I incorrectly predicted that there's no violation of human rights in VANCHEV v. BULGARIA.

Judgment

FIFTH SECTION

CASE OF VANCHEV v. BULGARIA

(Application no. 60873/09)

JUDGMENT

STRASBOURG

19 October 2017

FINAL

05/03/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vanchev v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,Erik Møse,Nona Tsotsoria,Yonko Grozev,Síofra O’Leary,Mārtiņš Mits,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 60873/09) 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 Georgi Petrov Vanchev (“the applicant”), on 23 October 2009. 2. The applicant was represented by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice. 3. The applicant alleged, in particular, that he had been detained in excess of the set term of his sentence and that he had had to pay excessive court fees in the tort proceedings he had brought against the prosecution authorities. 4. On 27 September 2016 the complaints above were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1952 and lives in Sofia. 6. The applicant is a former police officer. Criminal proceedings were brought against him in 1996. 7. By a decision of the competent prosecutor of 6 March 1996, as provided under domestic law at the time, the applicant was placed under house arrest. The period of arrest continued until 3 April 1996, when the applicant was remanded in custody. He was once again placed under house arrest on 1 July 1996 and was released on 30 September 1997. 8. The applicant therefore was deprived of his liberty for one year, six months and twenty-five days. 9. In a final judgment of 27 January 1998 the Sofia Military Court found the applicant guilty of failing to perform his duties and he was given a one‐year suspended prison sentence. 10. In another set of proceedings, in a final judgment of 26 March 2003 the Supreme Court of Cassation convicted the applicant of fraud and sentenced him to one year of imprisonment. 11. The court also held in the second set of proceedings that the applicant should serve a single sentence for all his offences, which was set at one year in prison. 12. On 1 July 2003 the applicant was once again detained and placed in prison to serve his sentence. He was released on 18 September 2003 by a decision of the competent prosecutor. The prosecutor noted that the period of pre-trial detention should have been deducted from the applicant’s sentence, which meant he had already served it. 13. As he had worked in prison the applicant was also entitled to a reduction of his sentence by seventeen days. 14. In 2004 the applicant brought a tort action against the prosecution authorities under section 2(6) of the State and Municipalities’ Responsibility for Damage Act (see paragraph 21 below). He claimed 20,000 Bulgarian levs (BGN) for non-pecuniary damage for his detention in 1996-97 to the extent it had exceeded the set term of imprisonment and BGN 40,000 for his imprisonment between 1 July and 18 September 2003. 15. The domestic courts examined witnesses and a court-appointed psychologist who said that the applicant had been traumatised by the experience and suffered from anxiety, that his personality had been “permanently altered”, that he had difficulties communicating with others, and that his family ties had been “irreparably damaged”. 16. In a judgment of 2 May 2006 the Sofia City Court (hereinafter “the City Court”) allowed the claim in part, finding that the applicant had been detained for nine months and twenty-nine days in excess of his sentence and awarding him BGN 10,000 for non-pecuniary damage. It stated that his detention in 1996-97 had been “unjustified” and that his imprisonment in 2003 had amounted to “unlawful detention without any valid grounds”. 17. In accordance with the applicable provisions of domestic law, the City Court ordered the applicant to pay BGN 2,040 (the equivalent of 1,040 euros – EUR) in court fees, calculated as a pro rata percentage of the part of his claim that had been dismissed. 18. The judgment was upheld on 18 June 2007 by the Sofia Court of Appeal (hereinafter “the Court of Appeal”), which specified that the prosecution authorities were also liable to pay default interest on the above amount, calculated from 18 September 2003. 19. In a final judgment of 24 April 2009 the Supreme Court of Cassation reduced the award to BGN 3,000 (approximately EUR 1,530), plus default interest. It justified the reduction by referring to the “nature of the offences” the applicant had been convicted for, the “regime under which the sentence had been served” and the “socially acceptable criteria for justice”. It did not deal with the matter of court fees and took no separate decision in that regard. 20. The Court has not been informed whether and when the amount above was paid to the applicant. Calculations made with a calculator available on the Internet show that the default interest on BGN 3,000 for the period from 18 September 2003 to 24 April 2009 would be BGN 2,265 (the equivalent of EUR 1,155). II. RELEVANT DOMESTIC LAW AND PRACTICE
21. Section 2 of the State and Municipalities’ Responsibility for Damage Act of 1988 provides, in so far as relevant:
“The State shall be liable for damage caused to [private persons] by organs of ... investigation, public prosecution, or the courts ... for:
...
6. the execution of a sentence in excess of the set term.”
22. The provisions concerning court fees in proceedings under that Act, as applicable before 2008, were summarised in Stankov v. Bulgaria (no. 68490/01, §§ 19-21, 12 July 2007) and Mihalkov v. Bulgaria (no. 67719/01, §§ 21‐23, 10 April 2008). Following the judgment in Stankov, the system was changed as of 30 May 2008. At present, a flat fee is due for bringing a claim, which varies depending on the type of claimant, of either BGN 10 or BGN 25 (approximately EUR 5 or EUR 13). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
23. The applicant complained under Article 5 § 1 of the Convention of his detention in excess of the set term of imprisonment. 24. Article 5 § 1 of the Convention reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
A. Arguments of the parties
25. The Government argued that the applicant could no longer be considered to be a victim of the alleged violation of Article 5 § 1 of the Convention because he had received compensation at the domestic level. That compensation could be considered adequate and just, in view most notably of the fact that, according to the Government’s calculations, the applicant had been under house arrest, that is “at home”, for three months and twenty-seven days of the total period of detention in excess of the set term. 26. The applicant disagreed, stating that the compensation awarded to him at the domestic level had been inadequate. He argued that there was a big difference between spending time at home “for pleasure” and the “forced isolation of nearly four months” to which he had been subjected while under house arrest. As an additional argument concerning the adequacy of the amount of damages awarded, the applicant pointed out that the conditions of his detention in the investigative detention facility where he had been detained on remand and in prison had been “very grave”. His conclusion was that his detention in excess of the set term had been “arbitrary” and had had “no reasonable justification”. B. The Court’s assessment
1. Admissibility
(a) Applicant’s victim status
27. The Court observes that a question may indeed arise as to whether the applicant can still be considered a victim of the alleged violation of Article 5 § 1 of the Convention, seeing that he was awarded compensation in the domestic proceedings which he initiated. 28. The Court reiterates on that point that it falls, firstly, to the national authorities to redress any violation of the Convention. However, a decision or measure favourable to an applicant is not, in principle, sufficient to deprive him or her of the status of being a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate redress for the breach of the Convention (see, among others, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; and Slavcho Kostov v. Bulgaria, no. 28674/03, § 41, 27 November 2008). 29. It follows from the foregoing that the Court must verify whether the authorities acknowledged, at least in substance, that there had been a violation of a right protected by the Convention and whether the redress afforded to the applicant can be considered appropriate and sufficient (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 193, ECHR 2006‐V). 30. Regarding the first of those criteria, the Court observes that the domestic courts treated the applicant’s detention in excess of the set term as being “unjustified” and “unlawful” (see paragraph 16 above). It is of the view that this represents acknowledgment in substance on their part of the fact that the detention at issue was contrary to Article 5 of the Convention. 31. The salient question is thus whether the compensation awarded to the applicant, which must be comparable to just satisfaction as provided for under Article 41 of the Convention (see, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006‐V, and Shilbergs v. Russia, no. 20075/03, § 72, 17 December 2009), amounted to appropriate redress. 32. In that regard, the Court observes that while the lower courts awarded the applicant a higher sum in damages, the Supreme Court of Cassation reduced the award to the equivalent of EUR 1,530 (see paragraphs 16 and 18-19 above). In order to calculate the sum effectively received by the applicant, the Court also has to add interest amounting to EUR 1,155 (see paragraph 20 above). Even though the matter of court fees will be examined separately below, for the purposes of the present analysis the Court would deduct the court fee the applicant was ordered to pay by the City Court, equivalent to EUR 1,040 (see paragraph 17 above), from the amount awarded to him (see Slavcho Kostov, cited above, §§ 46-47, where the Court, in assessing the adequacy of compensation awarded to the applicant at the domestic level for different grievances, also reduced the amount to be taken into account by the court fee due). The final amount due to the applicant was thus EUR 1,645, which was intended to compensate him for the excess period of detention of nine months and twenty-nine days. 33. The Government argued (see paragraph 25 above) that such an award was adequate and sufficient, in view most notably of the fact that part of the detention – about four months according to their calculations, which the applicant did not dispute – had been spent under house arrest. However, the Court points out, as did the applicant (see paragraph 26 above), that the applicant remained deprived of his liberty even when under house arrest. Moreover, the period of house arrest, about four months, did not amount to even half of the total period of detention in excess of the set term of imprisonment. 34. On the other hand, the Court is not called upon to assess whether the award at the national level was inadequate, as argued by the applicant (see paragraph 26 above) in view of the conditions of his detention. The Court points out that it is not dealing with a complaint under Article 3 of the Convention related to conditions of detention. Moreover, the applicant never raised an argument related to those conditions before the domestic courts. 35. In assessing the adequacy of the compensation awarded to the applicant, from the viewpoint of the alleged breach of Article 5 § 1, the Court takes into account the conclusions of the expert appointed in the domestic judicial proceedings, who observed that the applicant had been traumatised by his detention in excess of the set term and had suffered from anxiety. His personality had also been “permanently altered”, he had difficulties communicating with others and his family ties had been “irreparably damaged” (see paragraph 15 above). 