CASE OF E.M.K. v. BULGARIA
Violation of Art. 5-3 with regard to failure to bring promptly before a judge;Violation of Art. 5-3 with regard to the length of detention on remand;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Christos Rozakis
9. The applicant was born in 1973 and lives in Sofia. 10. During the period September 1995 – May 1996 the applicant was a university student in finance in the town of Svishtov, at the Danube river. He was also the manager of a sportshoes shop in the town of Novi Pazar, in northeastern Bulgaria (situated at approximately 415 kilometres from Sofia), owned by his girlfriend. 11. On 12 April 1995 Mr E.S.A., a Greek citizen living in Germany, drove through Bulgaria in a jeep with a trailer to transfer a corpse from Germany to Greece. At about 11.00 p.m. he stopped on the ringroad of Sofia. A car stopped in front of the jeep, three men came out of it and approached the vehicle. One of them tried to hit Mr E.S.A. with a hammer through the jeep's window. Another got into the jeep and attacked him with a knife. Mr E.S.A. managed to knock off the knife, but in the meantime the man with the hammer hit him in the face. Then the three men threw Mr E.S.A. out of the vehicle, kicked him several times while he was lying on the ground, and drove away with the jeep. 12. At about 10.30 p.m. on 9 March 1996 Ms M.V. stopped her car in front of the house of a friend of her mother's and stepped out to wipe the ice from the windscreen. A man wearing a wool hat approached her, threatened her, sat in the driver's seat of her car and drove away. 13. An investigation into the first incident was opened on 13 April 1995. Mr E.S.A. was presented with photographs of several persons, including the applicant, and later was questioned. He identified the applicant as one of the assailants and described the assailant as having a dark complexion and short brown hair. Apparently the identification procedure was tainted as the investigator did not, as provided by the Code of Criminal Procedure (“the CCP”), question Mr E.S.A. about the distinctive features of the person to be identified prior to presenting him with the photographs. It also seems that the record was not signed by one of the certifying witnesses, as required by the CCP. 14. Following the identification, the investigator drew up a ruling to summon the applicant. On 11 and 12 July 1995 a process server visited the applicant's home to deliver the summons but was informed by a neighbour that the applicant was absent. 15. On 23 August 1995 the investigator charged the applicant in absentia with aggravated robbery and ordered his detention. 16. On 5 September 1995 a prosecutor of the Sofia City Prosecutor's Office confirmed the investigator's order for the applicant's detention. 17. On 22 September 1995 the applicant was listed in a police posting as a wanted criminal suspect. 18. On 5 October 1995 several police officers went to the home of the applicant to arrest him. They informed his parents that he was wanted. The applicant's mother told the officers that she had spoken with the applicant the previous day and that he was in Svishtov taking his university examinations. 19. The next day, 6 October 1995, the applicant's mother went to the Investigation Service and, being a practising lawyer, requested permission to represent the applicant together with another lawyer. She requested the investigator to allow her to get acquainted with the charges and informed him that the applicant would appear for questioning in a week's time. The investigator refused to acquaint her with the charges. 20. The applicant refused to appear for questioning. According to him, this was due to his believing that the accusation was “false and absurd” and to his fear of being illtreated in custody. 21. On 10 October 1995 the police issued a nationwide search warrant for the applicant. According to the applicant, in practice no steps were undertaken in that respect and he was not hiding, but staying in hotels in Svishtov and taking his examinations. 22. On 17 October 1995 a prosecutor from the Sofia City Prosecution Office ordered the investigator to allow the applicant's mother to participate in the proceedings. 23. On 23 October 1995 the applicant's lawyers requested the examination of several witnesses who, it was asserted, could establish his alibi. They argued that at the time of the alleged offence the applicant had been in Novi Pazar in connection with the investigation of the robbery of the shop he was managing there. On unspecified dates later in the autumn of 1995 five witnesses testified that the applicant had been in Novi Pazar prior to and at the time of the attack on Mr E.S.A. in Sofia. 24. On 26 October 1995 the investigator proposed that the investigation be stayed on the ground that the applicant was missing and sent the case file to the Sofia City Prosecutor's Office. 25. On 8 November 1995 a prosecutor from that office refused to stay the investigation and ordered the carrying out of further investigative steps. She found, inter alia, that the photographs pursuant to which the applicant had been identified and the report from the examination of the crime scene were missing from the case file and that Mr E.S.A. had not been properly questioned. 