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FIFTH
SECTION
CASE OF ATANASOV v. BULGARIA
(Application
no. 54172/00)
JUDGMENT
STRASBOURG
10
January 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Atanasov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Karel Jungwiert,
Volodymyr H.
Butkevych,
Margarita Tsatsa Nikolovska,
Rait
Maruste,
Renate Jaeger, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54172/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Angel Nikolov Atanasov
who was born in 1968 and lives in Plovdiv (“the applicant”),
on 23 July 1999.
- The
applicant, who had been granted legal aid, was represented before the
Court by Mr D. Marinov, a lawyer practising in Plovdiv.
- The
respondent Government were represented by their Agent, Ms M. Dimova,
of the Ministry of Justice.
- The
applicant alleged, in particular, that he was not brought promptly
before a judge or other officer authorised by law to exercise
judicial power, that there was a lack of justification for his
pre-trial detention, that there was a limited scope of judicial
review of the lawfulness of his detention, and that his applications
for release were decided in violation of the requirement for a speedy
decision.
- In
a decision of 23 March 2006 the Court declared the application partly
admissible.
- The
parties did not submit further written observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant
- The
applicant is disabled and uses a prosthesis.
- On
19 March 1999 the applicant become intoxicated in a bar and
quarrelled with another customer (the “victim”). After
leaving the establishment, he punctured the tires of the victim’s
car with his knife. The victim and some of his friends chased the
applicant, who tried to hide in a small shop. A scuffle ensued, which
resulted in the applicant inflicting three stab wounds to the victim
in the area of the neck.
- Later
on the same day, 19 March 1999, a preliminary investigation was
opened against the applicant for attempted murder. He was charged on
the next day.
- The
preliminary investigation concluded sometime in May 1999.
- On
an unspecified date, an indictment for attempted murder was entered
against the applicant with the Plovdiv Regional Court.
- In
a judgment of 29 October 1999 the Plovdiv Regional Court found the
applicant guilty of attempted murder, sentenced him to six years’
imprisonment and ordered him to pay damages to the victim. The court
found that the applicant, who was drunk at the time of the events and
could not remember everything, had not acted in self-defence when he
stabbed the victim three times in the neck because there was
insufficient evidence that a direct and imminent threat towards him
existed at the time. The applicant appealed against the judgment.
- In
a judgment of 9 March 2000 the Plovdiv Court of Appeals dismissed the
applicant’s appeal, but found that there were mitigating
circumstances and reduced his sentence to four years’
imprisonment. On an unspecified date, the applicant filed a cassation
appeal.
- In
a judgment of 23 July 2001 the Supreme Court of Cassation quashed the
judgment of the second-instance court and remitted the case as it
found that the Plovdiv Court of Appeals had insufficiently examined
the applicant’s claim that he had acted in self defence.
- In a judgment of an unspecified date, the Plovdiv
Court of Appeals again dismissed the applicant’s appeal against
the first-instance court’s judgment, allegedly on similar
grounds to those contained in its judgment of 9 March 2000. The
applicant did not to file a cassation appeal against the second
judgment of the Plovdiv Court of Appeals.
B. The applicant’s detention and his appeals
against it
- The
applicant was detained sometime on 19 March 1999 and was held
overnight.
- At
10.30 a.m. on 20 March 1999 the applicant was remanded in custody
upon a decision of an investigator, which was confirmed later in the
day by the public prosecutor’s office. The justification for
detaining the applicant was:
“Article 152 § 1 of [the Criminal Code] –
a serious intentional offence has been committed”.
- Subsequently,
the applicant filed three unsuccessful appeals against his detention.
- His
first appeal was filed with the Plovdiv Regional Court on 29 March
1999. It was examined ten days later on 8 April 1999 when the court
dismissed it on the grounds that he had been charged with a serious
intentional offence and could obstruct the investigation, because it
was still ongoing.
- Following
the conclusion of the preliminary investigation, the applicant filed
another appeal against his detention on 4 June 1999 with the public
prosecutor’s office. The applicant argued that there was no
danger that he would abscond, re-offend or obstruct the investigation
especially as the latter had already been concluded. In addition, he
noted that he was finding the detention difficult because of his
disability. The appeal was not processed, so he re-filed it on 14
June 1999 directly with the Plovdiv Regional Court.
- The
applicant’s appeal was examined by the Plovdiv Regional Court
at a hearing on 2 July 1999 and dismissed it. It found that
because he had been charged with a serious offence there were
sufficient legal grounds to continue his detention. Furthermore, none
of the relevant circumstances, which might entail a re-evaluation of
the grounds of his detention, had changed. The applicant appealed
against the decision of the Plovdiv Regional Court on 5 July 1999.
