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FIFTH
SECTION
CASE OF TITOVI v. BULGARIA
(Application
no. 3475/03)
JUDGMENT
STRASBOURG
25 June
2009
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 Titovi v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3475/03) 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 two Bulgarian nationals, Mrs Venka Titova and
Mr Petko Titov (“the applicants”), on 16 January
2003.
- The
applicants were represented by Mr M. Ekimdjiev and Mrs S. Stefanova,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs S. Atanasova
of the Ministry of Justice.
- On
20 September 2007 the President of the Fifth Section decided to give
notice to the Government of the complaints regarding the conditions
and the length of the second applicant's detention. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3).
- The
parties exchanged observations on the admissibility and merits of the
case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1968 and 1964 respectively and live in
Plovdiv. The first applicant is the wife of the second applicant.
1. Criminal proceedings against, and detention of, the
second applicant
- On
9 October 2002 the police seized from the applicants' home tax labels
and bank notes worth approximately 10,000 euros (EUR). An expert
opinion established that the labels and the bank notes were
counterfeit.
- Subsequently,
devices for the production of false identity papers were also found
in the applicants' flat.
- On
9 October 2002 the second applicant was arrested and taken into
police custody. On 11 October a prosecutor ordered his 72-hour
detention with a view to bringing him before a court.
- On
11 October 2002 the second applicant was charged on two counts:
firstly that he had, in complicity with others, counterfeited state
securities, and secondly that he had had counterfeit securities and
counterfeit bank notes in his possession.
- On
14 October 2002 the second applicant was brought before the Plovdiv
District Court, which remanded him in custody, finding that there was
a reasonable suspicion that he had committed criminal offences and a
risk of him re-offending. Upon appeal, on 22 October 2002 the Plovdiv
Regional Court upheld the District Court's decision.
- During
his detention, the second applicant, who did not have a criminal
record, lodged four requests for release. The first two were
dismissed in court decisions of 21 January and 29 April 2003. The
courts found that the reasonable suspicion that he had committed the
offences in question persisted and that the charges were factually
and legally complex. Furthermore, they found that there was a risk of
him reoffending or absconding because he had apparently been part of
an organised criminal group and also since he had been found in
possession of a large quantity of counterfeit bank notes and of
materials for the production of false identity papers.
- The
courts dismissed the second applicant's arguments that he needed to
support his family financially and that the first applicant was
seriously ill, pointing out that he had not adduced evidence about
his family's financial situation and that the Code of Criminal
Procedure provided for public care for the children of detained
persons, and also that the first applicant had received adequate
treatment and her illness did not warrant his release. The courts
also found that the length of the second applicant's detention was
not unreasonable because domestic law provided for a one-year limit
on the duration of pre-trial detention in cases like his, which had
not been exceeded.
- In
May 2003 the prosecution dropped the charge against the second
applicant of having counterfeited state securities acting in
complicity with others. The proceedings continued only with respect
to the charge of possession of counterfeit items, an offence carrying
a potential sentence of up to eight years' imprisonment.
- The
second applicant's third and fourth requests for release were
dismissed on 29 July and 10 October 2003.
- The
courts affirmed that there was still a reasonable suspicion that he
had committed the offence he had been charged with. They acknowledged
that there was no risk of him absconding but found that he might
reoffend as he was charged with a “serious” offence and
had apparently been part of an organised criminal group. The courts
found again that the length of his detention was not unreasonable
because the one-year time-limit provided for in domestic law had not
been exceeded.
- On
14 October 2003 the second applicant was released on bail by order of
the prosecution.
- The
investigation against him continued until February 2004 when he and
four alleged accomplices were indicted. The course of the proceedings
after that is unknown. During the investigation the prosecution
authorities questioned numerous witnesses, commissioned expert
opinions and collected evidence.
2. Conditions of the second applicant's detention and
correspondence between the two applicants
- Between
9 October 2002 and 14 October 2003 the second applicant was kept in a
cell at the Regional Investigation Service in Plovdiv where the
living conditions were poor and the food provided was allegedly
inadequate.
- The
two applicants corresponded actively following the second applicant's
arrest. The second applicant corresponded also with his children, his
mother and a close friend of his.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in respect of State liability for
damage arising out of inadequate conditions of detention have been
summarised in the Court's decision in the case of Hristov v.
Bulgaria (dec.), no. 36794/03, 18 March 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
second applicant complained under Article 5 § 3 of the
Convention that his pre-trial detention had been unreasonably
lengthy. Article 5 § 3, in so far as relevant, reads:
“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 this complaint.
A. Admissibility
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the period of detention to be taken into
consideration started with the second applicant's arrest on 9 October
2002 and ended with his release on 14 October 2003. It thus lasted
one year and five days.
- The
Court recalls that the persistence of a reasonable suspicion that the
person deprived of his liberty under Article 5 § 1(c) of the
Convention has committed an offence is a condition sine qua non
for the lawfulness of the continued deprivation of liberty, but after
a certain lapse of time it no longer suffices. In such cases, the
Court must establish whether the judicial authorities gave other
“relevant” and “sufficient” grounds to
justify the deprivation of liberty (see Labita v. Italy [GC],
no. 26772/95, §§ 152-53, ECHR 2000-IV).
- It
is not disputed between the parties that a reasonable suspicion that
the second applicant had committed an offence persisted throughout
his detention. The Court must therefore establish whether the
domestic courts gave other “relevant” and “sufficient”
grounds to justify his continued deprivation of liberty.
- The
Court considers that during the first months of the second
applicant's detention the authorities' finding that there existed a
risk of him reoffending was based on relevant evidence and did not
appear arbitrary or unreasonable. In particular, the second applicant
had been charged with participation in an organised criminal group
for the production of counterfeit items and had been found in
possession of counterfeit bank notes and devices for the production
of false identity documents (see paragraphs 6-12 above).
- The
Court notes, however, that the domestic courts refused to reassess
the situation after May 2003, when the above charge was dropped, and
merely repeated the statement that the second applicant's alleged
participation in a criminal group indicated that he might reoffend.
In the Court's view, this reasoning was deficient in that the
domestic courts failed to explain why their assessment had not been
affected by the fact that the charge concerning participation in a
criminal group had been dropped. The Court also notes that although
the remaining offence the second applicant stood accused of –
possession of counterfeit items – was classified as “serious”
under domestic law, it is significant that it was a non-violent
offence and the second applicant did not have a criminal record (see
paragraphs 11 and 13-15 above).
- Furthermore,
it is apparent from the reasons given by the domestic courts and, in
particular, their refusal to release the applicant on 10 October
2003, just four days before the expiry of the applicable one-year
statutory maximum period of pre-trial detention, that the authorities
considered his detention as automatically justified until the expiry
of that period (see paragraphs 14-16 above). For the Court this
approach is unacceptable. It has held that justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria, no.
38822/97, § 66, ECHR 2003 I (extracts)). Moreover, under
Article 5 § 3 of the Convention it is for the national
authorities to ensure that, in a given case, the pre-trial detention
of an accused person is justified on the basis of relevant and
sufficient reasons and does not exceed a reasonable period (see
Labita v. Italy, cited above, § 152).
- Therefore,
the Court finds that after May 2003 the authorities failed to provide
“relevant” and “sufficient” grounds to
justify the second applicant's continued detention.
- In
view of this, the Court concludes that there has been a violation of
the second applicant's right under Article 5 § 3 of the
Convention to a trial within a reasonable time or release pending
trial.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
second applicant also complained under Article 3 of the Convention
about the living conditions in the cell of the Regional Investigation
Service in Plovdiv. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government argued that the second applicant had failed to exhaust
domestic remedies as he had not sought damages under the State
Responsibility for Damage Act. The applicant expressed doubts as to
the effectiveness of this remedy.
- The
Court accepts the Government's argument. It recalls that in its
recent decision in the case of Hristov v. Bulgaria, cited
above, it found that in respect of conditions of detention an action
under the State Responsibility for Damage Act represented, in
principle, a remedy which needed to be exhausted. The second
applicant has not brought such an action and the Court is not
convinced that his doubts concerning the effectiveness of this
existing remedy dispense him from the need to employ it.
- It
follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic remedies.
III. THE REMAINDER OF THE APPLICANTS' COMPLAINTS
- The
second applicant also complained under Articles 5 §§ 1 and
3 of the Convention that his detention from 9 to 14 October 2003 had
been unlawful and that in examining his requests for release the
domestic courts had failed to carry out a full judicial review. The
two applicants complained under Article 8 of the Convention that
their letters could potentially have been opened and read by the
administration of the Regional Investigation Office in Plovdiv and
under Article 13 that they did not have an effective remedy in that
respect.
- The
Court has examined these complaints. However, in the light of all the
material in its possession, and in so far as the matters complained
of were within its competence, it finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
IV. 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
39. The second applicant did not
make a claim for pecuniary damage. In respect of non-pecuniary damage
arising out of his lengthy deprivation of liberty, he claimed EUR
6,000.
- The Government considered the
claim excessive.
- The
Court considers that the second applicant must have sustained
non-pecuniary damage as a result of the breach of his right under
Article 5 § 3 of the Convention to a trial within a
reasonable time or release pending trial. Taking into account all
circumstances of the case, the Court awards him EUR 1,500.
B. Costs and expenses
- The
second applicant claimed EUR 3,220 for forty-six hours of legal work
by his lawyers, at the hourly rate of EUR 70. In support of this
claim he submitted a time-sheet. He also claimed EUR 174 for postage
and translation. He requested that any sums
awarded for costs and expenses be transferred directly into the
accounts of his lawyers, Mr M. Ekimdjiev and Mrs S. Stefanova.
- The
Government considered that the claims were excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, including the fact that most of
the applicants' complaints were rejected, and also noting that the
applicants did not provide any invoices in respect of the expenses
for translation, the Court finds it reasonable to award EUR 800
covering costs under all heads, to be transferred directly into the
bank accounts of the applicants' lawyers,
Mr M. Ekimdjiev and Mrs S. Stefanova.
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
- Declares
the second applicant's complaint about the length and justification
of his pre-trial detention admissible and the remaining complaints of
the first and second applicants inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention on account of the length of, and lack of
sufficient justification for, the second applicant's pre-trial
detention;
- Holds
(a) that
the respondent State is to pay the second applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into Bulgarian levs at the rate
applicable at the date of settlement:
(i)
EUR 1,500 (one thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 800 (eight hundred euros), plus any tax that may be chargeable to
the second applicant, in respect of costs and expenses, to be paid
directly into the accounts of the applicants' legal representatives;
(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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 25 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
