CASE OF BELCHEV v. BULGARIA
Violation of Art. 5-3 in that the applicant was not brought before a judge or other officer exercising judicial power;Violation of Art. 5-3 in respect of the lack of justification for the detention pending trial;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
10. The applicant was born in 1957 and lives in Plovdiv. 11. On 11 March 1996 the Plovdiv District Prosecutor’s Office opened an investigation against Mr Hamanov, a bank branch manager, and several others, in connection with a number of financial transactions effected by them (see Yankov v. Bulgaria, no. 39084/97, § 11, 11 December 2003 and Hamanov v. Bulgaria, no. 44062/98, § 11, 8 April 2004). 12. In the course of the investigation Mr Hamanov was accused, inter alia, of having guaranteed on behalf of the bank – without having the right to do so – nine promissory notes issued by companies related to the applicant. 13. On an unspecified date in November 1996, in the course of questioning, Mr Hamanov stated that the applicant had prompted him to guarantee the promissory notes. On the basis of this statement the investigator decided to accuse the applicant of having incited and abetted Mr Hamanov to commit the alleged crime. 14. On 14 November 1996 the applicant was charged under Article 282 §§ 2 and 3 in conjunction with Article 20 §§ 3 and 4 of the Criminal Code (“CC”) with having incited and abetted Mr Hamanov to breach his professional duties with a view to an unlawful gain for himself and others. 15. Eight persons were charged in all. The charges were modified several times in the course of the investigation. 16. During the investigation, which lasted about fourteen months, the investigator heard forty-seven witnesses, examined numerous financial and banking documents, commissioned expert reports, and undertook searches. 17. On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor. 18. On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence. 19. The first hearing took place from 17 to 30 September 1997. The Plovdiv District Court heard the accused as well as several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment. 20. The trial resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses were absent as they had not been subpoenaed properly and others, albeit subpoenaed, did not show up. The trial was adjourned until 7 January 1998. 21. The trial resumed on 7 and 8 January 1998. The court adjourned it to 9 April, as some witnesses did not appear, and ordered an additional financial report. 22. The hearing listed for 9 April 1998 was adjourned to 6 July and then again to 19 October by reason of the ill health of one of the applicant’s coaccused. 23. On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties. 24. On 30 October 1998 the District Court found the applicant guilty of having incited and abetted Mr Hamanov to guarantee on behalf of the bank, without having the right to do so, nine promissory notes. It sentenced him to six years’ imprisonment and banned him from engaging in financial dealings for a period of nine years. 25. The reasoning of the District Court’s judgment was deposited in the registry of that court on an unspecified date in late January 1999. 26. Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant’s coaccused against their detention. In practice, upon such an appeal, the entire case file would be transmitted together with the appeal. 27. Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance. 28. On 26 November 1998 the applicant appealed against his conviction and sentence. 29. More than a year later, on 6 December 1999, the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000 because of health problems of the applicant. 30. On 13 and 14 March 2000 the Regional Court resumed its hearing in the case. 31. On 5 June 2000 the Regional Court quashed the lower court’s judgment and remitted the case to the preliminary investigation stage. 32. The Regional Prosecutor’s Office, considering that the Regional Court’s judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the time-limit for such an appeal, which was brought by the prosecution authorities to the Supreme Court of Cassation. On 27 November 2000 that court dismissed the prosecution’s request. 33. Nothing was done in the case thereafter, at least until April 2003, date of the latest information from the parties. At that time the investigation in the applicant’s case was pending before the prosecution authorities. 34. On 14 November 1996 the applicant was arrested and brought before an investigator who decided to detain him. That decision was confirmed the same day by the District Prosecutor’s Office. 35. On an unspecified date towards the end of November or the beginning of December 1996 the applicant applied for release to the District Prosecutor’s Office. He asserted that there was no evidence of him having committed a crime. Also, he had a permanent address and could not obstruct the investigation. 36. On 3 December 1996 the District Prosecutor’s Office dismissed the application on the ground that the applicant had been charged with a serious intentional crime, in which case the law provided for pretrial detention. The testimony of two of the witnesses and certain documents indicated that the applicant had engaged in unlawful conduct. The District Prosecutor’s Office also found a likelihood that the applicant would try to hide important documents relating to the facts of the crime of which he was accused. 37. On 4 December 1996 the applicant appealed to the Regional Prosecutor’s Office. He argued that there was no danger of him absconding, as he had a permanent address, nor of him impeding the investigation. 38. The appeal was dismissed on 18 December 1996. The Regional Prosecutor’s Office held that since the applicant had been charged with a serious intentional crime, he had to be detained by virtue of paragraph 1 of Article 152 of the Code of Criminal Procedure (“CCP”). He could only be released if the exception of paragraph 2 of that Article was applicable. However, this was not the case, because there was a risk that if released he might impede the investigation by suborning witnesses and hiding documents, regard being had to the complexity of the case, the high number of witnesses to be questioned and the need to organise confrontations between the applicant and certain witnesses. 39. On 20 December 1996 the applicant appealed to the Chief Prosecutor’s Office. He argued that there was no evidence of him having committed a crime and that the Regional Prosecutor’s Office had not relied on any specific facts justifying the conclusion that the applicant might abscond or tamper with evidence. 