CASE OF NIKOLOVA v. BULGARIA
Preliminary objection rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Luzius Wildhaber
8. The applicant, Mrs Ivanka Nikolova, is a Bulgarian national born in 1943 and residing in Plovdiv. 9. The applicant used to work as a cashier and accountant in a State-owned enterprise. An audit undertaken in the enterprise at the beginning of 1995 revealed a cash deficit of 1,290,059 levs. In February 1995 the applicant was given a copy of the final act of the audit, which contained the auditors’ opinion that, inter alia, she had made deliberately false entries in the accounting books and had thus misappropriated funds. 10. On 15 March 1995 criminal proceedings were brought against the applicant. In the following months the investigator (следовател), Mr S., questioned her in the framework of these proceedings. 11. On 24 October 1995 the applicant was arrested and charged under Article 203 § 1 in conjunction with Article 201 of the Criminal Code (Наказателен кодекс) with misappropriation of funds in large amounts. 12. On 24 October 1995 investigator S. heard the applicant in the presence of her lawyer and decided to detain her on remand. On the same day, without having heard the applicant, a prosecutor from the Regional Prosecutor’s Office (Окръжна прокуратура) in Plovdiv confirmed the investigator’s decision to detain her. 13. On 6 November 1995 the applicant appealed against her detention to the Chief Public Prosecutor’s Office (Главна прокуратура). In accordance with the established practice the applicant’s lawyer lodged the appeal with the Regional Prosecutor’s Office. He stated that the applicant had not attempted to abscond or to 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 crimes; and that the applicant had undergone gynaecological surgery and had still not recovered completely. 14. On 9 November 1995, before transmitting the appeal to the Chief Public Prosecutor’s Office, a prosecutor of the Regional Prosecutor’s Office confirmed the decision to detain the applicant on remand. The prosecutor found that the applicant was charged with a serious crime punishable by more than ten years’ imprisonment and that “therefore, the [detention on remand] [was] lawful: it [was] based on the imperative provision of Article 152 § 1 of the Code of Criminal Procedure (Наказателно процесуален кодекс)” (see paragraph 30 below). The prosecutor further stated that the question whether or not Article 152 § 2 of the Code 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 Code “in view of the current stage of the proceedings”. It followed that the applicant’s detention was lawful. 15. By decision dated 15 December 1995 and registered on 28 December 1995 the Chief Public Prosecutor’s Office dismissed the applicant’s request for release. A further appeal against her detention on remand was dismissed by the Chief Public Prosecutor’s Office by a letter of 12 January 1996. 16. On 14 November 1995 the applicant appealed to the Plovdiv Regional Court (Окръжен съд) against her detention on remand. In his written submissions to the Court the applicant’s lawyer stated, inter alia, that the decision to detain the applicant on remand had been based solely on the gravity of the charges against her whereas other important factors had not been taken into account. Thus, the applicant had a permanent address where she lived with her husband and two daughters. Also, the applicant 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 been in possession of a key 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, there was nothing to show that the applicant had been the author of the false entries in the accounting books. The applicant’s lawyer also invoked his client’s medical condition and enclosed medical certificates. 17. In accordance with the established practice the applicant’s lawyer lodged his appeal and submissions through the Regional Prosecutor’s Office. 18. On 4 December 1995 the Regional Prosecutor’s Office transmitted the appeal together with the investigator’s file to the Regional Court. The covering letter, prepared by the prosecutor, stated, inter alia: “I consider that the appeal should be dismissed and that the detention on remand should be confirmed as being lawful. The charges concern a serious wilful crime within the meaning of Article 93 § 7 of the Criminal Code and, [therefore], in accordance with Article 152 § 1 of the Code of Criminal Procedure, the imposition of detention is obligatory. The present case does not fall under Article 152 § 2 of the Code of Criminal Procedure: [it] does not involve a situation where the accused has no possibility of absconding or reoffending, as required by the Supreme Court’s practice [follows a reference to the Supreme Court’s practice – see paragraph 31 below].” 19. On 11 December 1995 the court examined the case in camera, without the participation of the parties, and dismissed the appeal. The court stated, inter alia: “[The charges against the applicant] concern a serious crime within the meaning of Article 93 § 7 of the Criminal Code, that is, a crime under Article 203 of the Criminal Code, punishable by ten or more years’ imprisonment. In this respect there exists the requirement, under Article 152 § 1 of the Code of Criminal Procedure, that detention on remand shall be imposed. ... [The medical certificates submitted by the applicant] reflect her state of health during a past period of time. No information concerning her current state of health has been submitted. It follows that currently there exist no circumstances requiring the modification of the measure ‘detention on remand’ imposed on the [applicant]. Therefore the appeal is ill-founded and must be dismissed.” 20. On 19 January 1996 the applicant was examined by three medical experts who had been asked by the investigator in her case to establish, inter alia, whether the conditions of detention were dangerous for her health. In a report of the same date the experts found that the problems related to the surgery which she had undergone more than a year ago did not affect her condition, and that she could remain in detention. 21. On 5 February 1996 the applicant was urgently transferred to hospital due to pain in her gall bladder. On the same day she underwent surgery. 22. On 15 February 1996 the investigator in the applicant’s case appointed another group of medical experts to examine the applicant. The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention. 23. On 19 February 1996 the applicant’s detention on remand was discontinued in view of her health problems by an order of the Regional Prosecutor’s Office. The applicant was put under house arrest. 24. In June 1996 the investigator concluded his work on the case and sent the file to the Regional Prosecutor’s Office with a proposal to submit an indictment in court. On an unspecified date the competent prosecutor returned the case to the investigator for further clarifications. 25. According to the relevant provisions of the Code of Criminal Procedure and to legal theory and practice, the prosecutor performs a dual function in criminal proceedings. During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or parts of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court. At the judicial stage he is entrusted with the task of prosecuting the accused. 26. The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the latter’s instructions and supervision (Articles 48 § 2 and 201 of the Code of Criminal Procedure). If an investigator objects to the prosecutor’s instructions, he may apply to the higher prosecutor, whose decision is final and binding. 27. Under Article 86 of the Code of Criminal Procedure, the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (Article 43 of the Code). 28. An accused can be detained on remand by decision of an investigator or prosecutor. In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor, it must be approved by a prosecutor within twenty-four hours. The prosecutor usually makes this decision on the basis of the file, without hearing the accused (Code of Criminal Procedure, Articles 152, 172, 201-03 and 377-78). 29. There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand, or who has approved an investigator’s decision, from acting for the prosecution against the accused in any subsequent criminal proceedings. In practice this frequently occurs. The Supreme Court has found that a former investigator who was appointed prosecutor may represent the prosecution at the trial of the same accused person on whose case he had been working as an investigator. As both the investigator and the prosecutor performed investigative functions there was no legal obstacle (реш. от 9.5.1995 по н.д. No. 125/95 на ВС II н.о., бюл. кн. 5/96, стр. 7). 30. Article 152 §§ 1 and 2 provides as follows: “(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime. (2) In the cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused absconding, obstructing justice or reoffending.” “(1) Мярка за неотклонение задържане под стража се взема за тежко умишлено престъпление. (2) В случаите по ал. 1 мярката за неотклонение може да не се вземе, ако няма опасност обвиняемият да се укрие, да осуети разкриването на обективната истина или да извърши друго престъпление.” According to Article 93 § 7 of the Criminal Code a crime is “serious” if it is punishable by more than five years’ imprisonment. 31. According to the Supreme Court’s practice Article 152 § 1 of the Code of Criminal Procedure requires that a person charged with a “serious wilful crime” shall be detained on remand. The only exception is provided for under Article 152 § 2 of the Code, which empowers the prosecutor not to detain an accused where it is clear, beyond doubt, that there is no danger of absconding or reoffending. Such danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or aged, or who is detained on other grounds such as serving a sentence (опред. No. 1 от 4.5.1992 по н.д. 1/92 на ВС II н.о., Сб. 1992/93, стр. 172; опред. No. 4 от 21.2.1995 по н.д. 76/95 на ВС II н.о.; опред. No. 78 от 6.11.1995 по н.д. 768/95 на ВС II н.о.; опред. No. 24 по н.д. 268/95 на ВС, I н.о., Сб. 1995, стр. 149). 32. In some more recent decisions the Supreme Court has nevertheless embarked on analysis of the particular facts to justify findings that there existed a danger of absconding or reoffending (опред. No. 76 от 25.7.1997 по н.д. No. 507/97 на ВС II н.о., бюл. кн. 9-10/97, стр. 5; опред. No. 107 от 27.5.1998 по н.д. 257/98 на ВС II н.о., бюл. кн. 3-4/98, стр. 12). 33. Article 152 § 5 of the Code of Criminal Procedure, as in force at the relevant time, provided as follows: “The detained person shall be provided immediately with a possibility of filing an appeal before 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.” “На задържания се осигурява незабавно възможност да обжалва мярката за неотклонение пред съответния съд. Съдът се произнася в тридневен срок от подаването на жалбата с определение, което е окончателно.” 34. The First Criminal Division of the Supreme Court has held that, in deciding on appeals against detention on remand, 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. No. 24 от 23.5.1995 по н.д. 268/95, I н.о. на ВС, Сб. 1995, стр. 149). 35. According to the practice at the relevant time, the court examined appeals against detention on remand in camera, without the participation of the parties. If the appeal was dismissed, the court did not notify the detained person of the decision taken. An amendment of the Code of Criminal Procedure of August 1997 introduced the requirement that appeals against detention on remand be examined at a hearing with the participation of the detainee. 36. In a decision of 17 September 1992 the First Criminal Division of the Supreme Court found that the imposition of detention on remand could be contested before a court only once (опред. No. 94 по н.ч.х.д. 754/92, I н.о. на ВС, Сб. 1992-93, стр. 173). Until the amendment of the Code of Criminal Procedure in August 1997 periodic judicial review of the lawfulness of detention on remand was only possible at the trial stage, when the criminal case was pending before a court.