EHRM, 06-11-2008, nr. 68294/01

The Government submitted that the application was inadmissible because the applicant had failed to exhaust domestic remedies in respect of his complaints. They pointed out that the criminal proceedings against him had resulted in an acquittal and that the grievances which he raised before the Court thus fell within the ambit of section 2(2) of the SRDA. He therefore could have claimed compensation for the damage sustained as a consequence of the criminal proceedings against him. At the relevant time the domestic courts' case-law on the application of this provision had been sufficiently established, making it an adequate and effective avenue of redress. In support of their assertion the Government pointed to a number of domestic judgments under section 2(2) of the SRDA and drew attention to the fact that in 2004 the Supreme Court of Cassation had adopted a binding interpretative decision on its application.

The applicant conceded that, despite some practical difficulties, he could have brought a claim under section 2(2) of the SRDA. However, for him, such a claim would not have provided redress in respect of the complaints which he had raised before the Court. These complaints were all founded on his unlawful and unjustified detention between 10 and 14 July 2000, whereas a claim under section 2(2) of the SRDA would have been based exclusively on his eventual acquittal. In such proceedings the national courts would not have addressed the issues brought before the Court because they would have considered them irrelevant. Moreover, such a claim would have only been capable of providing compensation, not securing his release. Only remedies which could result in release could be considered effective with regard to deprivation of liberty. Similarly, a claim under section 2(2) could not have provided genuine redress for the breach of his freedom of expression.

Article 35 § 1 of the Convention provides, in so far as relevant:

The Court has often stated that the rule of exhaustion of domestic remedies referred to in this provision requires applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. However, it is incumbent on a Government claiming non-exhaustion to indicate with sufficient clarity the remedies to which an applicant has not had recourse and to satisfy the Court that they were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, as a recent relevant authority, Kolev v. Bulgaria, no. 50326/99, §§ 70 and 72, 28 April 2005).

The Court does not need to resolve the question whether a claim for compensation may be considered as an effective remedy in respect of a deprivation of liberty carried out in breach of Article 5 of the Convention (see De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, § 39, Series A no. 77; Amuur v. France, judgment of 25 June 1996, § 36in fine, Reports of Judgments and Decisions 1996-III; Steel and Others v. the United Kingdom, judgment of 23 September 1998, § 63, Reports1998-VII; Tám v. Slovakia, no. 50213/99, §§ 44–53, 22 June 2004; Andrei Georgiev v. Bulgaria, no. 61507/00, §§ 73–79, 26 July 2007; and Ladent v. Poland, no. 11036/03, § 39, ECHR 2008-… (extracts), which imply that it may be; Kokavecz v. Hungary (dec.), no. 27312/95, 20 April 1999, which says that it is, after the impugned detention has ended; and Tomasi v. France, judgment of 27 August 1992, § 79, Series A no. 241-A; Navarra v. France, judgment of 23 November 1993, § 24, Series A no. 273-B; Yağcı and Sargın v. Turkey, judgment of 8 June 1995, § 44, Series A no. 319-A; Włoch v. Poland, no. 27785/95, § 90, ECHR 2000-XI; and Haris v. Slovakia, no. 14893/02, § 38, 6 September 2007, which say that it is not, even after the individual concerned has been released). Even if it were to be assumed that in certain situations it may be deemed such a remedy, the Court does not, for the reasons which follow, consider that it was available to the applicant in the instant case.

The Court notes at the outset that the Government pointed solely to section 2(2) of the SRDA and did not invoke any other provision of domestic law in support of their contention that the applicant had failed to exhaust domestic remedies. It is therefore not necessary for the Court to consider of its own motion whether some of the complaints should have been declared inadmissible in part on account of the applicant's failure to seek judicial review of his police detention under section 70(3) of the 1997 Ministry of Internal Affairs Act and then claim damages under section 1 of the SRDA (see paragraphs 31 and 33 above and, mutatis mutandis, Steel and Others, cited above, p. 2737, § 63, with further references).

