ALEXOV v. BULGARIA

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54578/00
by Dragomir Dimitrov ALEXOV
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 22 May 2006 as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 21 October 1999,

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

Having regard to the observations submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dragomir Dimitrov Alexov, is a Bulgarian national who was born in 1966 and lives in Plovdiv. He was represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.

The respondent Government were represented by their Agent, Ms M. Kotzeva, of the Ministry of Justice.

A. The circumstances of the case

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

1. The first criminal proceedings against the applicant

(a) The first criminal proceedings, the search of the applicant’s apartment and his detention in the context of these proceedings

On 17 August 1999 a burglary was committed where, inter alia, a television and a video recorder were stolen.

On an unspecified date a preliminary investigation was opened.

On 26 August 1999 the applicant’s apartment was searched by the police, with the apparent approval of the Prosecutor’s Office. The search was conducted in the presence of two witnesses, but not the applicant or any other representative of his household. Various items were seized among which were three photo cameras, a hi-fi system and a wrench.

On 28 August 1999, under an order issued by an investigator and approved by the Prosecutor’s Office, the applicant was arrested, placed under twenty-four hours’ preliminary detention as of 5 p.m. and held at the Pazardzhik Regional Investigation Service. The applicant was suspected of having committed the burglary on 17 August 1999 because the stolen television and a wrench, allegedly used to perpetrate the offence, had been found in his apartment. In addition, at the time of his arrest the applicant had apparently attempted to abscond.

On 29 August 1999 the Prosecutor’s Office extended the preliminary detention of the applicant for another two days until 5 p.m. on 31 August 1999.

On 31 August 1999 the applicant, together with two other individuals, was charged with committing the burglary of 17 August 1999. He was remanded in custody upon a decision of an investigator which was confirmed later in the day by the Prosecutor’s Office. In ordering the remand in custody the investigator cited, inter alia, that the applicant lacked a permanent address and that he had committed numerous other burglaries.

On 7 October 1999, under an order issued by an investigator, the charges against the applicant were amended to include another four robberies and his detention on remand was maintained. In ordering the continued detention, the investigator cited, inter alia, the applicant’s lack of a permanent address and, in general terms, his personality, the gravity of the offence and the likelihood that he might abscond.

On 8 October 1999 the applicant appealed against his detention. He maintained, inter alia, that he could not obstruct the investigation as it was effectively completed and he had made a full confession, that he had a permanent address and that the detention had not been ordered by a court, which was in violation of the Convention.

In so far as a hearing of the appeal had not been scheduled by 18 October 1999, the applicant filed a complaint to that effect with the Supreme Judicial Council, which is the supreme administrative authority of the judicial system, and the Ministry of Justice. This allegedly led to a hearing of the appeal being scheduled for the very next day, 19 October 1999, for which the applicant was summoned at very short notice, but not his counsel, who found out about it by chance. As a result, the latter allegedly did not have time to prepare for the hearing and call witnesses for the defence.

On 19 October 1999 the appeal was heard by the Pazardzhik District Court. The court dismissed the applicant’s appeal citing, inter alia, his prior criminal record, his lack of employment, the gravity of the offences and the alleged lack of a permanent address, stemming from the fact that the applicant had lived in different cities, in rented apartments, and could not provide the permanent addresses of his next of kin.

On an unspecified date the applicant filed a second appeal against his detention. He maintained, inter alia, that he had a permanent address and that his continued detention was in violation of the Convention. A hearing was held on 10 November 1999. The applicant presented a copy of his rental agreement, which he allegedly received from the authorities and which allegedly refuted their claim that he did not have a permanent address at the time of his initial detention. The applicant also called a witness, who informed the court that he would take the applicant to live with him and pay his bail. Taking the above into account, the Pazardzhik District Court found in favour of the applicant and released him on bail, which was to become effective after the depositing of the monetary guarantee. In reaching its decision the court referred, inter alia, to the fact that the applicant had been rehabilitated in respect of his former convictions, that he had an address at which he could be contacted and that there was insufficient evidence that he might abscond, obstruct the investigation or re-offend.

