DURGOV v. BULGARIA

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54006/00
by Dimitar Georgiev DURGOV
against Bulgaria

The European Court of Human Rights (First Section), sitting on 2 September 2004 as a Chamber composed of:

MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsF. Tulkens,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr S. Nielsen, Registrar,

Having regard to the above application lodged on 20 October 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dimitar Georgiev Durgov, is a Bulgarian national who was born in 1967 and lives in Zvantchevo. He is represented before the Court by Mrs V. Kelcheva, a lawyer practising in Pazardjik.

A. The circumstances of the case

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

1. The applicant’s pre-trial detention

On 10 August 1999 a preliminary investigation was opened against the applicant for theft. On the same day, under an order issued by an investigator, the applicant was arrested, placed under preliminary detention for 24 hours as of 5 p.m. and held at the Pazardjik Regional Investigation Service.

On 11 August 1999 the applicant was charged with theft and remanded in custody upon a decision of the Pazardjik Prosecutor’s Office. The decision of the Pazardjik Prosecutor’s Office contained a signed statement by the applicant that he was informed of the charge against him at 10.30 a.m. on the same day.

Apparently another eight preliminary investigations for thefts were being conducted against the applicant at the time. On 29 October 1999 all the preliminary investigations were combined into one upon a decision of the Pazardjik Prosecutor’s Office. On the same day the applicant was charged with all nine instances of theft and the remand in custody was confirmed as having been in force since 11 August 1999. The decision of the Pazardjik Prosecutor’s Office contained a signed statement by the applicant that he was informed of all the charges against him.

On 2 November 1999 the applicant was transferred to the Pazardjik Prison.

On 21 December 1999 an indictment against the applicant was apparently submitted to the Pazardjik District Court.

As of the date of the last communication of the applicant to the Court of 28 December 1999 he had not appealed against his detention.

2. The conditions of detention

Between 10 August 1999 and 2 November 1999 the applicant was detained at the Pazardjik Regional Investigation Service. From 2 November 1999 onwards he was detained at the Pazardjik Prison where he remained at least until the date of his last communication to the Court of 28 December 1999.

(a) Pazardjik Regional Investigation Service

Upon the submissions of the applicant the cell in which he was placed after his arrest measured 12 sq. m. It had three beds all of which were occupied. There was no fresh air and no natural light.

After 40 days the applicant was moved to another cell of the same size. It had two beds, but the applicant was alone for the duration of his detention there. There was no natural light because the cell did not have a window. As a result, when the temperature in the cell rose it became difficult to breath. The sheets, mattresses and covers were dirty and torn. There were mice, cockroaches and fleas.

The applicant had to use a bucket for his sanitary needs and could only go out of his cell for 5 minutes of exercise each morning, lunch and afternoon. He bathed and shaved once a week, usually with cold water.

Every 24 hours the applicant was given half a kilogram of bread which was often gnawed by mice. Quite often breakfast consisted only of a yogurt and water drink, while lunch – of substandard food. No cutlery was provided and the food was served in dirty plastic dishes.

The applicant was not allowed to read newspapers, books, magazines, to listen to the radio or to watch television.

(b) Pazardjik Prison

Following his transfer to the Pazardjik Prison the applicant was placed in a cell with six beds, measuring 12 sq. m. It had two windows, each 50 cm by 100 cm.

A bucket was provided for the sanitary needs of the detained, but they were allowed to throw out the contents at any time during the day. Sometimes there were rats and cockroaches in the cell. Once a week the applicant could bathe.

The applicant was allowed out of the cell to exercise in the prison yard for 60 minutes during the day. Access to newspapers, books, radio, television, board games and a telephone was also provided.

The food was of the same inferior quality as that in the Pazardjik Regional Investigation Service.

Visits by relatives of the applicant were permitted twice a month and it was also possible to maintain an active correspondence.

(c) 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 and again in 1999. Both the Pazardjik Regional Investigation Service and the Pazardjik Prison were visited in 1995. Both reports included general observations about problems in all Investigation Service facilities.

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

(a) General observations

In this report 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 better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a WC and a washbasin 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 the cell bucket; 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-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 were only possible with permission 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 should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency.

(b) Pazardjik Regional Investigation Service

The CPT established that the Pazardjik Regional Investigation Service had 15 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 12 sq. m. were designed to accommodate two detainees; the other nine, intended for three occupants, measured some 16.5 sq. m.. 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 30 minutes’ exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.

(c) Pazardjik 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. The CPT found the central heating to be inadequate and that only part of the dormitories were fitted with sanitary facilities.

(ii) 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 places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention in Investigation Service premises had remained generally the same as those observed during the CPT’s 1995 visit, including as regards hygiene, overcrowding and out‑of‑cell activities. In some places the situation had even deteriorated.

