 |
CASE OF STOICHKOV v. BULGARIA
(Application no. 9808/02)
JUDGMENT
STRASBOURG
24 March 2005
FINAL
24/06/2005
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 Stoichkov v. Bulgaria,
The European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajic,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 3 March 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 9808/02) against
the Republic of Bulgaria lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by Mr Emil Georgiev Stoichkov, a Bulgarian national
who was born in 1958 and is presently detained in the Bobov Dol prison
(“the applicant”), on 23 October 2000.
2. The applicant was represented before the Court by Mr M. Ekimdjiev
and Ms K. Boncheva, lawyers practicing in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agents, Ms M. Dimova
and Ms M. Kotzeva, of the Ministry of Justice.
3. The applicant alleged, in particular, that his imprisonment
in February 2000 had been unlawful, that he could not take judicial proceedings
to obtain his release, and that he did not have an enforceable right to
compensation for the alleged violations of Article 5.
4. The application was allocated to the First Section of the
Court (Rule 52 § 1 of the Rules of Court). 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 Court decided to give priority
to the application (Rule 41).
5. By a decision of 9 September 2004 the Court (First Section)
declared the application partly admissible.
6. The applicant, but not the Government, filed observations
on the merits (Rule 59 § 1).
7. 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1958. He is presently detained
in the Bobov Dol prison.
9. During the 1975?88 period the applicant was convicted six
times of various offences: theft, car theft, deserting military duties
and possession of narcotic drugs.
10. In 1988 the applicant fled Bulgaria to Austria, travelling
through the former Yugoslavia and Italy on a Yugoslav passport. The applicant
submits that he left Bulgaria on 25 June 1988, but according to the Pernik
District Court's judgment of 30 October 1989 (see paragraph 15 below) he
committed a rape on 13 July 1988 and an attempted rape on 3 September 1988,
both offences taking place in Bulgaria. In 1990 the applicant settled in
the United States of America, where he lived until 1999.
A. The criminal proceedings against the applicant
11. On 13 September 1988 criminal proceedings were opened against
the applicant on charges of rape. There is no indication – and it has not
been argued by the Government – that the applicant was notified of the
proceedings.
12. On 16 November 1988 the proceedings were stayed, most probably
because the applicant was abroad. The proceedings resumed on 29 June 1989
and thereafter were conducted in the applicant's absence.
13. On 7 September 1989 the Pernik District Prosecutor's Office
submitted an indictment against the applicant to the Pernik District Court.
14. The court held a hearing on 30 October 1989. The applicant
was represented by an ex officio counsel, as mandated by Article
70 § 1 (6) of the Code of Criminal Procedure (“the CCP”).
15. In a judgment of 30 October 1989 the Pernik District Court
found the applicant guilty of rape and attempted rape and sentenced him
to ten years' imprisonment. The court found that on 13 July 1988 the applicant
had decoyed a Mrs D.K., who vaguely knew him, into following him into a
house, where he had threatened and beaten her into having sexual intercourse
with him. The court also found that on 3 September 1988 the applicant had
decoyed, in a similar manner, an acquaintance of his, a Ms S.V., had
likewise threatened and heavily beaten her and had cut her with a knife.
She had, however, managed to break out, thus avoiding sexual intercourse
with the applicant. The court based its findings of fact on the testimony
of Mrs D.K., Ms S.V., Mrs D.K.'s husband, two other witnesses, medical
reports and other written evidence, including two notes written by the
applicant himself.
16. No appeal having been lodged against the judgment, it came
into force on 14 November 1989.
17. On 16 January 1997 the Pernik District Court's case?file,
containing all documents relevant to the proceedings, was destroyed. Only
a copy of the judgment was kept in the archive of the court.
B. Actions undertaken by the authorities for the enforcement
of the applicant's sentence
18. On 21 November 1989 the Pernik District Prosecutor's Office
transmitted a copy of the judgment to the police with a view to the applicant's
apprehension for the purpose of enforcing his sentence. The letter accompanying
the judgment stated that the applicant was believed to be in Austria, but
his exact whereabouts were unknown.
19. On 25 April 1990 the Pernik District Prosecutor's Office
sent a copy of the judgment to the Chief Prosecutor's Office with a view
to the applicant's extradition from Austria. On 14 May 1990 the Chief Prosecutor's
Office wrote back to the Pernik District Prosecutor's Office, stating that
the legal cooperation treaty between Bulgaria and Austria contained no
provisions for assistance in criminal cases, and that therefore there was
no possibility to request the applicant's extradition from Austria.
