CASE OF SARKIZOV AND OTHERS v. BULGARIA
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicants were born in 1973, 1974, 1978 and 1967 respectively. The first, the second and the third applicants live in Pazardzhik. The fourth applicant lives in Lozen. 6. On 12 October 2004 a preliminary investigation was opened against the applicants in respect of sexual procurement. 7. From 13 to 18 October 2004 the witnesses Mr Zh.M., Mr N.P., Ms R.M. and Ms D.M. were questioned before a judge. Neither the applicants nor their lawyers participated in the questioning. 8. Mr Zh.M. stated that the fourth applicant had owed him money and therefore in March 2004 had offered him the sexual services of one of the prostitutes controlled by him in lieu of payment. Mr Zh.M. had accepted. Later the fourth applicant had proposed to “sell” him the same woman for 2,000 euros (“EUR”). 9. Mr N.P. stated that in July 2004 he had seen two women standing on a main road, had stopped his car and had asked them who was their boss. They had replied that it was the fourth applicant. Then Mr N.P. had called the fourth applicant, who was an acquaintance of his, and the fourth applicant had confirmed that the women were working for him. 10. Ms R.M. stated that in the beginning of 2003 the fourth applicant had suggested that she work for him as a prostitute. She had accepted and the fourth applicant had bought her clothes and a bus ticket to France. There a woman named I. had met her and had found her a hotel. Ms R.M. had been instructed to give the money she earned to Ms I. who would forward it on to the first, the second and the fourth applicants through companies providing money transfer services. After some time the fourth applicant had sent Ms R.M. to Belgium, where the second applicant had met her. Later on, Ms R.M. had returned to Bulgaria and had prostituted herself along the main roads. One day in July 2004 another procurer had stopped his car and had suggested that she work for him. She had told him that she had worked for the fourth applicant, and had given him the latter’s phone number. He had called the fourth applicant and had then left. 11. Ms D.M. stated that in February 2004 she had been contacted by the third and the fourth applicants who had suggested that she work for them as a prostitute. She had refused. 12. On an unspecified date the Pazardzhik District Public Prosecutor’s Office decided that the identity of three other witnesses should be kept secret. 13. On 21 October 2004 witnesses with ID nos. 15 and 16 were questioned before a judge. Before the interviews the judge verified the two witnesses’ identity. 14. Witness no. 15 stated that she had dated the third applicant in the past. According to her statements, in February 2004, while she was still under age, the third applicant took her to a hotel in the town of P. where he left her in a room with an unknown man. Then the man had told her that he had paid the third applicant to have sex with her. She spent about an hour with him. On another day witness no. 15 had met the third applicant who had introduced her to the fourth applicant and a woman named D. The third and the fourth applicants had suggested to witness no. 15 and Ms D. that they work for them as prostitutes. Witness no. 15 had accepted. Afterwards, on a number of occasions from February to April 2004 witness no. 15 had been sent either by the third or the fourth applicants to meet their clients in different towns in Bulgaria. In April 2004 witness no. 15 had informed the third and the fourth applicants that she no longer wished to work for them. 15. Witness no. 16 stated that in February 2004 she had already been engaged in prostitution when the fourth applicant had contacted her and had suggested that she work for him. She had agreed and the first, the second and the fourth applicants had made arrangements for her to travel to Denmark, France and other countries in order to work as a prostitute. She had sent them money by using money transfer services or through third parties. After some time she had told them that she no longer wished to work for them. 16. Immediately after the interviews the records of the witnesses’ statements were presented to the applicants and their lawyers, and they were given the opportunity to put questions. The applicants and their lawyers stated in writing that they had acquainted themselves with the records and had no questions to put to the anonymous witnesses. 17. On 27 October 2004 the witness with ID no. 17 was questioned before a judge who verified her identity. The first, the second and the fourth applicants and the lawyers of the second and the fourth applicants participated in the interview but the witness’ identity was protected. The third applicant and his lawyer, as well as the first applicant’s lawyer, although duly summoned, were absent. Witness no. 17 stated that in the summer of 2003 she had accepted to work as a prostitute for the first, the second and the fourth applicants. They had arranged her travel to and stay in Denmark, Norway and France, and she had sent money to individuals specified by them. After some time she had informed the fourth applicant that she no longer wished to work for him. 18. The District Court invited the applicants and their lawyers to put questions to witness no. 17. The first, the second and the fourth applicants expressly stated in writing that they had no questions for her. 19. On 4 November 2004 the District Court ordered three banks to inform the prosecution and the police authorities of the international money transfers ordered or received by certain individuals suspected of having been involved in the applicants’ sexual procurement activities. On 24 November 2004 the District Public Prosecutor issued a similar order in respect of two other banks. 