Information Note on the Court’s case-law 50

February 2003

Shishkov v. Bulgaria - 38822/97

Judgment 9.1.2003 [Section I]

Article 5

Article 5-4

Review of lawfulness of detention

Time-limit on appeal against detention: violation

Facts : The applicant was arrested on 22 August 1997 on suspicion of theft and brought before an assistant investigator, who remanded him in custody, with the authorisation or approva l of a prosecutor. On 3 September, the applicant’s lawyer submitted, through the District Prosecutor’s Office, an appeal against the applicant’s detention. As the appeal apparently did not reach the District Court, the lawyer submitted a copy directly to t he court on 15 September. He also complained about the delays and about denial of access to the case file. Following a hearing on 19 September, the court dismissed the appeal on the ground that it had been submitted after expiry of the seven-day time limit . A further appeal against the detention was dismissed in February 1998. Following a third appeal, the court ordered the applicant’s release on bail in April 1998.

Law : Article 5 § 3 (promptly before a judge) – The applicant was brought before an assistant investigator who did not have power to make a binding decision and in any event neither the investigator nor the prosecutor who authorised the detention was sufficiently independent and impartial in view of the role they played in the prosecution (cf. Nik olova judgment, ECHR 1999-II).

Conclusion : violation (unanimously).

Article 5 § 1 – It was undisputed that there were reasonable grounds for suspecting the applicant and that his arrest was effected in accordance with domestic law. Moreover, there was no a llegation of arbitrariness. The detention thus fell within Article 5 § 1 (c).

Conclusion : no violation (unanimously).

Article 5 § 3 (length of pre-trial detention) – There were factors which were highly relevant to the assessment of the danger of absconding, reoffending and collusion and these constituted obvious and compelling reasons for the authorities to consider releasing the ap plicant well before April 1998. They were, however, disregarded by the investigator and the prosecutor, as well as by the District Court. The authorities relied solely on a statutory presumption based on the gravity of the charges, which shifted to the acc used the burden of proving that there was not even a hypothetical danger (cf. Ilijkov judgment of 26 July 2001). The applicant’s detention was therefore prolonged on grounds that could not be regarded as sufficient. While the majority of cases concerning t he length of pre-trial detention involve longer periods than in the present case – less than eight months – Article 5 § 3 cannot be seen as authorising pre-trial detention unconditionally provided it lasts no longer than a certain minimum period. Justifica tion for any period of detention must be convincingly demonstrated.

Conclusion : violation (unanimously).

Article 5 § 4 – (a) access to the file: It was established that the applicant’s lawyer was refused access to the file until at least 19 September 1997. He was thus unable to study any of the documents essential for determining the lawfulness of the applicant’s detention, while the prosecutor had the advantage of full knowledge of the file. This lack of equality of arms was incompatible with Article 5 § 4 .

Conclusion : violation (unanimously).

(b) first appeal: It was not necessary to determine the correct interpretation of the seven-day time limit or to decide when the appeal was submitted. The underlying purpose of Article 5 requires by implication that procedural limitations on the right to c hallenge the lawfulness of detention before a court must be subject to particularly strict scrutiny. Although the applicant was legally represented and could in any event have lodged an appeal in time without legal assistance, his lawyer was not given acce ss to the file, which undoubtedly hampered the preparation of the appeal in time. Furthermore, when the appeal came up for examination, the applicant’s detention, which had already lasted for nearly a month, had not been reviewed by an independent judicial officer and the rejection of the appeal thus prolonged the continuing violation of Article 5 § 3. As far as Article 5 § 4 is concerned, the relevant law and practice left unclear what the consequences of this rejection were and the applicant had no way of knowing when he could obtain a judicial examination of the lawfulness of his detention. In fact, it was not examined until five months later and it was not possible to speculate whether an earlier second appeal would have been examined. Having regard to a ll the relevant facts and the lack of clarity in domestic law and practice, the applicant’s exercise of his right had been unduly impaired.

Conclusion : violation (unanimously).

(c) remaining complaints:  These complaints were unfounded.

Conclusion : no viol ation (unanimously).

Article 41 – The Court awarded the applicant 1,500 € in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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