FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54659/00 
by Nikolay Kirilov GAVAZOV 
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 15 May 2006 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 J. Borrego Borrego, judges, 
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 5 November 1999,

Having regard to the fact that no observations were submitted by the respondent Government,

Having regard to the observations submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolay Kirilov Gavazov, is a Bulgarian national who was born in 1967 and lives in Pazardzhik. He was represented before the Court by Mr M. Merdzhanov, a lawyer practising in Pazardzhik.

The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The criminal proceedings against the applicant and the appeals against his detention

(a)  Main course of the criminal proceedings

On 9 December 1998 a woman was raped in the city of Pazardzhik. On the same day she filed a complaint with the police and named the applicant as the perpetrator.

A search of the room where the applicant’s uncle lived, which was purportedly the place where the applicant had had sexual intercourse with the victim, was performed on an unspecified date.

At 5.30 p.m. on 10 December 1998, under an order issued by the police, the applicant was placed in preliminary detention for twenty-four hours.

On 11 December 1998 a preliminary investigation was opened against the applicant for the offence of rape perpetrated by use of force and after threatening the victim, which was a case of recidivism for him. He was also placed in preliminary detention under an order issued by an investigator. The order was later confirmed by the Pazardzhik District Prosecutor’s Office which extended the period of preliminary detention to three days.

On 14 December 1998, under an order issued by an investigator and confirmed by the Pazardzhik District Prosecutor’s Office, the applicant was charged on one count of rape and remanded in custody. In ordering the remand in custody the investigator cited, inter alia, the previous convictions of the applicant and the ongoing investigation against him.

The applicant’s uncle was questioned on 15 December 1998.

An indictment was filed against the applicant with the Pazardzhik District Court on one count of rape on 1 April 1999. It is unclear how many hearings were conducted before the Pazardzhik District Court.

On 1 January 2000 amendments to the Code of Criminal Procedure (the “CCP”) regarding the regime of detention entered into force.

On 17 February 2000 the Pazardzhik District Court remitted the case to the investigation stage. The court found that it could not render a judgment, because it established that the applicant had had sexual intercourse with the victim on two separate occasions on the day in question and that the case could therefore involve two counts of rape rather than one. The indictment against the applicant however concerned only one count of rape and it was unclear to which instance of sexual intercourse it referred. The court considered that this ambiguity in the indictment might violate the applicant’s right to mount a proper defence and remitted the case to the investigation stage for correction of this discrepancy.

The applicant contends, which the Government have not challenged, that no investigative procedures were conducted by the authorities after 2003.

As of the date of the applicant’s observations, 26 April 2005, the applicant’s case was still pending before the investigation authorities.

(b)  The applicant’s appeal of 21 December 1998

On 21 December 1998 the applicant filed his first appeal against his detention. He maintained, inter alia, that there was insufficient evidence that he had perpetrated the offence and that he was fully cooperating with the investigation.

On 28 December 1998 the Pazardzhik District Court dismissed the applicant’s appeal as it found, inter alia, that he was charged with a serious offence and, in general terms, that he might abscond, obstruct the investigation or re-offend.

On 17 February 1999 the Pazardzhik Regional Prosecutor’s Office extended the deadline for completing the preliminary investigation with another thirty days and confirmed the applicant’s detention on remand without citing any grounds.

(c)  The applicant’s appeal of 30 September 1999

On 30 September 1999 the applicant filed another appeal against his detention, which the Pazardzhik District Court dismissed on 8 November 1999 citing, inter alia, the nature of the perpetrated offence, the applicant’s personality and purported criminal tendencies.

(d)  The applicant’s petition for release of 18 February 2000

On 18 February 2000 the applicant petitioned the Pazardzhik District Prosecutor’s Office to order his immediate release due to the expiration of the statutory maximum period of pre-trial detention, which in his case was apparently one year. He claimed that with the entry into force of the amendments to the CCP and the decision of the Pazardzhik District Court to remit the case, he had spent more than one year in pre-trial detention and should therefore be released immediately as required by the amended CCP.

