CASE OF KEHAYOV v. BULGARIA
Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award
Christos Rozakis
9. The applicant was born in 1971 and lives in Plovdiv. 10. On 27 December 1997 the applicant was arrested, brought before an investigator and detained on rape charges. A prosecutor confirmed the detention on the same day. Later in the course of the investigation he was also charged with abduction. 11. Between 27 December 1997 and 5 January 1998 the investigator conducted searches in the applicant's apartment, ordered an expert analysis of various traces and objects and questioned the applicant. 12. On 5 January 1998 the applicant appealed to the Plovdiv District Court against the detention order. 13. In accordance with the established practice, the appeal was submitted through the investigation authorities, which transmitted it to the District Court on 15 January 1998. The matter was listed for a hearing on 19 January 1998. 14. On 19 January 1998 the applicant's lawyer requested access to the case file, which was refused by the judge on the same day. 15. At the hearing on 19 January 1998 the applicant's lawyer requested the withdrawal of the president of the bench as she had recently sought his prosecution for alleged defamatory statements. The lawyer was concerned that the judge's hostility towards him might prejudice his client's interests. The request for the judge's withdrawal was granted and the case adjourned. 16. On 21 January 1998 the case was assigned to another bench and listed for hearing on 23 January 1998. 17. On 21 January 1998 the applicant's lawyer reiterated his request for access to the case file. The request was refused on the same day. 18. The applicant's appeal against his detention was eventually heard on 23 January 1998. 19. At the opening of the hearing the judge refused to allow the participation of the applicant's lawyer, considering that his written authority form was invalid. The judge stated that the authority had only been signed by the applicant's wife and not by the applicant, that it bore no indication of the lawyer's fees and that it had not been made on a sheet from the usual lawyers' receipt-books. 20. Thereupon, the applicant, who was also present, handed to the judge another written authorisation, signed by him. The court refused to accept it as the case file number had not been marked on it. As a result, the applicant had to present his case without legal representation. 21. Having heard the applicant, the court dismissed his appeal against detention, stating that he was charged with a serious criminal offence. The court went on to conclude that the fact that the applicant had refused to sign the minutes of his first interrogations and to comment on the charges right away had demonstrated that he lacked critical judgment of his behaviour, which in turn revealed a danger that he would abscond and re-offend. 22. On 13 April 1998 the applicant filed a new appeal against detention, referring to passages in a psychiatrists' report concerning his mental state (see paragraph 41 below). On 13 April 1998 the applicant also filed a request for the replacement of the president of the bench, arguing that his partiality had been demonstrated by his behaviour at the hearing on 23 January 1998. The lawyer did not enclose a power of attorney and did not indicate his address and telephone number. 23. On 27 April 1998 the appeal was forwarded by the prosecution authorities to the District Court, where it was registered on 6 May 1998. A hearing was listed for 11 May 1998. The applicant, but not his lawyer, was summoned. 24. At the hearing on 11 May 1998 the applicant requested an adjournment as his lawyer was not present. The District Court, sitting in a new composition, noted that the applicant's lawyer had not been summoned as he had not indicated his address. It nevertheless decided to adjourn the case in view of the applicant's request. A second hearing was listed for 21 May 1998. 25. On 12 May 1998 the applicant's lawyer requested to be given access to the case file. 26. On 21 May 1998 the Plovdiv District Court heard the prosecutor, the applicant and two lawyers acting for him. The District Court dismissed the lawyers' request for an adjournment to allow consultation of the case file, referring to “the practice” and endorsing the prosecutor's view that it was for the investigator to decide what material should be provided to lawyers. 27. As to the merits, the applicant argued that his health was unstable, that the conditions of detention were unacceptable and that he had to help his parents, one of whom was ill, in their seasonal agricultural work. 28. The District Court dismissed the applicant's appeal against detention noting the psychiatrists' conclusion that the applicant was mentally healthy and that other relatives had been taking care of the applicant's sick mother. The court also had regard to the fact that the charges concerned a serious offence, allegedly committed during the operational period of the applicant's suspended sentence for a previous conviction, and concluded that there was a danger that he might obstruct the course of justice and reoffend. As to the conditions of the applicant's detention, the court stated that a transfer to another detention facility could be recommended. 29. On 8 June 1998, before completing the investigation, the investigator gave the applicant and his lawyer access to all the material in the case. On 11 June 1998 the investigator drew up a report proposing that the applicant be indicted. 30. The indictment on charges of rape and abduction was prepared by a prosecutor and submitted to the District Court on 28 July 1998. 31. At the first hearing, held on 1 October 1998, the District Court examined the applicant's renewed appeal against his detention and dismissed it, noting that he was charged with a serious wilful offence which required his remand in custody and that, in any event, the charges concerned an offence allegedly committed during the operational period of the applicant's previous suspended sentence for another offence. This latter fact left no doubt that there was a danger that the applicant would commit further offences. Finally, the court also endorsed the prosecutor's position that there was a reasonable suspicion against the applicant and that the fact that the charges concerned a violent offence should be taken into account. 32. At the hearing held on 23 November 1998 the applicant submitted another application for release on the grounds that his detention was unreasonably long, that the court failed to conduct a prompt trial and that there was no convincing evidence against him. Ms D., the victim, stated that she feared that if released the applicant may hurt her. She had learned that the applicant's parents had been asking others about her new address. The court ruled against the applicant's release. It noted that under the relevant law remand in custody was required in all cases where the charges concerned serious offences. It further stated that there was a danger that the applicant would obstruct the course of justice in view of the fact that he had been charged with more than one offence and that he had a criminal record. Therefore, the applicant's statements about his good character and family circumstances did not warrant release. 33. On 18 December 1998 the Plovdiv District Court found the applicant guilty of rape, sentenced him to two years' imprisonment and acquitted him of the charges of abduction. On 30 April 1999 the Plovdiv Regional Court upheld the conviction and sentence. 34. The applicant produced copies of correspondence in January and March 1998 from the presidents of the Plovdiv District Court and of the Plovdiv Regional Court to the local Bar Association, apparently in reaction to complaints made by lawyers about an existing practice of barring access to case files in cases concerning appeals against pre-trial detention. 35. The president of the District Court acknowledged that the complaints were well-founded and stated, inter alia, that, “[r]egrettably, District Court judges rely on the hitherto prevailing practice and do not share my opinion ...” 36. The president of the Regional Court informed the Bar Association that the matter had been discussed at length and that the judges had agreed that, contrary to the opinion of the Chief Public Prosecutor's Office and the Regional Prosecutor's Office in Plovdiv, there were no legal grounds for refusing access to case files in appeals against detention proceedings. 37. Between 25 December 1997 and 16 June 1998 the applicant was kept in a lock-up at the Regional Investigation Office in Plovdiv. 38. The cell, where the applicant was detained together with three other people, measured 3 x 3.5m (a surface of 10.5 m²). Since there were no beds, the detainees slept on mattresses on the floor. According to the applicant, the blankets were not washed regularly. The Government disputed that allegation. The cell did not have access to daylight and was equipped with a 100W electric lamp. There was a ventilation system. According to the applicant the ventilation system was only installed “in 1998”. He also submitted that in winter the temperature in his cell did not rise above 1012 Co. According to the Government, the cell was centrally heated and the temperature therein was normal. 39. The applicant and the other detainees were allowed to leave the cell twice a day, at 6.30 a.m. and 6.30 p.m., for toilet purposes and washing. To relieve themselves outside the time earmarked for toilet visits, the detainees had to use a bucket. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities. They were provided with detergents. Once per week the buckets were disinfected chemically. No possibility for spending time in the open or physical exercise was provided. The detainees could also leave the cell when they received visits or were brought for questioning or taken to court. They showered once per week in winter and twice per week in summer. Apparently hot water was available. 40. Food was provided three times per day in the cell. It was served in pots or mugs which the detainees had to wash after every meal and which were collected and disinfected periodically. For security reasons, no forks or knives were provided. According to the applicant, the food was of bad quality. The Government stated that meat was available at least once per day. 41. In April 1998 psychiatry experts who had examined the applicant with a view to verifying his legal capacity to stand trial submitted their report. They noted that a year or two earlier the applicant had undergone periods of depression and violent or inadequate behaviour. He had been admitted for a day to a psychiatric hospital on suspicion of suffering from paranoid schizophrenia. However, the experts concluded that the applicant's mental condition was sound. 42. On 16 June 1998 the applicant was transferred to the Plovdiv prison where the conditions were better. 43. The CPT visited Bulgaria in 1995 and again in 1999 and 2003. The Plovdiv Investigation Service detention facility was visited in 1999 and 2003. All reports included general observations about problems in all Investigation Service facilities. 44. In this report the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a toilet and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to 5-10 minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained. 45. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery - not even a spoon was provided. 46. The CPT also noted that family visits were only possible with permission and that as a result detainees' contact with the outside world was very limited. There was no radio or television. 47. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation's assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country's difficult financial circumstances. 48. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for 30 minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency. 49. The CPT noted that new rules, providing for better conditions, had been enacted but had not yet resulted in significant improvements. 50. In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention in Investigation Service premises had remained generally the same as those observed during the CPT's 1995 visit, including as regards hygiene, overcrowding and outof-cell activities. In some places the situation had even deteriorated. 51. In the Plovdiv Investigation Service detention facility, as well as in two other places, detainees “still had to eat with their fingers, not having been provided with appropriate cutlery”. 52. In the same detention facility medical supervision was provided by a medical doctor on the premises. 53. The CPT noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded. 54. In Plovdiv, only a third of the cells had benefited from a refurbishment which involved making windows in the cell doors, improving the artificial lighting and installing wash basins in the cells. However, the majority of the cells remained in the same inadequate condition as in 1999. The sanitary facilities were not in a satisfactory state of repair. 55. Despite the CPT's recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”. 56. Article 69 § 2 of the Code of Criminal Procedure provides that a power of attorney shall be prepared in writing and signed by the defendant and his legal counsel. 57. The relevant provisions of the Code of Criminal Procedure concerning the powers and functions of investigators and prosecutors are summarised in the Court's judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, §§ 25-29, ECHR 1999-II).