Turning to the provision relied on by the Government, section 2(2) of the SRDA, the Court must firstly determine whether it was capable of remedying the applicant's grievance under Article 5 § 1 (c) of the Convention. On this point, it notes that the Supreme Court of Cassation's 2004 binding interpretative decision, which clarifies in respect of what facts compensation is due under this provision, refers to ‘pre-trial detention’, a term taken from the 1974 Code of Criminal Procedure and referring exclusively to one form of deprivation of liberty imposed in the course of criminal proceedings (see paragraph 36 above). However, in the case at hand the applicant was never placed in ‘pre-trial detention’. He was first in police detention under section 70(1) of the 1997 Ministry of Internal Affairs Act (see paragraphs 13 and 31 above) and then in detention ordered by a prosecutor under Article 152a § 3 of the 1974 Code of Criminal Procedure, pending a judicial determination of whether or not he should be placed in ‘pre-trial detention’ (see paragraphs 17 and 34 above). When brought before a judge, he was released on bail (see paragraph 20 above). It thus seems unlikely that the domestic courts would have found that his deprivation of liberty fell within the ambit of section 2(2) of the SRDA and that he was entitled to compensation for it, despite his acquittal. The Government — who are under the burden of proving the effectiveness of the remedies which they invoke — have not pointed to any domestic court judgment under section 2(2) of the SRDA in which compensation has been awarded in such circumstances. The Court is therefore not persuaded that a claim under this provision can be seen as an effective remedy in respect of the applicant's complaint under Article 5 § 1 (c) of the Convention.

The Court secondly finds that a claim under section 2(2) of the SRDA cannot be considered as capable of providing redress in respect of the applicant's complaint under Article 5 § 3 of the Convention that he was not brought promptly before a judge. It is clear from the domestic courts' case-law and from the 2004 interpretative decision of the Supreme Court of Cassation that in examining claims under this provision these courts confine their attention to whether the persons concerned have been acquitted and prior to such acquittal placed in ‘pre-trial detention’, and do not review whether they have been brought promptly before a judge who would rule on the initial need for their detention (see paragraphs 37 and 38 above). It thus seems that section 2(2) of the SRDA does not create a cause of action in respect of the applicant's grievance under Article 5 § 3 of the Convention (see Kolevi v. Bulgaria (dec.), no. 1108/02, 4 December 2007; and, mutatis mutandis, Pavletić v. Slovakia, no. 39359/98, § 71, 22 June 2004). The Government have not identified any domestic court judgment in which compensation has been awarded on the basis of such facts.

Finally, the Court must examine whether a claim under section 2(2) of the SRDA can be said to constitute an effective remedy in respect of the alleged violation of Article 10 of the Convention. On this point, it notes that the applicant's allegation that his freedom of expression had been violated was based on his arrest and subsequent detention, not on the opening of criminal proceedings against him (see paragraphs 3 above and 68 below). The Court already found that such an action would not have been likely to result in an award of compensation for the arrest and detention. It could not therefore have remedied the applicant's Article 10 grievance in respect of these matters.

Furthermore, the Court notes that the subject matter of such a claim would have been confined to establishing whether the criminal proceedings against the applicant had resulted in an acquittal and whether in the course of these proceedings he had been kept in ‘pre-trial detention’ (see paragraphs 37 and 38 above). There is no indication — and it has not been suggested by the Government — that in examining the claim the courts would have touched upon the substance of the applicant's freedom-of-expression grievance, as it is not part of the cause of action. The Court does not therefore consider that an action under section 2(2) of the SRDA would have amounted to an avenue whereby the applicant could have vindicated his freedom of expression as such (see, mutatis mutandis, Peev v. Bulgaria, no. 64209/01, §§ 72 and 73, 26 July 2007).

The Government's objection under Article 35 § 1 of the Convention must therefore be rejected.

The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

The applicant alleged that his arrest and detention had been unlawful and arbitrary. He relied on Article 5 § 1 (c) of the Convention, which provides:

Neither the Government nor the applicant made submissions in respect of the merits of the complaint.

The Court observes that in the present case the applicant was arrested and detained as the alleged perpetrator of two criminal offences: hooliganism and insult (see paragraphs 13 and 17 above). His deprivation of liberty was therefore an ‘arrest or detention’ effected ‘for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’ within the meaning of sub-paragraph (c) of Article 5 § 1.

For the Court, the main issue to be determined in the present case is whether this deprivation of liberty was ‘lawful’ within the meaning of Article 5 § 1 (see Lukanov v. Bulgaria, judgment of 20 March 1997, § 41, Reports 1997-II). According to its settled case-law, this expression stipulates not only full compliance with the procedural and substantive rules of national law, but also requires that any deprivation of liberty be consistent with the purpose of Article 5 — to prevent persons from being deprived of their liberty in an arbitrary fashion (see, among many other authorities, Steel and Others, cited above, § 54). Seeing that paragraph 1 of this provision contains an exhaustive list of permissible grounds for deprivation of liberty, it must be interpreted strictly (see Lukanov, cited above, § 41).

