- Judgment date: 2012-04-10
- Communication date: 2017-12-13
- Application number(s): 21447/11
- Country: GEO
- Relevant ECHR article(s): 6, 6-1, 6-2, 6-3-a, 6-3-c, 6-3-d, 7, 7-1, P7-2
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Reasonable time)
Violation of Article 6+13 - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Reasonable time) (Article 13 - Effective remedy
Right to an effective remedy)
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
No violation of Article 8+13 - Right to respect for private and family life (Article 8-1 - Respect for correspondence) (Article 13 - Effective remedy
Right to an effective remedy)
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.588072
- Prediction: No violation
Communication text used for prediction
Communicated on 13 December 2017 FIFTH SECTION Application no.
21447/11Zurab LOBZHANIDZEagainst Georgialodged on 29 March 2011 The applicant, Mr Zurab Lobzhanidze, is a Georgian national who was born in 1964 and currently lives in Horgen, Switzerland.
He is represented before the Court by Mr L. Erni, a lawyer practising in Zurich and Mr I. Mgaloblishvili and Mr P. Kiknavelidze, lawyers practising in Tbilisi.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
First set of criminal proceedings In 2000-2004 the applicant served as chairman of the board of directors of two companies – JSC Madneuli and LLC Quarzite.
On 3 February 2004 the applicant was charged in absentia with abuse of his official managerial and representative authority in one of those enterprises (LLC Quarzite) – against the interests of the latter and for the profit of another person – causing substantial damage.
By an order of 4 February 2004 the Krtsanisi-Mtatsminda Regional Court authorised the detention of the applicant.
He was declared a fugitive and his name was placed on the wanted list.
On 16 April 2004 the applicant was in addition charged with repeated, large-scale tax evasion in connection with his activities in JSC Madneuli.
According to the submissions made by the applicant, in February 2004 the former President of Georgia, Mr M.S., and the former Prime Minister, Mr Z.Z., in television speeches publicly accused the applicant of financial subterfuge (ფინანსური მაქინაციები).
On 19 February 2004 a correspondent of the Mzera television channel stated that while the Prime Minister had been talking to journalists, he had stated that financial machinations within JSC Madneuli should have been investigated and that the Prime Minister had warned the applicant that the Georgian law‐enforcement agencies would reach him even in Switzerland.
On the same day the television presenter of the Rustavi 2 television channel quoted Mr Z.Z.
as follows: “Madneuli will not be left in dirty hands again.
Under the former management the enterprise was deliberately led into bankruptcy.” In a televised speech on the Imedi television channel, Mr Z.Z stated: “Lobzhanidze is in Switzerland and thinks that Georgian justice will not reach him in Switzerland.
We will not leave the activities of these scoundrels unaddressed.
Not only were these people doing all this in the past but they are doing their best now to remain within Madneuli and to continue their previous activities.
I said once and I am saying again that anyone who dips his hand into a state enterprise will lose his hand.” On 20 February 2004, in a briefing that he gave on the Mzera television channel, Mr M.S.
stated: “What is going on in Madneuli?
Madneuli is a state enterprise [that mines] gold.
It belongs to every Georgian.
...Then a man like Lobzhanidze [is appointed] and 40 million dollars [of the money earned in gold exports] have been stolen ...” 2.
Second set of criminal proceedings By a judgment of 8 July 2010 the Khelvachauri District Court convicted the applicant in absentia, finding him guilty of inciting his mother-in-law (Ms P.P.)
and Mr M.K.
to prepare and use a false document certifying title to property and sentenced him to seven years’ imprisonment.
According to the judgment, between 1998 and 2001 the applicant built a house in Kvariati, a village in Khelvachauri Region.
In view of the absence of documents certifying that he had acquired the property through legal means, the applicant registered the property in the name of Ms P.P.
In November 2003, in order to further conceal the illegal origin of the property, the applicant decided to prepare a document recording the fictitious sale of the property to Mr M.K.
For this purpose the applicant incited Ms P.P.
and Mr M.K.
to prepare and use a false document certifying Mr M.K.’s title to the property in question.
On 26 April 2004 an agreement on the purchase of real estate containing false data was concluded between the representative of Ms P.P.
and Mr M.K.
According to the agreement, Ms P.P.
sold the house, together with 3,162 square metres of land, to Mr M.K.
for 200,000 Laris (GEL).
On the same day the agreement, certified by a notary, was submitted to the Khelvachauri Registry Service and the property title was registered in the name of Mr M.K.
In the course of the proceedings before the first-instance court the defence counsel requested that the new owner of the property be called as a witness, but the request was refused as unsubstantiated.
The court based its judgment on the following evidence: (i) the statements of witnesses confirming that the house had been owned by the applicant; (ii) statements given by the previous owners of the land confirming that the applicant had purchased the property; (iii) the fact that one of the previous owners had testified to the court that it had been Ms P.P.
who had purchased part of the land (that is to say the part of the land belonging to that previous owner) from him; (iv) a statement by two persons looking after the house who confirmed that they had been paid by Ms P.P.
for their services; (v) the delivery confirmation according to which Ms P.P.
had been granted ownership on the basis of an agreement with the public notary of Khelvachauri Region; (vi) the impugned sale agreement; (vii) a statement by a police officer stating, inter alia, that according to information which he had obtained from an anonymous source, the house had belonged to the applicant.
The applicant’s counsel appealed against the judgment, stating that the act allegedly committed by the applicant had not constituted a crime for which he could be convicted.
The applicant’s counsel argued firstly that the impugned agreement could not have constituted in itself a document certifying title to property and secondly that – even assuming that the agreement did constitute such a document – it would have been invalid if any of the signatures or the notary seal that it contained (or any other essential elements of the agreement) had been falsified.
In the present case, the applicant’s counsel asserted, it was not disputed that the signatures, as well as all other essential elements of the agreement, had been authentic and valid.
The counsel further claimed that even in the event that the agreement had not been concluded for the purpose that it had been intended for – that is to say the sale of the property – it should have been declared null and void through civil proceedings.
The applicant’s counsel also submitted that (i) the then Minister of Interior had moved into the house, and therefore had had wanted to acquire the property for himself, which had been the reason for the initiation of the criminal proceedings against the applicant, (ii) no evidence had existed proving the unlawful acquisition of the impugned property, and (iii) the information gathered by the police had been the only evidence the court had relied on.
By a judgment of 30 November 2010 the Kutaisi Court of Appeal upheld the judgment in full.
On 21 March 2011 the Supreme Court of Georgia rejected as inadmissible an appeal by the applicant on points of law.
Third set of criminal proceedings By a judgment of 30 September 2010 the Khelvachauri District Court found the applicant guilty in absentia of grossly interfering with judicial activities (სამართალწარმოების განხორციელებაზე ზეგავლენის მიზნით სასამართლოს საქმიანობაში უხეში ჩარევა) in order to influence the administration of the proceedings and sentenced him to one year’s imprisonment.
According to the reasoning of the judgment, on 6 July 2010 the applicant had telephoned D.M., a judge of the Khelvachauri District Court, who at that time had been considering the case brought against the applicant and his mother-in-law, Ms P.P.
Having put several questions to the judge, the applicant had tried to grossly interfere in the judicial activities in question.
had immediately discontinued the conversation and informed the Kutaisi Court of Appeal of the incident.
On 9 July 2010 an acquaintance of the applicant had lodged with the Khelvachauri District Court a copy of a letter written by the applicant and Ms P.P.
and addressed to D.M.
In this letter, which had been drafted in violation of the relevant legislation, the applicant and Ms P.P.
had tried to influence the judge.
In particular, the applicant and Ms P.P.
had indicated in the letter that the judge had been biased; by such a gross interference they had attempted to influence the court in such a way that it would rule on the case in their favour.
During the proceedings before the first-instance court, in view of the fact that the applicant had been declared a fugitive, the trial judge assigned him a lawyer under the legal-aid scheme.
The time-limit for appealing the judgment of 30 September 2010 expired on 30 October 2010.
On 26 November 2010 a lawyer appointed by the applicant, having learned of the above-mentioned decision, lodged an appeal on the merits with the Khelvachauri District Court together with a request that the court renew the expired time-limit and hear his appeal.
The counsel submitted that neither the applicant nor his lawyer and relatives had been informed of the criminal proceedings in question and for that reason the appeal had been lodged out of time.
The court refused the request for the time-limit to be renewed on the grounds that the defence counsel had not submitted evidence justifying the fact that the applicant had been unable to lodge an appeal before the expiry of the relevant time-limit.
The applicant’s counsel appealed against that decision.