By decision of 21 February 2000 the Pazardzhik District Prosecutor’s Office refused to release the applicant. It considered that the statutory maximum period of pre-trial detention, which in the applicant’s case was one year, had not expired. It argued that only the period from 14 December 1998 to 31 March 1999 should be considered as pre-trial detention, because the remaining period of his detention was during the trial phase of the proceedings. On this basis, the Pazardzhik District Prosecutor’s Office considered that the applicant had been in pre-trial detention only three months and seventeen days, which did not warrant his release.

On appeal of an undetermined date, the decision of the Pazardzhik District Prosecutor’s Office was upheld by the Pazardzhik Regional Prosecutor’s Office, also on an undetermined date.

(e)  The applicant’s appeal of 22 February 2000

The applicant filed an appeal against his detention on 22 February 2000 with the Pazardzhik District Court. He again argued that his detention had exceeded the statutory maximum period of pre-trial detention and requested that the measure for securing his appearance in court be amended.

By decision of 24 February 2000 the Pazardzhik District Court dismissed the applicant’s appeal. It considered that his detention had not exceeded the statutory maximum period of pre-trial detention, as it did not count the time while the case was pending before the courts towards that period. In addition, it referred to the fact that these proceedings were a case of recidivism for the applicant and, therefore, a basis for his continued detention. On 25 February 2000 the applicant appealed against this decision.

By decision of 2 March 2000 the Pazardzhik Regional Court dismissed the applicant’s appeal and upheld the lower court’s decision on grounds similar to those of the lower court.

(f)  The applicant’s petition for release of 9 March 2000

On 9 March 2000 the applicant again petitioned the Pazardzhik District Prosecutor’s Office to order his immediate release due to the expiration of the statutory maximum period of pre-trial detention.

By decision of 16 March 2000 the Pazardzhik District Prosecutor’s Office refused to release the applicant on grounds similar to those in its decision of 21 February 2000. On the same day the applicant appealed against the decision to the Pazardzhik Regional Prosecutor’s Office and requested that the measure for securing his appearance in court be amended.

By decision of 30 March 2000 the Pazardzhik Regional Prosecutor’s Office found partially in favour of the applicant. It considered that in calculating whether the statutory maximum period of pre-trial detention had been exceeded, the whole period of the applicant’s detention should be taken into account. Accordingly, the Pazardzhik Regional Prosecutor’s Office found that in the case of the applicant that period had been exceeded as, at the time, he had already been in detention for more than fifteen months as of 14 December 1998. However, the Pazardzhik Regional Prosecutor’s Office did not order the applicant’s immediate release but amended the measure for securing his appearance in court to bail in the amount of 1,500 Bulgarian levs (“BGN”) (approximately 760 euros) and ordered that he be released subject to the provision of recognisance.

On 6 April 2000 the applicant appealed against the decision of the Pazardzhik Regional Prosecutor’s Office. He contended that the Prosecutor’s Office, upon establishing that the statutory maximum period of pre-trial detention had been exceeded, should have ordered his immediate release and that it did not have the power to subject it to provision of recognisance. In addition, the applicant contended that the amount of the bail was too high and that his lack of income and assets had not been taken into account.

On 13 April 2000 the Plovdiv Appellate Prosecutor’s Office found partially in favour of the applicant. It took into account that he and his parents lacked sufficient assets and lowered the bail to BGN 1,000 (approximately 505 euros). However, the Prosecutor’s Office did not order the applicant’s release as it found that his continued detention, subject to the provision of recognizance, to be lawful.

Both the applicant and the Pazardzhik District Prosecutor’s Office appealed against this decision. The applicant’s appeal was received by the Supreme Cassation Prosecutor’s Office on 2 May 2000.

By decision of 17 August 2000 the Supreme Cassation Prosecutor’s Office, in response to the appeal filed by the District Prosecutor’s Office, upheld the decision of the Plovdiv Appellate Prosecutor’s Office dated 13 April 2000.

The Supreme Cassation Prosecutor’s Office never responded to the appeal filed by the applicant. Thus, on 12 September 2000 the applicant filed a request with the Chief Prosecutor’s Office demanding that the Prosecutor’s Office examine and respond to his appeal of 2 May 2000. He received no response to his request.

(g)  The appeal of 22 March 2000

In the meantime, following the decision of 16 March 2000 of the Pazardzhik District Prosecutor’s Office, the applicant filed a separate appeal on 22 March 2000 against his continued detention with the Pazardzhik District Court. He once again argued that his detention had exceeded the statutory maximum period of pre-trial detention and requested that the measure for securing his appearance in court be amended.

By decision of 28 March 2000 the Pazardzhik District Court dismissed the applicant’s appeal. It considered that his detention had not exceeded the statutory maximum period of pre-trial detention, as it did not count the time while the case was pending before the courts towards that period. In addition, it considered that there was still a danger that the applicant might abscond or re-offend but without citing any specific evidence in that respect.

(h)  The appeal of 29 September 2000

On 29 September 2000 the applicant filed another appeal against his continued detention with the Pazardzhik District Court and requested that it order his release due to the expiration of the statutory maximum period of pre-trial detention. He maintained that his continued detention was unlawful, that the set bail was unreasonably high, purportedly evidenced by the applicant’s inability to deposit it for more than six months, and that there was a danger that his detention could, as a result, continue indefinitely.

On 5 October 2000 the Pazardzhik District Court rejected the applicant’s appeal. It found that his appeal lacked legal grounds in so far as there was no longer an order for the applicant’s remand in custody, but bail had been set. The court argued, therefore, that the applicant had nothing to appeal against and considered his continued detention as irrelevant to the proceedings before it.

On 9 October 2000 the applicant appealed against the decision of the Pazardzhik District Court. He relied, inter alia, on Article 5 § 4 of the Convention and argued that the courts had an obligation to rule on his appeal against his continued detention.

On 12 October 2000 the Pazardzhik Regional Court rejected the appeal on grounds similar to those of the Pazardzhik District Court, whereby it found that in so far as the applicant’s detention on remand had been changed to bail it could not address the request for his release. It considered that only the Prosecutor’s Office was competent to rule on the question of his continued detention.

On 3 November 2000 the applicant was released after posting bail.

2.  The conditions of detention

Between 10 December 1998 and 4 March 1999 the applicant was detained at the Pazardzhik Regional Investigation Service. From 4 March 1999 to his release on 3 November 2000 he was detained at the Pazardzhik Prison.

(a)  Pazardzhik Regional Investigation Service

The applicant contended that he was held in four different cells during his detention in the Pazardzhik Regional Investigation Service. The first, in which he spent two days, measured ten square metres and had four wooden beds, only one of which was occupied. The second, where the applicant was held for about fifteen days, was the same size but had only three wooden beds. In both cells there was insufficient fresh air and natural light. The third and fourth cells measured some six square metres. The applicant remained in the third cell until approximately twenty days before his transfer to the Pazardzhik Prison when he was moved to the fourth cell. Both of these cells were without windows and lacked fresh air.

The bed sheets in the cells were dirty, old and torn. There were no mattresses. Often there were lice, fleas, cockroaches and mice.

The applicant had to use a bucket for his sanitary needs, the contents of which were thrown away each morning and evening. As a result, the air was stale and there was a strong stench.

The applicant was allowed to wash for five minutes in the morning and evening. He bathed and shaved once a week, usually with cold water.

Every twenty-four hours the applicant was given five hundred grams of bread which was often gnawed by mice. The food was insufficient and substandard. No cutlery was provided and the food was served in dirty plastic dishes.

The applicant was not allowed out of his cell for exercise, nor could he read newspapers, books, magazines, listen to the radio or maintain an active correspondence.

(b)  Pazardzhik Prison

Following his transfer to the Pazardzhik Prison, the applicant was placed in a cell with seven wooden beds, measuring twenty-four square metres. There were electric radiators in the cell, but it was still very cold, because the two windows, each fifty centimetres by a hundred centimetres, were badly insulated. Sometimes there were mice and cockroaches in the cell. There was a separate toilet in the cell with running water, but its windows were broken and it was very cold.

Initially, the food was of the same inferior quality as that in the Pazardzhik Regional Investigation Service. Sometime in 2000 the food improved to some extent even though the daily bread ration remained the same, which the applicant maintained was insufficient. At the same time, the daily exercise in the prison yard was increased from an hour and fifteen minutes to two hours.

The applicant had access to newspapers, but not to radio or television. Access to a phone was provided and the applicant could maintain an active correspondence. Visits by relatives of the applicant were permitted twice a month and he could meet with his attorney.

The applicant maintained that the medical services provided in the Pazardzhik Prison were inadequate, that he had heart-related complaints which were not treated properly by a psychiatrist rather than being referred to a specialist and that he suffered a broken arm which was improperly diagnosed and treated.

Following his release on 3 November 2000 the applicant was hospitalised between 6 and 11 November 2000 with heart-related complaints. He was diagnosed with an “ischemic heart condition”.

(c)  Statement of Mr B.B.

The applicant’s contentions in respect of the conditions of detention at the above facilities are corroborated by a signed statement from another detainee, Mr B.B. The latter was detained at the Pazardzhik Regional Investigation Service during February 1999 in a cell separate from that of the applicant. He was later transferred, on an unspecified date, to the Pazardzhik Prison where he shared a cell with the applicant.

3.  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 and 2003. The Pazardzhik Regional Investigation Service and the Pazardzhik Prison were visited in 1995. There are also general observations about the problems in all Investigation Service detention facilities in the 1995, 1999 and 2002 reports.

(a)  Relevant findings of the 1995 report (made public in 1997)

(i)  General observations

The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments’ internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.

The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day’s “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.

The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees’ contacts with the outside world were very limited. There was no radio or television.

The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation’s assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country’s difficult financial circumstances.

In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes’ exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour’s outdoor exercise per day was to be examined as a matter of urgency.

(ii)  Pazardzhik Regional Investigation Service

The CPT established that the Pazardzhik Regional Investigation Service had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell.

Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other Investigation Service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.

(iii)  Pazardzhik Prison

The CPT established, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities.

(b)  Relevant findings of the 1999 report (made public in 2002)

The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.

In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT’s 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and out-of-cell activities. In some places, the situation had even deteriorated.

In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.

(c)  Relevant findings of the 2002 report (made public in 2004)

During the 2002 visit some improvements were noted in the country’s investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day.

Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.

B.  Relevant domestic law and practice

1.  The legal regime of detention

(a)  Before 1 January 2000

The relevant provisions of the CCP and the Bulgarian courts’ practice at the relevant time 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).

(b)  After 1 January 2000

As of that date 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 relevant part of the amended Article 152 provides:

“(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.”

It appears that divergent interpretations of the above provisions were observed in the initial period of their application, upon their entry into force on 1 January 2000.

In June 2002 the Supreme Court of Cassation (the “SCC”) clarified that the amended Article 152 excluded any possibility of a mandatory detention. In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities. The presumption under paragraph 2 of Article 152 was only a starting point of analysis and did not shift the burden of proof to the accused (TR 1-02 SCC).

2.  Statutory maximum period of detention

Statutory maximum periods of pre-trial detention, whose duration depend on the gravity of the charges, were introduced with effect from 12 August 1997 (paragraph 3 of Article 152 as in force between 12 August 1997 and 1 January 2000 and paragraph 4 of the same Article since 1 January 2000).

They only concern remand in custody pending the investigation. Detention at the trial stage is not limited by a statutory maximum period.

In June 2002 the SCC, clarifying that the statutory maximum periods of detention aimed at protecting the accused person’s rights and exerting pressure on the investigation authorities for a “disciplined approach” on their part, stated that where a case was referred by the trial court back for further investigation, the relevant statutory time-limit was not renewed but resumed, the period during which the case was pending before the courts not being counted (TR 1-02 SCC).

The maximum period of pre-trial detention in the applicant’s case was one year, in view of the gravity of the charges against him.

Article 152 § 5 of the CCP, as in force since 1 January 2000 provides:

“On expiration of the [statutory maximum period of pre-trial detention] the detainee shall be immediately released by order of the [competent] prosecutor.”

3.  Release on bail

Article 150 § 5 of the CCP provides:

“When the measure for securing [a person’s appearance in court] is amended from a more [restrictive] one to bail, the [person] shall be released following provision of recognisance.”

4.  The State Responsibility for Damage Act

The State Responsibility for Damage Act of 1988 provides that the State is liable for damage caused to private persons by (1) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (2) by the organs of the investigation, the prosecution and the courts for, inter alia, unlawful pre-trial detention, if the detention order has been set aside for lack of lawful grounds.

The relevant domestic law and practice 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, §§ 56-57, 8 April 2004).

