Communicated on 10 June 2015

FOURTH SECTION

Application no. 74091/11 Vaska Kirilova NIKOLOVA against Bulgaria lodged on 18 November 2011

STATEMENT OF FACTS

1. The applicant, Ms Vaska Kirilova Nikolova , is a Bulgarian national who was born in 1962 and lives in Sandanski . She is represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova , lawyers practising in Plovdiv .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant and established by the Court of its own motion , may be summarised as follows.

3. In 2006 the applicant was working as head of the audit unit of the Blagoevgrad division of the National Revenue Agency. She was in charge of, among others, the towns of Petrich and Sandanski .

1. The events of 9 September 2006

4. At about 11 a.m. on 9 September 2006, a Saturday, the applicant went to the Sandanski office of the National Revenue Agency, according to her to practise filling in tests on the ethical duties of tax officials. She says that on her way there she ran into an acquaintance of hers, Mr B.T., who asked her whether she could run a check on the identities of certain persons that he needed for court papers that he was about to file in connection with the registration of the United Macedonian Organisation Ilinden – PIRIN as a political party (see United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) , nos. 41561/07 and 20972/08 , § § 12-14 , 18 October 2011 ). The applicant decided that there was no legal impediment to that and together with Mr B.T. went inside the Agency ’ s office. However, their entry set off the alarm and shortly after that three police officers came to the office and found the applicant and Mr B.T. inside, checking the personal data of certain individuals in the Agency ’ s computer database. The officers asked the two of them to produce their identification papers and to accompany them to the local police station.

5. The applicant and Mr B.T., under police escort, arrived at the police station at about 11.15 a.m. The applicant was asked to draw up a written explanation of her presence in the Agency ’ s office. In the meantime, two plain-clothes officers arrived at the station; it later transpired that they were officers of the National Security Agency. They interviewed the applicant without identifying themselves and without explaining the reasons why she was being detained. The applicant was released at about 3.40 p.m. It appears that in the meantime, at about 1.50 p.m., she was taken by the police back to the office of National Revenue Agency for a short while to be present while the police drew up a record, and then taken again to the police station.

2. The criminal proceedings against the applicant

6. Following this incident, the prosecuting authorities opened criminal proceedings against the applicant on charges that she had knowingly divulged confidential information to which she had access by virtue of her position as a tax administration official, contrary to Article 248 § 1 of the Criminal Code 1968. However, on 22 May 2007 the Sandanski District Prosecutor ’ s Office decided to discontinue those proceedings. It noted that while the applicant had indeed misused her office to divulge confidential information – the personal data of two persons – to which she had access by virtue of her position, Article 248 § 1 in addition required this to have given rise to prejudice for the State or a private person. There was however no evidence that the applicant ’ s act had prejudiced the State or those two persons, both of whom, when interviewed, had stated that they had not suffered any negative consequences as a result of the applicant ’ s divulging their personal data to Mr B.T.

3. The applicant ’ s complaints to the prosecuting authorities

7. Shortly after the events of 9 September 2006 the applicant and Mr B.T. complained to the military prosecuting authorities about the actions of the police officers who had detained them on 9 September 2006. On 29 November 2007 a prosecutor of the Sofia Regional Military Prosecutor ’ s Office ultimately refused to open criminal proceedings pursuant to those complaints, finding that the officers concerned had not committed any offences in relation to that. That decision was upheld by the Appellate Military Prosecutor ’ s Office on 19 February 2008 and by the Supreme Cassation Prosecutor ’ s Office on 4 June 2008.

4. The applicant ’ s claim for damages

8. On 29 January 2010 the applicant brought a claim under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 21 below) against the Blagoevgrad Regional Directorate of the Ministry of Internal Affairs and the National Security Agency. She alleged, inter alia , that her detention for more than four hours on 9 September 2006 had been unlawful because it had not been based on a written order as required under section 65(1) of the Ministry of Internal Affairs Act 2006 (see paragraph 17 below). She also alleged that the detention and the pressure to which she had been subjected by the police in its course had caused her stress and humiliation and had aggravated her state of health, and claimed 10,000 Bulgarian levs (the equivalent of 5 ,112. 9 2 euros) in non ‑ pecuniary damages.

