CASE OF ASEN KOSTOV v. BULGARIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1961 and lives in Striama. 6. The applicant was convicted of a number of crimes committed between 1991 and 1998. The cases were given the case numbers 70/1995, 343/1998, 805/2001, 751/2002, 660/2002, 868/2003 and 1732/2002. 7. On 13 October 2003 a plea bargain agreement in case no. 868/2003 was approved by the Plovdiv District Court, under the terms of which the applicant pleaded guilty to robbery and was sentenced to one year’s imprisonment. 8. The applicant started serving that sentence on 28 October 2003. 9. By a decision of 19 December 2003 in case no. 868/2003, the Plovdiv District Court imposed an overall sentence of two years’ imprisonment, which included imprisonment for four of the applicant’s other convictions (cases nos. 343/1998, 805/2001, 751/2002 and 660/2002). 10. Following an appeal lodged by the applicant, by a decision of 10 May 2004 the Plovdiv Regional Court set aside the lower court’s decision. It imposed an overall sentence of one year’s imprisonment solely for the applicant’s convictions in cases nos. 343/1998 and 868/2003. From that prison term, the court deducted the six months which had been served by the applicant following his conviction in case no. 343/1998. It also held that the period served by the applicant following his conviction in case no. 868/2003 was also to be deducted from the overall sentence. The court did not specify when the one-year prison term was to expire. In respect of the convictions in cases nos. 70/1995, 805/2001, 751/2002 and 660/2002 (the applicant had already served the sentence imposed in case no. 70/1995 and the sentences in the remaining three cases were suspended), it concluded that imposing a separate overall sentence would be to the applicant’s benefit but that another regional court was competent in this respect. 11. Following the decision of 10 May 2004 the applicant, relying on Article 425 of the Code Criminal Procedure of 1974, applied for the suspension of his sentence. On 14 May 2004 the regional prosecutor rejected the application, reasoning that an overall sentence for four other convictions was yet to be imposed. 12. The applicant was released on 1 June 2004, when it would appear that the decision of 10 May 2004, not having been appealed by either the applicant or the prosecution authorities, became final. 13. On an unspecified date in 2005 a new set of proceedings in which an overall sentence would be imposed started on account of the applicant’s conviction in case no. 1732/2002, which had not been taken into consideration during the previous set of proceedings. 14. By a decision of 13 December 2005 the Plovdiv District Court imposed an overall sentence of one year and three months’ imprisonment for the applicant’s convictions in cases nos. 343/1998, 1732/2002 and 868/2003. On 21 April 2006 the Plovdiv Regional Court upheld that decision. 15. It is not clear from the documents in the case file whether an overall sentence in cases nos. 70/1995, 805/2001, 751/2002 and 660/2002 was imposed. 16. On 1 October 2004, the applicant brought an action for damages under the State and Municipalities’ Responsibility for Damage Act 1988 (“the 1988 Act”) against the Plovdiv District Court and public prosecutor’s office. He claimed that under the decision of 10 May 2004 he had been sentenced to one year’s imprisonment but that he had actually served one year, two months and ten days. 17. By a judgment of 13 May 2005 the Pazardzhik Regional Court held that, after deducting time served and reducing the sentence to take account of the days the applicant had worked in prison, he had served two months and ten days over the prison term imposed by the decision of 10 May 2004. However, the court found that proceedings in which an overall sentence for some of the applicant’s convictions would be imposed were pending, and that the period of time served in excess of the sentence imposed by the decision of 10 May 2004 would be taken into consideration when an overall sentence was imposed for the remaining convictions. The court consequently dismissed the action and ordered the applicant to pay the sum of 480 Bulgarian levs (BGN) in court fees. 18. The applicant appealed against the judgment. He stated that by adding another conviction and imposing a higher overall sentence, the decision of 21 April 2006 had contradicted that of 10 May 2004. By a judgment of 12 December 2008 the Plovdiv Court of Appeal upheld the lower court’s finding and ordered the applicant to pay an additional BGN 240 in court fees. The court reasoned that his detention had been lawful because the applicant’s conviction in case no. 1732/2002 had not been taken into consideration by the decision of 10 May 2004 as it should have been – a shortcoming rectified by the decision of 21 April 2006 – and that consequently in May 2004 the proceedings in which an overall sentence would be imposed had not yet been completed. 19. The applicant subsequently appealed on points of law, claiming that the amount of court fees he had been ordered to pay had breached amendments to the 1988 Act which had come into force on 30 May 2008. 20. By a decision of 5 February 2010 the Supreme Court of Cassation (“SCC”) refused to grant the applicant’s appeal on points of law, thus upholding the lower court’s judgment. In respect of the complaint against the court fees, the SCC ordered that separate proceedings be initiated. 21. By a final decision of 6 July 2010 the Supreme Court of Cassation upheld the applicant’s complaint in respect of the court fees. The court applied section 9a and paragraph 9 of the concluding provisions of the 1988 Act (see paragraph 25 below) and determined that a flat court fee of BGN 15 should apply. 22. Article 25 § 1 of the Criminal Code 1968 provides that when an individual is convicted pursuant to two or more separate judgments, one overall term of imprisonment shall be imposed if all of the crimes were committed prior to the first conviction. Paragraph 2 of that provision states that time served following conviction pursuant to one of the judgments shall be deducted from the time to be served under the overall term of imprisonment. Paragraph 4 provides that in the event that a sentence imposed in one or more of the judgments is suspended, the court imposing the overall prison term shall decide whether it is, in fact, to be served effectively. 23. Article 371 of the Code of Criminal Procedure 1974 (“the 1974 Code”) (in force until 29 April 2006 when it was replaced by a new Code) provided that judgments and decisions were enforced after they become final. A copy of the judgment is sent to the prosecutor who is competent to take the necessary measures for its execution; in the case of a custodial sentence the prosecutor orders the prison authorities to detain the prisoner in execution of the sentence (Article 375 § 2 of the 1974 Code). 24. Article 425 of the 1974 Code provided, inter alia, that the service of a sentence of imprisonment could be interrupted on compelling grounds of a family or social nature. Article 426 § 1 of the 1974 Code stipulated that a prison governor could recommend such an interruption, which might then be ordered by the competent public prosecutor. 25. The relevant provisions of the State and Municipalities’ Responsibility for Damage Act 1988 (“the 1988 Act”) in respect of court fees are summarised in paragraphs 19-21 of the Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01, ECHR 2007VIII). 26. The 1988 Act was amended with effect from 30 May 2008, introducing, in new section 9a, a flat court fee in cases brought under the Act, irrespective of the amount of claim. According to paragraph 9 of the concluding provisions of the 1988 Act, section 9a applied to proceedings pending at the time of its introduction.