CASE OF SVETOSLAV DIMITROV v. BULGARIA
Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
7. In a judgment of 14 September 1995 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year's imprisonment, suspended for a period of three years. No appeal was lodged and the judgment became final. 8. In a judgment of 21 May 1997 the Karlovo District Court found the applicant guilty of theft and sentenced him to one year's imprisonment. As the conviction concerned an offence committed during the three-year operational period of the applicant's sentence in case no. 14/95, the court also ordered the applicant to serve the suspended sentence of one year's imprisonment. No appeal was lodged and the judgment became final. 9. In a judgment of 16 February 1999 the Plovdiv District Court found the applicant guilty of theft. Combining the applicant's sentence for this offence with his sentence of one year's imprisonment in case no. 88/96, the court sentenced him to a total of three years and two months' imprisonment for both offences. 10. The court also ruled as follows: “On the basis of Article 25 § 2 of the Criminal Code [the court] deducts [from the sentence to be served] the period, during which [the applicant] was detained, calculated from 7 June 1996 to 27 December 1998”. 11. No appeal was lodged by either the applicant or the public prosecutor's office and the judgment became final. 12. On 7 June 1996 the applicant was arrested and remanded in custody in connection with case no. 50/97. 13. On an unspecified date towards the end of 1998 the applicant appealed against his continued remand in custody in that case. 14. A report from Plovdiv Prison dated 16 December 1998, which detailed the different periods of the applicant's deprivation of liberty up to that point, was presented to the Plovdiv District Court. The said periods were indicated to have been the following: 15. In a decision of 17 December 1998 in case no. 50/97 the Plovdiv District Court revoked the order for the applicant's continued remand in custody in that case and granted him bail. Release was made conditional on the applicant providing a recognizance and subject to there being no other grounds for his continued deprivation of liberty. 16. The applicant deposited the monetary guarantee on 21 December 1998 and was released on 27 December 1998. 17. The applicant obtained a certificate from Plovdiv Prison dated 7 April 1999, which indicated that between 7 June 1996 and 27 December 1998 he had accumulated the equivalent of three years, two months and two days of time served, which included days he had worked towards reducing his sentences. The different periods of the applicant's deprivation of liberty were noted to have been the following: 18. In a letter of 29 April 1999 the Plovdiv district public prosecutor's office informed Hisar police station and Plovdiv Prison that the applicant had to be recalled to prison to serve the outstanding part of his sentence in case no. 50/97. The reasoning of the district public prosecutor's office was that the period during which the applicant had been serving his sentence of imprisonment in case no. 14/95 could not count as a remand in custody in case no. 50/97. 19. On 12 May 1999 the applicant was detained under an order issued by the district public prosecutor's office to serve the outstanding part of his sentence in case no. 50/97. 20. On an unspecified date the applicant appealed to the Plovdiv regional public prosecutor's office against the decision of the district public prosecutor's office. He argued that there was no outstanding prison term for him to serve as a result of the time he had spent remanded in custody in case no. 50/97 combined with his sentence in case no. 88/96, which had both expressly been deducted by the trial court from the time to be effectively served. 21. In a letter of 25 May 1999, the regional public prosecutor's office dismissed the applicant's appeal, stating, inter alia: “There is a sentence in criminal case no. 14/95 ..., which was not combined with the sentence in criminal case no. 50/97.” 22. The applicant appealed further. 23. In a decision of 4 November 1999 the Supreme Cassation Public Prosecutor's Office dismissed the applicant's appeal. In its reasoning, it stated: “Correctly ... the prosecutor from the Plovdiv district public prosecutor's office took into account the period of the remand in custody of the [applicant] in case no. 50/97 ... [as being] only from 7 June 1996 to 1 August 1997, because subsequently he had started to serve a sentence of 'imprisonment'.” 24. In the meantime, on an unspecified date the applicant requested the Plovdiv District Court to interpret, under Article 373 § 1 (1) of the Code of Criminal Procedure of 1974 (“CCP”), its judgment of 16 February 1999 in case no. 50/97. He argued, inter alia, that he had been remanded in custody during the whole period between 7 June 1996 and 27 December 1998. He further maintained that this period of two years, six months and twenty days plus the sentence of one year's imprisonment in case no. 88/96, which the applicant had already served, meant that he had effectively served the whole sentence of three years and two months' imprisonment in case no. 50/97. The public prosecutor's office meanwhile, apparently relying on a report prepared by Plovdiv Prison that the applicant's remand in custody in case no. 50/97 had been suspended on 1 August 1997, considered, inter alia, that the applicant still had to serve a year of the sentence imposed by the court in case no. 50/97. 25. A hearing was held in the presence of all the parties on 26 July 1999. In a decision of the same day the Plovdiv District Court dismissed the applicant's request for interpretation of the judgment of 16 February 1999 as it considered it to be clear. It found, inter alia, that its judgment quite unequivocally indicated that the whole period of the applicant's remand in custody between 7 June 1996 and 27 December 1998 should be deducted from his sentence of three years and two months' imprisonment. In this respect it stated the following: “Accordingly, the will of the court is to deduct THE WHOLE OF THE ABOVE STATED PERIOD [emphasis added by the Plovdiv District Court], i.e. the period during which the measure for securing the [applicant's] appearance before the court in the present case was a 'remand in custody', and not [just] a part thereof.” 26. The Plovdiv District Court also found that it was not competent to rule on the lawfulness of the decision of the public prosecutor's office to seek execution of the part of the sentence it claimed was still outstanding. 27. The applicant was released on 4 February 2000 after serving the remaining part of the sentence which the public prosecutor's office had alleged was outstanding in case no. 50/97. 28. On 11 November 1999 the applicant brought an action under the State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”, which was renamed in 2006) against the public prosecutor's office and the Ministry of Justice. 29. He contended that he had been unlawfully deprived of his liberty since 12 May 1999 because he had had no outstanding prison term to serve. He sought compensation for the non-pecuniary damage he had allegedly suffered as a result. 30. In a judgment of 28 January 2002, the Plovdiv Regional Court established, inter alia, the following: “... the [applicant] was remanded in custody in case no. 50/97 from 7 June 1996 to 1 August 1997. From 1 August 1997 to 10 April 1998 [he] served his sentence in case no. 14/95 ... This sentence cannot, by virtue of Articles 23-25 of the Criminal Code, be combined [with the other sentences] and it was served separately. From 10 April 1998 to 27 December 1998 the [applicant] served his sentence in case no. 88/96. This sentence was combined with the sentence in case no. 50/97 and therefore under Article 25 § 3 of the Criminal Code the [trial] court when delivering its judgment in case no. 50/97 should have deducted the whole period of the sentence [which had been] served. It should [also] have deducted the whole period of the remand in custody from 7 June 1996 to 1 August 1997 on the basis of Article 59 § 1 of the Criminal Code. These two periods amount to two years, two months and twelve days. When the [trial] court wrote in its judgment that it was deducting the time during which [the applicant] had been detained, calculated from 7 June 1996 to 27 December 1998, it in practice wrongly included the time during which he had been serving his sentence [in case no. 14/95] – from 1 August 1997 to 10 April 1998. [Accordingly,] from the sentence of three years and two months [the trial court] deducted three years and two months, being the period between 7 June 1996 and 27 December 1998 and it [thereby] transpired that the [applicant] had no time left to serve. The [trial] court made this mistake in spite [of the fact that] the case file contained information from Plovdiv Prison [detailing] the periods served by the [applicant]. In its decision [of 26 July 1999] dismissing the request to interpret its judgment, the [trial] court stated that its intention had been to deduct the whole period from 7 June 1996 to 27 December 1998, i.e. the period during which the [applicant] was remanded in custody and not [just] a part thereof. This shows that the [trial] court was misguided [in thinking] that [the applicant was remanded in custody in case no. 50/97 throughout] this entire period. Thus, with this judgment, one year of the [applicant's] sentence was pardoned, because only two years and two months should have been deducted. In spite of this, the public prosecutor's office did not appeal against the judgment and it became final ... After [the judgment] became final, it became binding on the public prosecutor's office under Article 372 § 1 of the [CCP] which should have implemented it instead of attempting to correct the [existing] mistake by interpreting the intention of the [trial] court. In the period between 12 May 1999 and 4 February 2000, including from 12 May 1999 to 11 November 1999, the date the present action was brought, the [applicant] unlawfully served a sentence of imprisonment, which if the mistake had not been made he [would] have served lawfully.” 31. In spite of the above conclusion, the Regional Court found that the applicant had failed to prove conclusively that he had suffered any nonpecuniary damage as a result of having been deprived of his liberty between 12 May 1999 and 11 November 1999. It therefore dismissed his action and ordered him to pay the resulting court fees. The applicant appealed against that judgment on an unspecified date. 32. In a judgment of 29 April 2002, the Plovdiv Court of Appeal dismissed the applicant's appeal and upheld the lower court's findings. The reasons for its decision were, inter alia, the following: “Irrespective of the wrongful deduction of the time during which the [applicant] was serving his sentence ... in case no. 14/95, when sentencing the applicant to three years and two months' imprisonment the [trial] court deducted two years, five months and twenty days. This was the period between 7 June 1996 and 27 December 1998. The remaining [period] was eight months and ten days, which the applicant had to serve in view of the delivered final judgment ... in case no. 50/97 of the Plovdiv District Court.” 33. The applicant filed a cassation appeal on an unspecified date. 34. In a final judgment of 20 October 2003 the Supreme Court of Cassation dismissed the applicant's appeal and upheld the lower courts' findings. In its reasoning, it indicated, inter alia, the following: “In the reasons [for its decision of 26 July 1999, the Plovdiv District Court] stated that the intention of the [trial] court had been to deduct from the so determined combined sentence the period during which the [applicant] was remanded in custody. With this clarification it became clearer what the intention of the [trial] court had been. The Plovdiv public prosecutor's office made a justified assessment that the period stated in the judgment to be deducted, namely from 7 June 1996 to 27 December 1998, included a period of one year when the [applicant] served a sentence of 'deprivation of liberty' under the judgment in case no. 14/95 ..., which sentence was not combined with [the sentence] in case no. 50/97 ..., and therefore was to be served separately. After deducting the period during which the [applicant] had served this first sentence the public prosecutor's office rightly established that not all the sentence in case no. 50/97 ... had been served and the [applicant] was recalled to prison on 12 May 1999 to serve the remaining part of the sentence. There is no indication that he was detained in prison for a period longer than [required] for serving the sentence imposed. Accordingly, the contention that he suffered damage as a result is unfounded. The incorrect indication in the judgment of the period of [remand in custody] to be deducted does not change the stated intention [of the trial court] in respect of the length of the sentence of 'imprisonment'.” 35. The Code of Criminal Procedure (1974) did not contain express provisions establishing a procedure to be followed in cases where there was a dispute as to whether a person had effectively served a prison sentence or not. 36. Article 373 § 1 (1) of the CCP provided that the court which had imposed the sentence would rule on all difficulties or uncertainties relating to the interpretation of its judgment. That did not include, however, issues concerning the execution of sentences and, in particular, the lawfulness of a continuing detention. 37. In general, the authority responsible for supervising the lawfulness of the execution of sentences was the competent public prosecutor (Article 375 § 2 of the CCP, section 118 of the Judiciary Act 1994 and section 4(1) of the Execution of Sentences Act). In particular, the public prosecutor was under a duty to order the release of every imprisoned person whom he or she found to have been unlawfully deprived of his or her liberty (section 119(7)(1) of the Judiciary Act of 1994). An appeal to a higher ranking public prosecutor's office lay against the decisions of a public prosecutor. 38. The Code of Criminal Procedure (1974) was replaced in 2006 by a new code of the same name, while the Judiciary Act 1994 was replaced by a new act of the same name in 2007. 39. Prisoners may work during their time in prison, whereby two days of employment are counted as them having served three days of their sentences of imprisonment (sections 65 and 103 of the Execution of Sentences Act). 40. The relevant parts of section 2 of the SMRDA provide: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the public prosecution, the courts ... for: 1. unlawful detention ..., if [the detention order] has been set aside for lack of lawful grounds; ... 6. execution of an imposed sentence in excess of the set term or amount.” 41. Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act or omission (section 4). The aggrieved person must lodge an “action ... against the [entity] ... whose illegal orders, acts or omissions have caused the alleged damage” (section 7). Compensation for damage caused from cases coming within sections 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 (1)). 42. The liability of the investigating and prosecuting authorities may arise only in the exhaustively listed instances set forth in section 2(2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims being made for damage stemming from acts of the investigating or prosecuting authorities which fall outside the list in section 2. 43. The reported case-law under section 2(1) and (6) of the Act is scant. In two judgments the Supreme Court of Cassation held that State liability arose where a detainee was remanded in custody or imprisoned for a period exceeding the final prison term subsequently imposed by the court of last instance (реш. № 1662 от 21 януари 1994 г. по гр. д. № 306/93 г., IV г. о. на ВС и реш. № 1144 от 20 юни 2003 г. по гр. д. № 904/2002 г., IV г. о. на ВКС).