CASE OF STAYKOV v. BULGARIA
Violation of Art. 3;No violation of Art. 5-3 and 6-1 (loss of victim status);Violation of Art. 5-4;No violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
10. On 23 December 1991 the applicant was arrested and charged with murdering in a cruel manner for gain the eightyoneyears' old adoptive mother of a friend of his, Mr H. 11. On 18 March 1992 he was indicted. The Varna Regional Court held hearings in his case on 20 May, 19 June and 10 July 1992, but on 10 July 1992 discontinued the trial and remitted the case back to the prosecution authorities for the rectification of a breach of the rules of procedure. 12. Following an additional investigation, on 25 January 1993 the applicant was indicted again. A hearing listed before the Varna Regional Court for 28 February 1993 was adjourned because the applicant's counsel were absent. After holding hearings on 22 March, 26 April and 14 May 1993, in a judgment of 14 May 1993 that court found the applicant guilty and sentenced him to eighteen years' imprisonment. 13. Both the applicant and the prosecution appealed to the former Supreme Court. A hearing listed for 4 August 1993 was adjourned because the applicant's counsel were on leave, and took place on 20 October 1993. In a judgment of 10 November 1993 the former Supreme Court quashed the applicant's conviction and sentence and remitted the case for further investigation, holding that the Varna Regional Court had failed to substantiate its findings of fact and had erred in assessing the evidence. 14. On 6 January 1994 the case was transmitted to the investigator. He charged Mr H. with aiding and abetting the applicant. After that the case was twice forwarded to the prosecution and twice referred back for further investigation. That investigation was finished on 20 June 1997 and on 15 July 1997 the applicant and Mr H. were indicted. 15. Two hearings listed before the Varna Regional Court for 5 November 1997 and 9 February 1998 did not take place. On 9 April 1998 the court granted the applicant's request for the recusal of all prosecutors and judges of that court and sent the case to the Burgas Regional Court. The judge to whom the case was assigned there considered that it should be examined by the Varna Regional Court and sought a ruling on the matter by the Supreme Court of Cassation. In May 1998 the Supreme Court of Cassation held that the case was to be examined by the Varna Regional Court. 16. The proceedings before the Varna Regional Court then resumed, but at a hearing held on 6 October 1998 the court referred the case back to the prosecution authorities, finding that there had been procedural breaches which had violated Mr H.'s defence rights. On 19 January 1999 the prosecution authorities in turn referred the case back to the investigator, noting, inter alia, that he had not complied with instructions given as early as November 1996. 17. In January 2001 the prosecution authorities decided to stay the proceedings, as Mr H.'s whereabouts were unknown. Upon the applicant's appeal, their decision was quashed on 11 May 2001 by the Varna Regional Court, which held that the excessive length of the proceedings violated the applicant's rights and criticised the prosecution for having stayed them. The prosecution's ensuing appeal to the Varna Court of Appeals was dismissed on 26 June 2001. 18. On 9 July 2001 the prosecution authorities referred the case back for further investigation. This investigation was concluded on 15 February 2002 and the case was sent to the prosecution authorities. 19. On 19 March 2002 the prosecution authorities dropped the charges against Mr H., finding that they had not been sufficiently made out. On 16 May 2002 they indicted the applicant. 20. The Varna Regional Court held hearings on 30 September, 2 October and 17 December 2002 and 19 February 2003. In a judgment of 19 February 2003 it acquitted the applicant. 21. Upon the appeal of the prosecution, on 20 June 2003 the Varna Court of Appeals quashed the lower court's judgment and decided the case on the merits. It found the applicant guilty and sentenced him to fifteen years' imprisonment. 22. The applicant appealed to the Supreme Court of Cassation. After holding a hearing on 17 February 2004, on 30 March 2004 that court quashed the lower court's judgment and remitted the case. 23. The Varna Court of Appeals examined the case anew. In a judgment of 25 June 2004 it once again found the applicant guilty and sentenced him to fifteen years' imprisonment. In determining the sentence it noted, inter alia, that the criminal proceedings against him had been “particularly lengthy”. 24. The applicant again appealed to the Supreme Court of Cassation. After holding a hearing on 7 March 2005, in a final judgment of 18 April 2005 that court quashed the lower court's judgment, examined the case on the merits and acquitted the applicant, finding that the charges against him had not been proved beyond a reasonable doubt. 25. For the examination of the case the authorities interviewed repeatedly about twenty witnesses, appointed several experts and gathered other evidence. The case file reached nine volumes. 26. On 23 December 1991 the applicant was arrested and remanded in custody on the basis of an investigator's order of 13 December 1991, which stated that he had been charged with an offence punishable with up to twenty years' imprisonment or death, that he did not have a fixed place of abode and that his whereabouts were unknown. There was also a risk that he could endanger the lives of witnesses. 27. On 23 March 1993 the Varna Regional Court denied an application for release by the applicant, holding that detention was mandatory in the case of persons charged with an offence punishable by more than ten years' imprisonment. An exception was only possible if there was no risk, i.e., it was physically unfeasible for the applicant to abscond or reoffend, which was not the case. A further application for release made on 26 April 1993 was likewise denied by the court, which noted that it had already ruled on such an application a month earlier and there had been no change in the circumstances since then. It also stated that the applicant's arguments concerning the lack of evidence against him went to the merits of the criminal case, not to the issue whether or not he should be released. 28. On 14 May 1993 the applicant was convicted and sentenced to a prison term. That conviction and sentence were quashed on 10 November 1993 (see paragraphs 12 and 13 above). 29. After 10 November 1993 the applicant remained in custody. On 21 September 1994 the Varna Regional Prosecutor's Office refused his application for release, reasoning that, in view of the applicant's threats against certain witnesses and a prosecutor, there was a risk that he could hinder the investigation by destroying evidence and suborning and intimidating witnesses. 30. On an unspecified date in the meantime the applicant made offensive remarks against a prosecutor in a complaint concerning the handling of his case. On 2 September 1994 he was convicted on account of these remarks and sentenced to six months' imprisonment. On an unspecified date he was convicted on other charges concerning events before December 1991 and sentenced to a term of imprisonment. In accordance with the rules on sentencing, he was ordered to serve a nine months' prison term as a result of these convictions and sentences. It appears from the documents in the case file that the applicant did so between 18 November 1994 and 18 August 1995. After that his pretrial detention on the murder charges continued. 31. On 14 November 1995 the Varna Regional Prosecutor's Office denied an application for release by the applicant. It reasoned that in view of the seriousness of the charges against him pre-trial detention was mandatory by virtue of Article 152 § 1 of the Code of Criminal Procedure of 1974 (“the CCP”). It also stated that it was impossible to use the exception provided for by paragraph 2 of that Article, as its application was excluded by paragraph 3 thereof owing to the fact that there were two other sets of criminal proceedings pending against the applicant (see paragraphs 4851 below). 32. The applicant submitted a number of other applications for release, some of which were denied by the prosecution authorities and some of which were apparently not replied to. Some of the decisions contained no reasoning, while others stated that his remand in custody was mandatory in view of the seriousness of the charges against him. 33. The applicant also submitted a number of applications for release to the competent court. He filed such applications on 7 June and 7 November 1997, and on 9 February, 29 April and 10 August 1998. He advanced various arguments regarding the weak case against him, the lack of a risk of fleeing and his weakening health. Most of the applications were dismissed with reference to Article 152 §§ 1 and 2 of the CCP. Thus, in a decision of 24 February 1998 the Varna Regional Court stated the applicant had been charged with a serious intentional offence and his detention was accordingly mandatory under Article 152 § 1 of the CCP. There were no grounds to apply the exception provided for by paragraph 2 of that Article, as a hearing had been listed in the trial against him, whereas his position with regard to the charges revealed a genuine risk that he might abscond or impede the course of justice. 34. On 9 December 1998 the Varna Regional Court ordered the applicant's release on bail, holding that after seven years of detention and several rounds of investigation there was no risk of him jeopardising the investigation. There was furthermore no indication that he could flee or reoffend. The court also said that the length of the applicant's detention had exceeded a “reasonable time” within the meaning of the Convention. It set the bail at 2,000,000 old Bulgarian levs (BGL), without providing reasons as to the amount. Its order was not subject to appeal (see paragraph 54 below). 35. The applicant was not released immediately as he was unable to secure the amount. Following an unsuccessful attempt to have it reduced by the court, he posted bail and was released on 17 December 1998. 36. The applicant spent his time in custody (23 December 1991 – 17 December 1998) on the premises of the Varna Regional Investigation Service and in the Varna Prison. It appears from the documents in the case file and the parties' submissions that throughout the bulk of this time he was in the Varna Prison, and was kept in the Varna Regional Investigation Service's detention facility during six unspecified periods (probably when the proceedings against him were pending at the pretrial stage), the latest of which ended on 10 June 1997. The parties did not specify the exact periods when the applicant was kept on the Investigation Service premises, despite being requested to do so after the case was declared admissible (see paragraphs 6 and 7 above). 37. At the relevant time, the cells of the Varna Regional Investigation Service's detention facility had central heating and were each – save for two – equipped with an en suite toilet. Natural light came through glass tiles secured by metal bars. According to the applicant, the influx of natural light was limited. The detainees slept on plank beds. The applicant averred that at times he had been detained together with eight other persons in a cell measuring five to three meters. According to him, the ventilation system in the cell only worked for a few hours a day. He also stated that there was no openair exercise area on the premises. He was accordingly not allowed to take walks. Visitors were allowed only once a month. Food was of extremely poor quality. 38. According to the Government, the premises of the Varna Regional Investigation Service's detention facility were relatively new, built in 1982, offered conditions better than those of the Investigation Service's detention facilities in other towns, and were in line with the minimum European standards. The Government did not comment on the number of inmates kept in the applicant's cell. 39. The applicant submitted that in the Varna Prison he was kept in a cell measuring ten square meters, which he shared at times with three or four other inmates. According to him, during the nights they had to relieve themselves in a bucket kept in the cell. In 199293 warm water for bathing was available once a week, whereas later, in 1998, a warm shower was possible only once a month with the result that he often had to take showers with cold water, which had a negative impact on his health. He was allowed to take walks for approximately forty minutes a day. 40. The Government did not comment on the conditions in the Varna Prison. 41. During his time in custody the applicant was examined by a doctor on unspecified dates, apparently each time he was transferred from the Varna Prison to the Varna Regional Investigation Service's detention facility, and was found to be physically healthy. However, in July 1998 he was diagnosed with tuberculosis, for which he was treated in hospital between 14 July and 12 August 1998. Apparently he continued to receive medication for his illness after he was released from hospital. Reports on the applicant's mental health noted that he suffered from depression. 42. On 2 November 2000 the applicant issued a civil action against the Prosecutor's Office and the Varna Regional Investigation Service in the Sofia City Court. In his statement of claim he described the allegedly excessive length of the criminal proceedings against him and of his detention and pointed to the attendant negative consequences, such as a smear campaign against him in the press, a worsening of his health, the retention of the bail amount and a prohibition to leave the country. He alleged that this breached his rights under Article 5 of the Convention, his right under Article 6 § 1 of the Convention to a trial within a reasonable time, and his right under Article 8 of the Convention to respect for his private life. He claimed 50,000 new Bulgarian levs (BGN) in damages. He also requested the court to order the defendants to return the bail amount and allow him to leave the country. 43. Following instructions by the court to specify his request for relief, in three additional memorials the applicant indicated that he requested BGN 20,000 for the breach of his right to a trial within a reasonable time, BGN 15,000 for the injury to his reputation resulting from the impression, stemming from the length of the proceedings, that he was guilty of the offence alleged against him, and BGN 15,000 for the impossibility to leave the country during the pendency of the proceedings. He also stated that his claim was under section 1 of the State Responsibility for Damage Act of 1988 (see paragraph 56 below). 44. In a judgment of 29 July 2002 the Sofia City Court dismissed the applicant's action, holding that the defendants, being part of the judicial branch, did not carry out “administrative action” within the meaning of section 1 of the abovementioned Act in performing their duties relating to the processing of the criminal case against the applicant. They could hence not be found liable for a breach of that provision. On the other hand, the applicant did not plead a breach of section 2 of the Act and there was no indication that at that point in time the facts alleged by him fell within its purview. Noting that the applicant had been exempted from paying the court fee up front, the court, acting in pursuance of section 10(2) of the State Responsibility for Damage Act of 1988 (see paragraph 59 below), ordered him to pay BGN 2,000 in fees. 45. Upon the appeal of the applicant, on 24 January 2003 the Sofia Court of Appeals affirmed with almost identical reasoning. 