European Court of Human Rights
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Cite as: [2007] ECHR 963
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos.
4473/02 and 34138/04
by ILIEV and OTHERS
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 6 November 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mr J.S. Phillips, Deputy Section Registrar,
Having regard to application no. 4473/02 lodged on 7 January 2002,
Having regard to application no. 34138/04 lodged on 10 September 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant under application no. 4473/02, Mr Krasimir Nikolov Iliev, is a Bulgarian national who was born in 1964 and lives in Varna (the “first applicant”). He is represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva, lawyers practising in Plovdiv.
The applicants under application no. 34138/04 are the lawyers of the first applicant, namely Mr Mihail Tiholov Ekimdjiev (the “second applicant”) and Ms Katina Vladimirova Boncheva (the “third applicant”) who are Bulgarian nationals, were born in 1964 and 1979 respectively and live in Plovdiv. They are represented before the Court by Mrs S. Stefanova, a lawyer practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The first set of criminal proceedings (case no. 879/92) against the first applicant
On 18 September 1995 the Varna District Court convicted the first applicant of falsification of documents and sentenced him to six years and seven months' imprisonment. The first applicant was not present during part or all of the proceedings but the court had appointed an ex officio counsel to defend him.
The judgment was not appealed and it became final on 2 October 1995.
The first applicant started serving his sentence on 7 October 1997.
On 26 February 2001 the first applicant submitted a request to the Supreme Court of Cassation to have these proceedings reopened on the ground that they had been conducted in his absence. On 14 July 2001 the Supreme Court of Cassation rejected the request as time barred because the first applicant had failed to file it within the statutory one-year deadline after having become aware of the judgment against him.
A similar request of an unspecified date to the Supreme Cassation Prosecutor's Office that the latter propose to reopen the first set of criminal proceedings was dismissed on 7 April 2003 as unsubstantiated.
2. The second set of criminal proceedings (case no. 251/99) against the first applicant
In a judgment of 30 March 2000 the Varna Regional Court convicted the first applicant of robbery, fraud and falsification of documents and sentenced him to a total of thirty-five years' imprisonment. The first applicant and the Prosecutor's Office appealed against the judgment on an unspecified date.
A hearing was conducted on 16 February 2001 before the Varna Court of Appeals.
In a judgment of 16 March 2001 the Varna Court of Appeals found partly in favour of the first applicant, amended the judgment of the Varna Regional Court of 30 March 2000 and reduced the sentence to a total of fifteen years' imprisonment. The court examined and dismissed in details the numerous arguments and objections of the first applicant in respect of the allegedly unfounded judgment of the Varna Regional Court, as well as his assertions that some witnesses needed to be re-examined and that additional evidence had to be obtained. In this regard, the Varna Court of Appeals found that the lower court had accurately and exhaustively examined and assessed the evidence before it and had reached proper conclusions as to the facts of the case. It did find however that the Varna Regional Court had improperly classified the committed offences as recidivism and, as a result, reduced the sentence. In reaching its decision the court relied on numerous witness statements, medical and technical expert reports as well as other documentary evidence. The first applicant appealed against the judgment on an unspecified date.
In a final judgment of 31 January 2002 the Supreme Court of Cassation upheld the lower court's judgments as it found no evidence of procedural or other violations in the proceedings. It examined in detail and dismissed the first applicant's arguments that an ex officio counsel had acted against him in the proceedings as it found him to have performed in the best interest of his client and according to his instructions. It also dismissed the claims of the first applicant that he had been drugged into confessing to the offences.
3. The third set of criminal proceedings (case no. 284/99) against the first applicant
In the third set of criminal proceedings the first applicant was brought to trial for the offences of robbery and fraud.
On 4 April 2000 a hearing before the Varna Regional Court was postponed because the first applicant's lawyer was unable to attend. He retained new counsel for the next hearing on 9 May 2000 and the court examined witnesses and obtained evidence from medical and technical experts.
