FOURTH SECTION

CASE OF BARBORSKI v. BULGARIA

(Application no. 12811/07)

JUDGMENT

STRASBOURG

26 March 2013

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 Barborski v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Ineta Ziemele, President,
	Päivi Hirvelä,
	George Nicolaou,
	Ledi Bianku,
	Zdravka Kalaydjieva,
	Krzysztof Wojtyczek,
	Faris Vehabović, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 5 March 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 12811/07) 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, Mr Ivan Vasilev Barborski (“the applicant”), on 16 February 2007.
2.  The applicant was represented by Mr I. Murgin, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, first Mrs N. Nikolova, and then Mrs. M. Kotseva of the Ministry of Justice.
3.  The applicant alleged, in particular, that his detention from 2 October to 8 December 2005 and after 26 January 2007 had been unlawful.
4.  On 6 September 2010 the application was communicated 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 FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1969 and lives in Sofia.
A.  The applicant’s convictions
6.  By a judgment that became final on 30 November 2004, the Gabrovo Regional Court sentenced the applicant to three years’ imprisonment in case no. 210/00.
7.  By a judgment that became final on 13 May 2005, the Kardzhali Regional Court sentenced the applicant to one year’s imprisonment in case no. 46/04. The court deducted the period of one year during which the applicant had been held in pre-trial detention (from 10 June 2003 to 10 June 2004).
B.  Determination of an overall penalty
8.  On an unspecified date in 2005 the applicant submitted a request for an overall prison term for his two convictions.
9.  By decision no. 394 of 1 July 2005, the Kardzhali District Court imposed an overall prison term of three years and six months. The court found that the applicant had started serving his sentence for case no. 210/00 on 10 May 2003 and deducted the two years, two months and twenty-nine days that he had already served as of 1 July 2005. Further, as an order for the applicant’s pre-trial detention in case no. 46/04 had been in effect from 10 June 2003 to 10 June 2004, the court deducted that period as well.
10.  The applicant appealed against the decision. In a hearing held on 29 September 2005 he withdrew his appeal. As the public prosecutor’s office had not appealed against the decision, the proceedings were discontinued on the same date and decision no. 394 became final.
11.  Consequently, on the same day the Kardzhali district prosecutor instructed the prison authorities in Sofia, where the applicant was detained, to release him as he had served his overall sentence in its entirety.
12.  The prison authorities did not follow the instruction as they considered that the applicant’s overall prison term had been miscalculated. In their view, the period in which an order for the applicant’s pre-trial detention in case no. 46/04 had been in effect had been wrongly deducted. In a letter dated 7 October 2005, they informed the Sofia and Kardzhali public prosecutor’s office of their finding.
13.  On 18 November 2005 the Supreme Cassation public prosecutor’s office (SCPPO) instructed the Kardzhali public prosecutor’s office to request that the District Court interpret its decision so as to clarify whether the period of the applicant’s pre-trial detention in case no. 46/04 should have been deducted.
14.  On 2 December 2005 the request was rejected by the Kardzhali District Court, which held that its decision was clear.
15.  On the same date, the SCPPO instructed the Kardzhali district prosecutor to order the applicant’s release. It also stated that, given that the total term of the two sentences had been miscalculated, the possibility should be examined of submitting a request to re-open the proceedings in order to determine an overall sentence. A copy of the letter was sent to the applicant’s lawyer.
16.  The applicant was released from prison on 8 December 2005.
C.  Re-opened proceedings to determine the overall penalty
17.  In a letter of 12 December 2005 the Sofia Prison authorities informed the SCPPO that, as a result of a miscalculation of the prison term by the Kardzhali District Court, the applicant had served two months and eleven days more than the prison term determined by that court.
18.  On 10 April 2006 the Supreme public prosecutor’s office submitted a request, under Article 362 of the 1974 Code of Criminal Procedure, for the proceedings to be re-opened in order to determine an overall sentence for the applicant’s two convictions.
19.  By a final judgment of 10 October 2006 the Supreme Court of Cassation granted the request. The court held that the period in which the applicant had been held in pre-trial detention in case no. 46/04 had been wrongly deducted, as he had been serving a concurrent prison sentence in case no. 210/00.
20.  On 26 January 2007 the applicant was returned to prison to serve the remainder of his sentence.
II.  RELEVANT DOMESTIC LAW
21.  Article 25 § 1 of the 1968 Criminal Code provides that when an individual is convicted of two or more separate offences, an overall sentence will be imposed if all the crimes were committed prior to the first conviction. Paragraph 2 of that provision states that the time already served for the first sentence will be deducted from the time left to serve for the overall sentence.
22.  Article 59 § 1 of the Code provides that the period of pre-trial detention will be deducted from the overall sentence.
23.  Article 371 of the Code of Criminal Procedure 1974 (“the 1974 Code”) (in force until 29 April 2006 when it was replaced by a new Code) provided that judgments and decisions were enforced after they become final. A copy of the judgment is sent to the prosecutor who is competent to take the necessary measures for its execution; in the case of a custodial sentence the prosecutor orders the prison authorities to detain the prisoner in execution of the sentence (Article 375 § 2 of the 1974 Code).