By a decision of 21 December 2010 the Kutaisi Court of Appeal found that the defence counsel had not been authorised to lodge an appeal, given that under Article 523 § 4 of the Criminal Procedure Code (“the CCP”) a person who was convicted in absentia could file an appeal within one month of his or her arrest or appearance before the relevant bodies (or the day on which the relevant judgment was delivered if the convicted person requested that an appeal be heard in his/her absence).
In the present case, the court stated that the applicant had not been arrested, and neither had he appeared before the relevant bodies; as for any desire of the applicant to have the appeal heard in his absence, no such request had been submitted by the applicant’s counsel.
The court concluded that due to the fact that the request on renewal of the time-limit together with the appeal had not been lodged by an authorised person, the first instance court had not had to consider it.
The appellate court thus annulled the decision of the first instance court on refusing the request for the time-limit to be renewed and did not consider the appeal.
The applicant’s counsel lodged with the appellate court an appeal addressed to the Supreme Court of Georgia, citing Article 518 § 4 of the CCP, under which counsel or a representative could lodge an appeal with the consent of a convicted person.
The counsel claimed that the power of attorney which had been enclosed with the appeal authorised him to represent the applicant.
He added that by means of this document the applicant had given his counsel his consent to appeal against decisions delivered in connection with the criminal cases against him.
Subsequently his appeal was dismissed on the grounds that the decision of 21 December 2010 was final and could not be appealed.
Relevant domestic law Under Article 210 of the Criminal Code of Georgia (“the CC”), preparing, selling or using a forged credit or settlement card, other tax document or a document certifying title to property which is not a security shall be punished by a fine or correctional labour for up to two years or by the restriction of liberty for up to three years or by a term of imprisonment of between two and four years.
According to the commentaries of legal experts on the CC, a document (which is not a security) certifying title to property can be a document such as a certificate of ownership, the “technical passport” of a vehicle, a waybill, or an invoice.
“Creating a false document” implies the forging of a document fully or partially.
For example, a tax document is forged if it is certified by a false seal and a forged signature.
The following provisions of the Code of Criminal Procedure (“the CCP”), as in force at the material time, are relevant.
Under Article 81 § 4 of the CCP, if a suspect or an accused avoided appearing before the investigative bodies, he or his close relatives had to be given 48 hours in which to appoint a lawyer.
If they did not appoint a counsel within this time, a lawyer had to be appointed on a compulsory basis.
Under Article 236 § 4 of the CCP, a decision by a court refusing to renew a missed time-limit for lodging an appeal could – one time only – be appealed against to a higher court.
The court could renew the missed time‐limit and hear the case on the merits.
Under Article 518 § 4 of the CCP, counsel and a representative could lodge an appeal with the consent of a convicted person.
Under Article 523 § 4 of the CCP, a person who was convicted in absentia could file an appeal within one month of his or her arrest or appearance before the relevant bodies or within one month of the day on which the judgment in question was delivered if the convicted person requested that the appeal be reviewed in his/her absence.
COMPLAINTS Under Article 6 § 1 of the Convention, the applicant complains of (i) the failure of the domestic courts to give sufficient reasons for his conviction in connection with the second set of proceedings, having based that conviction mainly on information supplied by an anonymous source and (ii) the unsubstantiated refusal to hear a witness whose statement could have been decisive for the outcome of the proceedings.
Under Article 7 § 1 of the Convention, the applicant complains that in respect of the second set of proceedings he was convicted on account of an omission which did not constitute a criminal offence under national law at the time of its commission.
The applicant complains under Article 6 § 2 of the Convention that the statements made during the investigation by the former President and the former Vice President of the country reflecting an opinion regarding his guilt, in connection with the first set of proceedings, amounted to an infringement of the presumption of innocence.
Under Article 6 §§ 1 and 3 (a) (c) and (d) and Article 2 of Protocol No.
7, the applicant further complains in connection with the third set of proceedings about the failure of the authorities to inform him of the accusations against him, of the violation of his right to be represented by a lawyer of his own choosing, of the inability to challenge witnesses and other evidence against him and in general of the restriction of his right of access to a court, as well as his inability to have his case reviewed by the higher courts.
CASE OF DIMITAR VASILEV v. BULGARIA
(Application no. 10302/05)
10 April 2012
This judgment is final but it may be subject to editorial revision. In the case of Dimitar Vasilev v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
George Nicolaou, President,Zdravka Kalaydjieva,Vincent A. de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 20 March 2012,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 10302/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Velkov Vasilev (“the applicant”), on 2 March 2005. 2. The applicant was represented by Mrs S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice. 3. On 4 February 2010 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1982 and is currently serving a prison sentence in Plovdiv Prison. A. The length of the 2001-2007 criminal proceedings against the applicant
5. On 14 September 2001 the applicant was questioned before a judge as a suspect of a theft and an attempted theft, committed in complicity with another person. He confessed into both offences. On an unspecified date charges were brought against him. 6. On 29 April 2002 additional theft charges were brought against the applicant. 7. In November 2002 the Plovdiv district public prosecutor’s office submitted an indictment with the Plovdiv District Court against the applicant and two other individuals. 8. In the period between May 2003 and June 2004 the District Court conducted five hearings, two of which were adjourned because of the absence of the applicant’s lawyer and the others due to absent witnesses. 9. On 7 June 2004 the District Court convicted the applicant as charged and sentenced him to two years’ imprisonment. 10. Upon appeal, on 27 December 2004 the Plovdiv Regional Court quashed the sentence for procedural violations and remitted the case to the District Court. 11. After the remittal, in the period between June 2005 and March 2007 the District Court held eleven hearings. Two hearings were adjourned because of the absence of the applicant’s lawyer, three because of the absence of a co-defendant and five – because of the absence of witnesses. 12. At a hearing held on 28 March 2007 the District Court approved a plea bargain agreement between the defendants and the prosecuting authorities and discontinued the proceedings. The applicant was punished by one year and six months’ imprisonment. B. The applicant’s pre-trial detention in the context of other criminal proceedings
13. In February 2004 the applicant was placed in pre-trial detention in connection with an investigation into robbery and fraud, both committed during the suspension periods of three other convictions. On 23 April 2004 his case was brought to court. The applicant was convicted and sentenced to six years’ imprisonment, the final judgment being delivered on 23 February 2007 by the Supreme Court of Cassation. 14. During these proceedings, the applicant made several unsuccessful requests for release. 15. On 5 October 2004 he requested to be released and asked the court to commission a psychiatric expert’s report in order to prove the deterioration of his mental state. The District Court dismissed his evidentiary request as unsubstantiated and on 19 October 2004 upheld his detention. Upon appeal, on 26 October 2004 the Regional Court, sitting in private, upheld the decision of the District Court. 16. At hearings held on 19 January and 30 March 2005 the applicant made further requests for release, arguing, inter alia, that he used to be a drug addict and had mental problems. The District Court dismissed the requests. On 7 April 2005 he appealed against the dismissal of his request of 30 March 2005. On 5 May 2005 the Plovdiv Regional Court, sitting in private, dismissed his appeal. 17. The courts relied on the gravity of the charges against the applicant and his previous convictions, which justified the suspicion that he might abscond or re-offend; the lack of new circumstances warranting his release and the diligent conduct of the proceedings. They also found that the applicant’s mental problems could be treated in prison. C. Conditions of detention
18. The applicant was detained in Plovdiv Prison from April 2004 until an unspecified date in 2007, when he was moved to Sofia Prison. He submitted that the conditions in Plovdiv Prison had been inhuman and degrading. D. Correspondence of the applicant and contacts with his counsel
19. The applicant submitted an envelope bearing a post stamp of 2005 addressed by him to his lawyer. It was stamped as having been monitored by the administration of Plovdiv Prison. 20. According to the applicant, he received all the letters from his lawyer opened and read by the prison administration. He had to hand to the prison administration the letters addressed to his lawyer in open envelopes, in conformity with the prison rules. II. RELEVANT DOMESTIC LAW AND PRACTICE
21. The relevant domestic law and practice concerning compensation for unlawful detention are set out in the Court’s judgment in the case of Bochev v. Bulgaria, no. 73481/01, § 37, 13 November 2008. 22. The relevant domestic law and practice concerning prisoners’ correspondence are set out in the Court’s judgment in the case of Iliev and Others v. Bulgaria, nos. 4473/02 and 34138/04, §§ 25-31, 10 February 2011. THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
23. The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the 2001-2007 proceedings had been incompatible with the “reasonable time” requirement and that he had not had any effective domestic remedies in that respect. Article 6 § 1 reads, in so far as relevant:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