40. On 17 January 1997 the Chief Prosecutor’s Office dismissed the appeal. It subscribed to the reasoning of the lower prosecutor’s offices, but also relied on the fact that there was another investigation pending against the applicant which, pursuant to Article 152 § 3 of the CCP, barred any possibility for release. That investigation had been opened during the 1980s and in 1997 was still pending without having proceeded to trial. 41. On 18 February 1997 the applicant applied for release, arguing, inter alia, that his state of health was such that detention could be dangerous for him. 42. On 26 February 1997 the applicant was sent to a hospital for a medical examination. 43. On 4 March 1997 the Regional Prosecutor’s Office dismissed the applicant’s request for release on the ground of ill health but ordered his transfer to hospital. It referred to its earlier findings about the reasons for the applicant’s continuing in detention. 44. On 14 March 1997 the applicant applied to the Chief Prosecutor’s Office for release on health grounds. The application was referred to the Regional Prosecutor’s Office. 45. After examining the application, on 25 March 1997 the Regional Prosecutor’s Office ordered the applicant’s release on bail. It relied on the conclusions of the medical experts, noting that the applicant would not be able to maintain the required dietary regime and undergo the necessary medical supervision if he were returned from hospital to the detention facility. In addition, the supervising prosecutor and the investigator had come to the opinion that all documentary evidence had been gathered and the facts of the case had been clarified. Therefore, there was no risk of the applicant tampering with evidence. The investigation was continuing only in view of the fact that there were difficulties in summoning certain witnesses. Finally, there was no indication that the applicant would abscond. As to the fact that another investigation was pending against him, the Prosecutor’s Office found that this should not be used to the applicant’s detriment as the investigation in question had already been pending for more than ten years. 46. On 28 March 1997 the applicant posted bail and was released. 47. Article 282 § 1 of the CC provides: “A person [exercising a function of managing another’s property or an official function], who acts in breach or dereliction of his professional duties or exceeds his power or rights with a view to a pecuniary gain for himself or another or damage to another, and thus causes significant harm, shall be punished with up to five years’ imprisonment...” 48. Article 282 § 3, read in conjunction with the first and the second paragraphs of the same provision, provides for three to ten years’ imprisonment in very grave cases when the resulting damage is substantial or the offender holds a high ranking post. 49. Article 20 § 3 of the CC defines an “inciter” as one who has intentionally incited another to commit a crime. Article 20 § 4 defines an “abettor” as one who has intentionally aided another in the commission of a crime, by counselling, advising, offering help etc. Both inciters and abettors are accomplices in the crime and are punishable in the same manner as the principal, account being taken of the nature and the degree of their participation (Article 21 § 1). 50. At the relevant time and until the reform of the CCP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II). 51. Pretrial detention was governed by Article 152 of the CCP, which read in relevant part: “1. Pretrial detention shall be imposed [in cases where the charges concern] a serious intentional crime. 2. In the cases falling under paragraph 1 [detention] may be dispensed with if there is no risk of the accused evading justice, obstructing the investigation, or committing further crimes. ...” 52. A “serious” crime is defined by Article 93 § 7 of the CC as one punishable by more than five years’ imprisonment. 53. The Supreme Court has held that it was not open to the courts, when examining an appeal against pretrial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order (опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о.). 54. According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments in force since 1 January 2000), Article 152 § 1 required that a person charged with a serious intentional crime be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or re-offending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.). 55. Paragraph 3 of Article 152, as in force until August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable crime were pending against the accused person, or where he was a recidivist. 56. On 21 March 1997 the Supreme Court of Cassation examined a request by the Chief Prosecutor for an interpretative decision on Article 152 of the CCP. The Supreme Court of Cassation considered that Article 152 § 3 of the Code was incompatible with the Constitution, the Convention and the International Covenant on Civil and Political Rights. It therefore decided to submit the matter to the Constitutional Court which is competent to rule on the compatibility of legislation with the Constitution and international treaties. Ultimately, the Constitutional Court did not decide the point as the impugned provision was repealed with effect from 11 August 1997. 57. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for: 1. unlawful pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]” 58. The reported case-law under section 2(1) of the Act is scant. In two recent judgments the Supreme Court of Cassation held that pretrial detention orders must be considered as being “set aside for lack of lawful grounds” – and that State liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven (реш. № 859/2001 г. от 10 септември 2001 г. по г.д. № 2017/2000 г. на ВКС) or where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded. 59. On the other hand, the Government have not informed the Court of any successful claim under section 2(1) of the Act in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions. It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “set aside for lack of lawful grounds” within the meaning of section 2(1) of the Act. Also, the terms “unlawful” and “lack of lawful grounds” apparently refer to unlawfulness under domestic law. 60. By section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by the “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty. In contrast with the solution adopted under section 2(1) (see paragraph 58 above), the Supreme Court of Cassation has held that no liability arises under section 2(2) where the criminal proceedings were discontinued at the pretrial stage on the ground that the accusation was not proven (реш. № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.). 61. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act 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.). The Government have not referred to any successful claim under general tort law in connection with unlawful pretrial detention.