20. On 22 September 1992 the Pernik District Prosecutor's Office
sent a second copy of the judgment to the police with instructions to enforce
it in the event the applicant returned to Bulgaria.
21. On 9 November 1995 the police issued a nation?wide search
warrant for the applicant. Interpol was also requested to establish the
applicant's whereabouts, apparently to no avail.
C. The applicant's arrest and ensuing requests for release
22. In November 1999 the applicant came back to Bulgaria, to
visit relatives.
23. On 18 February 2000 he went to a police station in Pernik
to renew his driver's licence. The same day he was arrested and taken to
a prison facility to start serving his sentence.
24. On 1 June 2000 the applicant filed with the Pernik District
Prosecutor's Office a request for release. He argued that the ten?year
limitation period for the enforcement of his sentence had expired in 1999.
25. On 9 June 2000 the Pernik District Prosecutor's Office rejected
the request, holding that the ten-year limitation period had been interrupted
on several occasions and had therefore not expired. The latest interruption
had taken place on 22 September 1992, which was less than ten years before
the day of the applicant's arrest.
26. The applicant appealed to the Pernik Regional Prosecutor's
Office.
27. On 11 August 2000 the Pernik Regional Prosecutor's Office
dismissed the appeal, holding that actions had been undertaken for the
enforcement of the applicant's sentence in 1992 and in 1995. Therefore,
the running of the limitation period had been interrupted and a new period
had started to run in 1995, due to expire on 9 November 2005.
28. The applicant appealed to Sofia Appellate Prosecutor's Office,
submitting that the actions which had been undertaken during the 1989?2000
period had not in fact had the effect of interrupting the running of the
limitation period.
29. On 27 October 2000 the Sofia Appellate Prosecutor's Office
dismissed the appeal, holding that the running of the limitation period
for the enforcement of a sentence was interrupted by every act of the competent
authorities aimed at its enforcement. These acts could be legal acts, or
organisational, or technical acts. During the 1989?2000 period the competent
authorities had undertaken a number of acts for enforcing the applicant's
sentence. In particular, a copy of the judgment had been sent to the police
in 1992 and a nation?wide search warrant had been issued for the applicant
in 1995. These had had the effect of interrupting the running of the limitation
period.
30. The applicant appealed to the Supreme Cassation Prosecutor's
Office.
31. On 20 December 2001 the Supreme Cassation Prosecutor's Office
dismissed the appeal, holding that the running of the limitation period
had been interrupted on several occasions and that therefore it had not
expired as of 18 February 2000.
D. The applicant's request for reopening of the criminal proceedings
against him
32. In the meantime, in February 2001, the applicant lodged
with the Supreme Court of Cassation a request for the reopening of the
1988?89 criminal proceedings against him on the basis of Article 362a of
the CCP. He also argued that the limitation period for the enforcement
of his sentence had expired and requested release on that basis.
33. The Supreme Court of Cassation rejected the request in a
judgment of 19 July 2001. It held that the request was partly inadmissible
and partly ill?founded. The applicant's request for reopening and rehearing
of the case was inadmissible, since that could not be done, the case?file
having been destroyed in 1997. Whether the case?file had been destroyed
in accordance with the relevant rules was immaterial, the fact remained
that as a result, a rehearing was impossible in practice. Insofar as the
applicant could be understood as requesting reopening, quashing of the
conviction and suspension or discontinuation of the proceedings, that request
was ill?founded, as it had not been established that at the time of the
trial there had existed grounds for suspension or discontinuation of the
proceedings. As to the applicant's request for the application of the statute
of limitations, it was inadmissible, as the Supreme Court of Cassation
had no primary jurisdiction in such matters.
E. The applicant's request for the restoration of the case?file
of the criminal proceedings against him
34. On 21 August 2002 the applicant requested the president
of the Pernik District Court to restore the case?file of the 1988?89 criminal
case against him. It seems that he has received no reply to his request.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Trial in absentia
35. The CCP allows trial in absentia in certain limited
circumstances. According to Article 268 § 3 of the Code, as in force at
the material time, it was possible when:
“[the trial in absentia] would not hamper the ascertaining of
the truth ... [and] the accused [was] outside the territory of Bulgaria,
if:
1. his residence [was] unknown; [or]
2. he [could not] be summoned because of other reasons; [or]
3. he ha[d] been duly summoned and ha[d] not indicated a good
cause for his failure to appear.”
Cases where the offence carried a term of imprisonment could be heard in
absentia “only if [the accused's] residence in the country [was] unknown
and [had] not been established after a thorough effort to locate [him]”
(Article 268 § 4 of the CCP).
When an accused is tried in absentia, he must be mandatorily represented
by an ex officio counsel (Article 70 § 1 (6) of the CCP).
36. Until 1 January 2000 Bulgarian law did not provide for reopening
of criminal cases heard in absentia. Thereafter such reopening
became possible in cases where the convicted person was unaware of the
criminal proceedings against him or her and submits a request for reopening
within one year after having learned of the conviction (new Article 362a
of the CCP). The request is examined by the Supreme Court of Cassation
(Article 363 of the CCP), which may quash the conviction and either
order rehearing of the case (Article 364 § 1 of the CCP) or discontinue
or suspend the criminal proceedings (Article 364 § 2 of the CCP).
B. Limitation periods for the enforcement of sentences
37. Article 82 §§ 1 and 2 of the Criminal Code (“the CC”), insofar
as relevant, provides that a judgment imposing a sentence from three to
ten years' imprisonment cannot be enforced more than ten years after its
entry into force. The running of this limitation period is interrupted
by every act effected by the competent authorities for the purpose of enforcing
the sentence (Article 82 § 3 of the CC). Such interruptions notwithstanding,
the sentence may no longer be enforced if fifteen years have elapsed since
the judgment's entry into force (Article 82 § 4 of the CC).
38. The CCP does not contain express provisions establishing
a procedure to be followed in cases where there is a dispute as to whether
a person has been detained in execution of a sentence after the expiry
of the limitation period for its enforcement. Article 373 § 1 (1) of the
CCP provides that the court which has delivered a judgment rules on all
difficulties or uncertainties relating to its interpretation. In general,
the authority responsible for supervising legality in the enforcement of
sentences of imprisonment is the competent prosecutor (Article 375 § 2
of the CCP, section 118(2) of the Judicial Power Act and section 4(1) of
the Execution of Sentences Act). In particular, the competent prosecutor
has to order the release of every imprisoned person whom he or she finds
deprived of liberty unlawfully (section 119(7)(1) of the Judicial Power
Act).
C. Time?limits for keeping case?files and restoration of destroyed
case?files
39. By section 91(4) of Regulation no. 28 of 1995 on the functions
of the registries of the district, regional, military and appellate courts
(„Íàðåäáà ¹ 28 çà ôóíêöèèòå íà ñëóæèòåëèòå â ïîìîùíèòå çâåíà è êàíöåëàðèèòå
íà ðàéîííèòå, îêðúæíèòå, âîåííèòå è àïåëàòèâíèòå ñúäèëèùà“), in force at
the material time and until 28 November 2004, criminal case?files where
the sentence had not been enforced were to be kept in the court's archive
for a period equal to the limitation period for the enforcement of the
sentence. The superseding regulations provide the same (see section 148(4)
of the Rules on Court Administration in the District, Regional, Military
and Appellate Courts)
40. Section 14 of the Regulation provided that if a case?file
was lost or destroyed prematurely, it could be restored by order of the
president of the respective court, acting ex officio or pursuant
to a request by a party. This was technically done by the administrative
secretary of the court, who gathered all documents relating to the case
which were kept by the court, by other bodies and by the parties to the
case. After all available materials were collected, the court held a public
hearing, to which the parties were summoned, and ruled on the restoration
of the case?file. The court's order was subject to appeal to a higher court.
The superseding regulations are broadly similar (see section 74 of the
Rules on Court Administration in the District, Regional, Military and Appellate
Courts).
D. The State Responsibility for Damage Act
41. Section 2 of the State Responsibility for Damage Act of
1988 („Çàêîí çà îòãîâîðíîñòòà íà äúðæàâàòà çà âðåäè, ïðè÷èíåíè íà ãðàæäàíè“),
which sets out causes of action for tort claims against the investigation
and prosecution authorities and the courts, provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the
organs of ... the investigation, the prosecution, the courts ... for unlawful:
1. pre?trial detention ..., if [the detention order] has been
set aside for lack of lawful grounds;
2. accusation of a crime, if the accused is acquitted or if
the criminal proceedings are discontinued because the crime was not committed
by the accused, because the act committed by the accused does not constitute
a crime, or because the criminal proceedings were instituted after the
expiry of the limitation period or despite an amnesty;
3. conviction of a crime ... if the convicted is [subsequently]
acquitted ...;
...
