Prohibition of request for release from prison for two months violated the right to personal liberty and security

JUDGMENT

Dimo Dimov and others v. Bulgaria  07.07.2020 ( no. 30044/10)

see here  

SUMMARY

Legality of pre-trial detention, reason for the decision and right of actual appeal.

The applicants were arrested and remanded in custody on charges of extortion.

They made many requests for release which were rejected without justification and were released only when the maximum time limit of temporary detention was exhausted.

The ECtHR held for the fourth applicant that two decisions taken by the Court of Appeal did not justify the legality and necessity of the continued detention on remand. The absence of a statement of reasons has led to a reduction in the scope of the courts’ oversight of the lawfulness and effectiveness of pre-trial detention. Violation of Article 5§4 for lack of reasoning,

Accordingly, the ECtHR found that the 4th applicant’s request for release had been examined after several days and that the domestic courts had imposed temporary detention for the maximum period provided for by national law, without justifying the need for such a measure. The ECtHR held that the prosecuting authorities were responsible for the speedy adjudication of such requests and that the ban on the 4th applicant for new requests for release was unfounded.

Violation of article 5§4 due to delay in the trial of the request, and prohibition of filing a new appeal for release from prison.

Finally, the ECtHR found that domestic law did not provide for legal aid for damages against the State in the event of a violation under Article 5§4 of the Convention. He therefore considered that there had been a violation of Article 5§5 of the ECHR.

The Court awarded € 5,000 for non-pecuniary damage.

PROVISION

Article 5§4,

Article 5§5

PRINCIPAL FACTS

The applicants, Mr Dimo Mitev Dimov, Mr Kostadin Donchev Donchev, Mr Nacho Ivanov Yanakiev
and Mr Rumen Bonchev Boyukliev, are four Bulgarian nationals who were born in 1976, 1981, 1979
and 1969 respectively and live in Stara Zagora. At the relevant time the first three applicants were
police officers based at the Stara Zagora police station. The fourth applicant is a businessman in the
same city. The case concerned the applicants’ placement in pre-trial detention and the national
courts’ review of the lawfulness of that detention.

On 9 November 2009 the four applicants were placed under investigation for conspiracy, three
charges of extortion and one charge of interfering with evidence in criminal proceedings. In
particular, they were accused of having persuaded, using threat, several owners of nightclubs in
Stara Zagora to enter into a contract with a security company based in the same city.

On 16 November 2009 the Stara Zagora Regional Court decided to place all of the applicants in pretrial
detention. The Plovdiv Court of Appeal upheld the regional court’s decision.
In January 2010 the four applicants submitted requests for release through the Sofia City
Prosecutor’s Office.

On 1 February 2010 the Stara Zagora Regional Court dismissed the four applicants’ request.

On 9 February 2010 the Plovdiv Court of Appeal dismissed an appeal by the applicants against the
decision of 1 February 2010. The four applicants submitted further requests for release.

By a decision of 12 April 2010, the Stara Zagora Regional Court dismissed the applicants’ requests. It
considered that the evidence in the case file provided sufficient grounds for reasonable suspicions
against the four applicants.

On 20 April 2010 the Plovdiv Court of Appeal examined and dismissed an appeal lodged by the
applicants against the decision of 12 April 2010.

On 20 July 2010 the Plovdiv Regional Court dismissed the applicants’ new requests for release. The
Plovdiv Court of Appeal dismissed an appeal by the applicants against the Plovdiv Regional Court’s
decision.

On 16 November 2010 the third applicant was released by a court decision of 15 November 2010.
On 17 November 2010 the first, second and fourth applicants were also released following an order
by the prosecutor, on the grounds that the maximum pre-trial detention period allowed by law had
expired.

The case was subsequently examined by the courts. Following several adjournments during which
the case was sent back to the prosecutor’s office for further investigation, on 8 August 2014 the
specialised criminal court terminated the criminal proceedings against the applicants.

Relying in particular on Article 5 § 4 (right to a speedy decision on the lawfulness of detention) of the
European Convention on Human Rights, they submitted that there had been no effective review by
the national courts of the lawfulness and necessity of their detention and that their requests for
release had not been examined promptly. Relying on Article 5 § 5 (right to liberty and security) of
the Convention, they also complained that they had not been entitled to compensation for the
alleged violations of their rights.

THE DECISION OF THE COURT…

Article 5 § 4

The Court reiterated that, under Article 5 § 4 of the Convention, any person arrested or detained has the right to ask a judge to consider compliance with the procedural and substantive conditions required for “legality” within the meaning of Article 5 § 1 of the Convention, deprivation of his liberty. With regard to the substance of the action provided for in Article 5 (4), the competent court must verify both compliance with the procedural rules of domestic law and the reasonableness of the suspicions which led to the arrest. With regard to the facts of the case, the Court notes that, during the preliminary investigation against the fourth applicant, the legality and necessity of the measure of temporary detention and detention were examined four times by the courts, which have issued 8 decisions on . He also noted that, while most of these decisions contained arguments regarding the existence of reasonable grounds of suspicion against the applicant for the crimes he was accused of, the decisions taken by the Court of Appeal on 20.4 and 27.07.2010 did not address this issue. The existence of such suspicions is a necessary condition for the legality of the ongoing detention. The Court has already pointed out in other similar cases against Bulgaria that the absence of a statement of reasons has the effect of limiting the scope of the courts’ oversight of the lawfulness of detention and its effectiveness under Article 5 § 4. of the contract. He sees no reason to come to a different conclusion in the present case.

Those arguments were sufficient for the Court to conclude that there had been a violation of Article 5 § 4 of the Convention for the fourth applicant on that ground.

The expedited hearing of the applicants’ claims

The Court observed from the outset that the judgments of 1 February and 12 April 2010 were the subject of appeals, the speed of which was examined by the courts and was not disputed by the applicant. It therefore examined only whether the applicant ‘s initial claims had been examined in good time.

On the basis of the documents and information provided by the applicants and the Government, the Court considered that the following facts concerning the requests for release from detention in January and March 2010 had been established.

The request for release of the fourth applicant was examined and rejected together with the requests for release of the other three applicants on 12.04.2010. The fourth applicant ‘s request was therefore examined after 25 days.

The Court reiterated that the question of whether the “short notice” requirement was met must be considered in the light of the circumstances of each case, in particular its complexity, the specifics of the internal procedure and the conduct of the party during it. For example, it considered that periods of 17 or 23 days for a level of jurisdiction were not compatible with Article 5 § 4 of the Convention.

With regard to the request submitted by the fourth applicant on 18.03.2010, the Court noted that the authorities chose to combine his examination with the requests of the other three applicants on the grounds of relevance because they were arrested and charged in the same criminal proceedings. However, the transfer of the fourth applicant’s claim between the Sofia Prosecutor, who received it, and the Stara Zagora District Court, which had jurisdiction to hear it, took 19 days. Even taking into account the distance between the two cities, which is about 230 km, and the need to send the inquiry file to the district court to allow it to effectively consider the applicant ‘s request, the Court considered that the delay was excessive and due to entirely to the criminal prosecution authorities. To this end, he reminded that it is up to the state to implement the most appropriate internal procedures to comply with its obligations under Article 5 para. 4 of the Convention.

There has therefore been a violation of Article 5 § 4 of the Convention in respect of this applicant.

Regarding the prohibition of appeal

Article 5 § 4 of the Convention guarantees the right to review the temporary detention at short intervals.

The court noted that Bulgarian law did not provide for an automatic review of the legality and necessity of detention, at the initiative of detainees. In the present case, when the district court decided to impose that restriction, the fourth applicant had already been detained for 5 months, had previously submitted only one request for release and his new request had not been checked several days before. The Court considered that all this was evidence that showed that the applicant had not abused his right to appeal for release from prison.

It should be noted that the district court chose to impose a ban on a new release request for the maximum period (two months) provided for by national law, without justifying the need for this measure or the selected period of application. In the absence of a statement of reasons, and taking into account the other relevant circumstances of the case, the Court considered that measure to be unfounded.

For these reasons, the Court held that the ban imposed on the fourth applicant on 12 April 2010 for lodging new requests for release from prison for two months amounted to a violation of his right to have his detention remanded article 5 par. 4 of the ECHR.

Article 5§5 of the Convention

The Court reiterated that Article 5 § 5 of the Convention has been complied with, as compensation may be claimed for deprivation of liberty under conditions contrary to paragraphs 1, 2, 3 or 4 of the same article.

The fourth applicant brought an action for civil liability. As part of this process, he received compensation for the damage he suffered due to the excessive duration of his temporary detention. However, this procedure did not lead to the recognition of the violation of his rights under Article 5 § 4 of the Convention or to compensation for this violation, as the courts did not explicitly or implicitly consider compliance with these specific procedural guarantees.

On the other hand, the Court observed that, from 15.12.2012, Article 2, para. 1, point 2 of the law on public liability for compensation allows any interested party to file a claim for damages and to claim a direct violation of Article 5 § 4 of the Convention. It is apparent from the wording of that provision itself that such an action could lead to a finding of a violation of Article 5 § 4 and to a award of pecuniary compensation. As the Court has already pointed out in its decision and in its analysis of the admissibility of the present action, this new action was brought in domestic law two years after the end of the fourth applicant’s detention, but the law does not provide for retroactive application. Therefore, this remedy had no reasonable chance of success in its case.

The Court found that there was no action which could have enabled the fourth applicant to obtain compensation for the violations of Article 5 § 4 of the Convention prior to this judgment.

It has therefore not been established that the fourth applicant could have exercised a right to compensation before the judgment of the Court or that he could have exercised that right after the judgment, in breach of Article 5 § 4 of the Convention.

Violation of Article 5 § 4 – due to lack of effective review by national courts of the legality and necessity of detaining Mr Boyukliev, because one of his requests for release from prison in March 2010 had not been processed in time and because he had not been allowed to submit further applications for release from prison for a period of two months.

Violation of Article 5 § 5 in relation to Mr Boyukliev

Just satisfaction: 5,000 euros (EUR) (non-pecuniary damage) and EUR 1,955.65 (costs and expenses)
to Mr Boyukliev


ECHRCaseLaw

Χρησιμοποιούμε cookies για να σας προσφέρουμε καλύτερη εμπειρία στο διαδίκτυο. Συμφωνώντας, αποδέχεστε τη χρήση των cookies σύμφωνα με την Πολιτική Cookies.

Privacy Settings saved!
Ρυθμίσεις Απορρήτου

Όταν επισκέπτεστε μία ιστοσελίδα, μπορεί να λάβει κάποιες βασικές πληροφορίες από τον browser σας, κατά βάση υπό τη μορφή cookies. Εδώ μπορείτε να ρυθμίσετε τη συγκατάθεσή σας σε όλα αυτά.

These cookies allow us to count visits and traffic sources, so we can measure and improve the performance of our site.

We track anonymized user information to improve our website.
  • _ga
  • _gid
  • _gat

Decline all Services
Accept all Services