FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53121/99 by Stefan Milanov ILIEV against Bulgaria

The European Court of Human Rights (First Section), sitting on 2 February 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mrs E. Steiner , Mr K. Hajiyev,

Mr D. Spielmann, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 12 May 1999 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stefan Milanov Iliev, is a Bulgarian national who was born in 1924 and lives in Sofia . He is represented before the Court by Mr I. Gruikin, a lawyer practising in Sofia .

The respondent Government are represented by their agent, Ms M. Kotzeva, of the Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s detention

T he applicant was seventy-two years old at the time of the events and had previously suffered from tuberculosis on at least three occasions.

On 19 December 1996 the applicant visited a café-bar where he drank and became intoxicated. On his way home, at around 6 p.m. , he passed by the building of the Bulgarian national television (“BNT”) , in front of which there was a demonstration . The applicant was carrying a beer bottle, which he either dropped or threw against the building of the BNT. He then went to a nearby café.

Two police officers , who were apparently providing security in front of the BNT, approached the applicant in the café. When they saw that he was intoxicated they led him off to the security guards ’ duty room in the BNT.

In response to the applicant ’ s request to be informed why he was being detained he was told that it was for disturbing the peace and for throwing objects at the building of the BNT in an attempt to break its windows.

The applicant was kept in the security guards ’ duty room of the BNT until 8 p.m. He was then taken to the First D istrict ’ s P olice S tation (Първо районно управление на МВР) for questioning, but, in view of his intoxicated state, was transferred to the S obering-up C entre of the Sofia Police. The applicant arrived there at around 9 p.m. and remained overnight.

The appli cant was discharged at around 9 a.m. on the next day, 20 December 1996 , into the custody of the police and was taken to the I nvestigative D ivision of the First D istrict ’ s P olice S tation for questioning .

At 11. 15 a.m. on 20 December 1996 the applicant was given a written reprimand by the police to refrain from disturbing the peace , to drink with caution and not to resist inspections by the police. The applicant refused to be served with the written reprimand and to sign that he had received it.

The applicant contended, which the Government have not challenged, that he was released from the police station sometime in the afternoon on 20 December 1996 .

2. The alleged inhuman or degrading treatment

The applicant submitted that when he was detained by the two police officers in front of the building of the BNT he may have showed some resistance as he believed he was being wrongly detained. He contended, however, which the Government have not challenged, that w hile he was being led to the security guards ’ duty room of the BNT the police officers repeatedly hit him with a truncheon on his hands , kicked him in his ankles and punched him in the back and in the area of his kidneys. The applicant maintained that his injuries were not treated nor tended to by a doctor while he was in detention.

In their subsequent statements before the Prosecutor ’ s Office, the police officers stated that the applicant was somewhat aggressive when they tried to detain him, but that they did not use any special measures to subdue him.

After being released on 20 December 1996 the applicant was examined by a doctor. The results of the examination established the following.

“On the back of the right hand in the area of the [bracelet] joint it is visible that a linear contusion of the skin exists of reddish-dark colour with a size of 5 cm. by 2 cm. On the back of the wrist of the right hand another contusion can be seen with a size of 4 cm. by 2 cm. On the back of the left hand in the area of the palm bone of the thumb there is a contusion and abrasion resulting from almost parallel scratches of reddish-dark colour protruding above the skin around them with a size of 3 cm. by 2 cm.

...

These injuries resulted from blows by or again st solid blunt objects or blunt ‑ cornered objects, as well as from the tangential effects of such objects and [considering] their morphological characteristics [they] reasonably correspond and could have been sustained in the manner and at the time indicated by the victim.

[These injuries] caused [the victim] pain and suffering. ”

In 1998 the applicant received treatment to ailments in his ankles and wrists .

3. The conditions of detention at the sobering-up centre

The applicant was held at the sobering-up centre from around 9 p.m. on 19 December 1996 to around 9 a.m. on 20 December 1996 .

Upon the submissions of the applicant, which the Government have not challenged, u pon arriving at the sobering-up centre he was forced to strip and lay down in a bed with dirty sheets. The room was cold and there were eights beds, of which six were occupied. The applicant was denied food and water for the duration of his stay . In addition, he was threatened that if he resisted or complained he would be administer ed an injection to calm him down.

The applicant submitted that he suffered mental anguish and distress as a result of witnessing the way the staff treated one of the other persons in the room. That person had allegedly been beaten and wailed throughout most of the night. That person had then been taken to a sobering-up room and the staff of the centre had threatened the other people in the room that they too would be taken away if they did not go to sleep immediately.

In his subsequent statement before the Prosecutor ’ s Office, the officer on duty at the sobering-up centre stated that the applicant had been calm, that no restrictive measures had been used against him, that no medication had been administered and that he had slept for most of the night.

The applicant contended that his chronic bronchitis flared up as a result of his placement in the sobering-up centre and that as a result he was on sick leave from 3 January 1997 till 3 February 1997 . In addition, he was treated in a hospital for lung diseases sometime in May 1997.

On 11 June 1998 a Medical Commission found the applicant to be suffering from the delayed effects of tuberculosis and assessed him as being third category disabled.

4. The applicant ’ s complaints to the authorities

On 13 January 1997 the applicant complained to the Chief Prosecutor ’ s Office regarding the beating at the hands of the police officers on 19 December 1996 and of being detained . On an unspecified date the applicant was informed that his complaint was being forwarded to the Sofia ’ s Regional Military Prosecutor ’ s Office.

On 21 March 1997 the Sofia Regional Military Prosecutor ’ s Office refused to open a preliminary investigation because of lack of evidence of an offence. It based its decision on the applicant ’ s complaint to the authorities and on statements from the police officers who arrested him and the officer on duty at the sobering-up centre. The Prosecutor ’ s Office considered the applicant ’ s assertions to be unfounded and unsupported by any facts other than his complaints. The applicant appealed against the decision of the Prosecutor ’ s Office on an unspecified date .

By decision of 17 December 1997 the Armed Forces Prosecutor ’ s Office upheld the decision of the Sofia ’ s Regional Military Prosecutor ’ s Office. It found that the facts of the case did not warrant the opening of a preliminary investigation. The decision of 17 December 1997 state d , inter alia , the following:

“From the materials [contained] in the file it [can be] ascertained that [the complaint] relates to the forced detention in a sobering-up centre of the applicant [following] a disturbance of public order [while] in an intoxicated state. The checks performed do not indicate that any unlawful actions [ were performed] by the police. The collected data shows that there was in fact a disturbance of public order – breaking of bottles, throwing objects at the building of the [Bulgarian national] television, etc. In such case quite rightly [the Sofia ’ s Regional Military Prosecutor ’ s Office] refused to open a preliminary investigation.”

It is unclear whether a copy of the decision of the Armed Forces Prosecutor ’ s Office was ever sent to the applicant.

On 30 December 1997 the applicant filed a complaint with the Chief Prosecutor ’ s Office claiming that he had not received a response to his previous complaints .

On an undetermined date a prosecutor from the Armed Forces Prosecutor ’ s Office responded, in the form of a resolution, which stated, inter alia , the following:

“On 30 December 1997 a complaint was filed by [the applicant], who was unhappy with the decision of the prosecutors from the Armed Forces Prosecutor ’ s Office and the Sofia ’ s Regional Military Prosecutor ’ s Office.

I reject the complaint of [the applicant] because the Armed Forces Prosecutor ’ s Office has already ruled on the matter and there is no necessity for it to change its position [expressed] in the decision of 17 December 1997 .”

The Government contends that a copy of the above resolution was sent to the applicant on 14 January 1998 . The applicant maintained, however, that he never received it and that he only became aware of the decisions of the Prosecutor ’ s Office not to open a preliminary investigation on 21 November 1998 . A note to that effect was inscribed in the applicant ’ s handwriting on the copies of the decisions he provided to the Court.

B. Relevant domestic law and practice

The National Police Act (1993), as in force at the relevant time, provided that a person detained by the police had the right to challenge the lawfulness of his or her detention before the courts, which were obliged to immediately rule on his or her appeal (section 33 (3)).

COMPLAINTS

The applicant allege d violations of numerous articles of the Convention, namely Articles 1, 3, 5, 6, 7, 8, 13 and 53. Specifically, the applicant complained (1) that he was unlawfully detained from 19 till 20 December 1996; (2) that he was beaten by the police officers when he was detained on 19 December 1996; ( 3) that there was a lack of an effective investigation by the authorities relating to the aforementioned ; and ( 4) that he was held in inhuman or degrading conditions of detention while in the sobering-up centre .

THE LAW

A. Complaints regarding the alleged inhuman and degrading treatment by the police and the lack of an effective investigation

The applicant complains, relying on numerous articles of the Convention , that he was beaten by the police officer s when he was detained on 19 December 1996 and that there was a lack of an effective investigation by the authorities relating to the aforementioned .

