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FIFTH
SECTION
CASE OF
KANDZHOV v. BULGARIA
(Application
no. 68294/01)
JUDGMENT
STRASBOURG
6
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kandzhov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 68294/01) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Aleksandar Bogdanov Kandzhov, a Bulgarian
national born in 1971 and living in the village of Pobeda, the Pleven
region (“the applicant”), on 5 January 2001.
- The
applicant was represented by Mr Y. Grozev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Kotseva, of the Ministry of
Justice.
- The applicant alleged that his arrest and detention
for displaying a banner allegedly insulting the Minister of Justice
and gathering signatures calling for the Minister's resignation had
been unlawful and in breach of his right to freedom of expression. He
also alleged that after his arrest he had not been brought promptly
before a judge.
- On
14 November 2006 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
- The
applicant has been involved in politics since the beginning of the
democratic changes in Bulgaria in 1990 and was an activist of one of
the major political parties in the 1990s, the Union of Democratic
Forces (“UDF”). He played an active role in the UDF's
campaign during the parliamentary elections in April 1997. After the
elections, he grew gradually disenchanted with the UDF's policies and
some of its leaders. He was particularly disappointed by Mr Teodosiy
Simeonov, a UDF Member of Parliament from the Pleven constituency and
head of the UDF branch in Pleven. On 4 February 1999 the applicant,
together with a few other members of the UDF, formed the “Committee
against corruption in the UDF – Pleven”. In his capacity
as chairman of the committee, the applicant wrote to the Prime
Minister, who was also leader of the UDF, alleging that Mr Simeonov
had been heavily involved in political intrigue and corruption.
- On
18 December 1999 Mr Simeonov was re elected as head of the
Pleven branch of the UDF and on 21 December 2000 appointed as
Minister of Justice.
- On
1 June 2000, in an interview discussing the widely publicised trial
of five Bulgarian nurses facing the death penalty in Libya, Mr
Simeonov expressed the opinion that Libya was not a “white”
country. This statement was severely criticised by the press and
sparked a protest from the Libyan ambassador to Bulgaria. On 14 June
2000 the daily newspaper Monitor ran an editorial expressing
the opinion that with his statement Mr Simeonov was “on his way
to being ranked 'top idiot' of the year”.
- In
the beginning of July 2000 the applicant, together with some friends
and political supporters, founded an initiative committee to campaign
for Mr Simeonov's resignation. On 7 July 2000 he notified the mayor
of Pleven that on 10, 11 and 12 July 2000 in the centre of Pleven UDF
supporters would gather signatures calling for the resignation of
“the top idiot of the Bulgarian Government – Teodosiy
Simeonov”. The organisers planned to gather signatures between
9 a.m. and 5 p.m. on the above mentioned days at four stands
placed in front of the town hall, the district police station, the
theatre and the Monument to the Unknown Soldier – all in the
centre of Pleven.
- On
7 July 2000 the deputy mayor, who at the time was acting as mayor,
refused to give permission for the gathering of signatures. His
refusal was based on a lack of evidence that the applicant had been
authorised to represent the initiative committee. The mayor further
reasoned that coordination was necessary in order to ensure “the
safety of citizens and buildings pursuant to Regulation no. 1 on the
maintenance and protection of public order and public property in the
municipality of Pleven” and invited the applicant, if he
insisted on carrying out the action, to discuss where exactly the
tables could be placed. On 9 July 2000 the police tried to apprise
the applicant of this refusal but could not find him at his address.
2. The events of 10 14 July 2000 and the criminal
proceedings against the applicant
- At
about 9 a.m. on 10 July 2000, while on his way to one of the
signature gathering stands, the applicant was stopped in front
of the district police station by the head of the police department,
who informed him about the deputy mayor's refusal. The applicant, who
was determined to go ahead with his plan, went to the town hall and
met with the deputy mayor, but did not reach an agreement with him.
- The
applicant decided to complete the planned action. He put in the
centre of Pleven two stands and two posters reading “We, the
supporters of the UDF, call for the resignation of the top idiot of
the Government Teodosiy Simeonov”. A number of people,
including some police officers, gathered around the stands.
- At
11.35 a.m. the same day a police officer warned the applicant in
writing that he should remove the stands, pending approval of their
locations by the deputy mayor. The applicant refused to take them
away, as he considered that the placing of stands on public ground
did not amount to a breach of public order and that the law did not
require him to seek permission from the mayor for that.
- At 12.30 p.m. another police officer ordered the
applicant's arrest. The order was based on section 70(1) of the 1997
Ministry of Internal Affairs Act and Articles 148 § 1 (1) and
(3) and 325 § 2 of the 1968 Criminal Code (see paragraphs 82 and
82 below). It did not set out the specific acts alleged against the
applicant. Immediately after that the police arrested the applicant
and seized the two posters.
