FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60922/00 
by Stoyan Stoyanov MITEV 
against Bulgaria

The European Court of Human Rights (First Section), sitting on 1 September 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr K. Hajiyev,  
 Mr D. Spielmann, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 27 July 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stoyan Stoyanov Mitev, was a Bulgarian national who was born in 1934, lived in Sokolovo and passed away in 2001. He was represented before the Court by Mrs J. Vandova, a lawyer practising in Sofia.

By letter of 6 April 2005 his son, Mr Asen Stoyanov Mitev, informed the Court that he wished to continue the present application. He is also represented before the Court by Mrs J. Vandova.

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

A.  The criminal proceedings against the applicant

On 18 August 1997 the applicant was arrested after neighbours found him ruthlessly beating up another elderly individual. Apparently they had had an argument over an alleged theft of clothes. At the time of arrest, the applicant allegedly attempted to abscond. Subsequently the victim died as a result of the sustained injuries.

On the same day, 18 August 1997, a preliminary investigation was opened against the applicant. He was charged on the next day, 19 August 1997, with premeditated murder and placed in pre-trial detention by order of an investigator.

The preliminary investigation concluded on 18 November 1997.

On 22 January 1998 the Burgas Prosecutor’s Office entered an indictment against the applicant for premeditated murder.

The Burgas Regional Court conducted seven hearings between 24 February 1998 and 27 August 1998. One was adjourned because the applicant was in hospital, another due to undisclosed reasons and three due to the absence of, respectively, the prosecutor, a juror and the judge. Another two hearings were partially conducted, but had to be rescheduled because not all the witnesses or experts had appeared.

By judgment of 10 December 1998 the Burgas Regional Court found the applicant guilty as charged and sentenced him to seventeen years’ imprisonment, initially to be served at a high security prison. The court did not prepare the motives for its judgment within the statutory deadline. Nevertheless, on 29 December 1998 the applicant filed an appeal against the aforementioned judgment.

The motives of the judgment of the Burgas Regional Court were prepared with a delay sometime in April–June 1999 and only after the applicant complained of the fact to the Supreme Judicial Council and the Ministry of Justice. As a result, the applicant’s appeal against the judgment of the Burgas Regional Court was apparently received at the Burgas Appellate Court only on 16 June 1999.

The Burgas Appellate Court conducted two hearings between 13 September 1999 and 15 November 1999, both of which were adjourned at the request or due to the applicant’s lawyer. The first, because he had not been presented with the motives of the judgment of the Burgas Regional Court’s and, the second, because he was ill.

By judgment of 15 November 1999 the Burgas Appellate Court upheld the lower court’s judgment. The applicant filed a cassation appeal on 13 December 1999.

The hearings scheduled by the Supreme Court of Cassation for 23 March and 9 May 2000 were adjourned because of the applicant’s failure to attend them as a result of his deteriorating medical condition.

The hearing of 20 June 2000 was also adjourned, despite the applicant having been brought form the hospital of the Sofia Prison, because both of his lawyers were absent.

The applicant was released on bail on 21 July 2000.

Subsequently, several other hearings were scheduled, but due to the constantly deteriorating medical condition of the applicant none of them were conducted.

On 14 December 2001 the applicant passed away.

By decision of 19 March 2002 the Supreme Court of Cassation quashed the judgment of the Burgas Appellate Court and terminated the criminal proceedings against the applicant because of his death.

On 10 March 2005 the Court requested from the applicant an update concerning his application. By reply of 6 April 2005 the applicant’s lawyer informed the Court that, as a result of heart failure, his client had passed away on 14 December 2001 and that he had been succeeded by five heirs. One of them, his son, wished to continue the application and presented a statement to the Court, the relevant part of which reads as follows:

“The undersigned ... hereby declares, that following the death of my father ... I wish to continue, on his behalf, the proceedings before the [Court] under application no. 60922/00 against Bulgaria, concerning complaints of violations by the State of the rights guaranteed him under the [Convention] in the examination of criminal case no. 14/00 of the Supreme Administrative Court, 3rd section.”

B.  The applicant’s medical condition

1.  Prior to the criminal proceedings

The applicant was a pensioner and had retired on medical grounds.

After a domestic accident in 1993 he was disabled, walked with a cane and limped severally because his left leg had become shorter than his right by six centimetres.

2.  Injuries sustained during the arrest

At the time of his detention on 18 August 1997 the applicant apparently sustained a severe injury to his testicles. It is not clear whether the applicant received any medical treatment for the injury following his arrest.

On 23 January 1998 the applicant’s lawyer requested the courts to authorise the applicant to undergo special treatment for the aforementioned injury. The courts apparently never replied to his request.

3.  While in detention

The applicant was apparently primarily detained at the Stara Zagora Prison where he was transferred on 23 November 1998. On at least two occasions he was treated at the prison hospital of the Sofia Prison.

The applicant’s medical condition worsened sometime in January or February 1998. On 3 March 1998 he was transferred from the Stara Zagora Prison to the hospital of the Sofia Prison where he was diagnosed with hernia inguinalis. On 10 March 1998 a herniotomy was performed on the applicant, apparently at the Sofia Prison hospital. On an unspecified date prior to May 1998, the applicant was transferred back to the Stara Zagora Prison.

In the meantime and until his release, the applicant’s psychological state of mind deteriorated. He allegedly had constant fears that he would greatly suffer and possibly die in prison, because of the allegedly inadequate facilities for treatment and rehabilitation, especially in the event that his medical condition deteriorated rapidly. It is unclear whether the applicant sought any treatment for this condition and whether any such was available at the facilities where he was being detained.

Sometime prior to July 1998 the applicant apparently developed an infection or other complications which affected his urinary tract and he had difficulty urinating. It is unclear what medical assistance and treatment the applicant received for this condition.

On 28 January 2000, while at the Stara Zagora Prison, the applicant suffered a stroke. Once his condition had stabilised he was transferred to the neurological ward of the hospital of the Sofia Prison on 18 February 2000. There it was established that as a result of the stroke he had right-sided hemiparesis, difficulty in keeping his balance, his speech abilities were deteriorating and that he had constant headaches.

At the hospital of the Sofia Prison the applicant was given medication in order to improve the blood circulation to his brain and on 23 February 2000 started physiotherapy.

On an unspecified date the applicant’s doctor prepared a medical report which indicated that he was diagnosed with the following:

“generalised and brain atherosclerosis; ischemic (thromboembolic) brain stroke; right-sided hemiparesis; partial aphasia; arterial hypothermia – 3rd stage”.

The report also specified that as a result of the lack of specialised rehabilitation and physical therapy the applicant’s ability to move would continue to deteriorate as had his speech abilities as a result of the lack of a logopaedic specialist. The doctor concluded the following:

“the patient is unsuitable to remain in [prison] conditions of high or standard level of security. [The applicant] requires constant monitoring of his arterial pressure, neurological status and sustaining therapy”.

A medical certificate of 9 May 2000 assessed the applicant’s blood pressure as being unstable, which would not allow him to participate in the hearing of that day. In addition, it stated that if his medical condition did not improve, as a result of the heightened risk of a second stroke, it would be necessary to decide whether to propose that his detention be replaced with another measure for ensuring his participation in the court proceedings.

A further medical report of 15 May 2000, prepared by three doctors, reiterated the previous findings. The report was addressed to the director of the Stara Zagora Prison and proposed that the applicant be released from detention in order to receive adequate treatment for his condition in a specialised civil medical facility. It also indicated that, despite initial improvements following the prescribed treatment, the applicant’s condition was not improving and that it was in fact deteriorating.

C.  The applicant’s appeals against his detention

1.  Prior to conviction by the Burgas Regional Court

The applicant filed his first appeal against his detention on 20 January 1998. The courts did not apparently rule on the applicant’s appeal.

A second appeal was filed on 20 February 1998, primarily citing the applicant’s worsening medical condition as precluding any risk of absconding or re-offending. The court indicated that it would rule on the appeal at the end of the hearing on 24 February 1998, but failed to do so.

On 10 March 1998 a herniotomy was performed on the applicant (see part B.3 above).

At the hearing on 13 April 1998 the applicant’s lawyer filed yet another appeal against his detention, citing the worsening medical condition of his client, the recent operation he had undertaken and the fact that he was disabled. The court failed to rule on the appeal.

A similar appeal was filed at the next hearing on 5 May 1998, which the court dismissed on the grounds that the applicant had been charged with a serious intentional offence and that detention in such cases was mandatory.

The applicant’s lawyer filed his next appeal at the hearing on 3 July 1998 and once again referred to the applicant’s worsening medical condition and also to the fact that he had a problem urinating. The court dismissed the appeal because it considered that there was no evidence to that effect, that these assertions were unsubstantiated and that the applicant was charged with a serious intentional offence.

2.  After conviction by the Burgas Regional Court

The applicant filed an appeal against his continuing detention on 18 August 1999 citing the unreasonable length of his detention and alleged a failure to comply with domestic legislation in respect of the maximum time limit for such detentions. The Burgas Appellate Court dismissed the appeal on 20 August 1999 on the grounds that the time limit referred to by the applicant applied only to detentions at the investigation stage and not to the court stage of the criminal proceedings. The court also found that the applicant’s continued detention was justified as there was still a risk that he might abscond, re-offend or hamper the investigation.

On 28 January 2000 the applicant suffered a stroke (see part B.3 above).

On 1 March 2000 the applicant’s lawyer filed another appeal against his client’s continued detention, citing the latter’s stroke and deteriorating medical condition which forbade any possibility that he may abscond. The applicant’s lawyer presented the court with a medical certificate, allegedly dated 1 March 2000, which outlined the applicant’s severe medical condition. At the hearing on 23 March 2000 before the Supreme Court of Cassation the representative of the Prosecutor’s Office allegedly agreed with and made no objections to the aforementioned request of the applicant’s lawyer.

By decision of 30 March 2000 the Supreme Court of Cassation, in camera, dismissed the applicant’s appeal on the grounds that he had been found guilty of a serious intentional offence, had been sentenced to seventeen years’ imprisonment and that his medical condition did not prevent him from absconding or re-offending once released.

The applicant’s lawyer filed yet another appeal against his detention at the hearing scheduled for 9 May 2000, which was again allegedly supported by the representative of the Prosecutor’s Office. The medical report prepared by the applicant’s doctor and the certificate of 9 May 2000 (see part B.3 above) were also presented to the court for consideration. Finally, the applicant’s lawyer requested that a medical commission be set up to assess whether the medical condition of his client allowed him to participate in the proceedings.

By decision of 2 June 2000 the Supreme Court of Cassation, in camera, dismissed the applicant’s appeal of 9 May 2000. It considered, based on the medical documents presented, that the applicant’s medical condition was unclear and contradictory. The court concluded that, insofar as it was not unequivocally considered that the applicant’s condition had worsened to such an extent as to prevent him from moving or from being transported, that there was still, therefore, a risk that he might abscond or re-offend.

In response to the medical report of 15 May 2000 (see part B.3 above), the warden of the Stara Zagora Prison filed a request on 18 May 2000 with the Burgas Appellate Court seeking to release the applicant on medical grounds. The request was forwarded to the Supreme Court of Cassation on 9 June 2000, which received it on 21 June 2000.

On 2 July 2000 a full-page article in a national newspaper was published detailing the applicant’s plight in detention despite his worsening medical condition.

By decision of 21 July 2000 the Supreme Court of Cassation released the applicant on bail of 5,000 Bulgarian Levs. It found that insofar as he could not travel on his own there was no risk that he may abscond or re-offend. Immediately after this decision the applicant’s relatives deposited the bail amount and he was released.

D.  Relevant domestic law and practice

1.  Grounds for pre-trial detention

(a)  before 1 January 2000

At the relevant time and until the reform of the Code of Criminal Procedure of 1 January 2000 detention pending trial was mandatory in cases where the charges concerned a serious intentional offence. Detention could only be dispensed with, as interpreted by the Supreme Court, when it was clear and beyond doubt that any danger of absconding or re-offending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence.

The relevant domestic law and practice have been 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)).

(b)  since 1 January 2000

As of that date the legal regime of detention under the Code of Criminal Procedure 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 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 Supreme Court of Cassation).

2.  Provision of medical services to persons detained on remand

The Execution of Sentences Act provided in its Article 10, as in force at the relevant time, that prisons may also accommodate persons who have been placed in detention on remand. In addition, Article 20c of the Act, as in force at the relevant time, provided that such persons received free medical services at the State and the municipal medical facilities, as well as at those managed by the Ministry of Internal Affairs.

Finally, Article 22 of the Act, as in force at the relevant time, provided that if the medical establishments attached to the prisons were not adequate for the provision of a required treatment, then the detained person was to be sent for such treatment to a civil medical establishment.

COMPLAINTS

1.  The applicant complains under Article 5 § 3 of the Convention that following his arrest on 18 August 1997 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

2.  The applicant complains under Article 5 § 1 (c) that he was detained unlawfully on 18 August 1997. He submits that the evidence against him was not sufficient to lead to the conclusion that he was guilty of an offence. In addition, he contends that there was no evidence that he would abscond or re-offend.

3.  The applicant complains relying on Article 5 §§ 1 (c) and 3 of the Convention that his detention was unjustified and excessively lengthy having in mind that his medical condition had worsened and it was not reasonable to conclude that he might abscond or re-offend.

4.  The applicant complains under Article 5 § 4 of the Convention that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, the applicant claims that there was a violation of the requirement for a speedy decision under Article 5 § 4 of the Convention. The applicant especially refers to the dismissals of his appeals on medical grounds by the Burgas Regional Court and the Supreme Court of Cassation.

5.  The applicant complains under Article 3 of the Convention that his continued detention despite his constantly deteriorating medical condition amounted to inhuman and degrading treatment. He refers to (1) his advanced old age, (2) prior disability and difficulty in walking, (3) the herniotomy performed on 10 March 1998, (3) the stroke suffered on 28 January 2000, and (4) the constant fear and anguish that he may die while in detention because of the inadequate medical capabilities of the facilities where he was detained.

6.  The applicant complains under Article 6 § 1 of the Convention that the length of the criminal proceedings was excessive.

THE LAW

A.  Complaint under Article 3 of the Convention

Article 3 of the Convention provides:

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

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.

B.  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

Decides to adjourn the examination of the applicant’s complaint concerning his continued detention in conditions, which, considering his medical condition, were allegedly inadequate;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

MITEV v. BULGARIA DECISION


MITEV v. BULGARIA DECISION