Resolution CM/ResDH(2013)102

10 cases against Bulgaria

Execution of the judgments of the European Court of Human Rights

Application

Case

Judgment of

Final on

39084/97

YANKOV

11/03/04

47823/99

GEORGIEV

15/12/2005

03/07/2006

33606/05

KANEVA

13/11/2012

13/11/2012

58971/00

POPOV RADOSLAV

02/11/2006

02/02/2007

57847/00

NAVUSHTANOV

24/05/2007

24/08/2007

39270/98

BELCHEV

08/04/2004

08/07/2004

44062/98

HAMANOV

08/04/2004

08/07/2004

42987/98

VACHEV

08/07/2004

08/10/2004

29381/04

STOYCHEV

21/12/2010

21/12/2010

74792/01

RASHID No. 2

05/06/2008

05/09/2008

(Adopted by the Committee of Ministers on 6 June 2013 at the 1172nd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(20 1 3)533 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

ACTION REPORT

on the implementation of the judgments of the ECtHR from group of cases

Yankov v. BULGARIA

Application

Case

Judgment of

Final on

39084/97

YANKOV

11 December 2003

11 March 2004

47823/99

GEORGIEV

15 December 2005

03 July 2006

58971/00

RADOSLAV POPOV

2 November 2006

02 February 2007

57847/00

NAVUSHTANOV

24 May 2007

24 August 2007

39270/98

BELCHEV

08 April 2004

08 July 2004

42987/98

VACHEV

08 April 2004

08 October 2004

44062/98

HAMANOV

08 April 2004

08 July 2004

74792/01

RASHID

05 June 2008

05 September 2008

29381/04

STOYCHEV

21 December 2010

21 December 2010

33606/05

KANEVA

13 November 2012

13 November 2012

This group of cases concerns mainly the lack of an enforceable right to compensation under domestic law for detention in contravention of the provisions of Art. 5 of the Convention in situations in which the detention is not considered unlawful under domestic law (violations of Article 5§5). The cases also concern problems with detention on remand (violations of Article 5 §3 and §4) or unlawful deprivation of liberty in a psychiatric hospital (violation of Article 5§1(e)). The case of Yankov relates to inhuman and degrading treatment due to shaving of a detainee ’ s head (violation of Article 3); disciplinary punishment of a detainee for insulting officials in the draft manuscript of a book (violation of Article 10) and lack of effective remedy in this respect (violation of Article 13).

Some of the cases concern also excessive length of criminal proceedings and lack of effective remedy in this respect (violations of Art. 6 and 13).

a) Payment of compensation

All compensations awarded by the European Court were duly transferred to the applicants ’ accounts.

b) Termination of the criminal proceedings in the cases of Yankov and Rashid No. 2

By decree of the District Prosecutor ’ s Office in Plovdiv from 10 June 2008 the criminal proceedings against Mr. Todor Yankov were terminated on the basis of Article 243, para 1, p.1 of the Criminal Procedure Code (The act does not constitute a criminal offence). The reasoning for the termination is that according to the recent practice of the Supreme Court of Cassation the corpus delicti of Article 282 of the Criminal Code applies only to acts or omissions perpetrated by officials engaged in bodies of governmental authority or management. As Mr. Yankov was executive director of private companies his acts did not fall within the scope of the criminal offence regulated by art. 282 of CC. The applicant has at his disposal the opportunity to claim damages under Article 2, para 1 of the State and Municipality Responsibility for Damage Act (“SMRDA”).

The criminal proceedings concerning the applicant in the case of Rashid No. 2 ended on 16 July 2009 by a final judgment of the Supreme Court of Cassation.

c) Information concerning the applicants placed in pretrial detention

All the applicants have been released or – respectively - sentenced to a term of imprisonment.

The Government thus considers that no additional individual measures are necessary with regard to the cases in the present group.

a) Publication and dissemination of the judgments. The translations in Bulgarian of the first eight judgments in this group are available on the Ministry of Justice website at http://www.justice.go v ernment.bg/47/ . The translations of the rest will soon be published as well.

A summary of the judgment on the case of Stoychev was published in Bulgarian on the National Institute of Justice website [1] in the monthly Bulletin of Court Practice in Human Rights, issue 5 from January 2011, page 8.

b) Violation of Article 3 due to the shaving of the applicant ’ s hair during his disciplinary punishment in an isolation cell

The Court noted that there had been no legal ground for this treatment (see § 116 of the judgment). The judgment has been expressly communicated to the “Execution of Punishments” General Directorate within the Ministry of Justice by letter No 99-00-90 from 02 February 2005.

The practice of shaving detainees ’ heads before confining them in disciplinary cells does not exist in penal establishments in Bulgaria any more. This was confirmed by a letter from 8 February 2005 by the General Director of “Execution of Punishments” General Directorate to the Ministry of Justice.

c) Violation of Article 10 due to a disciplinary punishment of a detainee for insulting officials in the draft manuscript of a book

According to Rule 46 of the regulations implementing the Execution of Punishments Act from 1969 when a prisoner ’ s writings and appeals contain defaming and offensive language he may be subject to disciplinary and criminal punishment. On 1 June 2009 this Act and the regulations implementing it were superseded by the new Execution of Punishments and Detention in Custody Act (the “EPDCA”). The new provision of Article 90 (6) of EPDCA expressly provides that prisoners may not be subject to disciplinary punishment because of having made a request or lodged a complaint. Thus, the legal ground on which the applicant ’ s disciplinary punishment was based does not exist anymore.

At present confinement in isolation cell of up to 14 days may be imposed by the prison governor; while the governors of penitentiary hostels may impose confinement of up to 5 days. The General Director of the General Directorate “Execution of Punishments” may impose all punishments described in Article 101 of EPDCA (art. 104 EPDCA). The orders for disciplinary punishments issued by the prison governor may be appealed before the General Director, while the orders of the General Director may be appealed before the Minister of Justice. The appeal does not have an automatic suspensive effect, but the General Director or the Minister of Justice may decide to suspend the execution of the disciplinary punishment (art. 110 EPDCA). The orders imposing solitary confinement to a disciplinary cell are subject to appeal before the regional court (art. 111 EPDCA). The regional court has to examine the appeal within 3 days, in the presence of the detainee. The appeal does not have an automatic suspensive effect, but the court may decide to suspend the execution of the disciplinary punishment.

d) Violations concerning detention on remand (Art. 5 §3 and §4)

The measures concerning these questions have been adopted and examined by the Committee of Ministers in the context of the case Assenov and others (ResDH(2000)109), the cases of Ilijkov, Roumen Todorov and Shishkov (CM/ResDH(2007)158) and the case of Georgieva (CM/ResDH(2012)166).

e) Violations concerning placement in psychiatric hospital

The measures concerning these questions have been adopted and examined by the Committee of Ministers in the context of the Varbanov group of cases (see the final resolution CM/ResDH(2010)40).

f) Violations concerning to the right to seek compensation for detention in contravention of the provisions of Art. 5 of the Convention (Art. 5 § 5 )

In 2012, the State and Municipalities Responsibility for Damages Act (“SMRDA”) was amended, the amendments entering into force on 15 December 2012. The relevant domestic legislation (article 2 (1) points 1 and 2) now provides as follows:

“(1) (Previous Article 2, amended, SG No. 43/2008, supplemented, SG No. 17/2009, amended, SG No. 98/2012) The State shall be liable for any damage inflicted on citizens by criminal investigation authorities, public prosecution authorities or court:

1. arrest, including court-ordered arrest awaiting trial, house arrest, if they were annulled, court ordered obligatory hospitalization and treatment or other involuntary medical measures, if such are annulled, as well as in all other cases of imprisonment in violation of Article 5, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms , signed in Rome on 4 November 1950 (ratified by act - SG, No. 66/1992) (promulgated in SG No 80/1992, as amended, No. 137/1998; No. 97/1999 and No. 38/2010) hereinafter referred to as "Convention";

2. violation of rights, protected under Article 5, § 2 - 4 of the Convention ”

The new wording of the provisions ensures that all persons subject to detention in contradiction with Art. 5 of the Convention have an enforceable right to compensation even in situations in which the detention is not considered unlawful under domestic law.

g) Length of proceedings and lack of effective remedy in this respect

These questions are examined in the Kitov group of cases as well as in the action report on the Dimitrov and Hamanov pilot judgment.

The Government of the Republic of Bulgaria believes that the measures taken have fulfilled the requirements that arise from the Court ’ s judgment and that as a result similar violations will be prevented in the future. In view of the above the Government considers that the supervision over the present case should be discontinued and the case should be closed.

Sofia, 9 May 2013

[1] http://www.nij.bg/Articles / Articles.aspx?lang=bg-BG& p ageid=548