Resolution CM /ResDH(2007) 158 [1]

Execution of the judgments of the European Court of Human Rights

in 9 cases against Bulgaria concerning the system of pre-trial detention in force until the legislative reform of 1 January 2000

(see details in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern mainly the pre-trial detention system which existed in Bulgaria until the legislative reform which entered into force on 1 January 2000 (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Bulgaria ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

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

- general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

Having noted in this respect that the issue concerning the excessive length of criminal proceedings, raised in the Ilijkov case, is examined at present within the framework of the supervision of the execution of the group of cases Kitov v. Bulgaria (judgment of 3 April 2003);

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM /ResDH(2007)158

Information about the measures to comply with the judgments in

in 9 cases against Bulgaria concerning the system of pre-trial detention

in force until the legislative reform of 1 January 2000

Introductory case summary

The Emil Hristov, Kostov, Nikolov, Shishkov and Zaprianov cases concern the violation of the applicants ' right to be brought promptly before a judge, or other officer authorised by law to exercise judicial power, so that they could challenge the lawfulness of their pre-trial detention between 1996 and 1999 (violations of Article 5§3).

The Ilijkov, Mihov, Nikolov, Roumen Todorov, Tanko Todorov, Shishkov and Zaprianov cases also concern the excessive duration of the applicants ' detention on remand between 1993 and 2001 (ranging from 5½ months to almost 4 years), given the lack of sufficient grounds justifying their remand and the authorities ' failure, in the Roumen Todorov case, to conduct the proceedings with special diligence (violations of Article 5§3).

All the cases also concern violations of the right to judicial review of the lawfulness of detention (violations of Article 5§4), owing to:

- the limited scope of the review, given that the courts concerned disregarded the applicants ' arguments, which could have cast doubt on the justification for their detention ( Emil Hristov, Ilijkov, Tanko Todorov and Zaprianov cases);

- the lack of clarity in the legislation in force at the time, which did not provide regular review of the lawfulness of pre-trial detention ( Shishkov and Kostov cases);

- the fact that the applicants ' appeals were not dealt with promptly ( Nikolov and Roumen Todorov cases);

- the fact that the applicant could not appear in court when the lawfulness of his pre-trial detention was being reviewed ( Roumen Todorov case);

- the non-adversarial nature of the Supreme Court proceedings concerning the applications for release made by the applicants ( Ilijkov and Mihov cases);

- the impossibility for the applicants ' lawyers to have access to their files ( Shishkov and Nikolov cases);

The Nikolov case also concerns the delay in the applicant ' s release after the court had decided to place him under “parental supervision” (violation of Article 5§1).

The Ilijkov case also concerns the excessive length of the criminal proceedings against him (violation of Article 6§1).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Case and application No.

Date of judgment

Date of final judgment

Non-pecuniary damage

P ecuniary damage

Costs and expenses

Date of payment

HRISTOV Emil 52389/99

20/10/05

20/01/06

500 euros

-

100 euros

18/04/06

ILIJKOV P etar 33977/96

26/07/01

26/07/01

6 000 euros

-

10 000 euros

25/10/01

KOSTOV Kiril

45980/99

03/11/05

03/02/06

1 500 euros

-

815 euros

03/05/06

MIHOV Mihail 35519/97

31/07/03

31/10/03

4 000 euros

-

2 800 euros

Case and application No.

Date of judgment

Date of final judgment

Non-pecuniary damage

P ecuniary damage

Costs and expenses

Date of payment

NIKOLOV Borislav 38884/97

30/01/03

30/04/03

2 000 euros

-

2 500 euros

28/07/03

SHISHKOV Krassimir

38822/97

09/01/03

09/04/03

1 500 euros

-

2 000 euros

09/07/03

TODOROV Roumen

50411/99

20/10/05

20/01/06

2 000 euros

-

2 000 euros

18/04/06

TODOROV Tanko

51562/99

09/11/06

09/02/07

1 500 euros

-

500 euros

02/05/07

ZA P RIANOV Zaprian 41171/98

30/09/04

30/12/04

-

2 500 euros

25/03/05

b) Individual measures

No individual measures, apart from payment of just satisfaction, were required in these cases. The applicants in the Nikolov, Shishkov, Kostov, Roumen Todorov and Tanko Todorov cases were released between 1997 and 2001 – prior to the judgments of the European Court of Human Rights. The applicants in the remaining cases were no longer being held in pre-trial detention when the European Court handed down its judgments, as prison sentences had been imposed on them between 1997 and 1999.

