Information Note on the Court’s case-law 208

June 2017

Tsonev v. Bulgaria (dec.) - 9662/13

Decision 30.5.2017 [Section V]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Domestic remedy under the State and Municipalities Liability for Damage Act 1988, as amended and in force from 15 December 2012, capable of providing redress: inadmissible

Facts – In June 2012 the applicant was c harged with possession of a narcotic drug with intent to distribute and placed in pre-trial detention. His appeals against that measure were dismissed. In July 2013 he was convicted of drug offences and sentenced to six years’ imprisonment. His appeals aga inst conviction were dismissed.

Relying on Articles 5 §§ 1 (c), 3, and 4, the applicant complained that the domestic courts had refused to examine the reasonableness of the suspicion against him when considering his pre-trial detention.

Facts – In June 2 012 the applicant was charged with possession of a narcotic drug with intent to distribute and placed in pre-trial detention. His appeals against that measure were dismissed. In July 2013 he was convicted of drug offences and sentenced to six years’ impris onment. His appeals against conviction were dismissed.

Relying on Articles 5 §§ 1 (c), 3, and 4, the applicant complained that the domestic courts had refused to examine the reasonableness of the suspicion against him when considering his pre-trial detent ion.

Law – Article 5: The question before the Court was whether the remedy cited by the Government – a claim for damages under section 2(1)(1) and (1)(2) of the State and Municipalities Liability for Damage Act 1988, as amended and in force from 15 December 2012 – was available to the applicant and whether that remedy was capable of providing him adequate redress. A claim under the relevant provisions could result in an express acknowledgment of a breach of Article 5 of the Convention and a consequent award of comp ensation. Such a remedy could in principle provide adequate redress, if the situation alleged to amount to a breach of Article 5 had come to an end.

The applicant was still in pre-trial detention when he raised his complaints before the Court. Though the national courts’ decisions of which he complained were one-off acts, it was open to question whether those courts’ refusals to enquire into the reasonableness of the suspicion against him had an effect on his ensuing pre-trial detention. It followed that i t was also open to question whether, in view of its purely compensatory character, the remedy was capable of providing the applicant adequate redress with respect to his complaint under Article 5 § 3 as long as that pre-trial detention persisted. But the a pplicant’s situation had changed. In 2013 he was convicted and in 2014 his conviction became final. He was thus no longer in pre-trial detention. A remedy capable of resulting in an acknowledgment of the breach and compensation therefore became adequate in his case. Since the applicant’s complaint concerned judicial decisions given after the amendment had entered into force, the remedy was clearly available and its lack of retrospective effect did not affect him.

The main point of contention between the pa rties was whether a claim for damages about the way in which a criminal court had dealt with a legal challenge to pre-trial detention would have been likely to succeed. Doubts about the prospects of a remedy which appeared to offer a reasonable possibility of redress were not a sufficient reason to eschew it. That was especially true if the legal provision on which the remedy was based had been specifically put in place to allow a grievance under the Convention to be aired domestically. When the proper cons truction of a new legal provision was yet to be settled, the domestic courts had to be given the opportunity to dispel any doubts. It was true that the Bulgarian courts’ case-law under the amended provisions was still scant and not well-settled. But that c ould not in itself lead to the conclusion that the remedy did not offer a reasonable prospect of success. The applicant’s grievances directly related to judicial decisions and were thus well within the ambit of the legislation in question.

The limitation period for such a claim was five years and it was still open to the applicant to make one. If he was not successful, he would be able to re-apply to the Court, as the process of exhaustion of domestic remedies amounted to relevant new information.

While t he application was therefore to be rejected for non-exhaustion of domestic remedies, the Court emphasised that its view on the effectiveness of the remedy could be subject to reconsideration depending, in particular, on the Bulgarian court’s ability to dev elop a consistent case-law under those provisions in line with the requirements of the Convention.

Conclusion : inadmissible (failure to exhaust domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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