- Later
in the day the police officer who had ordered the applicant's arrest
instituted a criminal investigation against him for publicly
insulting the Minister of Justice in his official capacity, contrary
to Article 148 § 1 (1) and (3) of the 1968 Criminal Code, and
for performing indecent actions, grossly violating public order, and
demonstrating overt disrespect for society, characterised by
exceptional cynicism and arrogance, contrary to Article 325 § 2
of the Code (see paragraphs 82 and 82 below). He did not specify
exactly what acts the applicant had carried out.
- The
applicant was questioned at 6.30 p.m. He pleaded not guilty and
refused to make any statements until the arrival of his counsel.
- On
11 July 2000 the Pleven District Prosecutor's Office received a
complaint by Mr Simeonov who requested that criminal proceedings for
insult under Article 148 and for hooliganism under Article 325 of the
1968 Criminal Code be instituted against the applicant.
- The same day a prosecutor of the Pleven District
Prosecutor's Office, acting on the proposal of the police and
pursuant to his powers under Article 152a § 3 of the 1974 Code
of Criminal Procedure (see paragraph 82 below), ordered that the
applicant be detained for seventy-two hours, starting at 12.30 p.m.
that day, pending a ruling by the Pleven District Court on whether he
should be placed in “pre trial detention”. He noted
that proceedings had been instituted against the applicant on charges
of insult and hooliganism and stated, inter alia, that there
was a real risk that he would flee or re offend. The applicant's
counsel immediately appealed against the order to the Pleven Regional
Prosecutor's Office. She did not receive a reply.
- On
the same day the investigator in charge of the case interviewed Mr
Simeonov. He said that he had felt very insulted and humiliated by
the campaign for his resignation and by the description of him as a
“top idiot”. He had learned about the events from his son
and had immediately telephoned the deputy mayor, the vice chairman
of the UDF in Pleven and the head of the district police department,
insisting that they “ensure public order”. The
investigator also interviewed two police officers who had
eye witnessed the events of 10 July 2000.
- On
12 July 2000 the investigator interviewed the deputy mayor, the
vice president of the UDF in Pleven and the applicant's father.
The interviews finished at 4.45 p.m.
- At 11 a.m. on 14 July 2000 the Pleven District Court
examined the request for placing the applicant in “pre-trial
detention” at a public hearing. It heard submissions from the
prosecutor and the applicant's counsel. It held that, while there
were indications that the applicant had committed the offence alleged
against him, it was not necessary to place him in “pre-trial
detention”, because there was no risk that he would abscond or
re offend. The court also noted certain health problems
experienced by the applicant. It decided to release him on bail. The
applicant apparently paid the bail immediately after the hearing,
which finished at 11.30 a.m., and was released.
- The
investigation against the applicant was completed on 24 July 2000 and
the case file was sent to the Pleven District Prosecutor's Office. On
25 July 2000 it indicted the applicant, accusing him of aggravated
hooliganism. The insult charges had apparently been dropped earlier.
- After holding a trial, in a judgment of 23 April 2001
the Pleven District Court found the applicant guilty of aggravated
hooliganism, contrary to Article 325 § 2 of the 1968 Criminal
Code (see paragraph 82 below) and sentenced him to four months'
imprisonment, suspended for three years.
- Upon an appeal by the applicant, on 25 September 2001
the Pleven Regional Court quashed the lower court's judgment and
acquitted him.
- The
Pleven Regional Prosecutor's Office appealed on points of law. The
appeal was examined by the Supreme Court of Cassation at a public
hearing which took place on 15 January 2002. The prosecution, which
was represented by a prosecutor of the Supreme Cassation Prosecutor's
Office, expressed the opinion that the acquittal was correct and
should be upheld.
- In a final judgment of 11 February 2002 the Supreme
Court of Cassation upheld the applicant's acquittal in the following
terms:
“... The court of first instance failed to give
any arguments, but merely declared that [the applicant's] acts
amounted to 'a brutal demonstration against the established order'
and had caused 'considerable harm' to this order. ...the testimony of
the persons authorised to preserve public order – the [police
officers] questioned as witnesses, and in particular, [one of them],
who was specifically asked about this – shows that no
'disarray, commotion or breach of public order' had occurred at the
place where [the applicant] and the other UDF supporters had
organised the gathering of signatures in support of the removal from
office of the then Minister of Justice T. Simeonov. The only thing
which could be characterised as scandalous is the label 'top idiot'
accompanying the name of the witness Simeonov on the two posters
explaining the aim of the event. However, there is no evidence
whatsoever that the use of these words was intended to discredit T.
Simeonov by lowering his prestige and dignity.”