The criminal proceedings in the Ilijkov case, which the European Court had held to be excessively long, came to an end in 1999.

II. General measures

a) Reform of the Code of Criminal P rocedure, which took effect on 1 January 2000

Following the judgment of the European Court of Human Rights in the Assenov and others against Bulgaria case, dated 28 October 1998, the Bulgarian P arliament undertook a wide-ranging reform of criminal procedure. The law amending the Code of Criminal P rocedure was published in the O fficial Gazette (No. 70/1999) on 6 August 1999 and came into force on 1 January 2000. It amended the provisions which had been the direct cause of the violations of Article 5 found by the Court in Assenov and others case, violations which are similar to several violations of this article also found in the cases concerned by this resolution (for further details, see the final resolution adopted in the Assenov and others case, ResDH(2000)109).

- P ower to detain on remand

The Law of 6 August 1999 amended in particular the provisions of Articles 152 and 201 of the Code of Criminal P rocedure relating to the powers of a prosecutor or investigator to detain persons for a prolonged period without any judicial review. The new Article 152a stipulates that detention on remand shall be ordered by the competent court of first instance at the request of a prosecutor or investigator (paragraphs 1 and 2). A single-judge court decides, after a public hearing attended by the accused, his counsel and the prosecutor, whether the accused should be detained on remand (paragraph 5). These provisions of Article 152a, with the exception of the investigating judge ' s authority to have the accused placed in pre-trial detention, have been incorporated into the new Code of Criminal P rocedure, which came into force on 29 April 2006 (Article 64§§1 and 3).

- Reasons for ordering and prolonging detention on remand

It was presumed, because of the legislation in force at the material time and of the Supreme Court practice criticised in the judgments of the European Court of Human Rights, that pre-trial detention was compulsory in cases where the penalties applicable were of a certain level of severity (see for example Article 152, paragraphs 1 and 2 of the 1974 Code of Criminal P rocedure). This presumption was, in practice, refutable only in cases where the persons concerned could prove that, in view of exceptional circumstances (for example because they were seriously ill) there was no risk of their absconding, re-offending or colluding with others. This legislation was amended by the reform of criminal procedure which came into force on 1 January 2000. As a result, the practice followed by the Supreme Court in this field is no longer in use.

The new Article 152 stipulates that detention on remand shall be ordered in cases concerning criminal offences punished by deprivation of liberty, where it emerges from the case file that there is a real danger of the accused absconding or re-offending (new Article 152, paragraph 1). Unless the evidence in the case-file proves the contrary, it is accepted that there is a real danger in some of the cases listed in paragraph 2 of the new Article 152 (for example in cases where the person concerned is a dangerous re ‑ offender, or if the offence is punishable by more than ten years ' imprisonment). As a result of differences in the initial interpretation of this provision, the Supreme Court of Cassation clarified its scope in an interpretative judgment dated June 2002 (Judgment No. 2/2002). It pointed out that this provision ruled out any possibility of compulsory detention and that the authorities had to prove in each case that there was a real danger that the accused would evade justice or commit another crime. It also pointed out that the burden of proving whether there was a real danger could in no circumstances be shifted to the remand prisoner, and that the indications in Article 152, paragraph 2 should only serve as a starting point in the examination of the case.

