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FIFTH SECTION

CASE OF PETAR VASILEV v. BULGARIA

(Application no. 62544/00)

JUDGMENT

STRASBOURG

21 December 2006

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 Petar Vasilev v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,

and Mrs C. Westerdiek, Section Registrar,

Having deliberated in private on 27 November 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 62544/00) 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 a Bulgarian national, Mr Petar Hristov Vasilev who was born in 1967 and lives in Varna (“the applicant”), on 8 June 2000.

The applicant was represented by Ms E. Dimitrova, a lawyer practising in Varna.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.

On 9 June 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the applicant's complaints concerning (1) the scope and nature of the judicial control of lawfulness performed by the domestic courts in the appeals' proceedings dating from December 1999 onwards; (2) the speediness of the domestic decisions in response to the applicant's appeals of 1 December 1999 and 2 May 2000; (3) the right of participation of the applicant in the court hearings in response to his appeals of 1 December 1999 and 2 May 2000; and, (4) the right to have the appeal of October 2000 examined by a court. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The criminal proceedings against the applicant

On 18 March 1999 a truck containing kitchen appliances was stolen while it was parked in a residential neighbourhood. Several hours later, acting on a tip-off, the police apprehended the applicant, who gave flight, and an accomplice while they were unloading the kitchen appliances from the stolen truck.

On 19 March 1999 the applicant was charged, inter alia, with grand larceny, which constituted a serious intentional offence. The charges against him were amended on 14 and 29 April 1999.

The preliminary investigation was concluded on 30 April 1999.

On 7 July 1999 the Varna Regional Prosecutor's Office filed an indictment against the applicant with the Varna Regional Court. The applicant was charged that in collusion with other persons, his co-accused and an unidentified third individual who escaped arrest, attempted to commit grand larceny of the kitchen appliances and to steal the truck.

The Varna Regional Court started hearing the case on 9 February 2000.

In a judgment of 28 November 2000 the applicant was found guilty by the Varna Regional Court of larceny of significant value (Article 195 § 2 of the Criminal Code) in respect of the kitchen appliances. The charges of grand larceny, theft of the truck and collusion were dismissed as unproven. The applicant was sentenced to five years' imprisonment and a previous suspended sentence of two years' imprisonment was also enforced. The time spent by the applicant in pre-trial detention was deducted from the sentence to be served. On an unspecified date the applicant appealed against the judgment.

In a judgment of 28 August 2001 the Varna Court of Appeals upheld the lower court's judgment and found that the sentence imposed on the applicant was just and fair, considering the offence for which he had been found guilty. On an unspecified date the applicant filed a cassation appeal against the judgment.

In a final judgment of 8 April 2002 the Supreme Court of Cassation upheld the lower court's judgment.

B. The applicant's detention and his appeals against it

The applicant was arrested on 18 March 1999 on suspicion of having committed grand larceny.

When he was charged with the offence on 19 March 1999 the applicant was detained on remand under an order issue by an investigator and confirmed by the Prosecutor's Office. The reason given for detaining the applicant was that he had committed the offence soon after having been released on bail on 1 March 1999 in the context of a preliminary investigation concerning a charge of extortion. Those proceedings were subsequently terminated on 18 November 1999 and the imposed bail was lifted.

When the charges against the applicant were amended by an investigator on 14 April 1999 no specific grounds were given for continuing his detention.

On an unspecified date the applicant filed his first appeal against his detention, which the Varna Regional Court examined at a hearing on 26 April 1999. The court dismissed it as it found that the applicant's detention was mandatory insofar as he was charged with a serious intentional offence and also that there was a risk that he might abscond or re-offend given his past criminal record, the existence of a suspended sentence against him which would be enforced if he was found guilty in these proceedings and the fact that he had re-offended soon having after been released on bail in the context of the preliminary investigation for extortion.

When the charges against the applicant were amended by an investigator on 29 April 1999 no specific grounds were given for continuing his detention.

