FIFTH SECTION
DECISION
Application no. 9662/13
Tsonyo Ivanov TSONEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 30 May 2017 as a Chamber composed of:
Angelika Nußberger, President,
Nona Tsotsoria,
André Potocki,
Yonko Grozev,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 17 January 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Tsonyo Ivanov Tsonev, is a Bulgarian national who was born in 1977 and is now detained in a correctional facility in the town of Troyan. He was not legally represented.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In the evening of 8 June 2012 a police patrol in Gabrovo stopped the car of an acquaintance of the applicant. When searching it, they found four foil packets full of powder which they suspected was a narcotic drug. The applicant’s acquaintance said that he had got the packets from the applicant, and later that evening the police searched the applicant’s flat.
5. There they found and seized, among other things, a bottle full of liquid, four tablets and about 200 grams of powder. A field test suggested that the powder contained methamphetamine.
6. The police arrested the applicant and the next day, 9 June 2012, charged him with possession of a narcotic drug with the intent to distribute it. The charge sheet only referred to the powder.
7. Three days later, on 12 June 2012, the police sent the bottle, the four tablets and the powder for testing to a narcotics laboratory of the Ministry of Internal Affairs. A week later, on 19 June 2012, they also sent there the four foil packets seized from the car of the applicant’s acquaintance.
8. In the meantime, on 12 June 2012 the applicant was brought before the Gabrovo Regional Court, which placed him in pre-trial detention. An appeal by the applicant against that decision was dismissed by the Veliko Tarnovo Court of Appeal on 21 June 2012.
9. On 27 July 2012 the applicant sought release. The Gabrovo Regional Court rejected the application on 2 August 2012, and barred the applicant from making a fresh application for release for two months, except on health grounds, under Article 65 § 6 of the Code of Criminal Procedure (see paragraph 23 below). The applicant’s appeal against that decision was dismissed by the Veliko Tarnovo Court of Appeal on 10 August 2012.
10. The applicant made a second request for release in October 2012. It was rejected as well.
11. In December 2012 the applicant sought release for a third time. He argued, among other things, that the suspicion against him was not reasonable because the powder found in his flat did not contain a narcotic drug. On 20 December 2012 the Gabrovo Regional Court rejected the application. It held that the argument about the powder could not be sustained. It was true that its testing had been delayed, but the field test made when it had been seized had suggested that it had contained amphetamine. In proceedings in respect of pre-trial detention, there was no need to analyse the evidence in depth because the level of proof to sustain a reasonable suspicion was lower than that needed to sustain an indictment or a conviction. The court also fixed, under Article 65 § 6 of the Code, a new two-month period, starting from when its decision would become final, during which the applicant could not make a fresh application for release except on health grounds.
12. The applicant appealed. He challenged in particular the court’s decision to opt for the maximum two-month period under Article 65 § 6 of the Code, and noted that there was a fair chance that the results of the tests of the powder found in his flat, which would show that it did not contain narcotic drugs, would be available before the expiry of that period. The applicant went on to say that he had not abused his right to seek release, lodging such applications roughly at two-month intervals. The applications had not overburdened the courts or impeded the investigation, which had not been really progressing in any event – no work had been done on it since June 2012.
13. On 2 January 2013 the Veliko Tarnovo Court of Appeal upheld the lower court’s decision. It noted that though testing of the powder had been considerably delayed and the applicant had already spent six months in pre‑trial detention, the length of that detention had not become excessive as it had not gone above the statutory limit. Lastly, it held that it had been justified to bar the applicant from making a fresh application for release for the full two months possible, as he had already sought release on no less than three occasions.
14. The same day, 2 January 2013, the test results became available. According to them, the powder found in the applicant’s flat did not contain a narcotic drug but only caffeine, but the four tablets and the liquid contained respectively clonazepam and methadone, both of which were narcotic drugs. The four foil packets seized from the car of the applicant’s acquaintance contained amphetamine, which was also a narcotic drug.
15. Apparently as a result of those results (but not referring to them, instead only mentioning unspecified witness evidence), on 30 January 2013 the investigator in charge of the applicant’s case brought additional charges against him, accusing him of possession of methadone with the intent to distribute it, possession of four tablets of clonazepam, and distributing 48.12 grams of amphetamine. The investigator did not impose an additional preventive measure in connection with those charges.
16. In the meantime, on 29 January 2013 the applicant lodged a fourth application for release. During the hearing in that connection his counsel argued, among other things, that test results which had showed that the powder had not contained a narcotic drug had undermined the suspicion against the applicant, and that the fresh charges against him did not have a proper evidential basis either.
17. On 6 February 2013 the Gabrovo Regional Court rejected the application. It held, inter alia, that since the two-month period fixed earlier under Article 65 § 6 of the Code (see paragraph 11 above) had not yet come to an end, it could not analyse the evidence against the applicant or the soundness of the charges against him, but only examine arguments relating to his health, which it found to be good enough for him to remain in detention. The court went on to fix a further two-month period during which the applicant could not seek release except on health grounds.
18. The applicant appealed, reiterating his arguments about the lack of a sufficient evidential basis for the charges against him. He pointed out that the powder did not contain a narcotic drug, and that the methadone and the clonazepam were for his personal use and had been prescribed to him for his heroin dependence. He also argued that there was no evidence that he had distributed 48.12 grams of amphetamine.
19. In a final decision of 14 February 2013, the Veliko Tarnovo Court of Appeal dismissed the appeal. It found that the applicant’s health was good enough for him to remain in detention, and fully agreed with the lower court that, in view of the two-month period fixed earlier under Article 65 § 6 of the Code, the soundness of the charges against the applicant could not be scrutinised. It also upheld the lower court’s decision to impose a further two-month period under that provision.
20. On 22 July 2013 the Gabrovo Regional Court convicted the applicant of possession of methadone with the intent to distribute it, in relation to the liquid in his flat, and of distributing 36.12 grams of amphetamine (part of the 48.12 grams which the applicant was charged with possessing). It acquitted him of possession of clonazepam, in relation to the four tablets in his flat, noting that there was a possibility that it could have been prescribed to the applicant for his heroin dependence, and of distributing 12 grams of amphetamine (the remainder of the 48.12 grams which the applicant was charged with possessing). The court sentenced the applicant to six years’ imprisonment.
21. Following an appeal by the applicant, on 16 January 2014 the Veliko Tarnovo Court of Appeal in addition acquitted him of possession or distribution of 33.55 grams of amphetamine, in respect of which there was only witness evidence, which could not be used to establish the drug’s exact quantity or content, but upheld his conviction for possession of methadone (the liquid in his flat) with the intent to distribute it, and of distributing 2.57 grams of amphetamine (the four foil packets seized from his acquaintance’s car). The court also upheld the applicant’s sentence.
22. In a final judgment of 10 June 2014 (реш. № 150 от 10 юни 2014 г. по н. д. № 357/2014 г., ВКС, III н. о.), the Supreme Court of Cassation upheld the lower court’s judgment.
B. Relevant domestic law and practice
1. Rule allowing the courts to limit the frequency of applications for release from pre-trial detention
23. Article 65 § 6 of the Code of Criminal Procedure of 2005 (“the 2005 Code”) (which is almost the exact equivalent of Article 152b § 7 of the Code of Criminal Procedure of 1974, added in 1999) provides that if a court rejects a pre-trial detainee’s application for release, it may fix a period of up to two months after its decision becomes final during which the detainee may not make a fresh application for release. The bar does not apply to applications based on a worsening of the detainee’s health.
24. Shortly after Article 152b § 7 of the 1974 Code was enacted in 1999, legal commentators explained that the rule’s aim was to prevent pre-trial detainees from seeking release on a daily basis, which would hamper the investigation and preclude its completion within a reasonable time. At the same time, the rule was meant to protect the detainees’ interests by not laying down a fixed period during which they could not make a fresh application for release – which could unduly bar them from seeking release based on fresh developments – and instead left that to the discretion of the court, which would be familiar with the special features of the case and able to assess the likelihood of such fresh developments (see Е. Трендафилова, Промените в НПК от 1999 г., Сиела, 2000 г., стр. 204).
25. The Bulgarian courts often resort to this possibility. They have held that the rule is meant to allow the investigating authorities to concentrate on the investigation and to prevent abusive recurrent applications for release (see опр. № 64 от 16.04.2009 г. по в. ч. н. д. № 100/2009 г., АС-Велико Търново, and опр. № 181 от 01.10.2009 г. по в. ч. н. д. № 239/2009 г., АС-Велико Търново).
26. The courts sometimes fix such periods even if the detainee has not previously sought release (see опр. № 181 от 01.10.2009 г. по в. ч. н. д. № 239/2009 г., АС-Велико Търново, and опр. № 59 от 12.02.2015 г. по в. ч. н. д. № 42/2015 г., АС-Пловдив). In other cases, however, they have declined to do so in the absence of previous abusive requests for release (see опр. № 301 от 07.12.2012 г. по ч. н. д. № 514/2012 г., ОС-Добрич, and опр. № 1016 от 30.10.2015 г. по ч. н. д. № 1446/2015 г., ОС-Варна).
