FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40063/98 by Iavor MITEV against Bulgaria

The European Court of Human Rights ( Fourth Section) , sitting on 21 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 October 1997 and registered on 3 March 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant is a Bulgarian national, born in 1967 and living in Sofia. He is represented before the Court by Mr Nikolay Runevski and Mr Vasil Vasilev , lawyers practising in Sofia.

A. The circumstances of the case

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

On 26 November 1992 the applicant was arrested and detained on remand on theft charges.

On an unspecified date soon after his arrest, the applicant was examined by a forensic psychiatric expert. The expert noted in her report that the applicant was addicted to drugs and that he was in need of medical treatment. Despite these findings, no measures were taken. The applicant suffered acute withdrawal symptoms as a result of the lack of drugs.

On 11 January 1993 the applicant was released on bail.

On 16 or 26 October 1993 the applicant was arrested, charged with additional counts of theft, and detained on remand. On an unspecified date the applicant was examined by a forensic psychiatrist who concluded that the applicant was physiologically and psychologically addicted to drugs and that he needed medical treatment. As no such treatment was provided the applicant again suffered acute withdrawal symptoms.

On 8 April 1994 the applicant was released on bail.

On 5 August 1994 the applicant was again arrested, charged with additional counts of theft and detained on remand. The applicant was again examined by a forensic doctor but again suffered acute withdrawal symptoms in his arrest cell despite their recommendation that a treatment of his drug addiction should be undertaken.

On 17 October 1994 the applicant’s petition for release was dismissed by a prosecutor.

On 5 January 1995 another petition for release was dismissed on grounds that the applicant had continued his criminal activity after his release on 8 April 1994 and that therefore there existed a danger of re-offending.

The applicant has not provided details about the events between January 1995 and August 1996. It appears that he remained in detention on remand.

On 27 August 1996 a request for release submitted by the applicant was dismissed by a district prosecutor. That decision was upheld on 23 September 1996 by a regional prosecutor. The applicant’s ensuing appeal was dismissed on 9 October 1996 by the Chief Public Prosecutor’s Office. The decision stated, inter alia , that the applicant was charged with numerous serious crimes and that there were other criminal proceedings pending against him. Therefore section 152 § 2 of the Penal Code was inapplicable. The detention was justified under paragraph 3(1) of section 152.

On 21 February 1997 an indictment against the applicant was submitted by the prosecutor to the Sofia District Court.

On 11 March and 24 April 1997 the applicant submitted to the Sofia District Court, through the prison administration, appeals against his detention. The applicant was never notified of any examination or decision on his appeals.

On 12 August 1997 the applicant again appealed to the Sofia District Court against his detention on remand. The District Court held a hearing on 25 September 1997 and ordered the applicant’s release. The District Court noted that all evidence in the case had been collected, that the applicant had no criminal record and that there was no danger of absconding or re-offending. The court also noted that the applicant had been diagnosed as suffering from addiction to drugs and that it had been considered in previous reports that he had been in need of medical treatment.

Despite the District Court’s decision the applicant was only released on 23 October 1997.

On an unspecified date the applicant brought a civil action against the prosecuting authorities and the District Court claiming damages for his allegedly unlawful detention between August and October 1997. The applicant has not substantiated further details.

B. Relevant domestic law and practice

The relevant part of section 152 of the Code of Criminal Procedure, as in force at the relevant time and until 4 June 1995, provided as follows:

"(1)Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years' imprisonment or capital punishment.

(2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or committing another crime."

The relevant paragraphs of section 152, as in force after 4 June 1995 and until August 1997, provided as follows:

"(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 not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.

(3) Paragraph 2 shall not apply where other criminal proceedings for [a publicly prosecuted] crime are pending against the accused person …”

According to section 93 § 7 of the Penal Code a "serious" crime is one punishable by more than five years' imprisonment.

According to the Supreme Court's practice section 152 § 1 of the Code of Criminal Procedure requires 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) shall be detained on remand. The only exception is provided for under section 152 § 2, which entitles the authorities not to detain an accused in case it is clear, beyond doubt, that there may be no danger of absconding or re-offending. Such danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or of an old age, or who is detained on other grounds, such as serving a sentence.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that on each of the three occasions when he was arrested and detained on remand he suffered acute withdrawal symptoms as a result of deprivation of drugs, to which he had been addicted. The applicant maintains that it was inhuman to lock him in an ordinary arrest cell without medical supervision despite the fact that he was patently in need of treatment because of his drug addiction. The applicant also invokes Article 13 of the Convention stating that he did not have an effective remedy in respect of the alleged violation of Article 3.

2. The applicant complains under Article 5 § 1 of the Convention that his detention between 25 September 1997, when his release was ordered, and 23 October 1997, when he was actually released, was unlawful.

3. The applicant complains under Article 5 § 3 of the Convention that he was not brought before a judge or an officer exercising judicial functions on any of the three occasions when he was arrested and detained on remand. He also complains that his detention was unjustified and excessively lengthy.

4. The applicant complains under Article 5 § 4 of the Convention that two of his judicial appeals against his detention were never examined. He also submits that his third appeal to the Sofia District Court was submitted on 12 August 1997, but was only examined on 25 September 1997, in breach of the relevant domestic law.

5. The applicant complains under Article 5 § 5 of the Convention that Bulgarian law does not provide for an enforceable right to obtain compensation in cases of violations of Article 5. The existing Law on State Responsibility for Damage covers only a limited number of cases.

6. The applicant complains under Article 6 § 1 of the Convention of the alleged excessive length of the criminal proceedings against him.

7. The applicant complains under Article 13 of the Convention that he did not have an effective remedy in respect of the alleged violations of the Convention in his case.

THE LAW

1. The applicant complains under Article 3 of the Convention that on the three occasions when he was arrested he suffered gravely as a result of the failure of the authorities to take into account his medical condition of a drug addict. He also complains under Article 13 that he did not have an effective remedy in this respect.

The Court notes that the above complaint concerns events of November 1992, October 1993 and August 1994. Since then it has not been dealt with in any domestic proceedings and, indeed, the applicant has stated that there were no effective remedies under Bulgarian law in this respect. The applicant first wrote to the Convention organs on 23 October 1997.

In these circumstances it cannot be considered that the above complaint has been introduced in keeping with the requirements of Article 35 § 1 of the Convention. It must be therefore rejected in accordance with Article 35 § 4.

2. As regards the remainder of the application the Court considers that it cannot, on the basis of the case-file, determine its admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints that his detention between 25 September and 23 October 1997 was unlawful, that he was not brought before a judge or an officer exercising judicial power on any of the three occasions when he was arrested and detained on remand, that his detention was not justified and excessively lengthy, that two of his appeals against detention were not examined and the third one was not dealt with speedily, that he did not have under Bulgarian law an enforceable right to compensation in respect of the alleged violations of Article 5 of the Convention, that the criminal proceedings against him were excessively lengthy and that he did not have an effective remedy in respect of the alleged violations of the Convention in his case;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President