Since under Article 5 § 1 compliance with domestic law is an integral part of the obligations of the Contracting States under the Convention, the Court, subject to the limits inherent in the logic of the European system of protection, can and should exercise a certain power of review in this respect (ibid.; and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997, § 57, Reports1997-III).

The Court has often stated that a person may be detained under Article 5 § 1 (c) only on ‘reasonable suspicion’ of his ‘having committed an offence’. Apart from its factual side, which is most often in issue, the existence of such suspicion additionally requires that the facts relied on can be reasonably considered as behaviour criminalised under domestic law. Thus, there could clearly not be a ‘reasonable suspicion’ if the acts held against a detained person did not constitute an offence at the time when they were committed (see Włoch, cited above, §§ 108 and 109).

The Court must therefore examine whether the applicant's arrest and detention on charges of hooliganism and insult were ‘lawful’ within the meaning of Article 5 § 1 and whether his deprivation of liberty was based on a ‘reasonable suspicion’ of his having committed an offence.

In so far as insult is concerned, the Court observes that, following the March 2000 amendments to the 1968 Criminal Code, at the relevant time it was a privately prosecutable offence and could not attract a sentence of imprisonment (see paragraph 30 above). The levelling of charges of insult could not therefore have served as a basis for the applicant's detention between 11 and 14 July 2000 under Article 152a § 3 of the 1974 Code of Criminal Procedure (see, as an example to the contrary, Douiyeb v. the Netherlands [GC], no. 31464/96, § 46, 4 August 1999). By making an order to this effect the Pleven District Prosecutor's Office blatantly ignored the clear and unambiguous provisions of domestic law. It is not for the Court to speculate whether this happened because that Office was not aware of the March 2000 amendments to the 1968 Criminal Code or for other reasons. As regards the immediately preceding period, when the applicant was in police detention, the Court notes that section 70(1)(1) of the 1997 Ministry of Internal Affairs Act does not distinguish between privately and publicly prosecutable offences (see paragraph 31 above). However, it is apparent from the interpretation given to this provision by the Supreme Administrative Court that the powers which it bestows upon the police are ancillary to their duty to investigate crime (see paragraph 32 above). It is clear that the police have no power to conduct preliminary investigations in respect of privately prosecutable offences such as insult. The applicant's police detention on this basis was therefore also unlawful.

As regards hooliganism, the Court observes that the applicant's actions consisted of the gathering of signatures calling for the resignation of the Minister of Justice and displaying two posters calling him a ‘top idiot’. When examining the criminal charges against the applicant the Supreme Court of Cassation specifically found that these actions had been entirely peaceful, had not obstructed any passers-by and had been hardly likely to provoke others to violence. On this basis, it concluded that they did not amount to the constituent elements of the offence of hooliganism and that in convicting the applicant the Pleven District Court had ‘failed to give any arguments’ but had merely made blanket statements in this respect (see paragraphs 25 and 26 above). Nor did the orders for the applicant's arrest under section 70(1) of the 1997 Ministry of Internal Affairs Act and for his detention under Article 152a § 3 of the 1974 Code of Criminal Procedure — which were not reviewed by a court — contain anything which may be taken to suggest that the authorities could reasonably believe that the conduct in which he had engaged constituted hooliganism, whose elements were comprehensively laid down in the Supreme Court's binding interpretative decision of 1974 (see paragraphs 28 and 29 above, as well as Lukanov, §§ 43 and 44; mutatis mutandis, Steel and Others, § 64, and, as an example to the contrary, Włoch, §§ 111 and 112, all cited above).

On the basis of the foregoing, the Court concludes that the applicant's deprivation of liberty between 10 and 14 July 2000 did not constitute a ‘lawful detention’ effected ‘on reasonable suspicion’ of his having committed an offence.

There has therefore been a violation of Article 5 § 1 of the Convention.

The applicant complained that after his arrest he had not been brought promptly before a judge. He relied on Article 5 § 3 of the Convention, which provides, in so far as relevant:

Neither the Government nor the applicant made submissions in respect of the merits of the complaint.

The Court observes that Article 5 § 3 requires that an arrested individual be brought promptly before a judge or judicial officer, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. While promptness has to be assessed in each case according to its special features (see, among others, Aquilina v. Malta, [GC], no. 25642/94, § 48, ECHR 1999-III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see, recently, McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006-X).

In the present case the applicant was brought before a judge three days and twenty-three hours after his arrest (see paragraphs 13 and 20 above). In the circumstances, this does not appear prompt. He was arrested on charges of a minor and non-violent offence. He had already spent twenty-four hours in custody when the police proposed to the prosecutor in charge of the case to request the competent court to place the applicant in pre-trial detention. Exercising his powers under Article 152a § 3 of the 1974 Code of Criminal Procedure (see paragraph 34 above), the prosecutor ordered that he the applicant be detained for a further seventy-two hours, without giving any reasons why he considered it necessary, save for a stereotyped formula saying that there was a risk that he might flee or re-offend. It does not seem that when thus prolonging the applicant's detention the prosecutor took appropriate steps to ensure his immediate appearance before a judge, as mandated by the provision cited above (see paragraph 17 above). Instead, the matter was brought before the Pleven District Court at the last possible moment, when the seventy-two hours were about to expire (see paragraph 20 above). The Court sees no special difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicant before a judge much sooner (see, mutatis mutandis, Koster v. the Netherlands, judgment of 28 November 1991, § 25, Series A no. 221; and Rigopoulos v. Spain (dec.), no. 37388/97, ECHR 1999-II). This was particularly important in view of the dubious legal grounds for his deprivation of liberty.

There has therefore been a violation of Article 5 § 3 of the Convention.

The applicant complained that he had been arrested and detained for organising a public collection of signatures. In his view, these measures had amounted to an unjustified interference with his freedom of expression and had had a chilling effect on its future exercise. He relied on Article 10 of the Convention, which reads, in so far as relevant:

Neither the Government nor the applicant made submissions in respect of the merits of the complaint.

For the Court, it is clear that in gathering signatures calling for the resignation of the Minister of Justice and in displaying two posters making statements about the Minister the applicant was exercising his right to freedom of expression (see, mutatis mutandis, Appleby and Others v. the United Kingdom, no. 44306/98, § 41, ECHR 2003-VI). His arrest and subsequent detention for doing so therefore amounted, quite apart from the opening of criminal proceedings against him, to an interference with the exercise of this right (see Chorherr v. Austria, judgment of 25 August 1993, § 23, Series A no. 266-B; and Steel and Others, cited above, §§ 92 and 93).

Such interference gives rise to a breach of Article 10 unless it can be shown that it was ‘prescribed by law’, pursued one or more legitimate aim or aims as defined in paragraph 2 and was ‘necessary in a democratic society’ to attain them.

The Court has already found that the applicant's arrest and detention were not ‘lawful’ within the meaning of Article 5 § 1 (c). Since the requirement under Article 10 § 2 that an interference with the exercise of freedom of expression be ‘prescribed by law’ is similar to that under Article 5 § 1 that any deprivation of liberty be ‘lawful’ (see Steel and Others, cited above, p. 2742, § 94; and Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 34in fine, ECHR 1999-VIII), it follows that the applicant's arrest and detention were not ‘prescribed by law’ under Article 10 § 2.

Furthermore, assuming that the measures taken against the applicant may be taken to pursue the legitimate aims of preventing disorder and protecting the rights of others (see Steel and Others, cited above, § 96), they were clearly disproportionate to these aims. The events must be seen in the context of a political debate which, although, critical of the Government, was not violent. Thus, as found by the Supreme Court of Cassation, the applicant's actions on 10 July 2000 were entirely peaceful, did not obstruct any passers-by and were hardly likely to provoke others to violence (see paragraphs 25 and 26 above, and Steel and Others, cited above, § 110). However, the authorities in Pleven chose to react vigorously and on the spot in order to silence the applicant and shield the Minister of Justice from any public expression of criticism. They also kept the applicant in custody for an inordinate amount of time — three days and twenty-three hours — before bringing him before a judge who ordered his release. These measures were clearly not ‘necessary in a democratic society’. In a democratic system the actions or omissions of the Government and of its members must be subject to close scrutiny by the press and public opinion. Furthermore, the dominant position which the Government and its members occupy makes it necessary for them — and for the authorities in general — to display restraint in resorting to criminal proceedings, and the associated custodial measures, particularly where other means are available for replying to the unjustified attacks and criticisms of their adversaries (see, mutatis mutandis, Castells v. Spain, judgment of 23 April 1992, § 46, Series A no. 236).

There has therefore been a violation of Article 10 of the Convention.

Article 41 of the Convention provides: