CASE OF ZHELYAZKOV v. BULGARIA
Remainder inadmissible;Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
6. At about 3 p.m. on 30 December 2003 the applicant and his father went to the District Prosecutor’s Office in Tsarevo to obtain a copy of a document. The clerk refused to give it to them. A quarrel ensued. A prosecutor came in and ordered the applicant to leave the premises. A brawl ensued. The police, who had been called in, drew up a procès-verbal saying that, by insulting the prosecutor and trying to hit him, the applicant had committed an offence under the 1963 Decree on Combating Minor Hooliganism (“the 1963 Decree” – see paragraphs 1011 below). The applicant refused to sign the procès-verbal, saying that he would present his objections before a court. 7. About half an hour later the police made an order for the applicant’s detention under section 70(1)(8) of the Ministry of Internal Affairs Act 1997, then in force. The order said that the applicant was being detained for committing an offence under the 1963 Decree. 8. At 10 a.m. on 31 December 2003 the applicant was brought before the Tsarevo District Court. He was assisted by two counsel. The court heard the applicant, two witnesses, and the applicant’s counsel. In a decision of the same day it found the applicant guilty of an offence under Article 1 § 2 of the Decree for insulting and trying to hit the prosecutor, and sentenced him to fifteen days’ detention in the premises of the Ministry of Internal Affairs. The court went on to order, by reference to Article 8 § 2 of the Decree (see paragraph 12 below), that during his detention the applicant was to carry out socially useful work adapted to his health, age and professional skills; he was to take part in public works on the territory of the Tsarevo Municipality. The decision was final and immediately enforceable. 9. The applicant was released at 11 a.m. on 14 January 2004. It is unclear what work exactly was carried out by him during his detention. 10. Decree No. 904 of 28 December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It was published in the State Gazette on 31 December 1963, as required under section 37(1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same force as an Act of Parliament (опр. № 9959 от 7 ноември 2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10 декември 2004 г. по адм. д. № 9761/2004 г., ВАС, петчленен св; опр. № 14673 от 3 декември 2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; опр. № 12764 от 1 ноември 2010 г. по адм. д. № 13284/2010 г., ВАС, I о.). 11. Article 1 § 2 of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords, insults or other offensive words in a public place and in front of many people, in an offensive attitude towards other citizens or public officials, or in a quarrel, fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism. Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days’ detention in the premises of the Ministry of Internal Affairs or a fine (Article 1 § 1). 12. Under Article 8 § 2 of the Decree, the penalty of detention in the premises of the Ministry of Internal Affairs must be accompanied by work determined in accordance with the detainee’s health, age and abilities. That work is not remunerated. 13. Cases under the Decree fall under the jurisdiction of the district courts (Articles 3 and 4). Until May 2011 Article 7 provided that the court’s decision was not subject to appeal. On 4 May 2011 (реш. № 3 от 4 май 2011 г. по к. д. № 19 от 2010 г., обн., ДВ, бр. 38 от 17 май 2011 г.) the Constitutional Court declared that rule unconstitutional. As a result, in November 2011 Article 7 was amended and now provides, in paragraph 2, that the district court’s decision to impose an administrative penalty may be appealed on points of law before the regional court within twenty-four hours. The case must be listed for hearing before the regional court not more than three days after the district court’s decision (paragraph 1, as amended), and the regional court must rule, by means of a final decision, on the day it receives the appeal (paragraph 3, as amended). In the explanatory notes to the amendment bill the Government referred to, inter alia, the need to bring the Decree into line with the Convention and this Court’s caselaw. 14. Under section 25 of the Execution of Punishments Act 1969, persons serving a custodial sentence following their conviction of a criminal offence were entitled to receive at least thirty per cent of the remuneration due for their work. 15. Section 78(1) of the Execution of Punishments and PreTrial Detention Act 2009, which superseded the 1969 Act in June 2009, provides that persons serving a custodial sentence following their conviction of a criminal offence are entitled to receive at least thirty per cent of the remuneration due for all work carried out by them except voluntary unpaid work and regular shifts to maintain order and hygiene. 16. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by those rules in legislation and policies. 17. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted on 12 February 1987. 18. Rule 76.1 provides that “[t]here shall be a system of equitable remuneration of the work of prisoners”. 19. The commentary in the Explanatory memorandum to the Rules says: “This rule recognises the importance and value of an adequate and equitable payment system in the context of treatment regimes. No provision to encourage the development of wages systems towards levels that apply for similar work in the community has been made in the rule itself as that would have been premature at this stage. However, a great deal of progress has been made in that respect in a number of countries and that is to be encouraged. ...” 20. On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 21. Rule 26.10 provides that “[i]n all instances there shall be equitable remuneration of the work of prisoners”. 22. The commentary on the 2006 Rules (drawn up by the European Committee on Crime Problems) says that the level of remuneration of prisoners should be guided by the principle of mirroring conditions for workers on the outside, and that ideally all prisoners should be paid wages that are related to those in society as a whole.