- The court went on to say that it was public knowledge
that a month before the events of 10 July 2000 Mr Simeonov had made
an unacceptable statement in respect of Libya, which, in view of its
potentially damaging repercussions for relations between the two
countries, had been assessed very negatively by the press and had
eventually led to the loss of his post. It was the press that had
first called Mr Simeonov a “top idiot” and there was no
indication that any newspaper had been called upon to answer for this
phrase. It was thus completely natural for the applicant, when
calling for the Minister's resignation, to use the same phrase, thus
expressing the public – and not merely his own – attitude
towards Mr Simeonov's activities. On this basis, the court concluded
that:
“It is clear from the above, that, as regards the
subjective element, no offence under Article 325 §§ 1 or 2
[of the 1968 Criminal Code] has been committed, because there were no
acts which meant to breach public order or demonstrate overt
disrespect for society. The offence alleged against [the applicant]
was not objectively committed either: there was no public disorder
and the presence of police officers at the site was due to the need
to prevent possible incidents. The expression of indignation by [some
of the persons who were present there], which was an act of political
support for T. Simeonov, cannot be seen as a consequence of
hooliganism either.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Hooliganism
- Article 325 §§ 1 and 2 of the 1968 Criminal
Code, as in force at the relevant time, provided:
“1. Whoever carries out indecent
actions which grossly violate public order and show overt disrespect
for society shall be punished for hooliganism by up to two years'
imprisonment or by corrective labour, as well as by public reprimand.
2. If the actions are accompanied by
resistance against [a law enforcement officer], or are characterised
by exceptional cynicism or arrogance, the penalty shall be up to five
years' imprisonment.”
- In a binding interpretative decision made in 1974
(Постановление
№ 2
от
29 ноември
1974 г. по н.д. № 4/1974 г.,
Пленум на ВС),
the Supreme Court defined the elements of hooliganism. The first
element is the perpetration of indecent actions, which are described
as actions which are “improper or impudent, expressed through
curses, raving, bad manners or other actions scandalising society”.
Indecent actions must both grossly violate public order and
demonstrate overt disrespect for society. Gross violation of public
order occurs when “through his actions the perpetrator makes a
brutal demonstration against the established order”. These
actions violate “important State, public or personal interests
or substantially affect morality”. “Overt disrespect for
society” is present when through his actions the perpetrator
“openly demonstrates a high level of disrespect for the
individuals and the rules of society”.
- According to the decision, “exceptional
cynicism” within the meaning of paragraph 2 of Article 325 is
present when “the acts of hooliganism are particularly
impudent, grossly violate moral values and affect citizens'
feelings”. Obscene actions which are performed in public and
cause indignation in society are also “exceptionally cynical”.
“Exceptional arrogance” is present when “the
actions gravely and persistently affect public and personal interests
and express a disparaging attitude towards public order or other
public or personal interests”. These actions “scandalize
society and demonstrate rude impudence or cause grave insult”.
B. Insult
- Insult is a criminal offence under Article 146 of the
1968 Criminal Code. It is aggravated if committed in public and/or in
respect of public officials carrying out their duties (Article 148 §
1 (1) and (3) of the Code). Prior to March 2000 it was privately
prosecutable save in cases where the victim was a public official
(Article 161 of the Code, as in force before March 2000). After an
amendment to the Code of March 2000 insult became privately
prosecutable in all cases and was no longer punishable with a term of
imprisonment. This means that there is no pre trial
investigation (Articles 171 and 240 of the 1974 Code of Criminal
Procedure and Articles 191 and 247 § 1 of the 2005 Code of
Criminal Procedure) and that no preventive measures, such as
pre trial detention or bail, may be imposed on the accused, as
they are possible solely in respect of publicly prosecutable offences
(Article 146 of the 1974 Code and Article 56 § 1 of the 2005
Code). Pre trial detention is not permissible either, as it can
only be imposed when the charges concern an offence punishable with a
term of imprisonment or a harsher penalty (Article 152 § 1 of
the 1974 Code and Article 63 § 1 of the 2005 Code).
C. Provisions concerning police detention and detention
by order of a prosecutor
- Under the 1997 Ministry of Internal Affairs Act, as in
force at the relevant time, the police could, on the basis of a
written order to that effect (section 72(1)), arrest an individual
who had committed a criminal offence (section 70(1)(1)). An
individual taken in police custody was entitled to be assisted by
counsel and seek judicial review of his detention (section 70(3) and
(4)). The application had to be examined immediately (section 70(3)
in fine). Police detention under section 70(1)(1) and (1)(2)
could not exceed twenty four hours (section 71 in fine).
- Police detention under section 70(1)(1) was lawful
only if it immediately preceded the opening of a preliminary
investigation against the arrestee (реш.
№ 9779 от 24 ноември
2004 г. по адм. д. №
4925/2004 г., ВАС, V отд.).
It was imposed with a view to instituting such a preliminary
investigation (реш.
№ 3996 от 13 април
2006 г. по адм. д. №
9362/2005 г., ВАС, V отд.).
The power to detain was given to the police to assist them in
the investigation of crime (реш.
№ 1812 от 27 февруари
2003 г. по адм. д. №
10831/2002 г., ВАС,
V отд.;
реш.
№ 810 от 27 януари
2005 г.
по адм. д. №
6185/2004
г., ВАС, V отд.; реш.
№ 2550 от 21 март 2005 г.
по адм. д. № 7391/2004 г.,
ВАС, V отд.).
All reported cases under section 70(1)(1) concern
publicly prosecutable offences.
- Arrest orders under section 70 were administrative
decisions. According to the case-law of the Supreme Administrative
Court (опр.
№ 1793
от 17 февруари
2006 г. по адм. д. №
1390/2006, ВАС, V отд.;
реш.
№ 894
от 31 януари 2005 г.
по адм. д. № 5783/2004 г.,
ВАС, V отд.),
the persons affected by them could challenge their lawfulness before
a court and, if they were set aside, they could seek damages under
section 1 of the 1988 State Responsibility for Damage Act (see
paragraph 82 below).
- Article 152a of the 1974 Code of Criminal Procedure,
which governs the procedure for imposing “pre trial
detention” (“задържане
под стража”)
under Article 152 of the Code, was changed in its entirety with
effect from 1 January 2000, in a bid to bring Bulgarian law in
line with Article 5 the Convention (тълк.
реш. № 1
от 25 юни
2002 г. по н.д. №
1/2002
г., ОСНК на ВКС).
The amended paragraph 3 of Article 152a provided that the
investigation and the prosecution authorities had to ensure the
immediate appearance of the accused before the competent
first instance court and, if necessary, detain them until that
moment. Such detention could not exceed twenty four hours if
ordered by an investigator and seventy two hours if ordered by a
prosecutor. This distinction was apparently intended to ensure
compliance with Article 30 § 3 in fine of the 1991
Constitution, which provides that any deprivation of liberty has to
be reviewed by an “organ of the judicial power” within
twenty four hours.
D. The 1988 State Responsibility for Damage Act
- Section 1 of the 1988 State Responsibility for Damage
Caused to Citizens Act (“the SRDA” – „Закон
за отговорността
на държавата
за вреди, причинени
на граждани“
– this was the original title; on 12 July 2006 it was changed
to the State and Municipalities Responsibility for Damage Act, „Закон
за отговорността
на държавата
и общините за
вреди“), provided
that the State was liable for damage suffered by private persons as a
result of unlawful decisions, actions or omissions by civil servants,
committed in the course of or in connection with the performance of
their duties. Section 1(2), as in force at the material time,
provided that compensation for damage arising from unlawful decisions
could be claimed after the decisions concerned had been annulled in
prior proceedings.
- Section 2 of the SRDA reads, in so far as relevant:
“The State shall be liable for damage caused to
[private persons] by the organs of ... the investigation, the
prosecution, the courts ... for unlawful:
1. pre trial detention, including when
imposed as a preventive measure, when it has been set aside for lack
of lawful grounds;
2. criminal charges, if the person concerned
has been acquitted, or if the criminal proceedings have been
discontinued because the act has not been committed by the person
concerned or did not constitute a criminal offence...”
- According to the courts' case law, the State is
liable for all damage caused by pre-trial detention where the accused
has been acquitted (реш.
№ 978/2001
г. от 10 юли
2001
г. по г.д. №
1036/2001
г. на ВКС) or the
criminal proceedings discontinued on grounds that the charges have
not been proven, the perpetrated act is not an offence, or the
criminal proceedings were unlawful from the outset because they were
opened after the expiry of the relevant limitation period or an
amnesty (реш.
№ 859/
2001 г. от 10 септември
2001
г. г.д. № 2017/2000
г. на ВКС).
- In a binding interpretative decision (тълк.
реш. № 3 от 22 април
2004 г. на ВКС по
тълк.д. № 3/2004 г., ОСГК),
made on 22 April 2004 pursuant to the proposal of the President of
the Supreme Court of Cassation, the Plenary Meeting of the Civil
Chambers of that court resolved a number of contentious issues
relating to the construction of various provisions of the SRDA. In
point 13 of the decision it held that compensation awarded in respect
of the non pecuniary damage arising under section 2(1) or (2) of
the SRDA should also cover non pecuniary damage stemming from
unlawful pre-trial detention imposed during the proceedings, whereas
compensation for pecuniary damage resulting from such detention
should be awarded separately. The reasons it gave for this conclusion
were as follows:
“Pre trial detention is unlawful when it
does not comply with the requirements of [the Code of Criminal
Procedure].
The State is liable under section 2(1) [of the] SRDA
when the pre trial detention has been set aside as unlawful,
irrespective of how [the criminal] proceedings unfold later. In such
cases compensation is determined separately.
If the person has been acquitted or the criminal
proceedings have been discontinued, the State is liable under section
2(2) [of the] SRDA. In that case, the compensation for non-pecuniary
damage has to cover the damage resulting from the unlawful pre trial
detention. If pecuniary damage has arisen, compensation for it is not
included but has to be awarded separately, taking into account the
particular circumstances of each case.”
- Persons
seeking redress for damage resulting from 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.).
THE LAW
I. ADMISSIBILITY OF THE APPLICATION
- The
Government submitted that the application was inadmissible because
the applicant had failed to exhaust domestic remedies in respect of
his complaints. They pointed out that the criminal proceedings
against him had resulted in an acquittal and that the grievances
which he raised before the Court thus fell within the ambit of
section 2(2) of the SRDA. He therefore could have claimed
compensation for the damage sustained as a consequence of the
criminal proceedings against him. At the relevant time the domestic
courts' case law on the application of this provision had been
sufficiently established, making it an adequate and effective avenue
of redress. In support of their assertion the Government pointed to a
number of domestic judgments under section 2(2) of the SRDA and drew
attention to the fact that in 2004 the Supreme Court of Cassation had
adopted a binding interpretative decision on its application.
- The
applicant conceded that, despite some practical difficulties, he
could have brought a claim under section 2(2) of the SRDA. However,
for him, such a claim would not have provided redress in respect of
the complaints which he had raised before the Court. These complaints
were all founded on his unlawful and unjustified detention between 10
and 14 July 2000, whereas a claim under section 2(2) of the SRDA
would have been based exclusively on his eventual acquittal. In such
proceedings the national courts would not have addressed the issues
brought before the Court because they would have considered them
irrelevant. Moreover, such a claim would have only been capable of
providing compensation, not securing his release. Only remedies which
could result in release could be considered effective with regard to
deprivation of liberty. Similarly, a claim under section 2(2) could
not have provided genuine redress for the breach of his freedom of
expression.
- Article
35 § 1 of the Convention provides, in so far as relevant:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
- The
Court has often stated that the rule of exhaustion of domestic
remedies referred to in this provision requires applicants to use
first the remedies that are normally available and sufficient in the
domestic legal system to enable them to obtain redress for the
breaches alleged. However, it is incumbent on a Government claiming
non exhaustion to indicate with sufficient clarity the remedies
to which an applicant has not had recourse and to satisfy the Court
that they were effective and available in theory and in practice at
the relevant time, that is to say that they were accessible, were
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (see, as a recent
relevant authority, Kolev v. Bulgaria, no. 50326/99, §§
70 and 72, 28 April 2005).
- The
Court does not need to resolve the question whether a claim for
compensation may be considered as an effective remedy in respect of a
deprivation of liberty carried out in breach of Article 5 of the
Convention (see De Jong, Baljet and Van den Brink v. the
Netherlands, judgment of 22 May 1984, § 39, Series A
no. 77; Amuur v. France, judgment of 25 June 1996, § 36
in fine, Reports of Judgments and Decisions 1996 III;
Steel and Others v. the United Kingdom, judgment of 23
September 1998, § 63, Reports 1998 VII; Tám
v. Slovakia, no. 50213/99, §§ 44 53, 22 June 2004;
Andrei Georgiev v. Bulgaria, no. 61507/00, §§ 73 79,
26 July 2007; and Ladent v. Poland, no. 11036/03, § 39,
ECHR 2008 ... (extracts), which imply that it may be; Kokavecz
v. Hungary (dec.), no. 27312/95, 20 April 1999, which says that
it is, after the impugned detention has ended; and Tomasi v.
France, judgment of 27 August 1992, § 79, Series A no.
241 A; Navarra v. France, judgment of 23 November 1993, §
24, Series A no. 273 B; Yağcı
and Sargın v. Turkey, judgment of 8 June 1995,
§ 44, Series A no. 319 A; Włoch
v. Poland, no. 27785/95, § 90, ECHR 2000 XI; and
Haris v. Slovakia, no. 14893/02, § 38, 6 September 2007,
which say that it is not, even after the individual concerned has
been released). Even if it were to be assumed that in certain
situations it may be deemed such a remedy, the Court does not, for
the reasons which follow, consider that it was available to the
applicant in the instant case.
- The
Court notes at the outset that the Government pointed solely to
section 2(2) of the SRDA and did not invoke any other provision of
domestic law in support of their contention that the applicant had
failed to exhaust domestic remedies. It is therefore not necessary
for the Court to consider of its own motion whether some of the
complaints should have been declared inadmissible in part on account
of the applicant's failure to seek judicial review of his police
detention under section 70(3) of the 1997 Ministry of Internal
Affairs Act and then claim damages under section 1 of the SRDA (see
paragraphs 82 and 82 above and, mutatis mutandis, Steel and
Others, cited above, p. 2737, § 63, with further
references).
- Turning
to the provision relied on by the Government, section 2(2) of the
SRDA, the Court must firstly determine whether it was capable of
remedying the applicant's grievance under Article 5 § 1 (c) of
the Convention. On this point, it notes that the Supreme Court of
Cassation's 2004 binding interpretative decision, which clarifies in
respect of what facts compensation is due under this provision,
refers to “pre trial detention”, a term taken from
the 1974 Code of Criminal Procedure and referring exclusively to one
form of deprivation of liberty imposed in the course of criminal
proceedings (see paragraph 82 above). However, in the case at hand
the applicant was never placed in “pre trial detention”.
He was first in police detention under section 70(1) of the 1997
Ministry of Internal Affairs Act (see paragraphs 82 and 82 above) and
then in detention ordered by a prosecutor under Article 152a § 3
of the 1974 Code of Criminal Procedure, pending a judicial
determination of whether or not he should be placed in “pre trial
detention” (see paragraphs 82 and 82 above). When brought
before a judge, he was released on bail (see paragraph 82 above). It
thus seems unlikely that the domestic courts would have found that
his deprivation of liberty fell within the ambit of section 2(2) of
the SRDA and that he was entitled to compensation for it, despite his
acquittal. The Government – who are under the burden of proving
the effectiveness of the remedies which they invoke – have not
pointed to any domestic court judgment under section 2(2) of the SRDA
in which compensation has been awarded in such circumstances. The
Court is therefore not persuaded that a claim under this provision
can be seen as an effective remedy in respect of the applicant's
complaint under Article 5 § 1 (c) of the Convention.
- The
Court secondly finds that a claim under section 2(2) of the SRDA
cannot be considered as capable of providing redress in respect of
the applicant's complaint under Article 5 § 3 of the Convention
that he was not brought promptly before a judge. It is clear from the
domestic courts' case law and from the 2004 interpretative
decision of the Supreme Court of Cassation that in examining claims
under this provision these courts confine their attention to whether
the persons concerned have been acquitted and prior to such acquittal
placed in “pre trial detention”, and do not review
whether they have been brought promptly before a judge who would rule
on the initial need for their detention (see paragraphs 82 and 82
above). It thus seems that section 2(2) of the SRDA does not create a
cause of action in respect of the applicant's grievance under Article
5 § 3 of the Convention (see Kolevi v. Bulgaria (dec.),
no. 1108/02, 4 December 2007; and, mutatis mutandis, Pavletić
v. Slovakia, no. 39359/98, § 71, 22 June 2004). The
Government have not identified any domestic court judgment in which
compensation has been awarded on the basis of such facts.
- Finally,
the Court must examine whether a claim under section 2(2) of the SRDA
can be said to constitute an effective remedy in respect of the
alleged violation of Article 10 of the Convention. On this point, it
notes that the applicant's allegation that his freedom of expression
had been violated was based on his arrest and subsequent detention,
not on the opening of criminal proceedings against him (see
paragraphs 82 above and 82 below). The Court already found that such
an action would not have been likely to result in an award of
compensation for the arrest and detention. It could not therefore
have remedied the applicant's Article 10 grievance in respect of
these matters.
- Furthermore,
the Court notes that the subject matter of such a claim would have
been confined to establishing whether the criminal proceedings
against the applicant had resulted in an acquittal and whether in the
course of these proceedings he had been kept in “pre-trial
detention” (see paragraphs 82 and 82 above). There is no
indication – and it has not been suggested by the Government –
that in examining the claim the courts would have touched upon the
substance of the applicant's freedom-of-expression grievance, as it
is not part of the cause of action. The Court does not therefore
consider that an action under section 2(2) of the SRDA would have
amounted to an avenue whereby the applicant could have vindicated his
freedom of expression as such (see, mutatis mutandis, Peev
v. Bulgaria, no. 64209/01, §§ 72 and 73, 26 July 2007).
- The
Government's objection under Article 35 § 1 of the Convention
must therefore be rejected.
- The
Court further considers that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant alleged that his arrest and detention had been unlawful and
arbitrary. He relied on Article 5 § 1 (c) of the Convention,
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.”
- Neither
the Government nor the applicant made submissions in respect of the
merits of the complaint.
- The
Court observes that in the present case the applicant was arrested
and detained as the alleged perpetrator of two criminal offences:
hooliganism and insult (see paragraphs 82 and 82 above). His
deprivation of liberty was therefore an “arrest or detention”
effected “for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence” within the meaning of sub paragraph (c) of
Article 5 § 1.
- For
the Court, the main issue to be determined in the present case is
whether this deprivation of liberty was “lawful” within
the meaning of Article 5 § 1 (see Lukanov v. Bulgaria,
judgment of 20 March 1997, § 41, Reports 1997 II).
According to its settled case law, this expression stipulates
not only full compliance with the procedural and substantive rules of
national law, but also requires that any deprivation of liberty be
consistent with the purpose of Article 5 – to prevent persons
from being deprived of their liberty in an arbitrary fashion (see,
among many other authorities, Steel and Others, cited above, §
54). Seeing that paragraph 1 of this provision contains an exhaustive
list of permissible grounds for deprivation of liberty, it must be
interpreted strictly (see Lukanov, cited above, § 41).
- Since
under Article 5 § 1 compliance with domestic law is an integral
part of the obligations of the Contracting States under the
Convention, the Court, subject to the limits inherent in the logic of
the European system of protection, can and should exercise a certain
power of review in this respect (ibid.; and Tsirlis and Kouloumpas
v. Greece, judgment of 29 May 1997, § 57, Reports
1997 III).
- The
Court has often stated that a person may be detained under Article 5
§ 1 (c) only on “reasonable suspicion” of his
“having committed an offence”. Apart from its factual
side, which is most often in issue, the existence of such suspicion
additionally requires that the facts relied on can be reasonably
considered as behaviour criminalised under domestic law. Thus, there
could clearly not be a “reasonable suspicion” if the acts
held against a detained person did not constitute an offence at the
time when they were committed (see Włoch,
cited above, §§ 108 and 109).
