In the case of Nikolova v. Bulgaria,
The European Court of Human Rights, sitting, in accordance with Article 27
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”), as amended by Protocol No. 11,
and the relevant provisions of the Rules of Court2, as a Grand Chamber
composed of the following judges:
Mr L. Wildhaber, President,
Mrs E. Palm,
Mr A. Pastor Ridruejo,
Mr L. Ferrari Bravo,
Mr G. Bonello,
Mr J. Makarczyk,
Mr P. Kuris,
Mrs V. Straznicka,
Mr P. Lorenzen,
Mr M. Fischbach,
Mr V. Butkevych,
Mr J. Casadevall,
Mr B. Zupancic,
Mrs H.S. Greve,
Mr A.B. Baka,
Mr R. Maruste,
Mrs S. Botoucharova,
and also of Mr M. de Salvia, Registrar,
Having deliberated in private on 17 December 1998 and on 25 February
and 5 March 1999,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
1. The case was referred to the Court, as established under
former Article 19 of the Convention3,
by the European Commission of Human Rights (“the Commission”) on 15 July
1998, within the three-month period laid down by former Articles 32 §
1 and 47 of the Convention. It originated in an application (no. 31195/96)
against the Republic of Bulgaria lodged with the Commission under former
Article 25 by a Bulgarian national, Mrs Ivanka Nikolova, on 6 February
1996.
The Commission’s request referred to former Articles 44 and 48 and to
the declaration whereby Bulgaria recognised the compulsory jurisdiction
of the Court (former Article 46). The object of the request was to obtain
a decision as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Article 5 §§ 3 and 4 of
the Convention.
2. In response to the enquiry made in accordance with Rule
33 § 3 (d) of former Rules of Court A,
the applicant stated that she wished to take part in the proceedings
and designated the lawyer who would represent her (former Rule 30).
3. As President of the Chamber which had originally been constituted
(former Article 43 of the Convention and former Rule 21) in order to
deal, in particular, with procedural matters that might arise before
the entry into force of Protocol No. 11, Mr R. Bernhardt, the President
of the Court at the time, acting through the Registrar, consulted the
Agent of the Bulgarian Government (“the Government”), the applicant’s
lawyer and the Delegate of the Commission on the organisation of the
written procedure.
4. After the entry into force of Protocol No. 11 on 1 November
1998 and in accordance with the provisions of Article 5 § 5 thereof,
the case was referred to the Grand Chamber of the Court. The Grand Chamber
included ex officio Mrs S. Botoucharova, the judge
elected in respect of Bulgaria (Article 27 § 2 of the Convention
and Rule 24 § 4 of the Rules of Court), Mr L. Wildhaber, the
President of the Court, Mrs E. Palm, Vice-President of the Court, and
Mr J.-P. Costa and Mr M. Fischbach, Vice-Presidents
of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5
(a)). The other members appointed to complete the Grand Chamber were
Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P.
Kuris, Mr R. Turmen, Mrs V. Straznicka, Mr P. Lorenzen, Mr
V. Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka
and Mr R. Maruste (Rule 24 § 3 and Rule 100 § 4). Subsequently Mr B. Zupancic
and Mr L. Ferrari Bravo, substitute judges, replaced Mr Costa
and Mr Turmen who were unable to take part in the further consideration
of the case (Rule 24 § 5 (b)).
5. The applicant’s lawyer was given leave by the President
to use the Bulgarian language (Rule 34 § 3). Pursuant to the order made
on 31 August 1998, the Registrar received the Government’s
and the applicant’s memorials on 30 November 1998.
6. At the Court’s invitation (Rule 99), the Commission delegated
one of its members, Mrs M. Hion, to take part in the proceedings before
the Grand Chamber.
7. In accordance with the President’s decision, a hearing
took place in public in the Human Rights Building, Strasbourg, on 17
December 1998.
There appeared before the Court:
(a) for the Government
Mrs V. Djidjeva, Ministry of Justice, Agent;
(b) for the applicant
Mr M. Ekimdjiev, Lawyer, Counsel,
Mr Y. Grozev, Lawyer, Adviser;
(c) for the Commission
Mrs M. Hion, Delegate.
The Court heard addresses by Mrs Hion, Mr Ekimdjiev and Mrs Djidjeva.
THE FACTS
I. the circumstances of the case
8. The applicant, Mrs Ivanka Nikolova, is a Bulgarian national
born in 1943 and residing in Plovdiv.
A. The applicant’s detention on remand
9. The applicant used to work as a cashier and accountant
in a State-owned enterprise.
An audit undertaken in the enterprise at the beginning of 1995 revealed
a cash deficit of 1,290,059 levs.
In February 1995 the applicant was given a copy of the final act of the
audit, which contained the auditors’ opinion that, inter alia,
she had made deliberately false entries in the accounting books and had
thus misappropriated funds.
10. On 15 March 1995 criminal proceedings were brought against
the applicant. In the following months the investigator (ñëåäîâàòåë),
Mr S., questioned her in the framework of these proceedings.
11. On 24 October 1995 the applicant was arrested and charged
under Article 203 § 1 in conjunction with Article 201 of the Criminal
Code (Íàêàçàòåëåí êîäåêñ) with misappropriation of funds in large amounts.
12. On 24 October 1995 investigator S. heard the applicant
in the presence of her lawyer and decided to detain her on remand. On
the same day, without having heard the applicant, a prosecutor from the
Regional Prosecutor’s Office (Îêðúæíà ïðîêóðàòóðà) in Plovdiv confirmed
the investigator’s decision to detain her.
13. On 6 November 1995 the applicant appealed against her
detention to the Chief Public Prosecutor’s Office (Ãëàâíà ïðîêóðàòóðà).
In accordance with the established practice the applicant’s lawyer lodged
the appeal with the Regional Prosecutor’s Office. He stated that the
applicant had not attempted to abscond or to obstruct the investigation
during the six months since she had become aware of the criminal charges
against her; that she was no longer working as a cashier or accountant
and could not, therefore, commit other crimes; and that the applicant
had undergone gynaecological surgery and had still not recovered completely.
14. On 9 November 1995, before transmitting the appeal to
the Chief Public Prosecutor’s Office, a prosecutor of the Regional Prosecutor’s
Office confirmed the decision to detain the applicant on remand. The
prosecutor found that the applicant was charged with a serious crime
punishable by more than ten years’ imprisonment and that “therefore,
the [detention on remand] [was] lawful: it [was] based on the imperative
provision of Article 152 § 1 of the Code of Criminal Procedure (Íàêàçàòåëíî
ïðîöåñóàëåí êîäåêñ)” (see paragraph 30 below). The prosecutor further
stated that the question whether or not Article 152 § 2 of the Code should
be applied was to be assessed by the investigator and by the supervising
prosecutor. In the applicant’s case the investigator and the supervising
prosecutor had not applied Article 152 § 2 of the Code “in view
of the current stage of the proceedings”. It followed that the applicant’s
detention was lawful.
15. By decision dated 15 December 1995 and registered on 28 December
1995 the Chief Public Prosecutor’s Office dismissed the applicant’s request
for release. A further appeal against her detention on remand was dismissed
by the Chief Public Prosecutor’s Office by a letter of 12 January 1996.
B. Judicial appeal against detention
16. On 14 November 1995 the applicant appealed to the Plovdiv
Regional Court (Îêðúæåí ñúä) against her detention on remand. In his
written submissions to the Court the applicant’s lawyer stated, inter
alia, that the decision to detain the applicant on remand had been
based solely on the gravity of the charges against her whereas other
important factors had not been taken into account. Thus, the applicant
had a permanent address where she lived with her husband and two daughters.
Also, the applicant had known about the criminal charges against her
for more than six months prior to her arrest but had made no attempt
to abscond or obstruct the investigation. Furthermore, the evidence against
the applicant was weak, it having been established that six other persons
had been in possession of a key to the cashier’s office. The prosecutor
had blindly followed the conclusions of the auditors who had pointed
to the applicant on the sole ground that she had been the person in charge.
However, there was nothing to show that the applicant had been the author
of the false entries in the accounting books. The applicant’s lawyer
also invoked his client’s medical condition and enclosed medical certificates.
17. In accordance with the established practice the applicant’s
lawyer lodged his appeal and submissions through the Regional Prosecutor’s
Office.
18. On 4 December 1995 the Regional Prosecutor’s Office transmitted
the appeal together with the investigator’s file to the Regional Court.
The covering letter, prepared by the prosecutor, stated, inter alia:
“I consider that the appeal should be dismissed and that the detention
on remand should be confirmed as being lawful. The charges concern a
serious wilful crime within the meaning of Article 93 § 7 of the Criminal
Code and, [therefore], in accordance with Article 152 § 1 of the Code
of Criminal Procedure, the imposition of detention is obligatory.
The present case does not fall under Article 152 § 2 of the Code of Criminal
Procedure: [it] does not involve a situation where the accused has no
possibility of absconding or reoffending, as required by the Supreme
Court’s practice [follows a reference to the Supreme Court’s practice
– see paragraph 31 below].”
19. On 11 December 1995 the court examined the case in camera,
without the participation of the parties, and dismissed the appeal. The
court stated, inter alia:
“[The charges against the applicant] concern a serious crime within the
meaning of Article 93 § 7 of the Criminal Code, that is, a crime
under Article 203 of the Criminal Code, punishable by ten or more years’
imprisonment. In this respect there exists the requirement, under Article
152 § 1 of the Code of Criminal Procedure, that detention on remand shall
be imposed.
... [The medical certificates submitted by the applicant] reflect her
state of health during a past period of time. No information concerning
her current state of health has been submitted. It follows that currently
there exist no circumstances requiring the modification of the measure
‘detention on remand’ imposed on the [applicant]. Therefore the appeal
is ill-founded and must be dismissed.”
C. Termination of the applicant’s detention on remand
20. On 19 January 1996 the applicant was examined by three
medical experts who had been asked by the investigator in her case to
establish, inter alia, whether the conditions of detention were
dangerous for her health. In a report of the same date the experts found
that the problems related to the surgery which she had undergone more
than a year ago did not affect her condition, and that she could remain
in detention.
21. On 5 February 1996 the applicant was urgently transferred
to hospital due to pain in her gall bladder. On the same day she underwent
surgery.
22. On 15 February 1996 the investigator in the applicant’s
case appointed another group of medical experts to examine the applicant.
The experts found that the applicant needed a convalescence period which
was incompatible with the conditions in detention.
23. On 19 February 1996 the applicant’s detention on remand
was discontinued in view of her health problems by an order of the Regional
Prosecutor’s Office. The applicant was put under house arrest.
24. In June 1996 the investigator concluded his work on the
case and sent the file to the Regional Prosecutor’s Office with a proposal
to submit an indictment in court. On an unspecified date the competent
prosecutor returned the case to the investigator for further clarifications.
II. relevant domestic law and practice
A. The prosecuting authorities
25. According to the relevant provisions of the Code of Criminal
Procedure and to legal theory and practice, the prosecutor performs a
dual function in criminal proceedings.
During the preliminary stage he supervises the investigation. He is competent,
inter alia, to give mandatory instructions to the investigator;
to participate in examinations, searches or any other acts of investigation;
to withdraw a case from one investigator and assign it to another, or
to carry out the entire investigation, or parts of it, himself. He may
also decide whether or not to terminate the proceedings, order additional
investigations, or prepare an indictment and submit the case to court.
At the judicial stage he is entrusted with the task of prosecuting the
accused.
26. The investigator has a certain independence from the prosecutor
in respect of his working methods and particular acts of investigation,
but performs his functions under the latter’s instructions and supervision
(Articles 48 § 2 and 201 of the Code of Criminal Procedure). If an investigator
objects to the prosecutor’s instructions, he may apply to the higher
prosecutor, whose decision is final and binding.
