Last Updated on October 2, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 51127/18
Mihail Mihaylov STEFANOV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 8 September 2020 as a Chamber composed of:
Faris Vehabović, President,
Yonko Grozev,
Iulia Antoanella Motoc,
Branko Lubarda,
Georges Ravarani,
Jolien Schukking,
Péter Paczolay, judges,
and Andrea Tamietti, Section Registrar,
Having regard to the above application lodged on 22 October 2018,
Having regard the decision of the President of Section V, to which the application was previously assigned, acting as a single judge, to declare part of it inadmissible,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mihail Mihaylov Stefanov, is a Bulgarian national who was born in 1970 and lives in Stara Zagora. He was granted leave to represent himself (Rule 36 § 2 in fine of the Rules of Court).
2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and Ms I. Sotirova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s actions on 29 May 2018 and the uploading on to the Internet of the video recording of those actions
4. At about 6.30 a.m. on 29 May 2018 the applicant set up video‑recording equipment in the street in front of the Palace of Justice in Sofia. That building houses a number of courts and authorities, including the Supreme Court of Cassation and the Supreme Cassation Prosecutor’s Office. The applicant recorded a video in which he first set on fire a piece of cloth bearing the colours of the Bulgarian flag and then dropped it on the ground and urinated on it. While doing that, he first said “Here is the rag”, then “Fuck the Bulgarian rubbish, fuck”, and then “Death to judicial fascism!” The video’s running time was two minutes and sixteen seconds.
5. The applicant then edited the video, adding a “preface” with a running time of one minute and fourteen seconds, filmed in his home, in which he said the following:
“Dear fans, today I went in front of the lair of the biggest criminal gangs in Bulgaria. We are talking about the Palace of Justice in Sofia, which houses the two biggest criminal gangs – the Court and the Prosecutor’s Office. I went there and set fire to the national flag of Bulgaria, and then peed on it. Fuck the rag, fuck! I am far from thinking that such hardened criminals as Lozan Panov [the current President of the Supreme Court of Cassation] and Sotir Tsatsarov [the then Chief Prosecutor] will be, as it were, moved by this gesture of mine, but I nevertheless hope that the Bulgarian people will stop putting up with judicial fascism. Judicial fascism, imposed precisely by these two persons: Tsatsarov and Lozan Panov. If the Bulgarian people continue to bear judicial fascism, then I call on foreign troops, whether they be Russian or Ottoman, to come and set us free from this prosecutor-judicial rabble.”
6. On 2 June 2018 the applicant uploaded the video to his YouTube channel, putting the title “LIGHTNING: Mihail Mihaylov set the Bulgarian flag on fire, then peed on it!!!” and the following description:
“Today, 02.06.2018, I went before the Palace of Justice – Sofia. This is the lair of the two biggest criminal gangs in Bulgaria – the Court and the Prosecutor’s Office. There, I set fire to the national flag of Bulgaria, and then I peed on it. I do not expect that my gesture will move criminals like Sotir Tsatsarov or Lozan Panov, or the governing mafia structures – the Court and the Prosecutor’s Office. I hope that foreign troops, whether Russian or Ottoman, will come and shovel this rabble out!
You can see more interesting videos, reports and news on the site ‘The voice of Stara Zagora’ [ran by the applicant], as well as the Facebook group ‘The voice of Stara Zagora’ [administered by the applicant]. To reach the editor Mihail Mihaylov, you can call … or write to the email address … I expect your signals against the Bulgarian Court, Prosecutor’s Office and Police, as well as about the outrages of the municipal and State authorities in Stara Zagora and the Stara Zagora region.”
7. The applicant also placed a link to the video on his website, which he had called “The Voice of Stara Zagora”.
2. The applicant’s arrest and detention in relation to the above acts
8. The same day, 2 June 2018, an officer of the organised crime division of the Ministry of Internal Affairs spotted the link to the video on the applicant’s website, made a copy of the video, and reported the matter to the Specialised Prosecutor’s Office, which immediately initiated a criminal investigation into it.
9. On 3 June 2018 an investigator attached to the Specialised Prosecutor’s Office ordered the Stara Zagora Police to find the applicant and bring him to Sofia in connection with the investigation.
10. At about 5 p.m. on 3 June 2018 the Stara Zagora police went to the applicant’s home. They searched the applicant and the premises, and seized three desktop computers, several video cameras, recording media, and a mobile telephone.
11. After that, the officers took the applicant to a police station in Stara Zagora. The same evening they transferred him to Sofia on the basis of an order referring to section 76 of the Ministry of Internal Affairs Act 2014 (“the 2014 Act” – see paragraph 45 below).