The applicant's next appeal, dated 19 July 1999 and followed up by a second request of 3 September 1999, was dismissed by a decision of the Varna Regional Court on 24 September 1999, which was upheld on 11 October 1999 by the Varna Court of Appeals. The courts found that the applicant's detention was mandatory as he was charged with a serious intentional offence, that he had re-offended soon after being released on bail in the context of the second criminal proceedings and that there was a risk that he might abscond or re-offend.

In another appeal, dated 1 and 10 December 1999, the applicant claimed that there was insufficient evidence that he was guilty, that there was a change in the circumstances regarding his detention because his health had deteriorated and his family was having grave financial difficulties without him. By decision of 15 December 1999 the Varna Regional Court, in camera, dismissed his appeal, which was later upheld by the Varna Court of Appeals on 27 December 1999. The courts found that there were no new circumstances requiring a reassessment of the need to continue the applicant's detention, because he had failed to substantiate his assertions regarding his deteriorating health and the dire financial condition of his family. The courts also noted that there was another preliminary investigation pending against him.

At a hearing on 6 March 2000 before the Varna Regional Court the applicant's counsel once again appealed against his detention and claimed that his family's situation had worsened and that his health was continuing to deteriorate. The court dismissed the appeal on the same day, which upon further appeal was upheld by the Varna Court of Appeals on 20 March 2000. The courts considered that the applicant's assertions did not introduce any new facts or circumstances warranting a reassessment of the grounds of his detention. In addition, they considered that the applicant's detention was mandatory as he was charged with a serious intentional offence, that in such cases there was a statutory presumption that he might abscond or re-offend and that the applicant had failed to present sufficient evidence to the contrary.

In his next appeal, dated 26 April 2000 but filed on 2 May 2000, the applicant claimed that the courts had previously failed to examine specific evidence that he might abscond or re-offend in order to justify his continued detention. He claimed that they had simply relied on the nature of the offence with which he was charged with and had considered that detention was mandatory in such cases. The Varna Regional Court did not immediately examine the applicant's appeal, so on 29 May 2000 the applicant petitioned the President of the Varna Regional Court to remove the presiding judge in his case, because she was allegedly delaying the proceedings and had dismissed his appeals against his detention without citing specific evidence in support of her decisions.

Both requests of the applicant were examined and dismissed by the trial court, in camera, on 30 May 2000. The Varna Regional Court considered that the applicant had once again failed to present any new evidence or to indicate new circumstances warranting a reassessment of the grounds for his detention. At a hearing on 15 June 2000 the applicant's counsel reiterated his appeal against his detention citing the previous grounds for his request. The Varna Regional Court dismissed the appeal on the same day as it considered that the applicant's assertions did not constitute new facts warranting a reassessment of the grounds for his detention. The applicant appealed against both decisions on 16 June 2000, but on 26 June 2000 the Varna Court of Appeals upheld the decisions of the lower court on similar grounds.

On 23 October 2000 the applicant filed his last appeal against his detention. He claimed that the length of the detention itself, which at that time was over nineteen months, was in contravention with the aims and purposes of the measure to detain a defendant on remand. He claimed that there was no longer evidence that he might abscond, re-offend or hinder the investigation and objected to the courts' reliance on the seriousness of the offence as the primary ground for refusing his appeals against his detention. The Varna Regional Court ruled on this appeal after having delivered its judgment at the hearing on 28 November 2000. According to the minutes of the hearing, it confirmed the applicant's detention on remand on the basis of the gravity of the perpetrated offence, the applicant's conduct and the severity of the imposed sentence.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Grounds for detention

The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II, Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001 and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).

As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006).

B. Scope of judicial control on pre-trial detention

On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).

In June 2002, interpreting the amended provisions on pre-trial detention, the Supreme Court of Cassation stated that when examining an appeal against pre-trial detention the courts' task was not only to verify whether the initial decision on remand in custody had been lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including the amount of the recognisance as the case may be (TR 1 02 Supreme Court of Cassation).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

The applicant complained under Article 5 § 4 of the Convention (1) that the courts failed to examine all aspects relevant to the lawfulness, within the meaning of the Convention, of his deprivation of liberty, (2) that he was not afforded the right to a public hearing in response to all of his appeals, (3) that some of them were not decided “speedily”, and (4) that his appeal of 23 October 2000 was not ruled on by the courts.

