NASKO GEORGIEV v. BULGARIA - 25451/07 - Committee Judgment [2013] ECHR 1230 (03 December 2013)

JUDGMENT STRASBOURG 3 December 2013 This judgment is final but it may be subject to editorial revision. In the case of Nasko Georgiev v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President, Zdravka Kalaydjieva, Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar , Having deliberated in private on 12 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 25451/07) 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 Nasko Dimitrov Georgiev (“the applicant”), on 10 May 2007. The applicant was represented by Ms V. Vasileva, a lawyer practising in Burgas. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. On 14 January 2011 the Government were given notice of the application. THE FACTS I. THE CIRCUMSTANCES OF THE CASE The applicant was born in 1970 and lives in Burgas. A. The criminal proceedings against the applicant (case no. 40/95) At the relevant time the applicant was accused in a number of criminal proceedings concerning different offences and was convicted in at least two of them. On 11 October 1994 the applicant was brought to a police station in the town of Harmanli on suspicion of committing aggravated robbery in complicity with six other persons. Criminal proceedings in relation to that were opened on an unspecified date under case no. 40/95. In 12 October 1994 the applicant was charged with the above-mentioned offence and was detained on remand. On 13 December 1994 he was also charged with hooliganism and unlawful possession of firearms. Those charges were amended on 30 December 1994. On an unspecified date in the beginning of 1995 the case was brought before the Haskovo Regional Court. Between May 1995 and November 1997 at least ten hearings were held, nine of which were adjourned as some of the other accused or their counsel were not present. Between November 1997 and March 2000 no hearings appear to have been held, as the presiding judge was on sick leave. During that period the applicant sent at least seven requests to the Haskovo Regional Court, asking for a hearing to be scheduled, to no avail. The hearings were resumed in March 2000. Between that time and May 2005 the court held at least nineteen hearings, fourteen of which were adjourned: one at the applicant’s request, two because a judge was sick and the rest because of the absence of some of the other accused or their counsel. At the hearing of 20 September 2005 the lay judges in the panel hearing the case were replaced and the proceedings had to re-start because the panel did not include reserve lay judges. Between September 2005 and December 2006 at least eight hearings were held, three of which were adjourned because some of the other accused, or their counsel, were absent. On 13 December 2006 a plea agreement was concluded and approved by the Haskovo Regional Court. The applicant pleaded guilty to aggravated armed robbery and possession of firearms. He was sentenced to eight months’ imprisonment. After combining this sentence with a sentence imposed in another set of proceedings (case no. 72/93), the court found that the applicant should serve a combined prison sentence of six years and six months, and concluded that the applicant had already served that sentence. B. The applicant’s detention On 12 October 1994 an investigator from the Haskovo regional investigation service detained the applicant on remand. On 30 December 1994 the applicant was released on bail and on 8 February 1995 was again detained on remand. On 26 April 1995 the applicant was sentenced to six years and six months’ imprisonment under case no. 72/93. He started serving that sentence. On several occasions in 1995, 1997 and 1998 the applicant requested that his detention on remand in connection with case no. 40/95 be replaced by bail. It is not clear how many of those requests were examined by the domestic courts, but on 28 October 1998 the Haskovo Regional Court granted one of them. On several occasions the applicant requested early release under case no. 72/93, but his requests were not granted. On 3 July 2000, having served his sentence under case no. 72/93 and paid the bail under case no. 40/95, the applicant was released. C. Prohibitions to leave the country 1. The prohibitions imposed before July 2007 It appears that several prohibitions to leave the country were imposed on the applicant in connection with several sets of criminal proceedings against him. It is unclear whether the applicant ever requested the competent authorities to lift those prohibitions or temporarily to allow him to leave the country. It appears from the materials in the case file that three of those prohibitions were lifted on 13 December 2006, 9 February 2007 and 15 June 2007 respectively. 2. The prohibition imposed in July 2007 In an order of 30 July 2007, issued under section 76 (2) of the Bulgarian Identity Documents Act 1998 (see paragraph 30 below), the director of the Burgas Regional Police Department, citing the applicant’s criminal convictions, banned him from leaving the country and from obtaining an international passport pending his rehabilitation in case no. 40/95. The applicant sought judicial review of the order, arguing that the imposition of the ban had not been necessary. In a judgment of 8 January 2008 the Burgas Administrative Court upheld the order. So did the Supreme Administrative Court in a final judgment of 30 June 2008 ( реш. № 7899 от 30 юни 2008 г. по адм. д. № 3390/2008 г., ВАС, V о. ). The courts found that as the applicant had been convicted of several criminal offences and had not yet been rehabilitated, the legal requirements for imposing the ban were met. Furthermore, since it was intended to maintain public order, the prevention of crime and the protection of the rights and freedoms of others, the ban was not in breach of Article 2 of Protocol No. 4 which allowed freedom of movement to be curtailed in certain cases. The courts finally said that it was within the police authorities’ discretion to impose such a ban and that their discretion was not subject to judicial review. Meanwhile, on 31 July 2007 the applicant asked the Haskovo Regional Court to rehabilitate him with a view to having the ban lifted. The request was rejected by both the Haskovo Regional Court and the Plovdiv Court of Appeal. The final judgment was delivered on 7 February 2008. On 3 February 2009 the applicant asked the director of the Burgas Regional Police Department to lift the travel ban, arguing that since 2000 he had been a law-abiding citizen and had not committed an offence. The director lifted the ban on 18 February 2009. II. RELEVANT DOMESTIC LAW The relevant provisions of domestic law concerning remedies for length of proceedings have been summarised in the Court’s recent decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013). The relevant domestic law concerning travel bans on convicted individuals pending their rehabilitation is set out in the Court’s judgment in the case of Nalbantski v. Bulgaria (no. 30943/04 , §§ 25-29, 10 February 2011). THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION A. The parties’ submissions The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention and that he had not had effective remedies in that respect, contrary to the requirement of Article 13. The relevant part of Article 6 § 1 reads as follows: “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 of the Convention provides: “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.” The Government contested that assertion. B. The Court’s assessment 1. Admissibility . After the Court invited the parties, by letter of 12 July 2013, to make additional observations on the complaints at issue, in particular in connection with the new domestic remedies concerning length of proceedings introduced in Bulgarian law in 2012, the Government pointed out that those remedies were available even to applicants who had already lodged their applications with the Court, as in the present case, and referred to the Court’s finding in the recent decisions in the cases of Valcheva and Abrashev , cited above. . The applicant submitted that the new domestic remedies were only adopted after they had lodged their application before the Court. He further claimed that he would not be able to use those remedies because the six-month limitation period provided for in paragraph eight of the Transitional and Concluding Provisions of the State Responsibility for Damage Act 1988 had expired in his case. . The Court recalls that in its recent decisions in the cases of Balakchiev and Others , §§ 53-85, and Valcheva and Abrashev , §§ 92-124, both cited above, it found that the remedies at issue, under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability for Damage Act 1988, could be regarded as effective remedies in respect of the allegedly unreasonable length of proceedings. It found further that the remedies at issue should be tried even by applicants who had lodged their applications with the Court before their introduction, as in the case at hand. It follows from the above that the complaint under Article 6 § 1 concerning the length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. As to the complaint under Article 13 of the Convention, the Court considers it manifestly ill-founded (see Valcheva and Abrashev , cited above, §§ 128-29). Accordingly, this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION The applicant complained of the travel ban which had been imposed on him pending his rehabilitation. He relied on Article 2 of Protocol No. 4, which, in so far as relevant, reads as follows: “... 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of [that right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ...” A. The parties’ submissions The applicant pointed out that the domestic courts had declined to review the police authorities’ assessment of the necessity to prohibit him from leaving the country. In the Government’s view, the travel ban had been imposed following a thorough assessment of all relevant factors. The applicant had failed to disprove the authorities’ findings of fact in the domestic proceedings in respect of the ban. Furthermore, the Supreme Administrative Court had held that it pursued a legitimate aim. Lastly, the Government drew attention to the fact that the ban had been lifted before the applicant’s rehabilitation. B. The Court’s assessment 1. Admissibility The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits The present case, which concerns a travel ban imposed on a convicted and yet not rehabilitated offender, is almost identical to Nalbantski (cited above), as well as to the more recent cases of Sarkizov and Others v. Bulgaria (nos. 37981/06 et al. , §§ 66-70, 17 April 2012), Dimitar Ivanov v. Bulgaria ([Committee], no. 19418/07, §§ 36-38 14 February 2012), Milen Kostov v. Bulgaria , (no. 40026/07, § 17, 3 September 2013). I n all four above-mentioned cases the Court found breaches of Article 2 of Protocol No. 4 to the Convention. In the instant case, like in the above-mentioned cases, in deciding to impose the travel ban the authorities referred to the applicant’s convictions and lack of rehabilitation, while failing to take into consideration his individual situation or to assess the proportionality of the measure. As in the above-mentioned cases, that situation could not be rectified through judicial review proceedings because the courts held that they could not review the manner in which the police had exercised their discretion to assess the necessity of imposing the ban. Such a rigid and automatic approach cannot be reconciled with the obligation imposed by Article 2 of Protocol No. 4 to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances (see Gochev v. Bulgaria , no. 34383/03 , § 50, 26 November 2009 ). There has therefore been a violation of Article 2 of Protocol No. 4. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION The applicant complained under Article 2 of Protocol No. 4 of the prohibitions on his leaving the country imposed before 2007. He also complained, relying on Articles 5 §§ 3, 4, 5, 6 § 2 and 13 of the Convention, of his deprivation of liberty between 1994 and 2000. The Court has examined the complaints as submitted by the applicant. 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. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 The applicant claimed 39,000 euros (EUR) in respect of the non-pecuniary damage stemming from the alleged breach of the reasonable time guarantee provided by the Convention and EUR 16,000 in respect of the non-pecuniary damage stemming from the travel ban imposed on him. The Government submitted that the claim was exorbitant. The Court observes that in the present case an award of just satisfaction can be based only on the violation of Article 2 of Protocol No. 4. It considers that the applicant must have sustained non-pecuniary damage as a result of the breach of his rights under that provision. Ruling in equity as required under Article 41, the Court awards him EUR 1,000 under this head. To this amount is to be added any tax that may be chargeable. B. Costs and expenses The applicant sought the reimbursement of EUR 2,800 incurred in legal fees and of EUR 80 incurred for postal and translation expenses, all in relation to the proceedings before the Court. In support of his claim he presented a fee agreement between him and his legal representative, postal receipts and an invoice for translation expenses. The Government submitted that the amounts claimed were excessive and invited the Court to make an award in line with its case-law under Article 41. Having regard to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant EUR 1,000, plus any tax that may be chargeable to him. C. Default interest 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 complaint concerning the July 2007 travel ban admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 2 of Protocol No. 4; 3. Holds (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 1,000 (one thousand 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; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı George Nicolaou Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII