AFFAIRE YANKOV ET 9 AUTRES AFFAIRES CONTRE LA BULGARIE

Rezoluția CM/ResDH(2013)102 10 cauze împotriva Bulgariei Executarea hotărârilor Curții Europene a Drepturilor Omului Cerere Cauza Hotărârea din 39084/97 YANKOV 11/12/03 11/03/04 47823/99 GEORGIEV 15/12/2005 03/07/2006 33606/05 KANEVA 13/11/2012/2012 58971/00 POPOV RADOSLAV 02/11/2006 02/07/2007 57847/00 NAVUSHTANOV 24/05/2007 24/08/2007 3927/98 BELCHEV 08/04/04/00 44062/98 HAMANOV 08/04/2004 08/04/2004 42987/98 VACHEV 08/07/2004 08/10/2004 29381/04 STOYCHEV 21/12/2010 21/12/2010 74792/01 RASHID No. 2 05/06/2008 05/09/2008 (adoptată de Comitetul de Miniștri la 6 iunie 2013 în cadrul celei de-a 1172-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârile definitive care au fost transmise de Curte Comitetului în cauzele de mai sus și încălcările constatate care reamintesc obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârilor, inclusiv a informațiilor furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013)533 [1] SÕ asigurându-se că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1); DECLAMENTUL PE CARE își îndeplinește funcțiile în temeiul art. 46 alin. (2) din Convenția în aceste cazuri și DECIDE d'en . ACȚIUNEA REPORT on the implementation of the judgments of the ECTHR from group of cases Yankov v. BULGARIA list of Cases Aplication Case Judgment of Final on 39084/97 YANKOV 11 decembrie 2003 11 March 2004 47823/99 GEORGIEV 15 decembrie 2005 03 July 2006 58971/00 RADOSLAV POPOV 2 November 2006 02 February 2007 57847/00 NAVUSHTANOV 24 mai 2007 24 August 2007 3927/98 BELCHEV 08 April 2004 08 July 2004 42987/98 VACHEV 08 April 2004 08 October 2004 44062/98 HAMANOV 08 April 2004 08 July 2004 74792/01 RASHID 05 iunie 2008 05 September 2008 29381/04 STOYCHEV 21 Decembrie 2010 21 Decembrie 2010 33606/05 KANEVA 13 November 2012 13 November 2012 Acest grup de articole se referă la mainly the lack of an enfortable right to compensation under domestic law for detention in amendation of the provision of Art. 5 of the Convention in situations in which the detention is not considered unlawful under domestic law (violations of Article 5§5). Caseta also se referă la problema cu detenție pe remand (violații ale articolului 5 alineatul (3) și §4) sau unlawful deprivation of liberty in a psihiatric spital (violation of Article 5§1(e)). The case of Yankov raports to inhuman and degrading treatment due to shaving of a detainee's head (violation of Article 3); disciplinary pedepseshment of a detainee for insularing officials in the draft manuscript of a book (violation of Article 10) and lack of efectiv remedy in this respect (violation of Article 13). Some of the cases se referă la also excesiv length of criminal proceedings and lack of efectiv remedy in this respect (violations of Art. 6 and 13). Individual measures Payment of compensation All compensation awarded by the European Court were duly transferred to the applicants. Termination of the criminal proceedings in the cases of Yankov and Rashid No. 2 By decree of the District Prosecutor Electroluxs Office in Plovdiv from 10 June 2008 the criminal procesing against Mr. Todor Yankov were terminated on the bazis of Article 243, para 1, p.1 of the Criminal Procedure Code (The act does not constitute a criminal office). The reasoning for the termination is that acording to the rect practice of the Supreme Court of Cassation the corpus delicti of Article 282 of the Criminal Code applications only to actions or omisiunis perpetrated by officials angajad in bodies of governmental authority or management. As Mr. Yankov was executive director of private companies his acts did not fall within the scop of the criminal official office by art. 282 of CC. The applicant has at his disponibil the oportunity to claim damages under Article 2, para 1 of the State and Municipality Responsibility for Damage Act ( Toate aplicantele au fost puse la dispozitie sau au fost condamnate la un term of imprisonment. The Government thus considers that no aditival individual measures are necessary with vizioned to the cases in the present group. General Measures Publication and disemination of the judgments. The translations in Bulgarian of the first eight judgments in this group are available on the Ministry of Justice Website at http://www.justice.government.bg/47/ . The translations of the rest will soon be publicished aswell. A summary of the judgment on the case of Stoychev was publicished in Bulgarian on the National Institute of Justice