FOURTH SECTION

Application s no. 50027/08 and 50781/09 Stanislav Dimitrov PETKOV and Petko Yankov PROFIROV against Bulgaria and Stanislav Dimitrov PETKOV against Bulgaria lodged on 24 September 2008 and 8 September 2009 respectively

STATEMENT OF FACTS

THE FACTS

Application no. 50027/08 was lodged on 24 September 2008 by Stanislav Dimitrov Petkov , born in 1981 , and Petko Yankov Profirov , b orn in 1980. Application no . 50781/09 was lodged by Stanislav Dimitrov Petkov on 8 September 2 009.

The applicants are Bulgarian nationals and live in Burgas . In both applications they are represented before the Court by Mr S. Karov , a lawyer practising in Burgas .

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 50027/08

In the morning of 4 March 2007, while Mr Petkov , Mr Profirov and a third person, Mr V., were in a hotel in Stara Zagora , the police arrived in their room and arrested Mr V., who had been put on a national list of wanted persons.

Around 4 p.m. on the same day, while the two applicants were again in their hotel room, several police officers entered, handcuffed them and searched the room. Then the applicants were taken to a police station, where they were questioned on what business had brought them to Stara Zagora . No records were taken of the interviews.

Around 6 p.m. the applicants were presented with written orders for their 24-hour detention, drawn up pursuant to section 63(1)(1) of the Ministry of Internal Affairs Act (see Relevant domestic law and practice below). The orders merely indicated the applicable legal provision and did not refer to any factual grounds justifying a suspicion that the applicants had committed a criminal offence.

The applicants remained in police custody until 5:15 p.m. on the next day. They were not questioned or sought for anything any further . They were allowed to call their lawyers; however, when Mr Profirov ’ s lawyer arrived at the police station he was not allowed to see the applicants.

On 9 August 2007 the applicants applied for judicial review of the detention orders of 4 March 2007. In the course of the two sets of proceedings the police stated that the applicants had been arrested because they had been with Mr V. who, during his initial questioning, had not explained in a satisfactory manner what the three of them had been doing in Stara Zagora . At the same time, on unspecified earlier dates there had been several thefts in the city. The applicants had already been suspected of having committed other thefts.

In two judgments dated 31 October 2007 the Stara Zagora Administrative Court found that the detention orders were lawful, because the police had held information “justifying a suspicion of a criminal offence” and the detention had served the legitimate purpose of “facilitating the unhindered carrying out of a police check-up”.

Upon appeals by the applicants, in two final judgments – of 24 April 2008 in the case of Mr Petkov and of 3 July 2008 in the case of Mr Profirov – the Supreme Administrative Court upheld the lower court ’ s judgments, confirming its reasoning.

2. Application no. 50781/09

At around 3 a.m. of 6 December 2007 Mr Petkov and a friend of his were arrested on the street in Burgas and brought to a police station, where the police issued orders for their 24-hour detention under section 63(1)(1) of the Ministry of Internal Affairs Act (see Relevant domestic law and practice below). The order concerning Mr Petkov merely indicated the applicable legal provision and did not refer to any factual grounds justifying a suspicion that he had committed a criminal offence.

Mr Petkov was kept at the police station until 2 a.m. on the next day when he was released. He was not questioned or sought for anything. He was not allowed to call his lawyer, but managed to do so secretly; the lawyer arrived at the station and was allowed to meet him briefly.

On the day of his release, 7 December 2007, the applicant applied for judicial review of the detention order.

In the course of the proceedings the police explained that the applicant and his friend had been seen by a police patrol carrying a plastic bag, which they had thrown away. When checked by the police, the bag had contained a pair of pliers. Close by the officers had also found a pair of gloves. At the same time the applicant had been suspected of several earlier thefts.

The objects mentioned by the police – a pair of pliers and gloves – were apparently never seized for the purposes of a criminal investigation.

In a judgment of 18 February 2008 the Burgas A dministrative Court found the disputed detention order lawful, noting that the police ’ s explanations showed that there had been a reasonable suspicion that the applicant had committed a theft.

Upon an appeal by the applicant, in a final judgment of 9 March 2009 the Supreme Administrative Court upheld the lower court ’ s judgment.

