Communicated on 18 June 2020
Published on 6 July 2020
THIRD SECTION
Application no. 7743/10
Grozdan Traychev ILIEV
against Russia
lodged on 5 January 2010
STATEMENT OF FACTS
1. The applicant, Mr Grozdan Traychev Iliev, is a Bulgarian national who was born in 1975 and lives in Sofia, Bulgaria. He is represented before the Court by Mr K. Perpeliev, a lawyer practising in Sofia, Bulgaria.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.IN RUSSIAArrest
3. The applicant flew from Bulgaria to Russia on 9 May 2007 together with another Bulgarian national. Three days later, at about 9.45 p.m. on 12 May 2007, they were arrested by the police in Yekaterinburg while attaching special devices to a cash machine with a view to covertly reading the data from the bank cards used to withdraw money from it.Places of detention
4. After his arrest, the applicant was kept in a police station in Yekaterinburg for a day, and then transferred to a preliminary detention centre, where he was kept for a further ten days.
5. After that he was transferred to remand prison SIZO-1 in Yekaterinburg. There, he shared a cell (no. 635) normally designed for six inmates with seven other people. He and another inmate had to rotate to use the same bed for sleeping.
6. In mid-August 2007 the applicant was moved to remand prison SIZO‑5 in Moscow. In June 2008 he was moved back to SIZO-1 in Yekaterinburg.
7. On 12 August 2008 the applicant was convicted and sentenced to four years’ imprisonment. His conviction and sentence became final on 2 September 2008. He was then, on an unspecified date later that month, sent to serve his sentence in penal colony IK-2, where he was at some point placed in the in-house medical facility. On 30 September 2008 he was transferred to medical facility LIU-51 in Nizhniy Tagil (a specialised facility for inmates suffering from tuberculosis).Release and return to Bulgaria
8. On 24 June 2009 the applicant was granted early release, and on 7 July 2009 he was released. Two days later, on 9 July 2009, he was removed from the Russian Federation to Bulgaria.Conditions of detention
9. According to the applicant, the food in all detention facilities in which he was kept was poor, consisting mainly of dry potatoes and occasionally meat in porridge. Showers were allowed once a week. In the penal colony, it was very cold, especially at night, and yet inmates were only allowed to have one blanket.Medical examinations in detention
10. According to the applicant, he underwent blood and urine tests as well as chest X-rays upon each transfer from one detention facility to another, and at six-month intervals.Tuberculosis: symptoms and treatment while in detention
11. According to the applicant, he first felt chest pains and trouble breathing even when lying down in March 2008, when he was in SIZO-5 Moscow (see paragraph 6 above). He was then examined by a medical doctor and given Carvedilol (a medicine used to treat high blood pressure, congestive heart failure, and left ventricular dysfunction). Despite his protestations, he was checked for tuberculosis only in September 2008, when he was placed in penal colony IK-2, in whose medical facility he was hospitalised (see paragraph 7 above). The X-ray carried out there revealed fluid inside his lungs. About two and a half litres were drained.
12. The applicant surmises that he contracted tuberculosis in Moscow, where he was transported between the detention facility and the court in small lorries, together with twenty to thirty other inmates, and then kept together with them in small cells inside the courthouse for whole days. According to the applicant, it was possible that some of those inmates had tuberculosis. His alternative hypothesis is that the tuberculosis developed from an untreated wet pleurisy that he had developed on account of the poor conditions of his detention.IN BULGARIA
13. On 13 July 2009 the Bulgarian police, referring to information transmitted via the Bulgarian Ministry of Foreign Affairs that the applicant had broken the laws of the Russian Federation, barred him from leaving Bulgaria until 9 July 2011 (a period of two years) under section 76(5) of the Bulgarian Identity Papers Act 1998 (see paragraph 19 below).
14. The applicant sought judicial review. He argued, in particular, that section 76(5) of the 1998 Act was to be construed restrictively owing to its possible clash with Article 2 of Protocol No. 4.
15. The Sofia City Administrative Court dismissed the claim. It held, in particular, that the travel ban did not run counter to Article 2 of Protocol No. 4 because this provision permitted restrictions of the rights enshrined by it when those were necessary for certain specified purposes, such as combatting crime. It was immaterial that section 76(5) had in the meantime been repealed (see paragraph 21 below), as the lawfulness of an administrative decision was to be judged by reference to the law as it had stood at the time when the decision had been made (see реш. № 526 от 18.03.2010 г. по адм. д. № 6760/2009 г., АС-София град).
