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FOURTH
SECTION
CASE OF LOLOVA-KARADZHOVA v. BULGARIA
(Application
no. 17835/07)
JUDGMENT
STRASBOURG
27
March 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 Lolova-Karadzhova
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,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17835/07) 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, Ms Dobrinka Manolova
Lolova-Karadzhova (“the applicant”), on 12 December 2006.
- The
applicant was represented by Mr M. Ekimdzhiev and Ms S. Stefanova,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Kotseva, of
the Ministry of Justice.
- The
applicant alleged, in particular, that her detention from about
10 a.m. on 18 October to 3 p.m. on 19 October 2006 had been in
breach of Article 5 § 1 of the
Convention and that she had not had an enforceable right to
compensation in this respect.
- On
8 September 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29
§ 1). The case was later transferred to the Fourth Section
of the Court, following the reorganisation of the Court’s
sections on 1 February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Sofia.
- In
2004 a real estate agent brought a private prosecution against the
applicant for insult and defamation punishable by a fine and public
reprimand. According to the complaint, in a newspaper announcement
the applicant, describing herself as “the deceived citizen”,
warned the public that the real estate agent would buy their real
estate at very low prices and then would resell it for much larger
amounts, making a very large profit for herself.
- The
Asenovgrad District Court postponed hearings scheduled for
20 September and 11 November 2004 because the applicant had
submitted medical certificates and had expressed the wish to
participate in the proceedings in person.
- At
hearings conducted on 10 January and 10 March 2005 the applicant
was not present but was represented by counsel.
- At
a hearing on 27 May 2005 neither the applicant nor her lawyer
appeared. The applicant had submitted a medical certificate and had
requested postponement. The District Court noted that the applicant’s
presence was not mandatory, but postponed the hearing as her lawyer
was also absent. It imposed a fine of 500 Bulgarian levs (BGN) on the
applicant’s lawyer. The latter appealed to the Plovdiv Regional
Court, arguing that she had also been ill, and submitted a medical
certificate. On 3 June 2005 the District Court, applying the
procedure of Article 347 of the 1974 Code of Criminal Procedure,
revoked its own decision, stating that the applicant’s lawyer
had given valid reasons for her absence.
- At
a hearing on 27 June 2005 the applicant appeared, but stated that she
would make submissions at the final pleading stage.
- The
applicant requested postponement of the hearings scheduled for
15 December 2005, 27 February, 18 May and 19 June 2006, stating
that she wanted to address the court but was ill, as was documented
by medical certificates she had submitted. The District Court granted
her requests.
- On
an unspecified date in September 2006 the applicant submitted to the
District Court another medical certificate prescribing her home
treatment for hypertension from 15 to 20 September 2006, and
requested postponement.
- At
a hearing on 18 September 2006, held in the applicant’s absence
but in the presence of her lawyer, the District Court noted the
applicant’s statement that she wanted to make submissions at
the final stage of the pleadings and found that her hypertension was
not an obstacle in this respect. It further noted that the applicant
had submitted medical certificates on a number of occasions, thus
causing delays in the proceedings. Relying on the Convention, the
District Court observed that it was necessary to complete the
proceedings within a reasonable time and held that the applicant
should therefore be brought before it for the next hearing with the
assistance of the police. It did not specify any legal ground for
this order. It scheduled the next hearing for 19 October 2006 at 3
p.m. Since the applicant’s lawyer was present at the hearing,
the applicant was considered duly informed of the order.
- Around
10 a.m. on 18 October 2006 the applicant was detained by the police
and taken to Sofia Prison, where she remained until the next morning.
The applicant contends that the conditions there were humiliating and
that she had to use the same toilet as male detainees.
- In
the morning of 19 October 2006 the applicant was escorted by train
and car from Sofia to Asenovgrad (160 km), attended the hearing at
3 p.m. and made submissions, after which she was released. In a
judgment of the same date the District Court acquitted her, finding
that her newspaper announcement had been neither insulting nor
defamatory. The plaintiff requested judicial review of the judgment
but on 4 December 2006 her appeal was rejected for procedural flaws.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Attendance of accused individuals at the trial
- Pursuant
to Article 269 (1) of the 2006 Code of Criminal Procedure (“the
2006 CCP”), the attendance of the
accused person at the trial is mandatory where the charges concern
offences punishable by more than five years’ imprisonment. In
all other cases, the court may order the accused person to appear if
this is necessary for establishing the truth (Article 269 (2) of the
2006 CCP).
- An
accused person may be taken into custody in order to secure his
attendance for questioning if he has failed to appear without valid
reasons, provided that his attendance is mandatory or is deemed
necessary by the competent authority (Article 71(1) of the 2006 CCP).
