CASE OF SLAVCHO KOSTOV v. BULGARIA
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
6. The applicant was detained on 16 September 1995 and was charged with aiding and abetting another individual to commit murder and attempted murder on the previous day, the 15th – the applicant had been in the car of the victim when the latter and his wife had been shot and was a close relative of the alleged murderer. The applicant was placed in pre-trial detention on the same day. 7. The applicant was released on 12 October 1995 and a restriction was placed on him not to leave his place of residence without the authorisation of the public prosecutor’s office. 8. On 16 December 1996 the Sliven regional public prosecutor’s office terminated the criminal proceedings against the applicant as unproven and lifted the restriction on his movement. 9. Between 16 September and 12 October 1995 the applicant was detained at the Sliven Regional Investigation Service detention facility. 10. The applicant contended that at this detention facility there had been (a) overcrowding, as he had been accommodated in a cell with another five detainees, (b) insufficient oxygen in the cell, (c) inadequate hygiene, as he had had no access to a toilet and all six detainees had had to drink from the same water container, (d) insufficient food, (e) no possibility for visits by friends or relatives, and (f) no access to newspapers or other media. He also claimed that as a result of having been detained in such conditions his selfesteem had declined and he had endured physical and psychological suffering. 11. On an unspecified date in 1999 the applicant initiated a civil action for damages against the Chief Public Prosecutor’s Office under section 2 of the State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”: renamed in 2006). He claimed that he had been charged with an offence which he had not committed, that on 16 September 1995 he had been detained for almost a month and that a restriction had then been placed on his movement for more than a year. The applicant also argued that he had had to endure physical and mental pain and suffering as a result of the unlawful criminal proceedings against him and the inadequate conditions of detention at the Sliven Regional Investigation Service detention facility. In addition, because of the prolonged restriction on his movement he claimed to have suffered loss of income as he had been unable to accept a job in Greece. The applicant sought 50,000 Bulgarian levs (BGN: 25,641 euros (EUR)) in compensation of which BGN 35,000 (EUR 17,948) represented compensation for pecuniary damage and BGN 15,000 (EUR 7,692) represented compensation for nonpecuniary damage. 12. In a judgment of 23 April 2001 the Sliven Regional Court found in favour of the applicant and ordered the Chief Public Prosecutor’s Office to pay him BGN 5,000 (EUR 2,564). This represented compensation for the non-pecuniary damage suffered by the applicant as a result of the unlawful acts and actions of the public prosecutor’s office during the period from 16 September 1995 to 16 December 1996 in charging him with aiding and abetting another individual to commit murder, holding him in pre-trial detention and then replacing it with a restriction not to leave his place of residence without the authorisation of the public prosecutor’s office. In reaching its decision, the Regional Court took into account the fact that the criminal proceedings and the associated restrictions imposed on the liberty and movement of the applicant had lasted for more than a year, which it found had caused him suffering and had brought about the break-up of his relationship with his fiancée. The court further found that he had been detained in “extremely harsh conditions” at the Sliven Regional Investigation Service detention facility, which it considered to have caused him physical and mental pain and suffering and to have had a negative effect on his dignity as he had been held in an overcrowded cell with another six individuals, without access to a toilet, bathing or any other facilities in order to maintain even basic hygiene, had been given food only once a day, had not been allowed visits by friends or relatives and had had no access to newspapers or any other media. The Regional Court also took note of a report by the paramedic at the said detention facility that the applicant had been healthy at the time of his arrival there, but had then developed an inflammation of the sciatic nerve accompanied by pain in the pelvis area and down the left leg. Lastly, the court found that the applicant’s reputation had been damaged as a result of having been unlawfully held in pre-trial detention and having had criminal proceedings initiated against him. The Regional Court dismissed as unsubstantiated the remainder of the claims in respect of pecuniary and non-pecuniary damage and, by applying section 10 (2) of the SMRDA, ordered the applicant to pay court fees of four percent on the dismissed part of his claim, which amounted to BGN 1,800 (EUR 923). 13. Both the applicant and the Sliven regional public prosecutor’s office appealed against the judgment. 14. In a judgment of 16 November 2001 the Burgas Court of Appeal reached similar conclusions on the facts of the case. It also found that the applicant had had a good reputation and no criminal record and that the criminal proceedings against him, his arrest and detention in inadequate conditions and the restriction on his movement had damaged his reputation and had caused him pain and suffering. Nevertheless, the Court of Appeal considered the amount awarded to be excessive and lowered the compensation for non-pecuniary damage to BGN 3,000 (EUR 1,538). It upheld the remainder of the judgment of the Regional Court and ordered the applicant to pay an additional BGN 80 (EUR 41) in court fees, proportionate to the additionally dismissed part of his claim. 15. The parties’ ensuing cassation appeals were both dismissed by the Supreme Court of Cassation on 18 April 2003. 16. Criminal proceedings were initiated against the applicant on an unspecified date in 2004 for having committed perjury in the proceedings regarding the murder of 15 September 1995. 17. On an unspecified date the applicant concluded a plea bargain agreement with the Sliven district public prosecutor’s office whereby he pleaded guilty to perjury and was sentenced to ten months’ imprisonment, which was suspended for three years. The plea bargain agreement was approved by the Sliven District Court on 10 February 2005. 18. The relevant provisions of the CCP and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 19. The SMRDA provided at the relevant time that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for, inter alia, unlawful pretrial detention, if the detention order had been set aside for lack of lawful grounds, or for being charged with an offence if the criminal investigation had been terminated because the suspect was the perpetrator (sections 1-2). 20. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SMRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 5660, 8 April 2004). 21. The system of court fees, which existed at the relevant time, in proceedings under the SMRDA and the practice of the domestic courts has been summarised in the cases of Stankov v. Bulgaria (no. 68490/01, §§ 19 21, ECHR 2007...) and Mihalkov v. Bulgaria (no. 67719/01, §§ 1923, 10 April 2008). 22. Following the judgment in the case of Stankov (cited above) the system of court fees was changed as of 30 May 2008. At present, a flat rate court fee is due for filing a claim under the SMRDA, which varies depending on the type of the claimant and is either BGN 10 or BGN 25 (EUR 5.12 or EUR 12.82). The court fee due for each subsequent appeal or request for reopening is half the aforestated amounts – BGN 5 or BGN 12.50 (EUR 2.56 or EUR 24.38: section 9a of the SMRDA and sections 2a and 18 (3) of Tariff of state fees collected by the courts under the Code of Civil Procedure). 23. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. 24. The Sliven Regional Investigation Service detention facility was visited in 2006. 25. A summary of the relevant findings and observations of the CPT, prior to its 2006 visit report, is contained in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 44-56, 10 August 2006) and Malechkov v. Bulgaria (no. 57830/00, §§ 38-50, 28 June 2007). 26. In several of its reports the CPT has recommended that States apply a minimum standard of 4 sq m per detainee in multiple-occupancy cells (see, for example, the CPT reports on the 2002 visit to Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111, and the 2006 visit to Bulgaria, CPT/Inf (2008) 11, paragraphs 55, 77 and 90). 27. The CPT found that cells were often overcrowded – up to four persons in cells measuring 7 sq m. The cramped conditions were aggravated by the lack of direct access to natural light, poor artificial lighting and the absence of a differentiated day/night system, and inadequate ventilation. Further, the cells were in a poor state of hygiene and repair: the beds were dilapidated and in a bad state of repair, giving a very uneven base for the thin, tattered mattresses, and the blankets which were filthy. Similar to the reports cited above (see paragraph 26 above), the CPT recommended that cell occupancy rates be reduced to an acceptable level by applying a minimum standard of 4 sq m per detainee in multiple-occupancy cells. 28. The CPT further found that detainees were usually taken to the toilet three times during the day and kept plastic bottles or buckets in the cells for other occasions. They could take a shower once a week (sometimes, twice a week in the summer months). As regards personal hygiene items, only soap was occasionally provided. 29. Bed linen was usually provided by detainees’ families. There were no laundry facilities and detainees washed their clothes and bed linen themselves when they were taken to have a shower. Further, no cleaning materials were made available. 30. Food was provided three times a day, but the daily food allowance was less than BGN 1.50 (EUR 0.77) per person and detainees complained about the quantity and/or quality of the food. 31. There was no outdoor exercise yard due to the fact that the detention facility was located on one of the top floors in the building of the police station. Thus, the CPT found that detainees continued to spend months on end locked up in their cells twenty four hours a day. Inside the cells, in addition to books and newspapers, detainees were in principle allowed to have battery-operated radio and TV sets. 32. As to the arrangements for the provision of health care to detainees, the CPT found that there could be gaps of several days (up to a week) between admission and the initial medical examination by a doctor. Further, the general medical screening was cursory and did not identify detained persons’ health needs. Access to outside hospital facilities was in principle not a problem, but authorisation was needed from a prosecutor for such a transfer, and medical recommendations could be slowed down or overridden by legal considerations.