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

In the same detention facility medical supervision was provided by a medical doctor on the premises.

B. Relevant domestic law and practice

1.Power to order pre-trial detention

At the relevant time and until the reform of the Code of Criminal Procedure of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court’s judgment in the case of Nikolova v. Bulgaria [GC] (no. 31195/96, ECHR 1999‑II).

2. The State Responsibility for Damage Act

Section 2 of the State Responsibility for Damage Act of 1988 provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for:

1. unlawful pre‑trial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]”

The reported case-law under section 2 (1) of the Act is scant. In two judgments the Supreme Court of Cassation held that pre‑trial detention orders must be considered as being “set aside for lack of lawful grounds” – and that State liability arises – where the criminal proceedings have been discontinued on grounds that the charges have not been proven (реш. № 859/2001 г. от 10 септември 2001 г. по г.д. № 2017/2000 г. на ВКС) or where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The view taken appears to be that in such cases the pre‑trial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that after he was arrested on 10 August 1999 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

2. The applicant complains under Article 5 § 2 of the Convention that when he was arrested on 10 August 1999 he was not informed promptly of the reasons for his arrest and of any charge against him. He contends that this was performed only on the next day, 11 August 1999.  

3. The applicant complains under Article 5 § 1 (c) of the Convention that he was detained unlawfully on 10 August 1999. In particular, he submits that the evidence against him at the time was not sufficient to lead to the conclusion that he was guilty of an offence.

4. The applicant complains under Article 5 § 3 of the Convention that his detention was unjustified and excessively lengthy. In particular, he submits that his detention lasted from 10 August 1999 till at least 28 December 1999, which is the date of the applicant’s last communication to the Court.

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

6. The applicant complains under Article 3 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Pazardjik Regional Investigation Service and the Pazardjik Prison. In particular, he submits that there was (1) insufficient oxygen in the cells; (2) inadequate hygiene and the presence of parasites (fleas and wood worms), skin infections (scabies) and rodents (mice and rats); (3) not enough natural light; (4) no special recreational area; (5) unhealthy food; (6) no access to literature, newspapers, magazines, radio or television; (7) no possibility for the applicant to meet with his attorney in private at his initiative; and (8) no possibility for maintaining an active correspondence. The applicant expressly refers to the Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995 which assessed the conditions of detention in the above two facilities and found them to be inadequate.

THE LAW

A. Complaint under Article 5 § 3 of the Convention that the applicant was not brought promptly before a judge

The relevant part of Article 5 § 3 of the Convention reads as follows:

“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 ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaint under Article 5 § 2 of the Convention

Article 5 § 2 of the Convention reads as follows:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court recalls that Article 5 § 2 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. He must be told, in a language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 19, § 40).

In the present case, the Court considers that even if it is true that the applicant was not informed of the charge against him at the time of his arrest at 5 p.m. on 10 August 1999, but became aware of it at 10.30 a.m. on 11 August 1999, this delay cannot be regarded, in the context of the present case, as falling outside the constraints of time imposed by the notion of promptness in Article 5 § 2 (see, mutatis mutandis, Lowry v. Portugal (dec.), no. 42296/98, 06 July 1999[MSA1] and I.I. v. Bulgaria (dec.), no. 44082/98, 25 March 2004).

It follows that the complaint under Article 5 § 2 of the Convention is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it must be rejected under Article 35 § 4.

C. Complaints under Article 5 § 1 (c) and Article 5 § 3 of the Convention regarding the alleged unlawfulness, lack of justification and excessive length of the applicant’s detention

The relevant parts of Article 5 §§ 1 and 3 of the Convention provide:

“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 entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court notes that the applicant has not raised complaints for the period after 28 December 1999, which is the date of his last communication to the Court. The Court further notes that during the relevant period the applicant did not appeal against his pre-trial detention and never challenged its lawfulness.

It follows that these complaints under Article 5 §§ 1 and 3 of the Convention are inadmissible because the domestic remedies were not exhausted, as required under Article 35 § 1 of the Convention, and that they must be rejected under Article 35 § 4.

D. Complaint under Article 5 § 5 of the Convention

Article 5 § 5 of the Convention reads as follows:

“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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

E. Complaint under Article 3 of the Convention of the allegedly inhuman and degrading conditions of detention

The relevant part of Article 3 of the Convention reads as follows:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that he was not brought promptly before a judge, that he did not have an enforceable right to seek compensation for the aforesaid alleged violation and that he was subjected to inhuman or degrading treatment;

Declares the remainder of the application inadmissible.

Søren NielsenChristos Rozakis
RegistrarPresident

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