12. At 1.30 a.m. on 4 June 2018, after the applicant’s arrival in Sofia, the Sofia police issued an order for his police detention. The order referred to section 72(1)(7) of the 2014 Act (see paragraph 40 below). At the same time the applicant was advised, inter alia, of his right to counsel and his right to seek judicial review of his police detention. He refused to sign the order.
13. The applicant’s police detention was terminated at 3.30 p.m. the same day. However, he was not released but charged, at 4.35 p.m., with desecration of the flag and aggravated hooliganism, which offences were punished under Articles 108 § 2 and 325 § 2, respectively, of the Criminal Code (see paragraphs 36 and 37 below). The prosecutor then ordered his detention pending the examination by the Specialised Criminal Court of the prosecution’s request to place him in pre-trial detention (see paragraph 46 below).
3. The applicant’s pre-trial detention
14. On 6 June 2018 the Specialised Criminal Court decided to place the applicant in pre-trial detention. It held that there was enough evidence to sustain a reasonable suspicion that he had committed the offences as charged, and that, in view of his conduct and the seriousness of those offences, there was a real risk that he would reoffend if released. The officially appointed lawyer acting for the applicant appealed against that decision, but the applicant later withdrew the appeal and the Specialised Criminal Appellate Court discontinued the appeal proceedings.
15. On an unspecified date in June or July 2018 the applicant applied for release. On 19 July 2018 the Specialised Criminal Court refused his application, and he appealed. On 31 July 2018 the Specialised Criminal Court of Appeal upheld the lower court’s decision. It held that, in the light of the witness and expert evidence, it could reasonably be suspected that the applicant had committed the offences charged against him. It went on to say that although there was no risk of the applicant’s absconding, the way in which he had committed the alleged offences showed that he had prepared and acted with reckless disregard for the law. This, coupled with the psychiatric evidence, suggested that he might commit fresh offences.
16. On 14 August 2018, when setting the criminal case against the applicant down for trial, the Specialised Criminal Court of its own motion decided to keep him in pre-trial detention. The applicant appealed, but on 30 August 2018 the Specialised Criminal Court of Appeal upheld the lower court’s decision, finding no fresh developments warranting a reconsideration of the need to keep the applicant in custody.
17. On 4 September 2018 the Specialised Criminal Court refused a renewed request that the applicant be released. The applicant appealed, and on 26 September 2018 the Specialised Criminal Court of Appeal upheld the lower court’s decision. It found that the reasonable suspicion against him persisted. There was no risk of his absconding, but – in view of his provocative demeanour and the nature of the charges against him – there was a risk of his committing an offence. The duration of his detention had not yet become unreasonable, especially considering the alacrity with which the lower court had proceeded with the criminal case. There was nothing to suggest that the lower court’s decision to keep the applicant in custody had amounted to a sanction for what he had described as his “journalistic activities”.
18. On 27 September 2018, when convicting the applicant (see paragraph 22 below), the Specialised Criminal Court, taking up the point of its own motion, as required by law, decided to keep him in detention pending the examination of any appeal against the conviction and sentence. The applicant appealed against that decision, but on 29 October 2018 the Specialised Criminal Court of Appeal upheld it.
19. In November and December 2018 the applicant again applied for release. On 19 December 2018 the Specialised Criminal Court of Appeal, which was by then dealing with the appeal against the applicant’s conviction (see paragraph 23 below), dismissed the requests. A further request, made on 20 December 2018, was rejected by the court on 7 January 2019.
20. On 24 January 2019, shortly after his initial conviction had been quashed and the criminal case against him referred back for retrial (see paragraph 23 below), the applicant once again applied for release. The Specialised Criminal Court examined the request on 27 February 2019 and rejected it. The applicant appealed, and on 14 March 2019 the Specialised Criminal Court of Appeal ordered his release. It noted that his pre-trial detention had already lasted nearly ten months. In view of his clean criminal record, the penalties envisaged for the offences of which he stood accused, the fact that the case against him was not complex and had been referred for retrial, and his health, the duration of his detention had become excessive. It had served its purpose and was no longer justified.
4. Criminal proceedings against the applicant
21. On 3 August 2018 the Specialised Prosecutor’s Office indicted the applicant. It alleged that by setting the Bulgarian flag on fire and urinating on it and by recording a video of these acts and making it available on the Internet he had desecrated the flag, contrary to Article 108 § 2 of the Criminal Code, and engaged in aggravated hooliganism, contrary to Article 325 § 2 of the same Code (see paragraphs 36 and 37 below).
22. On 27 September 2018 the Specialised Criminal Court found the applicant guilty as charged and sentenced him to two years’ imprisonment.
23. The applicant appealed, and on 15 January 2019 the Specialised Criminal Court of Appeal quashed the lower court’s judgment, on the basis that the formation which had tried the applicant had consisted of a judge and two lay judges, whereas under the rules of procedure it should have consisted of a judge sitting alone. The case was referred back to the lower court for retrial.
24. Having retried the applicant, on 18 July 2019 the Specialised Criminal Court again found him guilty as charged and sentenced him to one year and ten months’ imprisonment, suspended.
25. The applicant appealed, and on 30 April 2020 the Specialised Criminal Court of Appeal partly quashed his conviction, finding him not guilty of flag desecration and hooliganism with respect to his having published the video recording on the Internet. By contrast, the court agreed with the lower court that by attempting to burn the Bulgarian flag and urinating on it in public the applicant had committed the offences of flag desecration and aggravated hooliganism. The court found no grounds to alter the sentence imposed on the applicant by the lower court.
26. The applicant was notified of the appellate judgment on 4 June 2020. He stated that he would appeal against it to the Supreme Court of Cassation. According to the information available on that court’s website, the hearing of the appeal has been listed for 11 September 2020.
5. Attempt to seek judicial review of the police detention
27. On 3 September 2018 the applicant sought judicial review of the order of 4 June 2018 for his police detention (see paragraph 12 above). He accompanied his claim for judicial review with a claim for damages. He alleged that the detention had unlawfully infringed his right to liberty.
28. On 4 October 2018 the Sofia City Administrative Court ruled that the claims had been lodged out of time. It found that the detention order had been served on the applicant on 4 June 2018, but that he had refused to accept service. The two-week time-limit for seeking judicial review had therefore expired before the applicant had lodged his claim. Since the admissibility of the concomitant claim for damages was premised on the admissibility of the judicial review claim, it could not be dealt with either.
29. The applicant appealed.
30. On 7 November 2018 the Supreme Administrative Court upheld the lower court’s decision. It found that although the police officer who had tried to serve the detention order on the applicant had not signed the note certifying the applicant’s refusal to accept service, it was clear that the applicant had been acquainted with the order, since at 3.30 p.m. on 4 June 2018 he had signed the form certifying the end of his police detention, which was on the back of the sheet of paper containing the order itself.
6. Claim for damages against the Specialised Criminal Court, the Specialised Criminal Court of Appeal and the Prosecutor’s Office
31. On 2 December 2019 the applicant brought a claim for damages against the Specialised Criminal Court, the Specialised Criminal Court of Appeal and the Prosecutor’s Office in relation, inter alia, to his pre-trial detention and the criminal proceedings against him. He argued, among other things, that those authorities had infringed his rights under Articles 5 § 3 and 10 of the Convention.
32. On 3 January 2020 the Sofia City Court instructed the applicant to: (a) clarify his claim in terms of underlying facts, allegations, claims, basis for the alleged liability of each defendant, and nature of the claimed damages, so as to enable the court to characterise the claim properly in law and determine whether it fell within its jurisdiction, and (b) pay the requisite court fee of ten Bulgarian levs (approximately five euros). The court stayed the proceedings pending compliance with its instructions.
33. On 27 January 2020 the applicant filed an amended statement of claim, and asked to be exempted from court fees owing to his indigence.
34. On 24 April 2020 the Sofia City Court found that the amended statement of claim had not fixed the shortcomings which had prompted its earlier instructions, and instructed the applicant to submit a declaration of means, so as to enable it to rule on his request to be exempted from court fees. It stayed the proceedings pending compliance with its instructions.
35. According to the information available on the Sofia City Court’s website, on 8 September 2020 the proceedings were still ongoing.
B. Relevant legal framework
1. Flag desecration and hooliganism
36. Article 108 § 2 of the Criminal Code makes it an offence to desecrate in any way the coat of arms, flag or anthem of the Republic of Bulgaria, or the flag or anthem of the European Union. The punishment is up to two years’ imprisonment or a fine of up to 3,000 Bulgarian levs (approximately 1,534 euros).
37. By Article 325 § 1 of the same Code, it is an offence (hooliganism) to carry out indecent actions that grossly violate public order and show overt disrespect for society. The punishment is up to two years’ imprisonment or probation, coupled with public reprimand. If those actions are, inter alia, characterised by exceptional cynicism or arrogance, the penalty can be increased to five years’ imprisonment (Article 325 § 2).
2. Bringing an accused or a witness using force
38. According to Article 71 § 1 of the Code of Criminal Procedure, an investigating authority may order that an accused who has been summoned and has failed to appear without a valid reason be forcibly brought before it, if his or her presence is required by law or if the authority finds it necessary. Article 71 § 2 specifies that the accused may be forcibly brought before the authority without a prior summons if he or she has absconded or has no permanent place of abode. Save in urgent circumstances, such person’s transfer must be effected during the day (Article 71 § 3).
39. Article 120 § 3 of the Code provides that a witness who fails to appear may be forcibly brought before the relevant authority as laid down in Article 71.
3. Police detention and transfer
(a) Police detention
40. Under section 72(1) of the 2014 Act, the police can detain someone when, inter alia, there are indications that he has committed an offence (point 1), or when detention is authorised under another statutory provision (point 7). Detention under point 1 cannot last longer than twenty-four hours (section 73).
41. According to section 74(1), (2) and (6), anyone detained under section 72(1) must be issued with, and given a copy of, a written detention order setting out, inter alia, the factual and legal grounds for the detention and its date and time, and advising the detainee, inter alia, that he can seek judicial review.
(b) Judicial review of police detention
42. According to section 72(4) of the 2014 Act, as worded until the end of 2018, anyone placed in police detention could seek judicial review of its lawfulness by an administrative court, which had to rule on the claim immediately. An amendment which came into force on 1 January 2019 transferred jurisdiction to hear such claims from the administrative courts to the district courts.
43. When hearing a claim under those provisions concerning the police detention of a man who had spray-painted the Soviet Army monument in Sofia, the Sofia City Administrative Court annulled the detention order with reference, inter alia, to this Court’s rulings under Article 10 of the Convention in Murat Vural v. Turkey (no. 9540/07, 21 October 2014) and Shvydka v. Ukraine (no. 17888/12, 30 October 2014) (see реш. № 3885 от 05.06.2015 г. по адм. д. № 9173/2014 г., АдмС-София-град). The Supreme Administrative Court quashed that judgment and dismissed the claim. It noted, among other things, that the spray-painting had impaired the monument, that the detention had lasted less than twenty-four hours, and that the claimant had not specified the reasons which had prompted his act, which had to be seen as a protest against a political regime (the communist regime in Bulgaria) which had ceased to exist more than twenty-five years earlier. In those circumstances, the detention could not be seen as a measure disproportionately restricting the claimant’s right to freedom of expression. It was not appropriate to draw automatic comparisons with Turkey and Ukraine because the political situations there were vastly different (see реш. № 363 от 12.01.2017 г. по адм. д. № 10527/2015 г., ВАС, V о.).
44. In proceedings under those provisions relating to the police detention of an inebriated man who had interrupted a sport-awards ceremony by jumping on the stage to speak and had then violently resisted the attempts to remove him from there, the Burgas Administrative Court found, inter alia, that the argument that the detention had impermissibly affected the man’s right to freedom of expression could not be sustained because he had acted drunkenly and offensively, without showing that he had been seeking to address an issue of public importance (see реш. № 498 от 14.03.2018 г. по адм. д. № 92/2018 г., АдмС-Бургас). It dismissed the claim. The Supreme Administrative Court upheld that judgment without commenting on the point, apparently because the claimant had not raised it on appeal (see реш. № 8891 от 12.06.2019 г. по адм. д. № 5228/2018 г., ВАС, I о.).
(c) Police transfer
45. Section 76(1)(1) of the 2014 Act provides that the police can transfer from one place to another anyone in respect of whom an investigator has ordered that he be forcibly brought before the relevant authority pursuant to the Code of Criminal Procedure (see paragraphs 38 and 39 above).
4. Detention of an accused by the prosecuting authorities
46. Article 64 § 2 of the Code of Criminal Procedure provides that the prosecuting authorities can detain an accused person for up to seventy-two hours to ensure that he or she appears before the court which is due to examine the request to place him or her in pre-trial detention.
5. State and Municipalities Liability for Damage Act 1988
47. Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, acts or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action. By Article 204 § 2 of the Code of Administrative Procedure, a claim for damages may be brought jointly with the claim for judicial review of the decision.
48. Section 2(1)(1) and (1)(2) of the 1988 Act, as worded since December 2012, reads:
“The State shall be liable for damage caused to citizens by the investigating or prosecuting authorities or the courts, in cases of:
1. deprivation of liberty, including when imposed as a measure to ensure an accused’s presence at trial, or house arrest, when they have been set aside; court-ordered committal and treatment or compulsory medical measures, when they have been set aside; as well as in all other cases of deprivation of liberty in breach of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms … [hereafter ‘the Convention’];
2. breach of rights protected under Article 5 §§ 2-4 of the Convention; …”
49. The courts have already awarded damages under these provisions, as amended in December 2012, in relation to prosecutor-ordered detention (see the case cited in Tsonev v. Bulgaria (dec.), no. 9662/13, § 39, 30 May 2017).
6. Status of the Convention in Bulgarian law
50. Article 5 § 4 of the 1991 Constitution provides that international treaties which have been ratified and promulgated and have come into force with respect to Bulgaria are part of domestic law and take precedence over any conflicting provisions of domestic legislation. In a 1992 judgment (see реш. № 7 от 02.07.1992 г. по к. д. № 6/1992 г., КС, обн., ДВ, бр. 56 от 10.07.1992 г.), the Constitutional Court held that this applies to all international treaties meeting these requirements except those requiring the criminalisation of certain acts or omissions.
51. The Act of Parliament ratifying the Convention came into effect in August 1992. The Convention itself came into force in respect of Bulgaria on 7 September 1992. It was published in the State Gazette in October 1992 (ДВ, бр. 80 от 02.10.1992 г.).
52. In several cases under the State and Municipalities Liability for Damage Act 1988 (see paragraphs 47 and 48 above), the Supreme Court of Cassation has held, with reference to the above, that the Convention should be directly applied by the courts (see реш. № 1336 от 06.01.2009 г. по гр. д. № 5769/2007 г., ВКС, V г. о.; реш. № 362 от 21.11.2013 г. по гр. д. № 92/2013 г., ВКС, IV г. о.; and реш. № 30 от 07.05.2019 г. по гр. д. № 2125/2018 г., ВКС, III г. о.).
COMPLAINTS
53. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had not been justified.
54. The applicant also complained under Article 10 of the Convention of his detention and the criminal proceedings against him in connection with his actions on 29 May 2018 and with the video recording of those acts which he had made and uploaded on to the Internet.
55. Lastly, the applicant complained under Article 13 of the Convention that he had not had an effective remedy with regard to this latter grievance.
THE LAW
A. Scope of the case
56. On 29 January 2019 the President of Section V, to which the application had been assigned at the material time, decided to give the Government notice of the complaints under Articles 5 § 3, 10 and 13 of the Convention relating to the applicant’s detention in the context of the criminal case against him concerning his actions on 29 May 2018, and the video recording of those actions which he had made and uploaded on to the Internet. The Section President, acting as a single judge, declared the applicant’s remaining complaints inadmissible (Rule 54 § 3 of the Rules of Court).
57. In his observations in reply to those of the Government, the applicant commented on various complaints declared inadmissible by the Section President under Rule 54 § 3, as well as on numerous matters in relation to which he had lodged separate applications (nos. 3089/19, 10098/19, 29352/19, 63899/19, 6924/20 and 17452/20), all of which had been declared inadmissible by single judges. He also commented on and complained of two further sets of criminal proceedings against him, brought in April and August 2019, his pre-trial detention in the context of those proceedings (from 5 April to 10 June 2019 and from 16 August to 15 October 2019 respectively), and a plethora of other matters, such as various civil proceedings brought by him, and periods of detention in psychiatric institutions in 2013-19 and the treatment to which he had been allegedly subjected in those institutions.
58. The Government took the view that none of those submissions and complaints should be taken into account by the Court.
59. The Court notes that the decision of the Section President, acting as a single judge, to declare part of an application inadmissible under Rule 54 § 3 is, under the terms of that provision, final. The applicant’s submissions concerning complaints declared inadmissible under that provision cannot therefore be taken into account. Nor can the Court deal with submissions relating to complaints declared inadmissible in the other cases brought by the applicant, the decisions of the single judges in those cases being likewise final (Article 27 § 2 of the Convention).
60. The Court further notes that according to its case-law, in a given case it can examine allegations made by the applicant after notice of (part of) the application has been given to the respondent Contracting Party only if those allegations amount to an elaboration of the original complaints (see, as a recent authority, Zikatanova and Others v. Bulgaria, no. 45806/11, § 109, 12 December 2019). In the case at hand, the above-mentioned submissions of the applicant do not amount to an elaboration of his original complaints under Articles 5 § 3, 10 and 13 of the Convention, which only concerned his detention in the context of the criminal case relating to his actions on 29 May 2018 and the video recording of those actions that he had made and uploaded on to the Internet. They cannot therefore be dealt with in the present case.
B. Complaint under Article 5 § 3 of the Convention
61. In respect of his complaint relating to his pre-trial detention, the applicant relied on Article 5 § 3 of the Convention, which provides, in so far as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
1. Request that the complaint be struck out of the Court’s list
62. In his observations in reply to those of the Government, the applicant stated that “[he] agree[d] with the agent of the Government that there [had been] no violation of [Article] 5 § 3 … but there [had been] a drastic violation of [Article] 5 § 1 [(c)]”. Relying on that remark, in their follow-up observations the Government requested that the complaint be struck out of the Court’s list under Article 37 § 1 (a) of the Convention, on the premise that the applicant did not intend to pursue it.
63. According to Article 37 § 1 (a) of the Convention, the Court “may … decide to strike an application out of its list of cases where the circumstances lead to the conclusion that … the applicant does not intend to pursue [it]”. This power can also be exercised with regard to parts of an application (see Kiril Ivanov v. Bulgaria, no. 17599/07, § 27, 11 January 2018, citing Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 104, ECHR 2007-I).
64. The applicant in the present case, while formally agreeing with the Government that there had been no breach of Article 5 § 3 of the Convention, alleged that there had been a breach of Article 5 § 1 (c). More importantly, although the remainder of his submissions is somewhat confused, their overall thrust in relation to this point is that his pre-trial detention was unjustified. In those circumstances, and in view of the fact that he was not legally represented (see paragraph 1 above), the Court is not persuaded that his statement can truly be seen as a manifestation of an intention not to pursue the complaint under Article 5 § 3.
65. It is therefore not appropriate to strike out this complaint under Article 37 § 1 (a) of the Convention.
2. Exhaustion of domestic remedies
66. The Government submitted that the applicant had not exhausted domestic remedies. They pointed out that even though he had been released from pre-trial detention in March 2019, he had still not lodged any proper claim for damages under section 2(1)(1) or (1)(2) of the State and Municipalities Liability for Damage Act 1988, as amended in December 2012 (see paragraph 48 above), which the Court had found to be an effective remedy with respect to periods of detention which had ended. In December 2019 the applicant had lodged a claim for damages against the Prosecutor’s Office in relation to his pre-trial detention, but had so far failed to clarify that claim in line with the instructions of the court dealing with it (see paragraphs 31 to 34 above). It was therefore still unclear whether the claim had been lodged under section 2(1) of the 1988 Act. Even assuming that it was, the proceedings pursuant to it were still ongoing (see paragraph 35 above).
67. The applicant submitted that, as he understood section 2(1) of the 1988 Act, he could seek damages under that provision only with respect to his detention between 27 February and 14 March 2019.
68. The Court has already found that a claim for damages under section 2(1)(1) or (1)(2) of the State and Municipalities Liability for Damage Act 1988, as amended in December 2012 (see paragraph 48 above) is a remedy which is normally available and adequate with respect to an alleged breach of Article 5 §§ 1 to 4 of the Convention that has already come to an end, and that it offers a reasonable prospect of success, in spite of the relative scarcity of rulings under those provisions (see Tsonev v. Bulgaria (dec.), no. 9662/13, §§ 54-69, 30 May 2017; Kolev v. Bulgaria (dec.), no. 69591/14, §§ 34-40, 30 May 2017; and Harizanov v. Bulgaria (dec.), no. 53626/14, §§ 80-81, 5 December 2017). The Court has furthermore held that this remedy needs to be pursued even by applicants in relation to whom it has become adequate, in view of their subsequent release, only after the lodging of their application (see Tsonev, cited above, §§ 57-58).
69. In the present case, the applicant was still in pre-trial detention when he lodged his application on 22 October 2018 (see paragraph 18 above). But his situation has since changed: on 14 March 2019 he was released (see paragraph 20 above). It follows that he is now required to bring, and complete, proceedings for damages under section 2(1)(2) of the 1988 Act – which concerns specifically Article 5 § 3 of the Convention (see paragraph 48 in fine above) – before his complaint under that provision can be dealt with by the Court. There is no indication that he has so far properly done so, since the proceedings for damages that he brought in December 2019 in relation to his pre-trial detention were stayed in January and April 2020 pending a clarification of his statement of claim, and were, at the date of the latest information available to the Court, still under way (see paragraphs 32, 34 and 35 above). Even if those proceedings are discontinued for some reason, the applicant will still be free to pursue that remedy, as the time-limit for doing so is five years (see Tsonev, § 67; Kolev, § 41; and Harizanov, § 98, all cited above).
70. The complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Complaint under Article 10 of the Convention
71. In respect of his complaint that the measures in relation to him had amounted to an unjustified interference with his right to freedom of expression, the applicant relied on Article 10 of the Convention, which provides, in so far as relevant:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. The parties’ submissions
72. The Government submitted that the applicant had failed to exhaust domestic remedies. They stated that he had had several remedies at his disposal which would have led to an examination of his grievance under Article 10 of the Convention. The first was a claim for judicial review of his police detention, coupled with a claim for damages (see paragraphs 42 and 47 above). He had failed to avail himself of that remedy in a timely manner, and his failure to comply with the time-limit for doing so could not be attributed to any problems with his correspondence in detention. Nor had he included in his statement of claim any arguments relating to his freedom of expression. The second remedy involved applying for release from pre‑trial detention, which he had done. The third remedy, which had become adequate after his release from detention, was a claim for damages under section 2(1) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 48 above), which he had so far failed properly to bring. In each of those proceedings the applicant could have submitted pleas to the effect that his detention had amounted to an unjustified interference with his right to freedom of expression. The lack of rulings on this point in proceedings under section 2(1) of the 1988 Act was no doubt due to the absence of such claims. It could not simply be presumed that the courts would refuse to take into account arguments based on Article 10 of the Convention because they would lie outside the scope of the claim.
