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FIFTH
SECTION
CASE OF
PFEIFER v. BULGARIA
(Application
no. 24733/04)
JUDGMENT
STRASBOURG
17
February 2011
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 Pfeifer v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Karel
Jungwiert,
President,
Peer
Lorenzen,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Ganna
Yudkivska,
Angelika
Nußberger,
Julia
Laffranque,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24733/04) 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 a Bulgarian national, Mr Mariyan Nikolov
Pfeifer (“the applicant”), on 25 June 2004.
- The
applicant was represented by Mr D. Kanchev, a lawyer practising in
Sofia, Bulgaria, and Prof. Dr J. Arnold, a lawyer practising in
Pfaffenweiler, Baden Württemberg, Germany. The Bulgarian
Government (“the Government”) were represented by their
Agent, Ms M. Kotseva, of the Ministry of Justice.
- The
applicant alleged, in particular, that a travel ban imposed on him
while a set of criminal proceedings was pending against him had
become unjustified, that the resulting interference with his family
life had been disproportionate, and that he had not had effective
remedies in that respect.
- On
10 November 2009 the Court declared the application partly
inadmissible and decided to give the Government notice of the
complaints concerning the travel ban, the resulting interference with
the applicant’s family life, and the lack of effective remedies
in that respect.
- On
16 June 2008 Zdravka Kalaydjieva, the judge elected in respect of the
Republic of Bulgaria, withdrew from sitting in the case. On 18
January 2010 the Government appointed Peer Lorenzen, the judge
elected in respect of the Kingdom of Denmark, to sit in her place
(Article 27 § 2 of the Convention and Rule 29 § 1 (a) of
the Rules of Court, as worded before 1 June 2010).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and currently lives in Offenburg, Germany.
A. The applicant’s family life in Germany
- The applicant left Bulgaria for Germany on 15 January
1992 and settled in Offenburg. On 28 January 1994 he married a German
national, Ms E. Pfeifer, and adopted her family name. On 24
February 1995 they had a daughter. In July 1997 the applicant started
work at a Daimler Benz factory in Stuttgart. Between 1998 and
2001, when he was in pre trial detention in Bulgaria and unable
to provide for his family (see paragraph 24 below), the German
authorities paid child support in his stead.
- On 19 May 2006 a court in Offenburg granted a divorce
petition by the applicant’s wife, chiefly on account of his
prolonged absence because of the criminal proceedings against him in
Bulgaria and the fact that he had been prevented from leaving that
country to visit his family in Germany (see paragraphs 24 38
below).
B. The criminal proceedings against the applicant in
Bulgaria
- On 3 February 1992 the Bulgarian authorities opened an
investigation against the applicant on suspicion that on 14 January
1992 he had murdered a man in Pleven. On 1 October 1996 an
investigator ordered his arrest.
- The applicant’s whereabouts were established
through Interpol and on 3 June 1998 he was arrested in
Offenburg. On 22 June 1998 the Bulgarian authorities requested his
extradition on charges of premeditated murder. On 7 October 1998 the
German authorities agreed to extradite him and on 18 November
1998 he was sent to Bulgaria.
- On 29 December 1998 the applicant was charged with
premeditated murder committed as a repeat offender. However, in April
1999 the charges were modified to aggravated robbery accompanied by
murder.
- In a judgment of 18 April 2000 the Pleven Regional
Court found the applicant guilty of aggravated robbery and sentenced
him to sixteen years’ imprisonment.
- Following an appeal by the applicant, on 24 October
2000 the Veliko Tarnovo Court of Appeal quashed his conviction and
sentence and referred the case back to the prosecuting authorities.
It found, among other things, that the applicant’s conviction
for robbery was in breach of the “rule of speciality” set
forth in Article 14 of the European Convention on Extradition.
- On 28 February 2001 the applicant was charged with
premeditated murder. On 9 November 2001 the prosecuting authorities
decided to drop the charge of murder committed as a repeat offender.
Following an application by the private prosecuting parties, in
December 2001 the Pleven Regional Court set that decision aside and
directed the prosecuting authorities to also charge the applicant
with murder committed in the capacity of a repeat offender.
- On 15 February 2002 the prosecuting authorities
indicted the applicant, charging him with premeditated murder
committed as a repeat offender and in complicity.
