FIRST SECTION

CASE OF STOICHKOV v. BULGARIA

( Application no. 9808/02 )

JUDGMENT

STRASBOURG

24 March 2005

FINAL

24/06/2005

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Stoichkov v. Bulgaria ,

The European Court of Human Rights (First Section) , sitting as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. H ajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having deliberated in private on 3 March 2005 ,

Delivers the following judgment, which was adopted on th at date:

PROCEDURE

2 . The applicant was represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva , lawyers practicing in Plovdiv . The Bulgarian Government (“the Government”) were represented by their Agent s , Ms M. Dimova and Ms M. Kotzeva , of the Ministry of Justice .

3 . The applicant alleged, in particular, that his imprisonment in February 2000 had been unlawful , that he could not take judicial proceedings to obtain his release , and that he did not have an enforceable right to compensation for the alleged violations of Article 5 .

4 . The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. The Court decided to give priority to the application (Rule 41).

5 . By a decision of 9 September 2004 the Court (First Section) declared the application partly admissible.

6 . The applicant , but not the Government , filed observations on the merits (Rule 59 § 1).

7 . On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8 . The applicant was born in 1958 . He is presently detained in the Bobov Dol prison .

9 . During the 1975 ‑ 88 period the applicant was convicted six times of various offences: theft, car theft, deserting military duties and possession of narcotic drugs.

10 . In 1988 the applicant fled Bulgaria to Austria , travelling through the former Yugoslavia and Italy on a Yugoslav passport. The applicant submits that he left Bulgaria on 25 June 1988 , but according to the Pernik District Court ' s judgment of 30 October 1989 (see paragraph 15 below) he committed a rape on 13 July 1988 and an attempted rape on 3 September 1988 , both offences taking place in Bulgaria . In 1990 the applicant settled in the United States of America , where he lived until 1999.

A. The criminal proceedings against the applicant

11 . On 13 September 1988 criminal proceedings were opened against the applicant on charges of rape. There is no indication – and it has not been argued by the Government – that the applicant was notified of the proceedings.

12 . On 16 November 1988 the proceedings were stayed, most probably because the applicant was abroad. The proceedings resumed on 29 June 1989 and thereafter were conducted in the applicant ' s absence.

13 . On 7 September 1989 the Pernik District Prosecutor ' s Office submitted an indictment against the applicant to the Pernik District Court.

14 . The court held a hearing on 30 October 1989 . The applicant was represented by an ex officio counsel, as mandated by Article 70 § 1 (6) of the Code of Criminal Procedure (“ the CCP”).

15 . In a judgment of 30 October 1989 the Pernik District Court found the applicant guilty of rape and attempted rape and sentenced him to ten years ' imprisonment. The court found that on 13 July 1988 the applicant had decoyed a Mrs D.K., who vaguely knew him, into following him into a house, where he had threatened and beaten her into having sexual intercourse with him. The court also found that on 3 September 1988 the applicant had decoyed , in a similar manner , an acquaintance of his, a Ms S.V., had likewise threatened and heavily beaten her and had cut her with a knife. She had, however, managed to break out, thus avoiding sexual intercourse with the applicant. The court based its findings of fact on the testimony of Mrs D.K., Ms S.V., Mrs D.K. ' s husband, two other witnesses, medical reports and other written evidence, including two notes written by the applicant himself.

16 . No appeal having been lodged against the judgment, it came into force on 14 November 1989 .

17 . On 16 January 1997 the Pernik District Court ' s case ‑ file , containing all documents relevant to the proceedings , was destroyed. Only a copy of the judgment was kept in the archive of the court.

B. Actions undertaken by the authorities for the enforcement of the applicant ' s sentence

18 . On 21 November 1989 the Pernik District Prosecutor ' s Office transmitted a copy of the judgment to the police with a view to the applicant ' s apprehension for the purpose of enforcing his sentence. The letter accompanying the judgment stated that the applicant was believed to be in Austria , but his exact whereabouts were unknown.

19 . On 25 April 1990 the Pernik District Prosecutor ' s Office sent a copy of the judgment to the Chief Prosecutor ' s Office with a view to the applicant ' s extradition from Austria . On 14 May 1990 the Chief Prosecutor ' s Office wrote back to the Pernik District Prosecutor ' s Office, stating that the legal cooperation treaty between Bulgaria and Austria contained no provisions for assistance in criminal cases, and that therefore there was no possibility to request the applicant ' s extradition from Austria .

20 . On 22 September 1992 the Pernik District Prosecutor ' s Office sent a second copy of the judgment to the police with instructions to enforce it in the event the applicant returned to Bulgaria .

21 . On 9 November 1995 the police issued a nation ‑ wide search warrant for the applicant. Interpol was also requested to establish the applicant ' s whereabouts, apparently to no avail.

C. The applicant ' s arrest and ensuing requests for release

23 . On 18 February 2000 he went to a police station in Pernik to renew his driver ' s licence. The same day he was arrested and taken to a prison facility to start serving his sentence.

24 . On 1 June 2000 the applicant filed with the Pernik District Prosecutor ' s Office a request for release. He argued that the ten ‑ year limitation period for the enforcement of his sentence had expired in 1999.

25 . On 9 June 2000 the Pernik District Prosecutor ' s Office rejected the request, holding that the ten-year limitation period had been interrupted on several occasions and had therefore not expired. The latest interruption had taken place on 22 September 1992 , which was less than ten years before the day of the applicant ' s arrest .

26 . The applicant appealed to the Pernik Regional Prosecutor ' s Office.

27 . On 11 August 2000 the Pernik Regional Prosecutor ' s Office dismissed the appeal, holding that actions had been undertaken for the enforcement of the applicant ' s sentence in 1992 and in 1995. Therefore, the running of the limitation period had been interrupted and a new period had started to run in 1995, due to expire on 9 November 2005 .

28 . The applicant appealed to Sofia Appellate Prosecutor ' s Office, submitting that the actions which had been undertaken during the 1989 ‑ 2000 period had not in fact had the effect of interrupting the running of the limitation period.

29 . On 27 October 2000 the Sofia Appellate Prosecutor ' s Office dismissed the appeal, holding that the running of the limitation period for the enforcement of a sentence was interrupted by every act of the competent authorities aimed at its enforcement. These acts could be legal acts , or organisational , or technical acts. During the 1989 ‑ 2000 period the competent authorities had undertaken a number of acts for enforcing the applicant ' s sentence. In particular, a copy of the judgment had been sent to the police in 1992 and a nation ‑ wide search warrant had been issued for the applicant in 1995. These had had the effect of interrupting the running of the limitation period.

30 . The applicant appealed to the Supreme Cassation Prosecutor ' s Office.

31 . On 20 December 2001 the Supreme Cassation Prosecutor ' s Office dismissed the appeal, holding that the running of the limitation period had been interrupted on several occasions and that therefore it had not expired as of 18 February 2000 .

D. The applicant ' s request for reopening of the criminal proceedings against him

32 . In the meantime, in February 2001, the applicant lodged with the Supreme Court of Cassation a request for the reopening of the 1988 ‑ 89 criminal proceedings against him on the basis of Article 362a of the CCP. He also argued that the limitation period for the enforcement of his sentence had expired and requested release on that basis.

33 . The Supreme Court of Cassation rejected the request in a judgment of 19 July 2001 . It held that the request was partly inadmissible and partly ill ‑ founded. The applicant ' s request for reopening and rehearing of the case was inadmissible, since that could not be done, the case ‑ file having been destroyed in 1997. Whether the case ‑ file had been destroyed in accordance with the relevant rules was immaterial, the fact remained that as a result, a rehearing was impossible in practice. Insofar as the applicant could be understood as requesting reopening, quashing of the conviction and suspension or discontinuation of the proceedings, that request was ill ‑ founded, as it had not been established that at the time of the trial there had existed grounds for suspension or discontinuation of the proceedings. As to the applicant ' s request for the application of the statute of limitations, it was inadmissible, as the Supreme Court of Cassation had no primary jurisdiction in such matters.

E. The applicant ' s request for the restoration of the case ‑ file of the criminal proceedings against him

34 . On 21 August 2002 the applicant requested the president of the Pernik District Court to restore the case ‑ file of the 1988 ‑ 89 criminal case against him. It seems that he has received no reply to his request.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Trial in absentia

35 . The CCP allows trial in absentia in certain limited circumstances. According to Article 268 § 3 of the Code, as in force at the material time, it was possible when:

“[the trial in absentia ] would not hamper the ascertaining of the truth ... [and] the accused [was] outside the territory of Bulgaria , if:

1. his residence [was] unknown; [or]

2. he [could not] be summoned because of other reasons; [or]

3. he ha[d] been duly summoned and ha[d] not indicated a good cause for his failure to appear.”

C ases where the offence carried a term of imprisonment could be heard in absentia “only if [the accused ' s] residence in the country [was] unknown and [had] not been established after a thorough effort to locate [him]” (Article 268 § 4 of the CCP).

When an accused is tried in absentia , he must be mandatorily represented by an ex officio counsel (Article 70 § 1 (6) of the CCP).

36 . Until 1 January 2000 Bulgarian law did not provide for reopening of criminal cases heard in absentia . Thereafter such reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and submit s a request for reopening within one year after having learned of the conviction (new Article 362a of the CCP). The request is examined by the Supreme Court of Cassation (Article 363 of the CCP), which may quash the conviction and either order rehearing of the case (Article 364 § 1 of the CCP) or discontinue or suspend the criminal proceedings (Article 364 § 2 of the CCP).

B. Limitation periods for the enforcement of sentences

37 . Article 82 §§ 1 and 2 of the Criminal Code (“ the CC”), insofar as relevant, provide s that a judgment imposing a sentence from three to ten years ' imprisonment can not be enforced more than ten years after its entry into force. The running of this limitation period is interrupted by every act effected by the competent authorities for the purpose of enforcing the sentence (Article 82 § 3 of the CC). Such interruptions notwithstanding , the sentence may no longer be enforced if fifteen years have elapsed since the judgment ' s entry into force (Article 82 § 4 of the CC).

38 . The CCP does not contain express provisions establishing a procedure to be followed in cases where there is a dispute as to whether a person has been detained in execution of a sentence after the expiry of the limitation period for its enforcement. Article 373 § 1 (1) of the CCP provides that the court which has delivered a judgment rules on all difficulties or uncertainties relating to its interpretation. In general, the authority responsible for supervising legality in the enforcement of sentences of imprisonment is the competent prosecutor (Article 375 § 2 of the CCP, section 118(2) of the Judicial Power Act and section 4(1) of the Execution of Sentences Act). In particular, the competent prosecutor has to order the release of every imprisoned person whom he or she finds deprived of liberty unlawfully (section 119(7)(1) of the Judicial Power Act).

C. Time ‑ limits for keeping case ‑ files and restoration of destroyed case ‑ files

39 . By section 91(4) of Regulation no. 28 of 1995 on the functions of the registries of the district, regional, military and appellate courts („ Наредба â„– 28 за функциите на служителите в помощните звена и канцелариите на районните, окръжните, военните и апелативните съдилища “), in force at the material time and until 28 November 2004 , criminal case ‑ files where the sentence ha d not been enforced we re to be kept in the court ' s archive for a period equal to the limitation period for the enforcement of the sentence. The superseding regulations provide the same (see section 148(4) of the Rules on C ourt A dministration in the D istrict, R egional, M ilitary and A ppellate C ourts)

40 . Section 14 of the Regulation provide d that if a case ‑ file was lost or destroyed prematurely, it could be restored by order of the president of the respective court , acting ex officio or pursuant to a request by a party . This was technically done by the administrative secretary of the court, who gathered all documents relating to the case which were kept by the court, by other bodies and by the parties to the case. After all available materials were collected , the court h e ld a public hearing , to which the parties we re summoned , and rule d on the restoration of the case ‑ file. The court ' s order was subject to appeal to a higher court. The superseding regulations are broadly similar (see section 74 of the Rules on C ourt A dministration in the D istrict, R egional, M ilitary and A ppellate C ourts).

D. The State Responsibility for Damage Act

41 . Section 2 of the State Responsibility for Damage Act of 1988 („ Закон за отговорността на държавата за вреди, причинени на граждани “), which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts, provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

1. pre ‑ trial detention ..., if [the detention order] has been set aside for lack of lawful grounds;

2. accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because the crime was not committed by the accused, because the act committed by the accused does not constitute a crime , or because the criminal proceedings were instituted after the expiry of the limitation period or despite an amnesty;

3. conviction of a crime ... if the convicted is [subsequently] acquitted ...;

...

6. execution of a sentence above and beyond the specified period.”

42 . The reported case ‑ law under section 2 of the Act suggests that the term “unlawful” refers to unlawfulness under domestic law ( реш. â„– 859/ 2001 г. от 10 септември 2001 г. г.д. â„– 2017/2000 г. на ВКС, реш. â„– 978/2001 г. от 10 юли 2001 г. по г.д. â„– 1036/2001 г. на ВКС ).

43 . Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о. ). The Government have not referred to any successful claim under general tort law in connection with unlawful deprivation of liberty.

THE LAW

I . ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

44 . The applicant complained that his imprisonment in February 2000 had been unlawful and arbitrary .

45 . The Court considers that the applicant ' s complaint falls to be examined under Article 5 § 1 (a) of the Convention, which provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court ; ... ”

A. The parties ' arguments

46 . The applicant submitted that , since the case ‑ file of the proceedings against him had been destroyed, it was impossible to verify whether his conviction and the resulting deprivation of liberty had been ordered by a competent court and had not been arbitrary. T he destruction of the case ‑ file had been unlawful, because section 91(4) of Regulation no. 28 provided that it should have been kept until the expiry of the limitation period for the enforcement of his sentence. The judgment, which was the only remaining document, was not enough to prove the regularity of his conviction. O n 21 August 2002 he had filed a request for the restoration of the case ‑ file with the preside nt of the Pernik District Court, but had received no reply.

47 . The applicant also alleged that his conviction had been political and had in reality been made because of his having fled the country to immigrate to the United States of America . Finally, he submitted that the limitation period for the enforcement of his sentence had expired in 1999.

48 . The Government submitted that the applicant ' s contention that his trial for and conviction of rape and attempted rape had been meant as a repression for his having emigrated from Bulgaria was completely unsubstantiated. Moreover, this contention sounded implausible in view of the applicant ' s numerous previous convictions. On the contrary, the applicant had been tried and convicted by a competent court and his detention in February 2000 had been effected for the purpose of enforcing his lawful sentence of imprisonment .

49 . As regards the applicant ' s averment that he had been detained despite the expiry of the relevant limitation period, the Government pointed out that this question had been examined by the prosecution authorities of all levels, which had found that the running of that period had been interrupted several times and that it had therefore not expired as of February 2000.

50 . Concerning the applicant ' s allegation that his detention was unlawful because the destruction in 1997 of the case ‑ file of the criminal case against him had made impossible the verification of the lawfulness of his conviction, the Government argued that he could have requested the restoration of the case ‑ file in accordance with section 14 of Regulation no. 28 on the functions of the registries of the district, regional, military and appellate courts. On the other hand, the reasons of the Pernik District Court, whose judgment had been kept in the archive of that court, indicated that the victims of the rape and the attempted rape committed by the applicant had known him and that there was no doubt that he had in fact committed the offences of which he had been convicted.

