NENKOV v. BULGARIA
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Georgi Istilyanov Nenkov, is a Bulgarian national who was born in 1927 and lives in the village of Mala Tsarkva, near the town of Samokov. He was represented before the Court by Mr L. Klyavchev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Pasheva, of the Ministry of Justice. On the morning of 7 April 1999 the applicant went to a neighbouring village on business. While on his way back to his home village, he allegedly met a neighbour, Mr N.N., who was transporting stones in a horsecart. Apparently the applicant and Mr N.N. had for a number of years been involved in a property dispute relating to a plot of agricultural land owned by the applicant. After that the applicant had lunch in his house and at about 2 p.m. went to clean the abovementioned plot of land. He saw a pile of stones there and started throwing them out. Then Mr N.N. allegedly tried to enter the applicant’s plot with his cart. The applicant took a pole and tried to hit Mr N.N.’s horse. According to the applicant’s allegations, at that point Mr N.N. struck him in the face with a pitchfork and then knocked him on the back of the head with it. The assault left the applicant blinded and bleeding. After that he reportedly heard the noise of a horsecart driving away. There were no other persons present at the scene. Some time later Mr D. and Mr R.S. arrived at the scene of the incident. Mr R.S. took the applicant to a hospital. They did not witness the incident, but the applicant told them that Mr N.N. had assaulted him. As a result of the pitchfork blow to the face, the applicant lost the sight of both eyes. The same day the police opened a preliminary inquiry (see below, Relevant domestic law and practice) into the incident and impounded two pitchforks from Mr N.N.’s house. They did not apprise the competent prosecutor of the impounding. It seems that in the course of the inquiry Mr N.N. admitted to having hit the applicant. Later, a criminal investigation was opened and on an unspecified date in 2000 Mr N.N. was charged with inflicting grievous bodily harm on the applicant, contrary to Article 128 §§ 1 and 2 of the 1968 Criminal Code (see below, Relevant domestic law and practice). The investigation authorities interviewed the applicant, seven witnesses, and Mr N.N., who denied any wrongdoing. A medical expert report drawn up during the proceedings found that the applicant had completely lost the sight in his left eye, and could only distinguish light from dark with his right eye. The report also established that the injuries were consistent with a pitchfork blow as the one described by the applicant. The report concluded that the applicant had become permanently blind in both eyes, which amounted to grievous bodily harm, while the other injuries, to his face and the back of his head, were minor. On 2 November 2000 the applicant applied to join the proceedings as a private prosecutor and a civil claimant. On an unspecified date the investigator in charge of the case sent the file to the Samokov District Prosecutor’s Office with a proposal to indict Mr N.N. In a decision of 13 February 2001 a prosecutor of the Samokov District Prosecutor’s Office decided to drop the charges against Mr N.N. and discontinue the investigation in respect of him, continuing it against an “unknown perpetrator”. She reasoned that he had denied his guilt and that, apart from the applicant, there were no eyewitnesses who could positively establish the identity of the perpetrator of the offence; the statements of the witnesses could not fill this lacuna. It followed that the charges could not be proved beyond reasonable doubt, whereas a conviction or even an indictment could not rest on inferences. All possible investigative steps had been taken and no further incriminating evidence had been uncovered. It was true that the police had impounded a pitchfork on the day of the offence, but it could not be admitted in evidence, as the impounding had not been carried out in accordance with the relevant rules of procedure. According to the Supreme Court’s caselaw, all acts of procedure carried out prior to the institution of criminal proceedings, within the framework of a preliminary inquiry under Article 191 of the 1974 Code of Criminal Procedure (“the CCP” – see below, Relevant domestic law and practice), could exceptionally be considered valid only if they had been undertaken with the knowledge of the competent prosecutor. In the case at hand the competent prosecutor at the Samokov District Prosecutor’s Office had not been informed of the impounding either before or immediately after it had been carried out. Under Article 85 § 2 of the CCP (see below, Relevant domestic law and practice), this omission had compromised the evidence thus obtained. Finally, the prosecutor decided to stay the investigation, as the identity of the perpetrator was unknown. In line with Article 237 § 3 of the CCP, as in force at the relevant time (see below, Relevant domestic law and practice), the Samokov District Prosecutor’s Office sent a copy of the decision to the Sofia Regional Prosecutor’s Office. On 21 February 2001 that office confirmed it, citing the same reasons. It added that the impounding had not been carried out in the presence of certifying witnesses, that the scene of the crime had not been preserved, that after the incident of 7 April 1999 Mr N.N. had not been examined for traces of blood on him, and that he had an alibi, confirmed by three witnesses. No other investigative steps were possible. A copy of the prosecutor’s decision was sent to the Sofia Regional Court. In a decision of 2 March 2001 it also confirmed the discontinuation, agreeing with the prosecutors’ reasoning. The applicant was not notified of the court’s decision. After he found out about it, on 19 March 2001 he lodged an appeal with the Sofia Regional Prosecutor’s Office. On 5 April 2001 that office dismissed the appeal, informing the applicant that the discontinuation of the proceedings was not subject to appeal. The review procedure was automatic and had already taken place. On 20 April 2001 the applicant requested the Chief Prosecutor to reopen the investigation. In reply, on 6 June 2001 the Supreme Cassation Prosecutor’s Office informed the applicant that following the amendments of the CCP which had come into force on 1 May 2001 (see below, Relevant domestic law and practice) it was not possible to reopen criminal investigations whose discontinuation had been confirmed by a court. On 5 October 2001 the applicant resubmitted his request and as a result on 28 February 2002 the Chief Prosecutor requested the Supreme Court of Cassation to reopen the criminal investigation. He argued that the decisions to discontinue it were overly formalistic and not sufficiently reasoned, and that the competent authorities had not properly assessed the evidence. In his view, this constituted grounds for reopening under Article 362 § 1 (5) in conjunction with Article 352 § 1 (2) of the CCP (see below, Relevant domestic law and practice). In a judgment of 25 April 2002 (реш. № 254 от 25 април 2002 г., по н.д. 136/2002 г., ВКС, ІІ н.о.) the Supreme Court of Cassation rejected the Chief Prosecutor’s request as inadmissible. It noted that reopening had been possible prior to 1 May 2001. However, under the amendments to the CCP of that date prosecutors alone had competence to discontinue criminal proceedings. Their decisions were subject to appeal before the respective firstinstance courts, whose decisions were subject to appeal and then to appeal on points of law (see below, Relevant domestic law and practice). The counterpoise of these newly introduced possibilities to appeal had been the withdrawing of the possibility of setting aside the court’s decision by way of reopening. The Act for the amendment of the CCP contained no provisions allowing judicial decisions confirming discontinuations of criminal investigations under the old system to be reviewed in reopening proceedings. No investigative steps were taken between 2002 and 2007 in the investigation against an “unknown perpetrator”. Articles 128, 129 and 130 of the 1968 Criminal Code make it an offence to inflict bodily harm on another. Harm is classified as minor, intermediate or grievous by reference to medical criteria laid down in the second paragraphs of these Articles. Permanent blindness in one or both eyes constitutes grievous bodily harm (Article 128 § 2 of the Code). Inflicting grievous bodily harm is a publicly prosecutable offence in all cases (Article 161 of the Code). Criminal proceedings for publicly prosecutable offences could be opened only by the decision of a prosecutor or an investigator (Article 192 §§ 1 and 2 of the CCP, as in force at the relevant time). They had to open an investigation whenever they received information, supported by sufficient evidence, that an offence might have been committed (Articles 186 to 190 of the CCP). If the investigation authorities did not have enough evidence to institute criminal proceedings and no immediate investigative steps were required, they could carry out a preliminary inquiry (“предварителна проверка”) to determine whether the institution of criminal proceedings was warranted. The inquiry could be opened by the investigator or the police, who had to inform the competent prosecutor, or be ordered by the prosecutor (Article 191 § 1 of the CCP, as in force at the material time). The authorities carrying out the inquiry could search the crime scene and impound objects they found there if this was the only opportunity for preserving the evidence. The investigator had to inform the prosecutor about these actions forthwith (Article 191 § 2 of the CCP, as in force at the material time). Evidence which was not gathered in the manner prescribed by the CCP was inadmissible (Article 85 § 2 of the CCP). According to the Supreme Court’s caselaw, this requirement meant that the results of investigative actions undertaken before the institution of criminal proceedings could be taken into account only if they had taken place in the course of a preliminary inquiry. It followed that the competent prosecutors had to be apprised promptly, so as to be able to exercise their supervisory powers. This was an essential prerequisite for the results of these actions to be taken into account in the ensuing criminal proceedings. The failure to inform the prosecutor had the effect of compromising these actions and the evidence obtained through them (реш. № 302 от 27 юли 1995 г. по н.д. № 169/ 1995 г., ВС, I н.