26. In the beginning of December 1995 the applicant's lawyers requested that the order for his detention be rescinded. They relied on the fact that the identification procedure with the participation of Mr E.S.A. was flawed and on the testimony that the applicant had been in Novi Pazar at the time of Mr E.S.A.'s robbing. 27. The Sofia City Prosecutor's Office rejected the request by an order of 15 December 1995, reasoning that the proceedings were at a too early stage, that the applicant had been charged with a serious intentional offence and that there was no indication that he would not abscond, obstruct the investigation or commit another offence. In particular, the applicant was in hiding. 28. On the same date the investigator again proposed that the proceedings be stayed on the ground that neither the applicant, nor Mr E.S.A. could be located. 29. On 20 December 1995 the applicant's lawyers unsuccessfully requested from the Sofia City Prosecutor's Office to replace the investigator. 30. On 8 January 1996 the Sofia City Prosecutor's Office stayed the proceedings because Mr E.S.A. had to be summoned from Germany, where he was living, for questioning. 31. On 22 January 1996 the applicant's lawyers requested from the Chief Prosecutor's Office to rescind the order for the applicant's detention. The Chief Prosecutor's Office refused. It reasoned that there was no indication that if not in custody, the applicant would not abscond, obstruct the investigation or commit another offence. In particular, he was in hiding. 32. On 29 January 1996 the proceedings were resumed because Mr E.S.A. had arrived in Bulgaria and could be questioned. During questioning he stated that the person who had assaulted him with a hammer had been a man of medium height, aged between thirty and thirtyfive years, with short hair and brown eyes. In contrast to his earlier statement, he testified that the attacker had been lightskinned. 33. On 30 January 1996 Mr E.S.A. was questioned again and said that during the 13 April 1995 identification he had been presented with five or six pictures, not nine as had been stated in the record. 34. On 28 February 1996 the applicant's lawyers again requested from the Chief Prosecutor's Office to rescind the order for the applicant's detention. They argued that the evidence thus far adduced convincingly demonstrated that the applicant was not Mr E.S.A.'s attacker. The Chief Prosecutor's Office replied that it could not rule on the request. 35. A renewed request dated 4 March 1996 remained unanswered. 36. On 29 March 1996 the investigator proposed that the proceedings be stayed because the applicant was missing. 37. By an order of 8 April 1996 the Sofia City Prosecutor's Office refused to stay the proceedings and sent the case back to the investigator, reasoning that its earlier instructions for additional investigative steps had not been complied with and that key pieces of evidence had not been gathered. It also noted that no effective actions had been undertaken to locate and apprehend the applicant. 38. In the meantime, on or about 10 March 1996, an investigation relating to the robbery of Ms M.V.'s car (see paragraph 12 above) was opened by the Sofia District Prosecutor's Office. 39. On 9 April 1996 the picture of the applicant appeared in the daily newspapers. When Ms M.V. saw the pictures, she went to the police and stated that it was the applicant who had robbed her car. 40. On 8 May 1996 the applicant, after consulting with his lawyers, turned himself in. He was then formally presented with the charges against him. 41. On 16 May 1996 Ms M.V. was questioned. She described the offender as a twentyfive year old man with a large mouth and big eyes. 42. On 17 May 1996 the applicant was charged with robbing Ms M.V.'s car. 43. On 11 June 1996 the investigator in the proceedings relating to Mr E.S.A.'s robbery recommended that the charges against the applicant be dropped, as it appeared that he was not the offender. By an order of 21 June 1996 the Sofia City Prosecutor's Office refused and returned the case for further investigation. 44. On 18 June 1996 the Sofia City Prosecutor's Office, which was supervising the proceedings relating to Mr E.S.A.'s robbery, took charge of the investigation relating to Ms M.V.'s robbery as well. It ordered an additional questioning of Ms M.V. with a view to establishing, inter alia, on what basis she was able to identify the applicant and whether she was categorical about that. 45. On 24 July 1996 the two investigations were merged. 46. On 19 November 1996 the investigator proposed that the applicant be committed for trial for the alleged robbery of Ms M.V.'s car but that the charges in respect of the robbery of Mr E.S.A. be dropped. 47. On 4 January 1997 the Sofia City Prosecutor's Office refused to drop the charges, ordered additional investigative actions, and decided that the applicant was to be indicted for both offences. 48. On 23 January 1997 the investigator presented the applicant with the amended charges, proposed that he be committed for trial and transmitted the case file to the Sofia City Prosecutor's Office. 49. On 5 March 1997 the Sofia City Prosecutor's Office submitted to the Sofia City Court a twocount indictment against the applicant. 50. On 10 March 1997 the reporting judge set the case down for hearing on 35 February 1998 and ordered that Mr E.S.A. be summoned from Germany, where he resided, by letter rogatory. 51. The summons was served on Mr E.S.A. not later than 28 August 1997. 