20. On an unknown date the applicants were accused of having induced into prostitution, procured or transported, individually or in complicity with each other, the three anonymous witnesses and other women. 21. The applicants were also apparently subject to special means of surveillance for an unknown period of time. 22. On 22 April 2005 the District Public Prosecutor’s Office filed an indictment against the applicants. On an unknown date the District Court decided that the public should be excluded from the trial. 23. On 5 July 2005 the District Court held a hearing in the case. The anonymous witnesses and nine other witnesses did not appear. The court adjourned the hearing because of irregularities in the summoning of witnesses. 24. The next hearing was held on 21 September 2005. Witness no. 15 was present, but the other two anonymous witnesses and ten other witnesses did not appear. The District Court adjourned the hearing because of irregularities in the summoning of witnesses. 25. On 4 November 2005 the District Court held a further hearing. The anonymous witnesses and eleven other witnesses did not appear. The Prosecutor’s Office submitted written statements by two of the anonymous witnesses that they were aware of the criminal proceedings and did not wish to attend the hearing. The applicants’ lawyers requested that the anonymous witnesses be found and questioned. The District Court held that the anonymous witnesses had been the victims of the crimes of which the applicants had been accused, and therefore were free to decide whether they wished to attend the hearing. It questioned seven witnesses, who stated that they did not know or did not remember anything about the case. However, two of the witnesses, Mr A.D. and Mr I.S., admitted that they had received international money transfers, and Mr A.D. specified that he had thus done the fourth applicant who had had no identity card a favour. The Public Prosecutor requested that the records of the witnesses’ statements before the investigator be read out in court. However, the applicants did not give their consent and the District Court dismissed that request. 26. The next hearing was held on 20 December 2005. The anonymous witnesses and several other witnesses were again absent. The Prosecutor’s Office submitted a police report attesting to the fact that one of the anonymous witnesses was abroad. The District Court ordered that the anonymous witnesses and the other absent witnesses be found and brought before it. It further questioned four witnesses, including the witness R.M. After that it read out R.M.’s testimony given before a judge at the pre-trial stage (see paragraph 10 above), finding that there was inconsistency in her statements. Another witness, Ms Ts.V., stated that in October 2004 the fourth applicant had suggested that she work for him as a prostitute but she had refused. 27. The next hearing was held on 20 February 2006. The District Court examined one witness and admitted the evidence obtained from the use of special means of surveillance. The anonymous witnesses and several other witnesses once again did not appear. The Prosecutor’s Office stated that two of the anonymous witnesses were abroad and that the third could not be found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and asserted that anonymity was not justified as the applicants knew the identity of those witnesses. The District Court again ordered that the anonymous witnesses and the other missing witnesses be found and brought before it. 28. A further hearing was held on 28 March 2006. The anonymous witnesses and several other witnesses did not appear. A police report was submitted, stating that two of the anonymous witnesses had left the country and the third one had not been found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and expressed doubts about the efforts of the prosecution authorities to ensure their presence at the trial. They further requested the cancellation of the witness protection measures, stating that the applicants were already aware of their identity. The District Court found that the reasons for protecting the anonymous witnesses persisted. Noting that the anonymous witnesses were abroad, it read out their statements given at the pre-trial stage and admitted them. It did the same with the testimony of Mr Zh.M. (see paragraph 8 above), who appeared but stated that he did not remember anything about the case, and with the testimony of three other witnesses who had been questioned before a judge at the pre-trial stage, including Mr N.P. and Ms D.M. (see paragraphs 9 and 11 above), who could not be found and summoned. The District Court also read out and admitted a number of documents, such as reports on international money transfers, police reports, and the information obtained through the secret surveillance of the applicants. The applicants’ lawyers unsuccessfully requested the recusal of the panel. 29. In a judgment of 28 March 2006 the District Court convicted the applicants, individually or in complicity with each other, of having induced or attempted to induce into prostitution, procured or transported the three anonymous witnesses and the witnesses Ms R.M., Ms D.M. and Ms Ts.V. Mr Sarkizov was sentenced to three years’ imprisonment and a fine, Mr Vasilev – to three years’ imprisonment and a fine, Mr Petkov – to three years and two months’ imprisonment and a fine, and Mr Marinkov – to five years’ imprisonment and a fine. The District Court found that the victims’ statements, including those of the anonymous witnesses, had been corroborated by the other evidence in the case, such as other witness statements, reports on international money transfers, reports from the border control authorities, and the information obtained through the secret surveillance of the applicants. 30. Following an appeal by the applicants, on 4 July 2006 the Pazardzhik Regional Court held a hearing. It dismissed the applicants’ request that the anonymous witnesses be questioned, finding that this was not necessary. 31. In a judgment of 17 July 2006 the Regional Court upheld the sentence of 28 March 2006. It fully endorsed the findings and conclusions of the District Court. 32. The judgment of 17 July 2006 was not subject to an appeal on points of law and became final. 33. On an unknown date the applicants requested the reopening of the criminal proceedings. In a judgment of 30 May 2007 the Supreme Court of Cassation dismissed the request. It held that there had been no procedural breaches in the examination of the anonymous witnesses at the pre-trial stage, and that the applicants had been acquainted with the examination records and had explicitly stated that they had no questions to put to those witnesses. The court further emphasised that the anonymous witnesses’ testimony had not been the sole or decisive evidence for the applicants’ conviction, but had been corroborated by a wealth of other evidence. 34. The second applicant was conditionally released from prison on 26 April 2007 with a six-month supervision period, which expired, apparently, in October 2007. 35. On 4 June 2007 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation (see paragraph 46 below). He appealed against the order, arguing that he had no employment in Bulgaria and that the prohibition did not contribute to his social re-integration, was excessive and unnecessary. In a final judgment of 28 January 2008 the Supreme Administrative Court dismissed the appeal. The court held that the prohibition had been imposed in compliance with the law, on the grounds of the second applicant’s conviction for an offence subject to public prosecution, and that the ratio legis behind the prohibition was to prevent criminally active individuals from travelling abroad until they had proved that they had been reformed. 36. On an unknown date the fourth applicant was released from prison. 37. On 7 April 2008 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation. He appealed against the order, arguing that he had served his sentence, that there were no pending criminal proceedings against him, that his work as a football manager required frequent travel abroad and that he had to accompany his son for medical treatment abroad. In a final judgment of 18 December 2008 the Supreme Administrative Court dismissed the appeal, holding that the assessment of the administrative body was not subject to judicial control. The court further held that the police authorities were not obliged to state any reasons for their decision to impose the ban. 38. Seeing that the travel bans were contingent on the judicial rehabilitation of the second and the fourth applicants, these measures apparently would have lasted at least until October 2010 for the second applicant and until an unknown date in 2011 for the fourth applicant (see paragraph 46 below). However, in October 2009 the Bulgarian Identity Papers Act was amended to the effect that convicted individuals who had served their sentences could no longer be prohibited from leaving the country. As a result, all travel bans imposed before that amendment ceased to have effect as from July 2010 (see Nalbantski v. Bulgaria, no. 30943/04, § 25, 10 February 2011). 