CASE OF VACHEV v. BULGARIA
Preliminary objection rejected (non-exhaustion of domestic remedies);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
8. The applicant was born in 1941 and lives in Teteven. He was the executive director of ElpromEMT, a Stateowned company, against which bankruptcy proceedings were opened in 1997. 9. On 14 May 1997 the Teteven District Prosecutor’s Office opened criminal proceedings against the applicant and against the deputy director of ElpromEMT and a company employee. 10. On 3 June 1997 the applicant was charged with abuse of office and making false official documents, contrary to Articles 282 § 2 and 311 § 1 of the Criminal Code (“the CC”). It was alleged that, together with the deputy director, he had abused his managerial position during the period April 1996 – March 1997 and had occasioned losses to the company in order to secure a financial benefit for a private limited liability company in which his wife was a member. The alleged loss to ElpromEMT amounted to 23,302,275 old Bulgarian levs (BGL). It was also charged that to facilitate that offence the applicant had made false documents and had incited the deputy director and a company employee to make false documents. 11. On 6 June 1997 a prosecutor of the Lovech Regional Prosecutor’s Office ordered the suspension of the applicant from his position of executive director, on the grounds that the charges against him were for jobrelated offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office. 12. On 20 June 1997 the investigator in charge of the case ordered an expert financial report, which was assigned to two former employees of ElpromEMT. 13. On 4 August 1997 counsel for the applicant requested to be allowed to consult the case file. The request was granted on 10 August. 14. A graphological report ordered earlier was ready on 18 September 1997. 15. On 25 September 1997 the applicant was questioned. Counsel for the applicant requested to be allowed to inspect the case file. The investigator allowed them to consult certain documents but refused access to the whole file. 16. On 16 October 1997 the expert financial report ordered on 20 June 1997 was ready. 17. On 20 October and 25 November 1997 the investigator ordered expert reports on the prices of certain items relevant to the investigation. 18. On 10 December 1997 the applicant was questioned and was allowed, together with his counsel, to consult certain documents in the case file, including the expert reports. 19. On 29 December 1997 counsel for the applicant requested the disqualification of one of the experts who had prepared the expert financial report. They argued, inter alia, that one of the experts had been chief accountant of ElpromEMT and had been dismissed for disciplinary reasons by the applicant, which cast doubt on his objectivity. The request was denied. 20. It seems that most of the witnesses in the case were questioned on dates between June and December 1997. 21. On 10 February 1998 the applicant was questioned. His request to be allowed to consult the case file was granted. 22. On 12 February 1998 counsel for the applicant again requested the disqualification of the experts who had prepared the expert financial report. They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of ElpromEMT. 23. The same day the applicant was presented with the amended charges. These included aggravated embezzlement facilitated by the making of false official documents (Article 202 in conjunction with Article 311 of the CC), embezzlement (Article 201 of the CC), abuse of office (Article 282 of the CC), deliberately entering into contracts disadvantageous to the company he was managing (Article 220 of the CC) and making false official documents (Article 311 of the CC). It was alleged that between March 1996 and February 1997, together with the deputy director of ElpromEMT, he had embezzled company assets amounting to BGL 4,833,264.54, for the commission of which offence he had made false official documents, that in June 1995 he had misappropriated a trailer owned by ElpromEMT, that between March 1996 and February 1997, together with the deputy director, he had abused his office to secure a financial benefit for a private company, that between August 1996 and January 1997, together with the deputy director, he had deliberately made disadvantageous contracts between ElpromEMT and the same private company for which he had secured a financial benefit, and that in December 1994 he had made two false invoices for sums amounting to 365,000 German marks. After the being charged the applicant was questioned in the presence of counsel. He refused to give explanations. 24. On 16 February 1998 the applicant and his counsel were allowed to consult the entire case file. The applicant objected to the expert reports and requested the disqualification of the experts. The investigator denied his requests and proposed to the prosecution that the applicant be indicted. 25. On 16 June 1998 counsel for the applicant requested that the case be remitted for additional investigation, arguing that this was necessary to rectify certain procedural violations. 26. On 9 July 1998 the Teteven District Prosecutor’s Office granted the request and referred the case back for investigation. It observed that the relevant circumstances about the relations between ElpromEMT and the private company which had allegedly benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences. It gave specific instructions as to the facts which had to be established. It further expressed the view that the applicant’s request for the disqualification of one of the experts who had prepared the expert financial report was wellfounded, since he had been dismissed by the applicant for disciplinary reasons and the applicant had good reasons to fear his lack of objectivity. It was therefore necessary to prepare a new expert report. In addition, it asserted that it was necessary to charge the applicant anew, since the original presentation of the charges against him had not been specific enough. Finally, it noted that the applicant’s counsel had also been ElpromEMT’s counsel in the bankruptcy proceedings against the company, which raised certain doubts as to a potential conflict of interests. It was therefore necessary to establish whether the applicant had reason to doubt the loyalty of his counsel, because if that issue was not elucidated, the applicant could use it as an argument that his defence rights had been infringed. 27. On 4 November 1998 the investigator, complying with the instructions of the prosecution, ordered a new financial report. 28. On 26 April 1999 the Teteven District Prosecutor’s Office, finding that the investigator in charge of the case had not carried out any of its instructions apart from ordering a new financial report, replaced him with a new one. 29. On 1 June 1999 the new investigator proposed to discontinue the proceedings, on the ground that the charges against the applicant were not supported by sufficient evidence. 30. On 7 June 1999 the Teteven District Prosecutor’s Office rejected the proposal and referred the case back for additional investigation. It held that the evidence was not sufficient because the investigation had not been performed thoroughly. 31. On 9 June 1999 the investigator allowed the applicant to consult the case file. 32. On 13 June 1999 the financial report ordered on 4 November 1998 was ready. 33. On 7 January 2000 counsel for the applicant informed the investigator that she would be unavailable until 18 January. 34. On 19 January 2000 the investigator charged the applicant anew. The charges included, apart from the previous ones, a new charge under Article 219 of the CC (mismanagement resulting in loss for the company). After charging the applicant the investigator questioned him and allowed him and his counsel to consult the case file. 35. On 31 January 2000 the investigator recommended that the applicant be indicted solely under Article 219 of the CC. 36. On 14 February 2000 the Teteven District Prosecutor’s Office decided to discontinue the investigation in respect of the charges under Articles 202 (aggravated embezzlement), 282 (abuse of office) and 311 (making false official documents) of the CC. On 23 March 2000 the Lovech Regional Prosecutor’s Office overturned that decision and referred the case back to the investigator. On appeal by the investigator on 6 April 2000 the Veliko Tarnovo Appellate Prosecutor’s Office affirmed the overturning. 37. On 12 May 2000 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC. Its decision was overturned by the Veliko Tarnovo Appellate Prosecutor’s Office on 21 July 2000 and the case was referred back to the Lovech Regional Prosecutor’s Office with instructions to carry out certain investigative steps (inter alia, to order an expert report) and elucidate certain facts relating to transactions carried out by ElpromEMT during the period 199697. 38. On 4 August 2000, when the case was back at the investigation stage, the investigator ordered an additional expert report. 39. On 8 June 2001 the applicant’s counsel informed the investigator that she would be unavailable until 12 June. 40. On 12 June 2001 the investigator allowed the applicant and his counsel to consult the case file. 41. On 19 June 2001 the investigator recommended that the applicant be indicted under Articles 219 (mismanagement resulting in loss), and 311 (making false official documents) of the CC. 42. On 20 July 2001 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC and to transfer the case to the Teteven District Prosecutor’s Office for continuation of the proceedings under the remaining charges. 43. On 5 September 2001 the Teteven District Prosecutor’s Office remitted the case for additional investigation, holding that the investigative steps carried out up until then had not established all relevant circumstances. 44. On 24 September 2001 the investigator ordered a new expert report, assigning it to new experts. 45. On 26 February 2003 the applicant and the prosecution entered into a pleabargain agreement. The criminal proceedings against him were apparently discontinued soon after. 46. On 3 June 1997 the applicant was put under house arrest by an investigator who saw him in person and questioned him. 47. On 12 June 1997 the applicant lodged with the Teteven District Prosecutor’s Office a request to be released on bail. On 16 June 1997 the Teteven District Prosecutor’s Office denied the applicant’s request. The applicant appealed to the Lovech Regional Prosecutor’s Office. The appeal was dismissed by an order of 8 July 1997. The applicant appealed to the Chief Prosecutor’s Office. On 3 September 1997 the Chief Prosecutor’s Office dismissed the appeal. The applicant lodged an appeal with the Head of the Investigations Division of the Chief Prosecutor’s Office. On 31 October 1997 the Head of the Investigations Division dismissed the appeal. 48. In the meantime, on 7 August and 2 September 1997, the Teteven District Prosecutor’s Office had denied two requests by the applicant to be allowed to leave his home for one day. Another request by the applicant to be allowed to leave his home for one day was denied on 29 October 1997. On 12 November 1997 the Teteven District Prosecutor’s Office allowed the applicant to leave his home for one day. 49. On 19 November 1997 the Teteven District Prosecutor’s Office denied a renewed application for release by the applicant. 50. On 4 December 1997 the applicant submitted a new request for release on bail. On 16 December 1997 the Teteven District Prosecutor’s Office granted bail, setting the amount at BGL 3,000,000. On an unspecified date in December 1997 the applicant paid the amount of the bail and was released from house arrest. 51. By Article 146 of the Code of Criminal Procedure (“the CCP”), a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecutable offence. One such measure is house arrest. 52. Article 151 of the CCP, as in force at the material time, defined house arrest as follows: “House arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities.” In its interpretative decision no. 10/1992 (реш. № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обн., ДВ брой 63 от 4 август 1992 г.) the Constitutional Court held as follows: “... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].” 53. At the relevant time and until 1 January 2000 house arrest at the pretrial stage of criminal proceedings could be ordered by an investigator or by a prosecutor. The investigator or prosecutor was not under an obligation to interview the accused in person when ordering house arrest. 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). 54. At the relevant time the CCP did not provide for judicial review of house arrest. Thus, the only possibility for a person put under house arrest was to apply to a prosecutor who could order his release. If the prosecutor refused to release the person under house arrest, he or she could appeal to a higher prosecutor (Articles 181 and 182 of the CCP). 55. The CCP was amended with effect from 1 January 2000 and at present provides, in the newly introduced paragraph 2 of its Article 151, for full initial and subsequent judicial review of house arrest. 56. On 21 March 1997 the Assembly of the Criminal Divisions of the Supreme Court of Cassation decided to request the Constitutional Court to rule on the compatibility of Article 152 of the CCP, governing pretrial detention, with, inter alia, Article 5 of the Convention. It reasoned that by virtue of Article 5 § 4 of the Constitution the Convention was incorporated into Bulgarian law and that all statutory provisions should therefore be in compliance with it. It also stated that when deciding cases before them the Bulgarian courts should take into account the caselaw of the European Court of Human Rights (опред. № 1 от 21 март 1997 г. по н.д. № 1/ 1997 г. на ОСНК на ВКС). 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 unlawful: 1. pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]” The reported caselaw under section 2(1) of the Act is scant. However, all judgments in which State liability was found to arise under this provision related specifically to pretrial detention under Article 152 of the CCP, not house arrest under Article 151 of the CCP or any other form of deprivation of liberty ordered in the context of criminal proceedings (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The reported case-law also suggests that the terms “unlawful” and “lack of lawful grounds” refer to unlawfulness under domestic law. 58. 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. 59. 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 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 house arrest.