CORETCHI v. BULGARIA
Inadmissible
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
1. The applicant, Mr Fiodor Dumitru Coretchi, is a Moldovan national who was born in 1960 and lives in Ialoveni, Moldova. He was represented before the Court by Ms A. Dadu, a lawyer practising in Ialoveni. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. 2. The applicant complained, in particular, about having been unlawfully detained in Bulgaria pending extradition to Moldova. 3. On 8 February 2010 the application was communicated to the Government. Later the same month the Moldovan Government was informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. They chose not to avail themselves of this right. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 2001 the Moldovan investigating authorities came upon information leading them to suspect that in 1998 the applicant had been involved in a car theft. However, they were unable to question him as he had left Moldova earlier the same year to work in Greece. In 2002 they issued an international warrant for his arrest through Interpol. 6. On 31 July 2004, when crossing into Bulgaria from Greece, the applicant was arrested by the Bulgarian border police on the basis of the warrant issued by the Moldovan authorities. He was informed in the presence of an interpreter that he was being arrested in connection with that warrant. The same day the police ordered that he be held under arrest for twenty-four hours under section 70(1)(6) of the 1997 Ministry of Internal Affairs Act (see paragraph 36 below). The applicant was given a copy of the order. He surrendered his car to the border police. 7. On the same day, 31 July 2004, the Moldovan authorities confirmed their intention to their Bulgarian counterparts to submit an official request for the applicant’s extradition to Moldova. Later that day the National Interpol Office within the Bulgarian Ministry of the Interior informed the Sofia city prosecutor about the applicant’s arrest. 8. The prosecutor then issued an order for the applicant’s detention for seventy-two hours, counting from the expiry of the twenty-four-hour police arrest. The order referred to Article 16 of the 1957 European Convention on Extradition (“the Extradition Convention”), as well as Article 440 of the Bulgarian Code of Criminal Procedure of 1974 (“the 1974 Code”) in conjunction with Article 152a § 3 of the 1974 Code. The order also stated that the regional prosecutor of Blagoevgrad should be immediately put on notice in order to ask the Blagoevgrad Regional Court to authorise the applicant’s further detention. 9. On 4 August 2004 the Blagoevgrad Regional Court ordered the applicant’s detention for forty days, pending receipt of the Moldovan extradition request. On 5 August 2004 he was transferred to Bobov Dol Prison on the basis of that court’s decision. On 11 August 2004 the Bulgarian Prosecution Service informed the Moldovan authorities that the applicant had been detained pending the official Moldovan request for his extradition. Such a request had to reach Bulgaria by 8 September 2004 when the applicant’s forty-day detention would expire. 10. On 7 September 2004 the Bulgarian Supreme Cassation Prosecutor’s Office received the extradition request. The next day that Office extended the applicant’s detention for seventy-two hours following the end of the forty-day detention period ordered by the court. The prosecutor relied on Articles 440 and 440a of the 1974 Code (see paragraphs 28-29 below) and Article 22 of the Extradition Convention (see paragraph 26 below). The Bulgarian Supreme Cassation Prosecutor’s Office additionally instructed the Blagoevgrad regional prosecutor’s office immediately to seek a court order extending the applicant’s detention and to submit the extradition request to the court for examination. 11. On 9 September 2004 the Blagoevgrad Regional Court, in proceedings in which the applicant was assisted by an interpreter and a court-appointed lawyer, refused to authorise the applicant’s extradition to Moldova or his detention for that purpose. The court found in particular that there had been no order in Moldova for the applicant’s detention with a view to his serving a sentence, one of the conditions of the Extradition Convention. On 10 September 2004 the applicant was released from Bobov Dol Prison on the basis of that decision. 12. On 9 September 2004, seeing that the proceedings for the applicant’s extradition were still pending, the regional prosecutor of Blagoevgrad imposed a ban on the applicant leaving the country. The ban was valid until the end of the extradition proceedings and was based on a provision in the 1974 Code which stated that individuals could be banned from leaving the country if criminal proceedings were pending against them (see paragraph 34 below). 13. On 16 September 2004 the applicant registered with the authorities in Blagoevgrad where he took up his residence on a provisional basis. On 20 September 2004 the border police returned the applicant’s car to him. He signed a form confirming that the car was not damaged and that nothing was missing from it. 14. The Bulgarian border police placed the applicant under arrest for twenty-four hours at 12.30 a.m. on 25 September 2004 when he tried to leave Bulgaria by crossing the border with Greece. The order for his arrest was based on section 70(1)(7) of the 1997 Ministry of Internal Affairs Act (see paragraph 36 below) and referred to the arrest warrant issued by the Moldovan authorities in connection with the applicant’s extradition. The applicant was informed of the essence of the order in the presence of a Russian interpreter. He surrendered his car to the border police and signed a form where he wrote in Russian that he objected to his arrest. 15. Having verified that a valid ban on the applicant’s leaving the country was in force and that there were no grounds for his detention, the police released him at midday on 25 September 2004, which was twelve and a half hours before the expiry of the order for his arrest. It is unclear what happened to the applicant’s car. He did not ask for its return. 16. In a decision delivered on 27 September 2004, following a public hearing that had been held the previous week in response to an appeal by the prosecutor against the ruling of the Blagoevgrad Regional Court of 9 September 2004 (see paragraph 11 above), the Sofia Court of Appeal allowed the applicant’s extradition to Moldova. It found that the lower court had wrongly assessed the Moldovan authorities’ request. In particular, the applicant had not been wanted in Moldova to serve a sentence, as the firstinstance court had found, but to be tried in connection with an offence. That meant that a different provision of the Extradition Convention had applied and all the material and procedural requirements to grant that request had been met. 17. The Sofia Court of Appeal held in a separate decision of 27 September 2004, issued following a closed hearing the same day, that it could not rule on the applicant’s detention pending extradition. It said that it had already adopted a final and enforceable decision allowing the applicant’s extradition and that that decision had put an end to the extradition proceedings. Given that those proceedings had been concluded, the applicant could thereafter only be detained for the purposes of being handed over to the requesting authorities. 18. In a letter of 7 October 2004, the Blagoevgrad regional prosecutor’s office advised the Supreme Prosecution Office that the applicant was not in detention but that there was a valid ban on his leaving the country. It noted that he was also registered at the address of his court-appointed lawyer and that his passport and car had been returned to him. 19. On 14 October 2004 the Bulgarian Supreme Cassation Prosecutor’s Office ordered the applicant’s detention for the purposes of his extradition to Moldova. The prosecutor’s order, written over five pages, comprised an overview of the procedural steps carried out up to that point. The order specified that the extradition proceedings were in their final phase and that the applicant was not in detention. Given that his extradition had been agreed with the Moldovan authorities and a concrete date and time for it had been set – 18 October 2004 at 11 a.m. local time – it was necessary to apprehend him for the purposes of his actual transfer into the custody of the Moldovan authorities. 20. The prosecutor then instructed the police to place the applicant under arrest on 15 October 2004 for twenty-four hours in order to extradite him. In the same order the prosecutor authorised keeping the applicant in detention for the same purpose for seventy-two hours, starting from 16 October 2004. The order referred to section 119(2)(4) of the Judicial Power Act 1994 (see paragraph 33 below, last sentence), as well as to Article 152a § 3 of the 1974 Code of Criminal procedure (see paragraph 32 below) and Articles 18 and 22 of the Extradition Convention (see paragraphs 24 and 26 below). It also stated that personal possessions taken from the applicant by the Bulgarian authorities when he had been arrested should be handed over to the Moldovan authorities at the same time as his transfer. 21. The applicant was detained on 15 October 2004 and handed over to the Moldovan authorities on 18 October 2004 as agreed. The report on his transfer stated that personal possessions held by the Bulgarian authorities were handed over to the Moldovan authorities at the same time. 22. On 23 December 2004 the Moldovan authorities discontinued the criminal proceedings against the applicant. On 1 July 2005 the applicant asked the Bulgarian authorities to take him off their database of wanted persons so that he could transit Bulgaria without fearing arrest. On 4 July 2005 the Supreme Cassation Prosecutor’s Office allowed that request and informed him accordingly. The border police recorded on 4 July 2005 that the applicant left Bulgaria with his car on that day. 23. The Extradition Convention entered into force in respect of Bulgaria on 15 September 1994 and in respect of Moldova on 31 December 1997. Article 16 of the Convention, which governs provisional arrest, provides as follows: “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. 2. The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2.a, exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought. 3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request. 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought. 5. Release shall not prejudice rearrest and extradition if a request for extradition is received subsequently.” 24. Article 18 governs the surrender of the person to be extradited and provides that: “1. The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition. 2. Reasons shall be given for any complete or partial rejection. 3. If the request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender. 4. Subject to the provisions of paragraph 5 of this article, if the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall in any case be released after the expiry of 30 days. The requested Party may refuse to extradite him for the same offence. 5. If circumstances beyond its control prevent a Party from surrendering or taking over the person to be extradited, it shall notify the other Party. The two Parties shall agree a new date for surrender and the provisions of paragraph 4 of this article shall apply.” 25. Article 20, which governs the handing over of property, provides as follows: “1. The requested Party shall, in so far as its law permits and at the request of the requesting Party, seize and hand over property: a) which may be required as evidence, or b) which has been acquired as a result of the offence and which, at the time of the arrest, is found in the possession of the person claimed or is discovered subsequently. 2. The property mentioned in paragraph 1 of this article shall be handed over even if extradition, having been agreed to, cannot be carried out owing to the death or escape of the person claimed. 3. When the said property is liable to seizure or confiscation in the territory of the requested Party, the latter may, in connection with pending criminal proceedings, temporarily retain it or hand it over on condition that it is returned.” 26. Article 22, which specifies the applicable procedure, provides as follows: “Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.” 27. The Explanatory Report defines the scope of application of Article 1 of Protocol No. 7 and clarifies the notion of “expulsion” as follows: “9. The word “resident” is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose ... The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered “lawful”. [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still “lawfully” present. 10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation.” 28. At the relevant time the extradition of persons accused of criminal offences was governed by Articles 439a-41 of the 1974 Code of Criminal Procedure. Articles 440-440c governed the procedure for processing an extradition request made by another State. 29. Once received, the extradition request had to be sent to the competent regional prosecutor (Article 440 §§ 1 and 2). That prosecutor then had to take the statement of the person whose extradition was being sought, implement any measure taken to secure his or her appearance, and transmit the extradition request to the competent regional court (Article 440 § 3). The request was then to be examined by three judges at a public hearing. The person whose extradition was being sought had to be provided with counsel and an interpreter (Article 440a § 1). The court had to hear the public prosecutor, the person and his or her counsel, and then either allow or refuse the extradition. In its ruling it additionally had to specify whether personal items, documents and money found on the individual and having a connection with his or her offence should be handed over to the requesting State as well (Article 440a § 2). The court’s ruling was subject to appeal before the court of appeal whose decision was final (Article 440c). The prosecutor was responsible for implementing judicial decisions authorising extradition (Article 440b § 3 and Article 440c § 2). 30. At present the procedure for detention in the context of extradition proceedings requested by a third State is laid down in considerable detail in the 2005 Extradition and European Arrest Warrant Act (section 13), which entered into force on 4 July 2005 and repealed Articles 435-41 of the 1974 Code. 31. Article 152a of the 1974 Code of Criminal Procedure, which governs the procedure for imposing pre-trial detention, was changed entirely – with effect from 1 January 2000 – in a bid to bring Bulgarian law into line with Article 5 the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). 32. The amended paragraph 3 of Article 152a provided at the time of the facts that the investigation and prosecution authorities had to ensure the prompt appearance of the accused before the competent first-instance court and, if necessary, detain him or her for that purpose before bringing him or her before the court. Such detention could not exceed twenty-four hours if ordered by an investigator or seventy-two hours if ordered by a prosecutor. No judicial review was available in respect of such detention. 33. At the relevant time the bodies responsible for the investigation at the pre-trial stage were investigators (Article 172 of the 1974 Code) and the prosecutors who supervised the activities of the former (Article 176 of the 1974 Code). The prerogatives of the prosecutor included the issuing of mandatory instructions to the police (section 119(2)(4) of the Judicial Power Act 1994). 34. Under Article 153a § 1 of the 1974 Code of Criminal Procedure, as applicable at the relevant time, the prosecutor could prohibit an individual accused of a criminal offence from leaving Bulgaria without permission. The prohibition order was subject to judicial review (Article 153a § 3). The court had to rule immediately by means of a final decision (Article 153a § 4). 35. At the relevant time and until 2012, individuals could seek damages for unlawful detention under the SMRDA provided that such detention had been set aside in prior proceedings for lack of lawful grounds. Following amendments introduced in the SMRDA in 2012, in particular in section 2(1)(1), individuals can seek damages for all cases of detention in breach of Article 5 § 1 of the Convention. Civil courts examine the issue of lawfulness and compensation in the same set of proceedings. 36. Under the 1997 Act, as in force at the relevant time, the police could, on the basis of a written order, arrest individuals who were on international wanted lists owing to extradition requests from other States (section 70(1)(7)). An individual taken into police custody was entitled to be assisted by counsel and seek judicial review of his detention (section 70(3) and (4)). The application had to be examined immediately (section 70(3) in fine). Police detention under section 70 could not exceed twenty-four hours (section 71 in fine). 37. Arrest orders under section 70 were administrative decisions and any subsequent judicial review of them was carried out in accordance with the standard rules of administrative procedure, meaning that such an order could be appealed against within fourteen days of the arrestee’s being apprised of the order. According to the case-law of the Supreme Administrative Court (опр. № 1793 от 17 февруари 2006 г. по адм. д. № 1390/2006, ВАС, V отд.; реш. № 894 от 31 януари 2005 г. по адм. д. № 5783/2004 г., ВАС, V отд.), persons affected by police arrests could challenge their lawfulness before a court and, if the orders were set aside, the individuals concerned could seek damages under section 1 of the SMRDA.