B. Relevant domestic law and practice

Under the Ministry of Internal Affairs Act of 2006 the police can, on the basis of a written order to that effect (section 65(1)), arrest an individual suspected of having committed a criminal offence (section 63(1)(1)). An individual taken in police custody is entitled to be assisted by counsel and seek judicial review of his detention (section 63(4) and (5)). The application for judicial review is to be examined immediately (section 63(4) in fine ). Police detention under section 63(1)(1) cannot exceed twenty ‑ four hours (section 64 in fine ) and cannot entail the restriction of any personal rights other than the right to free movement (section 64).

In applying the 1997 Ministry of Internal Affairs Act, now repealed, which contained provisions identical to the ones above, the Supreme Administrative Court held that police detention was lawful only if it immediately preceded the opening of a preliminary investigation against the arrestee ( judgment no. 9779 of 24 November 2004, case no. 4925/2004 ) and that it was to be imposed with a view to instituting such a preliminary investigation (judgment no. 3996 of 13 April 2006, case no. 9362/2005).

In a number of judgments under the Ministry of Internal Affairs Act currently in force the Supreme Administrative Court has confirmed this approach and has held that detention under section 63(1)(1) of the Act c ould only be imposed with the purpose of preventing the commission of an offence by the arrestee or his absconding. It has also held that such detention has to be necessary and proportionate to the aim of effectively realising criminal responsibility (judgment no. 3581 of 14 March 2010, case no. 10790/2010). When making an order under section 65(1) of the Act the police is not under an obligation to specify the offence which the arrestee is suspected to have committed (judgment no. 3475 of 9 March 2012, case no. 5290/2011), but it is nevertheless necessary that the detention order mentions the factual grounds substantiating this suspicion (judgment no. 4410 of 2 April 2009, case no. 6839/2008).

Detention orders under section 70 of the Ministry of Internal Affairs Act are administrative decisions. Their setting aside gives rise to entitlement for the persons affected by them to seek damages from the State for unlawful detention.

COMPLAINTS

The two applications concern identical complaints:

1. The applicants complain under Article 5 § 1(c) of the Convention that their detention ordered by the police was not based on reasonable suspicion that they had committed criminal offences .

2. The applicants also complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their detention.

3. In addition to the complaints above, without raising any separate complaints, the applicants refer to Article 6 §§ 2 and 3(a) and (c) of the Convention.

5. Relying on Articles 6 § 1 of the Convention, the applicants complain that they did not have prompt access to a court to challenge their detention.

4. Lastly, relying on Articles 6 § 1 and 13 of the Convention, they complain that the judicial review proceedings initiated by them were unfair because the national courts reached wrong conclusions.

QUESTIONS

1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did their deprivation of liberty fall within paragraph (c) of this provision (see Jėčius v. Lithuania , no. 34578/97, § 50 , ECHR 2000 ‑ IX ) ? Was there a reasonable suspicion that the applicants had committed any specific offence (see Gusinskiy v. Russia , no. 70276/01, § 53 , ECHR 2004 ‑ IV ; Guzzardi v. Italy , 6 November 1980, § 102 , Series A no. 39 ) ?

Was the deprivation of liberty carried out in accordance with the requirements of domestic law? D id the applicable domestic law contain sufficient guarantees against arbitrary detent ion? Were the applicants given adequate possibility to benefit from those guarantees, in particular the assistance of a lawyer?

2. Were the applicant s informed of the reasons for their arrest and of any charges against them, as required by Article 5 § 2 of the Convention?

3. Did Article 5 § 4 of the Convention require an effective procedure by which the applicants could challenge the lawfulness of their detention (see Brogan and Others v. the United Kingdom , 29 November 1988, § 53, Series A no. 145 ‑ B ; Fox , Campbell and Hartley v. the United Kingdom , 30 August 1990, § 44 , Series A no. 182 ; Nechiporuk and Yonkalo v. Ukraine , no. 42310/04 , § 243 , 21 April 2011 ) ?

Was Article 5 § 4 applicable to the judicial review proceedings brought by the applicants? If so, were its requirements satisfied?

4 . Did the applicant s have access to an effective and enforceable right to compensation for their detention in alleged contravention of Article 5 § § 1 , 2 and 4 , as required by Article 5 § 5 of the Convention , seeing, most notably, that their applications for judicial review of the detention orders, which could give rise to an entitlement to seek damages, were disallowed ?