The Court finds that the applicant ’ s complaints fall to be examined under Article 3 of the Convention, which provides the following :

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. Government ’ s objection that the applicant ’ s complaints were submitted out of time

The Governmen t contended that the applicant failed to submit his complaints to the Court within the six-months ’ time limit under Article 35 § 1 of the Convention. They contested his assertion that he had become aware of the decisions of the Sofia Regional Military Prosecutor ’ s Office and the Armed Forces Prosecutor ’ s Office only on 21 November 1998 . Furthermore, they challenged the authenticity of the applicant ’ s written note on the decisions indicating that he had received them on that date.

The Government argued that the applicant had been duly informed by the Prosecutor ’ s Office, at the latest by its letter of 14 January 1998 , that it had decided not to open a preliminary investigation because of lack of evidence of an offence. They consented that the letter had not been sent by registered post with a return receipt, but indicated that that was standard practice. In any event, they considered that the applicant must have received the letter soon thereafter and that he had submitted his complaints out of time because his first communication to the Court was almost a year and a half later.

The applicant replied that the Government had failed to substantiate its objection because it had failed to convincingly demonstrate that the applicant had become aware of the decisions of the Prosecutor ’ s Office sooner than on 21 November 1998 , as he claimed. He reasserted his contention that he had not received any communication prior to that date and that it was only then that he had become aware of the decisions in question and had made a note to that effect on them.

The Court recalls that it is for the State which pleads a failure to comply with the six-month rule to establish the date on which the applicant learned of the final domestic decision (see Köksal v. the Netherlands (dec.), no. 31725/96 , 19 September 2000 ). In the present case, the Government has failed to convincingly show, by producing a copy of a postal return receipt or otherwise, that the applicant did in fact receive copies of the decisions of the Prosecutor ’ s Office anytime prior to the date that he claims – 21 November 1998 . Accordingly, the Court accept s the applicant ’ s assertion that he was not aware of the above-mentioned decisions prior to that date and finds that he has complied with the time limit under Article 35 § 1 of the Convention as he submitted his complaints less than six months later on 12 May 1999.

It follows, therefore, that the Government ’ s objection must be rejected.

2. The parties ’ submissions and the Court ’ s decision on admissibility

The Government did not submit observations on the merits of the applicant ’ s complaint s.

In his reply, the applicant restricted himself to responding to the Government ’ s objection of inadmissibility (see, above, Part A.1 of The Law).

The Court considers, in the light of the parties ’ submissions, that the complaint s raise serious issues of fact and law under the Convention, the determination of which requires an examination of the ir merits. The Court concludes therefore that these complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B . Complaint under Article 5 of the Convention about the lawfulness of the applicant ’ s detention

The applicant complained that his detention on 19- 20 December 199 6 had been unlawfully. The Court finds that this complaint falls to be examined under Article 5 § 1 (e) of the Convention, which provides the following:

“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:

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”

The Court notes that the applicant had a right under the National Police Act ( s ection 33 § 3), as in force at the relevant time, to challenge before a court the lawfulness of his detention. However, the applicant did not submit such an appeal (see Kemerov v. Bulgaria (dec.), no. 44041/98 , 16 December 1999 ). Accordingly, the applicant failed to exhaust the domestic remedies concerning the alleged breach of his rights under Article 5 of the Convention.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C . Complaint under Article 3 of the Convention about the conditions of detention in the sobering-up centre

The applicant complained under Article 3 that he was held in inhuman or degrading conditions of detention while in the sobering-up centre . Article 3 of the Convention provides the following:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

I nsofar as the applicant is complaining about the conditions of detention in the sobering-up centre, the Court observes that he was released on 20 December 1996 . As the applicant had no effective remedies at his disposal, the Court finds that this day is, th erefore, the point when the six ‑ month period started to run, for the purposes of Article 35 § 1 of the Convention (see I.I. v. Bulgaria (dec.), no. 44082/98 , 25 March 2004 ; Dankevich v. Ukraine , no. 40679/98, § 111, 29 April 2003; Kehayov v. Bulgaria (dec.), no. 41035/98, 13 March 2003). The applicant introduced his first letter with the Court on 12 May 1999 .

It follows that this complaint has been introduced out of the six months ’ time limit under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Cou rt unanimously

Declares admissible, without prejudging the merits, the complaints falling under Article 3 of the Convention regarding the alleged inhuman and degrading treatment suffered at the hands of the police at the time o f detaining the applicant on 19 December 1996 and the lack of an effective investigation relating thereto ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President