- Between June 2002 and March 2004 the Pleven Regional
Court held nine hearings. However, on 24 March 2005, pursuant to a
request by the applicant, a judge and a lay judge withdrew from the
case, the former because certain remarks that he had made could have
been considered indicative of bias, and the latter on the ground that
he had taken part in the examination of the application for judicial
review of the prosecuting authorities’ decision to drop the
charge of murder committed as a repeat offender (see paragraph 14
above). Accordingly, the trial had to start anew.
- In June or July 2005 the applicant was indicted again.
As the Pleven Regional Court found the indictment defective, it had
to be re submitted in September 2005, charging the applicant
with murder committed as a repeat offender.
- On 26 May 2006 the Pleven Regional Court acquitted the
applicant.
- The
prosecution appealed to the Veliko Tarnovo Court of Appeal. However,
as all the judges of that court had previously dealt with the case,
chiefly in connection with requests for release or requests by the
applicant to be allowed to leave Bulgaria (see paragraphs 24, 29, 31,
33, 35, 36 and 37 below), in November 2006 the proceedings were
transferred to the Sofia Court of Appeal.
- On 27 June 2007 the Sofia Court of Appeal quashed the
applicant’s acquittal and found him guilty of murder committed
as a repeat offender. It sentenced him to ten years’
imprisonment.
- Following an appeal by the applicant, on 24 January
2008 the Supreme Court of Cassation quashed the lower court’s
judgment, finding that it had made certain clerical errors in the
text of its judgment which, taken as a whole, made it impossible to
ascertain the exact tenor of its ruling.
- The Sofia Court of Appeal examined the case afresh on
10 March 2008, and, on 21 April 2008, again quashed the applicant’s
acquittal and found him guilty of murder committed as a repeat
offender. It sentenced him to ten years’ imprisonment. It
observed that there were a number of aggravating circumstances, but
went on to say that there existed a compelling mitigating
circumstance: the amount of time which had elapsed since the
commission of the offence. Part of that period could be attributed to
the conduct of the applicant, who had escaped to Germany. However,
there were still grounds to impose a punishment below the statutory
minimum – fifteen years’ imprisonment – to
compensate for the excessive duration of the proceedings.
- Following an appeal by the applicant, on 23 December
2008 the Supreme Court of Cassation upheld his conviction and
sentence. It fully approved of the approach taken by the lower court
with regard to the quantum of the punishment, saying that the
reduction had made good an injustice towards the applicant, namely
the failure to determine the charges against him within a reasonable
time.
C. The travel ban imposed on the applicant
- On 19 November 1998, the day following his extradition
(see paragraph 10 above), the applicant was placed in pre trial
detention. On 7 February 2001 he was released.
- In
the meantime, in February 1999 the immigration authorities took away
his passport at the request of the investigation authorities.
- On 27 June 2001 the applicant asked the prosecuting
authorities to allow him to leave Bulgaria for sixty days to visit
his wife and daughter in Germany. He argued that he had not seen them
for four years, that they were experiencing financial difficulties,
that he had a fixed place of abode in both Germany and Bulgaria, and
that since his release from custody he had always remained at the
disposal of the authorities. On 28 June 2001 his request was refused,
and he sought judicial review by the Pleven Regional Court. On 1
August 2001 that court dismissed his application, holding that the
gravity of the charges against him and the potential punishment made
it likely that he would flee. There was no indication that he needed
to travel urgently and there was nothing to indicate that he would
not abscond.
- In February 2002 the applicant sought leave from the
Pleven Regional Court to go to Germany. On 7 March 2002 the
judge-rapporteur in his case turned down his request. He held that
the fact that the applicant had left Bulgaria immediately after the
commission of the offence was indicative of his desire to obstruct
the proceedings. If he had really acted in good faith, there would
have been no need to track him down through Interpol. There was no
guarantee that, if allowed to go to Germany, he would return for the
trial. He stood accused of a serious offence, committed as a repeat
offender and carrying a punishment of between fifteen years’
imprisonment and life imprisonment without parole. The harshness of
the punishment in itself made it likely that he would try to flee.
- On 23 April 2002 the applicant asked the Pleven
Regional Court to allow him to leave Bulgaria for twenty five
days to visit his wife and daughter in Germany. He chiefly relied on
the same arguments as before. On an unspecified date in April, May or
June 2002 the judge-rapporteur rejected the request, giving exactly
the same reasons as earlier.
