DZHABAROV v. BULGARIA

Communicated on 10 June 2015

FOURTH SECTION

Application no. 6095/11
Deyan Georgiev DZHABAROV against Bulgaria
and 2 other applications
(see list appended)

STATEMENT OF FACTS

1. The applicant in application no. 6095/11, Mr Deyan Georgiev Dzhabarov, is a Bulgarian national who was born in 1975 and lives in Burgas. He is represented before the Court by Mr S. Karov, a lawyer practising in Burgas.

2. The applicant in application no. 75583/11, Mr Stanislav Dimitrov Petkov, was a Bulgarian national who was born in 1981 and lived in Burgas. He was also represented by Mr S. Karov. He died on 31 May 2014, and on 4 September 2014 his mother, who is his only heir, expressed the wish to pursue the application on his behalf.

3. The applicant in application no. 76290/14, Mr Daniel Stefanov Karaliyski, is a Bulgarian national who was born in 1988 and lives in Vratsa. He is represented before the Court by Ms V. Dankova, a lawyer practising in Vratsa.

A. The circumstances of the case

4. The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. The cases of Mr Dzhabarov and Mr Petkov

(a) The detention on 20 and 21 December 2007

5. On 20 December 2007 Mr Dzhabarov, Mr Petkov and a friend of theirs were travelling by car in Stara Zagora. At about 3 a.m. they were stopped by a police patrol, arrested, and taken to a local police station.

6. The police issued a written order for Mr Dzhabarov’s detention for twenty‑four hours at 12 noon. It said that he was being detained under section 63(1)(1) of the Ministry of Internal Affairs Act 2006 (see paragraph 37 below) in conjunction with Article 195 § 1 (3) and (4) of the Criminal Code 1968 (which criminalise respectively burglary and theft committed by using a motor vehicle, technical means or a special technique).

7. The police issued a written order for Mr Petkov’s detention twenty‑four hours at 1.30 p.m. It likewise said that he was being detained under section 63(1)(1) of the 2006 Act (see paragraph 37 below), but in that case in conjunction with 198 § 1 of the Criminal Code 1968 (which criminalises robbery).

8. Neither of the two orders mentioned the factual grounds on which it had been issued.

9. Mr Dzhabarov and Mr Petkov were released at 12 noon on 21 December 2007.

(b) The proceedings brought by Mr Dzhabarov

(i) The proceedings for judicial review of Mr Dzhabarov’s detention

10. In the beginning of 2008 Mr Dzhabarov brought a claim for judicial review of the order for his detention.

11. In a judgment of 16 April 2008, the Stara Zagora Administrative Court quashed the order. It noted that Mr Dzhabarov had been detained under section 63(1)(1) of the Ministry of Internal Affairs Act 2006 (see paragraph 37 below). However, the order had not specified the offence of which he was being suspected at the time when it had been issued. That was both a breach of the rules of procedure and an indication that there did not exist a reasonable suspicion that Mr Dzhabarov had committed an offence. The lack of such suspicion was also demonstrated by the absence of any evidence in relation to that in the police file. Two police reports, drawn up later and suggesting that Mr Dzhabarov had been detained with a view to elucidating whether he was implicated in the robbery of a petrol station and a number of burglaries, could not ex post facto provide justification for the detention; they moreover contained discrepancies and were based on investigative steps carried out after Mr Dzhabarov’s arrest. The court went on to say that the order had been issued more than nine hours after Mr Dzhabarov’s de facto detention, which was out of line with the object and purpose of the law. The court partly awarded the costs incurred by Mr Dzhabarov in the proceedings.

12. The police appealed on points of law.

13. In a judgment of 2 December 2008 (реш. № 13157 от 2.12.2008 г. по адм. д. № 7441/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that the detention order, which had been issued at 12 noon on 20 December 2007, was chiefly tainted by the undisputed lack of contemporaneous information that Mr Dzhabarov might be implicated in an offence.

(ii) The proceedings for damages brought by Mr Dzhabarov

14. On 7 January 2009 Mr Dzhabarov brought a claim under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 42 below) against the Stara Zagora Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had been unlawful and had caused him psychological trauma. He had not been informed of the reasons for his detention, had been put in a dark dirty cell smelling of urine, and had been unable to contact his relatives. He claimed 2,000 Bulgarian levs (BGN) (the equivalent of 1,022.58 euros (EUR)) in non‑pecuniary damages and, under the head of pecuniary damages, reimbursement of the remainder of the costs that he had incurred in the judicial review proceedings.

15. In a judgment of 27 November 2009, the Burgas Administrative Court dismissed the claim. It held that Mr Dzhabarov had failed to prove that he had suffered non-pecuniary damage – such as negative emotions, mental suffering, stress or discomfort – as a result of his detention. He had not led any evidence, in particular medical expert reports, on that point. The statement of Mr Petkov, who had been called by Mr Dzhabarov to testify, only contained information about the events surrounding their arrest and detention. The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section 1 of the 1988 Act, and thus obtain a higher award of costs than the one made by the court in those judicial review proceedings.

16. Mr Dzhabarov appealed on points of law. He argued, inter alia, that it was logical to presume that a person who had been unlawfully detained had endured mental suffering on account of that. In his written memorial, he further submitted that he was entitled to compensation because his detention had been in breach of his constitutional rights.

17. In a judgment of 15 June 2010 (реш. № 7954 от 15.6.2010 г. по адм. д. № 753/2010 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that claimants in proceedings under section 1 of the 1988 Act bore the burden of making out all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence. The court went on fully to agree with the lower court’s ruling in relation to the claim for costs in the judicial review proceedings.

(c) The proceedings brought by Mr Petkov

(i) The proceedings for judicial review of Mr Petkov’s detention

18. On 2 January 2008 Mr Petkov brought a claim for judicial review of the order for his detention.

19. In a judgment of 10 March 2008, the Stara Zagora Administrative Court quashed the order.

20. On 30 September 2008 the police lodged an appeal on points of law against that judgment. In a bench ruling of 18 November 2009 (опр. от 18.11.2009 г. по адм. д. № 14761/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court declared the appeal inadmissible, finding that the time-limit for the police to lodge an appeal had expired as early as 25 March 2008. Mr Petkov asked the court to supplement its decision and award him costs. In a decision of 7 January 2010 (опр. № 162 от 7.1.2010 г. по адм. д. № 14761/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court refused the request, finding that it had been made out of time. Mr Petkov appealed, but a five-member panel of the court dismissed the appeal in a decision of 3 February 2010 (опр. № 1399 от 3.2.2010 г. по адм. д. № 1511/2010 г., ВАС, петчл. с-в).

(ii) The proceedings for damages brought by Mr Petkov

21. On 10 July 2008 Mr Petkov brought a claim under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 42 below) against the Stara Zagora Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had been unlawful and had caused him psychological trauma. He had not been informed of the reasons for his detention, had been put in a dark dirty cell smelling of urine, and had been unable to contact his relatives. He claimed BGN 2,000 (the equivalent of EUR 1,022.58) in non-pecuniary damages and, under the head of pecuniary damages, reimbursement of the remainder of the costs that he had incurred in the judicial review proceedings.

22. On 6 October 2008 the proceedings were stayed pending the determination of the appeal against the Stara Zagora Administrative Court’s judgment of 10 March 2008 (see paragraph 20 above). On 12 April 2010 the proceedings were resumed.

23. In a judgment of 29 September 2010, the Burgas Administrative Court dismissed the claim. It held that Mr Petkov, who bore the burden of proof in that respect, had failed to prove that he had suffered non-pecuniary damage – such as negative emotions, mental suffering, stress or discomfort ‑ as a result of his detention. He had not led any evidence, in particular medical expert reports, on that point. The statements of Mr Dzhabarov and the other person with whom Mr Petkov had been detained, who had been called by Mr Petkov to testify, as well as the expert evidence on the compatibility of those conditions with the internal regulations of the Ministry of Internal Affairs adduced in the course of the proceedings, contained information about the material conditions in the detention facility but not about Mr Petkov’s mental state or subjective perceptions. These could only be established on the basis of medical expert evidence, which had not been led. The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section 1 of the 1988 Act, and thus obtain a higher award of costs than the one made by the court in those judicial review proceedings.

24. Mr Petkov appealed on points of law. He argued, inter alia, that it was absurd to hold that the mental suffering flowing from unlawful detention could only be established on the basis of medical expert evidence. It was natural to presume that a person who had been kept unlawfully deprived of his liberty for more than thirty hours would endure such suffering.