On 28 September 2000 the first applicant was informed that he should indicate the witnesses he wanted to be questioned at the next hearing and also whether he would appear with his own attorney, regarding whom he had expressed doubts, or if he would prefer to have an ex officio counsel provided to him.
The hearing on 27 October 2000 was postponed because the first applicant lacked legal counsel. He was warned by the court to organise his defence and avoid any further delays to the proceedings as a result of constantly changing lawyers.
The first applicant participated without legal counsel at the last hearing on 8 February 2001 but informed the court that he had retained one who would soon make certain filing on his behalf. The court examined a witness and declared the case ready for decision.
In a judgment of 8 February 2001 the Varna Regional Court convicted the first applicant of robbery and fraud and sentenced him to eight years' imprisonment. The first applicant and the Prosecutor's Office appealed against the judgment on an unspecified date.
A hearing was conducted on 13 July 2001 at which the Varna Court of Appeals appointed an ex officio counsel to represent the first applicant and allowed them to confer and agree on a defence strategy. They then presented their arguments to the court that the conviction was predominantly based on an allegedly tainted confession and that the first applicant had been drugged by the investigating authorities with the aim of extracting information.
In a judgment of 26 July 2001 the Varna Court of Appeals found against the first applicant, amended the judgment of the Varna Regional Court of 2 February 2001 and imposed a harsher sentence of a total of fourteen years' imprisonment. The court examined and dismissed in detail the numerous arguments and objections of the first applicant in respect of the allegedly unfounded judgment of the Varna Regional Court. The Varna Court of Appeals found that the lower court had accurately and exhaustively examined and assessed the evidence before it and had reached accurate conclusions as to the facts of the case. In particular, it examined and found to be completely unsubstantiated the first applicant's claims that he had been maltreated and drugged by the investigating authorities into confessing to the offences and that his conviction was based predominantly on that confession. In this regard, the court noted that the first applicant had always had a lawyer present when he had given statements to the investigating authorities and that his confession was simply one element in a substantial volume of statements and data supporting his conviction. It also dismissed as unsubstantiated the first applicant's claims that he had been denied the right to defend himself and noted that he had been defended by legal counsel though he had changed lawyers many times and had protracted the proceedings as a result. In reaching its decision the court relied on numerous witness statements, medical and technical expert reports as well as other documentary evidence. The first applicant appealed against the judgment on an unspecified date.
In a final judgment of 4 February 2002 the Supreme Court of Cassation found partly in favour of the first applicant and reduced his sentence to a total of eight years' imprisonment as it considered the previously imposed sentence as being too harsh. The court found no evidence of procedural or other violations in the proceedings and once again examined in detail and dismissed all the first applicant's arguments, including in respect of the alleged violation of his right to defend himself and the manner in which he had given his confessions to the authorities.
4. The periods of detention of the first applicant
The various periods of detention of the first applicant have not been clearly differentiated or described in a chronological manner and remain unclear and somewhat contradictory.
According to the first applicant, he was initially arrested on 20 December 1996, was held in pre-trial detention at the Specialised Investigation Service in Sofia and allegedly escaped on 7 July 1997 during a visit to the hospital. He was rearrested on 31 September 1998 and placed in twenty-four hours' police detention.
On 1 October 1998 a prosecutor ordered that the first applicant be placed in pre-trial detention.
The first applicant was then held at the Varna Regional Investigation Service from 1 October 1998 to 15 March 1999.
At the latest, the first applicant's pre-trial detention was confirmed by the Varna Regional Court on 30 March 2000.
According to the first applicant, from 25 September 2000 he started serving his sentence at Varna prison.
While serving his sentence in Varna prison the first applicant was transferred to Sofia prison on a number of occasions for an unspecified length of time between 25 September 2000 and 9 February 2004 in order to appear before the Sofia District Court in another set of criminal proceedings against him.
5. The first applicant's detention at the Varna Regional Investigation Service
According to the first applicant, the police maltreated him repeatedly during the period of his detention at the Varna Regional Investigation Service from 1 October 1998 to 15 March 1999. They also allegedly drugged him in order to extract a confession. As a result, he was allegedly scarred on the face, his eyesight deteriorated and became ill.
On 3, 6 and 10 August 2001 the first applicant petitioned the Chief Prosecutor to open a preliminary investigation into his alleged maltreatment at the Varna Regional Investigation Service. In a letter of 12 October 2001 the Varna Regional Prosecutor's Office informed the first applicant that it was not competent to assess the manner in which the preliminary investigation had been conducted.
On an unspecified date in 2001 the first applicant initiated proceedings against the Prosecutor's Office claiming that it had failed to react to his many complaints and to investigate his accusations of maltreatment. In a decision of 21 November 2001 the Varna Regional Court rejected the action as it found that the first applicant had failed to substantiate an alleged violation by the judicial authorities falling under the State Responsibility for Damage Act (the “SRDA”).
In addition, the first applicant's allegations of maltreatment were addressed in detail and dismissed as unsubstantiated in the course of the second set of criminal proceedings by the Supreme Court of Cassation on 31 January 2002 and in the course of the third set of criminal proceedings by the Varna Court of Appeals on 26 July 2001 and by the Supreme Court of Cassation on 4 February 2002.
On an unspecified date in 2002 the first applicant initiated proceedings before the Varna District Court under the SRDA and sought compensation for the damage suffered as a result of his detention at the Varna Regional Investigation Service. The Court has not been informed of the outcome of the proceedings and whether they are still pending.
6. The first applicant's detention at Varna prison
According to the first applicant, at Varna prison he was held in a cell situated on the third floor, which measured four by seven meters and accommodated seven people. The cell was dirty and the plaster was peeling off the walls. The available natural light was insufficient as was the artificial lighting provided by the two 75W bulbs. There were no sanitary facilities in the cell and access to such was provided only during the day from 6 a.m. to 9 p.m. However, there were only two sinks and two cubicles for over eighty prisoners. During the night, the prisoners had to use a bucket for their sanitary needs in front of everyone else in the cell. There was no hot water and bathing was provided once in a fortnight or, sometimes, once every twenty to twenty-five days.
Separately, the first applicant submitted that every time he was transferred to court he was placed in another cell, measuring two by three meters, with all the other prisoners who were being transferred on that day which were usually fifteen to twenty-five persons. They were kept there from 6:30 a.m. to 9:30 a.m. and were not normally provided access to a toilet. During the winter it was very cold in the cell while in summer it was extremely hot and stuffy due to the number of people in it.
7. The first applicant's detention at Sofia prison
According to the first applicant, on the occasions he was transferred to Sofia prison he was held in cell no. 1 of group no. 1, which measured four by nine meters and accommodated fourteen people. Fresh air and sunlight were insufficient as there was only a window measuring 40 by 60 centimetres which was covered with a hole-ridden metal sheet. The artificial light was also insufficient. The cell was dirty, stinking and damp and the plaster was pealing off the walls. The mattresses and covers were old, worn and dirty. There were no sanitary facilities in the cell and access to such was provided twice a day for a short period of time. The rest of the time the prisoners had to use a bucket for their sanitary needs in front of everyone else in the cell. The first applicant was not allowed to bathe or wash his clothes. In addition, the cell was flooded from 15 September to 1 October 2003 so he had to sleep on wet bed linen and was ill as a result.
The first applicant submitted that on 24 April, 6 October and 14 October 2003 he complained of the conditions of detention at Sofia prison to the Ministry of Justice, but did not apparently receive a response.
The first applicant further submitted that when he was transferred to Sofia during the periods 10 to 14 April 2002, 7 to 24 October 2002 and 4 to 10 February 2004 the policemen escorting him, in addition to handcuffing him, placed feet restraints on him which were too tight and inflicted unnecessary pain and suffering every time he moved. The first applicant's complaints to the authorities were unheeded and on an unspecified date the Prosecutor's Office refused to initiate criminal proceedings against the policemen involved.
8. The first applicant's complaints to the authorities
The first applicant filed numerous unspecified complaints and petitions to various Government authorities and bodies, including to the Ministry of Justice, the Supreme Court of Cassation and the Supreme Judicial Council on 7 May 2001; the National Assembly on 9 July 2001; the Supreme Judicial Council on 12 July 2001; and the Ministry of Justice on 6 August and 22 October 2001.
In the course of the second set of criminal proceedings the first applicant also complained to the Supreme Judicial Council on 30 May, 14 August and 20 September 2000 of the alleged violations of his rights in the course of the said proceedings. In its replies of 30 May and 1 November 2000 the Supreme Judicial Council informed the first applicant that it was not within its competence to address his complaints and that instead he should address them to the Varna Court of Appeals before which an appeal was pending.
9. The monitoring of the applicants' correspondence
On 11 November 2003 the first applicant retained the second and third applicants to be his legal representatives before the Court in the context of application no. 4473/02. Their legal practice is situated in Plovdiv so the primary means of communication between the applicants was through written letters sent by ordinary mail.
On 11 March 2004 the first applicant sent a letter to the second and third applicants. Upon receiving it the latter established that the letter had been opened, had been dated and stamped with a reference number by the prison authorities and had then been placed in a new envelope with an accompanying letter from the warden of Varna prison, with the same reference number, which stated the following on a pre-printed template form:
“Attached, we send you the request from the prisoner KRASIMIR NIKOLOV ILIEV as appropriate”
The letters of the first applicant of 18 May, 8 June, 16 June, 23 July and 10 August 2004 were processed in the same manner and were each received in two envelopes. The procedure followed in such cases involved the first applicant preparing the first envelope, without sealing it, placing the letter he wanted to mail inside and delivering it to the prison authorities. Upon processing the envelopes the prison authorities assigned the letter being mailed a reference number, dated and stamped it with the seal of the Ministry of the Interior, and allegedly copied it. They then placed the first envelope into a second, larger envelope which was sealed and mailed to the second and third applicants.
A letter from the second and third applicants, dated 7 June 2004, was received by the first applicant opened, dated and stamped with the seal of the Ministry of the Interior, assigned a reference number and with a handwritten note indicating that it is “For Krasimir Nikolov Iliev”. In reference to this letter, the first applicant informed his lawyers in his letter of 16 June 2004 as follows:
“... Please have in mind that your letters are being opened here in my absence and probably photocopied, as it happened with the last one. ...”
In his subsequent letter to his lawyers of 23 July 2004 the first applicant noted the effect of the above procedures on their communications as follows:
“... On the other hand, that which I must comment and share with you as information I cannot write because the letters are being read and probably copied. ...”
In his letter of 10 August 2004 the first applicant stated the following:
“... Your letters to me are [definitely] being opened and monitored before they are delivered to me, [similar to] my [letters] to you [which] are checked and then sealed. Proof of this is the seal [and] reference number on your letter... But the administration of the prison does not deny that it monitors my correspondence with you (similar to the opening of letters coming from the Court). ...”
B. Relevant domestic law and practice
1. Prisoners' correspondence
(a) Constitution
The Bulgarian Constitution guarantees the right to secrecy of all correspondence (Article 34) as well as the right of confidentiality of the communications between a detained individual and his or her defence attorney (Article 30 § 5).
(b) Attorneys' Act
The Attorneys' Act of 1991 provided, inter alia, that the correspondence between an attorney and his client is confidential and is not subject to control (section 18 (2)).
The new Attorneys' Act of 2004 provides, inter alia, that the correspondence between an attorney and his client cannot be reviewed, copied, controlled or seized (section 33(2)).
(c) Enforcement of Sentences Act
The Enforcement of Sentences Act of 1969 (the “ESA”) provides, inter alia, that prisoners have the right to receive and send letters subject to control by the prison administration (section 33(1)(c)). Letters sent to the National Assembly, the President's Office, the Council of Ministers, the Ministry of Justice, the Ministry of the Internal Affairs, the courts, the prosecution authorities and human rights organisation part of the United Nations or the Council of Europe are exempt from such control, if they have been submitted in a sealed envelope (section 37(2)).
The Regulation for the Implementing of the ESA also provides that prisoners are entitled to unlimited correspondence (section 37).
2. Trial in absentia
The Code of Criminal Procedure (the “CCP”), since replaced, allowed 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 defendant'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).
There was an obligation that a defendant be represented by an ex officio counsel when he was tried in absentia (Article 70 § 1 (6) of the CCP).
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 submitted a request for reopening within one year after having learned of the conviction (Article 362a of the CCP). The request was examined by the Supreme Court of Cassation (Article 363 of the CCP), which could quash the conviction and either order a rehearing of the case (Article 364 § 1 of the CCP) or discontinue or suspend the criminal proceedings (Article 364 § 2 of the CCP).
3. The State Responsibility for Damage Act
The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pre trial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2).
In respect of the regime of detention and conditions of detention, 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).
C. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public.
Varna Prison has never been visited by the CPT.
Sofia Prison was visited in 2006, but the visit report has not yet been made public.
COMPLAINTS
A. Complaints of the first applicant under application no. 4473/02
1. In respect of the first set of criminal proceedings
2. In respect of the second set of criminal proceedings
3. In respect of the third set of criminal proceedings
4. In respect of the first applicant's detention after 31 September 1998
5. In respect of the first applicant's detention at the Varna Regional Investigation Service
6. In respect of the first applicant's detention in Varna Prison
7. In respect of the first applicant's detention in Sofia Prison
B. Complaints of the second and third applicants under application no. 34138/04
THE LAW
A. The first applicant's complaints in respect of the conditions of detention in Varna and Sofia prisons
The first applicant complained under Articles 3 and 13 of the Convention of the allegedly inhuman or degrading conditions of detention in Varna and Sofia prisons and the lack of an effective remedy related thereto, which provide:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13 (right to an effective remedy)
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the first applicant's application to the respondent Government.
B. Complaints under Articles 8, 13 and 34 of the Convention concerning the applicants' right to respect for their correspondence and the alleged resulting hindrance of the first applicant's right of application
The applicants complained under Articles 8, 13 and 34 of the Convention of the alleged violation of their right to respect for their correspondence, the lack of an effective remedy related thereto and the alleged resulting hindrance with the effective exercise of the first applicant's right of application, the relevant parts of which provide:
Article 8 (right to respect for private and family life)
“1. Everyone has the right to respect for his ... correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 (right to an effective remedy)
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 34 (individual applications)
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the applicants' applications to the respondent Government.
C. Complaint under Article 14 in conjunction with Article 8 of the Convention
The second and third applicants complained under Article 14, in conjunction with Article 8 of the Convention, that they were discriminated against as a result of their status of legal representatives of the first applicant before the Court, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the second and third applicants' application to the respondent Government.
D. The remainder of the applicants' complaints
The Court has examined the remainder of the applicants' complaints as submitted by them. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the complaints concerning the first applicant allegedly being held in inhuman or degrading conditions of detention in Varna and Sofia prisons (Article 3 of the Convention) and the lack of an effective remedy related thereto (Article 13 in conjunction with Article 3 of the Convention); the alleged violation of the applicants' right to respect for their correspondence (Article 8 of the Convention), the lack of an effective remedy related thereto (Article 13 in conjunction with Article 8 of the Convention) and the alleged resulting hindrance with the effective exercise of the first applicant's right of application (Article 34 of the Convention); and the alleged discrimination of the second and third applicants as regards their right to respect for their correspondence with the first applicant (Article 14 in conjunction with Article 8 of the Convention);
Declares the remainder of the application inadmissible.
Stephen
Phillips Peer Lorenzen
Deputy
Registrar President