6. execution of a sentence above and beyond the specified period.”
42. The reported case?law under section 2 of the Act suggests
that the term “unlawful” refers to unlawfulness under domestic law (ðåø.
¹ 859/ 2001 ã. îò 10 ñåïòåìâðè 2001 ã. ã.ä. ¹ 2017/2000 ã. íà ÂÊÑ, ðåø.
¹ 978/2001 ã. îò 10 þëè 2001 ã. ïî ã.ä. ¹ 1036/2001 ã. íà ÂÊÑ).
43. Persons seeking redress for damage occasioned by decisions
of the investigating and prosecuting authorities or the courts in circumstances
falling within the scope of the Act have no claim under general tort law
as the Act is a lex specialis and excludes the application of
the general regime (section 8(1) of the Act; ðåø. ¹ 1370/1992 ã. îò 16
äåêåìâðè 1992 ã., ïî ã.ä. ¹ 1181/1992 ã. íà ÂÑ ²V ã.î.). The Government
have not referred to any successful claim under general tort law in connection
with unlawful deprivation of liberty.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
44. The applicant complained that his imprisonment in February
2000 had been unlawful and arbitrary.
45. The Court considers that the applicant's complaint falls
to be examined under Article 5 § 1 (a) of the Convention, which provides:
“Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent
court; ...”
A. The parties' arguments
46. The applicant submitted that, since the case?file of the
proceedings against him had been destroyed, it was impossible to verify
whether his conviction and the resulting deprivation of liberty had been
ordered by a competent court and had not been arbitrary. The destruction
of the case?file had been unlawful, because section 91(4) of Regulation
no. 28 provided that it should have been kept until the expiry of the limitation
period for the enforcement of his sentence. The judgment, which was the
only remaining document, was not enough to prove the regularity of his
conviction. On 21 August 2002 he had filed a request for the restoration
of the case?file with the president of the Pernik District Court, but had
received no reply.
47. The applicant also alleged that his conviction had been
political and had in reality been made because of his having fled the country
to immigrate to the United States of America. Finally, he submitted that
the limitation period for the enforcement of his sentence had expired in
1999.
48. The Government submitted that the applicant's contention
that his trial for and conviction of rape and attempted rape had been meant
as a repression for his having emigrated from Bulgaria was completely unsubstantiated.
Moreover, this contention sounded implausible in view of the applicant's
numerous previous convictions. On the contrary, the applicant had been
tried and convicted by a competent court and his detention in February
2000 had been effected for the purpose of enforcing his lawful sentence
of imprisonment.
49. As regards the applicant's averment that he had been detained
despite the expiry of the relevant limitation period, the Government pointed
out that this question had been examined by the prosecution authorities
of all levels, which had found that the running of that period had been
interrupted several times and that it had therefore not expired as of February
2000.
50. Concerning the applicant's allegation that his detention
was unlawful because the destruction in 1997 of the case?file of the criminal
case against him had made impossible the verification of the lawfulness
of his conviction, the Government argued that he could have requested the
restoration of the case?file in accordance with section 14 of Regulation
no. 28 on the functions of the registries of the district, regional,
military and appellate courts. On the other hand, the reasons of the Pernik
District Court, whose judgment had been kept in the archive of that court,
indicated that the victims of the rape and the attempted rape committed
by the applicant had known him and that there was no doubt that he had
in fact committed the offences of which he had been convicted.
B. The Court's assessment
51. It is the Convention organs' case?law that the requirement
of Article 5 § 1 (a) that a person be lawfully detained after “conviction
by a competent court” does not imply that the Court has to subject the
proceedings leading to that conviction to a comprehensive scrutiny and
verify whether they have fully complied with all the requirements of Article 6
of the Convention (see Drozd and Janousek v. France and Spain,
judgment of 26 June 1992, Series A no. 240, pp. 34?35, § 110, and Iribarne
Perez v. France, no. 16462/90, Commission decision of 19 January 1994,
Decisions and Reports 76, p. 18). However, the Court has also held that
if a “conviction” is the result of proceedings which were a “flagrant denial
of justice”, i.e. were “manifestly contrary to the provisions of Article
6 or the principles embodied therein”, the resulting deprivation of liberty
would not be justified under Article 5 § 1 (a)(see Drozd and Janousek,
cited above, ibid., and, more recently, Ilascu and Others v. Moldova
and Russia [GC], no. 48787/99, § 461, ECHR 2004?VII).