- In
a decision of 8 July 1999 the Plovdiv Regional Court, in camera,
refused to quash or amend its decision of 2 July 1999 citing similar
grounds to those in its challenged decision.
- In
a decision of 28 July 1999 the Plovdiv Court of Appeals, in camera,
dismissed the applicant’s appeal and upheld the lower court’s
decisions. The court found that the continued detention of the
applicant was in conformity with the relevant provisions of the
Criminal Code and that none of the relevant circumstances, which
might entail a re-evaluation of the grounds of his detention, had
changed.
- On
29 September 1999 the applicant filed his third appeal against his
detention on grounds similar to those in his appeal of 4 June 1999.
The applicant maintained that there had been a change in the relevant
circumstances, because he had been detained for more than six months
and was finding the detention difficult as a result of his
disability. He also challenged the notion that he should be treated
as being charged with a serious offence because the evidence obtained
during the trial allegedly proved otherwise.
- The
applicant’s third appeal was examined on 29 October 1999, when
the trial court dismissed it without giving explicit reasons and
adopted its judgment finding the applicant guilty of attempted
murder.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Code of Criminal Procedure and the
Bulgarian courts’ practice at the relevant time are summarised
in the Court’s judgments in several similar cases (see, among
others, Nikolova v. Bulgaria [GC], no. 31195/96, §§
25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96,
§§ 55-62, 26 July 2001; and Yankov v. Bulgaria,
no. 39084/97, §§ 79-88, ECHR 2003 XII
(extracts)).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
A. Complaint that the applicant was not brought
promptly before a judge or other officer authorised by law to
exercise judicial power
- The
applicant complained under Article 5 § 3 of the Convention that
after he was detained he was not brought promptly before a judge or
other officer authorised by law to exercise judicial power, which
provides as relevant:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power...”
- The
Government did not submit observations on the admissibility and
merits of this complaint.
- The
Court reiterates that in previous judgments which concerned the
system of detention pending trial, as it existed in Bulgaria until 1
January 2000, it found that neither investigators before whom the
accused persons were brought, nor prosecutors who approved detention
orders, could be considered as “officer[s] authorised by law to
exercise judicial power” within the meaning of Article 5
§ 3 of the Convention (see Assenov and Others v.
Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998 VIII, p. 3299, §§ 144-50;
Nikolova, cited above, §§ 49-53, and Shishkov
v. Bulgaria, no. 38822/97, §§ 52-54, ECHR
2003 I (extracts)).
- The
present case likewise concerns detention on remand imposed before 1
January 2000. The applicant’s detention on remand was ordered
by an investigator and confirmed by a prosecutor (see paragraph 17
above), in accordance with the provisions of the CCP then in force
(see paragraph 26 above). However, neither the investigator nor the
prosecutor were sufficiently independent and impartial for the
purposes of Article 5 § 3 of the Convention, in view
of the practical role they played in the investigation and the
prosecution, and the prosecutor’s potential participation as a
party to the criminal proceedings (see paragraph 26 above and the
references quoted therein). The Court refers to the analysis of the
relevant domestic law contained in its Nikolova judgment
(cited above – see paragraphs 28, 29 and 49 to 53 of that
judgment).
- Moreover,
the Government’s failed to present arguments challenging the
above findings.
- It
follows that there has been a violation of the applicant’s
right to be brought before a judge or other officer authorised by law
to exercise judicial power within the meaning of Article 5 § 3
of the Convention.
B. Complaint that there was a lack of justification for
the applicant’s detention on remand
- The applicant complained that his detention on remand
was unjustified because the authorities failed to take into account
his lack of a criminal record, that he was disabled and with a good
reputation. In the admissibility decision of 23 March 2006 the Court
found that this complaint fell to be examined under Article 5 § 3
of the Convention, which provides as relevant:
“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.”
- The
Government did not submit observations on the admissibility and
merits of this complaint.
- The
applicant claimed that there had been sufficient evidence before the
authorities that he would not abscond or re-offend, namely because he
was disabled, had a permanent address and a good reputation, and had
been living on welfare. In addition, he lacked a prior criminal
record and maintained that his actions at the time of the incident
had been out of character as he had been under the influence of
alcohol.
