The ECHR found a violation of the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 5 of the Convention for the Protection of Human Ri Сведения: 2018-08-07 11:02:23

The ECHR judgment of 19 January 2017 in the case of Ivan Todorov v. Bulgaria (application No. 71545/11).

In 2011, the applicant was assisted in preparing the application. Subsequently, the application was and communicated to Bulgaria.

In the case, the complaint on the absence of a remedy was successfully considered to determine whether the period of limitation of the applicant's expiry of the previously imposed punishment for the crime had expired. The case involved a violation of the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


In April 1987, the applicant was found guilty of aiding and abetting public property abuse and was sentenced, in particular, to 20 years imprisonment. In June 1987, the Supreme Court upheld the verdict and sentences imposed on him. The decision of the Supreme Court was final and subject to enforcement in accordance with domestic law. The applicant was placed in pre-trial detention in June 1986 and began serving his sentence in June 1987. In January 1991, the applicant submitted an application for review of the sentence to the Supreme Court. On the same date, the Chief Justice of the Supreme Court ordered the suspension of the execution of the sentence in connection with the applicant's state of health and he was released. In December 1992, the Supreme Court rejected the application for review and upheld the conviction. The authorities were unable to locate the applicant. In 2005, the applicant appealed to the President of the Republic of Bulgaria with a request for pardon. In November 2007, the Clemency Commission informed the applicant that it was not necessary to examine his application, as the statute of limitations for the execution of the sentence had expired.

The applicant decided to return to Bulgaria. In January 2008, he was detained by the police on arrival at the airport in connection with his search for him. Subsequently, he was sent to prison to serve a 20-year prison term, appointed to him in 1987.

The applicant lodged a complaint with the prosecutor's office, claiming that the statute of limitations had expired in order to serve his term of imprisonment, and asked for his release. In February 2008, the military prosecutor ruled that the applicant had to serve the remainder of the sentence and that the limitation period had not expired. The applicant's complaints about this decision were rejected. The applicant was released in May 2014.


ISSUES OF LAW


Concerning the requirements of paragraph 4 of Article 5 of the Convention. Since his imprisonment in January 2008, the applicant had insisted that the statute of limitations for the execution of his sentence had expired and that there were no legal grounds for his imprisonment. The pardon commission under the presidential administration expressed the same opinion in response to the applicant's pardon petition in 2007. However, the prosecutor's office, which was authorized to decide whether or not to serve a sentence, took the opposite position. The question of whether the statute of limitations had expired in order to serve the applicant's sentence, which was crucial to the legality of his deprivation of liberty, was not considered at the time of the sentencing in 1987 or when the applicant's application for review was reviewed in 1992. Accordingly, domestic legislation should provide the applicant with access to a remedy that satisfies the requirements of Article 5 § 4 of the Convention so that this issue can be resolved.

Bulgarian legislation did not provide for the existence of a special judicial remedy to challenge the lawfulness of imprisonment after conviction. Only the prosecution authorities could resolve issues related to the execution of sentences. The decisions were subject to supervision only by the superior prosecutor, but not to a judicial review. However, the prosecutor could not be considered a court that met the requirements of Article 5 § 4 of the Convention. Likewise, the legislation of the respondent State lacked a general procedure such as habeas corpus, which provides for the verification of the lawfulness of detention and the release of the person concerned if the detention was found to be unlawful.

As for the claim for compensation provided for in Article 2 (1) of the State and Municipalities Responsibility Act for causing damage, which was amended to include the right to compensation for any violation of Article 5 §§ 1 to 4 of the Convention and entered into force on 15 December 2012. , this procedure, although potentially could lead to the establishment of unlawfulness of detention, did not provide for the release of a person in the event of such an establishment.

In view of the foregoing, the applicant did not have access at any time to his detention from January 2008 to May 2014 to a judicial remedy by which he could verify the lawfulness of his detention and release if it was found to be unlawful.


DECISION


The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.

The Court also unanimously found that there had been a violation of the requirements of Article 5 § 5 of the Convention, since the compensation claim provided for in the State Liability Law could not ensure the applicant's right to compensation, and no other remedy existed in domestic law could to provide him with compensation for damage caused in violation of Article 5 § 4 of the Convention, before or after the adoption of this Decision.

 

COMPENSATION


In the application of Article 41 of the Convention. The Court awarded the applicant EUR 6,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.

In the case of IP v. Bulgaria (judgment of 19 January 2017, complaint No. 72936/14), the Court also unanimously decided that there had been a violation of the requirements of Article 5 § 4 of the Convention on the ground that the applicant could not avail himself of the judicial review of the lawfulness of his detention. The violation did not follow from the acts or omissions of one of the authorities mentioned in article 2 of the Law on State Responsibility, but because of the absence in domestic law of the procedure for judicial review of the applicant's detention in a temporary stay facility for young people. Consequently, the claim for compensation under this law was not an accessible and effective remedy capable of providing compensation to the applicant in respect of his complaint.

 

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