- On 14 October 2002 the applicant made yet another
request to be allowed to travel to Germany. He said that he had not
seen his family for more than four years, which had adversely
affected his family life, had had profoundly negative effects on the
emotional state of his daughter, and had placed his wife and daughter
in financial difficulties. He submitted a medical certificate showing
that his wife had developed a psychogenic hysterical paralysis, which
prevented her from taking proper care of their daughter. He also
asserted that he could not provide for his family from Bulgaria and
needed to go to Germany and register with the German social services
in order to obtain financial support for them. He had not obstructed
the progress of the proceedings in any way, had a permanent place of
abode in both Bulgaria and Germany, and had never sought to evade
justice. On 30 October 2002 the Pleven Regional Court rejected
the request, briefly noting that the applicant had been charged with
a serious wilful offence. The applicant’s ensuing appeal was
declared inadmissible by the Veliko Tarnovo Court of Appeal on 13
November 2002, on the grounds that no appeal lay against the lower
court’s ruling and that the appeal had been signed solely by
the applicant’s counsel.
- On 13 December 2002 the applicant sought leave to
travel to Germany, reiterating his earlier arguments. On 8 January
2003 the Pleven Regional Court rejected his request, briefly noting
that he stood accused of a serious offence and that the lifting of
the travel ban could hinder the establishment of the truth and the
conclusion of the trial.
- The applicant made a further request on 2 July 2003,
reiterating his previous arguments. The court rejected it the same
day, briefly noting that the applicant stood accused of a serious
offence and had been extradited from Germany. His family-related
arguments could not be seen as decisive. The applicant’s
ensuing appeal was dismissed by the Veliko Tarnovo Court of Appeal on
28 July 2003.
- On 25 July 2003 the applicant requested the lifting of
the travel ban, reiterating his earlier arguments. On 14 August 2003
the Pleven Regional Court rejected his request, observing that he
stood accused of a serious offence, had been hiding in Germany and
had been extradited from there. The length of the criminal
proceedings had not exceeded a reasonable time. The fact that the
applicant’s family was in Germany was not decisive, as there
was no indication that they could not visit him in Bulgaria.
Moreover, he could work in Bulgaria and support his family from
there.
- Following an appeal by the applicant, on 26 August
2003 the Veliko Tarnovo Court of Appeal reversed the lower court’s
ruling and allowed him to travel to Germany. In a detailed opinion it
noted that, although the applicant had been charged with a serious
offence and had been extradited and then kept in custody for a long
time, he had not missed any hearings in his case. In the court’s
view, at that stage, when the proceedings had already lasted twelve
years and thus exceeded a reasonable time, it was no longer justified
to turn down the applicant’s requests for permission to travel.
The court reviewed the applicant’s conduct between 1992 and
1998 and concluded that he had not tried to evade justice. It went on
to say that in relying on the gravity of the charges against him the
lower court had acted in breach of the presumption of innocence. The
only relevant factor in that respect was the conduct of the accused
during the proceedings. The court noted that the applicant had not
obstructed the proceedings against him in any way since his release
from detention, that the evidence against him was contradictory and
that his family life had suffered serious disruption on account of a
measure which could not be maintained forever. It also held that to
allow the applicant to travel to Germany would not create a risk of
his evading, because he could be re-arrested and extradited. However,
the court turned down the applicant’s request for a full
lifting of the travel ban.
- In August and September 2003 the applicant travelled
to Germany. He returned in time for the next hearing, which took
place on 18 September 2003.
- On 19 December 2003 the applicant asked the Pleven
Regional Court to allow him to travel to Germany again. He relied on
the same arguments as previously and stressed that he had returned
from his previous trip in time for the hearing. The court examined
the request at a hearing held on 23 December 2003 and rejected it in
a decision of the same day. It said that there was no indication that
the applicant’s family could not visit him in Bulgaria. He had
been extradited from Germany and could not be allowed to leave
Bulgaria. The applicant appealed, putting forward numerous detailed
arguments. On 12 January 2004 the Veliko Tarnovo Court of Appeal
upheld the lower court’s decision, saying that the seriousness
of the charges against the applicant, coupled with his two previous
convictions, showed that he was a dangerous individual. It was
therefore likely that, if allowed to leave the country, he would not
return. The fact that he had been extradited was telling in this
respect. He could maintain contact with his family from Bulgaria.
- On 23 February 2004 the applicant made another request
to be allowed to travel to Germany, putting forward arguments similar
to those supporting his previous requests and stressing that the
separation from his wife since 1998 had caused her to apply for a
divorce, as could be seen from the grounds cited in her divorce
petition (see paragraph 8 above). He repeated his request on 4 March
2004. On the same day the Pleven Regional Court rejected it,
observing that there was no indication that the separation between
the applicant and his wife had not predated his extradition.