27. Though the courts often opt for the full two months possible under Article 65 § 6 of the 2005 Code (see, among other examples, опр. № 9 от 12.01.2011 г. по в. ч. н. д. № 2/2011 г., ОС-Кюстендил; опр. от 14.05.2013 г. по ч. н. д. № 450/2013 г., ОС-Бургас; опр. № 56 от 10.02.2014 г. по ч. н. д. № 144/2014 г., ОС-Варна; and опр. № 43 от 17.06.2014 г. по ч. н. д. № 254/2014 г., ОС-Сливен), they sometimes go for shorter periods: one month (see опр. от 06.12.2010 г. по ч. н. д. № 412/2010 г., РС-Оряхово; опр. От 14.10.2011 г. по ч. н. д. № 845/ 2011 г., РС-Несебър; опр. От 12.08.2011 г. по ч. н. д. № 771/2011 г., РС‑Силистра; опр. № 532 от 03.09.2014 г. по ч. н. д. № 1068/2014 г., ОС-Варна; опр. № 392 от 24.07.2015 г. по ч. н. д. № 433/2015 г., РС‑Несебър; опр. № 81 от 12.02.2016 г. по ч. н. д. № 156/2016 г., РС‑Несебър; опр. № 20 от 15.01.2016 г. по ч. н. д. № 23/2016 г., ОС‑Сливен; and опр. № 397 от 16.06.2016 г. по в. ч. н. д. № 591/2016 г., ОС-Бургас), or even fifteen days (see опр. № 256 от 05.09.2013 г. по ч. н. д. № 686/2013 г., РС-Елхово).
28. The Plovdiv Court of Appeal recently held that Article 65 § 6 of the 2005 Code was contrary to the Convention because it limited the possibility to periodically seek judicial review of ongoing detention, and on that basis quashed a lower court’s decision to fix a period under that provision (see опр. № 262 от 14.04.2016 г. по в. ч. н. д. № 218/2016 г., АС-Пловдив).
2. Liability of the investigating and prosecuting authorities and the courts
(a) Section 2(1) of the State and Municipalities Liability for Damage Act 1988, as worded before 15 December 2012
29. Section 2(1) of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”), as worded before 15 December 2012, provided for liability of the investigating and prosecuting authorities and the courts in several specific situations relating to criminal proceedings.
30. The first two were: (a) unlawful detention, including when imposed as a measure to secure the accused’s appearance at trial, if it had been set aside for lack of lawful grounds (section 2(1)(1)), and (b) the bringing of criminal charges, if the person concerned had been acquitted or if the criminal proceedings had been discontinued because the offence had not been committed by the accused, his or her act did not amount to an offence, or the proceedings had been opened after the expiry of the applicable limitation period or after an amnesty (section 2(1)(2)).
31. In a 2005 interpretative decision (тълк. реш. № 3 от 22 април 2005 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК), the Supreme Court of Cassation held that if someone was acquitted or had had the criminal proceedings against him or her discontinued for one of the reasons set out in section 2(1)(2), he or she could obtain compensation for the mere fact that criminal proceedings had been brought. According to the same decision, that compensation also had to take into account the damage resulting from any pre-trial detention imposed in those proceedings. In recent years, the largest number of claims under section 2(1) have related to such situations.
32. The remaining grounds of liability set out in section 2(1) – conviction and sentence or the imposition of an administrative punishment, if they are later set aside (point 3); judicially ordered compulsory confinement or medical treatment, if they are later set aside as unlawful (point 4); judicially imposed administrative measure, if the court’s decision for that is later set aside as unlawful (point 5); the execution of a punishment above and beyond its prescribed duration or quantum (point 6); and the unlawful use of special means of surveillance (point 7) – are not relevant to this case.
33. In a 2015 interpretative decision (тълк. реш. № 5 от 2015 г. по тълк. д. № 5/2013 г., ВКС, ОСГК) the Supreme Court of Cassation held that claims under section 2(1) could only be brought against the courts in relation to points 4 and 5 of section 2(1). In all other cases (points 1, 2, 3, 6 and 7), the proper defendants to such claims were the prosecuting authorities. In the operative provisions, the court specified that the decision concerned section 2 of the 1988 Act as worded before it was amended in 2012, and based its reasoning on that provision’s version before the amendment.
(b) December 2012 amendment to section 2(1) of the State and Municipalities Liability for Damage Act 1988
(i) Legislative history
34. On 23 July 2012 the Government put before Parliament a bill for the amendment of the 1988 Act. The bill proposed, inter alia, to re-word several of the Act’s provisions, including section 2(1)(1), and to add new ones, including a new section 2(1)(2). The explanatory notes to the bill said:
“An analysis of the judgments of violation given by the European Court of Human Rights against Bulgaria shows that it finds repetitive breaches owing to the lack of an effective domestic remedy enabling those concerned to obtain redress. More specifically, a domestic remedy allowing them to obtain compensation for damage resulting from breaches of their rights under the [Convention] by the State or its authorities or officials. The Court’s finding that Bulgarian law does not provide for such a remedy makes it necessary to put one in place by broadening the [1988 Act]’s scope. This will overcome the hitherto approach of only providing for liability in specific circumstances, which has led to many judgments of violation against Bulgaria.
