bulgaria,
The European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 December 2004,
Delivers the following judgment, which was adopted on the last?mentioned
date:
PROCEDURE
1. The case originated in an application (no. 41035/98) against
the Republic of Bulgaria lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian
national, Mr Ivan Ivanov Kehayov (“the applicant”), on 28 January 1998.
2. The applicant, who had been granted legal aid, was represented
by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The Bulgarian
Government (“the Government”) were represented by their agents, Mrs V. Djidjeva
and Mrs M. Dimova, of the Ministry of Justice.
3. The applicant alleged, in particular, that he had been detained
in inhuman and degrading conditions, that after his arrest he had not been
brought before a judge or other officer authorised by law to exercise judicial
power, that his lawyer had been refused access to the case file and on
one occasion had not been allowed to represent him in the proceedings concerning
his pre-trial detention and that his appeals against detention had been
examined with substantial delays and only formally.
4. The application was transmitted to the Court on 1 November
1998, when Protocol No. 11 to the Convention came into force (Article 5
§ 2 of Protocol No. 11).
5. The application was allocated to the former Fourth Section
of the Court (Rule 52 § 1 of the Rules of Court). On 26 October 2000 the
Court declared the application partly inadmissible and adjourned the remainder.
6. By a decision of 13 March 2003, the Court declared the remainder
of the application partly admissible.
7. On 23 May 2003 the applicant filed an objection challenging
the representative power of the Government's agent on the basis of alleged
deficiencies in domestic regulations. The Court rejected that objection.
8. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 § 1). This case was assigned to the newly composed First
Section (Rule 52 § 1). Within that Section, the Chamber that would consider
the case (Article 27 § 1 of the Convention) was constituted as provided
in Rule 26 § 1.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1971 and lives in Plovdiv.
A. The applicant's detention pending trial and his appeals
against detention
10. On 27 December 1997 the applicant was arrested, brought
before an investigator and detained on rape charges. A prosecutor confirmed
the detention on the same day. Later in the course of the investigation
he was also charged with abduction.
11. Between 27 December 1997 and 5 January 1998 the investigator
conducted searches in the applicant's apartment, ordered an expert analysis
of various traces and objects and questioned the applicant.
12. On 5 January 1998 the applicant appealed to the Plovdiv
District Court against the detention order.
13. In accordance with the established practice, the appeal
was submitted through the investigation authorities, which transmitted
it to the District Court on 15 January 1998. The matter was listed for
a hearing on 19 January 1998.
14. On 19 January 1998 the applicant's lawyer requested access
to the case file, which was refused by the judge on the same day.
15. At the hearing on 19 January 1998 the applicant's lawyer
requested the withdrawal of the president of the bench as she had recently
sought his prosecution for alleged defamatory statements. The lawyer was
concerned that the judge's hostility towards him might prejudice his client's
interests. The request for the judge's withdrawal was granted and the case
adjourned.
16. On 21 January 1998 the case was assigned to another bench
and listed for hearing on 23 January 1998.
17. On 21 January 1998 the applicant's lawyer reiterated his
request for access to the case file. The request was refused on the same
day.
18. The applicant's appeal against his detention was eventually
heard on 23 January 1998.
19. At the opening of the hearing the judge refused to allow
the participation of the applicant's lawyer, considering that his written
authority form was invalid. The judge stated that the authority had only
been signed by the applicant's wife and not by the applicant, that it bore
no indication of the lawyer's fees and that it had not been made on a sheet
from the usual lawyers' receipt-books.
20. Thereupon, the applicant, who was also present, handed to
the judge another written authorisation, signed by him. The court refused
to accept it as the case file number had not been marked on it. As a result,
the applicant had to present his case without legal representation.
21. Having heard the applicant, the court dismissed his appeal
against detention, stating that he was charged with a serious criminal
offence. The court went on to conclude that the fact that the applicant
had refused to sign the minutes of his first interrogations and to comment
on the charges right away had demonstrated that he lacked critical judgment
of his behaviour, which in turn revealed a danger that he would abscond
and re-offend.
22. On 13 April 1998 the applicant filed a new appeal against
detention, referring to passages in a psychiatrists' report concerning
his mental state (see paragraph 41 below). On 13 April 1998 the applicant
also filed a request for the replacement of the president of the bench,
arguing that his partiality had been demonstrated by his behaviour at the
hearing on 23 January 1998. The lawyer did not enclose a power of
attorney and did not indicate his address and telephone number.
23. On 27 April 1998 the appeal was forwarded by the prosecution
authorities to the District Court, where it was registered on 6 May 1998.
A hearing was listed for 11 May 1998. The applicant, but not his lawyer,
was summoned.
24. At the hearing on 11 May 1998 the applicant requested an
adjournment as his lawyer was not present. The District Court, sitting
in a new composition, noted that the applicant's lawyer had not been summoned
as he had not indicated his address. It nevertheless decided to adjourn
the case in view of the applicant's request. A second hearing was listed
for 21 May 1998.
25. On 12 May 1998 the applicant's lawyer requested to be given
access to the case file.
26. On 21 May 1998 the Plovdiv District Court heard the prosecutor,
the applicant and two lawyers acting for him. The District Court dismissed
the lawyers' request for an adjournment to allow consultation of the case
file, referring to “the practice” and endorsing the prosecutor's view that
it was for the investigator to decide what material should be provided
to lawyers.
27. As to the merits, the applicant argued that his health was
unstable, that the conditions of detention were unacceptable and that he
had to help his parents, one of whom was ill, in their seasonal agricultural
work.
28. The District Court dismissed the applicant's appeal against
detention noting the psychiatrists' conclusion that the applicant was mentally
healthy and that other relatives had been taking care of the applicant's
sick mother. The court also had regard to the fact that the charges concerned
a serious offence, allegedly committed during the operational period of
the applicant's suspended sentence for a previous conviction, and concluded
that there was a danger that he might obstruct the course of justice and
re?offend. As to the conditions of the applicant's detention, the court
stated that a transfer to another detention facility could be recommended.
29. On 8 June 1998, before completing the investigation, the
investigator gave the applicant and his lawyer access to all the material
in the case. On 11 June 1998 the investigator drew up a report proposing
that the applicant be indicted.
30. The indictment on charges of rape and abduction was prepared
by a prosecutor and submitted to the District Court on 28 July 1998.
31. At the first hearing, held on 1 October 1998, the District
Court examined the applicant's renewed appeal against his detention and
dismissed it, noting that he was charged with a serious wilful offence
which required his remand in custody and that, in any event, the charges
concerned an offence allegedly committed during the operational period
of the applicant's previous suspended sentence for another offence. This
latter fact left no doubt that there was a danger that the applicant would
commit further offences. Finally, the court also endorsed the prosecutor's
position that there was a reasonable suspicion against the applicant and
that the fact that the charges concerned a violent offence should be taken
into account.
32. At the hearing held on 23 November 1998 the applicant submitted
another application for release on the grounds that his detention was unreasonably
long, that the court failed to conduct a prompt trial and that there was
no convincing evidence against him. Ms D., the victim, stated that she
feared that if released the applicant may hurt her. She had learned that
the applicant's parents had been asking others about her new address. The
court ruled against the applicant's release. It noted that under the relevant
law remand in custody was required in all cases where the charges concerned
serious offences. It further stated that there was a danger that the applicant
would obstruct the course of justice in view of the fact that he had been
charged with more than one offence and that he had a criminal record. Therefore,
the applicant's statements about his good character and family circumstances
did not warrant release.
33. On 18 December 1998 the Plovdiv District Court found the
applicant guilty of rape, sentenced him to two years' imprisonment and
acquitted him of the charges of abduction. On 30 April 1999 the Plovdiv
Regional Court upheld the conviction and sentence.
B. Correspondence in 1998 between the courts and the Bar Association
in Plovdiv regarding access to case files
34. The applicant produced copies of correspondence in January
and March 1998 from the presidents of the Plovdiv District Court and of
the Plovdiv Regional Court to the local Bar Association, apparently in
reaction to complaints made by lawyers about an existing practice of barring
access to case files in cases concerning appeals against pre-trial detention.
35. The president of the District Court acknowledged that the
complaints were well-founded and stated, inter alia, that, “[r]egrettably,
District Court judges rely on the hitherto prevailing practice and do not
share my opinion ...”
36. The president of the Regional Court informed the Bar Association
that the matter had been discussed at length and that the judges had agreed
that, contrary to the opinion of the Chief Public Prosecutor's Office and
the Regional Prosecutor's Office in Plovdiv, there were no legal grounds
for refusing access to case files in appeals against detention proceedings.
C. Conditions of the applicant's detention
37. Between 25 December 1997 and 16 June 1998 the applicant
was kept in a lock-up at the Regional Investigation Office in Plovdiv.
38. The cell, where the applicant was detained together with
three other people, measured 3 x 3.5m (a surface of 10.5 m?). Since there
were no beds, the detainees slept on mattresses on the floor. According
to the applicant, the blankets were not washed regularly. The Government
disputed that allegation. The cell did not have access to daylight and
was equipped with a 100W electric lamp. There was a ventilation system.
According to the applicant the ventilation system was only installed “in
1998”. He also submitted that in winter the temperature in his cell did
not rise above 10?12 Co. According to the Government, the cell was
centrally heated and the temperature therein was normal.
39. The applicant and the other detainees were allowed to leave
the cell twice a day, at 6.30 a.m. and 6.30 p.m., for toilet purposes and
washing. To relieve themselves outside the time earmarked for toilet visits,
the detainees had to use a bucket. They had to empty the bucket and clean
it themselves when leaving the cell to use the sanitary facilities. They
were provided with detergents. Once per week the buckets were disinfected
chemically. No possibility for spending time in the open or physical exercise
was provided. The detainees could also leave the cell when they received
visits or were brought for questioning or taken to court. They showered
once per week in winter and twice per week in summer. Apparently hot water
was available.
40. Food was provided three times per day in the cell. It was
served in pots or mugs which the detainees had to wash after every meal
and which were collected and disinfected periodically. For security reasons,
no forks or knives were provided. According to the applicant, the food
was of bad quality. The Government stated that meat was available at least
once per day.
41. In April 1998 psychiatry experts who had examined the applicant
with a view to verifying his legal capacity to stand trial submitted their
report. They noted that a year or two earlier the applicant had undergone
periods of depression and violent or inadequate behaviour. He 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.
42. On 16 June 1998 the applicant was transferred to the Plovdiv
prison where the conditions were better.
D. Reports of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
43. The CPT visited Bulgaria in 1995 and again in 1999 and 2003.
The Plovdiv Investigation Service detention facility was visited in 1999
and 2003. All reports included general observations about problems in all
Investigation Service facilities.
1. Relevant findings of the 1995 report (made public in 1997)
44. In this report the CPT found that most, albeit not all,
of the Investigation Service detention facilities were overcrowded. With
the exception of one detention facility where conditions were better, the
conditions were as follows: detainees slept on mattresses on sleeping platforms
on the floor; hygiene was poor and blankets and pillows were dirty; cells
did not have access to natural light, the artificial lighting was too weak
to read by and was left on permanently; ventilation systems were in poor
condition; detainees could use a toilet and washbasin twice a day (morning
and evening) for a few minutes and could take a weekly shower; outside
of the two daily visits to the toilets, detainees had to satisfy the needs
of nature in the cell bucket; although according to the establishments'
internal regulations detainees were entitled to a “daily walk” of up to
thirty minutes, it was often reduced to 5-10 minutes or not allowed at
all; no other form of out-of-cell activity was provided to persons detained.
45. The CPT further noted that food was of poor quality and
in insufficient quantity. In particular, the day's “hot meal” generally
consisted of a watery soup (often lukewarm) and inadequate quantities of
bread. At the other meals, detainees only received bread and a little cheese
or khalva. Meat and fruit were rarely included on the menu. Detainees had
to eat from bowls without cutlery - not even a spoon was provided.
46. The CPT also noted that family visits were only possible
with permission and that as a result detainees' contact with the outside
world was very limited. There was no radio or television.
47. The CPT concluded that the Bulgarian authorities had failed
in their obligation to provide detention conditions which were consistent
with the inherent dignity of the human person and that “almost without
exception, the conditions in the Investigation Service detention facilities
visited could fairly be described as inhuman and degrading.” In reaction,
the Bulgarian authorities had agreed that the [CPT] delegation's assessment
had been “objective and correctly presented” but had indicated that the
options for improvement were limited by the country's difficult financial
circumstances.
48. In 1995 the CPT recommended to the Bulgarian authorities, inter
alia, that sufficient food and drink and safe eating utensils be provided,
that mattresses and blankets be cleaned regularly, that detainees be provided
with personal hygiene products (soap, toothpaste, etc), that custodial
staff be instructed that detainees should be allowed to leave their cells
during the day for the purpose of using a toilet facility unless overriding
security considerations required otherwise, that the regulation providing
for 30 minutes' exercise per day be fully respected in practice, that
cell lighting and ventilation be improved, that the regime of family visits
be revised and that pre-trial detainees should be more often transferred
to prison even before the preliminary investigation was completed. The
possibility of offering detainees outdoor exercise was to be examined as
a matter of urgency.
2. Relevant findings of the 1999 report (made public in 2002)
49. The CPT noted that new rules, providing for better conditions,
had been enacted but had not yet resulted in significant improvements.
50. In most places visited in 1999 (with the exception of a
newly opened detention facility in Sofia), the conditions of detention
in Investigation Service premises had remained generally the same as those
observed during the CPT's 1995 visit, including as regards hygiene, overcrowding
and out?of-cell activities. In some places the situation had even deteriorated.
51. In the Plovdiv Investigation Service detention facility,
as well as in two other places, detainees “still had to eat with their
fingers, not having been provided with appropriate cutlery”.
52. In the same detention facility medical supervision was provided
by a medical doctor on the premises.
3. Relevant findings of the 2003 report (made public in 2004)
53. The CPT noted that most investigation detention facilities
were undergoing renovation but that a lot remained to be done. The cells
remained generally overcrowded.
54. In Plovdiv, only a third of the cells had benefited from
a refurbishment which involved making windows in the cell doors, improving
the artificial lighting and installing wash basins in the cells. However,
the majority of the cells remained in the same inadequate condition as
in 1999. The sanitary facilities were not in a satisfactory state of repair.
55. Despite the CPT's recommendations in the report on their
1999 visit, no proper regime of activities had been developed for detainees
spending long periods in the investigation detention facilities. Those
facilities did not have areas for outdoor exercise. At some of the establishments
(e.g. Botevgrad), attempts were being made to compensate for the lack of
outdoor exercise facilities by allowing detainees to stroll in the corridor
several times a day. The CPT stated that “in this respect, the situation
remain[ed] of serious concern”.
II. RELEVANT DOMESTIC LAW
56. Article 69 § 2 of the Code of Criminal Procedure provides
that a power of attorney shall be prepared in writing and signed by the
defendant and his legal counsel.
57. The relevant provisions of the Code of Criminal Procedure
concerning the powers and functions of investigators and prosecutors are
summarised in the Court's judgment in the case of Nikolova v. Bulgaria ([GC],
no. 31195/96, §§ 25-29, ECHR 1999-II).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
58. The applicant complained under Article 3 of the Convention
of the conditions of his detention until 16 June 1998. Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment
or punishment.”
A. The parties' submissions
59. The applicant stated that at the relevant time he had been
suffering from a psychiatric problem, as established by the psychiatric
experts who had examined him for the purposes of the criminal proceedings
against him. Despite that fact he had been detained in the appalling conditions
of the detention facility of the Plovdiv Investigation Service without
psychiatric treatment.
60. The applicant also submitted copies of newspaper articles
according to which various officials had admitted that the conditions in
the Plovdiv Investigation Service detention facility had been designed
to torture the detainees and bring pressure to bear on them. The applicant
also referred to the 1995 report of the CPT on their visit to Bulgaria
in which the conditions obtaining in similar detention facilities were
described as inhuman and degrading.
61. The Government disputed some of the applicant's allegations
about the material conditions of his detention and stated that the complaint
under Article 3 of the Convention was ill-founded.
B. The Court's assessment
1. General principles
62. To fall within the scope of Article 3, ill-treatment must
attain a minimum level of severity. The assessment of this minimum is relative;
it depends on all the circumstances of the case, such as the duration of
the treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim (see, among other authorities, Ireland
v. the United Kingdom, judgment of 18 January 1978, Series A no. 25,
p. 65, § 162).
63. The Court has considered treatment to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental suffering.
It has deemed treatment to be “degrading” because it was such as to arouse
in the victims feelings of fear, anguish and inferiority capable of humiliating
and debasing them (see, for example, Kudla v. Poland [GC], no.
30210/96, § 92, ECHR 2000-XI). In considering whether a particular form
of treatment is “degrading” within the meaning of Article 3, the Court
will have regard to whether its object is to humiliate and debase the person
concerned and whether, as far as the consequences are concerned, it adversely
affected his or her personality in a manner incompatible with Article 3.
However, the absence of any such purpose cannot conclusively rule out a
finding of a violation of Article 3 (see, for example, Raninen v. Finland,
judgment of 16 December 1997, Reports of Judgments and Decisions,
1997-VIII, pp. 2821-22, § 55, and Peers v. Greece, no. 28524/95,
§ 74, ECHR 2001?III).
64. The suffering and humiliation involved must go beyond that
inevitable element of suffering or humiliation connected with a given form
of legitimate treatment or punishment. Measures depriving a person of his
liberty may often involve such an element. Yet it cannot be said that detention
on remand in itself raises an issue under Article 3 of the Convention.
Nevertheless, under this provision the State must ensure that a person
is detained in conditions which are compatible with respect for his human
dignity, that the manner and method of the execution of the measure do
not subject him to distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention and that, given the practical
demands of imprisonment, his health and well-being are adequately secured.
When assessing conditions of detention, account has to be taken of the
cumulative effects of those conditions and the duration of the detention
(see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II and Kalashnikov
v. Russia, no. 47095/99, § 102, ECHR 2002-VI).
65. An important factor, along with the material conditions,
is the detention regime. In assessing whether a restrictive regime may
amount to treatment contrary to Article 3 in a given case, regard must
be had to the particular conditions, the stringency of the regime, its
duration, the objective pursued and its effects on the person concerned
(see Messina v. Italy (dec.), no. 25498/94, ECHR 1999?V, Van
der Ven v. the Netherlands,no. 50901/99, § 51, ECHR 2003?II and Iorgov
v. Bulgaria, no. 40653/98, §§ 83-87, 11 March 2004).
2. Application of these principles to the present case
66. Since the applicant was detained in the premises of the
Plovdiv Investigation Service between 25 December 1997 and 16 June 1998,
the findings of the CPT, in particular, in their 1995 and 1999 reports,
provide a reliable basis for the assessment of the conditions in which
he was imprisoned. The Court notes in this respect that the CPT described
the conditions in many investigation detention facilities as inhuman and
degrading (see paragraphs 37 and 43-55 above).
67. The applicant was detained in a cell of 10.5 square metres
occupied by four detainees. As no possibility for outdoor or out-of-cell
activities was provided, he had to spend in the cell – which had no window
and was illuminated by a single electrical bulb – practically all his time,
except for two short visits per day to the sanitary facilities (see paragraphs
38-40 above).
68. The applicant was 26 years old at the time and was apparently
physically healthy. As to his mental condition, the Court is unable to
arrive at safe conclusions. The authorities were aware that he had been
admitted to a psychiatric hospital a year or two earlier. 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
(see paragraph 41 above). On the other hand, the applicant has not shown
that he had been in need of psychiatric help while in detention and that
such help had been denied.
69. At all events, the Court considers that the fact that the
applicant had to spent practically 24 hours per day during nearly six months
in an overcrowded cell without exposure to natural light and without any
possibility for physical and other out-of-cell activities must have been
detrimental to his health and must have caused intense suffering. Indeed,
in May 1998 the Plovdiv District Court, having heard the applicant's request
to be released in view of, inter alia, the unacceptable conditions,
recommended his transfer to another detention facility (see paragraphs 26?28
above).
70. While the Court does not accept the applicant's contention
that the detention conditions were intended to degrade or humiliate him,
there is little doubt that certain aspects of the stringent regime could
be seen as humiliating.
71. In particular, subjecting a detainee to the humiliation
of having to relieve himself in a bucket in the presence of other inmates
can 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 at the
premises of the Plovdiv Investigation Service.
72. The Court also considers that in the absence of compelling
security considerations there was no justification for depriving the applicant
from any possibility of out-of-cell activity and physical exercise for
nearly six months.
73. While the Court does not underestimate the financial difficulties
invoked by the Government before the CPT, it observes that a number of
improvements recommended by the CPT did not require significant resources
but were not implemented (see paragraphs 47, 48, 50, 51, 54 and 55 above).
74. Having regard to the cumulative effects of the unjustified
stringent regime to which the applicant was subjected, the material conditions
in the cell and the time spent therein, the Court considers that the hardship
he endured exceeded the unavoidable level inherent in detention and finds
that the resulting suffering went beyond the threshold of severity under
Article 3 of the Convention.
75. It follows that there has been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
76. The applicant complained that upon his arrest he had not
been brought before a judge or other officer authorised by law to exercise
judicial power within the meaning of Article 5 § 3 of the Convention, which
provides, in so far as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c)
of this Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power...”
77. The Government stated that at the relevant time legal professionals
and scholars in Bulgaria believed that the investigators and prosecutors,
before whom arrested persons were brought, could be regarded as “officer[s]
authorised by law to exercise judicial power” despite their participation
in the prosecution of the detainee. That opinion changed after the Court's Assenov
and Others v. Bulgaria judgment (28 October 1998, Reports 1998-VIII)
and the system was reformed as from 1 January 2000.
78. In cases which concerned the system of detention pending
trial as it existed in Bulgaria until 1 January 2000, the Court found that
neither investigators before whom accused persons were brought, nor prosecutors
who approved detention orders, could be considered to be “officer[s] authorised
by law to exercise judicial power” within the meaning of Article 5
§ 3 of the Convention (see Assenov and Others v. Bulgaria, cited
above, Nikolova v. Bulgaria, cited above, and Shishkov v.
Bulgaria, no. 38822/97, ECHR 2003-I (extracts).
79. The present case also concerns detention pending trial before
1 January 2000. Upon his arrest the applicant was 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
(see paragraphs 10 and 48 above). The Court refers to its analysis of the
relevant domestic law contained in its Nikolova judgment (see
paragraphs 28, 29 and 45-53 of that judgment).
80. It follows that there has been a violation of the applicant's
right to be brought before a judge or other officer authorised by law to
exercise judicial power within the meaning of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
81. The applicant complained that his lawyer had been refused
access to the case file and on one occasion had not been allowed to represent
him. He further maintained that the courts had examined his appeals against
detention with substantial delays and that the District Court's review
of the lawfulness of his detention had been purely formal. Article 5 §
4 of the Convention provides:
“Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall
be decided speedily by a court and his release ordered if the detention
is not lawful.”
82. The Court observes that at the relevant time it was the
Plovdiv District Court's prevailing practice to refuse access to case files
in appeals against pre-trial detention (see paragraphs 34-36 above). In
the case of Shishkov v. Bulgaria, cited above, § 77-81, the Court
found a violation of Article 5 § 4 on account of that practice.
83. The Government submitted that the applicant's lawyer had
been regularly informed by the investigator about all procedural steps
and had had full knowledge of the relevant material. The applicant replied
that he had been refused access to the case file and that as a result the
material pertaining to the investigation carried out between 27 December
1997 and 5 January 1998 had remained inaccessible despite the fact
that it contained relevant information about the existence of a reasonable
suspicion against the applicant.
84. A court examining an appeal against detention must provide
guarantees of a judicial procedure. The proceedings must be adversarial
and must always ensure “equality of arms” between the parties, the prosecutor
and the detained person. Equality of arms is not ensured if counsel is
denied access to those documents in the investigation file which are essential
in order effectively to challenge the lawfulness, in the sense of the Convention,
of his client's detention (see, among other authorities, Lamy v. Belgium,
judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29, Nikolova v. Bulgaria, cited
above, § 58, and Garcia Alva v. Germany, no. 23541/94, §§
39-43, 13 February 2001, unreported).