Moreover, the applicant had produced no proof to show that the
divorce petition had already been heard. He stood accused of a
serious wilful offence, in connection with which he had been
extradited. The applicant appealed, reiterating his arguments. On 25
March 2004 the Veliko Tarnovo Court of Appeal upheld the lower
court’s ruling, holding that, in view of the gravity of the
charges against the applicant and the fact that he had prior
convictions, he was likely to flee. The proceedings against him had
not lasted an unreasonably long time, because their duration was not
attributable to the conduct of the authorities. The applicant’s
family could come to Bulgaria, whereas the lifting of the travel ban
would render the earlier extradition pointless.
- On 8 December 2004 the applicant made a fresh request
to be allowed to travel to Germany. On 14 February 2005 the Pleven
Regional Court refused it. Following an appeal by the applicant, on
28 February 2005 the Veliko Tarnovo Court of Appeal reversed this
ruling and allowed the applicant to travel to Germany, giving exactly
the same reasons as on 26 August 2003 (see paragraph 33 above).
- On 26 May 2006 the Pleven Regional Court, when
acquitting the applicant (see paragraph 18 above), fully lifted the
prohibition on his leaving Bulgaria.
- The applicant went to Germany, where, on 15 March 2007
he was employed by a German company. However, he attended all the
hearings in the case against him in Bulgaria.
- On 27 June 2007 the Sofia Court of Appeal, when
quashing the applicant’s acquittal and finding him guilty (see
paragraph 20 above), imposed a new travel ban, without giving
reasons. The applicant’s appeals against that order were
declared inadmissible on the ground that no appeal lay against it.
- On 10 March 2008 the applicant asked the Sofia Court
of Appeal to lift the travel ban. On the same day the court granted
his request. It noted that he had a wife and a child in Germany and
an address in Germany. It went on to observe that the judicial phase
of the proceedings had been pending for too long, that the applicant,
whose conduct during the proceedings had been exemplary, had not
caused any adjournments, and that the ban had been in force since 27
June 2007. Finally, it could not be overlooked that the applicant had
been acquitted by the lower court.
- It
seems that after that the applicant went to Germany. He is currently
there, fighting an extradition request from the Bulgarian
authorities, which have issued a European arrest warrant for him with
a view to enforcing his sentence, which became final on 23 December
2008 (see paragraphs 22 and 23 above). The proceedings are now
pending before the Karlsruhe Court of Appeal (Oberlandesgericht
Karlsruhe).
II. RELEVANT DOMESTIC LAW
- Article
35 § 1 of the 1991 Constitution provides that “[e]veryone
shall have the right to ... leave the country” and that this
right “may be subject to restrictions provided for by act of
Parliament in the interest of national security or for the protection
of public health and the rights and freedoms of others”.
- In October 1994 a new provision, Article 147 § 3,
was added to the 1974 Code of Criminal Procedure. Under that Article,
the imposition of preventive measures, such as detention, house
arrest or bail, on individuals charged with an offence punishable by
more than three years’ imprisonment automatically triggered a
prohibition on their leaving the territory of Bulgaria.
- On 1 January 2000 Article 147 § 3 was repealed
and replaced by the new Article 153a. It provided, in paragraph 1,
that a public prosecutor could prohibit an individual accused of a
wilful offence punishable by imprisonment from leaving the territory
of Bulgaria without permission. Under Article 153a § 2, the
prosecutor had to rule on a request for such permission within three
days of its lodging. His or her refusal to grant permission was
subject to judicial review (Article 153a § 3). The court had to
examine the application in private and rule immediately by means of a
final decision (Article 153a § 4). At the trial stage, the
prosecutor’s powers in that respect were taken over by the
trial court (Article 153a § 5). The Supreme Court of Cassation
has held that the trial court’s decisions under Article 153a §
5 are subject to appeal to a higher court (реш.
№ 129 от 8 май
2003 г. по н. д. №
780/2002 г., ВКС, I н.
о.).
- On 29 April 2006 Article 153a was superseded by
Article 68 of the 2005 Code of Criminal Procedure, which repeats the
text of the former Article almost verbatim but also provides, in
paragraph 5, that the court may, in addition to quashing the
prosecutor’s refusal to grant permission for travel, set aside
the travel ban as a whole, provided that there is no risk that the
accused will flee abroad. Paragraph 6 specifies that the court’s
decisions on such matters during the trial stage are subject to
appeal to a higher court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4
- The
applicant complained that the travel ban which had been imposed on
him had become disproportionate. He relied on Article 2 of Protocol
No. 4, which provides, in so far as relevant:
“...
