(Application no. 56796/00)
26 October 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 Danov v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 2 October 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 house arrest
1. The applicant's detention
2. The applicant's house arrest
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention on remand
1. Before 1 January 2000
2. After 1 January 2000
“(1) Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment..., where the material in the case discloses a real danger that the accused person may abscond or commit an offence.
(2) In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case:
1. in cases of special recidivism or repetition;
2. where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non-suspended sentence of not less than one year imprisonment;
3. where the charges concern an offence punishable by not less than ten years' imprisonment or a heavier punishment.
(3) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence.”
B. House arrest
40. Under Article 146 of the CCP, a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecuted offence. Apart from pre trial detention, one such measure is house arrest.
“House arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities.”
In its interpretative decision no. 10/1992 (реш. № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обн., ДВ брой 63 от 4 август 1992 г.) the Constitutional Court held as follows:
“... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].”
C. The State Responsibility for Damage Act
The relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76 80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004).
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
In particular, the applicant complained under Article 5 § 1 of the Convention that he was detained unlawfully on 5 November 1999, because there was a lack of reliable evidence that he would abscond. He also maintained that his detention and house arrest were unjustified.
The applicant complained under Article 5 § 2 of the Convention that he was not informed promptly of the reasons for his arrest in that he was not presented with the intelligence data on which the authorities relied in ordering his detention.
The applicant complained under Article 5 § 3 of the Convention that his detention was ordered by the Prosecutor's Office.
Finally, the applicant complained that the appeal proceedings concerning his deprivation of liberty were unfair. He submitted that the courts based their decisions on facts which were inadmissible as evidence under domestic rules of procedure, notably the intelligence data obtained by the police, that he was never presented with that data and that he was denied therefore the opportunity to examine and challenge the assertions made against him. Separately, he contended that the courts were biased.
The relevant part of Article 5 of the Convention provides:
“1. 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:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. 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 and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. 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.”
1. Exhaustion of domestic remedies
2. Compliance with the six-month time-limit under Article 35 § 1 of the Convention
However, in respect of the applicant's complaint that his detention was ordered by the Prosecutor's Office and that he was allegedly not brought promptly before a judge, the Court finds that the continuing situation ended at the latest on 22 November 1999 when the applicant appeared before a judge (see paragraph 21 above). Thus, the time-limit for submitting his complaints to the Court expired six months after the aforementioned date (see Al Akidi v. Bulgaria (dec.), no. 35825/97, 19 September 2000, and Hristov v. Bulgaria (dec.), no. 35436/97, 19 September 2000).
In respect of the remainder of the applicant's complaints, the Court finds that the continuing situation ended with the amendment of the relevant provisions of the CCP effective 1 January 2000, which preceded the transformation of the applicant's detention into house arrest on 13 March 2000. The fact that the form of the applicant's deprivation of liberty mutated from pre-trial detention to house arrest – which also falls within the scope of Article 5 (see Mancini v. Italy, no. 44955/98, § 17, ECHR 2001 IX, Vachev v. Bulgaria, no. 42987/98, §§ 64 and 70, ECHR 2004 VIII (extracts), and Nikolova v. Bulgaria (No. 2), no. 40896/98, §§ 60 and 74, 30 September 2004) – appears to be of no relevance, as it did not put an end to the alleged violations of Article 5 § 3 concerning the justification of the applicant's deprivation of liberty and of Article 5 § 4 concerning the availability of a judicial procedure satisfying the requirements for a full fledged judicial review thereof (see, mutatis mutandis, Pekov v. Bulgaria, no. 50358/99, § 60, 30 March 2006). In any event, this does not preclude the applicant from submitting his complaints to the Court while the continuing situation persists (see Ječius, cited above, § 44).
The Government's objection must therefore be dismissed.
3. Complaint under Article 5 § 1 of the Convention regarding the lawfulness of the applicant's detention
4. Complaint under Article 5 § 2 of the Convention that the applicant was not informed promptly of the reasons for his arrest
5. Complaints under Article 5 §§ 3 and 4 of the Convention
1. Complaint under Article 5 § 3 of the Convention that the applicant's detention was ordered by the Prosecutor's Office
2. Complaint that the applicant's deprivation of liberty was unjustified
3. Complaints in respect of the fairness of the proceedings in response to the applicant's appeals against his detention
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 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 4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros) in respect of costs and expenses;
(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;
Done in English, and notified in writing on 26 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen