CASE OF LOLOVA-KARADZHOVA v. BULGARIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law;Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1947 and lives in Sofia. 6. In 2004 a real estate agent brought a private prosecution against the applicant for insult and defamation punishable by a fine and public reprimand. According to the complaint, in a newspaper announcement the applicant, describing herself as “the deceived citizen”, warned the public that the real estate agent would buy their real estate at very low prices and then would resell it for much larger amounts, making a very large profit for herself. 7. The Asenovgrad District Court postponed hearings scheduled for 20 September and 11 November 2004 because the applicant had submitted medical certificates and had expressed the wish to participate in the proceedings in person. 8. At hearings conducted on 10 January and 10 March 2005 the applicant was not present but was represented by counsel. 9. At a hearing on 27 May 2005 neither the applicant nor her lawyer appeared. The applicant had submitted a medical certificate and had requested postponement. The District Court noted that the applicant’s presence was not mandatory, but postponed the hearing as her lawyer was also absent. It imposed a fine of 500 Bulgarian levs (BGN) on the applicant’s lawyer. The latter appealed to the Plovdiv Regional Court, arguing that she had also been ill, and submitted a medical certificate. On 3 June 2005 the District Court, applying the procedure of Article 347 of the 1974 Code of Criminal Procedure, revoked its own decision, stating that the applicant’s lawyer had given valid reasons for her absence. 10. At a hearing on 27 June 2005 the applicant appeared, but stated that she would make submissions at the final pleading stage. 11. The applicant requested postponement of the hearings scheduled for 15 December 2005, 27 February, 18 May and 19 June 2006, stating that she wanted to address the court but was ill, as was documented by medical certificates she had submitted. The District Court granted her requests. 12. On an unspecified date in September 2006 the applicant submitted to the District Court another medical certificate prescribing her home treatment for hypertension from 15 to 20 September 2006, and requested postponement. 13. At a hearing on 18 September 2006, held in the applicant’s absence but in the presence of her lawyer, the District Court noted the applicant’s statement that she wanted to make submissions at the final stage of the pleadings and found that her hypertension was not an obstacle in this respect. It further noted that the applicant had submitted medical certificates on a number of occasions, thus causing delays in the proceedings. Relying on the Convention, the District Court observed that it was necessary to complete the proceedings within a reasonable time and held that the applicant should therefore be brought before it for the next hearing with the assistance of the police. It did not specify any legal ground for this order. It scheduled the next hearing for 19 October 2006 at 3 p.m. Since the applicant’s lawyer was present at the hearing, the applicant was considered duly informed of the order. 14. Around 10 a.m. on 18 October 2006 the applicant was detained by the police and taken to Sofia Prison, where she remained until the next morning. The applicant contends that the conditions there were humiliating and that she had to use the same toilet as male detainees. 15. In the morning of 19 October 2006 the applicant was escorted by train and car from Sofia to Asenovgrad (160 km), attended the hearing at 3 p.m. and made submissions, after which she was released. In a judgment of the same date the District Court acquitted her, finding that her newspaper announcement had been neither insulting nor defamatory. The plaintiff requested judicial review of the judgment but on 4 December 2006 her appeal was rejected for procedural flaws. 16. Pursuant to Article 269 (1) of the 2006 Code of Criminal Procedure (“the 2006 CCP”), the attendance of the accused person at the trial is mandatory where the charges concern offences punishable by more than five years’ imprisonment. In all other cases, the court may order the accused person to appear if this is necessary for establishing the truth (Article 269 (2) of the 2006 CCP). 17. An accused person may be taken into custody in order to secure his attendance for questioning if he has failed to appear without valid reasons, provided that his attendance is mandatory or is deemed necessary by the competent authority (Article 71(1) of the 2006 CCP). The accused may be taken into custody without prior notice if he has absconded or has no permanent address (Article 71(2) of the 2006 CCP). 18. Orders under Articles 269(2) and 71 of the 2006 CCP are not amenable to appeal before a higher court. 19. Pursuant to Article 347 of the 1974 Code of Criminal Procedure, in force until 29 April 2006, the court could revoke its own procedural order if judicial review had been requested. This provision was superseded by Article 344 of the 2006 CCP, in force since 29 April 2006, which repeats its text almost verbatim. 20. The 1988 State and Municipalities Responsibility for Damage Act (the “SMRDA”) provides for compensation in certain cases of deprivation of liberty ordered by a court or by investigating or prosecuting authorities, where the relevant decision or order has been set aside “for lack of lawful grounds” under domestic law. Deprivation of liberty aiming at securing the accused’s attendance at a hearing is not among those cases. 21. The relevant domestic law and practice concerning State liability for damage in connection with conditions of detention have been summarised in the Court’s judgment in the case of Slavcho Kostov v. Bulgaria (no. 28674/03, § 19-22, 27 November 2008).