B. The Court ' s assessment

53 . However, if the 19 88 ‑ 89 criminal proceedings against the applicant – which were conducted in absentia and the reopening of which was refused in 2001 – are found to have been “manifestly contrary to the provisions of Article 6 or the principles embodied therein”, that will unavoidably lead to the conclusion that the applicant ' s ensuing deprivation of liberty to serve the sentence imposed in these proceedings cannot be considered justified under Article 5 § 1 (a).

54 . The issue is therefore whether the requirement of Article 6 to ensure the right of the accused to be present during the proceedings against him or her is so basic as to render proceedings conducted in absentia and whose reopening has been refused a “flagrant denial of justice”, i.e. “manifestly contrary to the provisions of Article 6 or the principles embodied therein”.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

60 . The applicant complained that he could not take judicial proceedings to obtain his release.

61 . The Court considers that the applicant ' s complaint falls to be examined under Article 5 § 4 of the Convention, which provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

62 . The Government submitted that since the applicant ' s arrest in February 2000 had been effected for the purpose of enforcing the sentence of imprisonment against him, i.e. was “the lawful detention of a person after conviction by a competent court”, Article 5 § 4 did not apply. In the alternative, they argued that the applicant could have requested the trial court which had imposed the sentence to rule on his objection that the limitation period for its enforcement had expired on the basis of Article 373 § 1 (1) of the CCP .

63 . The applicant submitted that Article 373 § 1 (1) of the CCP dealt with the interpretation of the trial court ' s judgments and had nothing to do with their enforcement. There existed no case ‑ law of the domestic courts to support the Government ' s averment that this provision created a judicial avenue for the applicant to explore. Neither did the doctrine provide any theoretical basis to ground the Government ' s contention. On the other hand, Bulgarian law entrusted all issues relating to the enforcement of sentences to the prosecutor ' s offices.

67 . In conclusion, the Court holds that there has been a violation of Article 5 § 4 of the Convention .

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

68 . The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation for the alleged violations of the preceding paragraphs of Article 5.

69 . Article 5 § 5 provides:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

70 . The applicant submitted that domestic law – in particular, section 2 of the State Responsibility for Damage Act – provided for compensation for deprivation of liberty only if such deprivation was found to be unlawful. However, in the applicant ' s case there were no procedural means to establish the unlawfulness of his detention. The general law of tort also required unlawfulness of the impugned act . S eeing that the applicant ' s deprivation of liberty was based on a conviction and sentence, the applicant could not make a successful tort claim.

71 . The Government did not comment on this complaint.

73 . In this connection, the Court notes that in the present case it found violations of paragraphs 1 and 4 of Article 5 (see paragraphs 59 and 6 7 above). It follows that Article 5 § 5 is applicable. The Court must therefore establish whether or not Bulgarian law afford s the applicant an enforceable right to compensation for the breaches of Article 5 in his case.

74 . Since the applicant ' s deprivation of liberty is not in breach of domestic law, he is not entitled to compensation under the State Responsibility for Damage Act, because section 2 of that Act provides for compensation only in cases where the detention is “unlawful”. Moreover, none of the relevant subsections of section 2 even remotely relates to the applicant ' s situation (detention for the enforcement of a sentence which has entered into force) (see paragraphs 41 and 42 above) . Finally , i t does not seem that he can successfully make a claim under general tort law, nor under any other provision of domestic law (see paragraph 43 above) .

75 . The Court thus finds that Bulgarian law does not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention . There has therefore been a violation of that provision.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

77 . Referring to some of the Court ' s judgments, t he applicant claimed 225,000 euros (EUR) as compensation for the non ‑ pecuniary damage stemming from the violation of Article 5 § 1 and EUR 45,000 as compensation for the non ‑ pecuniary damage stemming from the violation of Article 5 § 4. He also submitted that the conditions in prison were inhuman and that the lack of a possibility to obtain compensation before the domestic courts further intensified his suffering. Finally, the applicant averred that the living standard s in Bulgaria had considerably improved during the last several years and argued that this fact should be taken into account by the Court.

