CASE OF HAMANOV v. BULGARIA
Violation of Art. 5-3;Violation of Art. 5-4;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 1963 and lives in Plovdiv. 11. On 11 March 1996 the Plovdiv District Prosecutor's Office opened an investigation against the applicant, who was a bank branch manager, and several others, in connection with a number of financial transactions effected by them allegedly in breach of the law (see Yankov v. Bulgaria, no. 39084/97, § 11, 11 December 2003, and Belchev v. Bulgaria, no. 39270/98, § 11, 8 April 2004). 12. On 12 March 1996 the applicant was charged with having authorised thirty-five wire transfers abroad in breach of his professional duties and with a view to an unlawful gain for others. 13. In the course of the investigation the applicant was also accused of having guaranteed on behalf of the bank nine promissory notes issued by companies related to a Mr Belchev, and of unlawfully possessing firearm ammunition. 14. Eight persons were charged in all. The charges were modified several times in the course of the investigation. 15. 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. 16. On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor. 17. On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence. 18. The first hearing took place from 17 to 30 September 1997. The 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. 19. 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. 20. 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. 21. 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. 22. On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties. 23. On 30 October 1998 the District Court found the applicant guilty. It sentenced him to nine years' imprisonment and banned him from holding the post of a director of a bank's branch for a period of twelve years. 24. The reasoning of the District Court's judgment was deposited in the registry of that court on an unspecified date in late January 1999. 25. 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. 26. Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance. 27. On an unspecified date in November 1998 the applicant appealed against his conviction and sentence. 28. 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 one of the applicant's coaccused. 29. On 13 and 14 March 2000 the Regional Court resumed its hearing in the case. 30. On 5 June 2000 the Regional Court quashed the lower court's judgment and remitted the case to the preliminary investigation stage. 31. 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. 32. Nothing was done in the case thereafter, at least until April 2003, date of latest information from the parties. At that time the investigation in the applicant's case was pending before the prosecution authorities. 33. On 12 March 1996 the applicant was arrested and brought before an investigator who decided to detain him. The decision was later confirmed by a prosecutor. 34. On 26 September 1997, during the first trial hearing, the applicant applied to the District Court for release. He submitted that he could not abscond because he had a wife and a child of whom he had to take care. He could not interfere with the investigation either, because all evidence had already been gathered. Finally, there was no risk of him committing an offence, because he had been dismissed from the bank where he had worked. The application was rejected by the District Court with the following reasoning: “[The applicant] has been charged with a serious intentional crime. There is still evidence to be gathered. [T]he court therefore considers that there is a real risk that the [applicant] will hinder the investigation.” 35. On 7 October 1997 the applicant appealed. On 9 October the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 20 October the Regional Court upheld the impugned decision, finding that that applicant had been charged with a serious intentional crime and hence had to be detained. 36. On 25 November 1997, during the second trial hearing, the applicant made a fresh request for release. He argued that the facts of the case had been elucidated: there were only two more witnesses to be questioned. There was hence no risk of him obstructing the investigation. There was no risk of him re-offending either. The District Court refused, reasoning succinctly that the applicant had been charged with a serious intentional crime, that there were no new circumstances, and that he should hence remain in detention. On 4 December the applicant appealed, arguing that there was no indication that he would flee, obstruct the investigation – especially in view of the fact that the case had progressed to trial –, or try to suborn witnesses or experts. On 5 December the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 15 December the Regional Court dismissed the appeal, finding that the applicant had been charged with a serious intentional crime and that hence his remaining in detention was justified, especially in view of the gravity of the alleged offence. 37. On 8 January 1998, during the third trial hearing, the applicant again requested release. He averred that in view of the adjournment of the case his detention should not be prolonged any further. There was no risk of him obstructing the investigation or fleeing. The obduracy of the court to refuse his release made pretrial detention a form of punishment. Indeed, the other accused persons were on bail. The District Court refused in the following terms: “The court finds the [applicant's] request for release ill-founded. [He] has been charged with a serious intentional crime and thus has to be kept in detention. ... The fact that the other accused are not detained has nothing to do with the [applicant's] detention.” 38. On 16 January 1998 the applicant appealed, averring that the facts of the case had already been clarified, that he had a permanent address and that his family seriously suffered from his continuing detention. On 22 January the District Court confirmed its decision and transmitted the appeal to the Regional Court. On 23 January that court dismissed the appeal, holding that the applicant had been charged with a serious intentional crime. Detention was therefore lawful under Article 152 of the Code of Criminal Procedure (“CCP”), under which persons charged with serious intentional crimes had to be detained, barring special circumstances. There had to be real facts establishing that there was no risk of the applicant absconding, re-offending or hindering the investigation for the exception of Article 152 § 2 to apply. The applicant's arguments relating to his lack of criminal record, permanent address etc. were not of a nature to prove the lack of such a risk. 39. On 17 April 1998 the applicant filed an application for release, arguing that he had a permanent address and that he had no intention of absconding or interfering with the investigation. On 23 April the District Court held a hearing on the application and denied it in the following terms: “The court finds that the [applicant's] request for release is ill-founded. The charges against [him] concern a serious intentional crime and there is a risk that he may interfere with the investigation or commit another crime[.]” 40. On 29 April 1998 the applicant appealed, arguing that his lengthy detention – more than two years – was not warranted. The following day the District Court confirmed its decision and forwarded the appeal to the Regional Court, which in turn dismissed it on 11 May, holding that there were no objective circumstances which could lead to the conclusion that the applicant would not interfere with the investigation. The length of detention was no reason to deviate from the strict requirements of Article 152 of the CCP. 41. During the trial hearing which took place on 6 July 1998 the applicant again applied for release. He argued that there was no risk of him absconding, re-offending or fleeing. Moreover, given the adjournment of the case, his detention would exceed two and a half years, thus becoming a sort of punishment. The District Court rejected the request, finding briefly that the applicant had been accused of a serious intentional crime and that there had been no change of circumstances. On 15 July the applicant appealed, asserting that the facts of the case had been established and that he had no criminal record. On 22 July the District Court declined to alter its decision and forwarded the appeal to the Regional Court. On 27 July the Regional Court dismissed the appeal in the following terms: “[The applicant is charged with] a serious intentional crime. Under Article 152 [of the CCP] this is sufficient for the imposition of detention. The exceptions of Article 152 § 2 are not present, as [the applicant] may flee or obstruct the investigation.” 42. On 12 August 1998 the applicant filed an application for release. He maintained that there were no facts indicating that he could abscond, reoffend or hinder the investigation. On 10 September the District Court held a hearing on the application and rejected it. It held that the applicant had been accused of a serious intentional crime and that there was a risk of him impeding the investigation or re-offending. Moreover, the trial was about to finish. The applicant did not appeal to the Regional Court. 43. All appeals filed by the applicant against the refusals of the District Court to release him were examined by the Regional Court in private, without the participation of the parties. 44. The applicant has not alleged that his detention continued after the Regional Court quashed his conviction by a judgment of 5 June 2000. 45. Article 282 § 1 of the Criminal Code (“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 by up to five years' imprisonment...” 46. 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. 47. Article 339 § 1 provides that whoever possesses firearm ammunition without a permit is punishable by up to six years' imprisonment. 48. 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. ...” 49. A “serious” crime is defined by Article 93 § 7 of the CC as one punishable by more than five years' imprisonment. 50. 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.). 51. 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.). 52. The detainee's appeals against detention at the trial stage are examined by the trial court. Such appeals may be examined in private, without the participation of the parties, or at an oral hearing. The law does not require the court to decide within a particular time-limit. 53. The trial court's decision is subject to appeal to the higher court (Article 344 § 3 of the CCP). The appeal must be filed within seven days (Article 345) with the trial court (Article 318 § 2 in conjunction with Article 348 § 4). After receiving the appeal, the trial court, sitting in private, decides whether there exist grounds to annul or vary its decision. If it does not find this to be the case, it forwards the appeal to the higher court (Article 347). 54. Before doing so, the trial court must communicate the appeal to the other party (the prosecutor) and receive its written observations (Articles 320 and 321 in conjunction with Article 348 § 4). The law does not provide for the prosecutor's observations to be communicated to the appellant. 55. The higher court may examine the appeal in private without the parties being present or, if it deems necessary, at an oral hearing (Article 348 § 1). The law does not require the court to decide within a particular timelimit. 56. 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[.]” 57. 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. 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. 58. 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. 59. 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 57 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.). 60. 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.