36. The Court has found in earlier cases that compensation awarded at the domestic level may still be considered adequate, even if it is lower than what the Court would have awarded, provided that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, were speedy, reasoned and executed very quickly (see, for example, Dubjakova v. Slovakia (dec.), no. 67299/01, 19 October 2004, and Zgonnik v. Ukraine (dec.), no. 5976/08, 18 December 2012). 37. In the present case the compensation awarded to the applicant at the domestic level was much lower than the amounts awarded by the Court in similar cases, including against Bulgaria (see Svetoslav Dimitrov v. Bulgaria, no. 55861/00, 7 February 2008, where the award was EUR 5,000 for about nine months of unlawful detention; Nagiyev v. Azerbaijan, no. 16499/09, 23 April 2015, where the award was EUR 12,000 for about six months of unlawful detention; and Levinţa v. Moldova (no. 2), no. 50717/09, 17 January 2012, where the Court awarded each of the applicants EUR 8,000 for two months of unlawful detention). Moreover, in examining whether the relevant decisions were speedy, reasoned and executed very quickly, as required in the previous paragraph, the Court observes that the domestic procedure in the case took about five years, from 2004 to 2009 (see paragraphs 14-19 above), and that it has not been informed whether and when the sum awarded was actually paid to the applicant (see paragraph 20 above). It is significant furthermore that the Supreme Court of Cassation’s decision to reduce the amount of damages was reasoned briefly and in general terms (see paragraph 19 above). 38. Accordingly, the Court cannot conclude that the compensation awarded by the domestic courts, namely the equivalent of EUR 1,645, intended to compensate the applicant for nearly ten months of unlawful detention, which had grave consequences for him, could be considered as affording sufficient redress for the alleged violation of his rights. 39. The applicant may therefore still claim to be a victim within the meaning of Article 34 of the Convention. (b) Conclusion as to admissibility
40. Lastly, the Court notes that this complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
41. It is well established in the Court’s case-law that any deprivation of liberty must be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law (see, among many others, Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008, and Kolevi v. Bulgaria, no. 1108/02, § 173, 5 November 2009). Where the detention is considered unlawful under domestic law, it will also be unlawful under the Convention (see Van der Leer v. the Netherlands, 21 February 1990, § 23, Series A no. 170‐A). 42. In the case at hand, the Court has already pointed out (see paragraph 30 above) that in awarding compensation to the applicant the domestic courts treated his detention in excess of the set term as being “unjustified” and “unlawful”. The Court sees no reason to conclude otherwise. It thus concludes that the detention was not “lawful” within the meaning of Article 5 § 1 of the Convention (see also Mitev v. Bulgaria, no. 40063/98, §§ 118-19, 22 December 2004). 43. There has accordingly been a violation of Article 5 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
44. The applicant complained in addition that the court fees he had had to pay reduced significantly the compensation he had been awarded. He relied on Article 5 § 5 of the Convention. 45. The Court is of the view that the complaint is more appropriately examined under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Arguments of the parties
46. The Government argued that the applicant had failed to exhaust the available domestic remedies because he had not contested the decision of the City Court on the amount of court fees before the Court of Appeal and the Supreme Court of Cassation (see paragraph 17 above). Furthermore, they pointed out that the applicant could have brought a partial claim, thus reducing the potential fees, as they were calculated pro rata to the dismissed part of his claim. The Government were also of the view that the claims he had brought had been “unrealistic” and “exaggerated”. Lastly, they argued that the applicant’s right of access to a court had not been unjustifiably restricted. 47. The applicant pointed out that the court fees he had had to pay had been calculated in accordance with the legal provisions in force at the time. Moreover, there had been no domestic case-law calling the application of those provisions into question, which meant that he had not had “even a hypothetical chance” of success if he had challenged the City Court’s decision. The applicant contended in addition that the Government’s position that he should have brought a partial claim or claimed a smaller amount of damages was nothing but proof of the “chilling effect” that the provisions concerning legal fees had on claimants seeking damages from the State. B. The Court’s assessment
1. Admissibility
48. The Court takes note of the Government’s objection of non‐exhaustion of domestic remedies, based on the fact that the applicant has not challenged the amount of court fees set by the City Court before the domestic courts (see paragraph 46 above). 49. However, the Court observes, as did the applicant (see paragraph 47 above), that the fees at issue were calculated in accordance with domestic law as in force at the time. The Government have not shown that there was any national court practice at the time to call the applicable rules into question. Moreover, the Court observes that an applicant’s objections against what he considered to be excessive court fees were dismissed in a similar case precisely because the domestic courts pointed out that the applicable rules were unambiguous on the matter (see Stankov, cited above, §§ 17-18). Accordingly, the Court does not consider that the applicant in the present case failed to use a remedy which would have been effective and dismisses the Government’s objection. 50. The Court notes in addition that this complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
