Information Note on the Court’s case-law 203
January 2017
Ivan Todorov v. Bulgaria - 71545/11
Judgment 19.1.2017 [Section V]
Article 5
Article 5-4
Review of lawfulness of detention
Lack of remedy to determine whether sentence for criminal offence imposed some twenty years earlier was time-barred: violation
Facts – In April 1987 the applicant was found guilty of aiding and abetting the misuse of public property and was sentenced, among other penalties, to twenty years’ imprisonment. In June 1987 the Supreme Court upheld the judgment and the sentences imposed. The Supreme Court judgment was final and enforceable under domestic law. The applicant had been placed in pre-trial detention in June 1986 and began serving his sentence in June 1987.
In January 1991 the applicant lodged an application for review with the Supreme Court. On the same date the President of the Supreme Court ordered a stay of execution of his sentence on account of his state of health, and he was released. In December 1992 the Supreme Court dismissed the application for review and upheld the applicant’s conviction. The authorities were unable to locate the applicant.
In 2005 the applicant requested a pardon from the President of the Republic of Bulgaria. In November 2007 the pardons commission informed him that it was unnecessary to examine his request as the limitation period for execution of his sentence had expired.
The applicant decided to return to Bulgaria. In January 2008 he was arrested by the police on arrival at the airport under the terms of an arrest warrant. He was subsequently sent to prison to serve the twenty-year sentence handed down in 1987.
The applicant appealed to the public prosecutor’s office, arguing that execution of the prison sentence was time-barred and applying to be released. In February 2008 the military prosecutor ruled that the applicant had to serve the remainder of his sentence and that the limitation period had not expired. The applicant’s appeals against that order were all dismissed.
The applicant was released in May 2014.
Law – Article 5 § 4: From the time of his imprisonment in January 2008 the applicant had maintained that the limitation period for execution of his sentence had expired and that there was no legal basis for his detention. The pardons commission attached to the President’s Office had expressed the same view in response to the applicant’s request for a pardon in 2007. However, the prosecuting authorities, who were responsible for deciding whether or not the sentence should be served, had taken the opposite view. The question whether execution of the applicant’s sentence was time-barred, which was decisive for the lawfulness of his detention, had not been examined at the time of the trial judgment in 1987 or when the applicant’s application for review was being considered in 1992. Accordingly, the domestic legal order should have afforded the applicant access to a legal remedy satisfying the requirements of Article 5 § 4 of the Convention, in order to have this issue determined.
Bulgarian law did not provide for a specific judicial remedy by which to contest the lawfulness of detention following a criminal conviction. The prosecuting authorities alone were empowered to determine issues relating to the execution of sentences. The orders made were subject only to supervision by a higher-ranking prosecutor and not to judicial review. However, a public prosecutor could not be regarded as a “tribunal” satisfying the requirements of Article 5 § 4. Likewise, there was no general habeas corpus-type procedure in domestic law providing for a review of the lawfulness of detention and for the release of the person concerned if the detention was found to be unlawful.
With regard to the action for compensation provided for by section 2(1) of the State and Municipalities Responsibility for Damage Act, which had been amended to include a right to compensation in respect of any violation of Article 5 §§ 1 to 4 of the Convention and which entered into force on 15 December 2012, the procedure in question, although it could potentially lead to a finding that a person’s detention had been unlawful, did not provide for his or her release in the event of such a finding.
In view of the foregoing the applicant had not had access, at any point during his detention from January 2008 to May 2014, to a judicial remedy by which to obtain a review of the lawfulness of his detention and to secure his release in the event of a finding of unlawfulness.
Conclusion: violation (unanimously).
The Court also held unanimously that there had been a violation of Article 5 § 5, given that the action for compensation provided for under the State Responsibility Act had not been apt to secure the applicant’s right to redress and that no other remedy existed in domestic law capable of providing him with compensation for the damage sustained on account of the violation of Article 5 § 4, either before or after adoption of the present judgment.
Article 41: EUR 6,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
In the case of I.P. v. Bulgaria (72936/14, 19 January 2017) the Court also held unanimously that there had been a violation of Article 5 § 4 on the ground that the applicant had not had the benefit of a judicial review of the lawfulness of his detention. The violation had not stemmed from the actions or omissions of one of the authorities referred to in section 2 of the State Responsibility Act, but rather from the absence in domestic law of a procedure for judicial review of the applicant’s detention in a short-stay institution for young people. Hence, the action for compensation under that Act was not an accessible and effective remedy capable of affording redress to the applicant in respect of his complaint.
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This summary by the Registry does not bind the Court.
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