(Application no. 62544/00)
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant
B. The applicant's detention and his appeals against it
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Grounds for detention
B. Scope of judicial control on pre-trial detention
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
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 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.
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.
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).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen