FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39084/97 by Todor Antimov YANKOV against Bulgaria

The European Court of Human Rights (First Section), sitting on 12 September 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 5 September 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 11 May 2000,

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 Todor Antimov Yankov , is a Bulgarian national, who was born in 1943 and lives in Plovdiv . He was represented by Mr M. Ekimdjiev , a lawyer practising in Plovdiv .

The respondent Government were represented by Mrs G. Samaras, co ‑ agent, Ministry of Justice.

A. The circumstances of the case

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

The applicant was executive director of an agricultural investment fund and a financial company. He also used to teach economics, an area in which he holds an academic degree.

1. The course of the criminal proceedings against the applicant

(a) Preliminary investigation

On 11 March 1996 a preliminary investigation no. 300/96 was opened by the Plovdiv District Public Prosecutor against him and other persons in respect of a number of financial transactions. The applicant was charged under Article 282 §§ 2 and 3 of the Criminal Code (see Relevant domestic law) on suspicion that he had breached his professional duties with a view to obtaining an unlawful gain for himself and others.

Throughout the investigation there were several modifications of the charges. Eight persons were charged.

On an unspecified date another preliminary investigation, under file number 929/96, concerning charges of misappropriation of funds, was opened against him.

During the preliminary investigation, which lasted one year and nearly two months, the investigator heard 47 witnesses, examined numerous financial and banking documents, commissioned reports, and undertook searches.

Several times during the proceedings the case file was unavailable as it was repeatedly transmitted to the competent court for the examination of the appeals submitted by the applicant and his co-accused against their detention on remand. In practice, whenever such an appeal was submitted, the case file was transmitted together with the appeal.

On 5 May 1997 the preliminary investigation was completed and the file was transmitted to the competent prosecutor.

On 1 July 1997 the prosecutor submitted a 32-page indictment to the Plovdiv District Court, accompanied by 20 binders of documentary material.

(b) The trial

The first hearing took place from 17 to 30 September 1997. The District Court heard the accused persons, several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment.

The hearing resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses had not been summoned properly and others, albeit summoned, did not appear. The hearing was adjourned until 7 January 1998.

On 1 December 1997 the court, sitting in private, granted the request of one of the accused persons for additional questions to the experts. The experts submitted their report on 5 January 1998.

The trial resumed on 7 and 8 January 1998. The court adjourned the hearing as some witnesses had not appeared and ordered an additional financial report.

Throughout the proceedings the District Court and, later, the Regional Court (see below) sought police assistance to establish the addresses of witnesses and bring them before the court.

The hearing in the applicant’s trial which had been scheduled for 9 April 1998 was adjourned to 6 July 1998 and then to 19 October 1998 due to the applicant’s ill health.

On 19 October 1998 the District Court held its last hearing. It heard the final pleadings of the parties.

On 30 October 1998 the Plovdiv District Court found the applicant guilty of having ordered money transfers abroad in violation of the relevant financial regulations. The transfers had been ordered without proof of a lawful purpose and on behalf of clients of the applicant’s financial company whom he had not fully identified. The applicant was also found guilty of having issued a proxy authorising another person with wide ranging powers in breach of his duties as the manager of the financial company. The applicant was acquitted on the remainder of the charges against him and sentenced to five years’ imprisonment.

The reasoning of the District Court’s judgment was served on the applicant on an unspecified date in February 1999.

(c) Appeal proceedings

On 19 November 1998 the applicant appealed against his conviction and sentence.

More than a year later, on 6 December 1999 the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000, due to one of the co-appellant’s health problems.

On 13 and 14 March 2000 the Regional Court held its hearing in the case.

On 5 June 2000 the Regional Court quashed the applicant’s conviction and sentence and remanded the case to the preliminary investigation stage.

The Regional Public Prosecutor’s Office in Plovdiv , considering that the Regional Court’s judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the time-limit for such an appeal, which was brought by the prosecution authorities to the Supreme Court of Cassation . On 27 November 2000 that court dismissed the prosecution’s request.

As of January 2001 the preliminary investigation in the applicant’s case was pending before the prosecution authorities in Plovdiv .

2. The applicant’s detention

(a) Detention until the beginning of the trial

On 12 March 1996 the applicant was arrested and detained pending trial in the framework of investigation no. 300/96 by decision of an investigator, confirmed by a prosecutor.

On 18 March 1996 the applicant appealed against his pre-trial detention to the Plovdiv Regional Public Prosecutor. He alleged, inter alia , that the facts on which he was charged, account being taken of the banking and currency regulations as in force at the relevant time, did not constitute a criminal offence and that he was therefore charged unlawfully. He also alleged that there had been no danger of his absconding or committing further offences. On 27 March 1996 the appeal was dismissed by the Regional Public Prosecutor who stated, inter alia :

“Since Yankov has been charged under Article 282 § 2 of the Criminal Code, pre-trial detention is mandatory in accordance with Article 152 § 1 of the Code of Criminal Procedure. The possibility not to impose pre-trial detention is to be considered by the preliminary investigation bodies only if, regard being had to the nature of the case and the particular circumstances relating to the accused, there is no danger that he might abscond, commit further offences, or obstruct the course of justice.

The material in the case indicates that if Yankov is released, there is a danger that he might abscond, commit further offences or obstruct the course of justice... The preliminary investigation bodies are not under any obligation to set out the facts on the basis of which the above conclusions have been made.”

On 18 April 1996 the applicant requested the District Court to release him on the ground that the charges laid against him did not contain particulars of the alleged offence and that the provisions invoked were inapplicable as he was not an employee or an officer of the bank whose funds were at stake. The parties have not provided further information on the examination of this appeal.

On 29 April 1996 a prosecutor from the Chief Public Prosecutor’s Office upheld the Regional Public Prosecutor’s decision of 27 March 1996 while adding that the danger of absconding, committing offences or obstructing the course of justice stemmed from the fact that the applicant had financial and other relations with persons who had left the country. The arguments of the applicant, based on an analysis of the relevant banking and currency regulations, that he had not committed a crime, were to be assessed only by the investigator and then in the process of examination of the criminal case on the merits.

On 11 September 1996 a further appeal was dismissed by a higher ranking prosecutor at the Chief Public Prosecutor’s Office on the ground that, as the preliminary investigation was still pending, there was a risk that the applicant would seek to obstruct the course of justice. Furthermore, arguments going to the substance of the charges could only be examined once the necessary evidence was collected.

On 12 September 1996 the applicant submitted to the District Prosecutor’s Office another request for release. He stated, inter alia , that he had been detained for a long period and that all the relevant evidence had been collected.

On 15 November 1996 the applicant requested to be examined by medical doctors as his health was deteriorating due to the long period of detention.

On 12 December 1996 the applicant lodged further applications for release with the District and the Chief Public Prosecutors.

On 13 December 1996 the District Public Prosecutor dismissed the applications noting, inter alia , that the applicant had been charged with a serious intentional offence and that two preliminary investigations were pending against him.

On 28 December 1996 the applicant complained to the Regional Public Prosecutor that his pre-trial detention was unlawful.

This complaint was dismissed on 30 January 1997 on the grounds that a second preliminary investigation (no. 929/96) was pending against him for serious offences, which excluded the application of section 152 § 2 of the Code of Criminal Procedure. The detention of the accused person was thus obligatory. Moreover, the investigation in the case under examination, no. 300/96, was progressing and was soon to be completed.

On 13 February 1997 the applicant complained against his pre-trial detention to the District Court, on the ground that the statutory maximum period for the investigation had been exceeded and that, the accusation being based on already examined documents, there was no danger of him tampering with evidence. In addition, although he had been questioned on several occasions prior to his arrest he had never attempted to abscond.

The application was submitted to the District Prosecutor’s Office which, according to the established practice, had to transmit it to the District Court together with the case-file. As of 25 February 1997, when the applicant’s lawyer complained to the District Prosecutor’s Office, his appeal had not yet been transmitted to the court.

On an unspecified date the applicant complained to the prosecution authorities that his pre-trial detention, as ordered in the framework of preliminary investigation no. 929/96, the second investigation pending against him, had been unlawful. On 11 March 1997 the Regional Public Prosecutor examined the above appeal and decided to terminate the applicant’s pre-trial detention, as ordered in the framework of investigation file no. 929/96, as the applicant was detained pending trial under the preliminary investigation no. 300/96.

The applicant’s pre-trial detention ordered in the framework of the preliminary investigation no. 300/96 was extended on 23 April 1997 by the District Public Prosecutor.

On 24 and 26 March 1997 the applicant’s lawyer reiterated his request for a medical examination of his client. He stated that upon his visit on 21 March 1997 he had found the applicant in an apparently bad state of health. It appears that a medical examination was undertaken on an unspecified date in the following weeks.

On 23 April 1997 the District Prosecutor refused to release the applicant. She took into consideration the medical report, which apparently concluded that the applicant suffered from high blood pressure, arterio -sclerosis, a kidney stone, diabetes, problems with his lungs and with the prostate, problems with the brains’ blood vessels and depression. The prosecutor found, after examining the treatment prescribed by the doctor, that the applicant could be treated in a pre-trial detention facility with a moderate risk for his health and that his state of health should be carefully followed. She also emphasised that the applicant had been charged with a serious offence which in her opinion made the applicant’s release impossible.

On 23 July 1997 the applicant appealed against his pre-trial detention to the District Court on the ground that the charges against him were weak. He further claimed that his detention had become unnecessary as all the evidence had been collected. He reiterated that he had a family and a permanent address, that he was a respected citizen, and that there had never been convincing evidence of a danger of absconding, committing offences or obstructing the course of justice. He further complained about his bad health and enclosed medical reports of 10 January, 19 and 27 June 1997. The applicant’s lawyer also invoked the Convention and requested the court to give reasoned replies on each of his arguments.

After examining the applicant’s case in camera, the District Court dismissed the application for release on 28 July 1997. The court stated:

“The defendant Todor Antimov Yankov is indicted under section 282 § 3 of the Criminal Code with an aggravated case of breaches of his professional duties. In accordance with section 152 § 1 of the Code of Criminal Procedure pre-trial detention shall be imposed when a person is accused of having committed an intentional grave offence. In the case of the defendant Todor Yankov , he is suspected of having committed a grave intentional offence. The grounds for the exception provided for under paragraph 2 [of section 152] [allowing a detainee to be released from pre-trial detention] are not present in the [applicant’s] case, since there exists a real danger of his obstructing the course of the proceedings or absconding. In addition, according to section 152 § 3 of the Code of Criminal Procedure, the exception laid down in its § 2 cannot avail a defendant in a case where preliminary investigations for another criminal offence are pending against him. It is apparent from the documents in the case that the Plovdiv Dictrict Public Prosecutor’s Office had separated and transmitted to the Sofia Regional Public Prosecution material in relation to another offence. Therefore, there is no valid ground for the applicant’s release.”

On 29 July 1997 the applicant appealed to the Regional Court. On 30 July 1997, before transmitting the appeal, the District Court sitting in private upheld its refusal to release the applicant. On 4 August 1997 the file was transmitted to the Regional Court. On 11 August 1997 the Plovdiv Regional Court sitting in private dismissed the applicant’s appeal on the same grounds. After having examined the medical report, that court held that the conditions of detention were not damaging for his health.

(b) Detention during the trial

At the first trial hearing before the Plovdiv District Court on 17 September 1997 the applicant appealed against his detention. The appeal was dismissed on the ground that the applicant had been charged with a serious intentional offence for which detention was mandatory and that the exception provided by Article 152 § 2 of the Code of Criminal Procedure could not avail a defendant in a case where preliminary investigations for another criminal offence were pending against him.

On 25 November 1997, at the second hearing before the Plovdiv District Court, the applicant appealed against his detention on the ground that he could not obstruct the course of justice, as all the evidence and relevant testimonies had already been examined by the court. The court dismissed his appeal on the same day. On 1 December 1997 the applicant appealed to the Regional Court. On 15 December 1997 that appeal was dismissed by the Regional Court sitting in private.

The applicant’s renewed application for bail was dismissed by the District Court at its hearing on 8 January 1998. On 13 January 1998 the applicant appealed to the Regional Court. Before transmitting that appeal, on 14 January 1998 the District Court sitting in private re-examined and confirmed its refusal to release the applicant. On 19 January 1998 the Regional Court sitting in private dismissed the appeal.

On 9 February 1998 the applicant’s lawyer sought a medical examination for the applicant as his health had deteriorated and he had to spend four days in hospital. On 27 February 1998 the applicant was examined by a doctor who recommended that he should be sent to a hospital specialising in cardiology and that he should undergo a specialised medical treatment.

On 9 March 1998 the applicant requested his release on the basis of that medical report. He further complained that there was no evidence of any danger that he might abscond or commit further offences.

Between 10 and 17 March 1998 the applicant was detained in a disciplinary isolation cell (see below).

On 19 March 1998 the District Court examined the appeal of 9 March 1998 in the presence of the applicant. The court dismissed it holding that the health risk for the applicant was the same no matter whether he was in detention facilities or at home. On 24 March 1998 the applicant appealed to the Regional Court. Before transmitting the appeal, on 25 March 1998 the District Court sitting in private re-examined and confirmed its refusal to release the applicant. The appeal was dismissed on 30 March 1998 by the Regional Court sitting in private. It found that there had been no change of circumstances or new facts capable of demonstrating that the applicant would not commit offences, obstruct the course of justice or abscond.

In the meantime, on 20 March 1998 the applicant was again examined by three doctors who found that he was suffering from thrombosis which might endanger his life and recommended rest and regular check-ups by a specialist. On 25 March 1998 the applicant was hospitalised.

On 9 April 1998 the applicant submitted a renewed bail application mainly on the ground of his ill health. It was dismissed on 23 April 1998 by the District Court at a hearing at which the court heard three medical doctors and found that the applicant’s health was adequately monitored and that he received medical treatment. On 29 April 1998 the applicant appealed to the Regional Court. On 30 April 1998, before transmitting the appeal, the District Court sitting in private re-examined and confirmed its refusal to release the applicant. The appeal was dismissed on 11 May 1998 by the Regional Court sitting in private on the ground that the applicant would obstruct the course of justice if released. The court further found that “the length of the detention could not serve as an argument for a deviation from the strict provisions of section 152 of the Code of Criminal Procedure” and that the applicant’s medical problems could be adequately addressed by his transfer to the Sofia prison, where medical service was presumably better. On 19 May 1998 the applicant was transferred to the Sofia prison.

On 30 June 1998 the applicant was admitted to hospital.

On 6 July 1998 the applicant requested again to be released on bail invoking his ill health and the excessive length of his detention.

On 9 July 1998 the District Court at a hearing decided to release the applicant on bail on health grounds. The applicant posted bail and was released on 10 July 1998.

3. The punishment of the applicant with confinement in an isolation cell in March 1998

On 10 March 1998 during a search of the applicant before a meeting with his lawyers the prison administration seized a typewritten material. The applicant submitted that that had been the draft of a book he had been writing, describing events concerning his detention and the criminal proceedings against him. He had intended to read some passages to his lawyers. According to the prison officer who seized the material, the applicant had intended to transmit it to his lawyer.

The Government submitted several pages of the seized material. It transpires that the manuscript was in a rough form and was not ready for publication. Relevant passages read as follows:

“The charges against me did not contain any facts or evidence indicating any criminal intention on my part or an offence committed by me... I cannot but consider the acts of the authorities against me as unjustified and unlawful...

The ... door clicked ... we stood up, hands behind the back, our backs turned to the guards: they are afraid that we might attack them, with our plastic cups ... I never understood why these well-fed idlers were afraid, always two or three of them being present when the food was distributed... I was eating only 2-3 bread crusts and as much spoons full of the slops they called soup. We were hearing how they were diluting the soup ... How painful were these moments - to see the eyes of a hungry fellow prisoner ...to see how human beings are turned into beasts ... It is true that the economic situation in Bulgaria was difficult ... But giving so little and such bad food to detained people was inhuman... even more so when we felt the aroma of roasted or fried meat coming from the guards’ premises. This is sadism...

It was very difficult when they prohibited meetings with relatives and friends. That was not done everywhere: in Plovdiv magistrates had decided to break a record in inhuman treatment of detainees...

[In the beginning] I did not know and never suspected what the investigation and judicial organs of democratic Bulgaria were like. For a long time I was hoping that there had been a misunderstanding. ..

The search [in the apartment] was conducted by police officer [B.] Inexperience transpired from his behaviour; he was a provincial parvenu...

Could I imagine, when I worked 15-16 hours per day ... that the time would come when everything that I had done ... would be rejected ... by several powerful unscrupulous people, ‘servants of law and order’ ?

Toilet time is 1.5 - 2 minutes ... If someone stays longer there follow shouting, cursing, clattering on the door, truncheon blows... You can’t believe that? Well, I did not believe either that such conditions of life may exist in this country ...

The guards, most of whom are simple villagers and are paid ... better than teachers, doctors and engineers, ‘work’ 24 hours and then have a 72-hour rest ...They are the authority in prison, they are everything, we depend on them. It is true that there are younger and more intelligent boys, but they are a minority ...

Whenever we complained about all these disgraces, there was no effect... Twice there were inspections...., all police officers were running, it was necessary to clean, to put the detention centre in a better shape; they were afraid of complaints by prisoners. But the inspectors came, made a formalistic visit and went away.”

On 10 March 1998, after having heard the applicant and the prison officers involved, the Director of the prison in Plovdiv issued order no. 99 which read as follows:

“In accordance with section 76(k) of the Execution of Sentences Act, the detainee Todor Yankov shall be punished by seven days confinement in an isolation cell ... for having made offensive and defamatory statements against police officers, investigators, judges, prosecutors and state institutions.”

Order no. 99 was not served on the applicant. It was enforced immediately, on 10 March 1998.

It appears that before his transfer to the disciplinary isolation cell the applicant was examined by a doctor.

Also before his bringing to the cell his hair was shaved off.

According to the applicant, the solitary-confinement facility had no toilet and he had to use a bucket which was not emptied regularly. Hygiene was poor and there was insufficient light.

On an unspecified date the applicant’s lawyers, having learned about the punishment, telephoned the General Director Manager of Prisons and Detention Facilities, in whom appropriate powers are vested to examine appeals against confinement in an isolation cell.

On 17 March 1998 the applicant left the isolation cell.

On 19 March 1998 he appeared at an open hearing of the District Court. The fact that his head had been shaven nine days earlier was noticeable. The applicant was visibly weakened.

On 20 March 1998 the applicant’s lawyers complained against the prison director to the Deputy-Minister of Justice. They conveyed, inter alia , the applicant’s concern that the prison director had repeatedly demonstrated a personal hostility against him and had acted unlawfully.

On 29 April 1998 the Deputy-Minister of Justice replied to the applicant’s lawyers. She stated, inter alia :

“An inquiry was conducted in connection with your appeal against the alleged unlawful acts of the [prison director]... By an order N/ 99 of 10 March 1998 ... the accused Yankov was sentenced to seven days’ confinement in an isolation cell. This disciplinary measure has been imposed because the papers seized contained expressions and qualifications which were offensive for the Ministry of the Interior employees, the investigation bodies, the judiciary, the prosecution, the prison authorities and state bodies and institutions (section 46 of the Regulations). He was not sentenced because he had written the paper in question and wanted to take it out from the prison, which is, indeed, his right. That paper was given back to the accused Yankov .

The accused suffers from a chronic disease - thrombophlebitis . He has been constantly supervised and treated in the prison. He was sent twice for outside treatment and he will be sent again for outside treatment if the need arises”.

B. Relevant domestic law and practice

1. Criminal Code ( Наказателен кодекс )

Section 282 § 1

“A person [exercising a function of managing another person’s property or an official function], who acts in breach or dereliction of his professional duties, or exceeds his power or rights with a view to obtaining a material gain for himself or others or inflicting damage to others, and thus causes harm or substantial damage, shall be punished with up to five years’ imprisonment...”

The third paragraph of section 282, read in conjunction with the first and the second paragraphs of the same provision, provides for a punishment of three to ten years’ imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high ranking post.

2. Code of Criminal Procedure

(a) Legal criteria and practice regarding the requirements and justification for detention on remand

The Supreme Court has stated that it is not open to the courts, when examining an appeal against detention on remand, to inquire whether there exists sufficient evidence to support the charges against the detainee. The courts must only examine the lawfulness of the detention order (Dec. no. 24 of 23.5.1995 in case no. 268/95, Bulletin 1995, p. 149).

At the relevant time paragraphs 1 and 2 of Article 152 read:

“(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.

(2) In the cases falling under paragraph 1 [detention on remand] may possibly not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing further offences.”

According to Article 93 § 7 of the Penal Code a “serious” crime is one punishable by more than five years’ imprisonment.

Paragraph 3 of Article 152, which was in force until August 1997, provided that the application of paragraph 2 of the same provision was excluded where other criminal proceedings for a publicly prosecuted crime were pending against the accused person, or where he was a recidivist.

According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of the amendments in force since 1 January 2000) Article 152 § 1 required that a person charged with a serious wilful crime (or with a crime punishable by ten or more years’ imprisonment, according to this provision as in force before June 1995) had to be detained on remand. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any danger of absconding or re-offending was objectively excluded as, for example, in the case of an accused who was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Dec. 1 of 4.5.1992 in case no. 1/92, Bulletin 1992/93, p. 172; Dec. no. 4 of 21.2.1995 in case no. 76/95; Dec. no. 78 of 6.11.1995 in case no. 768/95; Dec. no. 24 in case no. 268/95, Bulletin 1995, p. 149).

(b) Appeals against detention during the trial

According to Article 304 § 1 of the Code of Criminal Procedure, the detainee’s applications for release at the trial stage of criminal proceedings are examined by the trial court.

It follows from Article 304 §§ 1 and 2 that such requests may be examined in private or at an oral hearing. The law does not require the trial court to decide within a particular time-limit.

The trial court’s decision as regards a request for release is subject to appeal to the higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 318 § 2). According to Article 347, after receiving the appeal, the trial court, sitting in private, shall decide whether there exist grounds to annul or vary its decision. If it does not find a reason to do so the trial court transmits the appeal to the higher court.

Before doing so, the trial court must communicate the appeal to the other party and receive its written observations (Article 348 § 4 in conjunction with Articles 320 and 321). The law does not provide for the prosecutor’s observations to be communicated to the appellant.

Article 348 provides that the appeals court may examine the appeal in private or, if it considers it necessary, at an oral hearing. The law does not require the appeal court to decide within a particular time-limit.

As to the relevant domestic practice, the First Criminal Division of the Supreme Court has held that, in deciding on appeals against pre-trial detention, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order ( опред . No. 24 от 23.5.1995 по н.д . 268/95, I н.о . на ВС, Сб . 1995, стр . 149).

3. Execution of Sentences Act and Regulations implementing it, as in force at the relevant time

According to section 76(k) of the Act a prisoner who has committed a disciplinary offence may be punished by confinement in an isolation cell for up to 14 days.

Section 46 of the Regulations provides that when a prisoner’s writings and appeals contain denigrating and offensive language he may be subject to disciplinary and criminal punishment.

According to sections 43(2) and 98 of the Regulations, a prisoner who was sentenced to confinement in an isolation cell may appeal to the General Director Manager of Prisons and Detention Facilities through the prison’s director. All appeals must be transmitted by the prison authorities within 24 hours, together with the director’s comments. The General Director Manager shall reply within three days upon receipt of the appeal. Such an appeal does not suspend the serving of the confinement in an isolation cell.

4. State Responsibility for Damage Act

Section 2 provides in its relevant part:

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

1. detention ... , if [the detention order] has been overturned for lack of lawful grounds[.]”

5. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) on their visit to The former Yugoslav Republic of Macedonia in 1998, published on 11 October 2001

“...[T]he CPT wishes to draw attention to ... practices observed by its delegation...[in one prison]. The first was the shaving of the heads of newly-arrived residents and of those who had been returned to the institution after escapes. Senior staff at that establishment accepted that such a procedure has no medical justification and could be considered degrading...

The CPT recommends that the authorities of “the former Yugoslav Republic of Macedonia ” put an end to these practices.”

COMPLAINTS

The applicant complains under Articles 3, 10 and 13 of the Convention about his seven day’s stay in disciplinary isolation cell and the fact that his hair was shaved off. He submits that he was subjected to inhuman and degrading treatment and that his punishment for writing a book allegedly denigrating the judicial system and the Government and the confiscation of that manuscript amounted to unjustified interference with his right to freedom of expression. He also complains that he did not have an effective remedy in this respect within the meaning of Article 13.

The applicant complains under Article 5 § 3 of the Convention that upon his arrest he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

He complains under the same Article that his detention was unreasonably lengthy, that there were no sufficient reasons justifying his long detention and that there were delays in the proceedings.

The applicant complained under Article 5 § 4 of the Convention that the judicial review of his detention was only a formality, that his judicial appeals against his pre-trial detention had not been examined speedily and that some of them had been examined by the courts in private. This complaint concerns proceedings after 23 July 1997.

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

The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively lengthy.

THE LAW

1. Complaints under Articles 3, 10 and 13 of the Convention that the applicant was punished with confinement in an isolation cell for writing a book, that the conditions in the disciplinary cell and the fact that his head was shaved amounted to inhuman and degrading treatment and that he did not have an effective remedy in this respect.

(a) The parties’ submissions

The Government submitted that there had been abuse of the right to petition as the applicant had allegedly stated untrue facts and had not exhausted all domestic remedies. His statement that his lawyers had complained to the General Director Manager by telephone had not been proven. In any event, the relevant procedure had required that a complaint to the General Director Manager should be filed through the prison director. Instead, the applicant’s lawyers had complained ten days after the events to the Deputy Minister of Justice. Furthermore, the issues under Articles 3 and 10 of the Convention had not been raised before the domestic authorities, no complaints had been made before the prosecution authorities and the possibility to file a civil claim on the basis of general civil law had not been used.

The Government also stated that the punishment had been lawful, imposed in accordance with a procedure which had afforded the applicant an opportunity to comment on the accusation against him, and had been justified. The applicant had intended to transmit to his lawyers, without prior permission, a written material unrelated to the criminal proceedings against him. That had been, per se , a violation of the relevant prison rules, regardless of the contents of the text. In any event, since his manuscript had contained offensive and defamatory statements, the measures against the applicant had been justified under Article 10 § 2 of the Convention for the protection of the reputation of others and for maintaining the authority of the judiciary. The sanction had been justified as the applicant had been detained; he was free to publish his views after his release.

As regards the shaving of the applicant’s head, that had been a hygienic measure against parasites and had not been intended to humiliate him. In particular, the shaving had not taken place in front of other detainees.

The applicant replied that he had complained in all practically possible ways against the confinement in an isolation cell and that, in any event, none of the remedies suggested by the Government had been effective. In particular, appeals to the General Director Manager could not suspend the execution of disciplinary punishments. Furthermore, the applicant had not been served with a copy of order no. 99 and, immediately upon the issuance of that order, he had been moved into a disciplinary isolation cell where writing or receiving letters had not been allowed. Even if he could somehow succeed in sending a complaint, the time necessary for its processing by the prison director, for its transmission to the General Director Manager and for decision by him would have in all likelihood exceeded the seven days of his punishment. Furthermore, the Government’s reference to other remedies, such as complaints to the prosecution authorities and to the courts, had been a groundless and frivolous general statement: the prosecution authorities were not competent to modify or quash a disciplinary order against a detainee, neither were the courts.

In the applicant’s view it was further incorrect that he had been punished for having attempted to transmit something to his lawyer. The applicant stressed that he had been punished for having written critical statements against the authorities. Furthermore, under the relevant domestic law, he had been entitled to transmit uncontrolled correspondence to his lawyer. In any event, it was not true that his manuscript did not concern the criminal proceedings against him.

The applicant objected against the Government’s assertion that his hair had been shaved off for hygienic reasons stating that there had been no allegation that a vermin problem had existed in the particular detention centre at the relevant time. In his view the shaving of his head had been a barbaric act lacking any legal basis. The humiliation suffered by the applicant, 55 years old at the time, a person with higher education and an academic degree, had been particularly painful. Although no one had been present at the moment his hair had been shaved off, the result had remained visible for a long period after that. Furthermore, the conditions in the disciplinary cell had been inhuman, particularly for a person who suffered from serious chronic decease.

(b) The Court’s decision on admissibility

The Court, examining the Government’s objection that there has been an abuse of the right to petition within the meaning of Article 35 § 3 of the Convention, observes that the Government have not substantiated their reference to alleged untrue statements by the applicant. The objection is therefore unfounded and must be rejected.

As regards the exhaustion of domestic remedies, the Court considers that, regard being had to the particular circumstances, the applicant made normal use of the available remedies: he was heard by the prison director before the issuance of order no. 99, his lawyers telephoned the General Director Manager of Prison Facilities and complained to the Deputy Minister of Justice who was competent to supervise the activities of the prison administration. They obtained a reasoned decision which confirmed the lawfulness of the disciplinary punishment. Furthermore, it transpires from the text of the decision of the Deputy Minister of Justice that the applicant’s lawyers had raised in substance the questions under Articles 3 and 10 of the Convention.

The Government’s objections must therefore be dismissed.

The Court considers, in the light of the parties’ submissions, that the complaints under Articles 3, 10 and 13 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints 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. The complaints are therefore admissible.

2. Complaints under Article 5 § 3 of the Convention that upon his arrest the applicant was not brought promptly before a judge or other officer authorised by law to exercise judicial power and that his detention was unreasonably lengthy.

(a) The parties’ submissions

The Government did not comment on the first limb of the applicant’s complaint.

As regards the justification of the length of his detention, the Government explained that its necessity had been presumed on the basis of the severity of the charges against him. Release had only been possible if the applicant had proven before the national authorities sufficient facts establishing that any danger of absconding or committing an offence, however remote, had been excluded. He had not done so. He had been released on bail when that had become necessary on medical grounds.

In the Government’s view, the authorities had worked on the case with the required diligence. The case had been very complex: it concerned several persons accused of offences relating to complex financial operations. The investigator’s file had had more than a thousand pages organised in 20 binders. At the trial stage the prosecution had relied on 59 witnesses and the defence had listed more witnesses. The difficulties in summoning so many witnesses had inevitably caused adjournments. The applicant or some of the other co-accused had been responsible for a number of adjournments because of illness and where they had sought to adduce additional evidence. Furthermore, the case-file had been transmitted to the higher court eight times, for the examination of requests for release on bail. The District Court had taken all necessary measures to reduce the delay: it had listed hearings in three-months intervals and had sought police assistance for summoning witnesses.

The applicant replied that the authorities had not established the existence of any danger of absconding or committing an offence. As he had never been convicted, had a family, an established professional life and a permanent residence, he should have not been kept in detention on remand.

The applicant agreed with the Government that the preliminary investigation had been completed within a reasonable time but stated that there had been delays at the trial stage.

(b) The Court’s decision on admissibility

The Court considers, in the light of the parties’ submissions, that the complaints under Article 5 § 3 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints 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. The complaints are therefore admissible.

3. Complaints under Article 5 § 4 of the Convention in respect of the scope, the procedure and the speediness of the judicial review of the applicant’s  detention after 23 July 1997.

The Government stated that these complaints were manifestly ill-founded as the courts had taken into account all relevant factors and had acted lawfully and diligently.

The applicant stated that according to the national law and practice at the relevant time the scope of judicial control on detentions had been very limited and that as a result none of the decisions in the applicant’s case had included a proper analysis of all factors determining the detention’s lawfulness.

He further considered that his appeals had not been examined speedily and that the requirements of adversarial proceedings were violated in that the District Court on 28 July 1997 and the Regional Court had on all occasions examined his appeals in private.

The Court considers, in the light of the parties’ submissions, that the complaints under Article 5 § 4 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints 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. The complaints are therefore admissible.

4. Complaint under Article 5 § 5 of the Convention of the alleged lack of an enforceable right to compensation.

The Government did not comment on this complaint.

The applicant stated that under Bulgarian law it was not possible to obtain compensation for detention which violated the Convention but was effected in accordance with the formal requirements of the Code of Criminal Procedure. He stressed that there had never been a single precedent of a detainee obtaining compensation in such circumstances.

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. The complaint is therefore admissible.

5. Complaint under Article 6 § 1 of the Convention of the length of the criminal proceedings against the applicant.

The Government referred to their submissions under Article 5 § 3 of the Convention and stressed the complexity of the case which required more time.

The applicant also referred to his submissions under Article 5 § 3 of the Convention and added that nine months had elapsed between the delivery of the District Court’s reasoning in February 1999 and the first hearing before the appellate jurisdiction, the Regional Court. Furthermore, the case had been remanded to the preliminary investigation stage and was likely to continue for several more years.

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. The complaint is therefore admissible.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President