The applicant was released on an unspecified date about two months later.

The outcome of the first criminal proceedings is unclear.

(b) The conditions of detention

Between 28 August 1999 and 31 October 1999 the applicant was detained at the Pazardzhik Regional Investigation Service. From 1 November 1999 onwards he was detained at the Pazardzhik Prison for about two months.

(i) Pazardzhik Regional Investigation Service

In the applicant’s submission the cells were small, overcrowded and below street level. There was no natural light or fresh air and a strong unbearable smell in the cells. Quite often there were rodents and cockroaches. A bucket was provided for the sanitary needs of the detained. There was no hot water or soap. The applicant was not permitted to go out of his cell for exercise. The food provided was of insufficient quantity and substandard. The applicant was not allowed to read newspapers or books.

(ii) Pazardzhik Prison

In the applicant’s submission the conditions in the Pazardzhik Prison were slightly better than those in the Pazardzhik Regional Investigation Service. Similarly, though, the food was insufficient and of the same inferior quality; the cells were small and overcrowded; the light was insufficient and a bucket was provided for the sanitary needs of the detained. Limited exercise was provided in the prison yard.

2. The second criminal proceedings

(a) The second criminal proceedings and the applicant’s detention in the context of these proceedings

On 18 April 1998 the applicant was arrested in the town of Montana in front of a block of flats where a burglary had been committed. He was questioned by the police and released.

At the time, the applicant had been living in Montana, so he had given the authorities his address in that town. In the summer of 1998 he moved to live in Plovdiv.

On an undetermined date in 1999 the authorities opened a preliminary investigation against the applicant in relation to the burglary in Montana. As they were unable to find the applicant at his Montana address in order to question him, an arrest warrant for the applicant was apparently issued by the Montana Prosecutor’s Office sometime in 1999.

On 23 May 2000 the applicant was arrested by the police in Plovdiv on the basis of the arrest warrant issued by the Montana Prosecutor’s Office sometime in 1999. He was then transferred to the Montana Regional Investigation.

It is unclear when and whether the applicant was charged with the burglary in Montana. The applicant maintained that during most of his detention he did not have access to his lawyer.

On an unspecified date the applicant appealed against his detention.

By decision of 22 June 2000 the Montana Regional Court found in favour of the applicant and released him under the condition that he would not leave his place of residence without the authorisation of the Prosecutor’s Office. As no appeal was filed against this decision, it entered into force on 26 June 2000 and the applicant was released.

On 11 September 2000 the Montana Prosecutor’s Office terminated the preliminary investigation against the applicant in respect of the burglary in Montana as it found that it had not been unequivocally proven that he had committed it. The restriction imposed on the applicant not to leave his place of residence without the authorisation of the Prosecutor’s Office was also lifted. The decision of the Prosecutor’s Office was subsequently confirmed by the Regional Court on an unspecified date.

(b) The conditions of detention in the Montana Regional Investigation

The applicant was detained at the Montana Regional Investigation between 23 May 2000 and 26 June 2000.

In the applicant’s submission the cells were overcrowded and lacked natural light and fresh air. The food provided was of insufficient quantity and substandard. He was not allowed to read newspapers or books and was not permitted to go out of his cell for exercise.

3. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)

The CPT visited Bulgaria in 1995, 1999, 2002 and 2003. The Pazardzhik Regional Investigation Service and the Pazardzhik Prison were visited in 1995. The Montana Regional Investigation was apparently never visited by the CPT, but there are general observations about the problems in all Investigation Service facilities in the 1995, 1999 and 2002 reports.

(a) Relevant findings of the 1995 report (made public in 1997)

(i) General observations

The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments’ internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.

The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day’s “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.

The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees’ contacts with the outside world were very limited. There was no radio or television.

The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation’s assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country’s difficult financial circumstances.

