CASE OF BOCHEV v. BULGARIA
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
5. At about 5 a.m. on 9 May 1998 the applicant and an accomplice were surprised by police while in the process of trying to enter a computer equipment shop through a hole in the wall of the basement of a neighbouring building. They had previously drilled the hole over the course of several nights, and in this way had attracted the attention of the building’s inhabitants. 6. On the morning of 9 May 1998 the applicant and his accomplice were heavily armed. The applicant opened fire and shot a police officer dead. Later he detonated a hand grenade. In the ensuing exchange of gunfire his accomplice was injured and died. The special antiterrorism squad intervened later in the morning. The applicant gave himself up and was arrested at about 8.30 a.m., after negotiations with the police, a psychologist and a public prosecutor. 7. On the same day, 9 May 1998, the applicant was charged with attempted robbery committed in conspiracy with others and accompanied by murder, and placed in pretrial detention. 8. The charges against him were later amended to include the unlawful possession of firearms, ammunition and explosives in large quantities, the murder of a police officer, and attempted murder of six police officers committed in a manner and by means which endangered several lives and by a person who had already committed murder. The maximum penalty on conviction for those offences was life imprisonment, with or without parole. 9. After the Sofia City Prosecutor’s Office referred the case back to the investigator on three occasions for additional investigation, on 13 August 1999 the investigator finished his work on the case, recommending that the applicant be committed for trial. 10. On 29 December 1999 the Sofia City Prosecutor’s Office filed an indictment against the applicant with the Sofia City Court. 11. On 21 February 2000 the judgerapporteur to whom the case was assigned set it down for hearing on 8 and 9 June 2000. As required by Article 241 § 2 (4) of the 1974 Code of Criminal Procedure, as in force at that time, he examined of his own motion whether the applicant’s pretrial detention should be replaced with a more lenient measure, and confirmed it without giving reasons. 12. The trial against the applicant began in June 2000, but had to restart in October 2001, as in May 2001 the judge-rapporteur was appointed as the Minister of Justice and the formation examining the case did not include a reserve judge. 13. Over the course of the next few years numerous hearings were adjourned for various reasons. On some occasions the adjournments were made necessary by the fact that the applicant had dismissed his counsel and instructed new ones, who needed time to acquaint themselves with the case file. 14. In a judgment of 14 October 2005 the Sofia City Court found the applicant guilty of murdering a police officer, attempting to murder another police officer and unlawfully possessing firearms and explosives. Although under the relevant provisions of the 1968 Criminal Code it could have imposed a sentence of life imprisonment, it opted for a lesser penalty and sentenced the applicant to thirty years’ imprisonment, citing his clean criminal record, and the facts that he had a family and had not been fully discredited morally and socially. 15. Both the applicant and the prosecution appealed. The prosecution requested that the applicant’s sentence be increased to life imprisonment. 16. On 2 October 2007 the Sofia Court of Appeal upheld the Sofia City Court’s judgment. When considering the appropriateness of the applicant’s sentence, it found that the mitigating circumstances relied on by the lower court were not sufficient to warrant a sentence less than the maximum penalty. It also found that the Sofia City Court had failed to take into account certain aggravating circumstances, such as the victim’s good moral character. In its judgment, the murder committed by the applicant was considerably graver than other offences of that type and the aggravating circumstances were, overall, of such weight and intensity as to rule out a penalty showing any degree of lenience. However, it went on to say, by express reference to Article 6 § 1 of the Convention, that the criminal charges against the applicant had not been determined within a reasonable time, with all the negative repercussions which this had had on him. It found that the excessive length of the proceedings was not attributable to the applicant’s conduct, although he had at times failed to organise his defence efficiently. In the court’s view, the undue delay amounted in itself to a mitigating circumstance, which obviated the need to imprison the applicant for life, in line with the former Commission’s and the Court’s caselaw that the excessive length of criminal proceedings could be remedied by a reduction in sentence. 17. The applicant and the prosecution appealed on points of law. The prosecution again argued that the penalty was far too lenient and should be increased to life imprisonment. 18. In a judgment of 5 March 2008 the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment, endorsing its reasoning. 19. The applicant was arrested on 9 May 1998 and detained by an investigator’s order of the same day. The reasons given by the investigator were that the applicant had committed a serious wilful offence and that there existed a genuine risk that he might abscond. On the same day the investigator’s order was approved by a prosecutor. 20. The applicant made his first request for release on 2 October 1998, when the proceedings against him were at the preliminary investigation stage. The request was dismissed by the Sofia City Court at a public hearing held on 13 October 1998. The court observed that the applicant had committed a serious wilful offence carrying a very severe penalty, and that no special circumstances warranting his release existed. This decision was not subject to appeal. Nevertheless, on 13 December 2000, when the proceedings against him had already progressed to the trial stage, the applicant appealed against it to the Sofia Court of Appeal. In a decision made in private on 15 January 2001 the Sofia Court of Appeal, finding that the applicant’s legal challenge was actually not an appeal but a fresh request for release, sent it to the Sofia City Court for a ruling. On 1 February 2001 the applicant appealed against this decision to the Supreme Court of Cassation. On 21 February 2001 the Sofia Court of Appeal returned the appeal, informing the applicant that its decision was not subject to appeal on points of law. It seems that the Sofia City Court did not examine the request. 