Information Note on the Court’s case-law 242
July 2020
Dimov and Others v. Bulgaria - 30044/10
Judgment 7.7.2020 [Section IV]
Article 5
Article 5-4
Speediness of review
Lack of promptness in transferring an application for release to a court in a different territorial jurisdiction for the purpose of joint examination, and unjustified two-month ban on submitting a further application for release: violation
Facts – In November 2009 the applicants were placed in pre-trial detention in the framework of the same set of criminal proceedings. Following the dismissal of several applications for release, they were finally released on the expiry of the maximum period of one year prescribed by law. In 2014, following several requests for further investigations, and having noted that the Public Prosecutor’s Office had still not prepared any fresh bill of indictment, the competent court terminated the criminal proceedings. Following this termination of prosecution the applicants brought a successful action for damages in respect of the period of detention.
Law – The application was declared admissible solely in respect of one of the applicants (“the applicant”).
Article 5 § 4
(i) Speediness of the examination – While the examination of one of the applicant’s requests for release was completed within four days, which is consistent with the “speediness” concept, the same does not apply to his other request, which the authorities took twenty-five days to examine.
More specifically, following the authorities’ decision to group the examination of the request for release submitted by the applicant together with those of his three co-accused (explicable by the fact that they were all covered by the same set of criminal proceedings), the transfer of the applicant’s request from the prosecutor’s office in the capital, which received it, to the regional court of another city, which had jurisdiction to examine it, took nineteen days. Even considering the distance between the two cities (about 230 kilometres) and the need to forward the investigation file to the regional court to enable the latter to examine the applicant’s request with full knowledge of the facts, the Court considered that the delay – which had been entirely attributable to the prosecuting authorities – had been excessive.
(ii) Temporary ban on submitting fresh requests for release – When dismissing his second request for release, the court had banned the applicant from lodging any further such requests for two months.
That measure was provided for in the Code of Criminal Procedure. The Court did not rule out the possibility that such a ban might be justified in cases of manifest abuse of detainees’ procedural rights (for example where appeals were being used to delay proceedings or hamper investigations). However, it was incumbent on the authorities to demonstrate the necessity of such a measure by explaining the relevant and sufficient reasons on which it was based, in order to obviate any suspicion of arbitrariness.
Bulgarian law did not provide for automatic review of the lawfulness and necessity of detention; the detainees themselves had to request such review. In the instant case, when the regional court had decided to order the impugned restriction, the applicant had already been in detention for five months, he had only submitted one previous application for release, and his fresh request had not been examined for several days – all of which seemed to suggest that he had not been abusing the right to apply for release.
Moreover, the criminal investigation concerning the applicant had still been pending, which might have enabled new evidence to be gathered capable, for instance, of verifying the existence of any reasonable suspicions against him. Those circumstances would have rendered it even more necessary for the domestic courts to set out solid, cogent arguments to justify the imposition of the ban in question.
Yet the regional court chose to impose the ban for the maximum period prescribed by domestic law, without providing any explanation for the necessity of that measure or of the period chosen for its implementation. Accordingly, the Court held that the measure had been unjustified and contrary to the applicant’s right to obtain a review of his detention at regular short intervals.
Conclusion: violation (unanimously).
The Court also unanimously found a violation of Article 5 § 5 of the Convention: the applicant had obtained compensation for the damage which he had unstained from the excessive length of his pre-trial detention (which complaint fell under Article 5 § 3), but no recognition of or compensation for the violation of his rights as secured under Article 5 § 4; the new domestic remedy providing for specific compensation for breaches of the latter provision was not applicable retroactively, and there was no other domestic remedy under which the applicant could avail himself of a right to compensation under this head after the Court had delivered the present judgment.
Article 41: EUR 5,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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