Information Note on the Court’s case-law 133

August-September 2010

Danev v. Bulgaria - 9411/05

Judgment 2.9.2010 [Section V]

Article 5

Article 5-5

Compensation

Refusal to grant reparation for unlawful detention on grounds that applicant had not proved any non-pecuniary damage: violation

Facts – In 1997 the applicant was charged with unlawful possession of firearms and remanded in custody. In the following weeks he was released for lack of evidence and the proceedings were discontinued. The applicant brought an action against the public prosecutor’s office and the investigation service for compensation for the damage sustained as a result of his detention. He complained that the detention had been unlawful, and that his solitary confinement and the poor detention conditions had caused him anxiety. The district court awarded compensation to the applicant, who found the award too low and appealed. The appellate court acknowledged that the applicant’s detention had been unlawful but dismissed his claim for compensation on the ground that he had not proved that he had suffered any non-pecuniary damage.

Law – Article 5 § 5: Although the applicant had obtained an acknowledgment that his detention had been unlawful and an implicit admission of a violation of Article 5 § 1 (c) of the Convention, he had nevertheless not received any compensation because he had not proved that he had suffered any non-pecuniary damage. The appellate court seemed to have assumed that any non-pecuniary damage should be outwardly perceptible and that the adverse effects of unlawful detention ended upon release. The cumulative application of those two principles had effectively imposed an obligation on the applicant to prove that his allegations were founded by adducing evidence of outward signs of his suffering during his detention. Thus, the appellate court had disregarded statements by a witness confirming the difficulties faced by the applicant because they had concerned his condition after his release and were not corroborated by any other evidence. The Court, however, considered that such effects on a person’s psychological well-being could persist even after his release. Moreover, the appellate court had not taken into consideration the finding of a violation of the applicant’s right to liberty and security or his arguments as to his fragile psychological condition while in detention in establishing whether there had been any non-pecuniary damage. That formalistic approach meant that the award of any compensation was unlikely in the large number of cases where an unlawful detention lasted a short time and did not result in an objectively perceptible deterioration in the detainee’s physical or psychological condition. Lastly, the applicant did not appear to have had any other remedy available for obtaining compensation.

Conclusion : violation (unanimously).

Article 41: EUR 1,000 in respect of non-pecuniary damage.

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

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