Communicated on 29 January 2019

FIFTH SECTION

Application no. 51127/18 Mihail Mihaylov STEFANOV against Bulgaria lodged on 22 October 2018

STATEMENT OF FACTS

1. The applicant, Mr Mihail Mihaylov Stefanov, is a Bulgarian national who was born in 1970 and is currently detained in Sofia Prison.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, emerging from other publicly available sources and outlined in the relevant decisions of the domestic courts, may be summarised as follows.

1. The applicant ’ s actions on 29 May 2018 and the uploading of the video-recording of those actions to YouTube on 2 June 2018

3 . As can be seen from the reasons for the first-instance judgment convicting the applicant (see paragraph 2 1 below), at about 6.30 a.m. on 29 May 2018 he set up video-recording equipment in the street in front of the Palace of Justice in Sofia. The latter houses, among other courts and authorities, the Supreme Court of Cassation and the Supreme Cassation Prosecutor ’ s Office. The applicant recorded a video in which he first set on fire a piece of cloth bearing the colours of the Bulgarian flag and then dropped it on the ground and urinated on it. While doing that, he first said “Here is the rag”, then “Fuck the Bulgarian rubbish, fuck”, and then “Death to judicial fascism!” It can be seen on YouTube that the video ’ s running time was two minutes and sixteen seconds.

4 . The applicant then edited the video, adding a “preface” with a running time of one minute and fourteen seconds, filmed in his home, in which, as can be seen on YouTube, he said the following:

“Dear fans, today I went in front of the lair of the biggest criminal gangs in Bulgaria. We are talking about the Palace of Justice in Sofia, which houses the two biggest criminal gangs – the Court and the Prosecutor ’ s Office. I went there and set on fire the national flag of Bulgaria, and then peed on it. Fuck the rag, fuck! I am far from thinking that such hardened criminals as Lozan Panov [the current President of the Supreme Court of Cassation] and Sotir Tsatsarov [the current Chief Prosecutor] will be, so to say, moved by this gesture of mine, but I nevertheless hope that the Bulgarian people will stop putting up with judicial fascism. Judicial fascism, imposed precisely by these two persons: Tsatsarov and Lozan Panov. If the Bulgarian people continue to bear judicial fascism, then I call on foreign troops, whether they be Russian or Ottoman, to come and set us free from this prosecutor-judicial rabble.”

5 . On 2 June 2018 the applicant uploaded the video to his YouTube channel, putting the title “LIGHTNING: Mihail Mihaylov set the Bulgarian flag on fire, then peed on it!!!” and the following description:

“Today, 02.06.2018, I went before the Palace of Justice – Sofia. This is the lair of the two biggest criminal gangs in Bulgaria – the Court and the Prosecutor ’ s Office. There, I set on fire the national flag of Bulgaria, and then I pissed on it. I do not expect that my gesture will move criminals like Sotir Tsatsarov or Lozan Panov, or the mafia structures which govern – the Court and the Prosecutor ’ s Office. I hope that foreign troops, whether Russian or Ottoman, will come and shovel out this rabble!

You can see more interesting videos, reports and news on the site ‘ The voice of Stara Zagora ’ [ran by the applicant], as well as the Facebook group ‘ The voice of Stara Zagora ’ [administered by the applicant]. To reach the editor Mihail Mihaylov, you can call ... or write to the email address ... I expect your signals against the Bulgarian Court, Prosecutor ’ s Office and Police, as well as about the outrages of the municipal and State authorities in Stara Zagora and the Stara Zagora region.”

6. The applicant also placed a link to the video on his website, which he had called “The Voice of Stara Zagora”.

2. The search in the applicant ’ s home and his initial arrest and detention

7. As can be seen from the reasons for the first-instance judgment convicting the applicant (see paragraph 21 below), the same day, 2 June 2018, an officer of the organised-crime division of the Ministry of Internal Affairs spotted the link to the above-described video on the applicant ’ s website, made a copy of the video, and submitted a report to the Specialised prosecutor ’ s office, which immediately opened a criminal investigation in relation to that.

8 . At about 5 p.m. on 3 June 2018 the Stara Zagora police, acting at the instructions of the Specialised prosecutor ’ s office, went to the applicant ’ s home, where he lived with his mother and father. First, between 5.10 p.m. and 5.20 p.m., they searched the applicant himself, and then, between 5.30 p.m. and 7 p.m., the premises. They had not obtained a judicial warrant beforehand. They found and seized three desktop computers, several video cameras, recording media (video and audio cassettes, compact discs, flash drives and external disk drives) and a mobile telephone.