16. Following an appeal by the applicant, on 31 January 2011 the Supreme Administrative Court upheld the lower court’s judgment. It noted that the applicant had been criminally convicted in the Russian Federation, which meant that his case fell within the ambit of section 76(5) of the 1998 Act. It went on to say that this provision gave the authorities discretion to impose or refrain from imposing a travel ban, and that their choice in this matter was not reviewable by the courts. In the applicant’s case, the authorities had had regard to all the relevant circumstances and had determined that the measure was called for. They had not acted in breach of Article 2 of Protocol No. 4 because this provision permitted restrictions. The restriction in the applicant’s case was in accordance with section 76(5) of the 1998 Act, and was necessary to protect the public interest. It was also proportionate because it was exclusively based on his personal conduct, which “reveal[ed] a real and sufficiently serious threat affecting the principal interests of society, relating to the protection of paramount values” (see реш. № 1471 от 31.01.2011 г. по адм. д. № 6396/2010 г., ВАС, VII о.).
17. The travel ban came to an end on 10 July 2010, three months after the entry into force of paragraph 5 of the transitional and concluding provisions of a further Act for the amendment of the 1998 Act on 10 April 2010. That paragraph said that within three months of its entry into force all measures imposed under section 76(5) would cease to have effect (see paragraph 21 below).
18. The ban thus lasted in total one year minus three days.
Relevant domestic law
19. Section 76(5) of the Bulgarian Identity Papers Act 1998, in force between 1998 and October 2009, allowed the Bulgarian authorities to ban a Bulgarian national from leaving the country if he or she had “broken the laws” of a another State country during his or her stay there. Until the end of March 2003 the subsection provided that the ban was to last one year. It was amended with effect from 31 March 2003 to provide that the ban was to last two years.
20. The case-law of the Bulgarian administrative courts with respect to the very similarly worded section 76(6) – which provided for travel bans on Bulgarian nationals deported from another country on account of breaches of that country’s immigration laws – has been set out in Stamose v. Bulgaria, no. 29713/05, § 18, ECHR 2012.
21. On 21 August 2009 the Bulgarian Government laid before Parliament a bill for the amendment of the 1998 Act which proposed, inter alia, to repeal section 76(2)-(8). Parliament enacted the bill on 1 October 2009 and the amending Act came into force on 20 October 2009. In its subsequent case-law the Bulgarian Supreme Administrative Court held that the repeal did not automatically invalidate travel bans under section 76 imposed before it had come into force (see реш. № 13819 от 17.11.2009 г. по адм. д. № 6999/2007 г., ВАС, ІІІ о.; реш. № 15106 от 10.12.2009 г. по адм. д. № 7052/2009 г., ВАС, V о.; and реш. № 10449 от 13.08.2010 г. по адм. д. № 1609/2010 г., ВАС, VІІ о.). The matter was settled with the enactment of paragraph 5 of the transitional and concluding provisions of a further Act for the amendment of the 1998 Act. It came into force on 10 April 2010 and said that within three months of its entry into force all measures imposed under section 76(2) and (4)-(8) of the 1998 Act would cease to have effect.
COMPLAINTS
22. The applicant complains, with respect to the Russian Federation, that as a result of the inhuman and degrading conditions of his detention there he contracted tuberculosis, and that between March and September 2008 he was not given medical treatment for that condition. He relies on Article 3 of the Convention.
23. The applicant also complains, with respect to Bulgaria, of the temporary ban on leaving the country. He relies on Article 2 § 2 of Protocol No. 4.
QUESTIONS TO THE PARTIES
To the Russian Federation: Did the manner in which the Russian authorities dealt with the applicant’s tuberculosis while he was in their custody amount to treatment contrary to Article 3 of the Convention (compare with Ivko v. Russia, no. 30575/08, § 105, 15 December 2015; Maylenskiy v. Russia, no. 12646/15, §§ 51-52, 4 October 2016; Vasilyadi v. Russia [Committee], no. 49106/09, §§ 54-56, 22 November 2016; and Kovalev and Others v. Russia [Committee], nos. 38777/04 and 5 others, § 9 and row 1 of the appended table, 30 November 2017)?
To Bulgaria: Was travel ban which the Bulgarian authorities imposed on the applicant compatible with Article 2 §§ 2 and 3 of Protocol No. 4 (see, mutatis mutandis, Gochev v. Bulgaria, no. 34383/03, §§ 53-54, 26 November 2009; Nalbantski v. Bulgaria, no. 30943/04, § 66, 10 February 2011; Dimitar Ivanov v. Bulgaria [Committee], no. 19418/07, § 37, 14 February 2012; Sarkizov and Others v. Bulgaria, nos. 37981/06 and 3 others, §§ 67-69, 17 April 2012; Stamose v. Bulgaria, no. 29713/05, § 35, ECHR 2012; Milen Kostov v. Bulgaria, no. 40026/07, § 17, 3 September 2013; and Nasko Georgiev v. Bulgaria [Committee], no. 25451/07, § 43, 3 December 2013)?
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