In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes’ exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour’s outdoor exercise per day was to be examined as a matter of urgency.

(ii) Pazardzhik Regional Investigation Service

The CPT established that the Pazardzhik Regional Investigation Service had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell.

Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other Investigation Service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.

(iii) Pazardzhik Prison

In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities.

(b) Relevant findings of the 1999 report (made public in 2002)

The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.

In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT’s 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and out‑of‑cell activities. In some places, the situation had even deteriorated.

In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.

(c) Relevant findings of the 2002 report (made public in 2004)

During the 2002 visit some improvements were noted in the country’s investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day.

Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.

B. Relevant domestic law and practice

1. Power to order pre-trial detention, grounds for pre-trial detention and appeals against detention

(a) Before 1 January 2000

The relevant provisions of the Code of Criminal Procedure and the Bulgarian courts’ practice at the relevant time are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII).

(b) After 1 January 2000

As of that date the legal regime of detention under the Code of Criminal Procedure was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation).

The relevant part of the amended Article 152 provides:

“(1) Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment..., where the material in the case discloses a real danger that the accused person may abscond or commit an offence.

(2) In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case:

1. in cases of special recidivism or repetition;

2. where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non-suspended sentence of not less than one year imprisonment;

3. where the charges concern an offence punishable by not less than ten years’ imprisonment or a heavier punishment.

(3) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence.”

Following the amendments of 1 January 2000, it was required that an arrested person be brought promptly before the courts, which had the power to order pre-trial detention.

It appears that divergent interpretations of the above provisions were observed in the initial period of their application, upon their entry into force on 1 January 2000.

In June 2002 the Supreme Court of Cassation clarified that the amended Article 152 excluded any possibility of a mandatory detention. In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities. The presumption under paragraph 2 of Article 152 was only a starting point of analysis and did not shift the burden of proof to the accused (TR 1-02 Supreme Court of Cassation).

2. Search of premises

At the relevant time, Article 134 of the Code of Criminal Procedure provided that a search of premises may be carried out if there is probable cause to believe that objects or documents which may be relevant to a case will be found in them. Such a search could be ordered by the trial court (during the trial phase) or by the prosecutor (during the pre-trial phase) (Article 135). There was no special procedure through which a search warrant issued by a prosecutor could be challenged. Thus, the only possible appeal was a hierarchical one to the higher prosecutor (Article 182), which did not have suspensive effect (Article 183).

3. The State Responsibility for Damage Act

The State Responsibility for Damage Act of 1988 provides that the State is liable for damage caused to private persons by (1) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (2) the organs of the investigation, the prosecution and the courts for unlawful pre‑trial detention, if the detention order has been set aside for lack of lawful grounds.

The relevant domestic law and practice has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-57, 8 April 2004).

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention that when he was arrested on 28 August 1999 and 23 May 2000 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

2. The applicant complained under Article 5 § 1 (c) of the Convention that his detentions were unlawful. He submitted that certain domestic provisions were breached and that the evidence against him was not sufficient to lead to the conclusion that he was guilty of any offences.

3. The applicant complained under Article 5 § 3 of the Convention that his detentions were unjustified and excessively lengthy.

4. The applicant complained under Article 5 § 4 of the Convention that he was unable to effectively challenge his detentions and that the courts did not examine all factors relevant to their lawfulness. In particular, the applicant contended that, in the context of the first criminal proceedings, the appeal’s proceedings were unfair in so far as his attorney did not have time to prepare for the hearing on 19 October 1999 or to call witnesses and that the Prosecutor’s Office was in possession of documents, namely the rental agreement of the applicant, which it did not present to the court or the applicant’s attorney. The applicant also claimed that there was a violation of the requirement for a speedy decision under Article 5 § 4 of the Convention.

5. The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5.

6. The applicant complained under Article 3 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service, the Pazardzhik Prison and the Montana Regional Investigation.

7. The applicant complained under Article 8 of the Convention that there had been an interference with his right to respect for his home in the context of the first criminal proceedings. In particular, he maintained that the search of his apartment on 26 August 1999 was performed in breach of domestic law, because there was a lack of legal justification and it was performed in his absence.

8. The applicant complained that he lacked effective remedies for his Convention complaints.

THE LAW

A. Complaints under Article 5 of the Convention

The applicant made several complaints falling under Article 5 of the Convention, the relevant part of which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(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;

...

3. 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 and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The applicant complained, inter alia:

(a) under Article 5 § 1 (c) of the Convention that he was detained unlawfully after 10 November 1999 and then again between 23 May 2000 and 26 June 2000;

(b) under Article 5 § 3 of the Convention that when he was detained on 28 August 1999 and 23 May 2000 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power;

(c) under Article 5 § 3 of the Convention that both his periods of detention were unjustified and of excessive length;

(d) under Article 5 § 4 of the Convention that his appeal against his detention of 8 October 1999 was not decided speedily; and,

(e) under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5.

The applicant also complained under Article 13 of the Convention that he did not have at his disposal effective domestic remedies for his Convention complaints. The Court considers that, as it relates to Article 5 §§ 1-3 of the Convention, this complaint should be understood as referring to the applicant’s alleged inability to effectively challenge his detention under Article 5 § 4 of the Convention and to the alleged lack of an enforceable right to compensation under Article 5 § 5 of the Convention. In addition, the Court observes that Article 5 §§ 4 and 5 of the Convention constitute lex specialis in relation to the more general requirements of Article 13 (see Nikolova, cited above, § 69 and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997, Reports of Judgments and Decisions 1997‑III, p. 927, § 73). Accordingly, the Court must examine the complaint that the applicant lacked effective domestic remedies under Article 5 §§ 4 and 5 of the Convention.

The Government did not challenge the admissibility of the applicant’s complaints under Article 5 of the Convention.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B. Complaints under Articles 3 and 13 of the Convention in respect of the allegedly inhuman and degrading conditions of detention and the lack of an effective remedy related thereto

The applicant complained under Article 3 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service, the Pazardzhik Prison and the Montana Regional Investigation. The applicant also complained under Article 13 of the Convention that he lacked an effective remedy for the aforementioned complaints.

Article 3 of the Convention provides:

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

Article 13 of the Convention provides:

“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 did not challenge the admissibility of these complaints.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

C. Complaints under Articles 8 and 13 of the Convention

The applicant complained under Article 8 of the Convention that there had been an unlawful interference by the authorities with his right to respect for his home in the context of the first criminal proceedings. According to the applicant, the search of his apartment on 26 August 1999 had been performed in contravention of domestic law as it lacked legal justification and had been performed in his absence. The applicant also complained under Article 13 of the Convention that he lacked an effective remedy for the aforementioned complaint.

The relevant part of Article 8 of the Convention provides:

“1. Everyone has the right to respect for ... his home ...

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.”

Article 13 of the Convention provides:

“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 did not challenge the admissibility of these complaints.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

D. The remainder of the applicant’s complaints

The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints:

(1) that his detention after 10 November 1999 and between 23 May 2000 and 26 June 2000 was unlawful;

(2) that he was not brought before a judge or other officer authorised by law to exercise judicial power after his arrests on 28 August 1999 and 23 May 2000;

(3) that both his detentions were unjustified and of excessive length;

(4) that his appeal of 8 October 1999 was not decided speedily;

(5) that he lacked an enforceable right to seek compensation for being a victim of arrest or detention in contravention with the provisions of Article 5 of the Convention;

(6) that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service, the Pazardzhik Prison and the Montana Regional Investigation and that he lacked an effective remedy related thereto;

(7) that there was an unlawful interference with his right to respect for his home as a result of the search of his apartment on 26 August 1999 and that he lacked an effective remedy related thereto;

Declares the remainder of the application inadmissible.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

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