25. In a judgment of 11 April 2011 (реш. № 5046 от 11.4.2011 г. по адм. д. № 13852/2010 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that claimants in proceedings under section 1 of the 1988 Act bore the burden of making out all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence. The evidence of the witnesses called by Mr Petkov had established the conditions in the detention facility and the attitude of the police officers towards him, but could not establish the negative changes in his physical, psychological and neurological status.

2. The case of Mr Karaliyski

(a) The detention on 3 and 4 May 2012

26. At about 8.45 p.m. on 3 May 2012 Mr Karaliyski was driving a friend’s BMW in a commercial karting ring in Vratsa. He was forcing the engine and swerving the car left and right sharply, in a style of driving known as “drift”. The police, who were called by bystanders, arrested him and took him to the local police station. At 9 p.m. they issued an order for his detention for twenty-four hours on suspicion of hooliganism, contrary to Article 325 § 1 of the Criminal Code 1968. He was released at 11.55 a.m. on 4 May 2013.

(b) The proceedings brought by Mr Karaliyski

(i) The proceedings for judicial review of Mr Karaliyski’s detention

27. Shortly after that Mr Karaliyski brought a claim for judicial review of the order for his detention.

28. In a judgment of 30 August 2012, the Vratsa Administrative Court quashed the order. It held that to issue such an order under section 63(1)(1) of the Ministry of Internal Affairs Act 2006 (see paragraph 37 below), the police needed to have some information that a person had committed an offence, even if that information was not of a level justifying the opening of criminal proceedings. However, it was doubtful whether the mere fact that Mr Karaliyski had been driving his car in an unusual and noisy way could be regarded as hooliganism under Article 325 § 1 of the Criminal Code 1968. In any event, detention was a very serious measure, affecting the fundamental right to liberty, and could only be resorted to in duly justified cases. Since the facts had been elucidated, Mr Karaliyski’s identity and address were clear, his actions had been discontinued and he had not tried to resist or flee, and there were no indications that he would abscond or commit an offence, resorting to detention had been unjustified and in breach of the principle of proportionality enshrined in Article 6 of the Code of Administrative Procedure 2006. Detention was intended to allow the authorities to gather enough evidence of the offence which they suspected had been committed. There was no evidence that this had been so in Mr Karaliyski’s case.

29. The police appealed on points of law.

30. In a judgment of 11 June 2013 (реш. № 8056 от 11.6.2013 г. по адм. д. № 12588/2012 г., ВАС, V о.), the Supreme Administrative Court upheld the lower court’s judgment. It found that Mr Karaliyski’s actions at the karting ring had not amounted to the constituent elements of the offence of hooliganism under Article 325 § 1 of the Criminal Code 1968. It was true that he had driven the car in an aggressive way, in “drift” style, but had done so at a karting ring, which was specially designed for that kind of activities. If the resulting noise had been above the regulatory limits and troubled the persons living nearby, that could have been established by the competent regulatory authorities. Mr Karaliyski had not brutally demonstrated disrespect for public order or disturbed important public or private interests, which were mandatory elements of the offence of hooliganism, as defined in a binding interpretative decision of the former Supreme Court. It was telling in that connection that the police had not sought to inform the prosecuting authorities of Mr Karaliyski’s actions; that showed that they had been aware of the lack of indications that Mr Karaliyski had committed an offence. The order for his detention had thus amounted to an unnecessary act of coercion, which hardly served the object and purpose of the law.

(ii) The proceedings for damages brought by Mr Karaliyski

31. On 15 July 2013 Mr Karaliyski brought a claim under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 42 below) against the Vratsa Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had caused him psychological depression, and claimed BGN 3,000 (the equivalent of EUR 1,533.88) in non-pecuniary damages.