24. The Government disagreed, arguing that the applicant had been responsible for most of the delays. 25. The period to be taken into consideration began on 14 September 2001, when the applicant was questioned as a suspect; it ended on 28 March 2007, when the District Court approved the plea-bargain agreement and discontinued the proceedings (see paragraphs 5 and 12 above). It thus lasted five years six months and fourteen days for two levels of jurisdiction. A. Admissibility
26. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
27. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 28. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many others, Filipov v. Bulgaria, no. 40495/04, §§ 34-39, 10 June 2010, and Doron v. Bulgaria, no. 39034/04, §§ 40-45, 14 October 2010. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the applicant’s case does not appear to have been particularly complex although it involved three defendants. Furthermore, although the investigation against the applicant was concluded rather speedily (see paragraphs 5-7 above), the Court notes a number of delays at the judicial stage, which were attributable to the authorities, such as a delay of about a year because of the remittal of the case due to procedural breaches, and repeated adjournments because of absent witnesses or co-accused (see paragraphs 8-11 above). Even if four of the hearings were adjourned because the applicant’s lawyer did not attend, in view of the overall length of the proceedings and the number of hearings (ibid. ), the delay thus caused does not appear to be significant. 29. In view of the above, having regard to the overall duration of the proceedings and the delays attributable to the authorities, the Court considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement. 30. As regards the existence of effective remedies capable of preventing the violation of Article 6 § 1 or its continuation, or providing adequate redress, the Court has found that there are no acceleratory or compensatory remedies in respect of excessive delays which have occurred during the judicial stage of criminal proceedings in Bulgaria (see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, §§ 92-96, 10 May 2011). Accordingly, it considers that the applicant did not have effective remedies under domestic law in respect of the excessive length of the proceedings. 31. It follows that there have been violations of Articles 6 § 1 and 13 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
32. The applicant alleged that the domestic courts had failed to rule speedily on his request for release of 30 March 2005. He relied on Article 5 § 4 of the Convention, which provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
33. The Government stated that the domestic courts had examined promptly the applicant’s requests for release. A. Admissibility
34. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
35. The Court reiterates that Article 5 § 4 guarantees the right to a speedy judicial decision concerning the lawfulness of detention (see Dobrev v. Bulgaria, no. 55389/00, § 90, 10 August 2006, with further references). In the present case, on 30 March 2005 the applicant made a request for release which was dismissed by the District Court. On 7 April 2005 he appealed to the Regional Court, which examined his appeal after twenty-eight days, on 5 May 2005 (see paragraph 16 above). The Court considers this period to be in breach of the requirement for a speedy decision under Article 5 § 4 of the Convention (see Kadem v. Malta, no. 55263/00, §§ 43-45, 9 January 2003, where the Court found a period of seventeen days for examining an appeal against detention to be too long; and Rehbock v. Slovenia, no. 29462/95, §§ 82-86, ECHR 2000-XII, where two periods of twenty-three days were considered excessive). 36. It follows that in respect of the applicant’s application for release of 30 March 2005 there has been a violation of his right to a speedy judicial decision concerning the lawfulness of detention in breach of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
37. The applicant complained that he had not had an enforceable right to compensation for the breach of Article 5 § 4 of the Convention found in his case. He relied on Article 13 of the Convention. 38. Having regard to the nature and the substance of this complaint, the Court considers that its proper legal characterisation is Article 5 § 5, which provides:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
39. The Government made no submissions in relation to this complaint. A. Admissibility
40. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
41. The Court notes its finding of a breach of Article 5 § 4 of the Convention (see paragraph 36 above) and considers that paragraph 5 of that provision is applicable and required the availability in Bulgarian law of an enforceable right to compensation in the applicant’s case (see Bochev, cited above, § 76). 42. It observes that the failure of domestic courts to examine speedily an accused’s request for release is not among the cases for which the State and Municipalities Responsibility for Damage Act provides for compensation (see Bochev, cited above, §§ 37 and 77). Nor does it appear that an enforceable right to compensation was available to the applicant under any other provision of the Bulgarian law. 43. There has therefore been a violation of Article 5 § 5 of the Convention. IV. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION
44. The applicant complained that the prison authorities in Plovdiv Prison had monitored the correspondence between him and his lawyer and that he had not had any effective domestic remedies in this respect. He relied on Articles 8 and 13 of the Convention. Article 8 reads:
“1. Everyone has the right to respect for his ... correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
