CASE OF DZHABAROV AND OTHERS v. BULGARIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev
6. Mr Dzhabarov was born in 1975 and lives in Burgas. 7. Mr Petkov was born in 1981 and lived in Burgas. He died on 31 May 2014. On 4 September 2014 his mother, who is his only heir, expressed the wish to pursue the application on his behalf. 8. Ms Nikolova was born in 1962 and lives in Sandanski. 9. On 20 December 2007 Mr Dzhabarov, Mr Petkov and a friend of theirs were travelling in a car in Stara Zagora. At about 3 a.m. they were stopped by a police patrol, arrested, and, at approximately 3.10 a.m., taken to a local police station. 10. The police issued an order for Mr Dzhabarov’s detention for twenty-four hours at 12 noon. The order said that he was being detained under section 63(1)(1) of the Ministry of Internal Affairs Act 2006 (“the MIAA” – see paragraph 41 below) in conjunction with Article 195 § 1 (3) and (4) of the Criminal Code 1968, which criminalise burglary and theft committed by using a motor vehicle, technical means or a special technique. 11. The police issued an order for Mr Petkov’s detention for twenty-four hours at 1.30 p.m. That order likewise said that he was being detained under section 63(1)(1) of the MIAA, but in his case in conjunction with 198 § 1 of the Criminal Code 1968, which criminalises robbery. 12. Neither of the two orders mentioned the factual grounds on which they had been issued. 13. The applicants were released at 12 noon on 21 December 2007. 14. In the beginning of 2008 Mr Dzhabarov sought judicial review of the order for his detention. 15. On 16 April 2008 the Stara Zagora Administrative Court quashed the order. It noted that Mr Dzhabarov had been detained under section 63(1)(1) of the MIAA. However, the order had not specified the offence of which he was suspected. That was both a breach of the rules of procedure and an indication that there did not exist a reasonable suspicion that Mr Dzhabarov had committed an offence. The lack of such suspicion was also demonstrated by the absence of any evidence in the police file. Two police reports, drawn up later and suggesting that Mr Dzhabarov had been detained with a view to elucidating whether he was implicated in the robbery of a petrol station and a number of burglaries, could not ex post facto justify his detention; they moreover contained discrepancies and were based on investigative steps carried out after Mr Dzhabarov’s arrest. The court went on to say that the order had been issued more than nine hours after Mr Dzhabarov’s de facto arrest, which was out of line with the object and purpose of the law. The court partly allowed Mr Dzhabarov’s claim for costs, awarding him 200 Bulgarian levs (BGN) (102 euros (EUR)) in lawyers’ fees and BGN 10 (EUR 5) in court fees. 16. The police appealed on points of law. Mr Dzhabarov did not ask the Stara Zagora Administrative Court to vary its ruling in relation to costs, as was possible under the applicable rules of procedure. He did however ask the Supreme Administrative Court to award him the costs incurred in the appeal proceedings. 17. In a judgment of 2 December 2008 (реш. № 13157 от 02.12.2008 г. по адм. д. № 7441/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that the detention order, which had been issued at 12 noon on 20 December 2007, was chiefly tainted by the undisputed lack of contemporaneous evidence that Mr Dzhabarov might have been implicated in an offence. The court did not mention Mr Dzhabarov’s claim in respect of the costs incurred in the appeal proceedings. Mr Dzhabarov did not ask it to supplement its judgment by doing so, as provided under the applicable rules of procedure. 18. In January 2009 Mr Dzhabarov brought a claim under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below) against the Stara Zagora Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had been unlawful and had caused him psychological trauma. He sought BGN 2,000 (EUR 1,023) in non-pecuniary damages and, under the head of pecuniary damages, reimbursement of the remainder of the costs that he had allegedly incurred in the judicial review proceedings: BGN 206 (EUR 105). 19. On 27 November 2009 the Burgas Administrative Court dismissed the claim. It held that Mr Dzhabarov had failed to prove that he had suffered non-pecuniary damage – such as negative emotions, stress or discomfort – as a result of his detention. He had not provided any evidence, in particular medical expert reports, on that point. The statement of Mr Petkov, who had been called by Mr Dzhabarov to testify, only contained information about the events surrounding their arrest and detention. The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section 1(1) of the 1988 Act. 20. Mr Dzhabarov appealed on points of law. He argued, inter alia, that it was logical to presume that a person who had been unlawfully detained had endured mental suffering on account of that, and that he was entitled to compensation because his detention had been in breach of his fundamental rights. 21. In a judgment of 15 June 2010 (реш. № 7954 от 15.06.2010 г. по адм. д. № 753/2010 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that claimants in proceedings under section 1(1) of the 1988 Act bore the burden of making out all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence. The court went on to agree fully with the lower court’s ruling in relation to the claim for costs in the judicial review proceedings. 22. In January 2008 Mr Petkov sought judicial review of the order for his detention. 23. On 10 March 2008 the Stara Zagora Administrative Court quashed the order. It noted that Mr Petkov had been detained under section 63(1)(1) of the MIAA. However, the order for his detention, while formally valid, was out of line with the object and purpose of the law. The police were given the power to detain persons suspected of offences with a view to being able to investigate those offences. That is why the law did not require conclusive evidence of an offence but simply information enabling the police to form a reasonable suspicion in that regard. The police detention log showed that Mr Petkov had been brought to the police station at 3.10 a.m. on 20 December 2007, whereas the three witness statements submitted by the police in the judicial review proceedings in support of their contention that Mr Petkov was suspected of an offence spoke of a robbery of a petrol station committed at 4.50 a.m. This showed that, at the time of Mr Petkov’s arrest, the police did not have a reasonable suspicion of him committing an offence. It was also striking that although Mr Petkov had in fact been arrested at 3.10 a.m. on 20 December 2007, the order for his detention said that his detention had started at 1.30 p.m. that day. The court partly allowed Mr Petkov’s claim for costs, awarding him BGN 200 (EUR 102) in lawyers’ fees and BGN 10 (EUR 5) in court fees. 24. On 30 September 2008 the police appealed on points of law against that judgment. Mr Petkov did not ask the Stara Zagora Administrative Court to vary its ruling in relation to costs, as was possible under the applicable rules of procedure. He did however ask the Supreme Administrative Court to award him the costs incurred in the appeal proceedings. 25. In a bench ruling of 18 November 2009 (опр. от 18.11.2009 г. по адм. д. № 14761/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court declared the appeal inadmissible, finding that the time-limit for the police to lodge an appeal had expired as early as 25 March 2008. The court did not mention Mr Petkov’s claim in respect of the costs incurred in the appeal proceedings. On 3 December 2009 Mr Petkov asked the court to supplement its decision by doing so. In a decision of 7 January 2010 (опр. № 162 от 07.01.2010 г. по адм. д. № 14761/2008 г., ВАС, ІІІ о.), the Supreme Administrative Court refused the request, finding that it had been made out of the applicable seven-day time-limit, which had started to run on 18 November 2009. Mr Petkov appealed, but a five-member panel of the court dismissed the appeal in a decision of 3 February 2010 (опр. № 1399 от 03.02.2010 г. по адм. д. № 1511/2010 г., ВАС, петчл. с-в). 26. In July 2008 Mr Petkov brought a claim under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below) against the Stara Zagora Regional Directorate of the Ministry of Internal Affairs. He alleged, inter alia, that his detention had been unlawful and had caused him psychological trauma. He sought BGN 2,000 (EUR 1,023) in non-pecuniary damages and, under the head of pecuniary damages, reimbursement of the remainder of the costs that he had allegedly incurred in the judicial review proceedings: BGN 206 (EUR 105). 27. On 6 October 2008 the proceedings were stayed pending the determination of the appeal against the Stara Zagora Administrative Court’s judgment of 10 March 2008 (see paragraph 25 above). On 12 April 2010 the proceedings were resumed. 28. On 29 September 2010 the Burgas Administrative Court dismissed the claim. It held that Mr Petkov, who bore the burden of proof in that respect, had failed to show that he had suffered non-pecuniary damage – such as negative emotions, stress or discomfort – as a result of his detention. He had not provided any evidence, in particular medical expert evidence, on that point. The evidence of Mr Dzhabarov and the other person with whom Mr Petkov had been detained, who had been called by Mr Petkov to testify, and the expert evidence on the lawfulness of those conditions adduced in the course of the proceedings, gave information about the material conditions in the detention facility but not about Mr Petkov’s state of mind or subjective perceptions. These could only be established on the basis of medical expert evidence, which had not been provided. The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section 1(1) of the 1988 Act. 29. Mr Petkov appealed on points of law. He argued, inter alia, that it was absurd to hold that the mental suffering flowing from unlawful detention could only be established on the basis of medical expert evidence. It was natural to presume that a person unlawfully deprived of his liberty for more than thirty hours would endure such suffering. 30. In a judgment of 11 April 2011 (реш. № 5046 от 11.04.2011 г. по адм. д. № 13852/2010 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. It held that claimants in proceedings under section 1 of the 1988 Act bore the burden of proving all elements of the tort, including the existence of damage, and that the only evidence that could be used to prove non-pecuniary damage in the form of mental suffering was medical expert evidence, not witness evidence. The statements of the witnesses called by Mr Petkov had established the conditions in the detention facility and the attitude of the police officers towards him, but could not serve as proof of negative changes in his physical, psychological or neurological status. 31. In 2006 Ms Nikolova was working as head of the audit unit of the Blagoevgrad division of the National Revenue Agency. She was in charge of, among others, the towns of Petrich and Sandanski. 32. At about 11 a.m. on Saturday 9 September 2006, Ms Nikolova went to the Sandanski office of the National Revenue Agency, according to her to practise filling in tests on the ethical duties of tax officials. She said that, on her way there, she ran into an acquaintance of hers, Mr B.T., who asked her whether she could run a check on the identities of certain persons that he needed for court papers that he was about to file in connection with the registration of the United Macedonian Organisation Ilinden-PIRIN as a political party. Ms Nikolova decided that there was no legal impediment to that and together with Mr B.T. went inside the Agency’s office. However, their entry set off the alarm and shortly after that three police officers came to the office and found Ms Nikolova and Mr B.T. inside, checking the personal data of certain individuals in the Agency’s computer database. The officers asked the two of them to produce their identification papers and to accompany them to the local police station. 33. Ms Nikolova and Mr B.T., under police escort, arrived at the police station at about 11.15 a.m. Ms Nikolova was asked to draw up a written explanation of her presence in the Agency’s office. In the meantime, two plain-clothes officers arrived at the station; it later transpired that they were officers of the National Security Agency. They interviewed Ms Nikolova without identifying themselves and without explaining the reasons why she was detained. Ms Nikolova was released at about 3.40 p.m. It appears that, in the meantime, at about 1.50 p.m., she was briefly taken by the police back to the office of National Revenue Agency to be present while the police drew up a record, and then returned to the police station. 34. Following this incident, the prosecuting authorities opened criminal proceedings against Ms Nikolova on charges that she had knowingly divulged confidential information to which she had access by virtue of her position as a tax administration official, contrary to Article 248 § 1 of the Criminal Code 1968. However, on 22 May 2007 the Sandanski District Prosecutor’s Office decided to discontinue those proceedings. It noted that while Ms Nikolova had indeed misused her office to divulge confidential information – the personal data of two persons – to which she had access by virtue of her position, Article 248 § 1 required, in addition, that this divulgation give rise to prejudice for the State or a private person. There was no evidence, however, that the applicant’s act had prejudiced the State or those two persons, both of whom, when interviewed, had stated that they had not suffered any negative consequences as a result of the applicant’s divulging their personal data to Mr B.T. 35. Shortly after the incident, Ms Nikolova and Mr B.T. complained to the military prosecuting authorities about the actions of the police officers who had detained them. On 29 November 2007 the Sofia Military Prosecutor’s Office refused to open criminal proceedings pursuant to those complaints. Its decision was upheld by the Appellate Military Prosecutor’s Office on 19 February 2008 and by the Supreme Cassation Prosecutor’s Office on 4 June 2008. 36. In January 2010 Ms Nikolova brought a claim under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below) against the Blagoevgrad Regional Directorate of the Ministry of Internal Affairs and the National Security Agency. She alleged that her detention had been unlawful because it had not been based on a written order as required under section 65(1) of the MIAA. She also alleged that the deprivation of liberty and the pressure to which she had been subjected by the police had caused her stress and humiliation and had aggravated her health, and sought BGN 10,000 (EUR 5,113) in nonpecuniary damages. 37. On 29 July 2010 the Blagoevgrad Administrative Court dismissed the claim. It noted that it was not disputed that between about 11 a.m. and about 3.30 p.m. on 9 September 2006 Ms Nikolova had been detained by officers of the Sandanski police. That was further proved by the register of detainees kept by the Sandanski police station and the statements of the officers concerned. However, a claimant in proceedings under section 1(1) of the 1988 Act (see paragraph 47 below) had to make out all elements of the tort under that provision: a wrongful act or omission by officials, damage, and a sufficient causal link between the two. The claimant bore the full burden of proof in relation to each of those, and the lack of any element meant that the claim should fail. However, Ms Nikolova had not categorically shown that she had suffered non-pecuniary damage as a result of her arrest and detention. There was no evidence that the officers concerned had done anything to hurt her dignity. Their testimony, which was internally consistent and matched the rest of the evidence, showed that Ms Nikolova had not been subjected to any physical or psychological abuse. Ms Nikolova’s evidence that one of the officers had acted rudely was contradicted by the evidence of all officers and was vague; it could not therefore be credited. It was not supported by the statement of Mr B.T. either. Ms Nikolova’s assertions in respect of the damage that she had allegedly suffered were in addition very general and could not be upheld. The police had been apprised of a possible offence and had detained her for less than twenty-four hours to elucidate the case, as possible under section 64 of the MIAA (see paragraph 42 below). Had the detention lasted more than twenty-four hours, the outcome of the case would probably have been different. 38. Ms Nikolova appealed on points of law. She argued, inter alia, that the court had not clarified under which point of section 63(1) of the MIAA she had been detained, or commented on the fact that her detention had not been sanctioned by a written order. She also argued, by reference to Article 5 § 5 of the Convention, that the mere fact of unlawful detention gave rise to non-pecuniary damage because it was an infringement of the fundamental right to liberty, guaranteed by, inter alia, Article 5 § 1 of the Convention. Since she had been detained unlawfully, she was entitled to non-pecuniary damages in relation to that. 39. In a judgment of 19 May 2011 (реш. № 7036 от 19.05.2011 г. по адм. д. № 245/2011 г., ВАС, ІІІ о.), the Supreme Administrative Court dismissed the appeal. It fully agreed with all of the lower court’s findings, including that Ms Nikolova had been placed under police detention within the meaning of section 63 of the MIAA, but did not mention Article 5 §§ 1 or 5 of the Convention.