FOURTH SECTION

CASE OF LOLOVA-KARADZHOVA v. BULGARIA

(Application no. 17835/07)

JUDGMENT

STRASBOURG

27 March 2012

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 Lolova-Karadzhova v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Lech Garlicki, President,
	David Thór Björgvinsson,
	Päivi Hirvelä,
	George Nicolaou,
	Ledi Bianku,
	Zdravka Kalaydjieva,
	Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 March 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 17835/07) 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, Ms Dobrinka Manolova Lolova-Karadzhova (“the applicant”), on 12 December 2006.
2.  The applicant was represented by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
3.  The applicant alleged, in particular, that her detention from about 10 a.m. on 18 October to 3 p.m. on 19 October 2006 had been in breach of Article 5 § 1 of the Convention and that she had not had an enforceable right to compensation in this respect.
4.  On 8 September 2010 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). The case was later transferred to the Fourth Section of the Court, following the reorganisation of the Court’s sections on 1 February 2011.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1947 and lives in Sofia.
6.  In 2004 a real estate agent brought a private prosecution against the applicant for insult and defamation punishable by a fine and public reprimand. According to the complaint, in a newspaper announcement the applicant, describing herself as “the deceived citizen”, warned the public that the real estate agent would buy their real estate at very low prices and then would resell it for much larger amounts, making a very large profit for herself.
7.  The Asenovgrad District Court postponed hearings scheduled for 20 September and 11 November 2004 because the applicant had submitted medical certificates and had expressed the wish to participate in the proceedings in person.
8.  At hearings conducted on 10 January and 10 March 2005 the applicant was not present but was represented by counsel.
9.  At a hearing on 27 May 2005 neither the applicant nor her lawyer appeared. The applicant had submitted a medical certificate and had requested postponement. The District Court noted that the applicant’s presence was not mandatory, but postponed the hearing as her lawyer was also absent. It imposed a fine of 500 Bulgarian levs (BGN) on the applicant’s lawyer. The latter appealed to the Plovdiv Regional Court, arguing that she had also been ill, and submitted a medical certificate. On 3 June 2005 the District Court, applying the procedure of Article 347 of the 1974 Code of Criminal Procedure, revoked its own decision, stating that the applicant’s lawyer had given valid reasons for her absence.
10.  At a hearing on 27 June 2005 the applicant appeared, but stated that she would make submissions at the final pleading stage.
11.  The applicant requested postponement of the hearings scheduled for 15 December 2005, 27 February, 18 May and 19 June 2006, stating that she wanted to address the court but was ill, as was documented by medical certificates she had submitted. The District Court granted her requests.
12.  On an unspecified date in September 2006 the applicant submitted to the District Court another medical certificate prescribing her home treatment for hypertension from 15 to 20 September 2006, and requested postponement.
13.  At a hearing on 18 September 2006, held in the applicant’s absence but in the presence of her lawyer, the District Court noted the applicant’s statement that she wanted to make submissions at the final stage of the pleadings and found that her hypertension was not an obstacle in this respect. It further noted that the applicant had submitted medical certificates on a number of occasions, thus causing delays in the proceedings. Relying on the Convention, the District Court observed that it was necessary to complete the proceedings within a reasonable time and held that the applicant should therefore be brought before it for the next hearing with the assistance of the police. It did not specify any legal ground for this order. It scheduled the next hearing for 19 October 2006 at 3 p.m. Since the applicant’s lawyer was present at the hearing, the applicant was considered duly informed of the order.
14.  Around 10 a.m. on 18 October 2006 the applicant was detained by the police and taken to Sofia Prison, where she remained until the next morning. The applicant contends that the conditions there were humiliating and that she had to use the same toilet as male detainees.
15.  In the morning of 19 October 2006 the applicant was escorted by train and car from Sofia to Asenovgrad (160 km), attended the hearing at 3 p.m. and made submissions, after which she was released. In a judgment of the same date the District Court acquitted her, finding that her newspaper announcement had been neither insulting nor defamatory. The plaintiff requested judicial review of the judgment but on 4 December 2006 her appeal was rejected for procedural flaws.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Attendance of accused individuals at the trial
