FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9808/02 by Emil Georgiev STOICHKOV against Bulgaria

The European Court of Human Rights ( First Section) , sitting on 9 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky, judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 23 October 2000 ,

Having regard to the decision to grant priority to the application under Rule 41 of the Rules of Court ,

Having regard to the observations submitted by the respondent Government , the observations in reply submitted by the applicant and the applicant ’ s subsequent observations on Article 5 § 5 of the Convention ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Emil Georgiev Stoichkov, is a Bulgarian national who was born in 1958 . He is presently detained in the Sofia prison. He is represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva, lawyers practicing in Plovdiv . The respondent Government are represented by Ms M. Dimova , co ‑ agent, 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 .

During the 197 5 ‑ 88 period the applicant was convicted six times of various offences: theft, car theft, deserting military duties and possession of narcotic drugs.

I n 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 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.

1. The criminal proceedings against the applicant

On 13 September 1988 criminal proceedings were opened against the applicant on charges of rape .

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.

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

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 (“CCP”).

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 M r s 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 a n 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 avoid ing sexual intercourse with the applicant. The court based its findings of fact on the testimony of M r s 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 .

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

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.

2. Actions undertaken by the authorities for the enforcement of the applicant ’ s sentence

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.

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 mutual assistance in criminal cases, and that therefore there was no possibility to request the applicant ’ s extradition from Austria .

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

On 9 November 1995 the police issued a nation-wide search warrant for the applicant. Also, Interpol was requested to establish the applicant ’ s whereabouts, apparently to no avail.

3. The applicant ’ s arrest and ensuing requests for release

In November 1999 the applicant came back to Bulgaria , to visit relatives.

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

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.

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 18 February 2000 .

The applicant appealed to the Pernik Regional Prosecutor ’ s Office.

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 .

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.

On 27 October 2000 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 bodies effected with a view to its enforcement. These acts could be legal acts or organisational or technical acts. During the 1989 ‑ 2000 period the competent bodies 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. T hese had had the effect of interrupting the running of the limitation period.

The applicant appealed to the Supreme Cassation Prosecutor ’ s Office.

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 .

4. The applicant ’ s request for reopening of the criminal proceedings against him

In the meantime, in February 2001 , the applicant lodged with the Supreme Court of Cassation a request for the reopen ing 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.

T he 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 reopen ing 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 reopen ing, 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.

5. The applicant ’ s request for the restoration of the case file of the criminal proceedings against him

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 not received a reply to his request.

B. Relevant domestic law and practice

1. Trial in absentia

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 good cause for his failure to appear.”

In cases where the offence carried a term of imprisonment, the case 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) .

Until 1 January 2000 Bulgarian law did not provide for reopen ing of criminal cases heard in absentia . Thereafter such reopen ing became possible where the convicted person had been unaware of the criminal proceedings against him or her and submitted a request for reopen ing 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 ).

2. Limitation periods for the enforcement of sentences

Article 82 §§ 1 and 2 of the Criminal Code (“CC”) , insofar as relevant, provide s that a judgment imposing a sentence from three to ten years ’ imprisonment may not be enforced later 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 ). S uch interruptions notwithstanding , if fifteen years have elapsed after the judgment ’ s entry into force, the sentence may no longer be enforced (Article 82 § 4 of the CC ).

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 imposed the sentence rules on all difficulties or uncertainties relating to its interpretation. In general, the authority responsible for supervising legality in the enforcement of sentences 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 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 ) .

3. Time-limits for keeping case files and r estoration of destroyed case files

By section 91(4) of Regulation n o. 28 of 1995 on the functions of the registries of the district, regional, military and appellate courts ( „ Наредба № 28 за функциите на служителите в помощните звена и канцелариите на районните, окръжните, военните и апелативните съдилища “ ) , criminal case files where the sentence has not been enforced are to be kept in the court ’ s archive for a period equal to the limitation period for the enforcement of the sentence.

Section 14 of the Regulation provides that if a case file is lost or destroyed prematurely , it can be restored b y order of the president of the respective court. T his is technically done by using all documents relating to the case which are kept by the court, by other bodies and by the parties to the case. After all available materials are gathered, the court holds a public hearing to which the parties are summoned and rules on the restoration of the case file. The court ’ s order is subject to appeal to a higher court.

4 . The State Responsibility for Damage Act

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 has not been committed by the accused , because the accused was not the perpetrator, or because the criminal proceedings were instituted after the expiry of the limitation period or despite a n amnesty ;

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

...

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

The reported case ‑ law under section 2 of the Act suggests that the term “unlawful” refer s to unlawfulness under domestic law ( реш. â„– 859 / 2001 г. от 10 септември 2001 г. г.д. â„– 2017/ 20 00 г. на ВКС, реш. â„– 978 /2001 г. от 10 юли 2001 г. по г.д. â„– 1036/ 20 01 г. на ВКС ) .

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 .

COMPLAINTS

1. In his initial application t he applicant raised several complaints. In partic u lar:

a) He complain ed under Article 6 of the Convention that the 1989 conviction against him had been arbitrary. He further complain ed under the same Article that he had been tried in absentia without being summoned or otherwise notified about the proceedings so as to be able to defend himself, and that reopen ing had been refused.

b) He complain ed that his imprisonment in February 2000 had been unlawful. In particular, he allege d that it had been based on a fabricated conviction, which had in reality been motivated by his having emigrated from Bulgaria and as such meant as a means of political repression. He also submit ted that the limitation period for the enforcement of his sentence had expired in 1999.

c) He complain ed that he could not take judicial proceedings to obtain his release.

2 . In his observations in reply to those of the respondent Government the applicant raised new complaints. In particular :

a) H e 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.

b) He complained under Article 13 of the Convention that he did not have effective remedies for his complaints under Articles 5 and 6 of the Convention.

c) He complained under Article 3 of the Convention that his detention in February 2000 and the lack of possibility to obtain release constituted inhuman and degrading treatment.

THE LAW

1. In respect of his complaint that the criminal proceedings against him were unfair and that he was refused reopen ing of th e se proceedings the applicant relied on Article 6 of the Convention , which provides, as relevant:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing ... ;

(d) to examine ... witnesses against him ... ”

The Government submitted that the 1988 ‑ 89 criminal proceedings against the applicant had been conducted in absentia because at that time he had been outside the country.

The applicant submitted that the Court may examine complaints about facts which have occurred before the entry into force of the Convention in respect of a given State, provided that those facts had consequences after the Convention ’ s entry into force. It was true that his sentence had been imposed in 1989, but its consequences, i.e. his imprisonment, had occurred in 2000.

The applicant further submitted that the 1988 ‑ 89 criminal proceedings against him had been conducted in his absence, without him having the opportunity to defend himself against the charges brought against him. In his view, this was at variance with the notion of a fair trial.

The applicant also maintained that the refusal of the Supreme Court of Cassation to reopen the case had in fact endorsed the violations of his fair trial rights stemming from the default character of the proceedings against him. This refusal had deprived him of the only opportunity he had had to have access to a fair and adversarial procedure to challenge the well ‑ foundedness of the charges against him.

The Court observes that the applicant ’ s complaint concerning the fairness of the 1988 ‑ 89 criminal proceedings against him relate s to a period prior to 7 September 1992 , which is the date of the entry into force of the Convention with respect to Bulgaria . However, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party. Therefore, the Court is not competent ratione temporis to examine this complaint.

As to the possibility to have the criminal proceedings reopened, the applicant complained that it was ineffective, in that the Supreme Court of Cassation ’ s refusal had prevented him from obtaining , from a court which had heard him , a fresh determination of the merits of the charges on which he had been tried in absentia . Article 6 of the Convention indeed guarantees such a right in the case of proceedings conducted in absentia , but only on the premise that it was applicable to the original proceedings . However, as the Court found above, at the time of the proceedings the Convention had not yet entered into force in respect of Bulgaria . Thus, Bulgaria cannot be held to have violated its obligations under Article 6 of the Convention by not affording the possibility of a reopening to those who had been convicted in absentia before 7 September 1992 (see , mutatis mutandis , Stamoulakatos v. Greece , judgment of 26 October 1993 , Series A no. 271, p. 14, § 33) .

It follows that this complaint is incompatible ratione temporis and materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The Court considers that the applicant ’ s complaint that his deprivation of liberty after February 2000 was unlawful 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 Government raised an objection , claiming that the applicant had not exhausted domestic remedies. In particular, he had not applied to a court under Article 373 § 1 (1) of the CCP to obtain a resolution of the factual issue of whether the limitation period for the enforcement of his sentence had expired.

The applicant replied that Article 373 § 1 (1) of the CCP dealt with the interpretation of the trial court ’ s judgments , which had nothing to do with their enforcement. There existed no case ‑ law of the domestic courts to support the Government ’ s averment that this text created a judicial avenue for the applicant to explore. On the other hand, Bulgarian law entrusted all issues relating to the enforcement of sentences to the prosecutor ’ s offices.

The Court recalls that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94 , § 39, ECHR 1999 ‑ III). It notes that the applicant applied for release to the Pernik Regional Prosecutor ’ s Office , relying exactly on the argument that the limitation period for the enforcement of his sentence had expired. That o ffice was competent to review the issue and release him, but it refused to do so, examining the substance of the applicant ’ s request and holding that the limitation period had been interrupted and had hence not expired. The applicant appealed that o ffice ’ s refusal all the way up to the Supreme Cassation Prosecutor ’ s Office , but all his appeals were dismissed with the same argument. Even assuming that, as claimed by the Government, Article 373 § 1 (1) of the CCP provides a judicial remedy which was also open to the applicant , the Court does not consider that the applicant was required to embark on a second attempt to obtain release after his previous efforts in this respect had proved vain . The Government have not argued and have not provided any examples ind icating that th is alleged judicial remedy stood better chances of success than the one used by the applicant.

Consequently, the Government ’ s objection cannot be upheld .

b) With regard to the substance of the complaint, the Government submitted that the applicant ’ s contention that his trial for and conviction of rape and attempted rape had been 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 enforc ing his lawful sentence.

As regards the applicant ’ s allegation that he had been detained despite the expiry of the relevant limitation period, the Government submitted 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.

Concerning the applicant ’ s averment 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 n o. 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.

T he applicant replied that the destruction of the case file had been arbitrary and unlawful , because section 91(4) of Regulation n o. 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 existing document, was not enough to prove that his conviction and resulting imprisonment had been lawfully ordered by a competent court and had not been arbitrary. The Government ’ s averment that he had not requested the restoration of the case file was not true; on 21 August 200 2 he had filed such a request with the president of the Pernik District Court .

The applicant also alleged that his conviction had been political and had in reality been made because of his having fled the country to im migrate to the United States of America .

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

3. The Court considers that the applicant ’ s complaint that he could not take judicial proceedings to obtain his release 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.”

The Government submitted that since the applicant ’ s deprivation of liberty 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 of the Convention did not apply. In the alternative, t hey argued that pursuant to Article 373 § 1 (1) of the CCP 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 . By paragraph 2 of that Article , the court was bound to hold a public hearing in the applicant ’ s presence. The court ’ s ruling was subject to appeal to a higher court.

The applicant replied that Article 373 § 1 (1) of the CCP dealt with the interpretation of the trial court ’ s judgments , which had nothing to do with their enforcement. There existed no case ‑ law of the domestic courts to support the Government ’ s averment that this text created a judicial avenue for the applicant to explore. On the other hand, Bulgarian law entrusted all issues relating to the enforcement of sentences to the prosecutor ’ s offices.

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

4. In respect of his complaint that he did not have an enforceable right to compensation for the alleged violations of the preceding paragraphs of Article 5 the applicant relied on Article 5 § 5 of the Convention , which 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.”

The Government did not comment on this complaint.

The applicant submitted that domestic law – in particular, section 2 of the State Responsibility for Damage Act – p rovided 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. T he general law of tort also required unlawfulness of the impugned act ; seeing that the applicant ’ s deprivation of liberty was based on a conviction and sentence, the applicant could not make a successful tort claim.

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

5 . I n respect of his complaint that he did not have effective remedies for his complaints under Articles 5 and 6 the applicant relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court first notes that a complaint may only be made under Article 13 in connection with a substantive claim which is “arguable” (see Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, p. 14, § 31 and Hatton v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003 ‑ VIII). The Court has found that the applicant ’ s complaint under Article 6 of the Convention is inadmissible . It therefore finds that this claim cannot be said to be “ arguable ” within the meaning of the Court ’ s case ‑ law.

Insofar as the applicant relied on Article 13 in relation to his complaint s under Article 5 § § 1 (a), 4 and 5 , the Court notes that in matters of deprivation of liberty and compensation for unlawful detention paragraphs 4 and 5 of Article 5 provide a lex specialis in relation to the more general requirements of Article 13 (see , in relation to Article 5 § 4, M.A. and M.M. v. France (dec.), no. 39671/98, ECHR 1999 ‑ VIII , and , in relation to Article 5 § 5, Tsirlis and Kouloumpas v. Greece , judgment of 29 May 1997, Reports of Judgments and Decisions 1997 ‑ III, p. 927 , § 73 ) .

It follows that , insofar as it relates to the complaint under Article 6, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 and , insofar as it relates to the complaint s under Article 5 § § 1 (a), 4 and 5 , it must be left without separate examination.

6 . In respect of his complaint that his detention in February 2000 and the lack of possibility to obtain release constituted inhuman and degrading treatment the applicant relied on Article 3 of the Convention, which provides:

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

The Court reiterates that even if measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation , they do not per se raise an issue under Article 3 (see KudÅ‚a v. Poland [GC], no. 30210/96, §§ 92 ‑ 93, ECHR 2000 ‑ XI) . The applicant did not complain about the conditions of his detention; he merely submit ted that the detention itself, coupled with the impossibility to obtain release, was contrary to Article 3. However, th e se are issues which fall to be examined under Article 5 , not Article 3 of the Convention .

It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint s that his imprisonment in February 2000 was 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 the preceding paragraphs of Article 5 ;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President