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.”

The Government contested the applicant's arguments and claimed that the authorities afforded him with an effective procedure through which he could effectively challenge the lawfulness of his detention. They considered that the domestic courts had adequately and thoroughly examined all aspects of the lawfulness of the applicant's detention and had done so despite of the existence during part of the period in question of a requirement for mandatory detention in cases involving a serious intentional offence. The Government referred to the reasoning of the domestic courts in dismissing the applicant's appeals against his detention and that they found his detention to be warranted insofar as there was a risk that he might abscond or re-offend given his past criminal record, the existence of a suspended sentence against him and the fact that he had re-offended soon after having been released on bail in another set of proceedings. In addition, they referred to the possibility utilised on four occasions by the applicant to appeal further to the Varna Court of Appeals which also examined the grounds of his appeals and dismissed them. The Government also noted that the applicant had failed in his appeal of 6 March 2000 to present evidence that there was no danger that he might abscond or re-offend.

The Government consented that not all of the applicant's appeals were examined at a public hearing. However, they argued that over the given period eight appeals were filed by the applicant against his detention, which were examined by the domestic courts. Some of them were dismissed in camera while others at a public hearing, which they argued to have been in compliance with the applicable legislation at the relevant time. Moreover they noted that some of the appeals were examined before the changes to the legal regime of detention of 1 January 2000 and some immediately afterwards.

Lastly, the Government stated that the applicant's appeals were decided speedily and that his appeal of 23 October 2000 was dismissed at the public hearing of the Varna Regional Court on 28 November 2000.

The applicant reiterated his complaints and claimed that the authorities failed to provide him with a procedure through which he could effectively challenge the lawfulness of his detention. He also claimed that the other preliminary investigations against him, the existence of which the authorities had relied upon in their decisions to maintain his detention, had in the meantime been terminated and that the courts had not made the necessary effort to check whether their status had changed and simply reiterated their previously used arguments to dismiss his appeals. In addition, irrespective of whether there had been other preliminary investigations pending against him, at the time of his detention in March 1999 he had had a clean criminal record which should have been taken into account by the authorities. Separately, he claimed that the courts failed to seriously consider his allegations of a notable deterioration of his health while in detention and should have ordered that specialised, objective examinations be conducted in order to assess his claims. In any event, the applicant argued that in response to his appeals the domestic courts had failed to perform objective and thorough analyses and to consider his specific situation, condition and circumstances. The applicant also challenged the need, as claimed by the Government, for him to have had to provide the courts with evidence in support of his appeals so as to convince them of the lack of justification of his detention. Moreover, he noted that the existence of a defective legal regime of detention prior to 1 January 2000 and his attempts to utilise it cannot in any way be an argument to his detriment.

In respect of the lack of public hearings in response to some of his appeals, the applicant noted that the legal regime of detention under the CCP, both before and after 1 January 2000, required such appeals to be heard in open court and in the presence of the detained, a requirement with which the domestic courts had not always complied with.

Lastly, the applicant sustained his claim that some of his appeals were not decided speedily and that these delays were not caused by him.

A. Admissibility

The Court notes that on 9 June 2005 it declared inadmissible the applicant's complaints relating to the appeals' proceedings prior to December 1999.

The Court further notes that the applicant's complaints in relation to the period following the abovementioned date are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

The Court reiterates that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the lawfulness, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements set out in domestic law, but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Nikolova, cited above, § 58).

Additionally, 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. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 VIII, p. 3302, § 162 and Nikolova, cited above, § 58).

Lastly, Article 5 § 4 of the Convention also guarantees the right to a speedy judicial decision concerning the lawfulness of detention (see Rutten v. the Netherlands, no. 32605/96, § 52, 24 July 2001, unreported).

