CASE OF SHALYAVSKI AND OTHERS v. BULGARIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicants were born in 1966, 1967, 1988 and 2003 respectively and live in Blagoevgrad. The first and second applicants are cohabiting partners and the fourth applicant is their daughter. The third applicant is the second applicant’s son. At the relevant time all the applicants were living together. 6. The first applicant suffers from muscular dystrophy, which has gradually progressed since the age of twelve. Currently (and at the time of the relevant events), he is only able to move his head and hands. He needs assistance for most daily activities, which is usually provided by the second applicant or his care assistant. According to the applicants, the care assistant, who was specially trained and had taken care of the first applicant for many years, was the only person with whom the latter felt secure when he needed to go out of his home, in particular to go to his office, as this involved the assistant carrying him and installing him in a car. The assistant also drove the applicant’s car. At the time the first applicant owned a pawnshop and managed several companies. One of his activities was giving short-term loans at high interest rates. 7. In 2010 the prosecution authorities opened criminal proceedings against the first applicant for usury. Prior to that, in 2006 and 2009 he had been convicted for an abuse in the exercise of a disputed right and for threatening another person. 8. On 7 April 2011, at about 11 a.m., the first applicant, while travelling in his car which was being driven by his care assistant, was stopped by police officers and ordered to follow them to the police station. Upon arrival, his care assistant was arrested. While the parties have not specified the grounds for this arrest, it is very likely that it was on the basis of the Ministry of the Interior Act, which allowed, inter alia, the detention for up to twenty-four hours of a person suspected of having committed an offence, and that it was related to the investigation against the first applicant. 9. The car remained in the carpark and the first applicant remained in it. Unable to move, he stayed in that position for several hours, guarded by two police officers. At about 3 p.m. his care assistant was brought out under guard to move him to another car, because the first one was going to be impounded as physical evidence. On two or three occasions during the day the second applicant was allowed to come to help him with his physical needs. 10. During the time the first applicant spent in front of the police station, police officers searched his home, his office and his pawnshop, as well as his parents’ flat and house. They also searched the applicant’s cars. The operation against him had been planned in advance. 11. At about 6 p.m., while still in the car and in the presence of his lawyer who had arrived in the meantime, the first applicant had charges of usury brought against him by an investigator. For that purpose the police officers installed the necessary equipment in the carpark, including a computer and a printer. The applicant was invited to make a declaration in relation to the charges; he stated that he was not guilty. 12. The first applicant remained in the car in front of the police station until about 7.30 p.m. After that he was brought in front of the building of the Blagoevgrad Regional Court, which was to hold a hearing to examine an application by the prosecution to place him under house arrest. In the court carpark police officers attempted to take the applicant out of the car and place him in a wheelchair, despite the second applicant’s protests. They gave up, after becoming aware that they could hurt him. After that his care assistant, still in detention, was again brought out under guard. The first applicant was thus able to get out of the car at about 9.30 p.m. He attended the court hearing, which ended at 11.30 p.m. The care assistant remained with him until the end of the hearing. The prosecution’s application to have the first applicant placed under house arrest was allowed. 13. The applicant’s care assistant was released on 8 April 2011 and has not been questioned any further or prosecuted. 14. The Blagoevgrad Regional Court’s decision to place the first applicant under house arrest was upheld on appeal by the Sofia Court of Appeal on 14 April 2011. Before taking its decision, that court heard evidence from, among others, A.Z., who stated that she was the first applicant’s sister and a neurologist and gave evidence concerning the applicant’s state of health. 15. On 22 January 2016 the first applicant had charges brought against him once again, in a detailed bill of indictment listing more than a hundred occasions where he had given loans to individuals at high interest rates. According to reports published in the Bulgarian media, in November 2016 he was indicted and is standing trial at present. 16. The observance of the first applicant’s house arrest was supervised by the police. 17. Between 8 and 14 April 2011 there were no checks on whether he was complying with the measure. 18. On 15 April 2011 the first applicant was seen by patrolling police officers in the city centre. When asked to provide an explanation, he stated that he had gone out to buy something. The police checked on him at his home in the evening of the same day. 19. Between 16 April and 27 May 2011 police officers visited the applicants’ home to check on the first applicant on twenty-nine occasions, once a day and almost every day. On eight days there were no checks at all, and on another four days officers did not go to the applicants’ flat, but observed for some time the building’s entrance. On 29 April 2011 the applicant was met by officers in front of the building as he arrived in his car. 20. On 28 May 2011 officers checked on the first applicant on three occasions, and on two occasions on 30 May. On 31 May they visited the flat on three occasions, but on one of them were not allowed in. 21. On 1 and 2 June 2011 the second applicant did not allow the police into the flat. On 3 June they visited the flat five times; on one of the visits nobody answered the doorbell. 22. Between 4 and 20 June 2011 officers visited the applicants’ flat usually three or four times a day. One of the visits on 16 June was provoked by the fact that the applicant, having received authorisation to visit a physiotherapist, had not shown up for his appointment. 23. During some of the visits the fourth applicant, then eight years old, was present as well. Usually she was taken by her mother to another room. The third applicant, then twenty-three years old, was working full time during this period. 24. On 21 June 2011 the first applicant was released from house arrest, by a decision of the Sofia Court of Appeal, which noted in particular his grave state of health and the fact that much of the evidence in the investigation against him had already been collected.