24.  Article 361 § 1 of the 1974 Code provided that the Chief Public Prosecutor could request the re-opening of criminal proceedings. Article 360 § 1 stipulated that the request should be submitted within one year of the entry into force of the judgment or decision concerned. Pursuant to Article 362 § 2 (5), a request could be submitted in respect of sentences, judgments and decisions which had not been subject to cassation review and on the same grounds as those applying to cassation appeals. Those provisions were superseded by Articles 420 § 1, 421 § 1 and 422 § 1 (5) of the Code of Criminal Procedure adopted on 29 April 2006. The wording of the new articles is virtually the same as the previous ones, except for the time-limit for submitting requests for re-opening proceedings, which was set at six months.
25.  Section 2 of the State and Municipalities’ Responsibility for Damage Act of 1988 (“the 1988 Act”) provides, as far as relevant:
“The State shall be liable for damage caused to [private persons] by organs of ... the investigation, the public prosecution, the courts ... for:
...
6.  the execution of a sentence in excess of the set term.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
26.  The applicant complained that his detention from 2 October 2005 to 8 December 2005 had been unlawful, in contravention of Article 5 § 1 (a) of the Convention, which reads as follows:
“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:
(a)  the lawful detention of a person after conviction by a competent court;
...”
A.  Admissibility
1.  Observance of the six-month rule
27.  The Government submitted that the application had been lodged after the expiry of the six-month time-limit provided for in Article 35 § 1 of the Convention. In particular, they argued that the applicant should have lodged his application following his release from prison in December 2005. Instead, he remained inactive until 2007.
28.  The applicant contested the Government’s assertion.
29.  The Court observes that the applicant was released from prison on 8 December 2005 (see paragraph 16 above). It further notes that in the communication of 2 December 2005 the Supreme Cassation prosecutor’s office clearly stated that it intended to submit a request to re-open the proceedings in order to determine an overall sentence. Such a request was indeed submitted on 10 April 2006 (see paragraph 15 above). In those circumstances, it does not seem unreasonable that the applicant waited for the outcome of the re-opened proceedings before lodging his application with the Court. Those proceedings ended on 10 October 2006 and the application was lodged on 16 February 2007. It was therefore timely.
30.  Consequently, the Court dismisses the Government’s preliminary objection concerning the six-month rule.
2.  Exhaustion of domestic remedies
31.  The Government, with reference to domestic case-law, also contended that the applicant had failed to exhaust domestic remedies, as he had not brought an action under section 2(6) of the 1988 Act.
32.  The applicant disagreed.
33.  The Court observes that in cases where a person’s detention extends beyond the period of his or her sentence (see paragraph 25 above), damages can be sought under section 2(6) of the 1988 Act. In the present case, however, the Supreme Court of Cassation found in its judgment of 10 October 2006 that the prison term imposed on the applicant had been miscalculated, and he was returned to prison. In view of that judgment, therefore, the time served by the applicant does not appear to have exceeded the prison sentence imposed by the domestic courts. Furthermore, the domestic case-law referred to by the Government does not concern circumstances such as those obtaining in the present case. The Court therefore cannot support the assertion that an action under the 1988 Act would have been an effective remedy for the applicant in the circumstances of the present case.
34.  It follows that the Government’s objection of non-exhaustion of domestic remedies must be dismissed.
35.  To conclude, the Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
36.  The applicant argued that his detention between 2 October and 8 December 2005 had been unlawful because the prison term imposed by decision no. 394 had expired.
37.  The Government submitted that the Sofia Prison authorities had not arbitrarily refused to release the applicant but rather had established that his prison term had been miscalculated, and had alerted the public prosecutor’s office accordingly. The Government maintained that the applicant had withdrawn his appeal against decision no. 394, which had led to its becoming final. Despite that erroneous decision, the authorities had nonetheless released the applicant on 8 December 2005. Later, when the proceedings were re-opened, the whole period of the applicant’s detention was deducted from the remainder of his sentence. He had thus not been detained unlawfully but in accordance with a procedure prescribed by law, within the meaning of the Convention.
38.  The Court emphasises that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Subparagraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds (see, as a recent authority, Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 60, 15 March 2012).
39.  Article 5 § 1 (a) permits the lawful detention of a person after conviction by a competent court. The purpose of detention must therefore be the execution of a prison sentence imposed by a court.
40.  The Court observes that the applicant was detained following conviction by a competent court (see paragraphs 6 and 9 above). It follows that his detention falls within the scope of Article 5 § 1 (a). There is no question that the conviction was lawful under Bulgarian law; nor can it be argued that his detention did not conform with the purpose of detention under that Convention provision.
41.  The Court notes that decision no. 394, which became final on 29 September 2005, imposed an overall penalty for the applicant’s two convictions. The applicant was released on 8 December 2005, which, according to the Sofia Prison authorities, was two months and eleven days after the expiry of the sentence imposed by decision no. 394 (see paragraph 17 above). The applicant himself claims that he should have been released on 2 October 2005.
42.  Therefore, the Court must establish whether the applicant’s detention between 2 October and 8 December 2005 was in conformity with the requirements of Article 5 § 1 (a).
43.  The Government stated that the Sofia Prison authorities had refused to release the applicant because they had established that the Kardzhali District Court had miscalculated the length of the prison term to be served by him. However, the prison authorities cannot be considered a “competent court” within the meaning of Article 5 § 1 (a), and their decision to keep the applicant in custody cannot therefore serve as justification for his detention within the meaning of that Convention provision.
44.  The Government also submitted that the period of detention served by the applicant up until 8 December 2005 had been deducted from the remaining prison term determined by the final judgment of 10 October 2006 (see paragraph 19 above). The Court, however, is unconvinced that the above contention justifies the applicant’s detention between 2 October and 8 December 2005. During that period the applicant’s prison term was governed by decision no. 394, and it is not disputed by the Government that the term thus determined expired prior to the applicant’s release on 8 December 2005. In so far as the Government claim that decision no. 394 was erroneous, the Court considers it noteworthy that the prosecution authorities had the opportunity to lodge an appeal against it but did not do so. In the absence of such an appeal the impugned decision became final and enforceable. It is true that the prosecution authorities requested the re‑opening of the proceedings and that in those proceedings the domestic court agreed with the prosecution authorities’ finding that the applicant’s prison term had indeed been miscalculated (see paragraph 19 above). However, such post factum validation of the mistake with respect to the applicant’s detention during the period in question does not alter the fact that, under Article 5 § 1, detention should be justified throughout its duration. The Court considers that prior to the judgment of 10 October 2006, the assessment by the prosecution and the prison authorities of the Kardzhali District Court’s decision did not suffice to justify the applicant’s detention during the period under examination.
45.  In view of the above considerations, the Court finds that the applicant’s detention between 2 October and 8 December 2005 in excess of the sentence imposed by decision no. 394 was not made “after a conviction by a competent court”, within the meaning of Article 5 § 1 (a). There has accordingly been a violation of Article 5 § 1 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
46.  Lastly, the applicant complained, under Article 5 § 1 (a), that his detention to serve the remainder of his prison sentence, as determined by the judgment of the Supreme Court of Cassation of 10 October 2006, had been unlawful. He also complained, relying on Article 5 § 4 and Article 13, that he had had no possibility to challenge the lawfulness of his detention after the judgment of the Supreme Court of Cassation of 10 October 2006.
47.  The Court has examined the complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
48.  It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
49.  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
50.  The applicant claimed 2,000 euros (EUR) in respect of pecuniary damage, which represented loss of earnings. He did not submit any documents or specific details in respect of this claim. He further claimed EUR 10,000 in respect of non-pecuniary damage, which represented the stress and anxiety that he had endured as a result of his unlawful detention.
51.  The Government submitted that the claims were unsubstantiated and excessive.
52.  The Court considers that the applicant’s claims for pecuniary damage are unsubstantiated. It therefore rejects them.
53.  The Court considers that the applicant must have sustained non‑pecuniary damage as a result of the Convention breach in his case. Having regard, however, to the fact that the whole period of the applicant’s detention in respect of which the Court found a violation of the Convention was deducted from the remainder of his sentence, the Court considers that, in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction for the applicant in respect of non-pecuniary damage.
B.  Costs and expenses
54.  The applicant also claimed EUR 700 for the costs and expenses incurred before the domestic courts and EUR 500 for those incurred before the Court. He submitted that he did not possess any documents or receipts in respect of the expenses incurred in the domestic proceedings, as he had not anticipated that they would be required for the proceedings before the Court. No documents in support of the claim for expenses incurred before the Court were submitted either; the applicant claimed that he would pay those expenses after the conclusion of the proceedings.
55.  The Government contested the claims, pointing out that they were not supported by any documents.
56.  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, in the absence of any documentary evidence in respect of costs and expenses, the Court considers the applicant’s claims unsubstantiated. It therefore rejects the claims.
C.  Default interest
57.  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 unlawfulness of the applicant’s detention between 2 October and 8 December 2005 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds that the finding of a violation of Article 5 § 1 constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction and costs and expenses.
Done in English, and notified in writing on 26 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ineta Ziemele
	Deputy Registrar	President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge I. Ziemele is annexed to this judgment.
I.Z.
F.A.

CONCURRING OPINION OF JUDGE ZIEMELE
I follow the Chamber’s reasoning on all of the substantive points. I also agree in substance that in this case no award in respect of non-pecuniary damage needed to be made. I cannot agree however with the language in paragraph 53 of the judgment and point 3 of the operative provisions, stating that the Court has decided not to award any compensation for non‑pecuniary damage as it considers that the finding of a violation is sufficient compensation.

On several occasions I have pointed out (see, for example, Dissenting opinion of Judges Ziemele and Karakaş in the case of Disk and Kesk v. Turkey, no. 38676/08, 27 November 2012) that in my view the Court’s approach in stating, from time to time, that a judgment declaring a violation is in itself a form of compensation is not compatible with the general principles of international law as regards State responsibility which have been followed in the Court’s case-law (see also Judge Spielmann’s dissenting opinion in the case of Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, 22 December 2009).

In other words, where a court establishes that there has been a breach of an international obligation by a State, it must assess how best that breach should be repaired. This is a different question from that of establishing whether there has been a violation. Normally, any violation would give rise to some award of damages. It is only in exceptional circumstances that the Court may decide not to make an award in respect of non-pecuniary damage if, in its opinion, various relevant factual circumstances preclude such an award. In any event, the Court must fully address the question of reparation for damage or, failing that, appropriate compensation, including assessment of non-pecuniary damage. In this case, while a violation was found, there were reasons, as presented in paragraph 53, that militated in favour of no award of damages. That is all the Court needed to say, without commenting on the finding of a violation as a form of reparation.