78 . In addition, r elying on the Court ' s judgment in the case of Assanidzé v. Georgia ([GC], no. 71503/01, ECHR 2004 ‑ II ), the applicant requested the Court to specify in the operative provisions of its judgment that the respondent Government should secure his release at the earliest possible date.

79 . The Government submitted that the amount claimed by the applicant was unfounded and exaggerated and was not in line with the Court ' s practice in similar cases.

80 . The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore , as far as possible , the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia , that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Assanidzé , § 198 , and Ilaşcu and Others , § 487, both cited above ).

81 . The Court notes that the violation of Article 5 § 1 found in the present case stem s exclusively from the fact that the applicant had been imprisoned as a result of a conviction pronounced after proceedings which , having been conducted in absentia and not having been reopened, were manifestly contrary to the principles embodied in Article 6 (see paragraph 58 above). In these circumstances, it would be appropriate to recall the case ‑ law according to which , when the Court finds that an applicant ha s been convicted despite the existence of a n infringement of his or her right to take part in his or her trial , the most appropriate form of redress would , in principle, be to reopen the proceedings in due course and retry the person concerned in keeping with all the requirements of a fair trial (see Somogyi v. Italy , no. 67972/01, § 86, ECHR 2004 ‑ IV ) . It is not for the Court to speculate on the outcome of a trial which is not, as in the present case, manifestly contrary to the principles embodied in Article 6. Therefore, the case at hand does not call for the applicant ' s unconditional release, unless the respondent Government fail to secure the immediate reopening of the criminal proceedings against him and a retrial in his presence .

82 . As regards the applicant ' s claim for compensation for non ‑ pecuniary damage , the Court notes that the reopening of the proceedings against the applicant cannot retroactively wipe out the fact that he has spent several years in detention which is found to be in breach of Article 5 § 1. Held in pursuance of a sentence delivered after proceedings which were conducted in absentia , the reopening of which he was unable to obtain , and having no possibility to obtain judicial review of the legality of his deprivation of liberty or compensation therefor , the applicant has remained in a frustrating position that he has been powerless to rectify. Consequently, having regard to the nature of the violations found in the present case and ruling on an equitable basis, the Court awards the applicant EUR 8 ,000.

B. Costs and expenses

83 . The applicant claimed EUR 3 , 325 for 47.5 hours of legal work at the hourly rate of EUR 70. The applicant submitted a fees ' agreement between him and his principal lawyer , Mr M. Ekimdjiev , and a time ‑ sheet. The applicant further claimed EUR 318 for translation costs, postage , photocopying and other overhead expenses . He requested that the amounts awarded by the Court under th is head be paid directly to his principle lawyer , Mr M. Ekimdjiev .

84 . The Government submitted that the amount claimed was excessive .

85 . Having regard to all relevant factors and deducting EUR 853 received in legal aid from the Council of Europe, the Court awards EUR 1 , 5 00 in respect of costs and expenses, payable into the bank account of the applicant ' s lawyer , Mr M. Ekimdjiev , in Bulgaria .

C. Default interest

86 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Holds that there has been a violation of Article 5 § 1 of the Convention;

2. Holds that there has been a violation of Article 5 § 4 of the Convention;

3 . Holds that there has been a violation of Article 5 § 5 of the Convention;

4 . Holds

( a ) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention , the following amounts , to be converted into Bulgarian levs at the rate applicable at the date of settlement :

(i) EUR 8 ,000 ( eight thousand euros) in respect of non ‑ pecuniary damage;

(ii) EUR 1,500 ( one thousand five hundred euros) in respect of costs and expenses , payable into the bank account of the applicant ' s lawyer , Mr M. Ekimdjiev, in Bulgaria ;

(i ii ) any tax that may be chargeable on the above amounts;

( b ) that from the expiry of the above ‑ mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 24 March 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President