32. In a judgment of 24 October 2013, the Vratsa Administrative Court dismissed the claim. It held that Mr Karaliyski, who bore the burden of proof in that respect, had failed to prove that he had suffered non-pecuniary damage – such as negative emotions, mental suffering, stress or discomfort ‑ as a result of his detention. The witnesses called by him to testify on that point were not trustworthy because they were friends of his. Moreover, they described external events, such as quarrels with relatives and a break-up with his girlfriend, but did not attest to any negative emotions experienced by Mr Karaliyski. Their evidence did not therefore support his assertion that after his detention he had changed and had become nervous, wary and apprehensive, let alone depressive. Such depression could only be established on the basis of expert evidence. There was moreover no evidence that the troubles with Mr Karaliyski’s relatives and girlfriend were a proximate result of his detention. They could be due to a number of other causes.

33. Mr Karaliyski appealed on points of law.

34. In a judgment of 25 June 2014 (реш. № 8760 от 25.6.2014 г. по адм. д. № 16558/2013 г., ВАС, ІІІ о.), the Supreme Administrative Court upheld the lower court’s judgment. It fully agreed with that court that Mr Karaliyski had failed to discharge the burden of proof in relation to the non-pecuniary damage that he claimed to have suffered. The negative psychological and neurological changes allegedly undergone by him could only be established on the basis of medical expert evidence. The statements of the witnesses called by him did not directly reveal his psychological state.

B. Relevant domestic law

1. Constitutional provisions

35. Article 30 § 1 of the Constitution of 1991 provides that everyone has the right to personal liberty and inviolability. Article 30 § 2 provides that no‑one may be detained except under conditions and in a way provided for by law. Article 30 § 3 provides that, in urgent situations expressly provided for by law, the authorities may detain a person, in which case they must immediately inform the “organs of the judicial power”, which must rule on the lawfulness of the detention within twenty-four hours.

2. Police detention under the Ministry of Internal Affairs Act

36. Section 70(1) of the Ministry of Internal Affairs Act 1997, in force until the end of April 2006, provided that the police could detain a person in a number of cases set out in the subsection. On 1 May 2006 that provision was superseded by section 63(1) of the Ministry of Internal Affairs Act 2006, which was worded almost identically. On 1 January 2015 that provision was in turn superseded by section 72(1) of the Ministry of Internal Affairs Act 2014, also worded almost identically.

37. Section 63(1) of the 2006 Act allowed the police to detain a person only where (a) there were indications that that person had committed an offence (point 1); (b) the person had, in spite of being warned, knowingly prevented a police officer from carrying out his or her duties (point 2); (c) the person displayed serious psychological troubles and disturbed public order or exposed his or her life or the lives of others to manifest danger (point 3); (d) the person was a juvenile who had left his or her home or guardian or the institution where he or she had been placed (point 4); (e) the identity of the person could not readily be established on the basis of identity documents, the statements of others, or otherwise (point 5); (f) the person had absconded from prison or pre-trial detention (point 6); (g) the person had been put up for international tracing at the request of a foreign State in connection with an extradition request or a European Arrest Warrant (point 7); or (h) detention was authorised under another legal provision (point 8).

38. Section 64 of the 2006 Act, which was the exact equivalent of section 71 of the 1997 Act, provided that no rights other than the right to liberty of the person concerned could be curtailed, and that detention under section 63(1) could not last longer than twenty-four hours. Section 73 of the 2014 Act is worded in an identical way.

39. Section 72(1) of the 1997 Act and section 65(1) of the 2006 Act, which were worded almost identically, provided that to take a detained person to a detention facility the police had to issue a written order. Section 74(1) of the 2014 Act is to the same effect, but section 74(2) goes on to set out in detail the required contents of the order, and section 74(5) provides that such orders need to be entered in a special register.

40. Section 70(4) of the 1997 Act provided that the detainee could seek judicial review of the lawfulness of his or her detention, and that the court had to rule on the order’s lawfulness forthwith. Section 63(4) of the 2006 Act and section 72(4) of the 2014 Act were worded almost identically.

41. The Supreme Administrative Court has held that the proper construction of the terms in section 65(1) of the 2006 Act (see paragraph 39 above) showed that it required that the detention order be issued immediately and set out the legal and factual grounds for its issuing (see реш. № 14976 от 8.12.2010 г. по адм. д. № 3969/2010 г., ВАС, III о.).

