Resolution ResDH(2000)110

concerning the judgment of the European Court of Human Rights of 25 March 1999 in the case of Nikolova against Bulgaria

(Adopted by the Committee of Ministers on 2 October 2000 at the 721st 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, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Nikolova case delivered on 25 March 1999 and transmitted the same day to the Committee of Ministers under Article 46, paragraph 1, of the Convention;

Recalling that the case originated in an application (No. 31195/96) against Bulgaria, lodged with the European Commission of Human Rights on 6 February 1996 under former Article 25 of the Co n vention by Ms Ivanka Nikolova , a Bulgarian national, and that the Commission declared admissible the complaints relating to the lack of judicial review of the decision to detain the applicant on remand and to the impossibility of challenging the lawfulness of this detention at regular intervals;

Recalling that the case was brought before the Court by the Commission on 15 July 1998;

Whereas in its judgment of 25 March 1999 the Court:

- dismissed, unanimously, the Government’s preliminary objection;

- held, unanimously, that there had been a violation of Article 5, paragraph 3, of the Convention;

- held, unanimously, that there had been a violation of Article 5, paragraph 4, of the Convention;

- held, by eleven votes to six, that the present judgment constituted sufficient just satisfaction in respect of non-pecuniary damage;

- held, by sixteen votes to one, that the Government of the respondent State was to pay the applicant, within three months, in respect of costs and expenses, 14 000 000 levs less 20 215 French francs to be converted into leva at the rate applicable on the date of settlement, together with any value-added tax that may be chargeable, and that simple interest at an annual rate of 15,04 % would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the applicant’s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of former Art i cle 54 of the Convention which are, for the time being, applicable by analogy to cases under Article 46, paragraph 2, of the Convention as amended by Protocol No. 11;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of the judgment of 25 March 1999, having regard to Bulgaria’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State indicated to the Committee that comprehensive general measures had been taken to prevent new violations of the same kind as those found in the present judgment (this information appears in the appendix to this resolution);

Having satisfied itself that on 16 June 1999, within the time-limit set, the Government of the respondent State paid the a p plicant the sum provided for in the judgment of 25 March 1999,

Declares, after having taken note of the information supplied by the Government of Bulgaria, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2000)110

Information provided by the Government of Bulgaria during the examination of the Nikolova case

by the Committee of Ministers

In view of its obligation to abide by the judgments of the European Court of Human Rights (Article 46 of the European Convention on Human Rights), Bulgaria adopted, following the Assenov and Nikolova judgments [1] , a number of comprehensive measures to prevent further violations of the Convention similar to those found in these cases.

I. Legislative measures

On 22 July 1999, the National Assembly of Bulgaria adopted a major reform of the criminal procedure.  The law in question, which was published in the Official Gazette (No. 70/1999) on 6 August 1999 and came into force on the same date, amended the provisions which had been the direct cause of the violations of Article 5 found by the European Court in the aforementioned cases.

- Power 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 Procedure relating to the powers of a prosecutor or an investigating judge or to detain persons for a prolonged period without any judicial review.  The new Article 152a provides that detention on remand shall be ordered by the competent court of first instance at the request of a prosecutor or an investigating judge (paragraphs 1 and 2).  The maximum periods of detention without judicial review are 72 hours, where detention on remand is requested by a prosecutor, and 24 hours, where it is requested by an investigator (paragraph 3).  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).

- Reasons for ordering and prolonging detention on remand

The Government recalls that the legislation applying to the facts of the case at the time still provided for obligatory detention on remand, particularly in cases where the accused was a recidivist (former Article 152, paragraph 3, of the Code of Criminal Procedure).  This obligation was already abolished by an amendment published in the Official Gazette on 8 August 1997 (No. 64/1997).

The law of 6 August 1999, adopted following the Assenov and Nikolova judgments, made further amendments to Article 152, in particular the part providing for an exemption from detention on remand solely where the accused was able to prove that there was no risk of his absconding or re-offending (former paragraph 2 of Article 152).

The new Article 152 provides 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). 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).

The Bulgarian Government considers that the new text of Article 152 therefore puts sufficient emphasis on the exceptional nature of detention on remand, obliges prosecutors and investigating judges to prove to the judge that there are valid and objective reasons (eg. a danger of the accused absconding or re-offending) for ordering and prolonging detention on remand, and also puts sufficient emphasis on the need for special diligence in conducting the investigation by imposing strict time-limits on detention on remand during the pre-trial 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 detained person's 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 the Assenov and Nikolova cases.  Under the new Article 152b, 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.

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 latter limitation 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 notably 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 European 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.

The Bulgarian Government considers that the legislative measures adopted conform to the requirements of Article 5, paragraphs 3 and 4 of the Convention as interpreted by the Court, and that these measures therefore prevent new violations of the Convention.

II. Dissemination of judgments; administrative measures for raising awareness

The Government ensured the translation of the Assenov and Nikolova judgments and their publication in the Bulletin of the Ministry of Justice and European Legal Integration (Assenov judgment: No. 2/1999, Nikolova judgment: No. 3/1999), a journal which is widely distributed in legal circles and to all State authorities.

Following the Assenov judgment, on 29 March 1999, the Ministry of Justice and European Legal Integration sent letters to the Minister for the Interior, the Chief Public Prosecutor and the Director of the Investigation Service drawing their attention to this judgment of the European Court and to the supervision of its execution by the Committee of Ministers of the Council of Europe (Article 46, paragraph 2, of the Convention).  Appendices to these letters contained a full translation of the Assenov judgment and the detailed observations made in the Committee of Ministers concerning the adoption of general measures in execution of that judgment.  In addition in these letters, these authorities were invited to bring the judgment and the observations on its execution to the attention of the officials concerned in order to prevent further similar violations from occurring in future.

Subsequently, on 21 September 1999, the Director of the Bulgarian National Police Service sent all the police departments in the capital and all the regional police departments a circular stressing the need to prevent further violations similar to those found in the Assenov case, including violations of the obligation not to hinder in any way the effective exercise of the right of individual application to the Convention bodies (former Article 25, new Article 34 of the Convention).  Moreover, the circular specifically reminded police officers of their obligation to conduct speedy and efficient investigations into all allegations of inhuman and degrading treatment committed by the police or security forces.

The Government considers that these measures will ensure, in particular, that the authorities responsible for maintaining law and order will take account of the requirement for speedy and thorough investigations into allegations of ill-treatment so as to prevent further violations of Articles 3 and 13 of the Convention.  The Government thinks that these measures will also make it possible to prevent in the future any unacceptable incidents involving hindrance of the right to bring individual applications freely to the European Court of Human Rights (new Article 34 of the Convention).

* * *

The Government considers that all the above-mentioned measures will effectively prevent new violations of the Convention similar to those found in the Assenov and Nikolova cases.  In general, the Government believes that the State authorities are now aware of the essential role played by the Convention and the European Court's judgments in Bulgarian law and that, consequently, the Bulgarian authorities will not fail to take direct account of the requirements of the Convention, as interpreted by the judgments of the Strasbourg Court, in the performance of their duties.

In the light of the foregoing, the Government is of the opinion that Bulgaria has fulfilled its obligations relating to the execution of the Court's judgments in these cases under Article 46, paragraph 1, of the Convention.

[1] In view of the similarities between these cases, the general measures to be adopted in execution of the two judgments were considered by the Committee of Ministers within the same procedure. The Government therefore decided to submit, as an appendix to this resolution, a full summary of the measures adopted, even though some of them were required solely by the judgment in the case of Assenov against Bulgaria (judgment of 28 October 1998).