It is therefore proposed to amend the Act in the following way:
1. Amendments to section 2(1)(1) and (1)(2), which provide for compensation in cases of breach of rights under Article 5 of the [Convention]. There are many judgments of the Strasbourg Court in which our State has been found in breach owing to the lack of a right to compensation or a failure to ensure that [detainees] are brought before a court to have the necessity of their pre-trial detention reviewed. The courts will assess whether, when ordering an [otherwise] lawful deprivation of liberty, the competent authorities have not violated paragraphs 2 to 4 of Article 5 of the Convention – prompt information about the reason for the arrest in understandable language, prompt bringing before a court and review within a reasonable time of a measure to ensure presence at trial, the right to judicial review of one’s deprivation of liberty, and so on.
Each detention which fails to meet the criteria of Article 5 of the Convention should be grounds to engage the State’s liability.
Whenever it assesses the provisions of the [1988 Act] by reference to Article 5 § 5 of the Convention, the [Court] finds that when detention has been ordered in line with the formal requirements of the Code of Criminal Procedure, section 2 of the [1988 Act] does not apply, and that no other provision ensures a right to compensation – ‘under section 2(1) of the [1988 Act,] a person remanded in custody may seek compensation only if the detention order was set aside “for lack of lawful grounds”. This expression apparently refers to unlawfulness under domestic law’ (Yankov [v. Bulgaria, no. 39084/97, § 194, 11 December 2003]; Belchev [v. Bulgaria, no. 39270/98, § 90, 8 April 2004]; [and] Hamanov [v. Bulgaria, no. 44062/98, § 93, 8 April 2004]).
For instance, in Stoichkov [v. Bulgaria, no. 9808/02, 24 March 2005], the [Court] found that ‘[s]ince the applicant’s deprivation of liberty [wa]s not in breach of domestic law, he [wa]s not entitled to compensation under the [1988 Act], because section 2 of that Act provide[d] for compensation only in cases where the detention [wa]s “unlawful”‘ (paragraph 74 of the judgment).
The direct reference to the Convention seeks to preclude a narrow application of the [1988 Act] only to the situations specifically provided by it, and to enable the courts to assess the actions of the national authorities under the Convention and the [Court’s] case-law, since the situations which arise can be very varied in their character and nature. ...”
35. The bill was first presented for examination by Parliament’s Legal Affairs Committee, which unanimously endorsed it. It then underwent first reading on 26 September 2012. At the follow-up committee stage, the Legal Affairs Committee supported the proposal to amend section 2(1)(1) and add a new section 2(1)(2). At the bill’s second reading, which took place on 28 November 2012, it was enacted. The proposal to amend section 2(1)(1) and add a new section 2(1)(2) was approved by 87 votes to 1, with 3 abstentions. No comments were made during the parliamentary debate on the provisions’ purport.
(ii) New wording of section 2(1)(1) and (1)(2)
36. The amending Act was published in the State Gazette on 11 December 2012 (ДВ, бр. 98/2012 г.) and came into force following the expiry of three clear days after the date of publication, on 15 December 2012 (as provided for in Article 5 § 5 of the Constitution and section 41(3) and (4) of the Normative Instruments Act 1973). The new text of section 2(1) reads:
“The State shall be liable for damage caused to citizens by the investigating or prosecuting authorities or the courts, in cases of:
1. deprivation of liberty, including when imposed as a measure to ensure an accused’s presence at trial, or house arrest, when they have been set aside; court-ordered committal and treatment or compulsory medical measures, when they have been set aside; as well as in all other cases of deprivation of liberty in breach of Article 5 § 1 of the [Convention];
2. breach of rights protected under Article 5 §§ 2-4 of the Convention;
...”
37. The following subsections of section 2(1) were re-numbered, with former subsection (1)(2) becoming subsection (1)(3).
(iii) Case-law under section 2(1)(1) and (1)(2) after the amendment
38. Even after the amendment, the bulk of the cases taken under section 2(1) continued to concern situations in which the claimant had been acquitted or had had the criminal proceedings against him or her had been discontinued on one of the grounds set out in section 2(1)(3) (former section 2(1)(2)).
39. However, in a case in which the claimant had been kept in prosecutor-ordered detention for longer than the legal maximum (seventy‑two hours); had not been brought promptly before a judge; and had not had the possibility to seek judicial review of his detention, the Pazardzhik District Court, whose judgment was upheld by the Pazardzhik Regional Court, found a breach of Article 5 §§ 1, 3 and 4 of the Convention, read in conjunction with the newly worded section 2(1)(1) and (1)(2), and awarded non-pecuniary damages (see реш. № 958 от 13.12.2014 г. по гр. д. № 1437/2014 г., РС-Пазарджик, and реш. № 233 от 17.04.2015 г. по гр. д. № 113/2015 г., ОС-Пазарджик). The Supreme Court of Cassation did not admit the prosecuting authorities’ ensuing appeal on points of law (see опр. № 1365 от 01.12.2015 г. по гр. д. № 3256/2015 г., ВКС, IV г. о.).