- The
Court must therefore examine whether the applicant's arrest and
detention on charges of hooliganism and insult were “lawful”
within the meaning of Article 5 § 1 and whether his deprivation
of liberty was based on a “reasonable suspicion” of his
having committed an offence.
- In
so far as insult is concerned, the Court observes that, following the
March 2000 amendments to the 1968 Criminal Code, at the relevant time
it was a privately prosecutable offence and could not attract a
sentence of imprisonment (see paragraph 82 above). The levelling of
charges of insult could not therefore have served as a basis for the
applicant's detention between 11 and 14 July 2000 under Article 152a
§ 3 of the 1974 Code of Criminal Procedure (see, as an example
to the contrary, Douiyeb v. the Netherlands [GC], no.
31464/96, § 46, 4 August 1999). By making an order to this
effect the Pleven District Prosecutor's Office blatantly ignored the
clear and unambiguous provisions of domestic law. It is not for the
Court to speculate whether this happened because that Office was not
aware of the March 2000 amendments to the 1968 Criminal Code or for
other reasons. As regards the immediately preceding period, when the
applicant was in police detention, the Court notes that section
70(1)(1) of the 1997 Ministry of Internal Affairs Act does not
distinguish between privately and publicly prosecutable offences (see
paragraph 82 above). However, it is apparent from the interpretation
given to this provision by the Supreme Administrative Court that the
powers which it bestows upon the police are ancillary to their duty
to investigate crime (see paragraph 82 above). It is clear that the
police have no power to conduct preliminary investigations in respect
of privately prosecutable offences such as insult. The applicant's
police detention on this basis was therefore also unlawful.
- As
regards hooliganism, the Court observes that the applicant's actions
consisted of the gathering of signatures calling for the resignation
of the Minister of Justice and displaying two posters calling him a
“top idiot”. When examining the criminal charges against
the applicant the Supreme Court of Cassation specifically found that
these actions had been entirely peaceful, had not obstructed any
passers by and had been hardly likely to provoke others to
violence. On this basis, it concluded that they did not amount to the
constituent elements of the offence of hooliganism and that in
convicting the applicant the Pleven District Court had “failed
to give any arguments” but had merely made blanket statements
in this respect (see paragraphs 82 and 82 above). Nor did the orders
for the applicant's arrest under section 70(1) of the 1997 Ministry
of Internal Affairs Act and for his detention under Article 152a §
3 of the 1974 Code of Criminal Procedure – which were not
reviewed by a court – contain anything which may be taken to
suggest that the authorities could reasonably believe that the
conduct in which he had engaged constituted hooliganism, whose
elements were comprehensively laid down in the Supreme Court's
binding interpretative decision of 1974 (see paragraphs 82 and 82
above, as well as Lukanov, §§ 43 and 44;
mutatis mutandis, Steel and Others, § 64, and, as
an example to the contrary, Włoch,
§§ 111 and 112, all cited above).
- On
the basis of the foregoing, the Court concludes that the applicant's
deprivation of liberty between 10 and 14 July 2000 did not constitute
a “lawful detention” effected “on reasonable
suspicion” of his having committed an offence.
- There
has therefore been a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that after his arrest he had not been brought
promptly before a judge. He relied on Article 5 § 3 of the
Convention, which provides, in so far as relevant:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power...”
- Neither
the Government nor the applicant made submissions in respect of the
merits of the complaint.
- The
Court observes that Article 5 § 3 requires that an arrested
individual be brought promptly before a judge or judicial officer, to
allow detection of any ill treatment and to keep to a minimum
any unjustified interference with individual liberty. While
promptness has to be assessed in each case according to its special
features (see, among others, Aquilina v. Malta, [GC], no.
25642/94, § 48, ECHR 1999 III), the strict time constraint
imposed by this requirement of Article 5 § 3 leaves little
flexibility in interpretation, otherwise there would be a serious
weakening of a procedural guarantee to the detriment of the
individual and the risk of impairing the very essence of the right
protected by this provision (see, recently, McKay v. the United
Kingdom [GC], no. 543/03, § 33, ECHR 2006 X).
- In
the present case the applicant was brought before a judge three days
and twenty three hours after his arrest (see paragraphs 82 and 82
above). In the circumstances, this does not appear prompt. He was
arrested on charges of a minor and non-violent offence. He had
already spent twenty four hours in custody when the police
proposed to the prosecutor in charge of the case to request the
competent court to place the applicant in pre-trial detention.