3. Claims for damages in relation to police detention

42. Section 1(1) of State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, acts or omissions by civil servants, committed in the course of or in connection with administrative action. By Article 204 § 1 of the Code of Administrative Procedure 2006, a claim relating to damage allegedly caused by an unlawful decision can only be made if that decision has been duly set aside (by Article 204 § 2 of the Code, the claim for damages may be brought jointly with the claim for judicial review of the decision). If the claim relates to an unlawful act or omission, its unlawfulness may be established, as a preliminary point, by the court hearing the claim of damages (Article 204 § 4 of the same Code).

43. Section 4 of the 1988 Act provides that the State’s liability extends to all pecuniary and non-pecuniary damage which is a direct and proximate result of the impugned decision, act or omission.

44. It is possible to seek damages resulting from unlawful police detention in proceedings under these provisions (see реш. № 14976 от 8.12.2010 г. по адм. д. № 3969/2010 г., ВАС, III о.; реш. № 11974 от 1.10.2012 г. по адм. д. № 1808/2012 г., ВАС, III о.; реш. № 2363 от 19.2.2013 г. по адм. д. № 4187/2012 г., ВАС, III о.; and реш. № 7915 от 10.6.2013 г. по адм. д. № 11237/2012 г., ВАС, III о.). If the detention is based on a written order, the claimant must first have that order quashed, either in separate judicial review proceedings (see опр. № 9381 от 13.7.2009 г. по адм. д. № 8436/2009 г., ВАС, III о.), or in the course of the proceedings for damages (see опр. № 13297 от 9.11.2010 г. по адм. д. № 13269/2010 г., ВАС, III о.). Failure to have the order quashed beforehand renders the claim for damages inadmissible (see опр. № 17130 от 18.12.2013 г. по адм. д. № 16066/2013 г., ВАС, IV о.).

45. When dealing with such claims, the Supreme Administrative Court has in some cases accepted that the mere fact of unlawful detention gives rise to non-pecuniary damage, either on the basis that it infringes the fundamental right to liberty (see реш. № 14976 от 8.12.2010 г. по адм. д. № 3969/ 2010 г., ВАС, III о.; реш. № 16746 от 19.12.2011 г. по адм. д. № 11474/2011 г., ВАС, III о.; and реш. № 10871 от 18.7.2013 г. по адм. д. № 2627/2013 г., ВАС, III о.), or on the basis that it could fairly be assumed that any person would experience stress and anxiety if unlawfully detained (see реш. № 7915 от 10.06.2013 г. по адм. д. № 11237/2012 г., ВАС, III о.; реш. № 7113 от 27.5.2014 г. по адм. д. № 12936/2013 г., ВАС, III о., and реш. № 7292 от 29.5.2014 г. по адм. д. № 13651/2013 г., ВАС, III о.). However, in other cases it has held that non-pecuniary damage flowing from an infringement of the right to liberty could only be made out by presenting objective, or even expert, evidence that it has materialised (see, apart from the three judgments in the cases brought by the applicants in the present applications, реш. № 8176 от 17.6.2010 г. по адм. д. № 437/2010 г., ВАС, III о., and реш. № 15332 от 20.11.2013 г. по адм. д. № 5615/2013 г., ВАС, III о.). In a third line of cases, the court held that in the absence of specific evidence of mental suffering, relatively moderate sums should be awarded by way of non-pecuniary damages (see реш. № 5230 от 9.5.2008 г. по адм. д. № 11884/2007 г., ВАС, III о.; реш. № 8347 от 12.6.2013 г. по адм. д. № 5170/2013 г., ВАС, III о.; and реш. № 3245 от 7.3.2014 г. по адм. д. № 15896/2013 г., ВАС, III о.).

COMPLAINTS

46. The applicants in all three applications complain under Article 5 § 1 of the Convention that their detention by the police was in breach of Bulgarian law and carried out in the absence of a reasonable suspicion that they had committed an offence.

47. The applicants in all three applications also complain under Article 5 § 5 of the Convention that the Bulgarian administrative courts dismissed their claims for damages in respect of that detention. Mr Dzhabarov and Mr Petkov in addition rely on Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, was their deprivation of liberty “in accordance with a procedure prescribed by law” and “lawful”, and based on a “reasonable suspicion” that they had committed an offence, as required by that provision?

2. Did the applicants have an enforceable right to compensation for their detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?

Appendix

 6095/11 Dzhabarov v. Bulgaria75583/11 Petkov v. Bulgaria76290/14 Karaliyski v. Bulgaria

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