FOURTH SECTION
CASE OF ZHELYAZKOV
v. BULGARIA
(Application no.
11332/04)
JUDGMENT
STRASBOURG
9 October 2012
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 Zhelyazkov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki,
President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
11332/04) 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 Peycho Atanasov
Zhelyazkov (“the applicant”), on 27 February 2004.
The applicant was represented by Mr M. Ekimdzhiev,
Ms K. Boncheva and Ms S. Stefanova, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N.
Nikolova, of the Ministry of Justice.
The applicant alleged, in particular, that he
could not appeal his conviction of a minor public order offence, in breach of
Article 2 of Protocol No. 7.
On 12 May 2009 the Court (Fifth Section) declared
the application partly inadmissible and decided to give the Government notice
of the complaints concerning the applicant’s alleged compulsory labour and the
impossibility of appealing his conviction. It also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1 of
the Convention).
Following the re-composition of the Court’s
sections on 1 February 2011, the application was transferred to the Fourth
Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
At about 3 p.m. on 30 December
2003 the applicant and his father went to the District Prosecutor’s Office in
Tsarevo to obtain a copy of a document. The clerk refused to give it to them. A
quarrel ensued. A prosecutor came in and ordered the applicant to leave the
premises. A brawl ensued. The police, who had been called in, drew up a procès-verbal
saying that, by insulting the prosecutor and trying to hit him, the applicant
had committed an offence under the 1963 Decree on Combating Minor Hooliganism (“the
1963 Decree” - see paragraphs 10-11 below). The applicant refused to sign
the procès-verbal, saying that he would present his objections before a
court.
About half an hour later the
police made an order for the applicant’s detention under section 70(1)(8) of
the Ministry of Internal Affairs Act 1997, then in force. The order said that
the applicant was being detained for committing an offence under the 1963
Decree.
At 10 a.m.
on 31 December 2003 the applicant was brought before the Tsarevo District Court.
He was assisted by two counsel. The court heard the applicant, two witnesses,
and the applicant’s counsel. In a decision of the same day it found the
applicant guilty of an offence under Article 1 § 2 of the Decree for insulting and
trying to hit the prosecutor, and sentenced him to fifteen days’ detention in
the premises of the Ministry of Internal Affairs. The court went on to order,
by reference to Article 8 § 2 of the Decree (see paragraph 12 below), that during his detention the applicant was to carry out socially useful
work adapted to his health, age and professional skills; he was to take part in
public works on the territory of the Tsarevo Municipality. The decision was
final and immediately enforceable.
The applicant was
released at 11 a.m. on 14 January 2004. It is unclear what work exactly was carried
out by him during his detention.
II. RELEVANT DOMESTIC LAW
A. Minor Hooliganism
Decree No. 904 of 28
December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium
of the National Assembly under a simplified legislative procedure, as possible under
Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It
was published in the State Gazette on 31 December 1963, as required under section
37(1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same
force as an Act of Parliament (опр. №
9959 от 7 ноември
2003 г. по адм. д. № 9327/2003
г., ВАС, I о.; опр. №
10286 от 10
декември 2004 г.
по адм. д. № 9761/2004 г.,
ВАС,
петчленен с-в;
опр. № 14673 от 3
декември 2009 г.
по адм. д. № 15200/2009 г.,
ВАС, I о.; опр.
№ 12764 от 1 ноември
2010 г. по адм. д. № 13284/2010
г., ВАС, I о.).
Article 1 § 2 of
the Decree defines minor hooliganism as an indecent act consisting of uttering
swearwords, insults or other offensive words in a public place and in front of
many people, in an offensive attitude towards other citizens or public
officials, or in a quarrel, fight or suchlike that breach the peace but due to
their lower degree of dangerousness do not amount to the criminal offence of hooliganism.
Such acts, if perpetrated by persons older than sixteen, carry a penalty of up
to fifteen days’ detention in the premises of the Ministry of Internal Affairs
or a fine (Article 1 § 1).
Under Article 8 §
2 of the Decree, the penalty of detention in the premises of the Ministry of
Internal Affairs must be accompanied by work determined in accordance with the
detainee’s health, age and abilities. That work is not remunerated.
Cases under the
Decree fall under the jurisdiction of the district courts (Articles 3 and 4).
Until May 2011 Article 7 provided that the court’s decision was not subject to
appeal. On 4 May 2011 (реш. № 3 от
4 май 2011 г. по к. д. №
19 от 2010 г., обн., ДВ,
бр. 38 от 17 май 2011 г.) the Constitutional Court
declared that rule unconstitutional. As a result, in November 2011 Article 7
was amended and now provides, in paragraph 2, that the district court’s
decision to impose an administrative penalty may be appealed on points of law
before the regional court within twenty-four hours. The case must be listed for
hearing before the regional court not more than three days after the district
court’s decision (paragraph 1, as amended), and the regional court must rule,
by means of a final decision, on the day it receives the appeal (paragraph 3,
as amended). In the explanatory notes to the amendment bill the Government
referred to, inter alia, the need to bring the Decree into line with the
Convention and this Court’s case-law.
B. Remuneration of the work carried out by persons in
custody convicted of criminal offences
Under section 25 of the Execution of Punishments
Act 1969, persons serving a custodial sentence following their conviction of a
criminal offence were entitled to receive at least thirty per cent of the
remuneration due for their work.
Section 78(1) of the Execution of Punishments
and Pre-Trial Detention Act 2009, which superseded the 1969 Act in June
2009, provides that persons serving a custodial sentence following their conviction
of a criminal offence are entitled to receive at least thirty per cent of the
remuneration due for all work carried out by them except voluntary unpaid work
and regular shifts to maintain order and hygiene.
III. RELEVANT COUNCIL OF EUROPE MATERIALS
The European Prison
Rules are recommendations of the Committee of Ministers to member States of the
Council of Europe as to the minimum standards to be applied in prisons. States
are encouraged to be guided by those rules in legislation and policies.
The 1987 European
Prison Rules (Recommendation No. R (87) 3 - “the 1987 Rules”) were adopted on
12 February 1987.
Rule 76.1
provides that “[t]here shall be a system of equitable remuneration of the work
of prisoners”.
The commentary in the Explanatory memorandum to the Rules says:
“This rule recognises the importance and value of an adequate
and equitable payment system in the context of treatment regimes. No provision
to encourage the development of wages systems towards levels that apply for
similar work in the community has been made in the rule itself as that would
have been premature at this stage. However, a great deal of progress has been
made in that respect in a number of countries and that is to be encouraged. ...”
On 11 January 2006
the Committee of Ministers adopted a new version of the European Prison Rules,
Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules
“needed to be substantively revised and updated in order to reflect the
developments which ha[d] occurred in penal policy, sentencing practice and the
overall management of prisons in Europe”.
Rule 26.10
provides that “[i]n all instances there shall be equitable remuneration of the
work of prisoners”.
The commentary on the 2006 Rules (drawn up by the European Committee on Crime
Problems) says that the level of remuneration of prisoners should be guided by the
principle of mirroring conditions for workers on the outside, and that ideally
all prisoners should be paid wages that are related to those in society as a
whole.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE
CONVENTION
The applicant complained that he had been
required to perform compulsory labour without this falling within one of the
exceptions laid down in Article 4 § 3 of the Convention. He therefore
considered that he had been a victim of a breach of Article 4 § 2 of the
Convention.
Article 4 §§ 2 and 3 of the Convention provide,
in so far as relevant:
“2. No one shall be required to perform forced or
compulsory labour.
3. For the purpose of this article the term ‘forced
or compulsory labour’ shall not include:
(a) any work required to be done in the ordinary
course of detention imposed according to the provisions of Article 5 of [the]
Convention...”
The Government submitted that the applicant had
been required to work after having been convicted and sentenced by an independent
and impartial court, in proceedings in which he had had the assistance of
counsel. The work fell within the exception envisaged by Article 2 § 2 (c) of the
International Labour Organisation’s Convention concerning Forced or Compulsory
Labour (No. 29), and could not therefore be regarded as forced or compulsory
labour. Moreover, it had not been inconsistent with the applicant’s health, age
or skills, too onerous, or lasting an inordinate amount of time. The work had also
been for the benefit of society.
The applicant submitted that the work that he
had been required to carry out had been compulsory labour because it had been
ordered by a court as part of his penalty, because he had been in detention and
would have incurred sanctions if he had refused to work, and because the work had
not been remunerated. That labour did not fall within the exception laid down
in Article 4 § 3 (a) because the applicant’s detention had been in breach of
Article 5 §§ 1, 2, 4 and 5 of the Convention. The detention had been based on a
Decree, not an Act of Parliament, in breach of the Article 5 § 1 requirement
that it be “in accordance with the law”. The applicant had not been duly
informed of the reasons for his detention, in breach of Article 5 § 2. He
had not been able to appeal against the judicial decision ordering his
detention, in breach of Article 5 § 4, and had not been able to seek
compensation for his detention, in breach of Article 5 § 5.
The Court recently set out the general
principles governing the interpretation of Article 4 §§ 2 and 3 of the
Convention in paragraphs 116-23 of its judgment in Stummer v.
Austria ([GC], no. 37452/02, ECHR 2011-..., with further
references). They are equally applicable to the present case.
In the present case, the obligation for the
applicant to work while in detention stemmed from the express terms of Article
8 § 2 of the 1963 Decree and the judicial decision against the applicant (see
paragraphs 8 and 12 above). The work was to be carried out while the applicant was
in custody and under the full control of the authorities. It can therefore be
regarded as work for which the applicant had not offered himself voluntarily and
which was exacted from him under the threat of imposition of a penalty, and
therefore forced or compulsory labour within the meaning of Article 4 § 2
of the Convention.
Although the above point does not appear to be
in dispute between the parties, they differ in their views as to whether that work
was covered by the terms of Article 4 § 3 (a), which excludes “work required to
be done in the ordinary course of detention imposed according to the provisions
of Article 5 of the Convention” from the definition of “forced or compulsory
labour”.
Concerning the applicant’s assertion that his
work did not fall within that exception because his detention had been in breach
of Article 5 §§ 1, 2, 4 and 5 of the Convention, the Court observes that
in his initial application the applicant raised complaints under all of those
provisions; they were all rejected as manifestly ill-founded in the
partial decision in the present case (see Zhelyazkov v. Bulgaria (dec.),
no. 11332/04, 12 May 2009). The Court sees not reason to depart from its findings
in that decision.
In particular, the fact that the applicant’s detention
was ordered by the Tsarevo District Court by reference to a Decree rather than an
Act of Parliament does not make it unlawful within the meaning of Article 5 § 1
of the Convention. Under Bulgarian law, decrees adopted by the Presidium of the
National Assembly under Article 35 § 5 and Article 36 of the 1947 Constitution are
valid sources of law which have the same force as Acts of Parliament. This has
been confirmed many times by the Supreme Administrative Court (see paragraph 10 above) and is implicit in the fact that the Constitutional Court accepted to hear
a legal challenge to the 1963 Decree much as it would accept to hear a
challenge to an Act of Parliament (see paragraph 13 above). The term “law” in
Article 5 § 1 of the Convention must be understood in its substantive sense,
not its formal one. The Court has accepted that detention may be based on a
sufficiently established custom (see Drozd and Janousek v. France and Spain, 26 June 1992, § 107, Series A no. 240) or on case-law (see Steel and
Others v. the United Kingdom, 23 September 1998, § 55, Reports of
Judgments and Decisions 1998-VII). It has adopted the same stance to
the term “law” as used in Articles 8 and 10 of the Convention (see Kruslin
v. France, 24 April 1990, § 29, Series A no. 176-A, and The Sunday
Times v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A no.
30). It follows that the applicant’s detention was provided by Bulgarian law
and was imposed in accordance with a procedure prescribed by law (see, mutatis
mutandis, Galstyan v. Armenia, no. 26986/03, §§ 46-49, 15
November 2007). There is no indication that it was otherwise incompatible with
Article 5 § 1.
Nor was the applicant’s detention in breach of
Article 5 § 2. He was informed of the reasons for his detention and must surely
have become aware of them following the examination of his case by the Tsarevo
District Court (see paragraphs 6-8 above).
As for Article 5 § 4, the Court notes that failure
to observe that provision does not automatically mean that there has been
failure to observe Article 4 (see De Wilde, Ooms and Versyp v. Belgium,
18 November 1970, § 89, Series A no. 12, and Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50). In any event, there is no
appearance of a breach of Article 5 § 4, since judicial control of the detention
during which the applicant was required to work was incorporated in the Tsarevo
District Court’s decision (see De Wilde, Ooms and Versyp, cited above, §
76).
The same goes for Article 5 § 5. First, there is
no basis in the Court’s case-law to hold that a breach of that provision automatically
causes work required of a detainee to fall outside the scope of Article 4 § 3
(a). Secondly, there is no appearance of a breach of Article 5 § 5 because it applies
only if the Court or a domestic authority has found a breach of one of the
preceding paragraphs of Article 5, which is not the case.
It follows that, contrary to the applicant’s
assertion, the work that he was required to perform was done in the course of
detention imposed according to the provisions of Article 5. It remains to be
established whether it was otherwise compatible with the requirements of
Article 4.
It has not been argued by the applicant, and there
is no evidence, that the work that he was required to carry out was too onerous
or went beyond what is ordinary. The fact that that work was not remunerated did
not in itself cause it to fall outside that definition. In its decision in Twenty-one
Detained Persons v. Germany (nos. 3134/67, 3172/67, 3188-3206/67, Commission
decision of 6 April 1968, Collection 27, pp. 97-116), the former
Commission declared a complaint in that respect inadmissible, noting, inter
alia, that Article 4 does not contain any provision concerning the
remuneration of prisoners for their work, and observing that it had
consistently rejected applications by prisoners claiming higher remuneration for
their work. The Court is mindful that there have been subsequent developments
in attitudes to that issue, reflected in particular in the 1987 and 2006
European Prison Rules, which call for the equitable remuneration of the work of
prisoners - with the 2006 Rules adding “in all instances” - (see paragraphs 18 and 21 above). Those Rules, and the modification in their wording, reflect an evolving
trend. However, the Court does not consider that as matters stood at the time
when the applicant was ordered to carry out the work at issue in the present
case - approximately two years before the adoption of the 2006 Rules - it could
be maintained that there existed an unconditional obligation under Article 4 of
the Convention to remunerate the work of all detainees in all circumstances (see,
mutatis mutandis, Stummer, cited above, § 132). The Court
additionally notes that the applicant’s detention was effected under special rules
designed to deal in a speedy way with minor public order offences, and that the
period during which the applicant was detained and required to work without
remuneration could not by law exceed, and did not in fact exceed, fifteen days
(see paragraphs 9 and 12 above). This can hardly be compared to the situation
of inmates who have worked many years in prison (see Stummer, cited
above, § 130 in limine).
The Court concludes that the obligatory work
performed by the applicant during his fifteen days’ detention was covered by
the terms of Article 4 § 3 (a) of the Convention, and did not constitute forced
or compulsory labour within the meaning of Article 4 § 2.
It follows that this complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL
No. 7
The applicant complained that he had been unable
to appeal his conviction. He relied on Article 7 of Protocol No. 1, which
provides as follows:
“1. Everyone convicted of a criminal offence by a
tribunal shall have the right to have his conviction or sentence reviewed by a
higher tribunal. The exercise of this right, including the grounds on which it
may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard
to offences of a minor character, as prescribed by law, or in cases in which
the person concerned was tried in the first instance by the highest tribunal or
was convicted following an appeal against acquittal.”
The Government submitted that the offence of
which the applicant had been convicted was of a minor character, because it was
an administrative and not a criminal one. The Decree which defined the offence had
been designed to attain speed and efficiency in tackling antisocial behaviour.
The applicant submitted that although the
offence of which he had been convicted was administrative under Bulgarian law,
it was criminal within the meaning of Article 2 of Protocol No. 7 in view of
its being identical - save for the degree of dangerousness - with the criminal
offence of hooliganism, and of the penalty of imprisonment that it carried.
Under Bulgarian law as it stood at the time he could not appeal his conviction,
whereas his case did not fall under any of the exceptions under paragraph 2 of the
Article. In particular, the offence was not of a minor character because it was
almost identical to the criminal offence of hooliganism and carried a penalty
of imprisonment.
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be declared
admissible.
In Kambourov v. Bulgaria (no. 2) (no.
31001/02, §§ 22-27, 23 April 2009) and Stanchev v. Bulgaria (no.
8682/02, §§ 44-49, 1 October 2009), the Court held that Article 2
of Protocol No. 7 applied to convictions under the 1963 Decree and that
offences under the Decree were not of a minor character within the
meaning of paragraph 2 of that Article. The Court went on to find that under
Bulgarian law, as it stood at the material time, there was no possibility to
challenge a conviction under the Decree, and concluded that there had been a
breach of Article 2 of Protocol No. 7.
The Court sees no reason to hold otherwise in
the present case, and finds that there has been a breach of that provision.
It should be noted in this connection that in May
2011 the Constitutional Court declared Article 7 of the 1963 Decree
unconstitutional, and that in November 2011 that provision was amended with a
view to rendering it compliant with the Convention and the Court’s case-law
(see paragraph 13 above).
III. 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 20,000 euros (EUR) in
respect of the non-pecuniary damage flowing from the alleged breach of
Article 4 § 2 of the Convention, and EUR 10,000 in respect of the non-pecuniary
damage flowing from the alleged breach of Article 2 of Protocol No. 7. He
submitted that the penalty of fifteen days’ detention, which he had been unable
to challenge, had caused him considerable frustration and had instilled in him
a sense of powerlessness and injustice. The intensity of those feelings called
for an award of considerable compensation.
The Government submitted that a finding of a
violation would amount to sufficient just satisfaction, in particular because
after the Court’s judgments in Kambourov (no. 2) and Stanchev
(both cited above) the Bulgarian courts had started allowing appeals against
convictions under the 1963 Decree. In their view, the applicant’s claims were
exorbitant.
The Court observes that in the present case an
award of just satisfaction can be based only on the breach of Article 2 of Protocol
No. 7. That said, it considers that the applicant must have sustained some non-pecuniary
damage which cannot be made good solely by the finding of a violation (see Zaicevs
v. Latvia, no. 65022/01, § 61, 31 July 2007). The fact that following the
Court’s judgments in Kambourov (no. 2) and Stanchev (both cited
above) it became possible to appeal against decisions under the 1963 Decree did
not alter the situation of the applicant. Ruling in equity, as required under
Article 41 of the Convention, the Court awards him EUR 1,000 under this head.
To this amount is to be added any tax that may be chargeable.
B. Costs and expenses
The applicant sought reimbursement of EUR 3,430 incurred
in fees for forty-nine hours of work by his lawyers on the proceedings
before the Court, at EUR 70 per hour. He submitted a fee agreement, a time-sheet
and a declaration that he agreed that any costs and expenses awarded by the
Court be paid directly to his lawyers. He also sought reimbursement of
EUR 40 spent by his lawyers on postage and EUR 30 spent by them on office
supplies.
The Government contested the number of hours
spent by the applicant’s lawyers on the case. They suggested that in assessing
the quantum of the award the Court should have regard to the usual fees paid to
counsel for their appearance before the national courts. Lastly, they pointed
out that the claim for other expenses was not supported by documents.
The Court observes that when considering a claim in respect of costs and expenses for the
proceedings before it, it is not bound by domestic scales or standards (see,
as a recent authority, Mileva and Others v. Bulgaria, nos. 43449/02
and 21475/04, § 125, 25 November 2010).
According to its case-law, costs and expenses claimed under Article 41 of
the Convention must have been actually and necessarily incurred and reasonable
as to quantum.
Having regard to the materials in its possession,
the above considerations, and the facts that the bulk of the application was
declared inadmissible and that the issues relating to the complaint under
Article 2 of Protocol No. 7 have already been resolved in two almost identical cases,
the Court finds it reasonable to award the applicant EUR 800, plus any tax that
may be chargeable to him, in respect of his legal costs. This sum is to be paid
directly to the applicant’s legal representatives.
Concerning the claim for other expenses, the
Court observes that the applicant has not submitted any supporting documents.
In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of
its Rules, the Court makes no award in respect of those expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the applicant’s
impossibility to appeal his conviction admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 2 of Protocol No. 7;
3. Holds
(a) that the respondent State is to pay the 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 the currency of the respondent State
at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand 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 applicant, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