In respect of the applicant's complaint regarding the limited scope and nature of the judicial control of lawfulness, the Court notes at the outset that this complaint is very similar to those in previous cases against Bulgaria where violations were found (see Nikolova, §§ 54 66 and Ilijkov, §§ 88 106, both cited above).

Likewise, the Court finds that the domestic courts in the present case, when examining the applicant's appeals against his detention, relied on the statutory provisions requiring mandatory detention for serious intentional offences, the Supreme Court's practice which excluded any examination of the question whether there was a “reasonable suspicion” against the detainee and of facts concerning the likelihood of flight or re-offending. Under that practice, a person charged with a “serious intentional offence” was detained on remand unless he or she demonstrated beyond doubt, the burden of proof being borne by him or her, that there did not exist even a hypothetical danger of absconding, re-offending or obstructing justice. The presumption that such danger existed could be overturned only in exceptional circumstances, such as where the detained person was immobilised by illness (see paragraph 24 above and the references quoted therein).

In addition, the Court notes that the domestic courts, citing lack of new circumstances, effectively refused to examine in substance a number of the applicant's appeals simply because of their similarity with some of his previous appeals (see paragraphs 19, 20 and 22 above). Thus, they failed to take into account newly raised arguments relating to his health and family situation. Moreover, they failed to consider that the time elapsed and the stage of the proceedings were separate factors unto themselves which reflect upon and might negate the need for the applicant's continued detention.

The domestic courts in the present case also appear to have misinterpreted the amendments of the CCP of 1 January 2000 and to have continued to apply the previously existing defective approach under which the applicant had to demonstrate beyond doubt that there did not exist even a hypothetical danger of him or her absconding, re-offending or obstructing justice.

Considering the above, the Court finds that the applicant was denied the guarantees provided for in Article 5 § 4 of the Convention on account of the limited scope, or lack, of judicial review of the lawfulness of his detention on remand after December 1999. Thus, there has been a violation of the said provision in that respect.

In view of this finding, the Court does not deem it necessary to inquire whether these defective judicial reviews were provided speedily nor whether all of them resulted in a final judicial decision (see, mutatis mutandis, Nikolova, § 65, and Ilijkov, § 106, both cited above).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

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

At the time of submitting his application the applicant requested to be awarded damages for the alleged violations of the Convention in an amount deemed appropriate by the Court. Following communication of part of his complaints to the respondent Government the applicant did not submit a comprehensive claim for just satisfaction together with his observations in reply. He simply claimed 40,000 euros (EUR) as compensation for the pecuniary and non pecuniary damage arising out of the violation of Article 5 § 4 of the Convention. The Government did not comment.

The Court notes that the applicant failed to substantiate his claim for just satisfaction in the above stated amount. However, having regard to all the circumstances of the case and to its case law in similar cases (see, mutatis mutandis, Tanko Todorov v. Bulgaria, no. 51562/99, § 60, 16 October 2006 and Spasov v. Bulgaria, no. 51796/99, § 69, 23 October 2006), and deciding on an equitable basis, the Court awards the applicant EUR 800 in respect of non-pecuniary damage, plus any tax that may chargeable on that amount.

B. Costs and expenses

The applicant also claimed all the incurred costs and expenses but failed to indicate the size of his claim. The Government did not comment.

The Court reiterates that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents and within the time-limit fixed for the submission of the applicant's observations on the merits, “failing which the Chamber may reject the claim in whole or in part”. In the instant case, it observes that the applicant failed to present a legal fees agreement with his representative or an approved timesheet of the legal work performed before the Court. In addition, he did not present any invoices or receipts for any other costs. In view of the applicant's failure to comply with the aforesaid requirement, the Court makes no award for costs and expenses.

C. Default interest

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

Declares the remainder of the application admissible;

Holds that there has been a violation of Article 5 § 4 of the Convention on account of the limited scope, or lack, of judicial review of the lawfulness of the applicant's detention on remand after December 1999;

Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage, to be converted into Bulgarian levs at the rate applicable on the date of settlement, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President