45. The Government stated that unjustified monitoring of correspondence by the administration fell within the scope of the State and Municipalities Responsibility for Damage Act, and argued that the applicant had failed to exhaust the available domestic remedies. They further stated that by opening the applicant’s letters the prison administration had only checked the physical contents of the envelopes, which was justified in the public interest. A. Admissibility
46. The Court has already found that the State and Municipalities Responsibility for Damage Act was not an effective remedy in cases of unjustified monitoring of prisoners’ correspondence (see Iliev and Others, cited above, §§ 77-78). It sees no reason to depart from this conclusion. Accordingly, the Government’s preliminary objection must be dismissed. 47. The Court also considers that these complaints are not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
48. The Court notes that the systematic opening of the applicant’s letters was acknowledged by the Government in their observations in the present case (see paragraph 45 above). It further notes that it has frequently found violations of Article 8 of the Convention in Bulgarian cases concerning indiscriminate opening by the authorities of prisoners’ correspondence with their lawyers (see, among many others, Radkov v. Bulgaria, no. 27795/03, §§ 20-22, 22 April 2010, and Konstantin Popov v. Bulgaria, no. 15035/03, § 17, 25 June 2009). 49. It has also found that the monitoring of prisoners’ correspondence had not resulted from one individual decision taken by the authorities but directly from the application of the relevant legislation in the relevant period. However, it has concluded that there was no violation of Article 13 of the Convention because this provision does not guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority (see Konstantin Popov, § 23, cited above, and Petrov v. Bulgaria, no. 15197/02, § 65, 22 May 2008). 50. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach different conclusions in the present case. There has therefore been a violation of Article 8 and no violation of Article 13 of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
51. The applicant also complained, relying on Articles 3, 13 and 5 § 4 of the Convention, that the conditions in which had been detained in Plovdiv Prison had been humiliating and that he had not had effective remedies in this respect, that the scope of the domestic courts’ review of his requests for release from pre-trial detention had been too narrow, that the domestic courts had dismissed his request for evidence relevant to his health condition, and that the Plovdiv Regional Court had examined his appeal in private. 52. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 53. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
54. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
55. The applicant claimed non-pecuniary damage as follows: 15,000 euros (EUR) in respect of the breach of Article 6; EUR 10,000 in respect of Article 5 § 4; EUR 10,000 in respect of Article 8; and EUR 3,000 in respect of Article 13 of the Convention. 56. The Government contested this claim. 57. The Court considers that the applicant must have sustained non‐pecuniary damage as a result of the breaches of his rights found in the case. Taking into account all the circumstances of the case, and deciding on an equitable basis, the Court awards him EUR 1,600 under this head. B. Costs and expenses
58. The applicant sought EUR 7,360 for 92 hours of legal work undertaken by his lawyers in the proceedings before the Court at the hourly rate of EUR 80. In support of this claim, he presented a contract and a time sheet. He further claimed EUR 130 for postage and copying expenses but did not present any invoices or receipts in support of his claim. He requested that any award made by the Court under this head be made payable to his lawyers, Ms S. Stefanova and Mr M. Ekimdzhiev. 59. The Government considered that the claims were excessive. 60. According to the Court’s case‐law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, including to the fact that part of the applicant’s complaints were rejected and also to the applicant’s failure to provide all necessary documents, such as invoices or receipts for postage or office expenses, the Court finds it reasonable to award the sum of EUR 1,000. This sum is to be paid into the bank account of the applicant’s representatives, Ms S. Stefanova and Mr M. Ekimdzhiev. C. Default interest
61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the complaints concerning (a) the excessive length of the criminal proceedings against the applicant and the lack of an effective remedy in that respect, (b) the failure of the domestic courts to examine speedily the applicant’s request for release of 30 March 2005 and the lack of compensation in that respect, and (c) the interference with his correspondence by the prison administration and the lack of an effective remedy in that respect;
2. Declares the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 13, in conjunction with Article 6 § 1 of the Convention;
4. Holds that there has been a violation of Article 5 § 4 of the Convention;
5. Holds that there has been a violation of Article 5 § 5 of the Convention;
6. Holds that there has been a violation of Article 8 of the Convention;
7. Holds that there has been no violation of Article 13 in conjunction with Article 8 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representatives, Ms S. Stefanova and Mr M. Ekimdzhiev;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
9. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge Nicolaou Deputy RegistrarPresident