FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 55861/00 
by Svetoslav Dimitrov DIMITROV 
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 9 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, 
 Mrs R. Jaeger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 9 November 1999,

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

Having regard to the observations submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Svetoslav Dimitrov Dimitrov, is a Bulgarian national, who was born in 1972 and lives in Hisar. He was represented before the Court by Ms E. Nedeva and Mr I. Dimov, lawyers practising in Plovdiv.

The respondent Government were represented by their agent, Ms M. Dimova, 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 applicant’s convictions

(a)  Case no. 14/95

In a judgment of 14 September 1995 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year’s imprisonment, suspended for a period of three years. No appeal was lodged and the judgment entered into force.

(b)  Case no. 88/96

In a judgment of 21 May 1997 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year’s imprisonment. Since this conviction concerned an offence committed during the three-year operational period of the applicant’s sentence under case no. 14/95, the court also ordered the applicant to serve that suspended sentence. No appeal was lodged and the judgment entered into force.

(c)  Case no. 50/97

In a judgment of 16 February 1999 the Plovdiv District Court found the applicant guilty of theft. Cumulating the applicant’s sentence of one year’s imprisonment under case no. 88/96, the court sentenced him to a total of three years and two months’ imprisonment for both offences.

The court also ruled as follows:

“On the basis of Article 25 § 2 of the Criminal Code [the court] deducts [from the sentence to be served] the period, during which [the applicant] was detained, calculated from 7 June 1996 to 27 December 1998”.

No appeal was lodged either by the applicant or the Prosecutor’s Office and the judgment entered into force.

2.  The applicant’s deprivation of liberty

(a)  Detentions during the period from 1996 to 1998

On 7 June 1996 the applicant was arrested and remanded in custody under case no. 50/97.

On an unspecified date towards the end of 1998 the applicant appealed against his continued remand in custody under case no. 50/97.

A report of 16 December 1998 by the Plovdiv Prison, which was apparently presented to the Plovdiv District Court in case no. 50/97, listed the different periods of the applicant’s deprivation of liberty up to that point. They were noted to be the following: (a) under case no. 14/95 – the one-year prison sentence had been served between 1 August 1997 and 10 April 1998, which included days the applicant had worked towards reducing his prison sentence; (b) under case no. 88/96 – the applicant was still serving the one-year prison sentence as from 10 April 1998 and as of the date of the report had effectively served eleven months and fifteen days, which included days he had worked towards reducing his prison sentence; and (c) under case no. 50/97 – the applicant had been remanded in custody between 7 June 1996 and 1 August 1997, which the Plovdiv Prison considered suspended on the latter date.

By decision of 17 December 1998 in case no. 50/97 the Plovdiv District Court revoked the order for the applicant’s continued remand in custody under this case and granted him bail. Release was conditional on the applicant providing recognizance unless there were other existing grounds for his continued deprivation of liberty. The applicant deposited the monetary guarantee on 21 December 1998 and was released on 27 December 1998.

The applicant obtained a certificate from the Plovdiv Prison, dated 7 April 1999, which indicated that between 7 June 1996 and 27 December 1998 he had accumulated the equivalent of three years, two months and two days of time served, which included days he had worked towards reducing his sentences. The different periods of the applicant’s deprivation of liberty were noted to be the following: (a) under case no. 14/95 – the one-year prison sentence had been served between 1 August 1997 and 10 April 1998, which included days he had worked towards reducing his prison sentence; (b) under case no. 88/96 – the one-year prison sentence had been served between 10 April 1998 and 27 December 1998, which included days he had worked towards reducing his prison sentence; and, (c) under case no. 50/97 – the applicant had been remanded in custody between 7 June 1996 and 1 August 1997, which the Plovdiv Prison considered suspended on the latter date.

(b)  The applicant’s recall to prison between 12 May 1999 and 4 February 2000

By letter of 29 April 1999 the Plovdiv District Prosecutor’s Office informed the Hisar Police Station and the Plovdiv Prison that the applicant had to be recalled to prison in order to serve an outstanding part of the sentence under case no. 50/97. The reasoning of the Prosecutor’s Office was that the time during which the applicant had served the sentence of imprisonment under case no. 14/95 should not be counted towards the period of remand in custody under case no. 50/97.