COMPLAINTS

1.  The applicant complained under Article 5 § 3 of the Convention that after he was arrested on 10 December 1998 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

2.  The applicant complained under Article 5 § 2 of the Convention that when he was arrested on 10 December 1998 he was not informed promptly of the reasons for his arrest and of any charge against him. He contended that this was performed only at 5 p.m. on the next day, 11 December 1998.

3.  The applicant complained under Article 5 § 1 (c) of the Convention that he was detained unlawfully. In particular, he submitted that the evidence against him was not sufficient to lead to the conclusion that he was guilty of an offence. In addition, the applicant considered that several domestic provisions were breached, notably the statutory maximum period of pre-trial detention which in his case was one year. He also considered that following the decision of the Regional Prosecutor’s Office of 30 March 2000 he should have been released immediately and not on the condition of provision of recognisance.

4.  The applicant complained under Article 5 § 3 of the Convention that he was not tried within a reasonable time or released pending trial.

5.  The applicant complained under Article 5 § 4 of the Convention that the Pazardzhik District Court did not examine all factors relevant to the lawfulness of his detention. In addition, the applicant maintained that his appeal 29 September 2000 was never heard by a court and that his appeals were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention.

6.  The applicant complained under Article 5 § 5 of the Convention that he does not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5.

7.  The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively long.

8.  The applicant complained under Article 3 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service and the Pazardzhik Prison. In particular, he submitted that there was (1) insufficient oxygen in the cells; (2) inadequate hygiene and the presence of parasites (fleas and wood worms), skin infections (scabies) and rodents (mice and rats); (3) not enough natural light; (4) no special recreational area; (5) unhealthy food; (6) no access to literature, newspapers, magazines, radio or television; (7) no possibility to meet with his attorney in private at his initiative; and (8) no possibility for maintaining an active correspondence. In respect of his health problems while in the Pazardzhik Prison, the applicant maintained that the medical services provided there were inadequate, that his heart-related complaints were incorrectly treated by a psychiatrist rather than being referred to a specialist and that his broken arm was wrongly diagnosed and treated. The applicant expressly referred to the Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995 which assessed the conditions of detention in the above two facilities and found them to be inadequate.

9.  The applicant complained under Article 13 of the Convention that he had no effective domestic remedy for his Convention complaints.

THE LAW

A.  Complaints under Article 5 of the Convention

The applicant made several complaints falling under Article 5 of the Convention, the relevant part of which 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;

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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.

5.  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.”

The applicant also complained under Article 13 of the Convention that he did not have at his disposal effective domestic remedies for his Convention complaints. The Court considers that, as it relates to Article 5 §§ 1-3 of the Convention, this complaint should be understood as referring to the applicant’s alleged inability to effectively challenge his detention under Article 5 § 4 of the Convention and to the alleged lack of an enforceable right to compensation under Article 5 § 5 of the Convention. In addition, the Court observes that Article 5 §§ 4 and 5 of the Convention constitute lex specialis in relation to the more general requirements of Article 13 (see Nikolova, cited above, § 69 and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997, Reports of Judgments and Decisions 1997-III, p. 927, § 73). Accordingly, the Court must examine the complaint that the applicant lacked effective domestic remedies under Article 5 §§ 4 and 5 of the Convention.

1.  Complaint under Article 5 § 1 (c) of the Convention that the applicant was detained unlawfully after 17 February 2000

The Government did not challenge the admissibility of this complaint.

The applicant reiterated his complaint.

The Court observes that the main issue to be determined in the context of this complaint is whether the disputed detention was “lawful”, including whether it complied 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 of the Convention, namely to protect individuals from arbitrariness (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, pp. 752-53, § 40).

It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 of the Convention failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham, cited above, § 41).

In the present case, the Court notes at the outset that the applicant was detained for a total period of one year, ten months and twenty-four days. Part of this period was while the proceedings were pending before the court of first instance from 1 April 1999 to 17 February 2000, a period of ten months and sixteen days.

In his submissions before the Court, the applicant argued that his detention had become unlawful after the domestic court’s decision of 17 February 2000 to remit the case because the period during which he was detained had allegedly exceeded the statutory maximum period of pre-trial detention. He relied in this respect on the provisions of Article 152 § 3 which later became Article 152 § 4 of the CCP. In its decision of 30 March 2000, the Regional Prosecutor’s Office concurred with the applicant and released him on bail subject to the provision of recognisance, which he also contended to have been in violation of national law. The Court notes, however, that at the relevant time there were divergent interpretations on the question whether the statutory maximum period of pre-trial detention – which only concerned detention pending the investigation stage, not at the trial phase – should be considered to have run continuously when the trial court decided to refer the case back for further investigation.

In view of the above diverging practices at the national level and irrespective of the conclusions of the Prosecutor’s Office, the Court finds that it must perform an independent assessment of the lawfulness of the applicant’s detention under national law during the period in question in order to determine whether it conformed to the substantive and procedural rules thereof. The Court notes in this respect that the relevant provision (Article 152 § 3 which later became Article 152 § 4 of the CCP) is quite clear in that it states that the maximum period only concerns detention pending the investigation stage. Moreover, in June 2002 the SCC confirmed that interpretation. This clearly demonstrates that in the applicant’s case the statutory maximum period of pre-trial detention, which was one year in view of the gravity of the charges against him, had not expired either on 17 February 2000 or on 30 March 2000 when the Regional Prosecutor’s Office found in favour of the applicant and ordered his release on bail subject to provision of recognisance. Thereafter, the basis for the applicant’s detention was the said order of the Regional Prosecutor’s Office taken in accordance with Article 150 § 5 of the CCP, considering the continued need to guarantee the applicant’s appearance for trial through receipt of recognizance.

Accordingly, the Court does not find that the applicant’s detention during this period was in breach of the statutory maximum period of pre-trial detention or that it was otherwise unlawful or ordered other than “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  Complaint under Article 5 § 3 of the Convention that the applicant’s detention was unjustified and excessively long

The applicant complained under Article 5 § 3 of the Convention that he was not tried within a reasonable time or released pending trial.

The Government did not challenge the admissibility of this complaint.

The applicant reiterated his complaint and contended that the authorities repeatedly failed to undertake a proper assessment of all factors relevant to the lawfulness of his continued detention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of its merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  Complaints under Article 5 § 4 of the Convention

The applicant complained under Article 5 § 4 of the Convention that the domestic courts did not examine all factors relevant to the lawfulness of his detention, that his appeal of 29 September 2000 was not examined in substance by the courts and that his appeals were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention.

The Government did not challenge the admissibility of these complaints.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

4.  Complaint that the applicant lacked an enforceable right to compensation under Article 5 § 5 of the Convention.

The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5.

The Government did not challenge the admissibility of this complaint.

The applicant reiterated his complaint.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of its merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B.  Complaints under Articles 3 and 13 of the Convention in respect of the allegedly inhuman and degrading conditions of detention and the lack of an effective remedy relating thereto

The applicant complained under Articles 3 and 13 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service and the Pazardzhik Prison and that he lacked an effective remedy relating thereto.

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13 of the Convention provides:

“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 Government did not challenge the admissibility of these complaints.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

C.  Complaints under Articles 6 § 1 and 13 of the Convention in respect of the length of the criminal proceedings and the lack of an effective remedy relating thereto

The applicant complained under Articles 6 § 1 and 13 of the Convention of the excessive length of the criminal proceedings against him and the lack of an effective remedy relating thereto.

Article 6 § 1 of the Convention provides, as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13 of the Convention provides:

“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 Government did not challenge the admissibility of these complaints.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

D.  The remainder of the applicant’s complaints

The Court has examined the remainder of the applicant’s complaints as submitted by him. 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

Declares admissible, without prejudging the merits, the applicant’s complaints concerning

(1)  the length of, and justification for, his detention;

(2)  the limited scope, or lack, of judicial review of the lawfulness of his detention;

(3)  the alleged lack of an enforceable right to seek compensation for being a victim of arrest or detention in breach of Article 5 of the Convention;

(4)  the inhuman or degrading conditions of detention to which he was subjected while being detained at the Pazardzhik Regional Investigation Service and the Pazardzhik Prison and the lack of effective remedies related thereto; and

(5) the alleged excessive length of the criminal proceedings against him and the lack of an effective remedy relating thereto;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

GAVAZOV v. BULGARIA DECISION


GAVAZOV v. BULGARIA DECISION