9 . The Blagoevgrad Administrative Court heard the case on 23 March, 27 April, and 1 and 6 June 2010. It heard the applicant, Mr B.T. and a number of witnesses, including all of the officers concerned.

10 . In a judgment of 29 July 2010, the Blagoevgrad Administrative Court dismissed the claim. It noted that it was not disputed that between about 11 a.m. and about 3.30 p.m. on 9 September 2006 the applicant had been detained by officers of the Sandanski police. That was further proved by the register of detained persons kept by the Sandanski police station and the statements of the officers concerned. However, to succeed, a claimant in proceedings under section 1 of the 1988 Act (see paragraph 21 below) had to make out all elements of the tort under that provision: a wrongful act or omission by officials, damage, and a sufficient causal link between the two. The claimant bore the full burden of proof in relation to each of them, and the lack of any one element meant that the claim should fail. However, the applicant had not categorically proved that she had suffered non ‑ pecuniary damage as a result of her arrest and detention. There was no evidence that the officers concerned had done anything to hurt her dignity. In particular, their testimony, which was internally consistent and corresponded to the rest of the evidence, showed that the applicant had not been subjected to any physical or psychological abuse. The applicant ’ s evidence that one of the officers had acted rudely was contradicted by the evidence of all officers and was vague; it could not therefore be credited. It was not supported by the statement of Mr B.T. either. The applicant ’ s assertions in respect of the damage that she had allegedly suffered were in addition very general and could not be upheld. The police had been apprised of a possible offence and had detained the applicant for less than twenty-four hours to elucidate the case, as possible under section 64 of the 2006 Act (see paragraph 16 below). Had the applicant ’ s detention lasted more than twenty-four hours, the outcome of the case would probably have been different.

11. The applicant appealed on points of law. She argued, inter alia , that the court had not clarified under which poi nt of section 63(1) of the 2006 Act (see paragraph 15 below) she had been detained, or commented on the fact that her detention had not been sanctioned by a written order. She also argued, by reference to Article 5 § 5 of the Convention, that the mere fact of unlawful detention gave rise to non-pecuniary damage because it was an infringement of the fundamental right to liberty, guaranteed by, inter alia , Article 5 § 1 of the Convention. Since it was clear that she had been detained unlawfully, she was entitled to non-pecuniary damages in relation to that.

12 . In a judgment of 19 May 2011 ( реш . № 7036 от 19.5.2011 г. по адм . д. № 245/2011 г., ВАС, ІІІ о. ), the Supreme Administrative Court dismissed the appeal. It fully agreed with all of the lower court ’ s findings, and did not mention Article 5 § § 1 or 5 of the Convention.

B. Relevant domestic law

1. Constitutional provisions

13 . Article 30 § 1 of the Constitution of 1991 provides that everyone has the right to personal liberty and inviolability. Article 30 § 2 provides that no ‑ one may be detained except under conditions and in a way provided for by law. Article 30 § 3 provides that, in urgent situations expressly provided for by law, t he authorities may detain a person, in which case they must immediately inform the “organs of the judicial power”, which must rule on the lawfulness of the detention within twenty-four hours.

2. Police detention under the Ministry of Internal Affairs Act

14 . Section 70(1) of the Ministry of Internal Affairs Act 1997, in force until the end of April 2006, provided that the police could detain a person in a number of cases set out in the subsection. On 1 May 2006 that provision was superseded by section 63(1) of the M inistry of Internal Affairs Act 2006, which was worded almost identically. On 1 January 2015 that provision was in turn superseded by section 72(1) of the Ministry of Internal Affairs Act 2014, also worded almost identically.

15 . Section 63(1) of the 2006 Act allowed the police to detain a person only where (a) there were indications that that person had committed an offence (point 1); (b) the person had, in spite of being warned, knowingly prevented a police officer from carrying out his or her duties (point 2); (c) the person displayed serious psychological troubles and disturbed public order or exposed his or her life or the lives of others to manifest danger (point 3); (d) the person was a juvenile who had left his or her home or guardian or the institution where he or she had been placed (point 4); (e) the identity of the person could not readily be established on the basis of identity documents, the statements of others, or otherwise (point 5); (f) the person had absconded from prison or pre-trial detention (point 6); (g) the person had been put up for international tracing at the request of a foreign State in connection with an extradition request or a European Arrest Warrant (point 7); or (h) detention was authorised under another legal provision (point 8).

16 . Section 64 of the 2006 Act, which was the exact equivalent of section 71 of the 1997 Act, provided that no rights other than the right to liberty of the person concerned could be curtailed, and that detention under section 63(1) could not last longer than twenty-four hours. Section 73 of the 2014 Act is worded in an identical way.

17 . Section 72(1) of the 1997 Act and section 65(1) of the 2006 Act, which were worded almost identically, provided that to take a detained person to a detention facility the police had to issue a written order. Section 74(1) of the 2014 Act is to the same effect, but section 74(2) goes on to set out in detail the required contents of the order, and section 74(5) provides that such orders need to be entered in a special register.

18 . Section 70(4) of the 1997 Act provided that the detainee could seek judicial review of the lawfulness of his or her detention, and that the court had to rule on the order ’ s lawfulness forth with. Section 63(4) of the 2006 Act and section 72(4) of the 2014 Act were worded almost identically.

19 . The Supreme Administrative Court has held that the lack of a written order could in itself affect the lawfulness of a period of police detention and that this point may be examined in proceedings for judicial review of the de facto detention ( see опр . № 1273 от 9. 2.2005 г. по адм . д. № 922/2005 г., ВАС, V о. ). It has also held that the act of police detention is to be itself regarded as an administrative decision whose lawfulness can be examined in judicial review proceedings (see реш . № 8176 от 17.6.2010 г. по адм . д. № 437/2010 г., ВАС, III о. ). However, in other cases that court has held that the lawfulness of a short period of police detention carried out in the absence of a written order could only be examined in proceedings for damages under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 21 below), because the act of police detention was not administrative decision that could be judicially reviewed (see опр . № 2556 от 21.3.2005 г. по адм . д. № 1553/2005 г., ВАС, V о. , and о пр . № 1788 от 17. 2.2006 г. по адм . д. № 1388/2006 г., ВАС , V о. ).

20 . The Supreme Administrative Court has also held that the proper construction of the terms in section 65(1) of the 2006 Act (see paragraph 17 above) showed that it required that the detention order be issued immediately and set out the legal and factual grounds for its issuing. On that basis, the court found that a nine-hour delay in the issuing of such an order had affected the lawfulness of the underlying detention (see реш . № 14976 от 8.12.2010 г. по адм . д. № 3969/2010 г., ВАС, III о. ).

3. Claims for damages in relation to police detention

21 . Section 1(1) of State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, acts or omissions by civil servants, committed in the course of or in connection with administrative action. By Article 204 § 1 of the Code of Administrative Procedure 2006, a claim relating to damage allegedly caused by an unlawful decision can only be made if that decision has been duly set aside (by Article 204 § 2 of the Code, the claim for damages may be brought jointly with the claim for judicial review of the decision) . If the claim relates to an unlawful act or omission, its unlawfulness may be established , as a preliminary point, by the court hearing the claim of damages (Article 204 § 4 of the same Code).

22 . Section 4 of the 1988 Act provides that the State ’ s liability extends to all pecuniary and non-pecuniary damage which is a direct and proximate result of the impugned decision, act or omission.

23. It is possible to seek damages resulting from u nlawful police detention in proceedings under these provisions ( see реш . № 14976 от 8.12.2010 г. по адм . д. № 3969/2010 г., ВАС, III о.; реш . № 11974 от 1.10.2012 г. по адм . д. № 1808/2012 г., ВАС, III о. ; реш . № 2363 от 19.2.2013 г. по адм . д. № 4187/2012 г., ВАС, III о. ; and реш . № 7915 от 10. 6.2013 г. по адм . д. № 11237/2012 г., ВАС, III о. ). If the detention is based on a written order, the claimant must first have that order quashed, either in separate judicial review proceedings (see опр . № 9381 от 13.7.2009 г. по адм . д. № 8436/2009 г., ВАС, III о. ), or in the course of the proceedings for damages (see опр . № 13297 от 9.11.2010 г. по адм . д. № 13269/2010 г., ВАС, III о. ). Failure to have the order quashed beforehand renders the claim for damages inadmissible (see о пр . № 17130 от 18.12.2013 г. по адм . д. № 16066/2013 г., ВАС , IV о. ).

24 . W hen dealing with such claims, the Supreme Administrative Court has i n some cases accepted that the me re fact of unlawful detention gives rise to non-pecuniary damage , either on the basis that it infringes the fundamental right to liberty (see реш . № 14976 от 8.12.2010 г. по адм . д. № 3969/ 2010 г., ВАС, III о. ; реш . № 16746 от 19.12.2011 г. по адм . д. № 11474/2011 г., ВАС, III о. ; and реш . № 10871 от 18.7.2013 г. по адм . д. № 2627/2013 г., ВАС, III о. ) , or on the basis that it could fairly be assumed that any person would experience stress and anxiety if unlawfully detained (see реш . № 7915 от 10.06.2013 г. по адм . д. № 11237/2012 г., ВАС, III о. ; реш . № 7113 от 27.5.2014 г. по адм . д. № 12936/2013 г., ВАС, III о. , and реш . № 7292 от 29.5.2014 г. по адм . д. № 13651/2013 г., ВАС, III о. ). However, in other cases it has held that non-pecuniary damage flowing from an infringement of the right to liberty could only be made out by presenting objective, or even expert, evidence that it has materialised (see р еш . № 8176 от 17. 6.2010 г. по адм . д. № 437/2010 г., ВАС , III о.; реш . № 7954 от 15.06.2010 г. по адм . д. № 753/2010 г., ВАС, III о. ; реш . № 5046 от 11.4.2011 г. по адм . д. № 13852/2010 г., ВАС, III о. ; реш . № 15332 от 20.11.2013 г. по адм . д. № 5615/2013 г., ВАС, III о. ; and реш . № 8760 от 25.6.2014 г. по адм . д. № 16558/2013 г., ВАС, ІІІ о. ). In a third line of cases, the court held that in the absence of specific evidence of mental suffering, relatively moderate sums should be awarded by way of non-pecuniary damages (see р еш . № 5230 от 9. 5.2008 г. по адм . д. № 11884/2007 г., ВАС , III о. ; р еш . № 8347 от 12. 6.2013 г. по адм . д. № 5170/2013 г., ВАС , III о. ; and реш . № 3245 от 7.3.2014 г. по адм . д. № 15896/2013 г., ВАС, III о. ).

COMPLAINTS

25 . The applicant complains under Article 5 § 1 of the Convention that her detention on was unlawful because it could not be justified under section 63(1) of the 2006 Act since the facts of her case could not be subsumed under any of the situations in which detention was permissible under that provision, and because she was detained in the absence of a written order, in breach of section 65(1) of the same Act.

26 . The applicant also complains under Article 5 § 5 of the Convention that the Blagoevgrad Administrative Court and the Supreme Administrative Court dismissed her claim for damages in respect of that detention .

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, was her deprivation of liberty on 9 September 2006 “ in accordance with a procedure prescribed by law ” and “lawful”, and based on a “reasonable suspicion” that she had committed an offence, as required by that provision?

2. Did the applicant have an enforceable right to compensation for her detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?