On 12 May 1999 the applicant was detained under an order issued by the Plovdiv District Prosecutor’s Office to serve an outstanding part of the sentence under case no. 50/97.

On an unspecified date the applicant appealed against the actions of the Plovdiv District Prosecutor’s Office before the Plovdiv Regional Prosecutor’s Office. He argued that there was no outstanding prison term for him to serve as a result of the time he had spent remanded in custody under case no. 50/97 and the cumulation with the sentence under case no. 88/96, which were both expressly deducted by the trial court from the time to be effectively served.

By letter of 25 May 1999 the Plovdiv Regional Prosecutor’s Office dismissed the applicant’s appeal. It stated, inter alia, the following:

“There is a sentence in criminal case no. 14/95..., which was not cumulated with the sentence under criminal case no. 50/97.”

The applicant appealed further.

By decision of 4 November 1999 the Supreme Cassation Prosecutor’s Office dismissed the applicant’s appeal. In its reasoning, it stated the following:

“Correctly... the prosecutor from the Plovdiv District Prosecutor’s Office took into account the period of the remand in custody of the [applicant] under case no. 50/97... [as being] only from 7 June 1996 to 1 August 1997, because subsequently he started serving a sentence of ‘imprisonment’.”

In the meantime, on an unspecified date the applicant petitioned the Plovdiv District Court to interpret, under Article 373 § 1 (1) of the Code of Criminal Procedure (“CCP”), its judgment of 16 February 1999 in case no. 50/97. The applicant argued, inter alia, that he had been remanded in custody during the whole period between 7 June 1996 and 27 December 1998. He further maintained that this period of two years, six months and twenty days plus the cumulated sentence of one year’s imprisonment under case no. 88/96, which the applicant had already served, meant that he had effectively served the whole sentence of three years and two months’ imprisonment under case no. 50/97. The Prosecutor’s Office meanwhile, apparently relying on a report prepared by the Plovdiv Prison that the remand in custody of the applicant under case no. 50/97 had been suspended on 1 August 1997, considered, inter alia, that the applicant still had to serve a year of the sentence imposed by the court under case no. 50/97.

A hearing in the presence of all the parties was conducted on 26 July 1999. In a decision of the same day the Plovdiv District Court dismissed the applicant’s request for interpretation of the judgment of 16 February 1999 as it considered it to be clear. The court found, inter alia, that its judgment quite unequivocally indicated that the whole period of the applicant’s remand in custody between 7 June 1996 and 27 December 1998 should be deducted from his sentence of three years and two months’ imprisonment. In this respect it stated the following:

“Accordingly, the will of the court is to deduct THE WHOLE OF THE ABOVE STATED PERIOD (emphasis added by the Plovdiv District Court), i.e. the period during which the measure for securing the [applicant’s] appearance before the court in the present case was ‘remand in custody’, and not any part thereof.”

In addition, the Plovdiv District Court considered that it was not competent to rule on the lawfulness of the actions undertaken by the Prosecutor’s Office to seek execution of part of the sentence it claimed was still outstanding.

The applicant was released on 4 February 2000 after serving the remaining part of the sentence claimed by the Prosecutor’s Office to be outstanding under case no. 50/97.

3.  Proceedings under the State Responsibility for Damage Act

On 11 November 1999 the applicant initiated an action under the State Responsibility for Damage Act (“SRDA”) against the Prosecutor’s Office and the Ministry of Justice. The applicant contended that he had been unlawfully deprived of his liberty between 12 May 1999 and 11 November 1999 because he had no outstanding prison term to serve and sought compensation for the non-pecuniary damages he had allegedly suffered as a result.