27. Under Article 86 of the Code of Criminal Procedure,
the prosecutor and the investigator are under an obligation to collect
both incriminating and exonerating evidence. Throughout criminal proceedings,
the prosecutor must “effect a supervisory control of lawfulness” (Article 43
of the Code).
B. Provisions on detention on remand
1. Power to detain on remand
28. An accused can be detained on remand by decision of an
investigator or prosecutor. In cases where the decision to detain has
been taken by an investigator without the prior consent of a prosecutor,
it must be approved by a prosecutor within twenty-four hours. The prosecutor
usually makes this decision on the basis of the file, without hearing
the accused (Code of Criminal Procedure, Articles 152, 172, 201-03
and 377-78).
29. There is no legal obstacle preventing the prosecutor who
has taken the decision to detain an accused on remand, or who has approved
an investigator’s decision, from acting for the prosecution against the
accused in any subsequent criminal proceedings. In practice this frequently
occurs.
The Supreme Court has found that a former investigator who was appointed
prosecutor may represent the prosecution at the trial of the same accused
person on whose case he had been working as an investigator. As both
the investigator and the prosecutor performed investigative functions
there was no legal obstacle (ðåø. îò 9.5.1995 ïî í.ä. No. 125/95 íà ÂÑ
II í.î., áþë. êí. 5/96, ñòð. 7).
2. Legal criteria for detention on remand
30. Article 152 §§ 1 and 2 provides as follows:
“(1) Detention on remand shall be imposed [in cases where
the charges concern] a serious wilful crime.
(2) In the cases under the preceding paragraph [detention
on remand] may not be imposed if there is no danger of the accused absconding,
obstructing justice or reoffending.”
“(1) Ìÿðêà çà íåîòêëîíåíèå çàäúðæàíå ïîä ñòðàæà ñå âçåìà çà
òåæêî óìèøëåíî ïðåñòúïëåíèå.
(2)  ñëó÷àèòå ïî àë. 1 ìÿðêàòà çà íåîòêëîíåíèå ìîæå äà íå
ñå âçåìå, àêî íÿìà îïàñíîñò îáâèíÿåìèÿò äà ñå óêðèå, äà îñóåòè ðàçêðèâàíåòî
íà îáåêòèâíàòà èñòèíà èëè äà èçâúðøè äðóãî ïðåñòúïëåíèå.”
According to Article 93 § 7 of the Criminal Code a crime is “serious”
if it is punishable by more than five years’ imprisonment.
31. According to the Supreme Court’s practice Article 152
§ 1 of the Code of Criminal Procedure requires that a person charged
with a “serious wilful crime” shall be detained on remand. The only exception
is provided for under Article 152 § 2 of the Code, which empowers the
prosecutor not to detain an accused where it is clear, beyond doubt,
that there is no danger of absconding or reoffending. Such danger must
be objectively excluded as, for example, in the case of an accused who
is seriously ill, or aged, or who is detained on other grounds such as
serving a sentence (îïðåä. No. 1 îò 4.5.1992 ïî í.ä. 1/92 íà ÂÑ II í.î.,
Ñá. 1992/93, ñòð. 172; îïðåä. No. 4 îò 21.2.1995 ïî í.ä. 76/95 íà ÂÑ
II í.î.; îïðåä. No. 78 îò 6.11.1995 ïî í.ä. 768/95 íà ÂÑ II í.î.; îïðåä.
No. 24 ïî í.ä. 268/95 íà ÂÑ, I í.î., Ñá. 1995, ñòð. 149).
32. In some more recent decisions the Supreme Court has nevertheless
embarked on analysis of the particular facts to justify findings that
there existed a danger of absconding or reoffending (îïðåä. No. 76 îò
25.7.1997 ïî í.ä. No. 507/97 íà ÂÑ II í.î., áþë. êí. 9-10/97, ñòð. 5;
îïðåä. No. 107 îò 27.5.1998 ïî í.ä. 257/98 íà ÂÑ II í.î., áþë. êí. 3-4/98,
ñòð. 12).
3. Judicial review of detention on remand
33. Article 152 § 5 of the Code of Criminal Procedure, as
in force at the relevant time, provided as follows:
“The detained person shall be provided immediately with a possibility
of filing an appeal before the competent court against the [imposition
of detention]. The court shall rule within a time-limit of three days
from the filing of the appeal by means of a final decision.”
“Íà çàäúðæàíèÿ ñå îñèãóðÿâà íåçàáàâíî âúçìîæíîñò äà îáæàëâà ìÿðêàòà çà
íåîòêëîíåíèå ïðåä ñúîòâåòíèÿ ñúä. Ñúäúò ñå ïðîèçíàñÿ â òðèäíåâåí ñðîê
îò ïîäàâàíåòî íà æàëáàòà ñ îïðåäåëåíèå, êîåòî å îêîí÷àòåëíî.”
34. The First Criminal Division of the Supreme Court has held
that, in deciding on appeals against detention on remand, it is not open
to the court to inquire whether there exists sufficient evidence supporting
the charges against the detainee, but only to examine the lawfulness
of the detention order (îïðåä. No. 24 îò 23.5.1995 ïî í.ä. 268/95, I
í.î. íà ÂÑ, Ñá. 1995, ñòð. 149).
35. According to the practice at the relevant time, the court
examined appeals against detention on remand in camera, without the participation
of the parties. If the appeal was dismissed, the court did not notify
the detained person of the decision taken. An amendment of the Code of
Criminal Procedure of August 1997 introduced the requirement that appeals
against detention on remand be examined at a hearing with the participation
of the detainee.
36. In a decision of 17 September 1992 the First Criminal
Division of the Supreme Court found that the imposition of detention
on remand could be contested before a court only once (îïðåä. No. 94
ïî í.÷.õ.ä. 754/92, I í.î. íà ÂÑ, Ñá. 1992-93, ñòð. 173). Until the amendment
of the Code of Criminal Procedure in August 1997 periodic judicial review
of the lawfulness of detention on remand was only possible at the trial
stage, when the criminal case was pending before a court.
PROCEEDINGS BEFORE THE COMMISSION
37. Mrs Nikolova applied to the Commission on 6 February 1996.
In her application (no. 31195/96) she alleged that there had been violations
of Articles 5, 6 and 13 of the Convention in respect of her arrest and
detention on remand and her appeal against detention; that there had
been violations of Article 6 of the Convention in respect of the conduct
of the criminal proceedings against her; and that there had been a violation
of former Article 25 of the Convention in that she had been refused copies
of documents to be presented to the Commission.
38. On 2 July 1997 the Commission (First Chamber) declared
admissible the applicant’s complaints under Articles 5, 6 and 13 concerning
her arrest and detention and the examination of her appeal against detention.
The remainder of the application had been declared inadmissible by a
partial decision of 27 February 1997. In its report of 20 May 1998 (former
Article 31 of the Convention), the Commission expressed the unanimous
opinion that there had been a violation of Article 5 § 3 and, having
found that the complaints raised under Articles 5, 6 and 13 concerning
the applicant’s appeal against her detention fell to be examined under
Article 5 § 4, expressed the unanimous opinion that there had been a
violation of this latter provision. The full text of the Commission’s
opinion is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
39. In their memorial the Government asked the Court to “reject
as unsubstantiated the facts invoked in the application and in the report
of the Commission and to conclude, on the basis of the facts, that there
has been no violation of Article 5 §§ 3 and 4 of the Convention”.
40. In her memorial the applicant asked the Court to “accept
as proven and justified” her complaints under Article 5 §§ 3 and 4 and
under Article 13 and to award her just satisfaction.
THE LAW
I. The GOVERNMENT’S PRELIMINARY OBJECTION
41. At the hearing before the Court the Government contended
that the applicant had not exhausted all domestic remedies. In particular,
the decisions of the Chief Public Prosecutor’s Office of 28 December
1995 and 12 January 1996 confirming the refusal of the Regional Prosecutor’s
Office to release the applicant were subject to appeal to the Deputy
Chief Public
Prosecutor and to the Chief Public Prosecutor. In their memorial the
Government also stated that the applicant could have brought a civil
action for damages under the Law on Obligations and Contracts (Çàêîí
çà çàäúëæåíèÿòà è äîãîâîðèòå) and under the Law on State Responsibility
for Damage to Individuals (Çàêîí çà îòãîâîðíîñòòà íà äúðæàâàòà çà âðåäè
ïðè÷èíåíè íà ãðàæäàíè). The Government explained that they had not raised
these objections prior to the Commission’s final admissibility decision
of 2 July 1997 as between February and May 1997 Bulgaria had had an interim
government. When, later, they had been invited by the Commission to submit
observations on the merits, the Government had not expressed their doubts
as to the admissibility of the complaints “in view of the advanced stage
of the proceedings”.
42. Referring to the case of Assenov and Others v. Bulgaria
(judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII),
the applicant submitted that the possibility to appeal to all levels
of the prosecution authorities could not provide a remedy for the alleged
violations of Article 5 §§ 3 and 4 of the Convention. She also described
as inapplicable the civil remedies suggested by the Government.
43. The Commission noted that the Government had had ample
opportunity to raise their preliminary objection before the Commission
but had failed to do so. Moreover, the appeals and civil actions referred
to by the Government did not offer effective remedies whose exhaustion
could be required under Article 35 § 1 of the Convention.
44. The Court observes that the Government’s objection was
not raised, as it could have been, when the admissibility of the application
was being considered by the Commission. There is therefore estoppel (see,
among other authorities, the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII,
p. 2546, § 44).
II. Alleged violation of ARTICLE 5 § 3 OF THE CONVENTION
45. Mrs Nikolova alleged a breach of Article 5 § 3 of the
Convention, the relevant part of which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph
1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power …”
46. The applicant complained that after her arrest on 24 October
1995 she had not been brought before a judge or other officer authorised
by law to exercise judicial power. She referred to the case of Assenov
and Others (cited above), where the Court had found that Bulgarian prosecutors
and investigators could not be regarded as officers exercising judicial
power within the meaning of Article 5 § 3 of the Convention.
The applicant stated that the investigator before whom she had been brought
had not been, as a matter of domestic law, sufficiently independent from
the prosecutor. The applicant had not been brought before a prosecutor.
In any event, under Bulgarian law prosecutors combined incompatible functions
and did not therefore satisfy the impartiality requirements of Article
5 § 3 of the Convention.
47. In their memorial the Government stated that in the Bulgarian
legal system the prosecutor was the officer required by Article 5 § 3
of the Convention and that this provision was satisfied by the fact that
detention on remand could only be imposed with the approval of the prosecutor.
At the hearing before the Court the Government accepted that in the light
of the Assenov and Others judgment (cited above) the current Bulgarian
legislation could not be regarded as being in conformity with the Convention.
The Government further informed the Court that a group of legal experts
was currently elaborating a draft amendment to the Code of Criminal Procedure
which would introduce full judicial control in respect of any measure
affecting the individual’s rights during the preliminary-investigation
stage of criminal proceedings.
48. The Commission found that the applicant’s complaint under
Article 5 § 3 was identical to that in the case of Assenov and Others
and accordingly invited the Court to find a violation.
49. The Court recalls that the role of the officer referred
to in Article 5 § 3 is to review the circumstances militating for and
against detention and to decide, by reference to legal criteria, whether
there are reasons to justify detention and to order release if there
are no such reasons. Before an “officer” can be said to exercise “judicial
power” within the meaning of this provision, he or she must satisfy certain
conditions providing a guarantee to the person detained against any arbitrary
or unjustified deprivation of liberty (see the Schiesser v. Switzerland
judgment of 4 December 1979, Series A no. 34, pp. 13-14,
§ 31).
Thus, the “officer” must be independent of the executive and of the parties.
In this respect, objective appearances at the time of the decision on
detention are material: if it appears at that time that the “officer”
may later intervene in subsequent criminal proceedings on behalf of the
prosecuting authority, his independence and impartiality are capable
of appearing open to doubt (see the Huber v. Switzerland judgment of
23 October 1990, Series A no. 188, p. 18, § 43, and
the Brincat v. Italy judgment of 26 November 1992, Series A
no. 249-A, p. 12, § 21). The “officer” must hear the individual
brought before him in person and review, by reference to legal criteria,
whether or not the detention is justified. If it is not so justified,
the “officer” must have the power to make a binding order for the detainee’s
release (see the above-mentioned Schiesser judgment, pp. 13-14,
§ 31, and the Ireland v. the United Kingdom judgment of 18 January
1978, Series A no. 25, pp. 75-76, § 199).
50. The Court further recalls its Assenov and Others v. Bulgaria
judgment where it found, inter alia, that neither the investigator
before whom Mr Assenov had been brought, nor the prosecutor who had approved
the detention order, could be considered to be “officer[s] authorised
by law to exercise judicial power” within the meaning of Article 5 §
3 of the Convention (see the Assenov and Others judgment cited above,
pp. 2298?99, §§ 144-50).
51. The facts of the present case disclose no material difference.
Following her arrest on 24 October 1995 the applicant was brought before
an investigator who did not have power to make a binding decision as
to her detention and was not procedurally independent from the prosecutor.
Moreover, there was no legal obstacle to his acting as a prosecutor at
the applicant’s trial (see paragraphs 11, 12, 25-29 above). The investigator
could not therefore be regarded as an “officer authorised by law to exercise
judicial power” within the meaning of Article 5 § 3 of the Convention.
The applicant was not heard by a prosecutor. In any event the prosecutor,
who could act subsequently as a party to the criminal proceedings against
Mrs Nikolova (see paragraph 29 above), was not sufficiently independent
and impartial for the purposes of Article 5 § 3.
52. The Court notes the information provided by the Government
about future legislative amendments which are envisaged with a view to
bringing the Bulgarian Code of Criminal Procedure into line with the
Convention. However, the Court’s task is to assess the actual circumstances
of the applicant’s case.
53. The Court concludes therefore that there has been a violation
of Article 5 § 3 of the Convention.
III. alleged violation of ARTICLE 5 § 4 OF THE CONVENTION
54. The applicant also asserted that Article 5 § 4 of the
Convention had been violated on account of the alleged formal character
of the judicial review of her detention, the inadequate procedure and
the impossibility to obtain a periodic control of lawfulness. Article
5 § 4 of the Convention provides:
“Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention
is not lawful.”
A. Arguments before the Court
55. The applicant submitted that the Regional Court had followed
a purely formal approach. No consideration was given to her serious arguments
that there did not exist a danger of her absconding, reoffending or obstructing
justice. In the applicant’s submission this approach reflected the established
case-law of the Supreme Court, according to which the courts only verify
whether the detained person is charged with a “serious wilful crime”
within the meaning of the Criminal Code. As a result, the reasonableness
of prosecutors’ decisions to detain on remand is not subject to judicial
control. The bringing of charges and their legal qualification being
within the competence of the investigator and the prosecutor, it was
evident that the judicial control of lawfulness of detention on remand
in its present form in Bulgaria is nothing more than a rubber-stamping
process.
The applicant further submitted that she had been deprived of any participation
in the examination by the Regional Court of her appeal against detention.
Thus, she did not have access to the case file of the preliminary investigation,
she was not informed of the registration number of her case before the
Regional Court or of the date of its examination, and could not submit
additional observations or evidence between 14 November 1995, when she
lodged her appeal, and 11 December 1995, when the court decided in camera.
Finally, the parties to the habeas corpus proceedings were not treated
equally. The prosecutor had full access to the case file and submitted
to the court written comments to which the applicant was unable to reply.
56. The Government submitted that the applicant had not been
deprived of her right to appeal against her detention on remand. She
had made use of the possibility of submitting requests for release to
the prosecution authorities and also to appeal to a court. In its decision
of 11 December 1995 the Plovdiv Regional Court referred to the fact that
the applicant had been charged with a “serious wilful crime”, which was
a relevant consideration in the assessment of the existence of a danger
of absconding. Also, the fact that the charges against the applicant
concerned a persistent criminal activity (between 1992 and 1994) was
a sufficient basis for the Regional Court to conclude that there was
a danger of obstructing justice. Furthermore, the Regional Court had
examined the medical certificates presented by the applicant and displayed
diligence in the exercise of its powers to review the lawfulness of her
detention.
The Government further contended that according to the law as in force
at the relevant time the Regional Court was not required to hold a hearing.
However, the law provides for a hearing since the amendment of the Code
of Criminal Procedure in August 1997. The Government also stated that
the applicant could, and had indeed done so, enclose with her appeal
all documents or other evidence which she deemed important. She could
not, however, consult the investigation file before its completion. As
to the registration number of the case before the Regional Court, it
was for the applicant’s lawyer to inquire about it.
57. The Commission noted that according to the relevant law
and practice the Regional Court had no power to inquire whether or not
there existed a reasonable suspicion against the applicant. The Commission
also noted that due to the shift of the burden of proof under Article
152 §§ 1 and 2 of the Code of Criminal Procedure the Regional Court had
tended to limit its examination of the applicant’s appeal to a simple
verification of whether or not the charges preferred against her could
be qualified as an accusation concerning a “serious wilful crime” and
that issues central to the lawfulness of her detention, such as whether
or not there existed a danger of absconding or reoffending, had not been
examined. The Commission concluded that the scope and the nature of the
control exercised by the Regional Court did not satisfy the requirements
of Article 5 § 4 of the Convention.
The Commission also considered that the principle of equality of arms
had not been respected in the proceedings before the Regional Court,
in that the Court had examined the case in camera after receiving the
prosecutor’s comments which had not been communicated to the applicant
and in that the applicant had been unable to consult the case file or
to submit additional evidence. Finally, the Commission considered that
the possibilities of applying for release to all levels of the prosecution
authorities did not provide the remedy required by Article 5 § 4 of the
Convention.
B. The Court’s assessment
58. The Court recalls that arrested or detained persons are
entitled to a review bearing upon the procedural and substantive conditions
which are essential for the “lawfulness”, in the sense of the Convention,
of their deprivation of liberty. This means that the competent court
has to examine “not only compliance with the procedural requirements
set out in [domestic law] but also the reasonableness of the suspicion
grounding the arrest and the legitimacy of the purpose pursued by the
arrest and the ensuing detention” (see the Brogan and Others v.
the United Kingdom judgment of 29 November 1988, Series A no. 145-B,
pp. 34-35, § 65).
A court examining an appeal against detention must provide guarantees
of a judicial procedure. The proceedings must be adversarial and must
always ensure “equality of arms” between the parties, the prosecutor
and the detained person (see the Sanchez-Reisse v. Switzerland judgment
of 21 October 1986, Series A no. 107, p. 19, § 51; the Toth
v. Austria judgment of 12 December 1991, Series A no. 224, p. 23,
§ 84; and the Kampanis v. Greece judgment of 13 July 1995, Series
A no. 318-B, p. 45, § 47). Equality of arms is not ensured if counsel
is denied access to those documents in the investigation file which are
essential in order effectively to challenge the lawfulness of his client’s
detention (see the Lamy v. Belgium judgment of 30 March 1989, Series
A no. 151, pp. 16-17, § 29). In the case of a person whose detention
falls within the ambit of Article 5 § 1 (c), a hearing is required
(see the Assenov and Others judgment cited above, p. 3302, § 162).
59. Turning to the facts of the present case the Court notes
that, according to Article 152 §§ 1 and 2 of the Code of Criminal Procedure
and the Supreme Court’s practice at the relevant time, a person charged
with a “serious wilful crime” was detained on remand unless he or she
demonstrated beyond doubt, the burden of proof being borne by him or
her, that there did not exist even a hypothetical danger of absconding,
re-offending or obstructing justice. The presumption that such danger
existed could be overturned only in exceptional circumstances, such as
where the detained person was immobilised by illness (see paragraph 31
above). In the applicant’s submission the above approach, which is rooted
in the wording of Article 152 §§ 1 and 2 of the Code of Criminal Procedure,
continues to be the practice of the Bulgarian courts despite some recent
Supreme Court decisions (see paragraphs 32 and 55 above).
The Court further observes that, according to the Supreme Court’s case-law,
it is not for the judge examining an appeal against detention on remand
to inquire whether or not the charges are supported by sufficient evidence.
That question, and apparently the legal characterisation of the charges,
are within the competence of the prosecutor (see paragraph 34 above).
60. The Court reiterates that its task is not to rule on legislation in
abstracto and it does not therefore express a view as to the general
compatibility of the above provisions and practice with the Convention
(see, mutatis mutandis, the Silver and Others v. the United
Kingdom judgment of 25 March 1983, Series A no. 61, p. 31, § 79).
The Court must examine whether the practical implementation of these
provisions and case-law in the applicant’s case gave rise to a violation
of the Convention, as alleged by her.
61. The Plovdiv Regional Court when examining the applicant’s
appeal against her detention on remand apparently followed the case-law
of the Supreme Court at that time and thus limited its consideration
of the case to a verification of whether the investigator and the prosecutor
had charged the applicant with a “serious wilful crime” within the meaning
of the Criminal Code and whether her medical condition required release
(see paragraphs 19 and 30-31 above).
In her appeal of 14 November 1995, however, the applicant had advanced
substantial arguments questioning the soundness of the charges against
her and the grounds for her detention. She had referred to concrete facts,
such as that she had not attempted to abscond or obstruct the investigation
during the months since she had become aware of the criminal proceedings
against her, and that she had a family and a stable way of life. The
applicant had also asserted that the evidence against her was weak as
the charges were based only on the auditors’ report. In her submission
there was nothing to support the accusation that she, and not any of
the other six persons in possession of keys to the cashier’s office,
had actually misappropriated the missing funds. In its decision of 11
December 1995 the Regional Court devoted no consideration to any of these
arguments, apparently treating them as irrelevant to the question of
the lawfulness of the applicant’s detention on remand (see paragraphs
16 and 19 above).
While Article 5 § 4 of the Convention does not impose an obligation on
a judge examining an appeal against detention to address every argument
contained in the appellant’s submissions, its guarantees would be deprived
of their substance if the judge, relying on domestic law and practice,
could treat as irrelevant, or disregard, concrete facts invoked by the
detainee and capable of putting in doubt the existence of the conditions
essential for the “lawfulness”, in the sense of the Convention, of the
deprivation of liberty. The submissions of the applicant in her appeal
of 14 November 1995 contained such concrete facts and did not appear
implausible or frivolous. By not taking these submissions into account
the Regional Court failed to provide the judicial review of the scope
and nature required by Article 5 § 4 of the Convention.
62. The Court notes further that the Regional Court examined
the case in camera in accordance with the law at the relevant time
(see paragraphs 19 and 35 above). The Court observes that since
August 1997 the law requires the holding of a hearing, but it has to
restrict its assessment to the actual circumstances of the applicant’s
case (see the Assenov and Others judgment cited above, p. 3302, § 163).
63. Furthermore, the Plovdiv Regional Court gave its ruling
after receiving the prosecutor’s written comments inviting it to dismiss
the
appeal. The applicant was not allowed to reply to these comments and
apparently was not able to consult any of the documents in the investigation
file in order to challenge the reasons for her detention (see paragraphs
17-19, 55 and 56 in fine above). The proceedings were therefore
not truly adversarial and did not ensure equality of arms between the
parties.
64. Lastly the Court, like the Commission, sees no merit in
the Government’s argument that the applicant had the possibility of requesting
release from all levels of the prosecution authorities. This procedural
possibility was not capable of providing the judicial remedy guaranteed
by Article 5 § 4 of the Convention.
65. The applicant also complained of the impossibility, according
to the domestic law then in force, to obtain a periodic judicial review
of the lawfulness of her detention. Having found that the scope and nature
of the judicial review afforded to the applicant by the Plovdiv Regional
Court, and the attendant procedure, did not satisfy the requirements
of Article 5 § 4 of the Convention, the Court does not deem it necessary
to inquire whether the same deficient judicial review should have been
accessible to her periodically.
66. There has therefore been a violation of Article 5 § 4
of the Convention.
IV. alleged violation of ARTICLE 13 OF THE CONVENTION
67. The applicant asserted that the impossibility of obtaining
any redress for the violation of her rights under Article 5 §§ 3 and
4 of the Convention gave rise to a violation of Article 13, which reads
as follows:
“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.”
68. The Government did not comment. The Delegate of the Commission
stated that this complaint was subsumed under the issues examined in
the light of Article 5 § 4 of the Convention and that it was therefore
not necessary to deal with it separately.
69. According to the Court’s established case-law Article
5 § 4 of the Convention constitutes a lex specialis in relation
to the more general requirements of Article 13. In the present case the
facts underlying the applicant’s complaint under Article 13 of the Convention
are the same as those examined under Article 5 § 4. Accordingly, the
Court need not examine the allegation of a violation of Article 13 in
view of its finding of a
violation of Article 5 § 4 (see the Chahal v. the United Kingdom judgment
of 15 November 1996, Reports 1996-V, p. 1865, § 126, and p.
1870, § 146).
V. application of article 41 of the Convention
70. Under Article 41 of the Convention,
“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. Pecuniary damage
71. The applicant claimed 1,274 US dollars (USD), including
300,000 levs (BGL) which she had paid in 1998 to be released on bail
from house arrest and USD 1,093 in lost earnings during the period of
detention.
72. The Government stated that the applicant’s claims were
ill-founded. The Delegate of the Commission expressed doubts as to whether
the applicant had suffered any pecuniary damage.
73. The Court fails to see any causal link between the violations
of Article 5 §§ 3 and 4 of the Convention and the sums claimed by the
applicant and accordingly dismisses her claims under this head (see,
as a recent authority, the Demir and Others v. Turkey judgment of 23 September 1998, Reports 1998-VI,
p. 2660, § 63).
B. Non-pecuniary damage
74. The applicant claimed USD 15,000 in respect of the violations
of Article 5 of the Convention and USD 5,000 in respect of the alleged
violation of Article 13.
75. The Government submitted that the claims were excessive
and referred to the Assenov and Others judgment where the Court awarded
approximately the equivalent of USD 3,500. The Government insisted that
the standard of living and the average income in Bulgaria, where a District
Court judge earns the equivalent of about USD 140 per month, should be
borne in mind. The Delegate of the Commission considered that the finding
of a violation could not constitute sufficient just satisfaction and
invited the Court to award an equitable amount.
76. The Court recalls that in certain cases which concerned
violations of Article 5 §§ 3 and 4 it has granted claims for relatively
small amounts in respect of non-pecuniary damage (see the Van Droogenbroeck
v. Belgium judgment of 25 April 1983 (Article 50), Series
A no. 63, p. 7, § 13, and the De Jong, Baljet and Van den Brink v. the
Netherlands judgment of 22 May 1984, Series A no. 77, p. 29,
§ 65). However, in more recent cases concerning violations of either
or both paragraphs 3 and 4 of Article 5, the Court has declined to accept
such claims (see the Pauwels v. Belgium judgment of 26 May 1988,
Series A no. 135, p. 20, § 46; the Brogan and Others v. the United Kingdom
judgment of 30 May 1989 (Article 50), Series A no. 152-B,
pp. 44-45, § 9; the Huber judgment cited above, p. 19, § 46;
the Toth judgment cited above., p. 24, § 91; the Kampanis judgment
cited above, p. 49, § 66; and Hood v. the United Kingdom [GC],
no. 27267/95, §§ 84-87, ECHR 1999-I). In some of these judgments
the Court noted that just satisfaction can be awarded only in respect
of damage resulting from a deprivation of liberty that the applicant
would not have suffered if he or she had had the benefit of the guarantees
of Article 5 § 3 and concluded, according to the circumstances, that
the finding of a violation constituted sufficient just satisfaction in
respect of any non-pecuniary damage suffered.
In the present case the Court sees no reason to depart from the above
case-law. The Court cannot speculate as to whether or not the applicant
would have been detained if there had been no violation of the Convention.
As to the alleged frustration suffered by her on account of the absence
of adequate procedural guarantees during her detention, the Court finds
that in the particular circumstances of the case the finding of a violation
is sufficient.
C. Costs and expenses
77. The applicant claimed USD 18,594. This amount included, inter
alia, USD 14,400 in lawyer’s fees for 283 hours of work on
the Strasbourg and the domestic proceedings, USD 630 in translation costs
and USD 2,722 for travel and subsistence expenses in connection with
the appearance of the applicant’s lawyer and his adviser at the hearing
before the Court. The applicant submitted relevant documents in support
of her claims.
78. The Government contended that the applicant’s claims were
excessive. They questioned the reliability of the schedule indicating
the number of hours spent by the applicant’s lawyer on the case, as well
as the
scale at which the lawyer charged his client. This scale was allegedly
unrealistic in the present conditions in Bulgaria. The Government further
pleaded that the Court should not encourage lawyers to prepare fictitious
agreements which are not intended to be enforced against the client but
serve the sole purpose of being presented in Strasbourg. The Government
submitted that lawyers’ expectations of obtaining exorbitant awards from
the Court was a major factor impeding friendly-settlement negotiations.
The Government further stated that the claims for translation and other
expenses were excessive and that no expenses should be paid for the “excursion”
to Strasbourg of the adviser to the applicant’s lawyer.
79. The Court recalls that in order for costs to be included
in an award under Article 41 of the Convention, it must be established
that they were actually and necessarily incurred and reasonable as to
quantum (see, among other authorities, the Campbell and Fell v.
the United Kingdom judgment of 28 June 1984, Series A no. 80, pp. 55-56,
§ 143).
The Court notes that part of the lawyer’s fees claimed concerned the
applicant’s defence against the criminal charges in the domestic proceedings
and her complaint of their alleged unfairness which was declared inadmissible
by the Commission. These fees do not constitute expenses necessarily
incurred in seeking redress for the violations of the Convention found
in the present case (see the Mats Jacobsson v. Sweden judgment of 28 June
1990, Series A no. 180-A, p. 16, § 46). The number of hours claimed to
have been spent by the lawyer on the case also appears excessive. Considering
the above and other relevant circumstances, and making its assessment
on an equitable basis, the Court awards the applicant 14,000,000 levs
less 20,215 French francs paid in legal aid by the Council of Europe
to be converted into levs at the rate applicable on the date of settlement,
together with any value-added tax that may be chargeable (see the A.
v. the United Kingdom judgment of 23 September 1998, Reports 1998-VI,
p. 2702, § 37).
D. Default interest
80. According to the information available to the Court, the
statutory rate of interest applicable in Bulgaria at the date of adoption
of the present judgment is 15.04% per annum.
FOR THESE REASONS, THE COURT
- Dismisses unanimously the Government’s preliminary objection;
- Holds unanimously that there has been a breach of Article
5 § 3 of the Convention;
- Holds unanimously that there has been a breach of Article
5 § 4 of the Convention;
4. Holds by eleven votes to six that the present judgment
constitutes sufficient just satisfaction in respect of non-pecuniary
damage;
5. Holds by sixteen votes to one
(a) that the respondent State is to pay the applicant, within three months,
for costs and expenses, 14,000,000 (fourteen million) levs less 20,215
(twenty thousand two hundred and fifteen) French francs to be converted
into levs at the rate applicable on the date of settlement, together
with any value-added tax that may be chargeable;
(b) that simple interest at an annual rate of 15.04% shall be payable
on this sum from the expiry of the above-mentioned three months until
settlement;
6. Dismisses unanimously the remainder of the applicant’s
claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 25 March 1999.
Luzius Wildhaber
President
Michele de Salvia
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) partly dissenting opinion of Mr Bonello joined by Mr Maruste;
(b) partly dissenting opinion of Mr Fischbach joined by Mr
Kuris and Mr Casadevall;
(c) partly dissenting opinion of Mrs Greve;
(d) declaration of Mrs Botoucharova.
L.W.
M. de S.
Unlike the majority, who are content to find a violation while not considering
it appropriate to compensate the victim for the non-pecuniary damage she
sustained, we are of the opinion that pecuniary redress is called for in
this case.
We consider that the applicant’s detention on remand, which lasted more
than three and a half months, without adequate safeguards and therefore
in breach of Article 5 §§ 3 and 4 of the Convention, must have caused the
victim feelings of anxiety and frustration such that a mere finding of
a violation cannot in itself suffice to compensate for the non-pecuniary
damage she sustained.
Our position seems to us to be all the more justifiable as, at the time
of preparing this judgment, the case is still pending before the domestic
courts, so that the applicant’s guilt has not yet been established in law.
Nor do we agree with the majority’s reasoning, with reference to the most
recent case-law, that “just satisfaction can be awarded only in respect
of damage resulting from a deprivation of liberty that the applicant would
not have suffered if he or she had had the benefit of the guarantees of
Article 5 § 3”.
We take the view that the issue of compensation for non-pecuniary damage
is one that has to be determined in the light of the particular facts of
each case, whereas the principle adopted by the majority in its reasoning
is such as to restrict in advance the scope for awarding compensation for
non-pecuniary damage sustained by the victims of breaches of Article 5
§§ 3 and 4.
PARTLY DISSENTING OPINION OF JUDGE GREVE
I voted with the majority on all points except the question of just satisfaction.
Article 41 of the Convention provides that “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”. This presupposes that the Court has found a violation of the Convention
or the Protocols thereto.
The Court has ruled that a fortiori Article 41 (formerly Article
50) also covers cases where – as in the present case – it is the intrinsic
nature of the injury which makes restitutio in integrum impossible.
For just satisfaction to be awarded the applicant must actually have sustained
prejudice and the prejudice must have been caused by the violation found
by the Court. In such cases the Court has made awards in respect of non-pecuniary
damage including (but not limited to) uncertainty, anxiety and/or distress,
sense of isolation, confusion, neglect, frustration and/or helplessness
and feelings of injustice.
As pointed out by the majority in the present case, the Court’s rulings
have not, however, followed a consistent pattern in these cases but rather
followed a case-by-case approach even when, as in the instant case, violations
of Article 5 §§ 3 and 4 have been established.
In my view, it would under these circumstances be preferable for the Court
normally to use its discretion to award the injured party some equitable
satisfaction – be it only token – rather than simply state that the mere
finding of a violation/violations constituted sufficient just satisfaction
in respect of any non-pecuniary damage suffered. The question in each individual
case would then be what amount constituted equitable satisfaction under
the circumstances. I cannot identify any reasons for making an exception
in the present case.
declaration OF judge botoucharova
To my regret I am unable to join with the majority on the question of the
amount of costs and expenses awarded to the applicant.