9 . In two decisions given the next day, 4 June 2018, the Specialised Criminal Court, acting at the request of the Specialised Prosecutor ’ s Office, approved the searches. It noted that they had taken place immediately after the Specialised prosecutor ’ s office had opened criminal proceedings under Article 108 § 2 (flag desecration) and Article 325 § 2 (aggravated hooliganism) (see paragraphs 24 and 25 below) in connection with the actions carried out and filmed by the applicant, and that the authorities had had reasonable grounds to believe that they would find evidence, such as video-cameras and computers, relating to the offences under investigation in the applicant ’ s home. The court went on to say that in view of the risk of the applicant ’ s destroying or disposing of that evidence, any delay could have been prejudicial to the investigation; it had hence been warranted to proceed with the searches without prior judicial authorisation. Lastly, the court noted that, as evident from the search records, the authorities had limited the searches to spots where they could find evidence of the kind they had been looking for, and concluded that the searches had thus not disproportionately impinged on the private lives of those concerned.

10. After the searches the police took the applicant to a police station in Stara Zagora. The same evening they escorted him to Sofia, based on an order which referred to section 76 of the Ministry of Internal Affairs Act 2014 (see paragraph 28 below) and the numbers of case files opened, respectively, by the Specialised prosecutor ’ s office and its investigating department.

11. At 1.30 a.m. on 4 June 2018, probably shortly after the applicant ’ s arrival in Sofia, the Sofia police issued an order for his police detention for twenty-four hours. The order referred to section 72(1 )( 7) of the 2014 Act (see paragraph 26 below) and the numbers of case files opened by the Specialised prosecutor ’ s office and its investigating department. At the same time the applicant was advised of, inter alia , his right to counsel and his right to seek judicial review of his police detention.

12. The applicant ’ s police detention came to an end at 3.30 p.m. the same day, 4 June 2018. He was, however, not released but charged under Article 108 § 2 and Article 325 § 2 of the Criminal Code (see paragraphs 24 and 25 below) and placed in prosecutor-ordered detention pending examination by the Specialised Criminal Court of the prosecution ’ s request to place him in pre-trial detention (see paragraph 29 below).

3. The applicant ’ s pre-trial detention

13 . On 6 June 2018 the Specialised Criminal Court decided to place the applicant in pre-trial detention. The ex officio lawyer appointed for him appealed against that decision, but when the Specialised Criminal Appellate Court heard the appeal in public on 3 July 2018, the applicant, who was then represented by a new ex officio lawyer, said that he had not had enough time to discuss the case with him, that he wished to be represented by his father instead, and that in these circumstances he wished to withdraw the appeal. In view of the applicant ’ s last-mentioned declaration, the court discontinued the appeal proceedings.

14 . On an unspecified date in June or July 2018 the applicant sought judicial review of his pre-trial detention. On 19 July 2018 the Specialised Criminal Court refused to release him, and the applicant appealed. The Specialised Criminal Appellate Court heard the appeal in public on 31 July 2018, and upheld the lower court ’ s decision. It held that, based on the available witness and expert evidence, it could reasonably be suspected that the applicant had committed the offences charged against him. It went on to say that although there was no risk of the applicant ’ s fleeing, the manner in which he had committed the alleged offences showed that he had prepared for them and had acted with reckless disregard for the law. This, coupled with the psychiatric evidence, showed that he was a dangerous individual who could commit fresh offences.

15 . As can be seen from documents submitted by the applicant in support of another application lodged by him on 14 December 2018 (no. 3089/19), on 14 August 2018, when setting the case down for trial (see paragraph 20 below), the Specialised Criminal Court of its own motion decided to keep him in pre-trial detention. The applicant appealed against that decision, but on 30 August 2018 the Specialised Criminal Appellate Court upheld it. It noted that there were no fresh developments warranting a reconsideration of the question whether it was justified to keep the applicant in pre-trial detention. It went on to say that the two-month time-limit for such detention only concerned the period up to the filing of the indictment. The indictment against the applicant had been filed on 3 August 2018, two months less one day after his placement in police detention on 4 June 2018.

16 . As can be seen from documents submitted by the applicant in support of the other application lodged by him (no. 3089/19), on 4 September 2018 the Specialised Criminal Court refused a fresh request that he be released from detention. He appealed, but on 26 September 2018 the Specialised Criminal Appellate Court, having examined the appeal on the papers, upheld the lower court ’ s decision. It held that, as evident in particular from the testimony of the witnesses heard at the applicant ’ s trial, the reasonable suspicion against him persisted. There was no risk of his fleeing, but – in view in particular of his provocative personality and the nature of the charges against him – there was a risk of his committing an offence. Lastly, the duration of his detention had not yet become unreasonable, especially in view of the alacrity with which the lower court had proceeded with the criminal case. There was nothing to suggest that the lower court ’ s decision on the applicant ’ s pre-trial detention had amounted to some form of sanction for what the Specialised Criminal Court referred to as his “journalistic activities”.