In a judgment of 28 January 2002 the Plovdiv Regional Court established, inter alia, the following:

“... the [applicant] was remanded in custody under case no. 50/97 from 7 June 1996 to 1 August 1997. From 1 August 1997 to 10 April 1998 [he] served the sentence under case no. 14/95... This sentence cannot be cumulated under Articles 23-25 of the Criminal Code and it was served separately. From 10 April 1998 to 27 December 1998 the [applicant] served the sentence under case no. 88/96. This sentence was cumulated with the sentence under case no. 50/97 and therefore under Article 25 § 3 of the Criminal Code the [trial] court when delivering its judgment in case no. 50/97 should have deducted the whole period of the sentence [which had been] served. It should [also] have deducted the whole period of the remand in custody from 7 June 1996 to 1 August 1997 on the basis of Article 59 § 1 of the Criminal Code. These two periods are two years, two months and twelve days [long]. When the [trial] court wrote in its judgment that it deducts the time during which [the applicant] was detained, calculated from 7 June 1996 to 27 December 1998, it in practice wrongly included the time during which he had been serving the sentence [under case no. 14/95] – from 1 August 1997 to 10 April 1998. By [so doing,] from the sentence of three years and two months [the trial court] deducted three years and two months, which is the period between 7 June 1996 and 27 December 1998 and it [thereby] transpired that the [applicant] had nothing more to serve. The [trial] court made this mistake despite [of the fact that] the case file contained information from the Plovdiv Prison, [detailing] the periods served by the [applicant]. In its decision [of 26 July 1999] for dismissing the request for interpreting its judgment, the [trial] court stated that its intention was to deduct the whole period from 7 June 1996 to 27 December 1998, i.e. the period during which the [applicant] was remanded in custody and not part thereof. This shows that the [trial] court was misguided that this whole period [represented] remand in custody under case no. 50/97. Thus, with this judgment one year of the [applicant’s] sentence was pardoned, because only two years and two months should have been deducted. Despite of this, the Prosecutor’s Office did not appeal against the judgment and it entered into force... After [the judgment] became final, it became binding on the Prosecutor’s Office under Article 372 § 1 of the [CCP] and it should have implement it instead of attempting to correct the [existing] mistake by interpreting the will of the [trial] court. In the period between 12 May 1999 and 4 February 2000, including from 12 May 1999 to the date of initiating the present action, 11 November 1999, the [applicant] unlawfully served a sentence of imprisonment, which if the mistake had not been made he [would] have served lawfully.”

Despite the above conclusion, the Plovdiv Regional Court found that the applicant had failed to conclusively prove that he had suffered any non-pecuniary damages as a result of having been deprived of his liberty between 12 May 1999 and 11 November 1999. Thus, the court dismissed the applicant’s action and also ordered him to pay the ensuing court fees. The applicant appealed against this judgment on an unspecified date.

In a judgment of 29 April 2002 Plovdiv Appellate Court dismissed the applicant’s appeal and upheld the lower court’s judgment. The motives for its decision were, inter alia:

“Irrespective of the wrong deduction of the time during which the [applicant] was serving the sentence... under case no. 14/95, when sentencing the applicant to three years and two months’ imprisonment the [trial] court deducted two years, five months and twenty days. This is the period between 7 June 1996 and 27 December 1998. The remaining [part] is eight months and ten days, which the applicant had to serve in view of the delivered and final judgment... in case no. 50/97 of the Plovdiv District Court.”

The applicant filed an appeal on points of law with the Supreme Court of Cassation on an unspecified date.

In a final judgment of 20 October 2003 the Supreme Court of Cassation dismissed the applicant’s action and upheld the lower courts’ judgments. In its reasoning it indicated, inter alia:

“In the motives [of the decision of 26 July 1999 of the Plovdiv District Court] the [latter] stated that the will of the [trial] court was to deduct from the so determined cumulative sentence the period during which the [applicant] was remanded in custody. With this clarification it became clearer what the will of the [trial] court had been. The Plovdiv Prosecutor’s Office made a justified assessment that the period stated in the judgment to be deducted, namely from 7 June 1996 to 27 December 1998, includes a period of one year during which the [applicant] was serving a sentence of ‘deprivation of liberty’ under the judgment in case no. 14/95..., which sentence was not cumulated under case no. 50/97..., and therefore was to be served separately. Correctly after deducting the period during which the [applicant] had served this first sentence the Prosecutor’s Office established that not all the sentence under case no. 50/97... had been served and the [applicant] was recalled to prison on 12 May 1999 to serve the remaining part of the imposed sentence. There are no indications that he was detained in prison for a period longer than [required] for serving the imposed sentence, accordingly the contention that he suffered damages as a result is unfounded. The incorrect indication in the judgment of the period of [remand in custody] to be deducted does not change the formed will [of the trial court] in respect of the size of the imposed sentence of ‘imprisonment’.”

B.  Relevant domestic law and practice

1.  Execution of sentences

The CCP does not contain express provisions establishing a procedure to be followed in cases where there is a dispute as to whether a person has effectively served a prison sentence or not. Article 373 § 1 (1) of the CCP provides that the court which has imposed the sentence rules on all difficulties or uncertainties relating to the interpretation of its judgment. That does not include, however, issues concerning the execution of sentences and, in particular, the lawfulness of a continuing detention. In general, the authority responsible for supervising the legality in the execution of sentences is the competent prosecutor (Article 375 § 2 of the CCP, section 118 (2) of the Judicial Power Act and section 4 (1) of the Execution of Sentences Act). In particular, the prosecutor has to order the release of every imprisoned person whom he or she finds deprived of liberty unlawfully (section 119 (7) (1) of the Judicial Power Act). The acts of a prosecutor may be appealed before the superior prosecutor’s office.

2.  The State Responsibility for Damage Act

Section 2 of the SRDA of 1988 provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of... the investigation, the prosecution, the courts... for:

1.  unlawful detention..., if [the detention order] has been set aside for lack of lawful grounds;

...

6.  execution of an imposed sentence in excess of the set term or amount.”

The reported case-law under section 2 (1) and (6) of the Act is scant. In two judgments the Supreme Court of Cassation held that State liability arises where a detainee was remanded in custody or imprisoned for a period exceeding the final prison term subsequently imposed by the court of last instance (реш. № 1662 от 21 януари 1994 г. по гр. д. № 306/93 г., IV г. о. на ВС и реш. № 1144 от 20 юни 2003 г. по гр. д. № 904/2002 г., IV г. о. на ВКС).

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8 (1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).

COMPLAINTS

1.  The applicant complained under Article 5 § 1 of the Convention that he was detained unlawfully on 12 May 1999, because he had served all the sentences imposed by the courts. He maintained that the whole period between 7 June 1996 and 27 December 1998 (two years, six months and twenty days) constituted remand in custody and was deducted from his sentence under case no. 50/97 (three years and two months). Together with the cumulated sentence of one year’s imprisonment, which he had served at the same time, the applicant contended that he had effectively served his sentence under case no. 50/97.

2.  The applicant complained under Article 5 § 2 of the Convention that he was not informed of the reasons for his detention on 12 May 1999.

3.  The applicant complained under Article 5 § 4 of the Convention that domestic law did not afford him the right to challenge the lawfulness and grounds for his detention after 12 May 1999 before a court of law. He contended that only persons remanded in custody had the right to appeal to a court of law against their detention and that there was no such right afforded to persons, such as him, who were detained despite the fact that they had already served their sentence. He further maintained that orders for execution of judgments were not subject to further judicial control and that he could not appeal against the actions of the Prosecutor’s Office to a court of law.

4.  The applicant complained under Article 13 of the Convention that he had no effective domestic remedy regarding his Convention complaints for the allegedly unlawful actions of the authorities.

THE LAW

Complaints under Article 5 of the Convention

The applicant made several complaints 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:

(a)  the lawful detention of a person after conviction by a competent court;

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

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 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 v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II 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 of the Convention

The applicant complained under Article 5 § 1 of the Convention that he was unlawfully deprived of his liberty between 12 May 1999 and 4 February 2000 because he had already served all the sentences imposed by the domestic courts.

The Government did not challenge the admissibility of this complaint.

