Information Note on the Court’s case-law No. 113
November 2008
Kandzhov v. Bulgaria - 68294/01
Judgment 6.11.2008 [Section V]
Article 5
Article 5-3
Brought promptly before judge or other officer
Duration of police custody (three days and twenty-three hours): violation
Facts: On 10 July 2000 the applicant was arrested for putting up two posters calling the Minister of Justice a “top idiot” and gathering signatures calling for the Minister's resignation. On 11 July 2000 the district prosecutor's office received a complaint from the Minister of Justice who requested that criminal proceedings be instituted against the applicant for insult and hooliganism. The same day a prosecutor ordered that the applicant be detained for 72 hours, pending a ruling by a district court on whether he should be placed in “pre-trial detention”. He noted that proceedings had been instituted against the applicant on charges of insult and hooliganism and stated that there was a real risk that he would flee or re-offend. The applicant's counsel immediately appealed against the order to the regional prosecutor's office, but received no reply. On 14 July 2000 the district court decided to release the applicant on bail. In 2001 he was convicted of aggravated hooliganism. He was acquitted on appeal and his acquittal was upheld by the Supreme Court of Cassation.
Law: Article 5 § 1 – The applicant had been arrested and detained as the alleged perpetrator of two criminal offences: hooliganism and insult. In so far as the charge of insult was concerned, at the relevant time it was a privately prosecutable offence and could not attract a sentence of imprisonment. The levelling of charges of insult could not therefore have served as a basis for the applicant's detention between 11 and 14 July 2000. By making an order to this effect the prosecutor's office had blatantly ignored the clear and unambiguous provisions of domestic law. As regards the period immediately preceding the prosecutor's order, it was clear that the police had no power to conduct preliminary investigations in respect of privately prosecutable offences such as insult. The applicant's police detention on this basis had therefore also been unlawful. As regards the charge of hooliganism, the Supreme Court of Cassation had found that the applicant's actions had been entirely peaceful, had not obstructed any passers-by and had been hardly likely to provoke others to violence and, therefore, had not amounted to the constituent elements of the offence of hooliganism. Nor had the orders for the applicant's arrest and detention – which had not been reviewed by a court – contained anything which could be taken to suggest that the authorities could have reasonably believed that the conduct in which he had engaged had constituted hooliganism. It followed that the applicant's detention between 10 and 14 July 2000 had not constituted “lawful detention” effected “on reasonable suspicion” of his having committed an offence.
Conclusion: violation (unanimously).
Article 5 § 3 – The applicant had been brought before a judge 3 days and 23 hours after his arrest. In the circumstances, this did not appear prompt, as was required under Article 5 § 3. He had been arrested on charges of a minor, non-violent offence. He had already spent 24 hours in custody when the police invited the prosecutor in charge of the case to request the competent court to place the applicant in pre-trial detention. The prosecutor had ordered that he be detained for a further 72 hours, without giving any reasons why he considered it necessary, save for a stereotyped formula saying that there was a risk that he might flee or re-offend. The matter had been brought before the district court only at the last possible moment, when the 72 hours had been about to expire. The Court could see no special difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicant before a judge much sooner. This was particularly important in view of the dubious legal grounds for his detention.
Conclusion: violation (unanimously).
Article 10 – In gathering signatures calling for the resignation of the Minister of Justice and in displaying two posters making statements about the Minister, the applicant had been exercising his right to freedom of expression. His arrest and subsequent detention for doing so, quite apart from the opening of criminal proceedings against him, therefore amounted to an interference with the exercise of this right. The Court had already established that the applicant's arrest and detention were not “lawful” within the meaning of Article 5 § 1 (c). It followed that the applicant's arrest and detention had not been “prescribed by law” under Article 10 § 2. Furthermore, assuming that the measures taken against the applicant could be considered to have pursued the legitimate aims of preventing disorder and protecting the rights of others, they had clearly been disproportionate to those aims. Notwithstanding the peaceful character of the applicant's actions, the authorities had chosen to react vigorously and on the spot in order to silence him and shield the Minister of Justice from any public expression of criticism. However, the dominant position which the Government and its members occupied made it necessary for them – and for the authorities in general – to display restraint in resorting to criminal proceedings and the associated custodial measures, particularly where other means were available for replying to the unjustified attacks and criticisms of their adversaries.
Conclusion: violation (unanimously).
Article 41 – EUR 4,000 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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