39. Pursuant to Articles 97a and 98 of the 1974 Code of Criminal Procedure (“the 1974 CCP”), in force until 29 April 2006, measures for the protection of a witness had to be taken where there were sufficient grounds to believe that his testimony had caused or could have caused a real risk to his life, health or property or that of his close relatives or other individuals with whom he had very close ties. The decision that a witness should be protected had to specify the reasons for the protection and its type. The pretrial authorities and the court had a direct access to the protected witness and were obliged to verify his identity before the interview. A copy of the record of the interview with a protected witness had to be presented immediately to the accused and his lawyer who were entitled to put questions to the witness. The measures for protection could be discontinued at the request of the protected witness or where they were no longer necessary. 40. Pursuant to Article 99a of the 1974 CCP, the charges and the conviction could not be based exclusively on the testimony of anonymous witnesses. 41. These provisions were superseded by Articles 123, 124 and 141 of the 2006 CCP, in force since 29 April 2006, which repeat their text almost verbatim. 42. In a binding interpretative decision (тълк. реш. № 2 от 16 юли 2009 г. на ВКС по тълк.д. № 2/2009 г., ОСНК) of 16 July 2009 the Plenary Meeting of the Criminal Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the Criminal Code and the 2006 CCP on the prosecution of human trafficking. In point 5 of the decision it held that the victim of a human trafficking offence could participate in the criminal proceedings as an anonymous witness. It held that the accused’s defence rights could be subjected to reasonable restrictions, including by granting anonymity status to the testifying victim, in order to protect the latter’s rights. However, a strict judicial control had to be exercised over the reasons for granting anonymity to testifying victims and over the procedures aimed at counterbalancing the restriction of the defence rights. According to the Supreme Court of Cassation, in cases of anonymous witnesses the legislation provided three procedural safeguards against the risk of manipulating the evidence in favour of the prosecution: (1) the direct contact between the judge and the anonymous witness, which guaranteed, at the very least, that such a witness indeed existed; (2) the right of the accused and his lawyer to put questions to the anonymous witness immediately after his questioning; and (3) the limited probative importance the legislation attached to anonymous testimony (see paragraph 40 above). The court made reference to the case-law of this Court and concluded that the rules of fair trial would not be breached if the above procedures were strictly complied with, and notably, if the accused has been given the opportunity to put questions to the anonymous witness immediately after the questioning of the latter. 43. The possibility to interview a witness before a judge, in cases where it is likely that the witness would not be able to attend the trial due to illness, absence or other reasons, or where his testimony would be of “exceptional importance for the establishment of objective truth”, was provided for in Article 210a of the 1974 CCP. The provision was inserted with effect from 1 January 2000 with the aim of creating a possibility to use evidence collected at the pre-trial stage of the proceedings, while at the same time conforming to the principle of immediacy of judicial proceedings. Article 210a § 2 specifically provided that the investigator or prosecutor in charge of the interview had to ensure the witness’s presence and “a possibility” for the accused and his counsel to take part in the interview. 44. Article 279 of the 1974 CCP allowed the statement of a witness given at the pre-trial stage to be read out in court if, inter alia, there was a considerable discrepancy between that statement and the witness’ testimony given at the trial; if the witness had not been found and summoned or was unable to appear in court; or if he had appeared but had refused to testify at trial or had stated that he did not remember anything. If the accused was not represented, the court had to inform him that the testimony thus read out would be used for the determination of the criminal charges against him. Where the statement had been made before a judge, pursuant to Article 210a of the 1974 CCP, there was no requirement for the court examining the case to obtain the consent of the parties (Article 279 § 1). 45. The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation are set out in the Court’s judgment in the case of Nalbantski, cited above, §§ 25-29. 46. Under Article 87 § 1 of the 1968 Criminal Code, a convicted individual may benefit from judicial rehabilitation. Such rehabilitation may be granted by the court which convicted him or her, if more than three years have elapsed since the serving of the sentence, and the individual concerned has not committed another offence punishable with imprisonment, has demonstrated good behaviour and, in the case of offences committed with intent, has made good any damage done. The latter requirement may be disregarded by the court if there is good reason (Article 87 § 2). 47. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as in force since July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.” 48. Pursuant to the consistent case-law of the domestic courts, for the impugned conduct to be considered unlawful, it must be in breach of national law.