16.  Pursuant to Article 269 (1) of the 2006 Code of Criminal Procedure (“the 2006 CCP”), the attendance of the accused person at the trial is mandatory where the charges concern offences punishable by more than five years’ imprisonment. In all other cases, the court may order the accused person to appear if this is necessary for establishing the truth (Article 269 (2) of the 2006 CCP).
17.  An accused person may be taken into custody in order to secure his attendance for questioning if he has failed to appear without valid reasons, provided that his attendance is mandatory or is deemed necessary by the competent authority (Article 71(1) of the 2006 CCP). The accused may be taken into custody without prior notice if he has absconded or has no permanent address (Article 71(2) of the 2006 CCP).
18.  Orders under Articles 269(2) and 71 of the 2006 CCP are not amenable to appeal before a higher court.
B.  Ability of the court to revoke its own procedural orders
19.  Pursuant to Article 347 of the 1974 Code of Criminal Procedure, in force until 29 April 2006, the court could revoke its own procedural order if judicial review had been requested. This provision was superseded by Article 344 of the 2006 CCP, in force since 29 April 2006, which repeats its text almost verbatim.
C.  The 1988 State and Municipalities Responsibility for Damage Act
20.  The 1988 State and Municipalities Responsibility for Damage Act (the “SMRDA”) provides for compensation in certain cases of deprivation of liberty ordered by a court or by investigating or prosecuting authorities, where the relevant decision or order has been set aside “for lack of lawful grounds” under domestic law. Deprivation of liberty aiming at securing the accused’s attendance at a hearing is not among those cases.
21.  The relevant domestic law and practice concerning State liability for damage in connection with conditions of detention have been summarised in the Court’s judgment in the case of Slavcho Kostov v. Bulgaria (no. 28674/03, § 19-22, 27 November 2008).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
22.  The applicant complained that her detention from about 10 a.m. on 18 October until 3 p.m. on 19 October 2006 had been in breach of Article 5 § 1 of the Convention, which reads, in so far as relevant:
“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:
(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;
23.  The Government stated that the applicant had failed to exhaust domestic remedies, as it had been open to her to request the District Court to revoke its order, pursuant to Article 344 of the 2006 CCP. They argued that the District Court had already done so when the applicant’s lawyer appealed against the fine imposed on her (see paragraph 9 above). On the merits, the Government argued that Article 5 was not applicable because the measure taken against the applicant did not amount to a deprivation of liberty but rather to a temporary restriction of her freedom of movement. They stated that the applicant’s detention on the day before the hearing had been necessary, because the train used by the escort departed early the next morning. They also stated that the order of 18 September 2006 had a legal basis in Article 269 (2) of the 2006 CCP.
24.  The applicant argued that Article 344 of the 2006 CCP was applicable only to orders amenable to appeal, while the order of 18 September 2006 was not subject to judicial review. She further stated that she had not tried to contest the order, as she had had the intention to comply with it and to appear at the hearing of 19 October 2006, had she been given the chance. She maintained that her detention had not been carried out in accordance with a procedure prescribed by law and had not been necessary, because her presence at the trial had not been mandatory. Finally, she stated that her detention on the day before the hearing had been clearly disproportionate.
A.  Admissibility
25.  The Court notes that Article 344 of the 2006 CCP enables courts to revoke their own orders when judicial review has been requested. The District Court applied this procedure when the applicant’s lawyer appealed against its order of 27 May 2005 imposing a fine on her (see paragraph 9 above). The order of 18 September 2006, however, was final, and no judicial review proceedings could have been initiated. In these circumstances, although it does not appear unlikely that a court could reconsider its own order even when it is not amenable to judicial review, in the lack of any procedural rules in this respect the Court is not convinced that a request from the applicant to this effect should be regarded as an effective remedy for the purposes of Article 35 § 1 of the Convention. Furthermore, the Court cannot but note the applicant’s statement that she refrained from any action because she intended to comply with the order to appear. The Government have not argued that there was an established practice on the basis of which it should have been clear to the applicant that the police escort ordered by the court would amount to a two-day deprivation of liberty and that she would have to spend the night in prison. Accordingly, the Government’s objection concerning non-exhaustion of domestic remedies should be dismissed.
26.  The Court further notes that the complaint under Article 5 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
27.  It is not disputed that the applicant remained under the constant supervision and control of the police authorities from about 10 a.m. on 18 October until 3 p.m. on 19 October 2006, or twenty-nine hours, and that she spent a considerable amount of that time in Sofia Prison (see paragraphs 14-15 above). The Court is therefore satisfied that she was “deprived of her liberty” within the meaning of Article 5 § 1 of the Convention.
28.  Article 5 § 1 requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, pp. 752-753, §§ 40 and 42).
29.  Detention is authorised under sub-paragraph (b) of Article 5 § 1 only to “secure the fulfilment” of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned and the arrest and detention must be for the purpose of securing its fulfilment and not punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003).
30.  Finally, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of detention is also a relevant factor in striking such a balance (ibid., § 37).
31.  Turning to the present case, the Court notes that the applicant was not required by law to attend the proceedings in person because she did not face charges of offences punishable by more than five years’ imprisonment (see paragraphs 6, 9 and 16 above) and that her explicit wish to address the court in person resulted in several adjournments due to her illness (see paragraphs 7-11 above). At the hearing on 27 May 2005 the District Court noted that the applicant’s presence was not mandatory. In these circumstances the trial court was competent to decide whether to deem the applicant’s presence necessary or to proceed with the determination of the dispute in her absence so as to avoid any further delay. The Court notes in this respect that the domestic court did not specify the legal grounds for its order and did not state expressly that the applicant’s attendance was necessary for establishing the truth pursuant to Article 269 (2) of the 2006 CCP (see paragraph 16 above) but rather justified it with the need to secure her own procedural rights (see paragraph 13 above). Furthermore, the application of Article 71 (2) of the 2006 CCP also appears problematic since the applicant neither absconded nor was without a permanent address (see paragraph 17 above). However, the Court does not find it necessary to determine this point, as, for the reasons which follow, it considers that the applicant’s detention in any event was disproportionate to the aim pursued.
32.  The Court observes that the applicant was arrested on the day before the hearing and remained in custody for almost thirty hours. The distance between her home town and the town where the hearing was held, 160 km, was not such as to justify such a long period of detention. In fact, she spent most of that time in prison (see paragraph 14 above) The Court is not persuaded that the authorities could not have taken less radical measures in order to secure the applicant’s attendance in court. Moreover, by arresting her one day earlier they did not even give her a chance to show good faith and comply with the court order of her free will. In view of these circumstances, the Court considers that the authorities failed to strike a fair balance between the need to ensure the fulfilment of the applicant’s obligation to attend a court hearing and her right to liberty (see, mutatis mutandis, Epple v. Germany, no. 77909/01, 24 March 2005, and Vasileva, cited above).
33.  There has accordingly been a violation of Article 5 § 1 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
34.  The applicant complained that she had not been able to obtain judicial review of her detention, contrary to the requirements of Articles 5 § 4 and 13 of the Convention.
The Court considers that this complaint falls to be examined under Article 5 § 4 of the Convention, which reads as follows:
 “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.”
35.  The Government made no submissions in relation to this complaint.
36.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, 23 January 2002.
37.  It notes that the applicant was detained for about twenty-nine hours and was released before any judicial review of the lawfulness of her detention could have taken place (see paragraphs 14-15 above). It observes in this context that Article 5 § 4 deals only with those remedies which must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The provision does not deal with other remedies which may serve to review the lawfulness of a period of detention which has already ended, including, in particular, a short-term detention such as in the present case (see Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003‑X).
38.  Accordingly, the Court does not find it necessary to examine the merits of the applicant’s complaint under this provision (ibid., § 159).
III.  ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
39.  The applicant complained that she had not had an enforceable right to compensation for her unlawful detention, contrary to Articles 5 § 5 and 13 of the Convention.
The Court considers that this complaint falls to be examined under Article 5 § 5 of the Convention, which reads as follows:
“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.”
40.  The Government made no submissions in relation to this complaint.
41.  The applicant argued that section 2 of the SMRDA gave a right to compensation only to persons placed in pre-trial detention, provided that their detention had been quashed for lack of legal grounds. However, her deprivation of liberty did not amount to pre-trial detention, and moreover there was no procedure for challenging its lawfulness. Therefore, her action was barred.
42.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.
43.  Noting that the applicant’s detention was found to be in breach of Article 5 § 1 of the Convention (see paragraph 33 above), the Court finds that paragraph 5 of that provision is applicable and required the availability in Bulgarian law of an enforceable right to compensation in the applicant’s case (see Włoch v. Poland (no. 2), no. 33475/08, §§ 25-27, 10 May 2011, with further references).
44. It observes that deprivation of liberty aiming at securing an accused’s attendance at a court hearing is not among the cases of deprivation of liberty for which the SMRDA provides for compensation (see paragraph 20 above). Nor does it appear that an enforceable right to compensation was available to the applicant under any other provision of the Bulgarian law.
45.  There has therefore been a violation of Article 5 § 5 of the Convention.
IV.  THE REMAINDER OF THE APPLICANT’S COMPLAINTS
46.  The applicant also complained that the conditions in which she had been detained in Sofia Prison and escorted to the Asenovgrad District Court had been humiliating and that she had not had effective remedies in this respect. She relied on Articles 3 and 13 of the Convention, which provide:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“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.”
47.  The Court has accepted, on the basis of developments in the Bulgarian courts’ case-law since 2003, that a claim under the SMRDA is in principle an effective remedy for poor conditions of detention, provided that the applicant has either been released or placed in conditions which meet Convention standards (see Hristov v. Bulgaria (dec.), no. 36794/03, 18 March 2008, and Radkov v. Bulgaria (no. 2), no. 18382/05, §§ 37 and 53, 10 February 2011). In the instant case, nothing suggests that an action under the SMRDA could not have provided her with redress.
48.  In view of the above, these complaints must be declared inadmissible under Article 35 §§ 1 and 4 for failure to exhaust domestic remedies.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
49.  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
50.  The applicant claimed a total of 15,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of her deprivation of liberty and the alleged poor conditions of detention.
51.  The Government contested this claim.
52.  The Court considers that the applicant’s detention for almost thirty hours in breach of Article 5 § 1 of the Convention must have caused her distress which would not be adequately compensated by the finding of a violation alone. Making an assessment on an equitable basis, it therefore awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable, under this head.
B.  Costs and expenses
53.  The applicant sought the reimbursement of EUR 3,600 for forty-five hours of legal work by her lawyers in the proceedings before the Court, at an hourly rate of EUR 80. In support of this claim she presented a contract and a time sheet. She also claimed EUR 50 for expenses incurred by her lawyers but did not present any invoices or receipts in support of her claim. She requested that EUR 400 of any award made under this head be paid directly to her (since she had already paid that sum to her lawyers), and the remainder to her lawyers, Mr M. Ekimdzhiev and Ms S. Stefanova.
54.  The Government considered that the claims were excessive.
55.  According to the Court’s case‑law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, including to the fact that part of the applicant’s complaints were rejected and also to the applicant’s failure to provide all necessary documents, such as invoices or receipts for postage or office expenses, the Court finds it reasonable to award the sum of EUR 2,000 to the applicant, plus any tax that may be chargeable to her. EUR 400 of that amount is to be paid to the applicant herself, and the remainder to her legal representatives, Mr M. Ekimdzhiev and Ms S. Stefanova.
C.  Default interest
56.  The Court considers it appropriate that the default interest rate 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.  Declares admissible the complaints under Article 5 §§ 1, 4 and 5 of the Convention and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds that it is not required to deal with the merits of the applicant’s complaint under Article 5 § 4 of the Convention;

4.  Holds that there has been a violation of Article 5 § 5 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with 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 1,000 (one thousand euros), plus any tax that may be chargeable to her, in respect of non-pecuniary damage;
(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to her, in respect of costs and expenses, EUR 400 (four hundred euros) of which is to be paid to the applicant herself, and the remainder is to be paid to the applicant’s legal representatives, Mr M. Ekimdzhiev and Ms S. Stefanova;

(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Lech Garlicki	Deputy Registrar	President