Website [2] in the monthly Newsletter of Court Practice in Human Rights, issue 5 from January 2011, page Violation of Article 3 due to the shaving of the applicant The Court noted that there had been no legal ground for this treatment (see § 116 of the judgment). The judgment has been expressly communicated to the The Practice of shaving detainees' heads before limiting them in disciplinary cells not exist in penal establishments in Bulgaria any more. This was confirmăd by a letter from 8 February 2005 by the General Director of Încălcarea articolului 10 din Legea privind încălcarea dreptului penal din 1969, în cazul în care o persoană este închisă și appeals contain defaiming and ofensive language he may be subject to disciplinary and criminal pedepseshment. On 1 June 2009 this Act and the regulations implementing it were superseded by the new Execution of Punishments and Detention in Custody Act (the Prizonieri may not be subject to disciplinary pedepseshment ciocause of having made a request or lodged a compaint. Thus, the legal ground on which the applicant The General Director of the General Directorate maiy Execution of Punishments maiy impune all pedepseshments decribed in Article 101 of EPDCA (art. 104 EPDCA). The Orders for disciplinary pedepseshments issued by the governor may be appealed before the General Director, while the Orders of the General Director may be appealed before the Minister of Justice. Appeal does not have an automatic suspansive effect, but the General Director or the Minister of Justice may decise to suspension the execution of the disciplinary pedepseshment (art. 110 EPDCA). The Orders imposing solitary resolution to a disciplinary cell are subject to appeal before the regional Court (art. 111 EPDCA). Regional scurt has to examin the appeal within 3 days, in the presence of the detainee. The appeal does not have an automatic suspansive effect, but the court may decise to suspendare the execution of the disciplinary pedepseshment. Violențe privind detenția pe reman (Art. 5§3 and §4) The measures referenting these intersures have been adopted and examined by the Committee of Ministers in the context of the case Assenov and others (ResDH(2000)109), the cases of Ilijkov, Roumen Todorov and Shishkov (CM/ResDH(2007) 158) and the case of Georgieva (CM/ResDH(2012) 166). Violații privind investițiile în psihiatrie spitalică The measures referenting these questions have been adopted and examined by the Committee of Ministers in the context of the Varbanov group of cases (see the final resolution CM/ResDH(2010) 40). Violations resursasing to the right to seek compensation for detention in amendation of the provision of art. 5 of the convention (art. 5 alin. (5)). In 2012, the State and Municipalities Responsibility for Damages Act ( 98/2012) The State shall be liliac for any damage in policeted on citizens by criminal investigation authorities, public prosecution authorities or scurt: arrest, inclusiv scurt-ordered arrest awest awaiting trial, house arrest, if they were alnuled, scurt ordered obligatory hospitalization and treatment or other involuntary medical measures, if such are allled, as well as in all other cases of imprisonment in violation of Article 5, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, semnd in Rome on 4 November 1950 (raified by act - SG, No. 66/1992 (promulgated in SG No 80/1992, as amended, No. 137/1998; No. 97/1999 and No. 38/2010) hereinafter referred to as "Convention"; 2. încălcarea drepturilor, protected under art. 5 alineatul (2) - 4 of the Convention The new wording of the provizioane ensures that all persons subject to detention in contradiction with Art. 5 of the Convention have an potentable right to compensation even in situations in which the detention is not considered unlawful under domestic law. Length of proceseedings and lack of efectiv remedy in this respect Aceste întrebări sunt examinate în grupul Kitov de case as well as in the action report on the Dimitrov and Hamanov pilot judgment. The Government of the Republic of Bulgaria believes that the measures taken have foulied the requirements that ase from the Court mais judgment and that as a result similar viols will be anticipated in the viitor. In view of the above the Government considers that the supervision over the present case should be discontinued and the case should be closed. Sofia, 9 May 2013 [1] Numai în limba engleză. [2] http://www.nij.bg/Articole/Articole.aspx?lang=bg-BG&pageid=548

Résolution CM/ResDH(2013)102

10 affaires contre Bulgarie

Exécution des arrêts de la Cour européenne des droits de l’homme

Requête

Affaire

Arrêt du

Définitif le

39084/97

YANKOV

11/12/03

11/03/04

47823/99

GEORGIEV

15/12/2005

03/07/2006

33606/05

KANEVA

13/11/2012

13/11/2012

58971/00

POPOV RADOSLAV

02/11/2006

02/02/2007

57847/00

NAVUSHTANOV

24/05/2007

24/08/2007

39270/98

BELCHEV

08/04/2004

08/07/2004

44062/98

HAMANOV

08/04/2004

08/07/2004

42987/98

VACHEV

08/07/2004

08/10/2004

29381/04

STOYCHEV

21/12/2010

21/12/2010

74792/01

RASHID No. 2

05/06/2008

05/09/2008

(adoptée par le Comité des Ministres le 6 juin 2013,

lors de la 1172e réunion des Délégués des Ministres)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu les arrêts définitifs qui ont été transmis par la Cour au Comité dans les affaires ci-dessus et les violations constatées

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

;

et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée

;

Ayant examiné le bilan d’action fourni par le Gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2013)533

)

[1]

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées

;

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans ces affaires et

DECIDE d’en clore l’examen.

ACTION REPORT

on the implementation of the judgments of the ECtHR from group of cases

Yankov v. BULGARIA

List of Cases

Application

Case

Judgment of

Final on

39084/97

YANKOV

11 December 2003

11 March 2004

47823/99

GEORGIEV

15 December 2005

03 July 2006

58971/00

RADOSLAV POPOV

2 November 2006

02 February 2007

57847/00

NAVUSHTANOV

24 May 2007

24 August 2007

39270/98

BELCHEV

08 April 2004

08 July 2004

42987/98

VACHEV

08 April 2004

08 October 2004

44062/98

HAMANOV

08 April 2004

08 July 2004

74792/01

RASHID

05 June 2008

05 September 2008

29381/04

STOYCHEV

21 December 2010

21 December 2010

33606/05

KANEVA

13 November 2012

13 November 2012

The Facts

This group of cases concerns mainly the lack of an enforceable right to compensation under domestic law for detention in contravention of the provisions of Art. 5 of the Convention in situations in which the detention is not considered unlawful under domestic law (violations of Article 5§5). The cases also concern problems with detention on remand (violations of Article 5 §3 and §4) or unlawful deprivation of liberty in a psychiatric hospital (violation of Article 5§1(e)). The case of Yankov relates to inhuman and degrading treatment due to shaving of a detainee's head (violation of Article 3); disciplinary punishment of a detainee for insulting officials in the draft manuscript of a book (violation of Article

10) and lack of effective remedy in this respect (violation of Article

13).

Some of the cases concern also excessive length of criminal proceedings and lack of effective remedy in this respect (violations of Art. 6 and

13).

Individual measures

a)

Payment of compensation

All compensations awarded by the European Court were duly transferred to the applicants’ accounts.

b)

Termination of the criminal proceedings in the cases of Yankov and Rashid No. 2

By decree of the District Prosecutor’s Office in Plovdiv from 10 June 2008 the criminal proceedings against Mr. Todor Yankov were terminated on the basis of Article

243, para 1, p.1 of the Criminal Procedure Code (The act does not constitute a criminal offence). The reasoning for the termination is that according to the recent practice of the Supreme Court of Cassation the

corpus delicti

of Article

282 of the Criminal Code applies only to acts or omissions perpetrated by officials engaged in bodies of governmental authority or management. As Mr. Yankov was executive director of private companies his acts did not fall within the scope of the criminal offence regulated by art. 282 of CC. The applicant has at his disposal the opportunity to claim damages under Article 2, para 1 of the State and Municipality Responsibility for Damage Act (“SMRDA”).

The criminal proceedings concerning the applicant in the case of Rashid No. 2 ended on 16 July 2009 by a final judgment of the Supreme Court of Cassation.

c)

Information concerning the applicants placed in pretrial detention

All the applicants have been released or – respectively - sentenced to a term of imprisonment.

The Government thus considers that no additional individual measures are necessary with regard to the cases in the present group.

General measures

a)

Publication and dissemination of the judgments.

The translations in Bulgarian of the first eight judgments in this group are available on the Ministry of Justice website at

http://www.justice.government.bg/47/

. The translations of the rest will soon be published as well.

A summary of the judgment on the case of Stoychev was published in Bulgarian on the National Institute of Justice website

[2]

in the monthly Bulletin of Court Practice in Human Rights, issue 5 from January 2011, page

8.

b)

Violation of Article 3 due to the shaving of the applicant’s hair during his disciplinary punishment in an isolation cell

The Court noted that there had been no legal ground for this treatment (see § 116 of the judgment). The judgment has been expressly communicated to the “Execution of Punishments” General Directorate within the Ministry of Justice by letter No 99-00-90 from 02 February 2005.

The practice of shaving detainees' heads before confining them in disciplinary cells does not exist in penal establishments in Bulgaria any more. This was confirmed by a letter from 8 February 2005 by the General Director of “Execution of Punishments” General Directorate to the Ministry of Justice.

c)

Violation of Article 10 due to a disciplinary punishment of a detainee for insulting officials in the draft manuscript of a book

According to Rule 46 of the regulations implementing the Execution of Punishments Act from 1969 when a prisoner's writings and appeals contain defaming and offensive language he may be subject to disciplinary and criminal punishment. On 1 June 2009 this Act and the regulations implementing it were superseded by the new Execution of Punishments and Detention in Custody Act (the “EPDCA”). The new provision of Article

90 (6) of EPDCA expressly provides that

prisoners may not be subject to disciplinary punishment because of having made a request or lodged a complaint. Thus, the legal ground on which the applicant’s disciplinary punishment was based does not exist anymore.

At present confinement in isolation cell of up to 14 days may be imposed by the prison governor; while the governors of penitentiary hostels may impose confinement of up to 5 days. The General Director of the General Directorate “Execution of Punishments” may impose all punishments described in Article 101 of EPDCA (art. 104 EPDCA). The orders for disciplinary punishments issued by the prison governor may be appealed before the General Director, while the orders of the General Director may be appealed before the Minister of Justice. The appeal does not have an automatic suspensive effect, but the General Director or the Minister of Justice may decide to suspend the execution of the disciplinary punishment (art. 110 EPDCA). The orders imposing solitary confinement to a disciplinary cell are subject to appeal before the regional court (art. 111 EPDCA). The regional court has to examine the appeal within 3 days, in the presence of the detainee. The appeal does not have an automatic suspensive effect, but the court may decide to suspend the execution of the disciplinary punishment.

d)

Violations concerning detention on remand (Art. 5 §3 and §4)

The measures concerning these questions have been adopted and examined by the Committee of Ministers in the context of the case Assenov and others (ResDH(2000)109), the cases of Ilijkov, Roumen Todorov and Shishkov (CM/ResDH(2007)158) and the case of Georgieva (CM/ResDH(2012)166).

e)

Violations concerning placement in psychiatric hospital

The measures concerning these questions have been adopted and examined by the Committee of Ministers in the context of the Varbanov group of cases (see the final resolution CM/ResDH(2010)40).

f)

Violations concerning to the right

to seek compensation for detention in contravention of the provisions of Art. 5 of the Convention (Art. 5 § 5)

In 2012, the State and Municipalities Responsibility for Damages Act (“SMRDA”) was amended, the amendments entering into force on 15 December 2012. The relevant domestic legislation (article 2 (1) points 1 and 2) now provides as follows:

“(1) (Previous Article 2, amended, SG No. 43/2008, supplemented, SG No. 17/2009, amended, SG No.

98/2012) The State shall be liable for any damage inflicted on citizens by criminal investigation authorities, public prosecution authorities or court:

66/1992) (promulgated in SG No 80/1992, as amended, No. 137/1998; No. 97/1999 and No. 38/2010) hereinafter referred to as "Convention";

”

The new wording of the provisions ensures that all persons subject to detention in contradiction with Art. 5 of the Convention have an enforceable right to compensation even in situations in which the detention is not considered unlawful under domestic law.

g)

Length of proceedings and lack of effective remedy in this respect

These questions are examined in the Kitov group of cases as well as in the action report on the Dimitrov and Hamanov pilot judgment.

The Government of the Republic of Bulgaria believes that the measures taken have fulfilled the requirements that arise from the Court’s judgment and that as a result similar violations will be prevented in the future. In view of the above the Government considers that the supervision over the present case should be discontinued and the case should be closed.

Sofia, 9 May 2013

[1]

En anglais uniquement.

[2]

http://www.nij.bg/Articles/Articles.aspx?lang=bg-BG&pageid=548