FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57855/00 
by Velko Stoyanov GANCHEV 
against Bulgaria

The European Court of Human Rights (First Section), sitting on 30 June 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 30 December 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Velko Stoyanov Ganchev, is a Bulgarian national who was born in 1940 and lives in Velingrad. He is represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.

A.  The circumstances of the case

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

On 11 November 1999 the applicant was arrested and brought before an investigator who decided to remand him in custody on charges of sexual assault against a minor, an offence punishable with up to five years' imprisonment under Article 149 § 1 of the Criminal Code. The investigator stated that there had been a danger of the applicant committing an offence if released. The investigator's decision was confirmed by a prosecutor.

Between 11 and 18 November 1999 the applicant was detained in a 6 square metres cell in the Velingrad police station, which he shared with another person. The window was covered with a metal plate with several openings. As a result, the influx of fresh air and natural light in the cell was insufficient. The applicant could leave his cell twice per day for ten minutes. The food was served in plastic plates, without cutlery.

It appears that after 18 November 1999 the applicant was moved in another cell or was transferred to the Pazardjik prison. The applicant has not substantiated details about the conditions of his detention after 18 November 1999.

The applicant never appealed against his detention as he could have under the relevant law.

An amendment to Article 152 § 4 the Code of Criminal Procedure which entered into force on 1 January 2000 introduced a statutory two months' maximum period of pre-trial detention in cases where the charges did not concern a “serious offence”. In accordance with Article 93(7) of the Criminal Code, “serious offences” are those punishable by more than five years' imprisonment. The charges against the applicant did not concern a “serious offence” and the new provision establishing a two moths' statutory maximum period of detention applied.

On 28 March 2000 a prosecutor noted that the applicant had been detained since 11 November 1999 and that the two months' statutory maximum period of detention had expired. On that ground, the prosecutor ordered the applicant's release. He was released on 29 March 2000.

The applicant has not substantiated details about the criminal proceedings against him. It appears that on 1 October 2003 a prosecutor decided to suspend the proceedings as the whereabouts of the alleged victim were unknown.

B.  Relevant domestic law and practice

The relevant provisions of the Code of Criminal Procedure concerning decisions on pre-trial detention and the Bulgarian authorities' practice at the relevant time are summarised in the Court's judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).

In accordance with the Code of Criminal Procedure, a person remanded in custody has the right to challenge the lawfulness and justification of his detention before the competent court (Article 152a of the Code, as in force until 1 January 2000 and Article 152b as in force after that date).

The State responsibility for Damage Act provides for a possibility to obtain compensation for unlawful detention in certain cases. While the courts' practice is not settled in respect of some of the conditions for entitlement to compensation, it suggests that compensation may be obtained in respect of a period spent in detention without a valid legal ground, after the expiry of a relevant statutory time-limit (see the relevant facts and the summary of the relevant practice in Mitev v. Bulgaria, no. 40063/98, §§ 75-81 and 84-88, 22 December 2004).

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that he was not brought before a judge upon his arrest on 11 November 1999.

2. The applicant complains under Article 5 §§ 1 and 3 of the Convention that his detention was unlawful and excessively lengthy and under Article 5 § 5 that he does not have an enforceable right to compensation.

3. The applicant also complains under Article 3 of the Convention, claiming that the conditions of his detention were inhuman and degrading.

4. In a letter postmarked 12 April 2005 the applicant raises a complaint under Article 6 § 1 of the Convention stating that the criminal proceedings against him exceeded a “reasonable time”.

THE LAW

1. The applicant complains that following his arrest on 11 November 1999 he was not brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 5 § 1 and 3 of the Convention that his detention was unlawful and excessively lengthy and under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation.

The Court observes that the applicant did not appeal against his detention, as he could have in accordance with the Code of Criminal Procedure. Moreover, it is noted that on 28 March 2000 the authorities implicitly acknowledged that the applicant's detention after the expiry of the two months' statutory maximum period had been unlawful. Following this acknowledgment, the applicant did not bring a civil action under the State Responsibility for Damage Act, as he could have.

It follows that with regard to the above complaints the applicant has not exhausted all domestic remedies as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected in accordance with Article 35 § 4 of the Convention.

3. The applicant complains under Article 3 of the Convention of the conditions of his detention.

The Court observes that the applicant has not substantiated details about the conditions of his detention after 18 November 1999. In respect of his detention between 11 and 18 November 1998 in a cell at the Velingrad police station, the Court, having regard to the information submitted by the applicant about the size of his cell and its occupancy and the fact that the applicant spend only one week therein, considers that the alleged insufficient possibilities for out-of-cell activities and the inconvenience caused by the metal pane covering the cell's window did not, in the particular circumstances, amount to inhuman and degrading treatment beyond the threshold of severity under Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under its Article 35 § 4.

4. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him have exceeded a “reasonable time”.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints that he was not brought before a judge or other officer authorised by law to exercise judicial power after his arrest on 11 November 1999 and that the criminal proceedings against him have exceeded a “reasonable time”.

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis 
 Deputy Registrar President

GANCHEV v. BULGARIA DECISION


GANCHEV v. BULGARIA DECISION