46. The applicant appealed on points of law to the Supreme Court of Cassation. In a final judgment of 23 December 2005 that court fully quashed the lower courts' judgments and awarded the applicant BGN 5,000 (2,556.46 euros (EUR)), plus interest as from 2 November 2000, the date of the filing of the action. It also ordered the defendants to pay the applicant's legal costs, amounting to BGN 1,340 (EUR 685.13). The court described in some detail the unfolding of the criminal proceedings against the applicant and his pre-trial detention, and found that the applicant's reliance on the provisions of the Convention was wellfounded. It stated that the length of the pre-trial detention had breached the law. It also found that at the material time and until 2003 Bulgarian law did not set any timelimits for finishing the pre-trial phase of criminal proceedings. The provision that controlled this was therefore Article 6 § 1 of the Convention, which was part of domestic law. The period between 1991 and 2003 – throughout which the criminal charges against the applicant had not been determined and during which the applicant could not use any mechanism to speed up the proceedings – was significant and exceeded the reasonable time for examining the case. In such situations, where national law did not provide a possibility to vindicate infringed rights, they could be vindicated under international treaties which had been ratified by Bulgaria and had become part of its domestic law. For instance, Article 13 of the Convention, thus applicable, required an effective remedy against any alleged violation of that Convention. The inaction of the investigation and the prosecution authorities and the courts had infringed the applicant's right to a trial within a reasonable time and had caused him nonpecuniary damage. Taking into account that the applicant had sustained non-pecuniary damage on account of a pre-trial detention exceeding the time-limit provided by law and the failure to bring the criminal proceedings against him to an end between 1995 and 2003, and ruling in equity, the court considered that the damage could be made good by an award of BGN 5,000. It did not order the applicant to pay any court fees or costs for the remainder of his claim. 47. By Article 116(1), (7) and (9) of the Criminal Code of 1968, as worded at the time when the applicant was arrested and charged, premeditated murder committed in a particularly atrocious fashion and for gain was punishable by fifteen to twenty years' imprisonment or death. In 1995 life imprisonment also became one of the possible penalties. In 1998 the death penalty was abolished and replaced by life imprisonment, with or without parole. 48. Paragraphs 1 and 2 of Article 152 of the CCP, as worded at the relevant time and until June 1995, provided as follows: “1. Detention pending trial shall be ordered [in cases where the charges concern] an offence punishable by ten or more years' imprisonment or death. 2. In the cases under the preceding paragraph [detention pending trial] shall not be imposed if there is no danger of the accused evading justice or committing further offences.” Between June 1995 and August 1997 these provisions provided: “1. Detention pending trial shall be ordered [in cases where the charges concern] a serious intentional offence. 2. In cases falling under paragraph 1 [detention pending trial] may be dispensed with if there is no danger of the accused's absconding, obstructing the investigation, or committing further offences.” 49. At the relevant time Article 93 § 7 of the Criminal Code of 1968 defined a “serious” offence as one punishable by more than five years' imprisonment, life imprisonment, or death. 50. The former Supreme Court's prevailing practice at the material time was to construe Article 152 § 1 of the CCP as requiring that a person charged with a serious intentional offence be remanded in custody. An exception was only possible, in accordance with paragraph 2 thereof, where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.). 51. Paragraph 3 of Article 152 of the CCP, as in force between June 1995 and August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused, or where he or she was a repeat offender. 52. Accused whose release on bail had been ordered have to remain in detention until they deposit the requisite amount (Article 150 § 5 of the CCP). 53. On the basis of the relevant law before 1 January 2000 and the Supreme Court's practice outlined above, when ruling on the applications for release of persons charged with a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the reasonable suspicion against them and the existence of a risk of their absconding or committing other offences. In their view, every person accused of a such an offence had to be remanded in custody unless exceptional circumstances dictated otherwise (see the Supreme Court's decisions cited above and the decisions of the domestic authorities criticised by the Court in, inter alia, the cases of Nikolova v. Bulgaria [GC], no. 31195/96, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001; and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004). 54. At the relevant time the firstinstance court's decision pursuant to an application for release was not subject to appeal (Article 152a § 3 of the CCP, as in force between August 1997 and 1 January 2000). 55. New Article 152b § 12 of the CCP, in force since 1 January 2000, as well as Article 65 § 11 of the Code of Criminal Procedure of 2005, which superseded it on 29 April 2006, provide that persons who remain in custody because they are unable to post bail are entitled to judicial review of their detention. In a binding interpretative decision of 25 June 2002 the Supreme Court of Cassation, construing the provisions of the CCP relating to pretrial detention, as amended on 1 January 2000, stated, inter alia, that in examining applications for release from pretrial detention the courts had to review, among other things, the lawfulness of detention resulting from the accused's failure to post bail (тълкувателно решение № 1 от 25 юни 2002 г. по н.д. 1/2002 г., ОСНК на ВКС). 56. Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), as in force at the relevant time, read as follows: “The State shall be liable for the damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the performance of administrative action.” 57. Section 2 of the Act, which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant: “The State shall be liable for damage caused to individuals by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds; 2. accusation of a crime, if the accused has been acquitted...” 58. In a binding interpretative decision of 22 April 2005 (тълкувателно решение № 3 от 22 април 2005 г. по гр.д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation held, inter alia, that where the accused has been acquitted, the State is liable not only for the bringing of criminal charges, as specified by section 2(2) of the Act, but also for the pretrial detention imposed during the proceedings. The compensation for nonpecuniary damage should encompass the damage suffered on account of both, whereas the compensation for pecuniary damage should be assessed separately. In previous judgments (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) the Supreme Court of Cassation has awarded compensation in such circumstances under section 2(1) of the Act. The view taken appears to have been that in such cases the acquittal retroactively had rendered the pretrial detention unlawful. 59. By section 10(2) of the Act, no court fees or costs are payable by plaintiffs upon the filing of actions under it, but in case the actions are eventually fully or partly dismissed, the court orders them to pay “the court fees and costs due”. The courts have construed this provision as meaning that the plaintiff should pay court fees and costs pro rata the dismissed part of his claims. 60. The CPT visited Bulgaria in 1995 and 1999. While it did not inspect the Varna Regional Investigation Service's detention facility and the Varna Prison, both of its reports include general observations about all Investigation Service's detention facilities, and its 1999 report includes observations on the high incidence of tuberculosis infections in the prisons during the preceding several years. 61. In this report (CPT/Inf (97) 1) the CPT found that most, even if not all, of the Investigation Service's detention facilities were overcrowded. With the exception of one facility where conditions were better, they 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 a bucket kept in the cell; although according to the internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of outofcell activity was provided to the inmates. 62. 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 halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided. 63. The CPT also noted that family visits were only possible with a permission. As a result the detainees' contact with the outside world was very limited. There was no radio or television. 64. The CPT concluded that the Bulgarian authorities had failed in their duty to provide detention conditions 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 agreed that the CPT's assessment was “objective and correctly presented”, but indicated that the possibilities for improvement were limited by the country's difficult financial circumstances. 65. 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 to allow detainees to leave their cells during the day to use a toilet facility, unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully complied with, that cell lighting and ventilation be improved, and that pretrial detainees be as much as possible transferred to prison even before the preliminary investigation was completed. The need to afford detainees the opportunity for outdoor exercise was to be examined as a matter of urgency. 66. In this report (CPT/Inf (2002) 1) the CPT noted that new rules, providing for better conditions, had been enacted, but had not yet resulted in significant improvements. 67. In most places visited in 1999, the conditions of detention on the Investigation Service's premises remained generally the same as those found during the CPT's 1995 visit, including as regards hygiene, overcrowding and outofcell activities. In some places the situation had even worsened. 68. The CPT also observed that in the recent years there had been an increase in the incidence of tuberculosis cases in the Bulgarian prison system. It found that although certain efforts had been made to combat this disease, the steps taken by the authorities to ensure the medical screening of prisoners did not measure up to the relevant international standards. The CPT recommended that the authorities increase their efforts to implement these standards in the field of tuberculosis control (in particular, provide appropriate training and instructions to the prison doctors). During its visit to the Burgas Prison the CPT found that the conditions (in particular, the overcrowding and the poor lighting and ventilation) in the cells accommodating inmates suffering from tuberculosis, coupled with the limited possibilities for outdoor exercise, were conducive to the spread of the disease. Accordingly, it recommended that the authorities reduce the occupancy levels in these cells, improve access to natural light and ventilation, and enable the prisoners to maintain a level of personal hygiene consistent with the requirements of their state of health.