Detention of the mayor for 4 days without appearing in court. Search in his office without a warrant. Violation of privacy and the right to liberty and security
JUDGMENT
Marin Yosifov v. Bulgaria 13.10.2020 (app. no. 5113/11)
SUMMARY
The case concerns criminal proceedings for corruption brought against a mayor. The applicant
complained of being detained for four days (for 24 hours on police orders and for a further 72 hours
on an order of the public prosecutor) without being brought before a judge. He also complained
about the search carried out at his office, which in his view was incompatible with the requirements
of Article 8 of the European Convention on Human Rights.
The European Court of Human Rights held, unanimously, that there had been:
a violation of Article 5 §§ 3 and 4 (right to liberty and security: right to be brought promptly before
a judge and right to a speedy review of the lawfulness of detention) of the European Convention
on Human Rights, and a violation of Article 8 (right to respect for private life) of the Convention.
The Court found that Mr Yosifov had been kept in detention for four days without being brought
before a judge or other officer authorised by law to exercise judicial power. It therefore held that he
had not been released “promptly” for the purposes of Article 5 § 3 of the Convention.
The Court also held that, at the time of the events, no sufficiently established remedy had existed
enabling Mr Yosifov to challenge the lawfulness and necessity of his four-day detention before the
domestic courts, as required by Article 5 § 4 of the Convention.
Lastly, the Court found that the search of the applicant’s office without prior authorisation by a
judge had not been provided for by Bulgarian law. The applicant had therefore been deprived of
protection against arbitrariness and had been subjected to an interference with the exercise of his
right to respect for his private life that was not in accordance with the law
PROVISIONS
Article 5
Article 8
PRINCIPAL FACTS
The applicant, Marin Draganov Yosifov, is a Bulgarian national who was born in 1955. He lives in
Sofia. At the relevant time he was mayor of the municipality of Sadovo (Bulgaria).
On 2 December 2009 the Plovdiv public prosecutor’s office opened a criminal investigation into
bribe-taking by a person or persons unknown. The investigation related to requests for payment of
illegal commissions allegedly made by municipal officials in connection with the award of public
contracts.
On 30 June 2010, between 9.30 a.m. and 1 p.m., the police searched the municipal offices and seized
a sum of money from Mr Yosifov’s office. They also seized documents relating to the award of public
contracts, IT equipment and mobile telephones from the office of his deputy. At around 1.30 p.m. a
Regional Court judge approved the search. The same day, a police inspector ordered Mr Yosifov’s
detention for 24 hours. According to the applicant, he was not released at the end of that period.
On 1 July 2010 Mr Yosifov was taken by police officers to the investigation department. At
11.55 a.m. he was charged with accepting bribes and was placed in detention for 72 hours under an
order issued by the regional prosecutor.
On 4 July 2010 the regional prosecutor decided not to request the applicant’s pre-trial detention,
but ordered him to pay a security of around EUR 7,500. A few days later the Regional Court
suspended the applicant from his duties as mayor.
On 15 September 2010 Mr Yosifov’s lawyer lodged two appeals against the detention order of 1 July
2010. However, the national courts ruled that the domestic legislation made no provision for lodging
a court appeal against a prosecutor’s order imposing 72 hours’ detention.
In 2012 Mr Yosifov was found guilty of corruption and was sentenced to three years and six months’
imprisonment. He was released in June 2016 after serving his sentence.
Relying on Article 5 §§ 3, 4 and 5 (right to liberty and security/right to a speedy review of the
lawfulness of detention), Mr Yosifov complained that he had been detained for four days without
being brought before a judge and that he had had no domestic remedy by which to challenge the
lawfulness of his detention.
THE DECISION OF THE COURT…
Article 5 § 3 (right to liberty and security: right to be brought promptly before a judge)
Mr Yosifov had been detained for four days without being brought before a judge. The Government
claimed that he had been detained in connection with two parallel, but separate, investigations: first
on 30 June 2010 on suspicion of abuse of power, and then on 1 July, for 72 hours, on suspicion of
accepting bribes.
The Court considered that, even though the two measures had formally been ordered in the context
of two separate sets of proceedings, there had in fact been a single period of detention.
Furthermore, the measures in question had been aimed at keeping Mr Yosifov in detention for as
long as possible without bringing him before a judge, for the purposes of the investigation into
suspected corruption.
The Court also noted that Mr Yosifov had been released on 4 July 2010, primarily because the
regional prosecutor had found that there was no risk that he would abscond or commit further
offences. The Government stressed the fact that the investigative measures taken during that period had served to dispel any suspicions as to the existence of such a risk, and that the public prosecutor had ordered the applicant’s release for that reason. They referred to the evidence of a number of witnesses, including two individuals who had worked closely with the applicant in the Sadovo
municipal authority.
However, the Court observed that on 5 July 2010, the day after Mr Yosifov’s release, the members of
his team at the municipality had not yet given evidence. Furthermore, the other investigative
measures carried out during the applicant’s detention by the bodies responsible for the investigation
had occurred in the 26 hours following his arrest. Hence, the information on which the public
prosecutor’s office based its decision to release Mr Yosifov had already been in its possession on
1 July 2010.
The Court acknowledged that the investigative bodies may have needed some time to study the
evidence gathered during the hours immediately following the applicant’s arrest. However, it noted
that the Government had not cited any circumstance capable of justifying the fact that Mr Yosifov
had not been released until three days later. Consequently, Mr Yosifov had not been released
“promptly” as required by Article 5 § 3 of the Convention. There had therefore been a violation of
that provision.
Article 5 § 4 (right to a speedy review of the lawfulness of detention)
The Court noted that none of the provisions of the Bulgarian Code of Criminal Procedure (CCP)
expressly provided for a remedy that would have enabled Mr Yosifov to obtain a review of the
lawfulness and necessity of his detention. It further noted that on various occasions the domestic
courts had agreed to review the lawfulness and necessity of periods of detention ordered by the
public prosecutor, by applying Article 5 § 4 of the Convention directly. However, the decisions cited
by the Government had all been delivered after 2015, and they acknowledged that at the time of the
events in the present case the domestic case-law on this issue had been contradictory. Moreover, it
was clear from the Court of Appeal ruling that a line of case-law existed which precluded any
possibility for the courts to review such detentions. Consequently, the Court considered that at the
relevant time no sufficiently established remedy had existed enabling Mr Yosifov to challenge the
lawfulness and necessity of his detention before the domestic courts. There had therefore been a
violation of Article 5 § 4 of the Convention.
Article 8 (right to respect for private life)
The Court noted that the search of Mr Yosifov’s office had been carried out without prior
authorisation by a judge. The Code of Criminal Procedure permitted such searches only in urgent
cases or where there was a risk of evidence being tampered with, and made them subject to
subsequent approval by a judge.
In the present case the judge who approved the measure had merely stated that the situation was
urgent, without advancing any specific argument in support of that assertion. This did not amount to
effective review of the lawfulness and necessity of the measure in question.
In the Court’s view, an effective review of the lawfulness and necessity of this investigative measure
had been particularly important, given the fact that Mr Yosifov had at no point prior to the search
been informed of the specific types of items linked to the criminal investigation which the
investigators expected to find and seize in his office, and the fact that the criminal investigation had
begun several months earlier, raising the question whether the investigative bodies could not have
sought a judicial warrant before conducting the search. Accordingly, Mr Yosifov had been deprived
of the protection from arbitrariness to which he was entitled under the rule of law in a democratic
society. The interference with the exercise of his right to respect for his private life had therefore not
been “in accordance with the law” within the meaning of Article 8 of the Convention and there had
thus been a violation of that provision.
Just satisfaction (Article 41)
The Court held that Bulgaria was to pay Mr Yosifov 9,750 euros (EUR) in respect of non-pecuniary
damage and EUR 2,405 in respect of costs and expenses.