73. The applicant did not comment on this point.
2. The Court’s assessment
74. The complaint, in so far as it concerns the criminal proceedings against the applicant as such, is premature, as those proceedings were, at the date of the latest information available to the Court, still under way (see paragraph 26 above, and, mutatis mutandis, Piskorski v. Poland (dec.) [Committee], no. 80959/17, §§ 43-46, 22 October 2019). If and when the proceedings result in a final conviction, the applicant will be free to lodge a fresh application with the Court in which to complain under Article 10 of the Convention of the resulting interference with his right to freedom of expression. There are no special circumstances capable of prompting the conclusion that the mere pendency of criminal proceedings against the applicant could, regardless of their outcome, be seen as interference with that right (compare and contrast Dilipak v. Turkey, no. 29680/05, §§ 48-51, 15 September 2015, and Ali Gürbüz v. Turkey, nos. 52497/08 and 6 others, §§ 64-69, 12 March 2019).
75. Inasmuch as the applicant’s detention in the context of that criminal case can be seen, in itself and independently of the criminal proceedings themselves, as interference with his right to freedom of expression (see Kandzhov v. Bulgaria, no. 68294/01, § 70, 6 November 2008; Nedim Şener v. Turkey, no. 38270/11, §§ 95-96, 8 July 2014; Şık v. Turkey, no. 53413/11, §§ 84-85, 8 July 2014; and Döner and Others v. Turkey, no. 29994/02, § 88, 7 March 2017), the question arises whether the remedies which the applicant had with respect to that detention – one of which has already been found effective with respect to his grievance under Article 5 § 3 of the Convention (see paragraphs 68 and 69 above) – could be seen as effective also for his grievance under Article 10 of the Convention.
76. The applicant’s detention went through four consecutive phases: (a) his initial detention in Stara Zagora and his transfer to Sofia, carried out by the police pursuant to the investigator’s order to bring him to Sofia (see paragraphs 9-11 above); (b) his detention under the police detention order issued after his arrival in Sofia (see paragraph 12 above); (c) his detention by order of the Specialised Prosecutor’s Office pending examination by the Specialised Criminal Court of the request to place him in pre-trial detention (see paragraph 13 above); and (d) his pre-trial detention (see paragraphs 14-20 above).
77. The first remedy cited by the Government – a claim for judicial review of police detention, coupled with a claim for damages – was available with respect to the applicant’s police detention (see paragraph 42 and point (b) of paragraph 76 above). There are at least two cases in which the Bulgarian administrative courts have, in such proceedings, considered arguments based on the right to freedom of speech; in one of those cases they even analysed relevant case-law of the Court in some detail (see paragraphs 43 and 44 above). There is no reason to accept that they would not have done so in the applicant’s case. The fact that in those earlier cases the claims were ultimately dismissed owing to the courts’ assessment of the proportionality of the interferences with the claimants’ right to freedom of expression does not necessarily mean that a similar claim by the applicant would have been devoid of any prospect of success. The courts’ rulings in those cases were narrowly circumscribed and turned on their own facts; they cannot be seen as a consistent line of adverse precedents precluding any possibility of success in the applicant’s case. It cannot be speculated how the courts would have assessed the circumstances of his case, which differed in several respects from those obtaining in those earlier cases.
78. The Bulgarian administrative courts were, however, prevented from dealing with the merits of the applicant’s claim and examining any such arguments, because he brought the claim outside the relevant time-limit (see paragraphs 28 and 30 above). Article 35 § 1 of the Convention normally requires observance of domestic procedural requirements and time-limits, and is considered not to be complied with when a legal challenge is not accepted for examination owing to a procedural mistake by the applicant (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 72 and 80, 25 March 2014; Papaioannou v. Cyprus (dec.), no. 15619/12, §§ 28-30, 15 September 2015; and Kunert v. Poland, no. 8981/14, §§ 42-43, 4 April 2019), such as a failure to meet a time-limit (see, for example, Ben Salah Adraqui and Dhaime v. Spain (dec.), no. 45023/98, ECHR 2000-IV; Alınak v. Turkey (dec.), no. 30514/96, 17 October 2000; and Peruš v. Slovenia, no. 35016/05, § 47, 27 September 2012). Moreover, the applicant did not raise in those proceedings any arguments relating to his right to freedom of expression (see paragraph 27 in fine above). To exhaust domestic remedies, an applicant cannot simply resort to a remedy capable of overturning the impugned measure on grounds unrelated to the complaint of a violation of a Convention right. It is the Convention complaint which must have been aired before the domestic authorities, at least in substance (see, among other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III; Vučković and Others, cited above, § 75; and Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 90, 23 June 2015).
79. The other remedy cited by the Government – a claim for damages under section 2(1)(1) and (1)(2) of the State and Municipalities Liability for Damage Act 1988 – was potentially available with respect to the three remaining periods of detention undergone by the applicant: his initial detention pursuant to the order of the investigator to bring him to Sofia, his prosecutor-ordered detention, and his pre-trial detention (see points (a), (c) and (d) of paragraph 76 above). By the terms of section 2(1), as amended in December 2012, damages can be sought under it in relation to any deprivation of liberty attributable to the investigating or prosecuting authorities or the courts (see paragraph 48 above), and the Bulgarian courts have already dealt with claims concerning prosecutor-ordered detention (see paragraph 49 above).
80. Although such proceedings are, as is evident from the wording of section 2(1)(1) and (1)(2), as amended in December 2012, normally geared to providing redress for breaches of Article 5 §§ 1 to 4 of the Convention, it cannot a priori be excluded that they could serve also as a remedy with respect to the applicant’s grievance under Article 10 of the Convention. In dealing with a claim under those provisions, the Bulgarian courts would in effect be required to assess whether it had been justified to deprive the applicant of liberty in relation to his attempting to burn the Bulgarian flag and urinating on it and publishing a video recording of those actions on the Internet. But this is also the gist of the applicant’s complaint under Article 10 of the Convention. In the light of the Bulgarian courts’ recent tendency, including in proceedings under the 1988 Act, to engage more broadly with arguments based on the Convention by reason of its being directly applicable in domestic law (see paragraph 52 above), it cannot automatically be presumed that in such proceedings they would treat arguments based on Article 10 of the Convention as irrelevant (contrast Kandzhov, cited above, § 49, which predated the domestic judgments cited in paragraph 52 above, and compare with Multigestion v. France (dec.), no. 59341/00, ECHR 2002-V (extracts), and Peacock v. the United Kingdom (dec.), no. 52335/12, § 37, 5 January 2016). The fact that there has so far been no such ruling does not in itself suggest that the possibility of having such arguments taken into account was merely illusory. Given the rather unusual nature of the applicant’s case, this lack of case-law could well be due to the scarcity of such claims. Nor can it be said with certainty that any such claim would be destined to fail.
81. In fact, in January 2020 the applicant appears to have brought such a claim for damages, raising, inter alia, arguments based on Article 10 of the Convention (see paragraph 31 above). The proceedings pursuant to that claim were stayed pending his compliance with the court’s instructions to clarify his statement of claim, and were, at the date of the latest information available to the Court, still under way (see paragraphs 32, 34 and 35 above). Even if those proceedings are discontinued for some reason, the applicant will remain free to pursue that remedy, since, as noted in paragraph 69 in fine above, the time-limit for doing so is five years.
82. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights (see, among other authorities, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010; Vučković and Others, cited above, § 69; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 83, 9 July 2015). If a complaint raised before the Court has not been put, either explicitly or in substance, to the national courts, when it could have been raised in the exercise of a remedy available to the applicant, the national legal system has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is meant to give it (see, among other authorities, Azinas, § 38, and Nicklinson and Lamb, § 90, both cited above).
83. In view of (a) the applicant’s failure to lodge a claim for judicial review of his police detention within the relevant time-limit and to raise in it arguments relating to his right to freedom of expression, and (b) the fact that he has so far not pursued to a conclusion a claim for damages under section 2(1)(1) and (1)(2) of the State and Municipalities Liability for Damage Act 1988, as amended in December 2012, the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
D. Complaint under Article 13 of the Convention
84. In his complaint that he had not had an effective remedy with regard to his complaint under Article 10 of the Convention, the applicant relied on Article 13 of the Convention, which 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.”
85. The Government submitted that Article 13 of the Convention did not apply, as the applicant’s claim under Article 10 was not arguable. In the alternative, they pointed out that the applicant had had effective remedies with respect to his freedom-of-expression grievance. They referred in this connection to their submissions on the exhaustion of domestic remedies with respect to Article 10 (see paragraph 72 above).
86. The applicant submitted that although Bulgarian law in principle provided him with remedies vis-à-vis his grievances, the national courts had refused to apply that law.
87. The Court already found that the applicant had at his disposal potentially effective domestic remedies with regard to his complaint under Article 10 of the Convention (see paragraphs 77-81 above). In view of the close affinity between Articles 35 § 1 and 13 of the Convention, that finding is equally valid in relation to the present complaint (see, mutatis mutandis, Peruš, cited above, § 48, and Valcheva and Abrashev v. Bulgaria (dec.), nos. 6194/11 and 34887/11, § 128, 18 June 2013).
88. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 October 2020.
Andrea Tamietti Faris Vehabović
Registrar President
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