The accused may be taken into custody without prior notice if he has
absconded or has no permanent address (Article 71(2) of the 2006
CCP).
- Orders
under Articles 269(2) and 71 of the 2006 CCP are not amenable to
appeal before a higher court.
B. Ability of the court to revoke its own procedural
orders
- Pursuant
to Article 347 of the 1974 Code of Criminal Procedure, in force until
29 April 2006, the court could revoke its own procedural order if
judicial review had been requested. This provision was superseded by
Article 344 of the 2006 CCP, in force since 29 April 2006, which
repeats its text almost verbatim.
C. The 1988 State and Municipalities Responsibility for
Damage Act
- The
1988 State and Municipalities Responsibility for Damage Act (the
“SMRDA”) provides for compensation in certain cases of
deprivation of liberty ordered by a court or by investigating or
prosecuting authorities, where the relevant decision or order has
been set aside “for lack of lawful grounds” under
domestic law. Deprivation of liberty aiming at securing the accused’s
attendance at a hearing is not among those cases.
- The
relevant domestic law and practice concerning State liability for
damage in connection with conditions of detention have been
summarised in the Court’s judgment in the case of Slavcho
Kostov v. Bulgaria (no. 28674/03, § 19-22, 27 November
2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §
1 OF THE CONVENTION
- The
applicant complained that her detention from about 10 a.m. on
18 October until 3 p.m. on 19 October 2006 had been in breach of
Article 5 § 1 of the
Convention, which reads, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
- The
Government stated that the applicant had failed to exhaust domestic
remedies, as it had been open to her to request the District Court to
revoke its order, pursuant to Article 344 of the 2006 CCP. They
argued that the District Court had already done so when the
applicant’s lawyer appealed against the fine imposed on her
(see paragraph 9 above). On the merits, the Government argued that
Article 5 was not applicable because the measure taken against the
applicant did not amount to a deprivation of liberty but rather to a
temporary restriction of her freedom of movement. They stated that
the applicant’s detention on the day before the hearing had
been necessary, because the train used by the escort departed early
the next morning. They also stated that the order of 18 September
2006 had a legal basis in Article 269 (2) of the 2006 CCP.
- The
applicant argued that Article 344 of the 2006 CCP was applicable only
to orders amenable to appeal, while the order of 18 September
2006 was not subject to judicial review. She further stated that she
had not tried to contest the order, as she had had the intention to
comply with it and to appear at the hearing of 19 October 2006, had
she been given the chance. She maintained that her detention had not
been carried out in accordance with a procedure prescribed by law and
had not been necessary, because her presence at the trial had not
been mandatory. Finally, she stated that her detention on the day
before the hearing had been clearly disproportionate.
A. Admissibility
- The
Court notes that Article 344 of the 2006 CCP enables courts to revoke
their own orders when judicial review has been requested. The
District Court applied this procedure when the applicant’s
lawyer appealed against its order of 27 May 2005 imposing a fine on
her (see paragraph 9 above). The order of 18 September 2006, however,
was final, and no judicial review proceedings could have been
initiated. In these circumstances, although it does not appear
unlikely that a court could reconsider its own order even when it is
not amenable to judicial review, in the lack of any procedural rules
in this respect the Court is not convinced that a request from the
applicant to this effect should be regarded as an effective remedy
for the purposes of Article 35 § 1 of
the Convention. Furthermore, the Court cannot but note the
applicant’s statement that she refrained from any action
because she intended to comply with the order to appear. The
Government have not argued that there was an established practice on
the basis of which it should have been clear to the applicant that
the police escort ordered by the court would amount to a two-day
deprivation of liberty and that she would have to spend the night in
prison. Accordingly, the Government’s objection concerning
non-exhaustion of domestic remedies should be dismissed.
- The
Court further notes that the complaint under Article 5 §
1 is not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention and is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- It
is not disputed that the applicant remained under the constant
supervision and control of the police authorities from about 10 a.m.
on 18 October until 3 p.m. on 19 October 2006, or twenty-nine
hours, and that she spent a considerable amount of that time in Sofia
Prison (see paragraphs 14-15 above). The Court is therefore satisfied
that she was “deprived of her liberty” within the meaning
of Article 5 § 1 of the Convention.
- Article
5 § 1 requires in the first place that the detention be
“lawful”, which includes the condition of compliance with
a procedure prescribed by law. The Convention here essentially refers
back to national law and states the obligation to conform to the
substantive and procedural rules thereof, but it requires in addition
that any deprivation of liberty should be consistent with the purpose
of Article 5, namely to protect individuals from arbitrariness. A
period of detention will in principle be lawful if it is carried out
pursuant to a court order (see the Benham v. the United Kingdom
judgment of 10 June 1996, Reports of Judgments and Decisions
1996-III, pp. 752-753, §§ 40 and 42).
- Detention
is authorised under sub-paragraph (b) of Article 5 § 1
only to “secure the fulfilment” of the obligation
prescribed by law. It follows that, at the very least, there must be
an unfulfilled obligation incumbent on the person concerned and the
arrest and detention must be for the purpose of securing its
fulfilment and not punitive in character. As soon as the relevant
obligation has been fulfilled, the basis for detention under Article
5 § 1 (b) ceases to exist (see Vasileva v. Denmark, no.
52792/99, § 36, 25 September 2003).
- Finally,
a balance must be struck between the importance in a democratic
society of securing the immediate fulfilment of the obligation in
question, and the importance of the right to liberty. The duration of
detention is also a relevant factor in striking such a balance
(ibid., § 37).
- Turning
to the present case, the Court notes that the applicant was not
required by law to attend the proceedings in person because she did
not face charges of offences punishable by more than five years’
imprisonment (see paragraphs 6, 9 and 16 above) and that her explicit
wish to address the court in person resulted in several adjournments
due to her illness (see paragraphs 7-11 above). At the hearing on 27
May 2005 the District Court noted that the applicant’s presence
was not mandatory. In these circumstances the trial court was
competent to decide whether to deem the applicant’s presence
necessary or to proceed with the determination of the dispute in her
absence so as to avoid any further delay. The Court notes in this
respect that the domestic court did not specify the legal grounds for
its order and did not state expressly that the applicant’s
attendance was necessary for establishing the truth pursuant to
Article 269 (2) of the 2006 CCP (see paragraph 16 above) but rather
justified it with the need to secure her own procedural rights (see
paragraph 13 above). Furthermore, the application of Article 71 (2)
of the 2006 CCP also appears problematic since the applicant neither
absconded nor was without a permanent address (see paragraph 17
above). However, the Court does not find it necessary to determine
this point, as, for the reasons which follow, it considers that the
applicant’s detention in any event was disproportionate to the
aim pursued.
- The
Court observes that the applicant was arrested on the day before the
hearing and remained in custody for almost thirty hours. The distance
between her home town and the town where the hearing was held, 160
km, was not such as to justify such a long period of detention. In
fact, she spent most of that time in prison (see paragraph 14 above)
The Court is not persuaded that the authorities could not have taken
less radical measures in order to secure the applicant’s
attendance in court. Moreover, by arresting her one day earlier they
did not even give her a chance to show good faith and comply with the
court order of her free will. In view of these circumstances, the
Court considers that the authorities failed to strike a fair balance
between the need to ensure the fulfilment of the applicant’s
obligation to attend a court hearing and her right to liberty (see,
mutatis mutandis, Epple v. Germany, no. 77909/01, 24
March 2005, and Vasileva, cited above).
- There
has accordingly been a violation of Article 5 §
1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 §
4 OF THE CONVENTION
- The
applicant complained that she had not been able to obtain judicial
review of her detention, contrary to the requirements of Articles 5
§ 4 and 13 of the Convention.
The
Court considers that this complaint falls to be examined under
Article 5 § 4 of the Convention, which reads as follows:
“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
Government made no submissions in relation to this complaint.
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention, nor
inadmissible on any other grounds. It must therefore be declared
admissible (see Slivenko and Others v. Latvia (dec.)
[GC], no. 48321/99, 23 January 2002.
- It
notes that the applicant was detained for about twenty-nine hours and
was released before any judicial review of the lawfulness of her
detention could have taken place (see paragraphs 14-15 above). It
observes in this context that Article 5 § 4 deals only with
those remedies which must be made available during a person’s
detention with a view to that person obtaining speedy judicial review
of the lawfulness of the detention capable of leading, where
appropriate, to his or her release. The provision does not deal with
other remedies which may serve to review the lawfulness of a period
of detention which has already ended, including, in particular, a
short-term detention such as in the present case (see Slivenko v.
Latvia [GC], no. 48321/99, § 158, ECHR 2003 X).
- Accordingly,
the Court does not find it necessary to examine the merits of the
applicant’s complaint under this provision (ibid., §
159).
III. ALLEGED VIOLATION OF ARTICLE 5 §
5 OF THE CONVENTION
- The applicant complained that she had not had an
enforceable right to compensation for her unlawful detention,
contrary to Articles 5 § 5 and 13 of the Convention.
The
Court considers that this complaint falls to be examined under
Article 5 § 5 of the Convention, which reads as follows:
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
- The
Government made no submissions in relation to this complaint.
- The
applicant argued that section 2 of the SMRDA gave a right to
compensation only to persons placed in pre-trial detention, provided
that their detention had been quashed for lack of legal grounds.
However, her deprivation of liberty did not amount to pre-trial
detention, and moreover there was no procedure for challenging its
lawfulness. Therefore, her action was barred.
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention, nor
inadmissible on any other grounds. It must therefore be declared
admissible.
- Noting
that the applicant’s detention was found to be in breach of
Article 5 § 1 of the Convention (see paragraph 33 above),
the Court finds that paragraph 5 of that provision is applicable and
required the availability in Bulgarian law of an enforceable right to
compensation in the applicant’s case (see Włoch v.
Poland (no. 2), no. 33475/08, §§ 25-27, 10 May 2011,
with further references).
- It
observes that deprivation of liberty aiming at securing an accused’s
attendance at a court hearing is not among the cases of deprivation
of liberty for which the SMRDA provides for compensation (see
paragraph 20 above). Nor does it appear that an enforceable
right to compensation was available to the applicant under any other
provision of the Bulgarian law.
- There has therefore been a violation of Article 5 §
5 of the Convention.
IV. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
- The
applicant also complained that the conditions in which she had been
detained in Sofia Prison and escorted to the Asenovgrad District
Court had been humiliating and that she had not had effective
remedies in this respect. She relied on Articles 3 and 13 of the
Convention, which provide:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court has accepted, on the basis of developments in the Bulgarian
courts’ case-law since 2003, that a claim under the SMRDA is in
principle an effective remedy for poor conditions of detention,
provided that the applicant has either been released or placed in
conditions which meet Convention standards (see Hristov v.
Bulgaria (dec.), no. 36794/03, 18 March 2008, and Radkov
v. Bulgaria (no. 2), no. 18382/05, §§
37 and 53, 10 February 2011). In the
instant case, nothing suggests that an action under the SMRDA could
not have provided her with redress.
- In
view of the above, these complaints must be declared inadmissible
under Article 35 §§ 1 and 4 for failure to exhaust domestic
remedies.
V. 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 a total of 15,000 euros (EUR) in respect of
non-pecuniary damage suffered as a result of her deprivation of
liberty and the alleged poor conditions of detention.
- The
Government contested this claim.
- The
Court considers that the applicant’s detention for almost
thirty hours in breach of Article 5 § 1 of the Convention must
have caused her distress which would not be adequately compensated by
the finding of a violation alone. Making an assessment on an
equitable basis, it therefore awards the applicant
EUR 1,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable, under this head.
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 3,600 for forty-five hours
of legal work by her lawyers in the proceedings before the Court, at
an hourly rate of EUR 80. In support of this claim she presented a
contract and a time sheet. She also claimed EUR 50 for expenses
incurred by her lawyers but did not present any invoices or receipts
in support of her claim. She requested that EUR 400 of any award made
under this head be paid directly to her (since she had already paid
that sum to her lawyers), and the remainder to her lawyers, Mr M.
Ekimdzhiev and Ms S. Stefanova.
- The
Government considered that the claims were excessive.
- According
to the Court’s case law, applicants are entitled to the
reimbursement of their 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 to the fact that part of the applicant’s complaints
were rejected and also to the applicant’s failure to provide
all necessary documents, such as invoices or receipts for postage or
office expenses, the Court finds it reasonable to award the sum of
EUR 2,000 to the applicant, plus any tax that may be chargeable
to her. EUR 400 of that amount is to be paid to the applicant
herself, and the remainder to her legal representatives, Mr M.
Ekimdzhiev and Ms S. Stefanova.
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
- Declares admissible the
complaints under Article 5 §§ 1,
4 and 5 of the Convention and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that it is not required to deal with the
merits of the applicant’s complaint under Article 5 § 4 of
the Convention;
- Holds that there has been a violation of Article
5 § 5 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months of 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
1,000 (one thousand euros), plus any tax that may be chargeable to
her, in respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
her, in respect of costs and expenses, EUR 400 (four hundred euros)
of which is to be paid to the applicant herself, and the remainder is
to be paid to the applicant’s legal representatives,
Mr M. Ekimdzhiev and Ms S. Stefanova;
(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 27 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki Deputy Registrar President