2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of [that right] other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.
...”
A. The parties’ submissions
- The
Government submitted that the travel ban imposed on the applicant had
been justified under Article 2 § 3 of Protocol No. 4. Such a
measure was envisaged by the Code of Criminal Procedure. It was not
mandatory but at the discretion of the prosecuting authorities, if
they felt that there was a risk that the accused might flee abroad.
It was not absolute either, because the accused could be granted
permission to travel on specific occasions, if he or she made such a
request. The prosecuting authorities’ refusal to grant such
permission was subject to judicial review. In carrying out that
review the court had to have regard to the reasons given by the
prosecuting authorities and the grounds relied on by the accused,
taking into account the risk of flight abroad. Thus, a refusal to
grant permission would be unlawful if the accused wished to travel
abroad for medical treatment or on business. In the latter case, a
refusal would have to be subjected to very close scrutiny, because it
could cause the accused pecuniary damage. The applicant had been
prohibited from travelling abroad because he had been prosecuted for
murder, had sought to evade justice and had been extradited from
Germany. His case was therefore different from Gochev v. Bulgaria
(no. 34383/03, 26 November 2009) and Baumann v. France (no.
33592/96, ECHR 2001 V (extracts)). In the applicant’s
case, the national authorities had given reasons for each of their
refusals to allow him to travel. In view of his initial absconding
and his ultimate conviction, those refusals had been necessary in a
democratic society in the interests of national security, public
safety, for the prevention of crime, and for the protection of the
rights and freedoms of others.
- The
applicant submitted that the Government had not provided any
arguments to show that the travel ban had indeed been necessary and
proportionate for the achievement of the aims cited by them. He
readily conceded that it had been lawful and could have been
considered justified at the outset. However, with the passage of time
and in view of his exemplary conduct during the proceedings, the need
for the measure had gradually receded. Indeed, he had been allowed to
travel to Germany once and had returned to Bulgaria in time for the
next scheduled hearing in his trial. However, only one of his many
requests for permission to travel abroad had been granted. In
refusing his other requests, the courts had relied on flawed
arguments, such as the possibility for his family to settle in
Bulgaria, and the possibility for him to support them in Germany on
the very low salary that he could expect to earn in Bulgaria. The
refusals which followed his return from Germany in the autumn of 2003
in time for the next trial hearing were particularly hard to explain.
B. The Court’s assessment
- The
Court considers that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- Article
2 § 2 of Protocol No. 4 guarantees to any person the right to
leave any country for such other country of the person’s choice
to which he or she may be admitted. Any measure restricting that
right must meet the requirements of Article 2 § 3 of Protocol
No. 4 (see, as a recent authority, Gochev, cited above, §
44, with further references).
- The travel ban imposed on the applicant clearly
amounted to such a measure (see, mutatis mutandis, Schmidt
v. Austria, no. 10670/83, Commission decision of 9 July 1985,
Decisions and Reports (DR) 44, p. 195; Földes and
Földesné Hajlik v. Hungary, no. 41463/02, § 33,
ECHR 2006 XII; Sissanis v. Romania, no. 23468/02, §
64, 25 January 2007; Bessenyei v. Hungary, no. 37509/06, §
22, 21 October 2008; A.E.
v. Poland,
no. 14480/04, § 47, 31 March 2009; and Iordan Iordanov
and Others v. Bulgaria, no. 23530/02, §
70, 2 July 2009). It must therefore be examined whether it was
“in accordance with law”, pursued one or more of the
legitimate aims set out in Article 2 § 3 of Protocol No. 4, and
whether it was “necessary in a democratic society” for
the achievement of such an aim.
- The
ban was initially based on the express terms of Articles 147 § 3
and 153a § 1 of the 1974 Code of Criminal Procedure and then on
the express terms of Article 68 § 1 of the 2005 Code of Criminal
Procedure (see paragraphs 44 46 above). The applicant conceded
that the ban was “in accordance with law”, and the Court
sees no reason to hold otherwise.
- Being
designed to prevent the applicant from fleeing abroad pending the
determination of the criminal charges against him, and thus to ensure
the smooth unfolding of the proceedings and the possibility of
enforcing any resultant sentence, the ban may be said to have pursued
the legitimate aims of maintenance of public order and prevention of
crime.
- Chiefly
in issue seems to be whether the ban was “necessary in a
democratic society” to achieve those aims. On that point, the
Court observes that the ban started with the applicant’s
placement in pre-trial detention on 19 November 1998, but did
not take practical effect until 7 February 2001, when he was released
(see paragraphs 24 and 44 above). Therefore, no ratione temporis
issue arises, because Protocol No. 4 entered into force in respect of
Bulgaria on 4 November 2000 (contrast, mutatis mutandis,
Hajibeyli v. Azerbaijan, no. 16528/05, § 62, 10 July
2008). The ban was lifted on 26 May 2006, re imposed on 27 June
2007 and lifted again on 10 March 2008 (see paragraphs 38, 40
and 41 above). It thus lasted exactly six years altogether.
- The
salient question is whether the ban can be regarded as proportionate
throughout the entirety of that period (see, mutatis mutandis,
Riener v. Bulgaria, no. 46343/99, § 128, 23 May
2006), because, even if justified at the outset, a measure
restricting an individual’s freedom of movement may become
disproportionate if it is extended over a long period (see, mutatis
mutandis, Gochev, cited above, § 49, with further
references). On the one hand, the authorities had, at least
initially, reason to be apprehensive about the possibility of the
applicant’s fleeing. He had left Bulgaria the day after the
alleged commission of the offence, had adopted the family name of his
wife, and had been extradited from Germany (see paragraphs 7, 9 and 10
above). Those reasons might have been sufficient to justify the ban
at the beginning. However, their relevance later must surely have
receded, whereas – with two exceptions (see paragraphs 33 and 37
above) – the prosecuting authorities and the courts continued
automatically to rely on them right up to May 2006 (see, mutatis
mutandis, Nedyalkov v. Bulgaria, no. 44241/98, §
66, 3 November 2005). There were many other factors militating in
favour of lifting the ban, such as the amount of time which had
elapsed since it had been imposed, the unreasonably slow pace of the
proceedings, acknowledged by the courts on several occasions (see
paragraphs 22, 23, 33, 37 and 41 above), the applicant’s
punctilious attendance at all hearings, also acknowledged by the
courts (see paragraphs 33 and 37 above), the fact that he had
twice travelled to Germany and returned in time for hearings (see
paragraphs 34 and 39 above), the increasingly serious disruption of
his family life due to his absence, and that he could not provide
adequately for his family from Bulgaria and had a young child (see
paragraphs 7 and 8 above). These matters do not seem to have been
adequately addressed by the courts dealing with the applicant’s
requests and appeals. Indeed, in the bulk of their rulings, which
appear quite stereotyped, they seem to have completely overlooked
them (see paragraphs 26 31, 35 and 36 above and contrast,
mutatis mutandis, Villa v. Italy, no. 19675/06, §§
19 and 49, 20 April 2010). Moreover, when the Sofia Court of Appeal
re imposed the ban on 27 June 2007, it did not give any reasons
for its decision (see paragraph 40 above).
- In
Riener, the Court pointed out that under Article 2 §§
2 and 3 of Protocol No. 4 the authorities have a duty to ensure that
any interference with the right to leave one’s country should
be justified and proportionate throughout its duration, in the
individual circumstances of the case (see Riener, cited above,
§ 128). The developments outlined in the preceding paragraph
show that the Bulgarian prosecuting authorities and courts failed to
carry out such a balancing exercise and to provide sufficient
justification for the continued prohibition on the applicant’s
travelling abroad.
- There has therefore been a violation of Article 2 of
Protocol No. 4.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the travel ban, which had prevented him
from maintaining normal contact with his wife and child in Germany
and had led to his divorce, had amounted to an unjustified
interference with his family life. He relied on Article 8 of the
Convention, which provides, in so far as relevant:
“1. Everyone has the right to respect
for his ... family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government conceded that the travel ban could be regarded as an
interference with the applicant’s family life, but were of the
view that that interference had been lawful and justified, for the
same reasons as those set out in relation to Article 2 of Protocol
No. 4. Moreover, there was no indication that the applicant’s
family could not settle in Bulgaria and thus maintain their
relations. There were also no impediments to the applicant’s
paying them maintenance. Lastly, it could not be said that the
applicant’s divorce was a direct consequence of the impugned
situation.
- The
applicant submitted that there had been a breach of Article 8 of the
Convention for the same reasons for which there had been a breach of
Article 2 of Protocol No. 4. The lengthy and unjustified travel ban
had practically destroyed his relations with his family in Germany.
That could not be regarded as justified for the achievement of any
legitimate aim. Nor could his family be required to mitigate the
effects of the ban by settling in Bulgaria. The applicant also
submitted that because of the criminal proceedings against him he had
remained unemployed for a long period of time and thus been unable to
pay maintenance to his family. Lastly, he maintained that, as was
evident from the divorce petition lodged by his former wife, the
divorce had been a direct consequence of the travel ban.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible. However, having
regard to the reasons for which it found a violation of Article 2 of
Protocol No. 4, the Court does not consider it necessary to also
examine the travel ban by reference to Article 8 (see Riener,
§ 134, and A.E.
v. Poland,
§§ 53 and 54, both cited above, and contrast İletmiş
v. Turkey, no. 29871/96, §§ 42 50, ECHR
2005 XII, and Paşaoğlu v. Turkey, no. 8932/03,
§§ 41 48, 8 July 2008, where the Court examined
prohibitions to travel abroad under Article 8 of the Convention
and not under Article 2 of Protocol No. 4 because the latter had been
signed but not ratified by Turkey).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he did not have effective remedies in
respect of his complaint under Article 2 § 2 of Protocol No. 4.
He relied on Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government made no submissions in relation to that complaint.
- The
applicant submitted that the procedure under Article 153a of the 1974
Code of Criminal Procedure did not amount to an effective remedy. A
further problem was the uncertainty, illustrated by the conflicting
decisions of the Veliko Tarnovo Court of Appeal on that point, as to
whether the rulings of the trial court under Article 153a § 5 of
that Code were subject to appeal. A similar issue arose in respect of
the appeals against the Sofia Court of Appeal’s decision to
re impose the ban on 27 June 2007; they had been declared
inadmissible in spite of the express wording of Article 68 § 6
of the 2005 Code of Criminal Procedure.
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- Where
there is an arguable claim that an act of the authorities may
infringe an individual’s right under Article 2 § 2 of
Protocol No. 4, Article 13 requires the national legal system to
give him or her the effective possibility of challenging the measure
complained of and of having the relevant issues examined with
sufficient procedural safeguards and thoroughness, thus making it
possible for the individual concerned to put forward all arguments
impacting on the proportionality – in the Convention sense of
the word – of the measure (see Riener, cited above, §§
138 and 142).
- Having
regard to its findings in relation to the travel ban imposed on the
applicant (see paragraphs 52 58 above), the Court considers that
his complaint under Article 2 § 2 of Protocol No. 4 was
arguable. It must therefore be determined whether he had at his
disposal a remedy complying with the above requirements.
- Bearing
in mind that the rules governing prohibitions on travelling abroad
while criminal proceedings are pending were changed during the period
under consideration (see paragraphs 44 46 above), the Court
considers it appropriate to examine separately the initial and the
renewed travel bans imposed on the applicant and the availability of
means to challenge them.
- As
regards the initial ban, which lasted from 7 February 2001 until 26
May 2006 (see paragraphs 24 and 38 above), it should first be noted
that under Article 153a of the 1974 Code of Criminal Procedure, in
force until 29 April 2006 (see paragraph 45 above), the applicant was
not able to challenge the ban as such, but only to seek permission to
travel on specific occasions. The possibility to seek the lifting of
the ban as a whole became available only when Article 68 of the 2005
Code of Criminal Procedure came into force (see paragraph 46 above).
However, in so far as the requests for permission to travel on
specific occasions – which could be made at any time without
restriction – were capable of relieving the effect which the
ban had on the applicant, they could be regarded as remedies against
it. The salient question is whether they were effective.
- The
chief issue here seems to be whether the courts examined the
applicant’s requests and ensuing appeals with sufficient
thoroughness and with reference to the factors relevant to the
justification of the ban under the Convention (see, mutatis
mutandis, Riener, cited above, § 141). As can be seen
from the bulk of their rulings, they were essentially content to rely
on the justification that the applicant stood accused of a serious
offence carrying a severe penalty and he had been extradited from
Germany. With two notable exceptions – the decisions of 26
August 2003 and 28 February 2005 – they treated as irrelevant,
or did not even mention, many of his arguments that had a direct
bearing on the justification for the measure (see paragraphs 26 37
above). An analogy may be drawn with the Court’s case law
under Article 5 § 4 of the Convention, where the national
courts’ failure to address such arguments when examining
requests for release from pre trial detention is regarded as
highly problematic (see, among other authorities, Nikolova v.
Bulgaria [GC], no. 31195/96, §§ 58 and 61, ECHR
1999 II, and Bochev v. Bulgaria, no. 73481/01, §§
64 and 65, 13 November 2008). In the Court’s view, the domestic
courts’ stance stripped the remedy of its effectiveness.
- However,
as to the allegation that the remedy was not effective because on one
occasion the Veliko Tarnovo Court of Appeal held that no appeal lay
against the trial court’s refusal to grant permission to travel
(see paragraph 29 in fine above), the Court observes that the
applicant could have challenged that ruling before the Supreme Court
of Cassation (see paragraph 45 in fine above).
- As
to the renewed ban, which started on 27 June 2007, the Court notes
that the applicant’s appeal against the court order imposing
the ban was declared inadmissible – apparently erroneously in
terms of Bulgarian law – on the ground that no appeal lay
against it (see paragraphs 40 and 46 above). However, it remained
open to the applicant to ask the same court to lift the ban (see
paragraph 46 above), which he did successfully in March 2008 (see
paragraph 41 above). There is nothing to suggest that an earlier
application would have been less likely to succeed. Given that in
certain circumstances the aggregate of remedies provided by national
law may satisfy the requirements of Article 13 (see Leander v.
Sweden, 26 March 1987, § 77, Series A no. 116, and Glas
Nadezhda EOOD and Elenkov v. Bulgaria, no. 14134/02, §
67, ECHR 2007 XI), the Court concludes that the applicant did
have an effective remedy against that ban.
- There
has therefore been a violation of Article 13 of the Convention in
respect of the initial travel ban imposed on the applicant and no
violation of that provision in respect of the renewed travel ban.
IV. 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 8,000 euros (EUR) in respect of non pecuniary
damage. He submitted that in spite of being very strict in his
procedural conduct and not having obstructed the conduct of the
criminal proceedings against him in any way, he had been persistently
– and without proper justification – denied the
opportunity of travelling to Germany to visit his wife and child.
That had caused his links with them to be broken irreparably. In
addition, the courts deficient approach to the matter had shattered
his trust in their ability to deal with his case fairly.
- The
Government submitted that the claim was exorbitant. They pointed out
that the applicant had been convicted and sentenced to ten years’
imprisonment. They also argued that there was no causal link between
the alleged violations and the applicant’s family problems.
Nothing had prevented him from paying maintenance to his family in
Germany, and there were no obstacles to his family settling in
Bulgaria. His divorce could not be regarded as a direct consequence
of the alleged violations.
- The
Court observes that the finding of a breach of the State’s duty
to examine the proportionality of the measure restricting the
applicant’s freedom of movement does not amount to a finding
that the measure lacked any justification (see Gochev, cited
above, § 62). It considers, however, that it is appropriate to
award the applicant EUR 5,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant sought reimbursement of EUR 2,086.07 incurred in lawyers’
fees for the proceedings before the Court and postal expenses. He
submitted receipts certifying payments made to his first legal
representative, Mr Kanchev, and receipts for travel and postal
expenses incurred by Mr Kanchev. He requested that any amount
awarded under this head be made payable directly to the foundation
Bulgarian Lawyers for Human Rights, which had agreed to finance his
legal representation before the Court on the condition that, if
successful, he would reimburse the amounts paid to him.
- The
Government submitted that the fees charged by the applicant’s
legal representative were several times higher than those usually
charged by Bulgarian lawyers.
- According
to the Court’s case law, costs and expenses claimed under
Article 41 must have been actually and necessarily incurred and
reasonable as to quantum (see, as a recent authoirity, Neulinger
and Shuruk v. Switzerland [GC], no.
41615/07, § 159, 6 July 2010).
When considering a claim for just satisfaction, the Court is not
bound by domestic scales or standards (see, as a recent authority,
Öneryıldız v. Turkey [GC], no. 48939/99, §
175, ECHR 2004 XII). In the present case, having regard to the
documents in its possession and the above criteria, the Court
considers it appropriate to award the entire amount claimed by the
applicant under this head (EUR 2,086.07), plus any tax that may be
chargeable to him. That amount is to be paid into the bank account of
the foundation Bulgarian Lawyers for Human Rights.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
2 of Protocol No. 4;
- Holds that there is no need to examine
separately the complaint under Article 8 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention in respect of the initial travel ban imposed on
the applicant and no violation of that provision in respect of the
renewed travel ban;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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 on the date of
settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
2,086.07 (two thousand and eighty six euros and seven cents),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses, to be paid into the bank account of the
foundation Bulgarian Lawyers for Human Rights;
(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 17 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Karel Jungwiert Registrar President