о.). Article 60 § 1 of the CCP provided that the victim of an offence who had suffered damage could bring a civil claim in the context of the criminal proceedings. Until June 2003 such a claim could be lodged even during the preliminary investigation (Article 60 § 1 of the CCP, as in force until June 2003). After that it could be made only after the case had proceeded to trial (Article 60 § 1 of the CCP, as in force after June 2003). The latter position was maintained under Article 84 § 1 of the 2005 Code of Criminal Procedure. Civil claimants are entitled to take part in the proceedings, acquaint themselves with the case file and make copies, adduce evidence, make requests and objections, and challenge the decisions which impinge on their rights and legitimate interests (Article 63 § 1 of the CCP and Article 87 § 1 of the 2005 Code). The 2005 Code of Criminal Procedure gave the victims of offences certain rights which do not depend on their joining the proceedings as private prosecutors or civil claimants. Under Article 75 § 1 of this Code, they are entitled to be apprised of their procedural rights, be kept abreast of the progress of the proceedings, if they have so requested, and challenge the decisions to discontinue the proceedings. By Article 237 § 1 (2) of the CCP, as in force until 30 April 2001, public prosecutors discontinued proceedings if they found that the charges had not been proven. Paragraphs 3 and 4 of that Article, as in force between 1 January 2000 and 30 April 2001, provided that after the discontinuation the prosecutor had to send the file and his decision to the immediately superior prosecutor’s office, which could confirm, modify or quash it. If it confirmed the decision it had to send the file to the appropriate court, which had to rule in private on the wellfoundedness or otherwise of the discontinuation (Article 237 §§ 5, 6 and 7 of the CCP, as in force at that time). Paragraph 9 of that Article provided that the court’s decision was not subject to appeal. No provision was made for the victim of the offence to be notified of the discontinuation. Article 237 of the CCP was completely changed with effect from 1 May 2001 and henceforth provided that the prosecutor’s decision to discontinue the proceedings was to be served on the accused and the victim of the alleged offence. Either of them could then appeal against it to the respective firstinstance court within seven days. The court’s decision was in turn subject to appeal to the higher court within seven days of its delivery (Article 344 § 1 of the CCP, as in force between 1 May 2001 and May 2003, and Article 345 § 1 of the CCP). The higher court’s decision was then subject to appeal on points of law to the Supreme Court of Cassation, within fifteen days of its delivery (Article 349 § 5 of the CCP, as in force between 1 May 2001 and May 2003, and Article 353 of the CCP). In May 2003 the CCP was amended again, following which the firstinstance court’s decision was not subject to appeal. Under the 2005 Code of Criminal Procedure, the decision of the firstinstance court to uphold the discontinuation of a criminal investigation by the prosecutor is served on the accused and the victim of the offence and is subject to appeal before the higher court, but the latter’s decision is not appealable on points of law (Article 243 §§ 3, 6 and 7 of that Code). Article 359 of the CCP enumerated the judicial rulings which could be set aside by way of reopening. In its version between 1 January 2000 and 30 April 2001 the list included the decisions confirming the discontinuation of a criminal investigation by the prosecutor (see above). The amendment to the CCP which entered into force on 1 May 2001 (see above) removed those decisions from the list, with the result that decisions upholding the discontinuation of a criminal investigation made after its entry into force were not annullable by way of reopening. However, the amendment was silent on the issue whether such decisions made prior to its entry into force were likewise no longer capable of being set aside by way of reopening. The issue was settled in a couple of judgments given by the First and the Second Criminal Chambers of the Supreme Court of Cassation in April 2002: the judgment in the applicant’s case and a judgment delivered three days earlier, on 22 April 2002 (реш. № 168 от 22 април 2002 г. по н.д. № 34/2002 г., ВКС, I н.о.). In both of them the court, after analysing in some detail the amendment’s overall scheme, ruled, against the views of the Chief Prosecutor, that decisions made prior to the entry of the amendment into force – 1 May 2001 – could not be set aside by way of reopening. A majority of the First Criminal Chamber of the court confirmed this approach in a decision of 14 March 2003 (опр. № 550 от 14 март 2003 г. по н.д. № 273/2002 г., ВКС, I н.о.), against the dissent of the presiding judge, who was of the view that reopening was still available in respect of decisions made before 1 May 2001. Article 419 § 1 of the 2005 Code of Criminal Procedure provides that judicial decisions upholding the discontinuation of a criminal investigation by the prosecutor are capable of being set aside by way of reopening. Requests for reopening are examined by the Supreme Court of Cassation (Article 363 of the CCP and Article 424 § 1 of the 2005 Code of Criminal Procedure). Requests based on material breaches of the substantive or the procedural law (Article 362 § 1 (5) in conjunction with Article 352 § 1 (1) and (2) of the CCP, superseded by Article 422 § 1 (5) in conjunction with Article 348 § 1 (1) and (2) of the 2005 Code of Criminal Procedure), can be made only by the Chief Prosecutor (Article 361 § 1 in fine of the CCP).