NIKOLOV v. BULGARIA (V)
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He is represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The respondent Government are represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 April 2003 the applicant was attacked in his home in the village of Chernogor by two individuals who beat him with a baseball bat, took his money and ran away. He lost consciousness and suffered four fractured ribs and injuries to his chest and lungs. The police were immediately called to the scene but failed to apprehend the attackers. A preliminary investigation was then opened and, on an unspecified date, two suspects were arrested. On 14 April 2003 the applicant filed a request with the investigating authorities under Article 60 of the Code of Criminal Procedure of 1974 to join the criminal proceedings as a civil claimant and made a claim for compensation from the assailants in the amount of 50,000 Bulgarian levs (25,565 euros). On 16 May 2003 the assailants were charged with burglary and theft. On 20 June 2003 the prosecuting authorities and the assailants concluded a plea-bargain agreement which was approved by the Tutrakan District Court on 25 June 2003. Under the terms of the agreement, the assailants pled guilty to burglary and theft and were sentenced to three years' imprisonment, suspended for five years. The court did not examine the applicant's civil claim and failed to indicate whether any of the damage caused by the offence had been compensated in any way. At the relevant time, the victim of any tort which was also a publicly prosecutable offence could choose either to initiate a civil action against the alleged tortfeasor, which would then be stayed awaiting the outcome of the pending criminal proceedings (Article 182 § 1 (d) of the Code of Civil Procedure of 1952), or to file a civil claim for damages in the context of the criminal proceedings instituted by the prosecuting authorities (Articles 6064 of the Code of Criminal Procedure of 1974). In the latter case, the civil claim was examined together with the offender's culpability but could not be a reason for delaying the criminal case as such (Article 64 §§ 1 and 2 of the Code of Criminal Procedure of 1974). If the criminal proceedings were terminated, the civil claim was not to be examined but could be submitted to the civil courts (Article 64 § 3 of the Code of Criminal Procedure of 1974). Prior to 3 June 2003 a civil claim could be filed in the context of the criminal proceedings at any time after the criminal proceedings had been opened. Subsequently, it could only be filed once the case had been brought to trial. However, civil claims that had been filed before the amendment entered into force were to be examined under the old procedure (paragraph 142 of the transitory provisions to the Act amending the Code of Criminal Procedure of 1974). In a decision of 16 December 2004 (реш. № 7 от 16 декември 2004 г. по конституционно дело № 6 от 2004 г., обн., ДВ, бр. 112/2004 г.) the Constitutional Court held that the amendment of 3 June 2003 struck a fair balance between victims' rights and the public interest in more efficient, faster, and yet fair criminal proceedings. It noted that the joining of civil claims to criminal proceedings was an optional procedure aimed at assisting victims but that criminal courts were not obliged to admit such claims for examination if this could delay the criminal proceedings. It further emphasised that victims were entitled to bring an action before civil courts at any time. At the relevant time, a plea-bargain agreement could be concluded after the preliminary investigation had been finished (Article 414g § 1 of the Code of Criminal Procedure of 1974). If pecuniary damage had been caused by the offence, an agreement could be concluded only after the damage had been compensated or adequate security had been provided to the victim (Article 414g § 3 of the Code of Criminal Procedure of 1974). A plea-bargain agreement was subject to approval by the domestic court, which would then conclude the criminal proceeding with a decision. The decision had the force of a final judgment and was not subject to appeal (Article 414i § 1 and Article 414h § 10 of the Code of Criminal Procedure of 1974).