CASE OF LUKANOV v. BULGARIA
Violation of Art. 5-1;Not necessary to examine Art. 18;Just satisfaction rejected;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
John Freeland
7. The applicant was a Bulgarian citizen. Formerly a Minister, then Deputy Prime Minister and, in 1990, Prime Minister of Bulgaria, he was a member of the Bulgarian National Assembly at the time of the events giving rise to the present case. On 2 October 1996 he was shot dead outside his home. 8. On leaving Sofia for Moscow on 7 March 1992, the applicant was informed by the border police at Sofia Airport that an order had been made to withdraw his diplomatic passport. As the order was not shown to him, he refused to hand over his passport. Following a similar incident on 11 March, the applicant lodged an appeal with the Supreme Court, which rejected the appeal on the ground that no administrative decision had been taken which could form the subject of an appeal. Subsequently, the applicant brought proceedings to obtain compensation for non-pecuniary damage sustained as a result of the unlawful order to withdraw his passport (see paragraph 24 below). 9. On 1 July 1992 the Prosecutor-General requested the National Assembly to authorise the institution of criminal proceedings against the applicant on suspicion of having contravened Articles 203 and 219 para. 3 of the Criminal Code (see paragraphs 25 and 27 below). The suspicion related in particular to his participation as a Deputy Prime Minister between 1986 and 1990 in a number of decisions granting sums, totalling 34,594,500 US dollars (USD) and 27,072,000 convertible Bulgarian leva, in assistance and loans to certain developing countries, including Nicaragua, Cuba, Laos, Kampuchea, Afghanistan, Angola and Yemen. The request stated: "The decisions ... have dramatically affected the country’s economic potential, its economic resources and export capacity, and have objectively speaking made it unable to repay its foreign debt. It should be emphasised that, due to decisions of this nature causing prejudice to the country and other illegal measures taken by party and government leaders during this period, our foreign debt rose from USD 4,119,700 in 1986 to USD 10,656,900,000 in 1989 ... The situation described is covered by the definition of the offence of `taking advantage of one’s position’ in respect of very large amounts of money, which constitutes a particularly serious matter falling within the provisions in Article 203 and Article 219 para. 3 of the Criminal Code. The offences mentioned are `serious’ within the meaning of Article 93 para. 7 of the Code." 10. On 7 July 1992 the National Assembly waived the applicant’s parliamentary immunity under Article 70 of the Bulgarian Constitution and authorised criminal proceedings against him and his arrest and detention on remand. 11. On 9 July 1992 the public prosecutor, Mr Doychev, of the Investigation Department of the Prosecutor-General’s Office, charged the applicant under Article 203, in conjunction with Articles 201, 202 and 282, of the Criminal Code (see paragraphs 25 and 28 below) with having misappropriated, in concert with the chairperson and the other vice-chairpersons of the then Council of Ministers, the funds allocated to certain developing countries as mentioned in paragraph 9 above. In breach of his official duties, he had facilitated the misappropriation in order to obtain an advantage for a third party, thereby causing considerable economic damage. In view of the very large amounts of money involved, the case was a particularly serious one. The prosecutor in addition ordered the applicant’s detention on remand, citing as grounds the need to show to the public the danger that the offences in question represented to society, the applicant’s identity and the need to secure his appearance before the trial court. The decision referred, inter alia, to Articles 147 and 152 para. 1 of the Code of Criminal Procedure (see paragraphs 29 and 30 below). On 9 July 1992 the applicant was arrested and remanded in custody at the premises of the National Investigation Service in Sofia. 12. On the same date the applicant’s lawyer lodged an appeal with the Bulgarian Supreme Court, requesting his release. She maintained that, contrary to Article 148 para. 1 of the Code of Criminal Procedure, the arrest warrant had failed to specify the grounds for his arrest. The fact that he risked a sentence of more than ten years’ imprisonment could not in itself justify his detention since, under paragraph 2 of Article 152, it was also a condition that there should be a risk of his absconding or of his committing a further crime (see paragraph 30 below). In addition, the measures had been taken on the basis of the applicant’s identity, notably the fact that he was a member of the National Assembly, a consideration which was not covered by any of the grounds that were exhaustively listed in Article 147 para. 1 (see paragraph 29 below). 13. At a court session held on 13 July 1992, at which the public prosecutor but not the applicant or his lawyer was present, the Supreme Court dismissed the appeal. Its decision included the following reasoning: "Under Article 152 para. 1 of the Code of Criminal Procedure a suspect is to be detained on remand if the offence is punishable by ten years’ imprisonment or more or by the death penalty. Offences under Article 203 para. 1, of the Criminal Code carry such sentences. [The above provision] lays down two cumulative conditions - the misappropriation must have occurred on a large scale and must have been particularly serious. [Whether the misappropriation has occurred] on a particularly large scale depends on the value of the public property involved. The seriousness of the case is determined on the basis of whether the misappropriation was carried out with the complicity of others, the level of the threat to society involved in the [measures] and the subject matter (Article 93 para. 8, of the Criminal Code). The argument that the eventuality envisaged in Article 152 para. 2 ... applies in the instant case is unfounded. When the accusation was made the applicant was a member of the National Assembly. By virtue of Article 72 of the Bulgarian Constitution he holds this status until such circumstances occur as may warrant the suspension from his functions as a member of the National Assembly. In his capacity as member of the National Assembly the [applicant] represents the people as a whole. It is precisely in this capacity that the [risk] mentioned in Article 152 para. 2 ... will materialise, and the likelihood of this is greater than in the case of an appellant who is not a member of the National Assembly. Furthermore, the applicant has lodged a judicial appeal against the administrative measure resulting in the withdrawal of his diplomatic passport ... The fact that he has taken such a step gives good grounds for fearing that he will not refrain from committing acts of the type mentioned in Article 152 para. 2 ... According to Article 70 of the Constitution `..., except in cases of serious crimes and where permission has been given by the National Assembly, its members may not be detained and no charges may be brought against them ...’. A logical and systematic interpretation of the aforesaid provision suggests that [what is decisive for] the measure of restraint, `detention’, [to be applied] in the context of the Criminal Code is whether the act entails a great danger to society and the particular status of the person who has committed it - a member of the National Assembly. For this reason the legislature envisaged ... detention in [such] cases. The prosecutor’s office has power to impose such a measure." 14. On 23 August 1992 the applicant was hospitalised at Sofia Penitentiary Hospital, where he received treatment. 15. On 4 September 1992 the applicant, relying on a change in circumstances concerning his state of health, filed a request with the Prosecutor-General for his release. 16. On 5 September 1992 his lawyer appealed to the Supreme Court against the Prosecutor-General’s implied refusal to grant the request of 4 September 1992. The Supreme Court dismissed the appeal on 17 September 1992 on the grounds that the applicant had already appealed against his detention and that, under the relevant Bulgarian law, he was not entitled to lodge a further appeal. 17. Subsequently, the applicant’s lawyer made a request for his release to the public prosecutor. At a meeting on 28 October 1992 between the public prosecutor and the applicant and his lawyer at the Military Hospital in Sofia, the lawyer invited the prosecutor to take a decision on the request for release. The applicant himself maintained that it was unreasonable to base his detention on the fact that he had complained about the withdrawal of his passport. He did not have any other passport. Nor was there any danger of his repeating the offence, as he was no longer in a position to do so. On 2 November 1992 the public prosecutor dismissed the applicant’s request for release. He gave as reasons that the Prosecutor-General had already dealt with it and had been of the view that, notwithstanding the medical reports concerning the applicant, there were no new circumstances warranting his release. His lawyers had been informed of the Prosecutor-General’s decision of 22 October 1992 and had been advised that no further appeal was possible. 18. By letter of 9 November 1992 the applicant’s lawyer asked the Prosecutor-General to terminate the investigation. She recalled that it had commenced on 8 July 1992 and, after the expiry of the statutory period of two months, had been extended for another two months until 8 November 1992. Under Article 222 para. 3 of the Code of Criminal Procedure, a further extension could only be justified in "exceptional" cases, which condition had not been satisfied in the applicant’s case. Nor had the Prosecutor-General obtained any new evidence during the four months which had elapsed since the investigation had started. The lawyer also contested the charges against the applicant. The decisions of the Council of Ministers had been taken collectively in accordance with the Constitution and the budget voted by the National Assembly. The decisions in question had been taken simply with a view to implementing policies of the government in power at the time and it was the government, not the applicant as a Deputy Prime Minister, which had administered the relevant funds. In any event, it had not been established that the applicant had committed the offences in issue for his own benefit or for that of a third party. 19. On 10 November 1992 the applicant’s lawyer lodged a request for his release with the Prosecutor-General, maintaining, inter alia, that the further prolongation of his detention breached Article 5 para. 3 of the Convention (art. 5-3) and that, contrary to Article 5 para. 1 (c) (art. 5-1-c), no grounds had been given for his detention. The argument that the applicant had appealed against the order to withdraw his passport was unfounded as he had only exercised his rights under Bulgarian law. The lawyer refused to comment on the allegation that the applicant constituted a particular danger to society on account of his position as member of the National Assembly. 20. On 11 November 1992 the Prosecutor-General informed the applicant’s lawyer orally that his request of 10 November 1992 had been dismissed in the absence of any new circumstances justifying modification of the decision to detain him on remand. 21. In a letter of 18 November 1992 to the Prosecutor-General the applicant, referring to Article 180 of the Code of Criminal Procedure, complained about the prosecutor’s failure to reply to his requests in writing. He asserted that the criminal proceedings against him had no legal basis and amounted to an overt act of political reprisal. 22. In a letter of 20 November 1992 to the public prosecutor, the applicant’s lawyer queried the outcome of the request of 10 November 1992 (see paragraph 19 above), stating that the information was important for the application filed with the Commission. On 25 November 1992 the public prosecutor replied that his decision of 11 November had been transmitted to the applicant’s lawyer on 16 November and that minutes relating to these measures had been prepared in accordance with Article 100 of the Code of Criminal Procedure. 23. On 29 December 1992 the Bulgarian National Assembly reversed its decision of 7 July 1992 authorising the applicant’s detention on remand. On 30 December 1992 the prosecutor decided to release the applicant on bail. 24. On 12 March 1994 the Sofia City Court awarded the applicant compensation for non-pecuniary damage suffered as a result of the attempts made by the border police to withdraw his passport in the absence of a lawful order to this effect. The decision was confirmed by the Supreme Court on 9 February 1995. 25. Under Article 201 of the Criminal Code, public servants who misappropriate public or private funds which are in their possession in their capacity as public servants or which they have been entrusted with to keep secure or administer are liable to up to eight years’ imprisonment. If a further offence has been committed in order to facilitate the misappropriation or if the offence has been committed with the complicity of others, between one and ten years’ imprisonment may be imposed (Article 202). Where an offence under Articles 201 or 202 involves particularly large amounts of public funds and is serious, Article 203 para. 1 provides for terms of between ten and thirty years’ imprisonment. 26. As appears from a number of rulings by the Supreme Court (D 133-77-II, p. 80; D 63-79-I, p. 61; D 271-85-II, p. 87; D 172-88-I, bull. no. 12/88, p. 4; D 144-79-I, p. 73; D 315-75-II, p. 52; and D 5-83-Pl., p. 17) supplied by the applicant’s lawyer in consultation with the Agent of the Government before the Court’s hearing, at the material time a condition for the offence of misappropriation under Article 201 of the Criminal Code was that the person concerned had disposed of the means in question as though they were his or her own, in order to obtain an advantage for himself or herself or for a third party. In a judgment of 1995 (no. 17/95) the Constitutional Court declared unconstitutional an amendment by the National Assembly to make it an express condition in Article 201 that the person concerned had used the funds to his own advantage or that of a third party. In the opinion of the Constitutional Court, such a limitation on the scope of the offence of misappropriation would entail too weak a protection of the right to property guaranteed by the Constitution of 1991. It should be decisive for the offence, not that there had been personal enrichment, but that the person had disposed of the means as though they were his own and had thereby harmed the owner’s interests. In connection with the above, the Constitutional Court stated that the amendment in question had been in line with the Supreme Court’s interpretation of Article 201. According to the Government, there was no example at the relevant time of a member of a government having been prosecuted under Articles 201 and 203 of the Criminal Code for his or her participation in collective decision-making by the government. 27. Article 219 para. 1 provides: "If a public servant, in his administration of assets or of money in his possession or in the execution of work which he has been ordered to do, negligently causes considerable material damage, or the destruction or dispersal of the assets, to the disadvantage of the service concerned or the national economy, he will be punished by a term of imprisonment of not more than three years or by forced labour in the public interest." According to paragraph 3, up to eight years’ imprisonment may be imposed if the offence is committed wilfully. 28. Article 282 provides: "(1) A public servant who does not fulfil his professional obligations or who commits an abuse of power with the aim of obtaining a material advantage for himself or for a third party or of causing damage to others, and if not insignificant material damage could arise, shall be punished by a term of not more than five years’ imprisonment ... (2) If the act results in considerable material damage or has been committed by a person occupying a senior administrative post, the person concerned shall be liable to a term of imprisonment of eight years ... (3) If such an act is particularly serious the term of imprisonment shall be between three and ten years ..." 29. Under Article 147 para. 1 of the Code of Criminal Procedure, an accused may be placed under court supervision in order to ensure that he or she does not abscond or commit a new offence or to prevent collusion. The kind of measure imposed depends on the evidence against the accused, his or her state of health, family situation, profession and any other information concerning his or her character. 30. Article 152 provides, in so far as relevant: "(1) Detention on remand shall be imposed if the charges concern crimes punishable by a term of imprisonment of ten years or more or by capital punishment. (2) The measure envisaged in the previous paragraph shall not be imposed if there is no danger of the accused evading justice or committing another crime. ... (4) The detained person may immediately lodge an appeal with the court against his detention. The Court shall decide within three days by means of a decision which is final."