85. In the present case, on 19 and 21 January and 21 May 1998
the requests of the applicant's lawyer to consult the case file were refused
(see paragraphs 14-17, 25 and 26 above). The applicant's lawyer was thus
unable to study any of the documents that were essential for determining
the lawfulness of his client's detention (see paragraph 11 above). At the
same time the prosecutor, who supervised the investigation, had 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
of the Convention.
86. The Court also notes 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 to the judge a written authorisation
form signed by the applicant in the courtroom, in the judge's presence
(see paragraphs 19 and 20 above). The alleged defect in that document –
that the case number had not been indicated thereon – was of such a minor
nature that it could not possibly justify, under the relevant domestic
law (see paragraph 56 above) and the principles underlying Article 5
of the Convention, a decision to deprive the applicant of the benefit of
legal representation. In particular, the judge could have asked the applicant
whether or not the authorisation form concerned the case under examination.
87. The Court finds, therefore, that there has been a violation
of Article 5 § 4 of the Convention in that the applicant's lawyer
was refused access to the case file on 19 and 21 January and 21 May 1998
and was prevented from representing him on 23 January 1998.
88. In view of this finding the Court does not consider it necessary
to examine whether there have been further violations of Article 5 § 4
of the Convention in the same proceedings.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
89. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or
the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court shall,
if necessary, afford just satisfaction to the injured party.”
A. Damage
90. The applicant claimed EUR 7,000 in non-pecuniary damages
for the violations of his rights under Articles 3 and 5 §§ 3 and 4 of the
Convention. The Government stated that the claim was excessive.
91. The Court considers that the applicant has undoubtedly suffered
non?pecuniary damage as a result of his detention for approximately six
months in conditions which were inhuman and degrading and, also, as a consequence
of the violation of his rights under Article 5 § 4 of the Convention. Having
regard to the specific circumstances of the present case and deciding on
an equitable basis, the Court awards EUR 2,000 under this head, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
92. The applicant claimed EUR 3,850 for 77 hours of legal work
in the domestic proceedings and the proceedings before the Court at the
hourly rate of EUR 50. In addition, he claimed EUR 511 for the translation
of 71 pages and for postal and overhead expenses. He submitted a legal
fees agreement between him and his lawyer, a time sheet and postal receipts.
The applicant requested that the costs and expenses incurred should be
paid directly to his lawyer, Mr M. Ekimdjiev.
93. The Government stated that the legal work claimed to have
been done would normally require half of the time allegedly spent on it
by the applicant's lawyer. Also, the claim for translation costs was not
supported by documents.
94. The Court considers that the number of hours allegedly spent
by the applicant's lawyer on the case is excessive. A reduction is also
appropriate on account of the fact that some of the initial complaints
were declared inadmissible (see paragraphs 5 and 6 above). The claim in
respect of translation costs must be rejected as it has not been supported
by copies of relevant documents.
95. Having regard to the above and taking into account EUR 635
paid in legal aid from the Council of Europe, the Court awards EUR 1,500
in respect of costs and expenses, plus any tax that may be chargeable on
that amount.
C. Default interest
96. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article
3 of the Convention;
2. Holds that there has been a violation of Article 5
§ 3 of the Convention;
3. Holds that there has been a violation of Article 5
§ 4 of the Convention;
4. Holds
(a) that the respondent State is to pay to the applicant, within
three months from the date on which the judgment becomes final according
to Article 44 § 2 of the Convention, the following amounts, to be converted
into Bulgarian levs at the rate applicable on the date of settlement :
(i) EUR 2,000 (two thousand euros) in respect of non-pecuniary
damage, payable to the applicant himself;
(ii) EUR 1,500 (one thousand and five hundred euros) in respect
of costs and expenses, payable into the bank account of the applicant's
lawyer in Bulgaria;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2005, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Soren Nielsen
Christos Rozakis
Registrar
President
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