- The
Court finds that in the decisions to maintain the applicant’s
detention on remand the authorities failed to cite any reasons and to
assess specific facts and evidence that he might abscond, re-offend
or obstruct the investigation (see paragraphs 19, 21-23 and 25
above). Thus, it appears that the authorities applied the defective
approach according to which remand in custody was imposed and
maintained automatically whenever the charges concerned a serious
offence, without analysis in concreto, which makes this
complaint similar to those in previous cases against Bulgaria where
violations were found (see, for example, Ilijkov, cited above,
§§ 67-87 and Shishkov, cited above, §§
57-67).
- Moreover,
the Government’s failed to present arguments challenging the
above findings.
- In
view of the above, the Court finds that there has been a violation of
Article 5 § 3 of the Convention on account of the
authorities’ failure to justify the applicant’s continued
detention.
C. Complaint under Articles 5 § 4 of the
Convention
- The
applicant complained under Articles 5 § 4 of the Convention that
the domestic courts did not examine all factors relevant to the
lawfulness of his detention. In addition, he complained that his
applications for release were decided in violation of the requirement
for a speedy decision.
Article
5 § 4 of the Convention provides the following:
“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.”
- The
applicant also complained, invoking Article 13 of the Convention,
that he did not have at his disposal an effective domestic remedy for
his Convention complaints. In the admissibility decision of 23 March
2006 the Court considered that this complaint fell to be examined
only under Article 5 § 4 of the Convention, which is a lex
specialis in relation to the more general requirements of
Article 13 (see, among other authorities, Nikolova, cited
above, § 69 and M.A. and M.M. v. France (dec.), no.
39671/98, ECHR 1999-VIII).
- The
Government did not submit observations on the admissibility and
merits of this complaint.
- The
applicant noted that when dismissing his applications for release the
domestic courts had relied on the seriousness of the offence with
which he had been charged and had excluded any examination of whether
there was a “reasonable suspicion” against him or of his
personality.
- The
Court notes at the outset that this complaint is very similar to
those in previous cases against Bulgaria where violations were found
(see Nikolova, §§ 54 66 and Ilijkov,
§§ 88 106, both cited above).
- Likewise,
the Court finds that in the present case the domestic courts, when
examining the applicant’s appeals against his detention,
primarily relied on the seriousness of the charges with which he had
been charged to justify his continued detention and failed to cite
specific facts and evidence that he might abscond, re-offend or
obstruct the investigation (see paragraphs 19, 21-23 and 25 above).
Thus, it appears that they relied on the statutory provisions
requiring mandatory detention for serious intentional offences and
the Supreme Court’s practice which excluded any examination of
the question whether there was a “reasonable suspicion”
against the detainee and of facts concerning the likelihood of flight
or re-offending (see paragraph 26 above).
- Accordingly,
the Court finds that the applicant was denied the guarantees provided
for in Article 5 § 4 of the Convention on account of the limited
scope of judicial review of the lawfulness of his detention on
remand.
Thus,
there has been a violation of Article 5 § 4 of the Convention in
that respect.
- In
view of the above finding, the Court does not deem it necessary to
enquire whether the judicial reviews in response to the applicant’s
appeals were all provided speedily (see, mutatis mutandis,
Nikolova, § 65, and Ilijkov, § 106, both
cited above).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 6,000 euros (EUR) as compensation for the alleged
violations of his rights under the Convention.
- The
Government did not submit comments on the applicant’s claims
for damage.
- Having
regard to the specific circumstances of the present case and the
violations found (see paragraphs 32, 38 and 45 above), its case-law
in similar cases and deciding on an equitable basis, the Court awards
EUR 1,500 under this head, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 3,250 for 65 hours of legal work by his
lawyer in the proceedings before the Court at an hourly rate of EUR
50.
- The
Government did not submit comments on the applicant’s claims
for costs and expenses.
- The
Court reiterates that according to its case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the instant case, it
observes that the applicant failed to present a legal fees agreement
with his lawyer or an approved timesheet of the legal work performed
before the Court. Nevertheless, having regard to all relevant factors
and noting that the applicant was paid EUR 715 in legal aid by the
Council of Europe, the Court considers it reasonable to award the sum
of EUR 500 in respect of costs and expenses, plus any tax that may be
chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the
applicant not having been promptly brought before a judge or other
officer authorised by law to exercise judicial power;
- Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the
authorities’ failure to justify the applicant’s continued
detention;
- Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the
limited scope and nature of the judicial control of lawfulness of the
applicant’s detention;
- Holds
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into Bulgarian levs at the rate applicable
on the date of settlement :
(i) EUR
1,500 (one thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
