FOURTH SECTION
CASE OF
MILEN KOSTOV v. BULGARIA
(Application no.
40026/07)
JUDGMENT
STRASBOURG
September 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 Milen Kostov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section
Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
40026/07) 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 and Greek national, Mr Milen
Dimitrov Kostov (“the applicant”), on 20 August 2007.
The applicant was represented by Mr M. Ekimdzhiev
and Mrs K. Boncheva, lawyers practising in Plovdiv. The Bulgarian
Government (“the Government”) were represented by their Agent, Ms M. Dimova,
of the Ministry of Justice.
On 11 May 2011 the application was communicated to
the Government. On 17 May 2011, the Greek Government was informed of their
right to intervene in the proceedings in accordance with Article 36 § 1 of the
Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail
themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1966 and lives in Varna.
On 30 September 2005, relying on section 76 § 2
of the Bulgarian Identity Papers Act of 1998, the Varna Regional Police Directorate
(“the VRPD”) issued an order refusing to issue the applicant with an
international passport and ordering that his existing passport be seized. The
order was issued on the grounds that the applicant had been previously
convicted and the statutory period for legal rehabilitation had not yet
expired.
At the time when the order was issued, the
applicant was apparently living in Germany. He travelled to Bulgaria in early April 2006 to renew his identity papers. When he applied for his papers
on 25 April 2006, the authorities informed him of the order of 30 September
2005 and refused to issue a new passport to him.
The applicant appealed against the order arguing
that it contained no reasons to justify the imposition of the ban.
In a judgment of 2 August 2006 the Varna Regional
Court quashed the order and remitted the case to the VRPD. The court
established that the applicant had been released in November 2003 after serving
a two-year prison sentence. It then observed that the appropriateness of the
imposed administrative measure was not subject to judicial control. However,
the court found that the order was deficient as the relevant circumstances had
not been examined. In particular, the VRPD had not commented on the applicant’s
numerous trips from and back to Bulgaria following his release, on his Greek
citizenship and on his permanent residence permit and address in Germany. All
of those factors could have pointed against the imposition of the ban. The Varna
Regional Court concluded that the order was not sufficiently reasoned.
Upon appeal, in a final judgment of 22 February
2007, the Supreme Administrative Court (“the SAC”) set aside the lower court’s
judgment and confirmed the order. The SAC held that the order was reasoned in
so far as it made a reference to the statutory provisions on the basis of which
it had been issued. It also held that the personal circumstances of the
applicant should not have been examined by the lower court as the VRPD’s
discretion in issuing the order was not subject to judicial control.
On 2 May 2007 the applicant requested that the
travel ban be lifted because he had been rehabilitated. The VRPD lifted the ban
in an order of 11 May 2007 on the grounds of the applicant’s rehabilitation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law concerning travel bans
on convicted individuals pending their rehabilitation is set out in the Court’s
judgment in the case of Nalbantski v. Bulgaria (no. 30943/04, §§ 25-29, 10 February 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No.
4 TO THE CONVENTION
The applicant complained that the restriction of
30 September 2005 on his freedom to leave Bulgaria was not necessary and
proportionate, contrary to Article 2 of Protocol No. 4 to the Convention.
The relevant part of Article 2 of Protocol No. 4 reads as
follows:
“.....2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the exercise of
these rights other than such as are in accordance with law and are necessary in
a democratic society in the interests of national security or public safety,
for the maintenance of ordre public, for the prevention of crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others....”
A. Admissibility
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
1. The parties’ submissions
In the Government’s view, the travel ban had
been imposed on the basis of a thorough assessment of all relevant factors,
namely a prior criminal conviction and the absence of rehabilitation of the
applicant. The ban had been issued by the competent authorities and in
accordance with the law, as well as for the purposes of national security, the
protection of the rights of others and the prevention of crime. Given that the
applicant had been convicted and not rehabilitated, the ban had been
proportionate and justified. Finally, the ban’s effects vis-à-vis the applicant
had only lasted just over a year: between 25 April 2006, when the ban had been
served on him, and 11 May 2007, when it had been lifted.
The applicant maintained his claim. In
particular, he pointed out that, in the judicial review proceedings in which he
had challenged the ban, the domestic courts had not reviewed the assessment of
the police as to whether it had been necessary to ban him from leaving the
country.
2. The Court’s assessment
The Court finds that the present case concerns a
travel ban imposed on a convicted and not yet rehabilitated offender. The Court
also notes that the parties do not contest that the applicant was unable to
leave the country as a result of the ban. The case is almost identical to Nalbantski
(cited above), as well as to the more recent cases of Sarkizov and Others v. Bulgaria
(nos. 37981/06 et al., §§ 66-70,
17 April 2012) and Dimitar Ivanov v. Bulgaria ([Committee], no.
19418/07, §§ 36-38, 14 February 2012), in all of which the
Court found breaches of Article 2 of Protocol No. 4.
In the instant case, as in the ones mentioned
above, in deciding to impose a travel ban, the authorities referred only to the
applicant’s conviction and his lack of rehabilitation. At the same time they failed
to take into consideration his individual situation or to assess the
proportionality of the measure (see Nalbantski, cited above, § 66). That
situation could not be rectified through judicial review proceedings. The
reason for that was the courts’ finding that they could not review the manner
in which the police authorities had exercised their discretion in assessing the
necessity of imposing the ban (see paragraph 9 above). Such a rigid and
automatic approach cannot be reconciled with the obligation imposed by Article
2 of Protocol No. 4 to ensure that any interference with an individual’s right
to leave his or her country is, from the outset and throughout its duration,
justified and proportionate in the light of the circumstances (see Nalbantski,
Sarkizov and Others and Dimitar Ivanov, all
cited above).
There has accordingly been a violation of Article 2 of Protocol
No. 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 IN
CONJUNCTION WITH ARTICLE 2 OF PROTOCOL NO. 4 TO THE CONVENTION
The applicant complained that he had not had an
effective domestic remedy in relation to his complaint under Article 2 of
Protocol No. 4. He relied on Article 13 of the Convention.
Article 13 of the Convention provides:
“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 Government did not submit any comments.
The Court notes that where there is an arguable
claim that an act of the authorities may infringe the individual’s right to
leave his or her country, guaranteed by Article 2 of Protocol No. 4 to the
Convention, Article 13 of the Convention requires the national legal system to make
available to the individual concerned the effective possibility of challenging
the measure complained of and of having the relevant issues examined with
sufficient procedural safeguards and thoroughness by an appropriate domestic
forum offering adequate guarantees of independence and impartiality (see, mutatis
mutandis, Al-Nashif v. Bulgaria, no. 50963/99, § 133,
20 June 2002; Riener v. Bulgaria,
no. 46343/99, § 138, 23 May 2006).
There is no doubt that the applicant’s complaint
under Article 2 of Protocol No. 4 to the Convention in respect of the
prohibition for him to leave Bulgaria was arguable. He was entitled, therefore,
to an effective complaints procedure in Bulgarian law.
Bulgarian law provided for a possibility to seek
judicial review of an order imposing a prohibition to leave the country. The
applicant’s appeals against the travel ban were examined by the courts, which
gave reasoned decisions.
However, in its analysis the SAC was only
concerned with the formal lawfulness of the ban. Once satisfied that the
applicant had indeed been convicted and not rehabilitated, the SAC
automatically confirmed the travel ban, quashing the lower court’s finding that
the ban had not been sufficiently reasoned. Questions such as the applicant’s
numerous trips from and to Bulgaria following his release, his Greek
citizenship, his permanent residence permit and address in Germany were not
considered. The applicant’s right to respect for his private and family life
was also held to be irrelevant, and no attempt was made to assess whether the
restrictions on the applicant’s leaving the country were a proportionate
measure, namely whether they struck a fair balance between the public interest
and the applicant’s rights (see paragraph 9 above).
The Court has already held that a domestic
appeals procedure cannot be considered effective within the meaning of Article
13 of the Convention, unless it affords a possibility to deal with the
substance of an “arguable complaint” under the Convention and to grant
appropriate relief. Giving direct expression to the States’ obligation to
protect human rights first and foremost within their own legal system, Article
13 establishes an additional guarantee for an individual in order to ensure that
he or she effectively enjoys those rights (see Kudła v. Poland [GC],
no. 30210/96,
ECHR 2000-XI, § 152; T.P. and K.M. v. the United Kingdom [GC],
no. 28945/95,
ECHR 2001-V, § 107; Riener cited above).
The limited scope of review in the applicant’s
case, resulting from the SAC’s application of Bulgarian law at the time of the
events, did not satisfy the requirements of Article 13 of the Convention in
conjunction with Article 2 of Protocol No. 4. The applicant did not have any
other effective remedy in Bulgarian law.
It follows that there has been a violation of Article 13 of the
Convention, in conjunction with Article 2 of Protocol No. 4.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant further complained that he was
denied access to a court in that the SAC refused to examine the proportionality
of the imposed restriction on his travel. He relied on Article 6 § 1 of the
Convention.
The Court notes that this complaint is linked to
the ones examined above and must, therefore, be declared admissible.
Having regard to its findings related to Article
2 of Protocol No. 4 and to Article 13 of the Convention (see paragraphs 17 and
25 above), the Court considers that, in the circumstances of the present case,
no separate issue arises under Article 6 § 1.
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
The applicant claimed 15,000 euros (EUR) in
respect of non-pecuniary damage stemming from a violation of Article 2 of
Protocol No. 4 and also EUR 5,000 in respect of non-pecuniary damage as a
result of a breach of Article 13.
The Government contested these claims as
unfounded, not proven and exorbitant.
The Court considers that the applicant must have
sustained non-pecuniary damage as a result of the breaches of the
Convention in his case. Taking into account the particular circumstances and
the awards made in similar cases, and ruling on an equitable basis as required
under Article 41, the Court awards the applicant EUR 2,000 in respect of
non-pecuniary damage plus any tax that may be chargeable.
B. Costs and expenses
The applicant also claimed EUR 1,995 for the
legal work carried out by his representatives in the proceedings before the
Court and EUR 185.65 for other expenses, such as postal and clerical costs. He
requested that EUR 511.29 of the lawyers’ fees be made payable to him, and
the remaining EUR 1,483.71 to his legal representatives, Mr M. Ekimdzhiev and
Ms K. Boncheva. He requested that EUR 39 from the other expenses be
paid directly to his lawyers indicated above and EUR 146.65 be paid into the
account of “Legal Offices of Ekimdzhiev, Boncheva and Chernicherska” for the
translation services provided. He submitted a fee agreement with his lawyers, a
time sheet and a contract for translation services.
The Government disputed the hourly rate charged
by the applicant’s lawyers. They also stated that postal and translation
expenses should be allowed only in so far as they were supported by documents.
According to the Court’s case-law, costs and
expenses will not be awarded under Article 41, unless it is established that
they were actually and necessarily incurred and reasonable as to quantum. In
the present case, having regard to the documents in its possession and the
above criteria, the Court considers it appropriate to award EUR 1,000 in
respect of the legal fees incurred by the applicant, payable as follows: EUR
511.29 to the applicant and EUR 488.71 to the applicant’s legal representatives,
Mr M. Ekimdzhiev and Ms K. Boncheva. As regards the other expenses, having
regard to the documents in its possession, the Court considers it appropriate
to award the applicant EUR 146.65 under this head, payable into the account of
“Legal Offices of Ekimdzhiev, Boncheva and Chernicherska”. To all of those
amounts is to be added any tax that may be chargeable to the applicant.
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 application admissible;
2. Holds that there has been a violation of
Article 2 of Protocol No. 4 to the Convention;
3. Holds that
there has been a violation of Article 13 of the Convention in conjunction with
Article 2 of Protocol No. 4;
4. Holds that no separate issue arises under Article
6 § 1 of the Convention;
5. 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
Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,146.65 (one thousand one hundred and
forty-six euros, and sixty-five cents), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, payable as follows: EUR 511.29
(five hundred and eleven euros, and twenty-nine cents) to the applicant
himself; EUR 488.71 (four hundred and eighty-eight euros, and seventy-one
cents) to the applicant’s legal representatives, Mr M. Ekimdzhiev and Ms K.
Boncheva; and EUR 146.65 (one hundred and forty-six euros, and sixty-five
cents) into the account of “Legal Offices of Ekimdzhiev, Boncheva and
Chernicherska”;
(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;
6. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Ineta
Ziemele
Registrar President
