Communicated on 19 January 2015
FOURTH SECTION
Application no. 27791/09
Stoyan Dimitrov DIDOV
against Bulgaria
lodged on 26 March 2009
STATEMENT OF FACTS
The applicant, Mr Stoyan Dimitrov Didov, is a Bulgarian national, who was born in 1972 and lives in Burgas. He is represented before the Court by Mr S. Karov, a lawyer practising in Burgas.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At about 6 a.m. on 11 July 2007 several police officers visited the applicant’s home in Burgas. As he was not there, they served on his family a summons for him to report to the police office in Pomorie “in the capacity of witness” in relation to an investigation.
After being alerted on the telephone by his wife, at about 7 a.m. the applicant arrived at the police station. There, he was notified that he was being detained under section 63(1)(1) of the Ministry of Internal Affairs Act (see below, Relevant domestic law and practice). The applicant submits that he was given the detention order at a later stage. The order stated that he was being detained on the basis of section 63(1)(1) “in connection with an offence under Article 195 of the Criminal Code”. The provision at issue refers to the offence of theft.
The applicant was kept in detention until 1:30 p.m. on 11 July 2007. During that time he was transported to a police station in Burgas and then back to the police station in Pomorie, where his fingerprints were taken. He was not interviewed, and no further investigative measures were performed.
At about 12 a.m. the applicant was allowed to meet a lawyer retained by his wife, who insisted before the police on the applicant’s release.
Immediately after his release the applicant applied for judicial review of the detention order. In the framework of the judicial-review proceedings the police presented an order dated 10 July 2007 and signed by a police investigator in Pomorie. They stated that the case file concerning the applicant contained no other documents. The order noted that a theft had been committed by an unknown person in a hotel in Pomorie and indicated that the police should search for the perpetrator; for that purpose, the police were to interview the security guards who had been on shift in the hotel on the night of the theft, and take other appropriate measures. It is unclear whether the applicant was one of the guards mentioned in the order.
In a judgment of 21 December 2007 the Burgas Administrative Court upheld the detention order, holding that the applicant’s detention had been in accordance with the law. It found, in particular, that for the lawful application of section 63(1)(1) of the Ministry of Internal Affairs Act it was not necessary that the police should hold evidence showing “in a unqualified manner” that the detainee had committed an offence; data “justifying a suspicion that there was a probability that the person had committed an offence” was sufficient. The domestic court noted further that the police had “operational freedom” as to the application of section 63(1)(1) of the Ministry of Internal Affairs Act.
Upon an appeal by the applicant, on 17 November 2008 the Supreme Administrative Court upheld the judgment of the Burgas Administrative Court’s, reiterating its reasoning.
B. Relevant domestic law and practice
The relevant domestic law and practice have been summarised in the Court’s judgment in the case of Petkov and Profirov v. Bulgaria (nos. 50027/08 and 50781/09, §§ 25-29, 24 June 2014).
In particular, section 63(1)(1) of the Ministry of Internal Affairs Act of 2006, in force at the time, authorised the police to arrest an individual suspected of having committed a criminal offence. Such police detention could not exceed twenty-four hours and could not entail the restriction of any personal rights other than the right to free movement. An individual taken into police custody was entitled to be assisted by counsel.
The Ministry of Internal Affairs Act also stipulated that an arrestee was entitled to contest the legality of his detention. However, the courts have not construed that possibility as allowing an individual in police custody to apply for release while still detained, but only as permitting subsequent judicial review of the respective detention order.
COMPLAINTS
1. The applicant complains under Article 5 § 1 (c) of the Convention that his detention on 11 July 2007 was not based on a reasonable suspicion that he had committed a criminal offence.
2. He also complains under Article 5 § 2 of the Convention that he was not informed of the reasons for his detention.
3. Relying on Article 6 § 1 of the Convention, he complains that he did not have prompt access to a court to challenge his detention.
4. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complains that the judicial review proceedings initiated by him were unfair because the national courts reached wrong conclusions.
5. In addition, without raising any separate complaints, the applicant refers to Article 6 §§ 2 and 3 (a) and (c) of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty on 11 July 2007 in breach of Article 5 § 1 of the Convention?
In particular, did his deprivation of liberty fall within paragraph (c) of this provision? Was there a reasonable suspicion that the applicant had committed an offence and was he arrested with the purpose of “bringing him before the competent legal authority” (see Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, §§ 41-57, 24 June 2014).
Alternatively, was the applicant detained for “the fulfilment of [an] obligation prescribed by law”, as provided for by subparagraph (b) of Article 5 § 1? If so, were that provision’s requirements met (see, for example, Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 73, ECHR 2011 (extracts), with further references, and Vasileva v. Denmark, no. 52792/99, §§ 36-37, 25 September 2003)?
2. Was the applicant informed of the reasons for his arrest and of any charges against him, as required by Article 5 § 2 of the Convention?
3. Did Article 5 § 4 of the Convention require an effective procedure by which the applicant could challenge the lawfulness of his detention, given in particular the detention’s short duration (see Petkov and Profirov, cited above, §§ 64-71, but also Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003-X, and Tomaszewscy v. Poland, no. 8933/05, § 146, 15 April 2014)?
4. Did the applicant have access to an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1, 2 and 4, as required by Article 5 § 5 of the Convention, seeing, most notably, that his application for judicial review of the detention order of 11 July 2007, which could give rise to an entitlement to seek damages, was disallowed?
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