When this danger no longer exists, detention on remand shall be replaced by a less severe measure (new Article 152, paragraph 3). In addition, the maximum period of detention on remand before the case is referred to a court is two months, except where the accused is charged with a serious, wilful crime or a crime carrying a prison sentence of at least 15 years. In these two cases, the maximum periods of detention on remand before the case is referred to a court are one and two years respectively. At the end of these periods, the accused is released by order of the prosecutor (new Article 152, paragraph 5). These provisions have been incorporated into the new Code of Criminal P rocedure of 2006 (Article 63, paragraphs 1, 3, 4 and 5).

The Bulgarian Government consider that the new provisions of the Code of Criminal P rocedure, as clarified in the interpretative judgment of the Supreme Court of Cassation in 2002, place sufficient emphasis on the exceptional nature of detention on remand. They oblige prosecutors to prove to the judge that there are valid and objective reasons for ordering and prolonging detention on remand, and also oblige judges to base their decisions on the relevant specific facts mentioned by the persons concerned. These provisions also put sufficient emphasis on the need for special diligence in the conduct of the investigation by imposing strict time-limits on detention on remand during the investigation stage.

- The right to challenge the lawfulness of detention (habeas corpus)

The Law of 6 August 1999 removed the last remaining restrictions on a detainees ' right to challenge the lawfulness of detention on remand, which could lead to violations of Article 5, paragraph 4, of the Convention similar to those found in these cases. Under the new Article 152b (Article 65 of the new Code of Criminal procedure of 2006), anyone may apply to a court to review the lawfulness of detention and order his or her release. The application may be lodged via the officer responsible for the investigation, who immediately informs the prosecutor and refers the matter to the court (paragraph 3). The court is required to consider the case within three days, at a public hearing attended by the accused, his counsel and the prosecutor (paragraph 4). The court announces its decision after the hearing. An appeal against this decision may be lodged within a seven-day time-limit with a higher court. The higher court is required to consider the case within seven days, at a public hearing attended by the accused, his counsel and the prosecutor (paragraphs 5 and 9).

Should the court refuse to order the accused ' s release, it may fix a period not exceeding two months during which a further application for release is not admissible, except in the case of a sudden deterioration in the detained person ' s health (paragraph 7). Such decisions may also be appealed to a higher court within a three day time-limit.

In the government ' s view, it is clear that this provision constitutes only a faculty for the courts to prevent manifestly ill-founded applications. In view of the Convention ' s direct effect, this provision can on no account prevent the courts from hearing at any time applications for release based in particular on the fact that the reasons for ordering detention on remand no longer exist. The government therefore considers that this provision is consistent with the requirement in Article 5, paragraph 4 as defined in the court ' s case-law (see in particular the Assenov judgment, § 162 in fine ), and that the courts will not allow its application to result in a person ' s detention in the absence of the objective and valid reasons laid down in Bulgarian law and in Article 5, paragraph 3 of the Convention.

Where a criminal case is being examined by the court which is to rule on its merits , an application for release is also examined at a public hearing, to which the parties are summonsed (Article 255, amended in 2003, and new Article 268a, adopted in 2003, incorporated into the new Code of Criminal P rocedure in Article 256, paragraph 3, and Article 270 respectively). An appeal against the court ' s decision may be lodged with the appeal court. The latter takes its decision in camera, or, if it considers it necessary, at a public hearing with the participation of the parties (Article 348, paragraph 1, now incorporated into Article 345, paragraph 1 of the new Code of Criminal P rocedure).

b) Direct impa ct of the Convention and the European Court ' s judgments on Bulgarian legislation

- General aspects

The government points out that, under Article 5, paragraph 4 of the Bulgarian Constitution, the European Convention on Human Rights, which was ratified by Bulgaria on 7 September 1992, is part of the Bulgarian legal system, and that its provisions prevail over domestic legislation. Several examples of decisions handed down by the domestic courts have been presented to the Committee of Ministers to illustrate the direct impact on domestic law of the Convention and the European Court ' s case-law, particularly judgments directly concerning Bulgaria .

Following the Assenov and others (28 October 1998) and Nikolova (25 March 1999) judgments, the national courts began to directly apply Convention law to the grounds for and length of pre-trial detention (see for example decisions No. 1558/2001 and No. 1515/2001 of P lovdiv Regional Court, No. 285/2002 and No. 559/2002 of Bourgas District Court and No. 4306/2001 of Sofia Regional Court). P articularly noteworthy are two interpretative judgments handed down by the Supreme Court of Cassation (No. 1 of 25 June 2002 and No. 2 of 2 October 2002), which refer to the Convention and the case-law of the European Court of Human Rights in relation to the provisions of the Code of Criminal P rocedure concerning pre-trial detention.

Further steps were taken in this direction following the Al-Nashif judgment (of 20 June 2002). In this case, the Supreme Administrative Court re-opened domestic proceedings criticised by the European Court of Human Rights and pointed out to the courts that they were obliged to apply directly the provisions of the Convention as interpreted by the Court in Strasbourg (decisions of the Supreme Administrative Court of 8 and 12 May 2003 and decision of the Sofia City Court of 14 February 2007). Moreover, the domestic courts generally apply the case-law of the European Court of Human Rights, for example in matters concerning freedom of expression (see for example, decisions No. 2082/2000 and No. 10154/2000 of the Sofia Regional Court concerning proceedings brought against journalists for defamation and insult).

- Aspects concerning the cases in question

The government considers that the direct effect which is beginning to be given to the case-law of the European Court of Human Rights will ensure that there will be no further violations similar to those found in the cases referred to in this resolution, particularly with regard to issues that are not directly addressed by the legislative amendments mentioned above.

For example, as regards the non-adversarial nature of the Supreme Court proceedings concerning the applications for release made by the applicants ( Ilijkov and Mihov cases), it was noted that the legislation currently in force still makes it possible, at the trial stage of criminal proceedings, for the court of appeal to take its decision on this type of application in camera (Article 348, paragraph 1, which has been incorporated into Article 345, paragraph 1 of the new Code of Criminal P rocedure). However, by taking account of the relevant judgments of the European Court of Human Rights, the courts concerned will in future take care to meet their obligation to ensure that the proceedings are adversarial, in particular by transmitting the prosecutor ' s comments to the accused.

To ensure that the courts concerned are informed of the new interpretation of the Code of Criminal P rocedure, the Ministry of Justice has sent a copy of the Ilijkov judgment to the presiding judges of the regional courts, asking them to draw it to the attention of all judges dealing with such matters.

Likewise, the government considers that the dissemination of the European Court ' s judgments will suffice to prevent further violations of the Convention associated with the established practice , in particular at P lovdiv District Court, of denying the defendant ' s lawyers access to the case-files when preparing for appeal proceedings against detention ( Shishkov and Nikolov cases). It should be noted that there was no criticism in these cases of the domestic provisions governing access to the case-files of the accused. The Ministry of Justice has sent a copy of the European Court ' s judgments to P lovdiv District Court, the P lovdiv district prosecutor ' s office and the P lovdiv regional investigation department, with a circular letter drawing their attention to the fact that denial of access to case-files is contrary to the requirements of the Convention.

Finally, with regard to the question raised in the Nikolov case concerning the delay in releasing a remand prisoner after the court had decided to place him under “parental supervision” , the Ministry of Justice has sent a copy of the European Court ' s judgment to the regional courts, the regional prosecutors, the Sofia City Court, Sofia city prosecutor ' s department and the directorate general responsible for sentence enforcement, drawing their attention to the national authorities ' obligations under the Convention in the light of this judgment (paragraphs 78-85 and 96-99).

c) P ublication

To ensure that the courts and the public are informed of the requirements of the Convention with regard to pre-trial detention, the Ministry of Justice has also put Bulgarian translations of the European Court ' s judgments in all these cases on its Internet site at http://www.mjeli.government.bg .

III. Conclusions of the respondent state

The government considers that the measures taken have provided the applicants with full redress for the consequences of the violations of the Convention found by the European Court of Human Rights in these cases, that these measures will prevent similar violations in future and that Bulgaria has therefore fulfilled its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 19 December 2007 at the 1013th meeting of the Ministers’ Deputies