The applicant reiterated his complaint and submitted that despite the explicit wording of the Plovdiv District Court, both in its judgment of 16 February 1999 and in its decision of 26 July 1999, to deduct the whole period from 7 June 1996 to 27 December 1998 from the sentence to be served in case no. 50/97, the authorities had unlawfully attempted to interpret the will of the said court in a different manner. He submitted that only the Plovdiv District Court had the right to interpret its judgment of 16 February 1999 and all other attempts to do so, either by the Prosecutor’s Office in its attempts to execute the said judgment or the domestic courts in the proceedings under the SRDA, were unlawful, not binding and erroneous. Moreover, the Prosecutor’s Office failed to appeal against the judgment of 16 February 1999 of the Plovdiv District Court, so it became final and binding on all State authorities.

The applicant also submitted that there was no provision in domestic law which provided for the automatic suspension of an order for remand in custody when a detainee starts to serve an imposed sentence during the same period. Nor was there an explicit restriction for such periods to run concurrently. The applicant submitted that the normal practice in similar cases was for the Prosecutor’s Office to request the respective court, which had ordered the remand in custody, to revoke or suspend it while the detainee is serving a sentence. This had not been done in the present case and the applicant’s remand in custody under case no. 50/97 had only been revoked by the Plovdiv District Court on 17 December 1998 when it released him on bail.

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.

2.  Complaint under Article 5 § 2 of the Convention

The applicant complained under Article 5 § 2 of the Convention that he was not informed of the reasons for his detention on 12 May 1999.

(a)  The parties’ submissions

The Government did not submit observations on the admissibility and merits of this complaint.

The applicant reiterated his complaint and submitted that the authorities failed to inform him, in a clear and concise manner, why he was being recalled to prison. He argued that it was not made clear to him which sentence he was being recalled to serve. The applicant referred to the purportedly confusing letter of the Prosecutor’s Office of 29 April 1999 and argued that it was not clear whether the authorities considered that he still had to serve the sentence under case no. 14/95, as it had not been cumulated with the other two sentences, or some outstanding part of the sentence under case no. 50/97.

(b)  The Court’s decision on admissibility

The Court reiterates that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 19, § 40 and H.B. v. Switzerland, no. 26899/95, § 47, 5 April 2001).

In the present case, the Court observes that the applicant did not contend that he was not provided with any reasons for his arrest on 12 May 1999, but submitted that there was a certain degree of confusion in respect of which sentence he was being recalled to serve. Thus, it is evident that the applicant was made aware that he was being recalled to prison for the purpose of serving a sentence imposed by a court of law. Whether the period to be served was an allegedly outstanding part of the sentence under case no. 50/97 or the whole of the sentence under case no. 14/95 does not change the fact that the applicant was informed, in a language that he understood, the essential legal and factual grounds for his recall to prison, which would allow him to challenge its lawfulness. In fact, he filed a complaint soon thereafter with the Plovdiv Regional Prosecutor’s Office challenging the actions of the Plovdiv District Prosecutor’s Office pertaining to his arrest and recall to prison.

In view of the above, the Court does not find that the authorities failed to comply with the requirement under Article 5 § 2 of the Convention and informed the applicant upon his arrest on 12 May 1999 of the “essential legal and factual grounds for his arrest” (see, mutatis mutandis, Fox, Campbell and Hartley, p. 19, § 40 and H.B. v. Switzerland, § 47, both cited above).

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

3.  Complaint under Article 5 § 4 of the Convention

The applicant complained under Article 5 § 4 of the Convention that domestic law did not afford him the right to challenge the lawfulness and grounds for his detention after 12 May 1999 before a court of law.

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.

4.  Complaint under Article 5 § 5 of the Convention

The applicant complained that he lacked an enforceable right to compensation for being a victim of arrest or detention in breach of Article 5 of the Convention.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning (1) the lawfulness of his detention between 12 May 1999 and 4 February 2000, (2) the lack of judicial review of lawfulness of the said detention, and (3) the lack of an enforceable right to seek compensation for being a victim of arrest or detention in breach of Article 5 of the Convention;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

DIMITROV v. BULGARIA DECISION


DIMITROV v. BULGARIA DECISION