21. On 26 February 2001 the applicant appealed against the decision of the judgerapporteur to confirm his detention of his own motion following receipt of the indictment (see paragraph 11 above). On 9 March 2001 the Sofia Court of Appeal, sitting in private, declared the appeal inadmissible. 22. The applicant made further requests for release at several trial hearings, held on 9 April and 29 November 2001, and 18 March and 9 May 2002. They were all turned down by the Sofia City Court at the respective hearings. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 4 May 2001, 7 January, 15 April and an unknown later date in 2002. 23. In their reasoning the Sofia City Court and the Sofia Court of Appeal stressed, with various degrees of detail, the following points: (i) the applicant stood accused of several very serious offences, which in itself justified the conclusion that he was a dangerous individual who could abscond or reoffend, (ii) there were no fresh circumstances warranting his release, and (iii) no unwarranted delays had taken place in the criminal proceedings, as the case was factually and legally complex. 24. In its decision of 4 May 2001 the Sofia Court of Appeal stated that the presumption under Article 152 § 2 (3) of the 1974 Code of Criminal Procedure, in the 1 January 2000 version, about the existence of a risk that the detainee might abscond or reoffend (see paragraph 32 below) applied to the applicant’s case. In two other decisions – those of 7 January and 15 April 2001 – that court expressed the view that the applicant’s lack of a criminal record, known identity and permanent place of abode were not enough to rebut this presumption. 25. On at least two occasions, in April and May 2002, the applicant’s appeals against the decisions of the Sofia City Court were sent to the competent public prosecutors, who commented on them in writing. These comments were not communicated to the applicant and later the Sofia Court of Appeal ruled on the appeals in private, without holding a hearing, with the result that the applicant did not have the opportunity of replying to these comments. 26. In October 2002 and April and December 2003 the applicant made three further requests for release in writing. They were turned down by the Sofia City Court in decisions made in private on 18 October 2002 and 14 April and 29 December 2003. On appeal, these decisions were upheld by the Sofia Court of Appeal in decisions also made in private on 11 November 2002, 23 May 2003 and 12 January 2004. 27. The applicant later lodged four more requests for release. They were all rejected by the Sofia City Court at public hearings held on 27 January, 4 May, 8 September and 23 November 2004. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 19 February, 7 June, 21 September and 20 December 2004. The Sofia City Court declined to examine a further request for release made by the applicant during the trial hearing on 13 January 2005, on the grounds that his counsel was absent and it could not proceed with the case. 28. In turning down the requests for release made between October 2002 and November 2004 the courts relied on the seriousness of the charges against the applicant, the lack of change in the circumstances save for the passage of time, the complexity of the case and the diligent conduct of the proceedings. In their decisions of 4 May 2004 and 8 September and 23 November 2004 the Sofia Court of Appeal and the Sofia City Court expressed the view that the length of the proceedings was due to the numerous adjournments caused by the applicant. 29. In its decisions of 4 May, 8 September and 23 November 2004 the Sofia City Court stated that under the newly added Article 268a of the 1974 Code of Criminal Procedure (see paragraph 36 below), when ruling on requests for release made during the trial, it was barred from examining the existence or otherwise of a reasonable suspicion against the applicant. In its view, to do so would mean to prejudge the merits of the criminal case against the applicant. It was true that under Article 5 § 1 (c) of the Convention the court had to examine whether a reasonable suspicion existed, but that applied only to rulings made at the pretrial stage. This view was endorsed by the Sofia Court of Appeal in its decision of 21 September 2004. For this reason, the courts declined to delve into the applicant’s arguments concerning this point. 30. On 14 October 2005 the Sofia City Court convicted the applicant (see paragraph 14 above). In a separate decision it confirmed his detention. 31. On 17 June 2002 the applicant asked the Supreme Administrative Court to annul certain provisions of Regulation no. 2 governing the legal regime of pretrial detainees (see paragraph 42 below), which, in his view, violated, inter alia, his freedom of correspondence. In a final judgment of 19 July 2002 the Supreme Administrative Court rejected his application. 32. The relevant provisions of the 1974 Code of Criminal Procedure and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 2536, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 5559, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 7988, ECHR 2003-XII (extracts)). On 1 January 2000 the legal framework of pretrial detention was amended with the aim of ensuring the compliance of Bulgarian law with the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). The amendments and the resulting practice of the Bulgarian courts are summarised in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 3235, 10 August 2006), and Yordanov v. Bulgaria (no. 56856/00, §§ 2124, 10 August 2006). 33. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure, which reproduced all the provisions brought in with the January 2000 reform. 34. By Article 304 § 1 of the 1974 Code, during the trial the detainees’ requests for release were examined by the trial court (the same is currently provided for by Article 270 of the 2005 Code). It followed from Article 304 §§ 1 and 2 of the 1974 Code that these requests could be examined in private or at an oral hearing (under Article 270 § 2 of the 2005 Code, these requests must be examined at an oral hearing). The law did not – and still does not – require the court to decide within a particular timelimit. 35. The trial court’s decision was subject to appeal to the higher court (Article 344 § 3 of the 1974 Code; superseded by Article 270 § 4 of the 2005 Code). The higher court could examine the appeal in private or, if it considered it necessary, at an oral hearing (Article 348 § 1 of the 1974 Code, reproduced in Article 354 § 1 of the 2005 Code). 36. A new Article 268a was added to the 1974 Code in May 2003. By paragraph 1 of that Article (presently reproduced in Article 270 § 1 of the 2005 Code), a fresh request for release at the same level of court could be made only if there had been a change in circumstances. Paragraph 2 in fine of this Article (presently reproduced in Article 270 § 2 in fine of the 2005 Code) provided that the trial court had to refrain from examining the existence or otherwise of a reasonable suspicion against the detainee. 37. Section 2 of the 1988 State Responsibility for Damage Caused to Citizens Act (“the SRDA” – Закон за отговорността на държавата за вреди, причинени на граждани – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, Закон за отговорността на държавата и общините за вреди), provides as follows: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pretrial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds; 2. criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...” 38. In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК) made on 22 April 2004 the Plenary Meeting of the Civil Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In line with the courts’ earlier case-law, in point 13 of the decision it held that pretrial detention was unlawful when it did not comply with the requirements of the Code of Criminal Procedure and that the State was liable under section 2(1) of the SRDA when such detention had already been set aside as unlawful. 39. Individuals seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС, ІV г.о.). 40. Articles 30, 32 § 1 and 34 of the 1991 Constitution read, as relevant: “Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.” “The private life of citizens shall be inviolable. Everyone has the right to protection against unlawful interference in his private or family life and against encroachment on his honour, dignity and reputation.” “1. The freedom and secrecy of correspondence and other communications shall be inviolable. 2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.” 41. Section 18(2) of the 1991 Bar Act (Закон за адвокатурата), presently superseded by section 33(2) of the 2004 Bar Act, provided that the correspondence between lawyers and their clients was inviolable, could not be subject to interception and could not be used as evidence in court. 42. Between 1993 and 2000 the legal regime of pretrial detainees, including their correspondence, was the subject of two successive regulations issued by the Minister of Justice: Regulation no. 12 of 15 April 1993, superseded by Regulation no. 2 of 19 April 1999. 43. Under section 18(5) of Regulation no. 12, detainees had the right to send and receive an unlimited number of letters. Section 19(2) of the Regulation provided that letters (except those to and from the detainees’ counsel), which contained advice about the criminal proceedings against them, were not allowed to be passed on, but instead had to be made available to the competent prosecutor or court. 44. Section 25(1) of Regulation no. 2 provided that “the correspondence of the accused and of the indicted [was] subject to inspection by the [detention facilities] administration”. 45. In a decision of 22 December 2000 (реш. № 7982 от 22 декември 2000 г. по адм.д. № 3351/2000 г., ВАС, петчленен състав, обн., ДВ, бр. 4 от 12 януари 2001 г.) the Supreme Administrative Court annulled this provision, holding that it was contrary to Articles 30 § 5, 32 and 34 of the 1991 Constitution (see paragraph 40 above), Article 8 of the Convention and section 18(2) of the 1991 Bar Act (see paragraph 41 above), as it provided for systematic monitoring of the entirety of the detainees’ correspondence. 46. In June 2002 the 1969 Execution of Punishments Act (Закон за изпълнение на наказанията), which is the statute regulating, along with other matters, the manner of serving custodial sentences, was amended and now incorporates, in the newly added sections 128132h, special rules relating to pretrial detainees. As a result, Regulation no. 2 ceased to apply; it was however expressly repealed only on 1 September 2006, when the Minister of Justice amended the Regulations relating to the application of the Act (see paragraph 49 below). 47. The new section 132d(3) of the 1969 Act provided that “[t]he correspondence of the accused and of the indicted [was] subject to inspection by the [prison] administration”. 48. In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по к.д. № 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court, acting pursuant to a request by the Chief Prosecutor, declared this provision unconstitutional. After analysing in detail the relevant constitutional and Convention provisions and making reference to, among others, the cases of Campbell v. the United Kingdom (judgment of 25 March 1992, Series A no. 233), Calogero Diana v. Italy (judgment of 15 November 1996, Reports of Judgments and Decisions 1996V) and Petra v. Romania (judgment of 23 September 1998, Reports 1998VII), it held that a blanket authorisation to inspect the correspondence of all detainees without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles 30 § 5 and 34 of the 1991 Constitution (see paragraph 40 above). 49. Following the Constitutional Court’s decision, on 1 September 2006 the Regulations for application of the 1969 Execution of Punishments Act were amended. Under the new section 178(1), pretrial detainees are entitled to unlimited correspondence which is not subject to monitoring. Envelopes have to be sealed and opened in the presence of members of staff, in a manner allowing those members to make sure that they do not contain money or other prohibited items (section 178(2) of the Regulations).