17 . On 27 September 2018, when convicting the applicant (see paragraph 21 below), the Specialised Criminal Court, taking up the point of its own motion, as required by law, decided to keep him in detention pending the examination of any appeal against his conviction and sentence. The applicant appealed against that decision, but on 29 October 2018 the Specialised Criminal Appellate Court upheld it.

4. The criminal proceedings against the applicant

18 . On 14 June 2018 the Specialised Criminal Court ordered a psychiatric expert report of the applicant, with a view to establishing whether he was sane and thus capable of bearing criminal liability. On 15 June 2018 it appointed two experts to carry it out. It appears that the applicant refused to submit to psychiatric testing and, on 3 July 2018, at the experts ’ recommendation, the court ordered that he be committed to the hospital of the Ministry of Internal Affairs for fifteen days to undergo an assessment of his sanity. The applicant appealed against that decision, but on 11 July 2018 the Specialised Criminal Appellate Court upheld it.

19 . On 3 August 2018 the Specialised prosecutor ’ s office filed an indictment against the applicant with the Specialised Criminal Court. It alleged that by setting the Bulgarian flag on fire and urinating on it and by recording a video of these acts and then making it available on the internet he had desecrated the flag, contrary to Article 108 § 2 of the Criminal Code, and engaged in aggravated hooliganism, contrary to Article 325 § 2 of the same Code (see paragraphs 24 and 25 below).

The charge under Article 108 § 2 apparently read as follows:

“... an offence under Article 108 § 2 in conjunction with Article 26 § 1 of [the Criminal Code] for having, on 29 May 2018 and 2 June 2018, by way of a continuing offence in Sofia and Stara Zagora, committed the following:

On 29 May 2018 in the centre of Sofia, in front of the Palace of Justice, he set on fire the flag of the Republic of Bulgaria, then urinated on it and created a video ‑ recording of these acts, thus desecrating the flag of the Republic of Bulgaria,

On 2 June 2018 in Stara Zagora he published the video-recording of this act (as set out above) on the internet, and thus the flag of the Republic of Bulgaria was desecrated.

And the charge under Article 325 § 2 apparently read as follows:

“... an offence under Article 325 § 2 in conjunction with § 1 in conjunction with Article 26 § 1 of [the Criminal Code] for having, on 29 May 2018 and 2 June 2018, by way of a continuing offence in Sofia and Stara Zagora, by way of concursus delictorum with the above-mentioned offence, with the same two acts, carried out indecent actions that grossly violated public order and showed overt disrespect for society, and the acts were characterised in their content by exceptional cynicism and arrogance, as follows:

On 29 May 2018 in the centre of Sofia, in front of the Palace of Justice, he carried out indecent actions that grossly violated public order and showed overt disrespect for society by setting on fire the flag of the Republic of Bulgaria, then urinating on it, and creating a video-recording of these acts,

On 2 June 2018 in Stara Zagora he carried out indecent actions that grossly violated public order and showed overt disrespect for society by publishing the video-recording of this act (as set out above) on the internet.”

20 . On 14 August 2018 the Specialised Criminal Court set the case down for trial.

21 . The trial took place on 4 and 27 September 2018. As can be seen from the Specialised Criminal Court ’ s judgment, available online, on the last-mentioned date it convicted the applicant as charged and sentenced him to an aggregate term of two years ’ imprisonment.

22 . As can be seen from documents submitted by the applicant in support of the other application lodged by him (no. 3089/19), and from information available on the Specialised Criminal Appellate Court ’ s website, he appealed against his conviction and sentence, and raised a number of arguments in relation to that. His ex officio lawyer also made submissions in support of the appeal.

23 . From information available on the Specialised Criminal Appellate Court ’ s website it can be seen that it heard the applicant ’s appeal on 7 January 2019 and that on 15 January 2019 it quashed the applicant ’ s conviction and sentence and referred the criminal case against him back to the Specialised Criminal Court, on the basis that the formation of that court which had tried the applicant had impermissibly consisted of a judge and two lay judges, whereas it should have consisted solely of a judge.

B. Relevant domestic law and practice

1. Flag desecration and hooliganism

24 . By virtue of Article 108 § 2 of the Criminal Code, it is an offence to desecrate in any way the coat of arms, flag or anthem of the Republic of Bulgaria, or the flag or anthem of the European Union. The punishment is up to two years ’ imprisonment or a fine of up to three thousand Bulgarian levs.

25 . Under Article 325 § 1 of the same Code, it is an offence (hooliganism) to carry out indecent actions that grossly violate public order and show overt disrespect for society. The punishment is up to two years ’ imprisonment or probation, coupled with public reprimand. If those actions are, inter alia , characterised by exceptional cynicism or arrogance, the maximum punishment goes up to five years ’ imprisonment (Article 325 § 2).

2. Police detention and escort

26 . Under section 72(1) of the Ministry of Internal Affairs Act 2014, the police can detain someone in a number of cases set out in the subsection, in particular when there are indications that he has committed an offence (point 1), or when detention is authorised under another statutory provision (point 7). In accordance with section 74(1), (2) and (6), everyone detained under section 72(1) must be issued with, and given a copy of, a written detention order setting out, among other things, the factual and legal grounds for the detention and the date and time of the detention, and advising the detainee, inter alia , that he can seek judicial review. By virtue of section 73, police detention under points 1 to 4 of section 72(1) cannot exceed twenty-four hours.

27 . Under section 72(4) of the 2014 Act, anyone placed in police detention can seek judicial review of its lawfulness, and the court has to rule on the claim immediately.

28 . By virtue of section 76(1) of the 2014 Act, the police can escort from one place to another (a) anyone in respect of whom a police investigator has ordered that he be brought by force in line with the provisions of the Code of Criminal Procedure, and (b) anyone detained under, inter alia , points 1 and 7 of section 72(1) of the Act (see paragraph 26 above).

3. Detention ordered by the prosecuting authorities

29 . In accordance with Article 64 § 2 of the Code of Criminal Procedure, a public prosecutor can order the detention of an accused for up to seventy-two hours with a view to ensuring that he appears before the first-instance court due to examine the prosecution ’ s request to place him in pre-trial detention.

4. The State and Municipalities Liability for Damage Act 1988

30 . Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action.

31 . Section 2(1 )( 1) and (1)(2) of the same Act, as worded since December 2012, reads:

“The State shall be liable for damage caused to citizens by the investigating or prosecuting authorities or the courts, in cases of:

1. deprivation of liberty, including when imposed as a measure to ensure an accused ’ s presence at trial, or house arrest, when they have been set aside; court ‑ ordered committal and treatment or compulsory medical measures, when they have been set aside; as well as in all other cases of deprivation of liberty in breach of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ... [hereinafter ‘ the Convention ’ ];

2. breach of rights protected under Article 5 §§ 2-4 of the Convention; ...”

COMPLAINTS

32. The applicant complains under Article 5 § 3 of the Convention that his pre-trial detention was not duly justified.

33. He also complains under Article 10 of the Convention of his arrest and detention and the criminal proceedings against him in connection with his acts on 29 May 2018 and the video-recording of those acts that he made and uploaded to YouTube.

34. Lastly, he complains under Article 13 of the Convention that he did not have an effective remedy with respect to this latter grievance.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention between 6 June 2018, when he was placed in pre-trial detention, and 27 October 2018, when he was convicted at first instance, and then since 15 January 2019, when his conviction was quashed and the criminal case against him referred back to the first-instance court, based on relevant and sufficient reasons, as required by Article 5 § 3 of the Convention? In particular, was the averred risk of reoffending a sufficient ground to keep the applicant in detention, and did the authorities consider alternative possibilities to avert that risk? The respondent Government are asked to provide examples of cases involving the same offences where the authorities have acted in a similar manner.

2. ( a ) Is Article 10 of the Convention applicable?

(b) If so, did the applicant ’ s arrest on 3 June 2018 and his ensuing detention in connection with his acts on 29 May 2018 and the uploading of the video-recording of those acts on YouTube on 2 June 2018 amount to a breach of his right to freedom of expression, contrary to Article 10 of the Convention (see, mutatis mutandis , Kandzhov v. Bulgaria , no. 68294/01, § 70, 6 November 2008)? In particular, were those measures “prescribed by law” and “necessary in a democratic society” to attain one or more of the legitimate aims set out in Article 10 § 2?

(c) When discussing the lawfulness of the applicant ’ s detention, the parties are requested to distinguish between his initial detention by the police in Stara Zagora on 3 June 2018, his ensuing detention by the police in Sofia on 4 June 2018, his ensuing prosecutor-ordered detention, and his ensuing pre-trial detention.

3. Did the applicant have at his disposal an effective domestic remedy with respect to his complaint under Article 10 of the Convention, as required by Article 13 of the Convention? In particular, did any of the remedies relating to his detention permit an effective examination of his freedom-of-expression grievance (see, mutatis mutandis , Peev v. Bulgaria , no. 64209/01, § 72, 26 July 2007)?