Information Note on the Court’s case-law No. 167
October 2013
Gutsanovi v. Bulgaria - 34529/10
Judgment 15.10.2013 [Section IV]
Article 3
Degrading treatment
Heavy-handed nature of police operation to arrest politician at his home in the presence of his wife and minor children: violation
Article 5
Article 5-3
Brought promptly before judge or other officer
Duration of police custody (3 days 5 hours and 30 minutes): violation
Facts – The applicants are Mr Gutsanov, a well-known local politician, his wife and their two minor daughters. The authorities suspected Mr Gutsanov of involvement in corruption and ordered his arrest and a search of his home. On 31 March 2010 at 6.30 a.m. a special team made up of several armed and masked police officers went to the applicants’ home. When Mr Gutsanov did not respond to the order to open the door, the police officers forced in the front door of the house and entered the premises. Mr Gutsanov’s wife and their two young children were awoken by the arrival of the police. The first applicant was taken into a separate room. The house was searched and a number of items of evidence were taken away following the operation. When Mr Gutsanov left his home under police escort at around 1 p.m., journalists and television crews had already gathered outside. A press conference was held. The following day a regional daily newspaper published the comments made by the public prosecutor, together with extracts from an interview with the Interior Minister concerning the case. On the same day the prosecutor charged Mr Gutsanov with several criminal offences including involvement, in his capacity as a public servant, in a criminal group whose activities entailed the award of contracts potentially damaging to the municipality, and abuse of office by a public servant. The prosecutor ordered the first applicant’s detention for seventy-two hours in order to ensure his attendance in court. On 3 April 2010 Mr Gutsanov appeared in court and was taken into pre-trial detention at the close of the hearing. On 25 May 2010 the court of appeal made him the subject of a compulsory residence order. On 26 July 2010 the first-instance court released him on bail. In April 2013 the criminal proceedings against him were still pending at the preliminary investigation stage.
Law – Article 3: The aims of the police operation had been an arrest, a search and a seizure of items, and had been apt to promote the public interest in the prosecution of criminal offences. Although the four members of the family had not suffered any physical injuries in the course of the police operation, the latter had nonetheless entailed a degree of physical force. The front door of the house had been forced open by a special intervention unit, and Mr Gutsanov had been immobilised by armed officers wearing masks, led downstairs by force and handcuffed. Mr Gutsanov was a well-known politician who had been chairman of Varna municipal council. There had been no evidence to suggest that he had a history of violence and that he might have presented a danger to the police officers. The presence of a weapon in the applicants’ home could not in itself justify the deployment of a special intervention unit or the type of force that had been used. The possible presence of family members at the scene of an arrest was a factor to be taken into consideration in planning and carrying out this kind of operation. The lack of prior judicial review of the necessity and lawfulness of the search had left the planning of the operation entirely at the discretion of the police and the criminal investigation bodies and had not enabled the rights and legitimate interests of Mrs Gutsanova and her two minor daughters to be taken into consideration. The law-enforcement agencies had not contemplated any alternative means of conducting the operation at the applicants’ home, such as staging the operation at a later hour or even deploying a different type of officer in the operation. Consideration of the legitimate interests of Mrs Gutsanova and her daughters had been especially necessary since the former had not been under suspicion of involvement in the criminal offences of which her husband was suspected, and her two daughters had been psychologically vulnerable because they were so young (five and seven years of age). Mrs Gutsanova and her daughters had been very severely affected by the events.
The fact that the police operation took place in the early morning and involved special agents wearing masks had served to heighten the feelings of fear and anxiety experienced by these three applicants, to the extent that the treatment to which they had been subjected exceeded the threshold of severity required for Article 3 to apply. They had therefore been subjected to degrading treatment. The police operation had been planned and carried out without consideration for a number of factors such as the nature of the criminal offences of which Mr Gutsanov was suspected, the fact that he had no history of violence and the possible presence of his wife and daughters in the house. All these elements indicated clearly that the means used to arrest Mr Gutsanov at his home had been excessive. The manner in which his arrest had taken place had aroused strong feelings of fear, anxiety and powerlessness in Mr Gutsanov, liable to humiliate and debase him in his own eyes and in the eyes of his family. Accordingly, he too had been subjected to degrading treatment.
Conclusion: violation (unanimously).
Article 5 § 3
(a) Appearance before a judge – Mr Gutsanov had been arrested on 31 March 2010 at 6.30 a.m. and had appeared before a judge three days, five hours and thirty minutes later. He had been a suspect in a case concerning misappropriation of public funds and abuse of office, but had not been suspected of involvement in violent criminal activities. He had been subjected to degrading treatment during the police operation leading to his arrest. Following those events, and notwithstanding the fact that he was an adult and had been assisted by a lawyer from the beginning of his detention, Mr Gutsanov had been psychologically vulnerable in the early days following his arrest. Furthermore, the fact that he was a well-known politician, and the media interest in his arrest, had undoubtedly added to the psychological pressure on him during the early part of his detention. During his first day in detention Mr Gutsanov had taken part in several investigative measures. However, the regional public prosecutor’s office had not requested his placement in pre-trial detention until the last day of the four-day period of custody permitted under domestic law in the absence of judicial authorisation, although the applicant had not participated in any investigative measure for two days. He had been detained in the city where the court empowered to rule on his pre-trial detention was located, and no exceptional security measures had been required in his case. In sum, in view of the applicant’s psychological vulnerability in the early days after his arrest, and the absence of any circumstances justifying the decision not to bring him before a judge on the second or third day of his detention, the State had failed in its obligation to bring the applicant “promptly” before a judge or other officer empowered to review the lawfulness of his detention.
Conclusion: violation (six votes to one).
(b) Length of detention – Mr Gutsanov had been deprived of his liberty for four months, of which two months had been spent under a compulsory residence order. Even at the time of his early applications for release the domestic courts had ruled out any risk that he might abscond. They had nevertheless ordered his continued detention on the grounds that he might commit further offences, in particular by tampering with the evidence. The court of appeal, in its ruling of 25 May 2010, had taken the view that the latter risk had also ceased to exist in view of the applicant’s resignation from his position as chair of the municipal council. A compulsory residence order had nevertheless been made in respect of Mr Gutsanov, without the court of appeal giving any specific reason justifying the measure, which had remained in place for a further two months. Accordingly, the authorities had failed in their obligation to give reasons justifying the applicant’s continued detention after 25 May 2010.
Conclusion: violation (unanimously).
Article 5 § 5: The action for damages provided for by the State Liability Act could not be regarded as an effective domestic remedy. No other provision existed in domestic law by which to obtain compensation for damage sustained on account of the excessive length of detention or of a delay in being brought before a judge.
Conclusion: violation (unanimously).
Article 6 § 2: The comments made by the Interior Minister the day after Mr Gutsanov’s arrest, and published in a newspaper at a time when the case was the focus of intense public interest, had gone beyond the mere conveying of information. The Minister’s comments had been liable to give the public the impression that Mr Gutsanov was one of the “brains” behind a criminal group which had misappropriated large sums of public money. They had therefore infringed the applicant’s right to be presumed innocent. As to the reasons given for the decision ordering Mr Gutsanov’s continued detention, the judge had stated that the court “remains of the view that a criminal offence was committed and that the accused was involved”. This phrase amounted to a declaration of guilt before any decision had been given on the merits, and had also breached the applicant’s right to be presumed innocent.
Conclusion: violation (unanimously).
Article 8: The search had been carried out without prior authorisation by a judge. The report drawn up following the search had been submitted to a judge of the first-instance court, who had given his formal approval but had given no reasons. The Court did not consider this sufficient to demonstrate that the judge had conducted an effective review of the lawfulness and necessity of the search. That review had been especially necessary since at no point prior to that had it been specified which documents and items connected to the criminal investigation the investigators had been expecting to find and seize at the applicants’ home. The general nature of the search in question was confirmed by the large number and variety of items and documents seized and by the absence of any apparent link between some of these items and the criminal offences under investigation. Furthermore, as the criminal investigation had been started five months previously, the investigators could have applied for a court order before carrying out the search. In the absence of prior authorisation by a judge and of retrospective review of the measure in question, the procedure had not been attended by sufficient safeguards to prevent the risk of an abuse of power by the criminal-investigation authorities. The applicants had been effectively deprived of the requisite protection against arbitrariness. The interference with their right to respect for their home had therefore not been “in accordance with the law”.
Conclusion: violation (unanimously).
Article 13 in conjunction with Articles 3 and 8: Neither a criminal complaint nor an action for damages against the State would have constituted an adequate domestic remedy. The fact of inflicting psychological suffering did not constitute a criminal offence in domestic law, with the result that a possible criminal complaint by the applicants would have been bound to fail. The applicants had not had available to them any domestic remedy by which to assert their right not to be subjected to inhuman or degrading treatment or their right to respect for their home.
Conclusion: violation (unanimously).
Article 41: EUR 40,000 jointly in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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