Exercising his powers under Article 152a § 3 of the 1974 Code of
Criminal Procedure (see paragraph 82 above), the prosecutor ordered
that he the applicant be detained for a further seventy two
hours, without giving any reasons why he considered it necessary,
save for a stereotyped formula saying that there was a risk that he
might flee or re offend. It does not seem that when thus
prolonging the applicant's detention the prosecutor took appropriate
steps to ensure his immediate appearance before a judge, as mandated
by the provision cited above (see paragraph 82 above). Instead, the
matter was brought before the Pleven District Court at the last
possible moment, when the seventy two hours were about to expire
(see paragraph 82 above). The Court sees no special difficulties or
exceptional circumstances which would have prevented the authorities
from bringing the applicant before a judge much sooner (see, mutatis
mutandis, Koster v. the Netherlands, judgment of 28
November 1991, § 25, Series A no. 221; and Rigopoulos v.
Spain (dec.), no. 37388/97, ECHR 1999 II). This was
particularly important in view of the dubious legal grounds for his
deprivation of liberty.
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The applicant complained that he had been arrested and
detained for organising a public collection of signatures. In his
view, these measures had amounted to an unjustified interference with
his freedom of expression and had had a chilling effect on its future
exercise. He relied on Article 10 of the Convention, which reads, in
so far as relevant:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- Neither
the Government nor the applicant made submissions in respect of the
merits of the complaint.
- For
the Court, it is clear that in gathering signatures calling for the
resignation of the Minister of Justice and in displaying two posters
making statements about the Minister the applicant was exercising his
right to freedom of expression (see, mutatis mutandis, Appleby
and Others v. the United Kingdom, no. 44306/98, § 41,
ECHR 2003 VI). His arrest and subsequent detention for doing so
therefore amounted, quite apart from the opening of criminal
proceedings against him, to an interference with the exercise of this
right (see Chorherr v. Austria, judgment of 25 August 1993, §
23, Series A no. 266 B; and Steel and Others, cited
above, §§ 92 and 93).
- Such
interference gives rise to a breach of Article 10 unless it can be
shown that it was “prescribed by law”, pursued one or
more legitimate aim or aims as defined in paragraph 2 and was
“necessary in a democratic society” to attain them.
- The
Court has already found that the applicant's arrest and detention
were not “lawful” within the meaning of Article 5 §
1 (c). Since the requirement under Article 10 § 2 that an
interference with the exercise of freedom of expression be
“prescribed by law” is similar to that under Article 5
§ 1 that any deprivation of liberty be “lawful” (see
Steel and Others, cited above, p. 2742, § 94; and Hashman
and Harrup v. the United Kingdom [GC], no. 25594/94, § 34 in
fine, ECHR 1999 VIII), it follows that the applicant's
arrest and detention were not “prescribed by law” under
Article 10 § 2.
- Furthermore,
assuming that the measures taken against the applicant may be taken
to pursue the legitimate aims of preventing disorder and protecting
the rights of others (see Steel and Others, cited above, §
96), they were clearly disproportionate to these aims. The events
must be seen in the context of a political debate which, although,
critical of the Government, was not violent. Thus, as found by the
Supreme Court of Cassation, the applicant's actions on 10 July 2000
were entirely peaceful, did not obstruct any passers by and were
hardly likely to provoke others to violence (see paragraphs 82 and 82
above, and Steel and Others, cited above, § 110).
However, the authorities in Pleven chose to react vigorously and on
the spot in order to silence the applicant and shield the Minister of
Justice from any public expression of criticism. They also kept the
applicant in custody for an inordinate amount of time – three
days and twenty three hours – before bringing him before a
judge who ordered his release. These measures were clearly not
“necessary in a democratic society”. In a democratic
system the actions or omissions of the Government and of its members
must be subject to close scrutiny by the press and public opinion.
Furthermore, the dominant position which the Government and its
members occupy makes it necessary for them – and for the
authorities in general – to display restraint in resorting to
criminal proceedings, and the associated custodial measures,
particularly where other means are available for replying to the
unjustified attacks and criticisms of their adversaries (see, mutatis
mutandis, Castells v. Spain, judgment of 23 April
1992, § 46, Series A no. 236).
- There
has therefore been a violation of Article 10 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 4,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered that the finding of violations amounted to
sufficient redress for any damage suffered by the applicant. The
amount of compensation, if any, had to be based on the specific
circumstances and be in line with the principles of equity.
- The
Court considers that the applicant must have endured distress and
frustration on account of his unlawful deprivation of liberty for
exercising his right to freedom of expression. This was aggravated by
the amount of time he spent in detention before being brought before
a judge. Ruling on an equitable basis, as required by Article 41 of
the Convention, the Court awards him, in respect of non pecuniary
damage, the full amount claimed. To that amount should be added any
tax that may be chargeable.
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 3,000 incurred in lawyers'
fees for the proceedings before the Court. He submitted a fees
agreement between him and his lawyer and a time sheet.
- In
the Government's view, the claim was exorbitant. They considered that
in making an award under this head the Court had to bear in mind the
living standards in Bulgaria.
- According
to the Court's settled case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, having regard to
the information in its possession and the above criteria, and noting
that the applicant has been paid EUR 850 in legal aid, the Court
considers it reasonable to award the sum of EUR 2,000, plus any tax
that may be chargeable to the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