51. On the merits, the Court starts by noting that it has already examined several cases raising the question of court fees in proceedings under the State and Municipalities’ Responsibility for Damage Act (see Stankov and Mihalkov, cited above; also Tzvyatkov v. Bulgaria, no. 20594/02, 12 June 2008; and Nikolay Dimitrov v. Bulgaria [Committee], no. 30544/06, 8 January 2013). 52. Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, that provision embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before a court in civil matters, is one aspect. The “right to a court” is not absolute. By its very nature it calls for regulation by the State. Contracting States enjoy a certain margin of appreciation in that respect but the ultimate decision as to the observance of the Convention’s requirements rests with the Court (see Golder v. the United Kingdom, 21 February 1975, §§ 34-36, Series A no. 18). 53. In the present case the domestic courts awarded the applicant BGN 3,000 in damages, but ordered him to pay BGN 2,040 in court fees (see paragraphs 17 and 19 above). 54. In the cases cited above the Court found that the system of court fees payable on claims for non-pecuniary damage brought under the State and Municipalities’ Responsibility for Damage Act, as in force until 2008, was not compatible with the requirements of Article 6 § 1 of the Convention. The Court pointed out in particular that the difficulty for potential claimants to assess in advance what would have been a “reasonable” claim, coupled with the lack of flexibility of the applicable rules, was likely to dissuade victims from bringing proceedings against the State and meant that the applicants’ right to access to a court had been unreasonably restricted (see Stankov, §§ 57-67; Mihalkov, §§ 61-64; and Tzvyatkov, § 26, all cited above). 55. The Court sees no reason to reach a different conclusion in the case at hand. 56. It notes in addition that following its judgment in the case of Stankov (cited above) the court fees system in question was abandoned and replaced by one where a flat fee is payable, which is not dependent on the value of the claim (see paragraph 22 above). However, the new system of court fees did not benefit the applicant. The fees due by him were set by the first-level City Court in its judgment of 2 May 2006 (see paragraphs 16-17 above), and the Court of Appeal and the Supreme Court of Cassation did not deal with the matter. While the proceedings brought by the applicant ended after the new system of court fees had been introduced in 2008, namely with the Supreme Court of Cassation’s judgment of 24 April 2009 (see paragraph 19 above), it has not been claimed that at that time he had any reasonable chance of contesting the City Court’s earlier order in respect of court fees. 57. Accordingly, as in the cases cited above, there has been a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
58. 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.”
A. Damage
59. The applicant claimed 20,000 euros (EUR) in respect of non‐pecuniary damage. He pointed out that he had been unlawfully detained for nearly ten months and had not been afforded appropriate redress at the domestic level. He reiterated that the conditions of detention had been grave. 60. The Government argued that the claim was exaggerated. 61. The Court finds that the applicant must have suffered anguish and frustration as a result of the violations of his rights found above. It refers particularly to the conclusions of the expert report commissioned in the context of the domestic proceedings for damages (see paragraph 15 above). As to the applicant’s argument about the conditions of his detention, it reiterates that it is not dealing here with a complaint under Article 3 of the Convention and that the matter was not raised at the national level. Lastly, the Court takes into account the award already made to the applicant by the national courts (see paragraph 32 above). In view of the considerations above and judging on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses
62. The applicant also claimed EUR 1,620 for the work performed by his lawyers in the proceedings before the Court. In support of this claim he presented a contract for legal representation and a time sheet. He also claimed the reimbursement of EUR 105.84 for translation and EUR 52.85 for postage, presenting invoices which showed that he or his representatives had paid the equivalent of those amounts in Bulgarian levs. The applicant requested that any sum awarded under this head be transferred directly into his lawyers’ bank accounts, save for EUR 170.55 already paid by him. 63. The Government contested the claims. 64. According to the Court’s case-law, an applicant is entitled to the reimbursement of 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 documents in its possession and the above criteria, and also to the fact that the applicant’s complaint under Article 6 § 1 of the Convention is a repetitive one (see paragraph 51 above), the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads. As requested by the applicant, that sum is to be transferred into the bank account of his lawyers, save for EUR 170.55, which are to be paid to him. C. Default interest
65. 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 the application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 1,329.45 (one thousand three hundred and twenty-nine euros and forty-five cents) of which is to be paid directly to the applicant’s legal representatives;
(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident