CASE OF NIKOLOVA v. BULGARIA (No. 2)
Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant was born in 1943 and lives in Plovdiv. 9. The applicant used to work as a cashier and accountant in a stateowned company. 10. An audit of the company at the beginning of 1995 revealed a cash deficit of 1,290,059 old Bulgarian levs. 11. In February 1995 the applicant was given a copy of the audit’s final act, which contained the auditors’ opinion that, inter alia, during the period 199194 she had deliberately made false entries in the accounting books and had thus misappropriated funds. 12. On 15 March 1995 the Plovdiv Regional Prosecutor’s Office opened a preliminary investigation in respect of the applicant and three other employees of the company. It seems that the applicant became aware of the investigation soon after its opening. The case was sent for investigation to the Plovdiv Regional Investigation Service. The prosecutor in charge of the case indicated a number of specific facts which the investigator had to establish and ordered that the investigation be completed within sixty days. 13. On 10 August 1995 the Regional Prosecutor’s Office, noting that no investigative steps had been taken until that moment despite its instructions of 15 March 1995, directed the investigator immediately to start working on the case and finalise the investigation within sixty days. 14. In the following months the applicant was questioned several times. The investigation authorities also questioned a number of witnesses and gathered documents and other evidence. 15. On 24 October 1995 the applicant was charged under Article 203 § 1 in conjunction with Articles 202 § 1 (1) and 201 of the Criminal Code (“CC”) with particularly aggravated misappropriation of funds in particularly large amounts, the commission of which had been facilitated by other offences (making of official documents containing false information and abuse of office) carrying a lesser penalty. 16. On 6 November 1995 the Regional Investigation Service asked the Regional Prosecutor’s Office for a sixtyday extension of the timelimit for the completion of the investigation. On 14 November 1995 the Regional Prosecutor’s Office granted the extension. 17. On 11 January 1996 the Regional Investigation Service asked the Chief Prosecutor’s Office to extend the time-limit for the completion of the investigation with a further sixty days. It stated that all witnesses had already been questioned and a vast amount of accounting and other documents relating to the applicant’s criminal activity spanning over three years had been seized. A graphological expert report had been drawn up in respect of some of these documents. An accounting expert report was in the works, but would not be ready within the time-limit previously set for the completion of the investigation, because it required the processing of a large number of accounting documents. On 18 January 1996 the Chief Prosecutor’s Office acceded to this request. 18. On 25 June 1996 the investigator reformulated the charges against the applicant and notified her accordingly. 19. On 2 July 1996 the investigator allowed the applicant and her counsel to acquaint themselves with the case file. 20. A few days later the investigator concluded his work on the case and sent the file to the Regional Prosecutor’s Office with the proposal to commit the applicant for trial. 21. On 27 November 1997 the Regional Prosecutor’s Office found that the evidence thus far collected indicated that the misappropriation of funds allegedly committed by the applicant and by one of her co-accused was not particularly aggravated. Moreover, in the meantime she had restored part of the money. Accordingly, it decided to prosecute the applicant for nonaggravated misappropriation of funds (Article 202 of the CC). As this offence fell within the jurisdiction of the District Court, it sent the file to the District Prosecutor’s Office. 22. On 30 March 1998 the District Prosecutor’s Office discontinued the criminal proceedings against two of the co-accused, as it found that the minor nature of the offences allegedly committed by them allowed an administrative prosecution. It decided to pursue the case against the applicant and the fourth co-accused. 23. On 1 January 2000 amendments to the Code of Criminal Procedure (“CCP”) entered into force, providing, inter alia, that criminal proceedings could be discontinued before the end of the trial with a plea agreement between the prosecution and the defence. 24. On 7 January 2000 the District Prosecutor’s Office indicted the applicant. 25. On 25 January 2000 the prosecution and the applicant entered into a plea agreement whereby the applicant pleaded guilty and was sentenced to three years’ imprisonment, suspended for five years, and occupational disbarment for a period of five years. 26. On 2 February 2000 the plea agreement was approved by the District Court and the proceedings were discontinued. 27. On 24 October 1995 the applicant was arrested and remanded in custody. As grounds for her detention the investigator cited the seriousness of the offence charged against her. 28. On 6 November 1995 the applicant appealed against her detention to the Regional Prosecutor’s Office. She stated that she had not attempted to abscond or obstruct the investigation during the six months since she had become aware of the criminal charges against her, that she was no longer working as a cashier or accountant and could not, therefore, commit other offences, and that she had undergone gynaecological surgery in 1994 and had still not recovered completely. 29. On 9 November 1995 the Regional Prosecutor’s Office confirmed the decision to detain the applicant. It found that she had been charged with a serious offence punishable by more than ten years’ imprisonment and that “therefore, the [detention] [was] lawful: it [was] based on the imperative provision of Article 152 § 1 of the CCP”. It further stated that the question whether or not Article 152 § 2 of the CCP should be applied was to be assessed by the investigator and by the supervising prosecutor. In the applicant’s case the investigator and the supervising prosecutor had not applied Article 152 § 2 of the CCP “in view of the current stage of the proceedings”. It followed that the applicant’s detention was lawful. By a decision of 15 December 1995 the Chief Prosecutor’s Office rejected the applicant’s ensuing appeal against this decision. 30. A further appeal against the applicant’s detention was rejected by the Chief Prosecutor’s Office on 12 January 1996. 31. On 18 January 1996 the Chief Prosecutor’s Office confirmed the applicant’s detention of its own motion. 32. In the meantime, on 14 November 1995, the applicant appealed against her detention to the Regional Court. In his written submissions to the Court the applicant’s counsel stated, in particular, that the decision to detain the applicant had been based solely on the gravity of the charges against her, whereas other important factors had not been taken into account. For instance, the applicant had a permanent address where she lived with her husband and two daughters. Also, she had known about the criminal charges against her for more than six months prior to her arrest but had made no attempt to abscond or obstruct the investigation. Furthermore, the evidence against the applicant was weak, it having been established that six other persons had access to keys to the cashier’s office. The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge. However, no proof was found that the applicant herself had made false entries in the accounting books. The applicant’s counsel also referred to her medical condition and enclosed medical certificates. 33. On 11 December 1995 the court rejected the appeal. It held, inter alia: “[The charges against the applicant] concern a serious offence within the meaning of Article 93 § 7 of the CC, that is, an offence under Article 203 of the CC, punishable by ten or more years’ imprisonment. In this respect there exists the requirement, under Article 152 § 1 of the CCP, that detention be imposed. ... [The medical certificates submitted by the applicant] reflect her state of health during a past period of time. No information concerning her present state of health has been submitted. It follows that at present there exist no circumstances requiring the modification of the measure ‘pre-trial detention’ imposed on the [applicant]. Therefore the appeal is ill-founded and must be dismissed.” 34. On 11 January 1996 the applicant’s counsel requested the investigator in charge of the case to order a medical examination of the applicant with a view to establishing whether the conditions of detention were dangerous for her health. On 19 January 1996 upon the investigator’s order the applicant was examined by three medical experts. In a report of the same date the experts found that the problems related to the surgery which the applicant had undergone more than a year ago (in 1994) did not affect her condition and that she could remain in custody. 35. On 5 February 1996 the applicant was urgently transferred to a hospital due to pain in her gall bladder. She underwent surgery. On the same day her counsel submitted to the Regional Prosecutor’s Office a request for her release in view of her poor health. In addition, he argued that there was no risk of the applicant absconding, obstructing the investigation or committing an offence, because she had become aware of the charges against her six months prior to her arrest but had not attempted to commit any of these acts. 36. On 6 February 1996 the Regional Prosecutor’s Office requested the Regional Investigation Service to comment on the request for the applicant’s release. In particular, the Service was requested to address the issue whether the applicant’s continuing detention was justified in view of the surgery she had undergone. On 13 February 1996 the Regional Prosecutor’s Office ordered the Regional Investigation Service to request an expert medical opinion on the above issue. On 15 February 1996 a group of medical experts was appointed to examine the applicant. The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention. 37. Following this opinion, on 19 February 1996 the Regional Prosecutor’s Office decided to discontinue the applicant’s pre-trial detention in view of her ill health, which was found incompatible with the conditions in detention. It further found that the applicant’s state of health made it impossible for her to flee, obstruct the investigation or commit an offence. Also, the investigation had almost been completed. 38. The same day the applicant was released from custody and placed under house arrest. 39. On an unspecified later date the applicant submitted to the Regional Prosecutor’s Office a request for release. The request was rejected on 14 March 1996. The Regional Prosecutor’s Office held that the applicant’s pre-trial detention had been replaced by house arrest because it had been found that the applicant’s health was incompatible with the conditions in detention and, moreover, the risk of her absconding or re-offending was objectively excluded in view of her illness. Unlike pre-trial detention, house arrest was not incompatible with her state of health, because there she could undergo medical examinations and treatment. The applicant had not requested permission to leave her house for specified periods of time to undergo treatment. Thus, there was no need for her to be released. 40. Later in March 1996 the applicant appealed against her house arrest to the Chief Prosecutor’s Office. She argued that there was no risk of her absconding or re-offending. She also referred to her poor health. By a decision of 5 April 1996 the Chief Prosecutor’s Office rejected the appeal, apparently without giving any specific reasons. 41. On 25 June 1996 the investigator confirmed the applicant’s house arrest of his own motion, without giving reasons. 42. On 27 November 1997 the Regional Prosecutor’s Office confirmed the applicant’s house arrest of its own motion, without giving reasons. 43. On 30 March 1998 the District Prosecutor’s Office confirmed the applicant’s house arrest of its own motion, without giving reasons. 44. On 7 April 1998 the applicant’s counsel appealed to the Regional Prosecutor’s Office against the District Prosecutor’s Office’s decision to confirm the house arrest. He stated that it had lasted for over two years and that there was no indication that the applicant would abscond or re-offend. Moreover, all relevant evidence had already been gathered. 45. On 16 April 1998, apparently before transmitting the appeal to the Regional Prosecutor’s Office, the District Prosecutor’s Office reviewed the matter and decided to grant bail. It stated that the investigation authorities had sent the case to the prosecution twice and it had been returned for further clarifications each time. As of that time the file was at the investigation and there was no indication that it would be received at the District Prosecutor’s Office any time soon. The further continuation of the house arrest would amount to mere repression, since all relevant evidence had already been gathered and there was no risk of the applicant obstructing the investigation. It also added that the requests for release submitted in early 1996 were apparently rejected because at that time the applicant’s deprivation of liberty had not lasted very long. 46. Article 203 § 1 of the CC, read in conjunction with Articles 202 § 1 (1) and 201, provides that particularly aggravated misappropriation of funds in particularly large amounts, the commission of which has been facilitated by another offence which carries a lesser penalty, is punishable by ten to thirty years’ imprisonment. 47. By Article 202 § 1 (1) of the CC, read in conjunction with Article 201, misappropriation of funds in not particularly aggravated cases is punishable by one to ten years’ imprisonment, if its commission has been facilitated by another offence which carries a lesser penalty. 48. The legal grounds for detention pending trial are set out in Article 152 of the CCP, the relevant part of which, as worded at the material time, provided as follows: “1. Pre-trial detention trial shall be ordered [in cases where the charges concern] a serious intentional crime. 2. In the cases falling under paragraph 1 [pre-trial detention] may be dispensed with if there is no risk of the accused absconding, obstructing the investigation or committing a further crime. ...” 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’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 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.). 51. Under Article 146 of 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 prosecuted offence. Apart from pretrial detention, one such measure is house arrest. 52. Article 147 of the CCP, as in force at the relevant time, provided that measures to secure appearance were intended to prevent the accused from absconding, re-offending, or thwarting the establishing of the truth. When imposing a particular measure, the competent authority had to have regard to the dangerousness of the alleged offence, the evidence against the accused, his or her health, family status, profession, age, etc. (Article 147 § 2). 53. Article 151 of the CCP, as in force at the material time, defined house arrest as follows: “House arrest shall consist of a prohibition for the accused to leave his [or her] home without permission by the respective organs.” 54. 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].” 55. 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 or her 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). 56. 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 control of house arrest.