52. The Court notes that the applicant was detained in February
2000 in pursuance of his “conviction by a competent court” (see paragraphs
15?16 and 23 above). His detention therefore falls within the ambit of
Article 5 § 1 (a). There can be no question that the sentence
of imprisonment was lawful under Bulgarian law. Neither can it be said
that the applicant's detention is not in conformity with the purposes of
the deprivation of liberty permitted by Article 5 § 1 (a). Finally, there
is no indication that his conviction had no factual basis or was arbitrary.
53. However, if the 1988?89 criminal proceedings against the
applicant – which were conducted in absentia and the reopening
of which was refused in 2001 – are found to have been “manifestly contrary
to the provisions of Article 6 or the principles embodied therein”, that
will unavoidably lead to the conclusion that the applicant's ensuing deprivation
of liberty to serve the sentence imposed in these proceedings cannot be
considered justified under Article 5 § 1 (a).
54. The issue is therefore whether the requirement of Article
6 to ensure the right of the accused to be present during the proceedings
against him or her is so basic as to render proceedings conducted in
absentia and whose reopening has been refused a “flagrant denial of
justice”, i.e. “manifestly contrary to the provisions of Article 6 or the
principles embodied therein”.
55. In the case of Einhorn v. France ((dec.), no. 71555/01,
ECHR 2001?XI) the Court had an occasion to address the issue whether criminal
proceedings conducted in absentia represent a “denial of justice”.
In that case the United States of America were seeking the extradition
from France of a person convicted and sentenced to life imprisonment in
absentia. The Court held that “a denial of justice undoubtedly occurs
where a person convicted in absentia is unable subsequently to
obtain from a court which has heard him a fresh determination of the merits
of the charge, in respect of both law and fact, where it has not been unequivocally
established that he has waived his right to appear and to defend himself”
(see § 33 of the decision). This conclusion is in line with the established
case-law confirming that the right of an accused to participate in person
in the proceedings is a fundamental element of a fair trial (see Colozza
v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, §
27, F.C.B. v. Italy, judgment of 28 August 1991, Series A no.
208?B, p. 21, § 33, T. v. Italy, judgment of 12 October 1992,
Series A no. 245?C, p. 41, § 26, Yavuz v. Austria, no. 46549/99,
§ 45, 27 May 2004, and Novoselov v. Russia (dec.), no. 66460/01,
8 July 2004). It is of capital importance that a criminal defendant should
appear, both because of his or her right to a hearing and because of the
need to verify the accuracy of his or her statements and compare them with
those of the victim – whose interests need to be protected – and of the
witnesses (see Poitrimol v. France, judgment of 23 November
1993, Series A no. 277?A, p. 15, § 35, and Krombach v. France,
no. 29731/96, § 86, ECHR 2001?II). For these reasons the Court has consistently
held that when domestic law permits a trial to be held notwithstanding
the absence of a person “charged with a criminal offence” that person should,
once he or she becomes aware of the proceedings, be able to obtain from
a court which has heard him or her a fresh determination of the merits
of the charge (see Colozza, cited above, p. 15, § 29, Poitrimol,
cited above, pp. 13-14, § 31, Medenica v. Switzerland, no. 20491/92,
§ 54, ECHR 2001?VI, and Krombach, cited above, § 85). The only
situation where it is open to question whether this requirement applies
is when the accused has waived his or her right to appear and to defend
himself or herself, but at all events such a waiver must, if it is to be
effective for Convention purposes, be established in an unequivocal manner
and be attended by minimum safeguards commensurate to its importance (see Poitrimol,
cited above, ibid.).
56. It may thus be considered that the duty to guarantee the
right of a criminal defendant to be present in the courtroom – either during
the original proceedings or in a retrial after he or she emerges – ranks
as one of the essential requirements of Article 6 and is deeply entrenched
in that provision. Therefore, criminal proceedings which have been held in
absentia and whose reopening has been subsequently refused, without
any indication that the accused has waived his or her right to be present
during the trial, may fairly be described as “manifestly contrary to the
provisions of Article 6 or the principles embodied therein”.
57. In the instant case the applicant was convicted in absentia (see
paragraphs 11?12 and 15 above). There is no indication – and it has not
been argued by the respondent Government – that he has waived, either expressly
or tacitly, his right to appear and defend himself. Therefore, in order
for the proceedings leading to his conviction to not represent a “denial
of justice”, he should have had the opportunity to have them reopened and
the merits of the rape charges against him determined in his presence.
Since 1 January 2000 Bulgarian law expressly provides for such a possibility
(see paragraph 36 above). However, when the applicant requested reopening
on the basis of the new Article 362a of the CCP in February 2001 – approximately
one year after his arrest –, the Supreme Court of Cassation refused, essentially
on the ground that the case?file of the original proceedings had been destroyed
in 1997, which, in its view, rendered a rehearing impossible in practice
(see paragraph 33 above). In this connection, it is noteworthy that the
applicant subsequently requested the restoration of the case?file by the
Pernik District Court, but has apparently received no reply to his request
(see paragraph 34 above). The applicant was thus deprived of the possibility
to obtain from a court, which has heard him, a fresh determination of the
merits of the charges on which he was convicted.
58. The Court therefore considers that the criminal proceedings
against the applicant, coupled with the impossibility to obtain a fresh
determination of the charges against him from a court which had heard him,
were manifestly contrary to the principles embodied in Article 6. Therefore,
while his initial deprivation of liberty in February 2000 may be deemed
justified under Article 5 § 1 (a), having been effected for the purpose
of enforcing a lawful sentence, it ceased to be so after 19 July 2001,
when the Supreme Court of Cassation refused reopening of the proceedings.
This conclusion makes it unnecessary to determine whether the applicant
was imprisoned despite the expiry of the limitation period for the enforcement
of his sentence.
59. There has therefore been a violation of Article 5 § 1 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
60. The applicant complained that he could not take judicial
proceedings to obtain his release.
61. The Court considers that the applicant's complaint falls
to be examined under Article 5 § 4 of the Convention, which 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.”
62. The Government submitted that since the applicant's arrest
in February 2000 had been effected for the purpose of enforcing the sentence
of imprisonment against him, i.e. was “the lawful detention of a person
after conviction by a competent court”, Article 5 § 4 did not apply. In
the alternative, they argued that the applicant could have requested the
trial court which had imposed the sentence to rule on his objection that
the limitation period for its enforcement had expired on the basis of Article
373 § 1 (1) of the CCP.
63. The applicant submitted that Article 373 § 1 (1) of the
CCP dealt with the interpretation of the trial court's judgments and had
nothing to do with their enforcement. There existed no case?law of the
domestic courts to support the Government's averment that this provision
created a judicial avenue for the applicant to explore. Neither did the
doctrine provide any theoretical basis to ground the Government's contention.
On the other hand, Bulgarian law entrusted all issues relating to the enforcement
of sentences to the prosecutor's offices.
64. The Court notes that Article 5 § 4 would in principle be redundant
with respect to detention under Article 5 § 1 (a), since judicial control
of the deprivation of liberty has already been incorporated into the original
conviction and sentence (see De Wilde, Ooms and Versyp v. Belgium,
judgment of 18 June 1971 (merits), Series A no. 12, p. 40, § 76).
65. However, when new factual issues affecting the lawfulness
of a deprivation of liberty arise, Article 5 § 4 comes back into play.
For instance, in a series of cases against the United Kingdom concerning
indeterminate prison sentences, Article 5 § 4 was considered applicable
even after a conviction, because the legality of the detention depended
on factors which were not incorporated in the original conviction and sentence
(see Weeks v. the United Kingdom, judgment of 2 March 1987,
Series A no. 114, pp. 28?29, §§ 55?59, Thynne, Wilson and Gunnell
v. the United Kingdom, judgment of 25 October 1990, Series A no. 190?A,
pp. 25?30, §§ 65?78, Hussain v. the United Kingdom, judgment of
21 February 1996, Reports of Judgments and Decisions 1996?I, pp.
267?70, §§ 47?54, and V. v. the United Kingdom [GC], no. 24888/94,
§ 119, ECHR 1999?IX). Article 5 § 4 was likewise considered applicable
in the case of Van Droogenbroeck v. Belgium (judgment of
24 June 1982, Series A no. 50, pp. 23?27, §§ 44?49), in respect of
the Belgian system of placing recidivists and habitual offenders at the
Government's disposal.
66. In the instant case, the applicant was arrested more than
ten years after the entry into force of his sentence (see paragraphs 16
and 23 above). Bulgarian law contains a statute of limitations for the
enforcement of sentences, which in the applicant's case is ten years (see
paragraph 37 above). Thus, after the expiry of the limitation period imprisonment
is no longer possible, unless the running of the period has been interrupted.
The applicant's objection was met exactly with that argument (see paragraphs
25, 27, 29 and 31 above). There was, therefore, an issue of fact determinative
of the legality of his detention, which was independent of, and distinct
from, the subject?matter of his 1989 conviction and sentence. Accordingly,
the applicant should have been able to have it resolved by a court meeting
the requirements of Article 5 § 4. However, under Bulgarian law all issues
affecting the legality of execution of sentences of imprisonment are entrusted
to the competent prosecutor (see paragraph 38 above). There is no provision
expressly providing for judicial review of these issues (ibid.) and there
exists no general habeas corpus procedure applying to all kinds of deprivation
of liberty. The Government argued that the applicant could have relied
on Article 373 § 1 (1) of the CCP to obtain a judicial determination of
the legality of his imprisonment. They submitted that this provision empowered
the court which had delivered the sentence to review the legality of the
applicant's detention imposed allegedly in spite of the expiry of the limitation
period. However, the Court is not persuaded that this is indeed the case,
for the following reasons: (i) Article 373 § 1 (1) of the CCP deals with
the interpretation of the trial court's judgment if it is for some reason
unclear, not with issues affecting the subsequent legality of the deprivation
of liberty (see paragraph 38 above); (ii) the Government have not identified
and, indeed, there is, to the Court's knowledge, no reported case?law or
doctrine opinions supporting the Government's averment. The existence of
the remedy required by Article 5 § 4 must be sufficiently certain, not
only in theory but also in practice, failing which it will lack the accessibility
and effectiveness required for the purposes of that provision (see Vachev
v. Bulgaria, no. 42987/98, § 71, ECHR 2004?VIII (extracts)).
67. In conclusion, the Court holds that there has been a violation
of Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
68. The applicant complained under Article 5 § 5 of the Convention
that he did not have an enforceable right to compensation for the alleged
violations of the preceding paragraphs of Article 5.
69. Article 5 § 5 provides:
“Everyone who has been the victim of arrest or detention in contravention
of the provisions of this Article shall have an enforceable right to compensation.”
70. The applicant submitted that domestic law – in particular,
section 2 of the State Responsibility for Damage Act – provided for compensation
for deprivation of liberty only if such deprivation was found to be unlawful.
However, in the applicant's case there were no procedural means to establish
the unlawfulness of his detention. The general law of tort also required
unlawfulness of the impugned act. Seeing that the applicant's deprivation
of liberty was based on a conviction and sentence, the applicant could
not make a successful tort claim.
71. The Government did not comment on this complaint.
72. The Court reiterates that Article 5 § 5 is complied with where
it is possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Vachev,
cited above, § 78). The right to compensation set forth in paragraph 5
therefore presupposes that a violation of one of the preceding paragraphs
of Article 5 has been established, either by a domestic authority or by
the Court.
73. In this connection, the Court notes that in the present
case it found violations of paragraphs 1 and 4 of Article 5 (see paragraphs
59 and 67 above). It follows that Article 5 § 5 is applicable. The Court
must therefore establish whether or not Bulgarian law affords the applicant
an enforceable right to compensation for the breaches of Article 5 in his
case.
74. Since the applicant's deprivation of liberty is not in breach
of domestic law, he is not entitled to compensation under the State Responsibility
for Damage Act, because section 2 of that Act provides for compensation
only in cases where the detention is “unlawful”. Moreover, none of the
relevant subsections of section 2 even remotely relates to the applicant's
situation (detention for the enforcement of a sentence which has entered
into force)(see paragraphs 41 and 42 above). Finally, it does not seem
that he can successfully make a claim under general tort law, nor under
any other provision of domestic law (see paragraph 43 above).
75. The Court thus finds that Bulgarian law does not afford
the applicant an enforceable right to compensation, as required by Article
5 § 5 of the Convention. There has therefore been a violation of that provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
76. 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
77. Referring to some of the Court's judgments, the applicant
claimed 225,000 euros (EUR) as compensation for the non?pecuniary damage
stemming from the violation of Article 5 § 1 and EUR 45,000 as compensation
for the non?pecuniary damage stemming from the violation of Article 5 §
4. He also submitted that the conditions in prison were inhuman and that
the lack of a possibility to obtain compensation before the domestic courts
further intensified his suffering. Finally, the applicant averred that
the living standards in Bulgaria had considerably improved during the last
several years and argued that this fact should be taken into account by
the Court.
78. In addition, relying on the Court's judgment in the case
of Assanidze v. Georgia ([GC], no. 71503/01, ECHR 2004?II),
the applicant requested the Court to specify in the operative provisions
of its judgment that the respondent Government should secure his release
at the earliest possible date.
79. The Government submitted that the amount claimed by the
applicant was unfounded and exaggerated and was not in line with the Court's
practice in similar cases.
80. The Court reiterates that, in the context of the execution
of judgments in accordance with Article 46 of the Convention, a judgment
in which it finds a breach imposes on the respondent State a legal obligation
under that provision to put an end to the breach and to make reparation
for its consequences in such a way as to restore, as far as possible, the
situation existing before the breach. If, on the other hand, national law
does not allow – or allows only partial – reparation to be made for
the consequences of the breach, Article 41 empowers the Court to afford
the injured party such satisfaction as appears to it to be appropriate.
It follows, inter alia, that a judgment in which the Court finds
a violation of the Convention or its Protocols imposes on the respondent
State a legal obligation not just to pay those concerned the sums awarded
by way of just satisfaction, but also to choose, subject to supervision
by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in its domestic legal order to put an end to the
violation found by the Court and make all feasible reparation for its consequences
in such a way as to restore as far as possible the situation existing before
the breach (see Assanidze, § 198, and Ilascu and Others,
§ 487, both cited above).
81. The Court notes that the violation of Article 5 § 1 found
in the present case stems exclusively from the fact that the applicant
had been imprisoned as a result of a conviction pronounced after proceedings
which, having been conducted in absentia and not having been reopened,
were manifestly contrary to the principles embodied in Article 6 (see paragraph
58 above). In these circumstances, it would be appropriate to recall the
case?law according to which, when the Court finds that an applicant has
been convicted despite the existence of an infringement of his or her right
to take part in his or her trial, the most appropriate form of redress
would, in principle, be to reopen the proceedings in due course and retry
the person concerned in keeping with all the requirements of a fair trial
(see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004?IV).
It is not for the Court to speculate on the outcome of a trial which is
not, as in the present case, manifestly contrary to the principles embodied
in Article 6. Therefore, the case at hand does not call for the applicant's
unconditional release, unless the respondent Government fail to secure
the immediate reopening of the criminal proceedings against him and a retrial
in his presence.
82. As regards the applicant's claim for compensation for non?pecuniary
damage, the Court notes that the reopening of the proceedings against the
applicant cannot retroactively wipe out the fact that he has spent several
years in detention which is found to be in breach of Article 5 § 1. Held
in pursuance of a sentence delivered after proceedings which were conducted in
absentia, the reopening of which he was unable to obtain, and having
no possibility to obtain judicial review of the legality of his deprivation
of liberty or compensation therefor, the applicant has remained in a frustrating
position that he has been powerless to rectify. Consequently, having regard
to the nature of the violations found in the present case and ruling on
an equitable basis, the Court awards the applicant EUR 8,000.
B. Costs and expenses
83. The applicant claimed EUR 3,325 for 47.5 hours of legal
work at the hourly rate of EUR 70. The applicant submitted a fees' agreement
between him and his principal lawyer, Mr M. Ekimdjiev, and a time?sheet.
The applicant further claimed EUR 318 for translation costs, postage, photocopying
and other overhead expenses. He requested that the amounts awarded by the
Court under this head be paid directly to his principle lawyer, Mr M. Ekimdjiev.
84. The Government submitted that the amount claimed was excessive.
85. Having regard to all relevant factors and deducting EUR
853 received in legal aid from the Council of Europe, the Court awards
EUR 1,500 in respect of costs and expenses, payable into the bank
account of the applicant's lawyer, Mr M. Ekimdjiev, in Bulgaria.
C. Default interest
86. 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
5 § 1 of the Convention;
2. Holds that there has been a violation of Article
5 § 4 of the Convention;
3. Holds that there has been a violation of Article
5 § 5 of the Convention;
4. Holds
(a) that the respondent State is to pay 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 at the date of settlement:
(i) EUR 8,000 (eight thousand euros) in respect of non?pecuniary
damage;
(ii) EUR 1,500 (one thousand five hundred euros) in respect
of costs and expenses, payable into the bank account of the applicant's
lawyer, Mr M. Ekimdjiev, 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 24 March 2005, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Soren Nielsen
Christos Rozakis
Registrar
President
|
|