52. The first hearing was held on 35 February 1998, at which another judge was presiding. The court heard testimony from at least fourteen witnesses. A second hearing was scheduled for 30 June 1998 because Ms M.V. and two other witnesses failed to show up. 53. During the hearing on 30 June 1998 the Sofia City Court questioned Ms M.V. and the other witnesses. Mr E.S.A.'s testimony from the preliminary investigation was read out before the court because he was absent from the hearing. 54. On 1 July 1998 the Sofia City Court gave judgment, acquitting the applicant of all charges against him. However, the court did not announce the reasons for its judgment until 8 December 1998. It held that Ms M.V.'s and Mr E.S.A.'s testimony regarding the physical features of the offender was very unreliable. The court also refused to take into account the results of the photograph identification made on 13 April 1995 by Mr E.S.A. (see paragraph 13 above), holding that it had been effected in breach of the relevant rules of evidence and was thus inadmissible. Finally, the court found it established that the applicant had an alibi in respect of both alleged offences. As regards the first alleged offence, it found that at the time of the robbery of Mr E.S.A. the applicant had been in Novi Pazar because the shop he had been managing there had been robbed several days before that. As regards the second alleged offence, the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend. 55. On 13 July 1998 the Sofia City Prosecutor's Office appealed against the judgment to the Sofia Court of Appeals, stating that the Sofia City Court had not properly established the facts. The appeal did not mention further particulars in support of this position and stated that additional arguments would be provided after the announcement of the reasons for the judgment by the Sofia City Court. 56. On 17 July 1998 the applicant's lawyer requested the Sofia Court of Appeals to declare the prosecution's appeal inadmissible for failure to specifically describe the non-elucidated facts. 57. On 29 December 1998, after having received on 8 December the reasons for the Sofia City Court's judgment (see paragraph 54 above), the Sofia City Prosecutor's Office filed an “additional submission” which contained detailed arguments in support of its appeal. It submitted that the Sofia City Court had erroneously assessed certain witness testimony and that its findings of fact had not reflect correctly the evidence presented. 58. On 13 January 1998 the applicant's lawyer made an objection, arguing that the prosecution's appeal should be declared inadmissible as the first filing had been defective and the “additional submission” – allegedly the valid appeal – had been lodged out of time. 59. The Sofia Court of Appeals accepted the appeal for consideration, briefly noting that the detailed argumentation had been filed later because of the late announcement of the reasons for the Sofia City Court's judgment and that there was no indication that the appeal was out of time. 60. A hearing was held on 11 March 1999 at which oral argument was heard but no new evidence presented. 61. On the same date the Sofia Court of Appeals quashed the acquittal and remitted the case to the Sofia City Prosecutor's Office on the ground that on 23 January 1997 the applicant had been charged in violation of the procedural requirements, his signature being missing from the minutes of the charging. Thus, it was unclear whether he had understood the nature and the cause of the accusation against him. That amounted to a serious violation of the applicant's defence rights, despite the fact that his lawyers had been present at the charging. 62. The court's judgment was not subject to appeal, as it did not put an end to the criminal proceedings. 63. On 12 May 1999 the Sofia City Prosecutor's Office returned the case to the investigator, instructing him to carry out certain investigative actions. 64. The applicant was charged anew on 14 July 1999. The investigator recommended his committal for trial. 65. On 2 November 1999 the Sofia City Prosecutor's Office submitted to the Sofia City Court an indictment against the applicant. 66. On 5 November 1999 the reporting judge set the case down for hearing on 1, 2 and 5 June 2000. 67. The Sofia City Court held several hearings on 1, 2 and 5 June, 10 October and 2 November 2000 and 2 February and 8 March 2001. 68. In a judgment of 8 March 2001 the Sofia City Court again acquitted the applicant of all charges against him. The court held that Mr E.S.A.'s testimony about the physical features of the offenders was controversial and unreliable. It also held that the photograph identification was inadmissible because effected in breach of the relevant rules of evidence (see paragraph 13 above). The court went on to hold that Ms M.V.'s testimony about the physical features of the person who had robbed her was likewise unreliable. The court further held that the applicant had an alibi for both offences. As regards the first alleged offence, from 10 till 12 April 1995 the applicant had been in Novi Pazar, because the shop he had been managing there had been robbed on 9 April 1995. He had stayed at a friend's house and had met officers from the local police station and several other persons. He had taken a train in the evening of 12 April, at 11.55 p.m., and had arrived back in Sofia in the morning of 13 April 1995. As regards the second alleged offence, the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend. 69. On 3 April 2001 the Sofia City Prosecutor's Office appealed against the judgment to the Sofia Court of Appeals. 70. The Sofia Court of Appeals held a hearing on 5 October 2001. 71. In a judgment of 23 January 2002 the Sofia Court of Appeals upheld the acquittal. 72. No appeal was lodged against the judgment and it entered into force on 11 February 2002. 73. On 8 May 1996 the applicant turned himself in and was detained pursuant to the investigator's order of 5 September 1995 (see paragraph 15 above). 74. On 17 May 1996, when the applicant was also charged with robbing Ms M.V.'s car, his detention was confirmed by the investigator on the ground that another investigation was pending against him. 75. On 24 June 1996 the Sofia City Prosecutor's Office held, in response to an application for bail, that the applicant had been charged with a serious intentional offence, that there was a risk that he would flee, jeopardise the investigation, or reoffend. In particular, prior to his arrest he had been hiding. Also, another investigation was pending against him, which, according to Article 152 § 3 of the CCP, made detention mandatory. It therefore refused bail. 76. On 11 September 1996 the applicant again applied for bail. 77. On 24 September 1996 a prosecutor from the Sofia City Prosecutor's Office granted bail, but apparently his order was not found in the case file and was never put into effect. 78. On 26 September 1996 the deputyhead of the Sofia City Prosecutor's Office reversed the bail order, holding that under Article 152 § 2 of the CCP a detainee charged with a serious intentional offence could only be released if there existed serious indications that he or she would not abscond, obstruct the investigation or commit an offence. In the case at hand this prerequisite was missing. On the contrary, the available information indicated that there was a serious risk of the applicant fleeing or committing an offence, because he had been hiding for ten months prior to his arrest. Moreover, another investigation was pending against him, which excluded release on bail. 79. The applicant's lawyer appealed against this order to the Chief Prosecutor's Office. By an order of 14 October 1996 the Chief Prosecutor's Office dismissed the appeal. It held that the applicant had been charged with two serious intentional offences and that sufficient evidence pertaining to his guilt had been collected. Furthermore, in view of the nature of the alleged offences, the applicant's release could seriously obstruct the investigation. There was also a danger that the applicant could flee. 80. On 10 March 1997 the reporting judge at the Sofia City Court held of her own motion that there were no grounds for granting bail at that point and decided to continue the applicant's detention. 81. On 7 May 1997 the applicant's lawyer requested the applicant's release. It was argued that the investigation had already been completed and that there was hence no risk of the applicant jeopardising it, and that there was no indication that if released the applicant, who was a student and wished to continue his education, would commit an offence. Moreover, the applicant had not tried to hide because he had never been properly summoned. 82. In a decision of 8 May 1997 made in private the reporting judge refused bail. She held that the applicant had been charged with serious intentional offences, which meant that release was only possible if the exception of Article 152 § 2 of the CCP was applicable. However, prior to his arrest the applicant had been hiding for approximately ten months, thus demonstrating his intention to jeopardise the investigation. On the other hand, another investigation was pending against him, which, under Article 152 § 3 of the CCP, excluded the possibility for release. 83. The applicant did not appeal against the decision. 84. On an unspecified date in August or September 1997 the applicant's lawyer again requested the applicant's release, arguing that he had a permanent address and was enrolled in university and that his girlfriend had given birth to his baby on 9 October 1996. 85. The reporting judge at the Sofia City Court rejected the applicant's request in a decision of 8 September 1997 made in private. She held, inter alia, that the applicant's lengthy hiding had hindered the investigation and that another investigation was pending against him for a robbery allegedly committed in Novi Pazar. It appears that the judge was referring to the investigation into the robbery of the applicant's girlfriend's shop, in which the applicant was not the suspect, but the victim (see paragraph 23 above). 86. On 18 September 1997 the applicant's lawyer appealed against the decision to the Supreme Court of Cassation. She lodged the appeal with the Sofia City Court, but on 22 September 1997 the court rejected it as inadmissible, holding that, being his mother and having been questioned as a witness, the applicant's lawyer could not also act as his defence counsel. Following this, the same day the applicant lodged an appeal in person. He argued that he had not been hiding: he had been taking his university examinations and staying in hotels; the authorities had never made an effective effort to find him. He further explained the misunderstanding concerning the investigation in Novi Pazar. In addition, he complained that the Sofia City Court had failed to address the question of the reliability of the evidence on which the charges had been based or to consider the factors militating against his continued detention. The reporting judge examined the appeal, and having found no grounds to vary its decision, sent it together with the casefile to the Supreme Court of Cassation. 87. On 7 October 1997 the Supreme Court of Cassation, sitting in private and in the presence of a prosecutor who argued that the appeal was ill-founded, dismissed the appeal. It noted that the applicant had been charged with two serious intentional offences, that he had been hiding and that there had been no change in circumstances warranting his release. Despite the applicant's explanation concerning the misunderstanding in respect of the Novi Pazar investigation, the Supreme Court of Cassation repeated the reference to an investigation pending against him there. 88. On 5 February 1998, the third day of the trial, the Sofia City Court granted bail, setting the amount at five million old Bulgarian levs. The court held that prior to his arrest the applicant had been in Svishtov taking his university examinations, that there was no indication that he would abscond, that his clean criminal record suggested that there was little danger of him committing an offence, and that there was no risk that he would obstruct the investigation. The applicant posted bail the same day and was released on 6 February 1998. 89. Article 199 § 1 (1) of the Criminal Code (“the CC”), read in conjunction with Article 198 § 1 thereof, provides that robbery of chattels in large amounts is punishable by five to fifteen years' imprisonment. 90. At the relevant time and until the reform of the CCP of 1 January 2000 the accused could be detained by decision of an investigator or a prosecutor. In cases where the decision to detain had been taken by an investigator without the prior consent of a prosecutor, it had to be approved by a prosecutor within twentyfour hours (see Nikolova v. Bulgaria [GC], no. 31195/96, § 28, ECHR 1999II). 91. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2527 and 29 of the Court's judgment in the case of Nikolova v. Bulgaria (cited above). 92. Article 152 §§ 1 and 2 of the CCP, as in force at the relevant time, provided as follows: “1. Pretrial detention shall be ordered [in cases where the charges concern] a serious intentional offence. 2. In the cases falling under paragraph 1 [pretrial detention] may be dispensed with if there is no risk of the accused obstructing the course of justice, absconding or committing further offences.” 93. Article 93 § 7 of the CC defines a “serious” offence as one punishable by more than five years' imprisonment. 94. The Supreme Court's practice at the relevant time (it has now become at least partly obsolete as a result of amendments to the CCP in force since 1 January 2000) was that Article 152 § 1 required that a person charged with a serious intentional offence 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 reoffending 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.). 95. Paragraph 3 of Article 152, as in force until 11 August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused, or where he or she was a repeat offender. 96. 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 court considered that Article 152 § 3 of the CCP 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. 97. Article 152 § 5 of the CCP, as in force until August 1997, provided as follows: “The detained person shall be provided immediately with a possibility of filing an appeal with the competent court against the [imposition of detention]. The court shall rule within a time-limit of three days from the filing of the appeal by means of a final decision.” 98. The Supreme Court has held that, in deciding on appeals against pretrial detention, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order (опред. № 24 от 23 май 1995 г. по н.д. 268/1995 г. на ВС I н.о.). 99. In a decision of 17 September 1992 the Supreme Court found that the imposition of pretrial detention could be contested before a court only once (опред. № 94 по н.ч.х.д. 754/1992 г. на ВС I н.о.). Thus, until the amendment of the CCP in August 1997, periodic judicial review of the lawfulness of detention was only possible when the criminal case was already pending before a court. 100. After the prosecution has filed an indictment against the accused with the court and the case is being prepared for trial, it is the reporting judge from the trial court who rules on all requests relating to the accused's detention (Article 255 of the CCP). In May 2003 that provision was amended, providing that the reporting judge has to hold a public hearing in the presence of the detainee and his counsel. Before that it was silent on the issue. The reporting judge's decision is subject to appeal to the higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 317 § 2 until February 1998 and Article 318 § 2 after that), which verifies whether there exist grounds for it to vary its decision (Article 347). If it finds no such grounds, it sends the appeal together with the casefile to the higher court. Article 348 § 1 provides that the higher court may examine the appeal in private or, if it considers it necessary, at a public hearing. 101. It follows from Article 304 § 1 of the CCP that the detainee's requests for release during the trial are examined by the trial court.