40. In another case, the claimant had been held by the police for twenty‑four hours and had had his claim for judicial review of that arrest dismissed by the Supreme Administrative Court. He made a claim for damages under the amended section 2(1)(1) and (1)(2) of the 1988 Act. At first the Burgas District Court declared the claim inadmissible, on the basis that it was in essence seeking to circumvent the res judicata effect of the Supreme Administrative Court’s judgment. However, following an appeal by the claimant, the Burgas Regional Court quashed that decision and allowed the case to proceed on the merits, holding that by seeking damages for a judicial decision, the claimant was not trying to circumvent its res judicata effect (see опр. № VI-55 от 08.01.2015 г. по ч. гр. д. №‑2160/2014 г., ОС-Бургас, appeal against that decision declared inadmissible by the Supreme Court of Cassation with опр. № 437 от 23.06.2015 г. по ч. гр. д. № 1618/2015 г., ВКС, IV г. о.). Examining the case on the merits, the Burgas District Court found the Supreme Administrative Court liable and ordered it to pay the claimant non-pecuniary damages (see реш. № 1861 от 25.11.2015 г. по гр.д. №‑5349/2014 г., РС-Бургас). Following an appeal by the Supreme Administrative Court, the Burgas Regional Court upheld that ruling (see реш. № 527 от 25.05.2016 г. по гр. д. № 370/2016 г., ОС-Бургас). On 21 April 2017, however, the Supreme Court of Cassation admitted the Supreme Administrative Court’s appeal on points of law against that judgment. It held, inter alia, that, in as much as the judgment had found a court liable under section 2(1)(1) of the 1988 Act, it ran counter to the 2015 interpretative decision, according to which only claims under points 4 and 5 of section 2(1), rather than claims under points 1 and 2 of that provision, could properly be directed against the courts (see paragraph 33 above). Having been given in 2015, that interpretative decision applied to the wording of section 2(1)(1) after 15 December 2012 (see опр. № 322 от 21.04.2017 г. по гр. д. № 4624/2016 г., ВКС, III г. о.). The appeal is now pending on the merits before the Supreme Court of Cassation.
(c) Limitation period for claims under the 1988 Act
41. Pursuant to paragraph 1 of the concluding provisions of the 1988 Act, all matters which are not specifically provided for in the Act are governed by general civil law. Under section 110 of the Obligations of Contracts Act 1950, which is therefore applicable to claims under the 1988 Act (see, among other authorities, реш. № 1260 от 19.09.2005 г. по гр. д. № 1838/2003 г., ВКС, IV г. о., and реш. № 638 от 02.10.2009 г. по гр. д. № 456/2008 г., ВКС, III г. о.), the general limitation period for civil claims is five years.
COMPLAINTS
42. In his application form, submitted on 1 July 2013, the applicant complained that in their decisions of 6 and 14 February 2013 the Gabrovo Regional Court and the Veliko Tarnovo Court of Appeal had refused to examine whether the reasonable suspicion that he had possessed methamphetamine with the intent to distribute it had persisted after the test results of 2 January 2013 had showed that the powder found in his flat had not contained narcotic drugs. He stated that his pre-trial detention had been based only on that initial charge, not on the fresh charges brought against him on 30 January 2013, and that, in any event, the courts had not examined the reasonableness of the suspicion underlying those fresh charges.
43. The applicant relied on Article 5 §§ 1 (c), 3, 4 and Article 6 § 1 of the Convention.
THE LAW
44. The applicant’s complaints fall to be examined solely under Article 5 §§ 1 (c), 3 and 4 of the Convention. Article 6 § 1 of the Convention does not apply to proceedings in which someone held in custody challenges his or her detention; Article 5 § 4 is the lex specialis in such situations (see Reinprecht v. Austria, no. 67175/01, §§ 47-55, ECHR 2005-XII; Fodale v. Italy, no. 70148/01, § 27, ECHR 2006-VII; and Amie and Others v. Bulgaria, no. 58149/08, § 109, 12 February 2013).
45. Article 5 of the Convention provides, in so far as relevant:
“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.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. The parties’ submissions
1. The Government
46. The Government submitted that the applicant had not exhausted domestic remedies, as he had not brought a claim for damages under section 2(1)(1) and (1)(2) of the 1988 Act, as amended and in force from 15 December 2012. There was no reason to doubt the effectiveness of that remedy. The provisions’ new wording expressly referred to Article 5 §§ 1-4 of the Convention and, as evident from the explanatory notes to the bill amending the Act, it was specifically meant to provide a means of redressing breaches of those provisions domestically, including in cases – such as the applicant’s – in which the pre-trial detention had not been previously set aside.
47. The Bulgarian courts, which were fully familiar with Article 5 of the Convention, were already applying the amended provisions. In support of that assertion, the Government referred to the cases cited in paragraph 39 above, as well as to a number of other cases: (a) a case in which the Veliko Tarnovo Regional Court had dismissed a claim under section 2(1)(3) of the 1988 Act, as worded after December 2012, relating to detention under a European Arrest Warrant; (b) a case, decided under section 2(1)(1) of the 1988 Act, as worded before December 2012, in which the Sofia Court of Appeal had reviewed the lawfulness of a house-arrest order by reference to Article 5 § 1 of the Convention; (c) a case in which the Vratsa Regional Court had refused to examine under section 2(1)(1) of the 1988 Act, as worded after December 2012, a claim of a breach of Article 6 of the Convention, because it had found that the subsection referred only to Article 5 §§ 2-4 of the Convention; (d) a case in which the Sofia City Court had dismissed a claim under section 2(1)(2) of the 1988 Act, as worded after December 2012, read in conjunction with Article 5 § 2 of the Convention; (e) a case in which the Sevlievo District Court had allowed a claim under section 2(1)(2) of the 1988 Act, as worded after December 2012 (but in which, on appeal, the Gabrovo Regional Court had requalified the claim as falling under section 2(1)(3) of the 1988 Act); and (f) a case in which, following instructions by the Supreme Court of Cassation, the Burgas District Court had examined a claim relating to a discontinued criminal investigation under section 2(1)(3) of the 1988 Act, as worded after December 2012, rather than under section 2(1)(2), as wished by the claimant. In their follow-up observations, the Government referred to seven more cases which in their view showed that in applying the new wording of section 2(1)(1) and (1)(2) of the 1988 Act the Bulgarian courts were taking due account of the requirements of Article 5 of the Convention.
48. The Government went on to say that though the December 2012 amendment to section 2(1)(1) and (1)(2) of the 1988 Act did not apply retrospectively, that was of no concern to the applicant as his complaint related to decisions given after the amendment had come into force.
49. The Government also argued that the applicant could have in any event sought damages under general law of tort.
50. The Government in addition submitted that the application was abusive under Article 35 § 3 (a) of the Convention.
2. The applicant
51. The applicant submitted that section 2(1)(1) and (1)(2) of the 1988 Act, as amended, was not an effective remedy. Properly construed, section 2(1)(1) allowed a civil court to award damages in respect of pre-trial detention only if it had already been set aside by a criminal court. That was clear from the provision’s grammatical structure and from the fact that pre‑trial detention could only be reviewed by the criminal courts. It was naïve to think that a civil court would find a criminal-court decision unlawful or contrary to Article 5 of the Convention. Criminal-court decisions carried more weight than civil-court ones and were binding on the civil courts. Moreover, in his case the pre-trial detention had been finally upheld by a court of appeal, which stood higher in the judicial hierarchy than the district or regional court before which a claim for damages under section 2(1)(1) or (1)(2) of the 1988 Act would have had to be brought. The domestic decisions cited by the Government were inapposite as they had all been given in cases with very different facts. As for section 2(1)(2) of the 1988 Act, it was clear that liability under it could only arise if the person concerned had been placed in pre-trial detention without judicial authorisation, had not been brought before a judge promptly, or had been deprived of the opportunity to have his detention speedily reviewed by a court. The applicant’s case was different, and concerned a final judicial decision. Lastly, the amendments to section 2(1)(1) and (1)(2), which did not apply retrospectively, had come into force on 15 December 2012, which had been after his initial placement in pre-trial detention in June 2012.
B. The Court’s assessment
52. The general principles relating to exhaustion of domestic remedies are well-settled in the Court’s case-law (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 66-69, Reports of Judgments and Decisions 1996-IV; Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, §§ 69-70, ECHR 2010; and Gherghina v. Romania (dec.), no. 42219/07, §§ 83-89, 9 July 2015), and there is no need to repeat them here.
53. The first question in this case is whether the remedy cited by the Government – a claim for damages under section 2(1)(1) and (1)(2) of the 1988 Act, as amended and in force from 15 December 2012 – was available to the applicant. That point is normally assessed by reference to the date on which the application was lodged (see, among other authorities, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX; Demopoulos and Others, cited above, § 69; and Valcheva and Abrashev v. Bulgaria (dec.), nos. 6194/11 and 34887/11, § 122, 18 June 2013). Here, the remedy had come into force shortly before the applicant lodged his application. No issue therefore arises in that connection.
54. The second question is whether the remedy was capable of providing the applicant adequate redress.
55. As evident from the terms of section 2(1)(1) and (1)(2) of the 1988 Act, as amended and in force from 15 December 2012, a claim under those provisions can result in an express acknowledgement of a breach of Article 5 §§ 1 to 4 of the Convention and in a consequent award of compensation (see paragraph 36 above).
56. Under the Court’s case-law, such a remedy can in principle provide adequate redress, if the situation alleged to amount to a breach of Article 5 §§ 1 to 4 of the Convention has come to an end (see Gavril Yossifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008; Rahmani and Dineva v. Bulgaria, no. 20116/08, § 66, 10 May 2012; Ivan Todorov v. Bulgaria, no. 71545/11, § 48, 19 January 2017; and I.P. v. Bulgaria, no. 72936/14, § 45, 19 January 2017). This principle has already been applied to complaints under Article 5 § 1 that a period of detention was unlawful (see Gavril Yossifov, § 43, and Rahmani and Dineva, §§ 67-71, both cited above), complaints under Article 5 § 3 that the length of pre-trial detention was unreasonable (see Demir v. Turkey (dec.), no. 51770/07, §§ 28-35, 16 October 2012; Gürceğiz v. Turkey, no. 11045/07, §§ 22-25, 15 November 2012; Varnas v. Lithuania, no. 42615/06, § 89, 9 July 2013; and Yıldız v. Turkey (dec.), no. 42745/09, §§ 26-30, 11 October 2016) and complaints under Article 5 § 4 that legal challenges against detention were not examined speedily (see Knebl v. the Czech Republic, no. 20157/05, §§ 105-06, 28 October 2010; Osváthová v. Slovakia, no. 15684/05, §§ 57-59, 21 December 2010; and Delijorgji v. Albania, no. 6858/11, § 81, 28 April 2015).
57. In this case, the applicant was still in pre-trial detention when he raised his complaints before the Court. Though the national courts’ decisions of which he complained were one-off acts, it is open to question whether those courts’ refusals to enquire into the reasonableness of the suspicion against him had an effect on his ensuing pre-trial detention. It follows that it is also open to question whether, in view of its purely compensatory character, the remedy was capable of providing the applicant adequate redress with respect to his complaint under Article 5 § 3 of the Convention as long as that pre-trial detention persisted.
58. But the applicant’s situation has since changed. In 2013 he was convicted, and in 2014 his conviction became final (see paragraphs 20-22 above). He is thus no longer in pre-trial detention. A remedy capable of resulting in an acknowledgement of the breach and compensation therefore became adequate in his case (see Demir, § 28; Gürceğiz, §§ 22-25; and Yıldız, § 25, all cited above).
59. The third question is whether the remedy had a reasonable prospect of success.
60. Since the applicant’s complaint concerned judicial decisions given after the amendment had entered into force (see paragraphs 17, 19 and 36 above), the remedy was clearly applicable to them, and its lack of retrospective effect did not affect the applicant (contrast Toni Kostadinov v. Bulgaria, no. 37124/10, § 70, 27 January 2015).
61. The main point of contention between the parties was whether a claim for damages about the way in which a criminal court had dealt with a legal challenge to pre-trial detention would have been likely to succeed. The applicant’s doubts were based on the amended provisions’ grammatical structure and on the interrelations between civil and criminal courts in Bulgarian law, whereas the Government emphasised the legislative intent behind the amendments and the Bulgarian courts’ general willingness to take into account the requirements of Article 5 of the Convention.
62. The starting point of the Court’s analysis is that doubts about the prospects of a remedy which appears to offer a reasonable possibility of redress are not a sufficient reason to eschew it (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74 and 84 in fine, 25 March 2014; Avotiņš v. Latvia [GC], no. 17502/07, § 122, ECHR 2016; and Posevini v. Bulgaria, no. 63638/14, § 54, 19 January 2017). This is especially so if the legal provision on which the remedy is based has been specifically put in place to allow a grievance under the Convention to be aired domestically (see, for example, Société Provitel Saint-Georges and Emery v. France (dec.), no. 29437/08, 9 November 2010; Demir, cited above, § 32; Gürceğiz, cited above, § 31; and Tiralongo and Carbe v. Italy (dec.), no. 4686/06, § 46, 27 November 2012).
63. It is true that, when read textually, section 2(1)(1) of the 1988 Act, as amended in December 2012, appears to contain an ambiguity, since it on the one hand says that damages can be claimed with respect to the specific types of detention which it mentions only if they have been previously set aside, while at the same time proclaims that any breach of Article 5 § 1 of the Convention could be grounds for an award of damages. It is also true that the Bulgarian courts appear reluctant to entertain claims for damages against other courts (see paragraph 33 above), and that it is unclear whether and to what extent they would be prepared to uphold collateral challenges to final judicial decisions relating to deprivation of liberty. The preparatory works of the December 2012 amendment to section 2(1) give no indication that these points, which could clearly affect the effectiveness of the new remedy, were duly considered. Yet, as evident from the explanatory notes to the bill which added the amendments (see paragraph 34 above), they were specifically meant to create a domestic remedy for breaches of Article 5 §§ 1 to 4 of the Convention. It is therefore hard to presume that the grammatical structure of section 2(1)(1) would definitely prevent the Bulgarian courts from dealing with such complaints, and give rise to difficulties of application which cannot be overcome through the normal process of judicial interpretation. When the proper construction of a new legal provision is yet to be settled, the domestic courts must be given the opportunity to dispel any doubts (see Gherghina, cited above, §§ 101 and 106). Moreover, under the Court’s settled case-law the High Contracting States have some leeway in relation to the manner in which they choose to conform to their obligations under Article 13 of the Convention (see, among other authorities, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 122, Series A no. 215; Öneryıldız v. Turkey [GC], no. 48939/99, § 146, ECHR 2004-XII; and De Souza Ribeiro v. France [GC], no. 22689/07, § 85, ECHR 2012).
64. It is true that, as evident from the cases cited by the Government, the Bulgarian courts’ case-law under the amended provisions is still scant and not well-settled. But that cannot in itself lead to the conclusion that the remedy did not offer a reasonable prospect of success (see Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, § 30, 23 September 2010, and Société Provitel Saint-Georges and Emery, cited above).
65. It is also true that in two recent cases (Ivan Todorov v. Bulgaria, no. 71545/11, §§ 45-54, 19 January 2017, and I.P. v. Bulgaria, no. 72936/14, §§ 42-49, 19 January 2017) the Court found that, in the specific circumstances, the remedy did not offer a reasonable prospect of success. But that was only because in both cases the alleged breaches of Article 5 § 4 of the Convention had been due to legislative gaps rather than actions or omissions of the courts or the prosecuting authorities, whereas the 1988 Act clearly does not provide for liability of the legislature (see Ivan Todorov, § 52, and I.P. v. Bulgaria, § 47, both cited above). By contrast, the applicant’s grievances here directly relate to judicial decisions, and are thus well within the ambit of section 2(1) of the 1988 Act. Indeed, in barring the applicant from making a fresh claim for release from pre-trial detention for a period of two months, the courts dealing with his case were exercising their discretion. Article 65 § 6 of the 2005 Code enabled them – but did not compel them – to do so. This is clear from its wording, the subsequent legal commentary, and the manner in which it is applied by the Bulgarian courts (see paragraphs 23-28 above). It does not therefore appear that a claim under section 2(1)(1) or (1)(2) of the 1988 Act would have faced the same problems of attribution of liability as those at issue in Ivan Todorov and I.P. v. Bulgaria (both cited above).
66. There could of course be no certainty that such a claim would succeed. But under the Court’s settled case-law, all that is required is that it had a reasonable prospect of doing so.
67. Indeed, the limitation period for such a claim being five years (see paragraph 41 above), it is still open to the applicant to make one. If he is not successful, he will be able to re-apply to the Court, as the process of exhaustion of domestic remedies amounts to “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention (see A.D. v. the Netherlands, no. 21962/93, Commission decision of 11 January 1994, Decisions and Reports. 76-A, p. 157, at p. 161; Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000; C.G. v. Bulgaria (dec.), no. 1365/07, 13 March 2007; and Kemerov v. Bulgaria (dec.), no. 16077/05, 22 June 2010).
68. The last point for decision is whether the applicant had to attempt the new remedy, which, in view of its purely compensatory character, only became adequate with respect to his complaint under Article 5 § 3 of the Convention after his pre-trial detention had come to an end, which had been after he had lodged his application with the Court. In the circumstances, the Court is satisfied that he was required to have recourse to it (see Demir, §§ 28 and 35; Gürceğiz, §§ 27 and 34; and Yıldız, §§ 28 and 30, all cited above). This is not a case in which the applicant, while still in pre-trial detention, did not have at his disposal a remedy allowing him to challenge his deprivation of liberty and seek release; he was able to, and did, avail himself of such a remedy on four occasions, albeit without success (see paragraphs 9, 10, 11-13 and 16-19 above). After his pre-trial detention had come to an end, the only further remedy which could be envisaged is one that made it possible for him to obtain a finding that his rights under Article 5 §§ 1 to 4 of the Convention had been breached and a consequent award of compensation.
69. The application must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
70. It should nevertheless be emphasised that the Court’s view on the effectiveness of the remedy under section 2(1)(1) and (1)(2) of the 1988 Act may be subject to reconsideration depending, in particular, on the Bulgarian courts’ ability to develop a consistent case-law under those provisions in line with the requirements of the Convention (see, among other authorities, Demir, § 34, and Gürceğiz, § 33, both cited above).
71. In view of this conclusion, it is not necessary to examine whether the application is abusive under Article 35 § 3 (a) of the Convention, as claimed by the Government.
For these reasons, the Court, unanimously
Declares the application inadmissible.
Done in English and notified in writing on 22 June 2017.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy