CASE OF ANDREI GEORGIEV v. BULGARIA
Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 3;Violation of Art. 13+3;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
6. On 3 October 1999 an individual was found bleeding in front of a discotheque with a broken jawbone. The applicant had previously had a confrontation with that person in the discotheque and both had been seen leaving at approximately the same time. 7. The victim's father filed a complaint with the police on an unspecified date naming the applicant as one of the perpetrators of the beating. 8. On 5 October 1999 a police enquiry or a preliminary investigation was opened into the incident. In a decision of the same day, the Slivnitsa Prosecutor's Office brought charges against the applicant and another individual for median bodily injury (Article 129 of the Criminal Code) and ordered their arrest. A police report of the same day considered them to have absconded as they had not been found at their known addresses. The applicant claimed, however, that the police never visited his official residence nor sent him a notice inviting him to appear for questioning. Thus, he claimed not to have been informed of the proceedings or that the authorities were looking for him. 9. On 22 November 1999 the applicant was placed on the national mostwanted list. 10. The applicant claimed, which the Government did not expressly challenge, that during this period he presented himself to the authorities and was charged with offences stemming from two other preliminary investigations which were being conducted against him at the time. In spite of being on the national most-wanted list, the authorities did not arrest him. 11. In a decision of 30 May 2000 the Slivnitsa Prosecutor's Office suspended the criminal proceedings until the arrest of the applicant. 12. The applicant claimed that after he found out that criminal proceedings for median bodily injury had been initiated against him he presented himself voluntarily at the Slivnitsa police station on 26 June 2000, accompanied by his attorney. He was detained immediately, separated from his attorney and, soon thereafter, transferred to the Slivnitsa Investigation detention facility. The fact that the applicant had presented himself to the police on his own accord was reflected in a police report of the same day. The applicant was not allowed further access to his attorney on that day. 13. On the next day, 27 June 2000, the applicant was charged with median bodily injury. 14. While in detention, the applicant was questioned on two occasions without his attorney, even though he requested her presence. He refused to give any statements to the authorities. 15. On unspecified dates, two witnesses were questioned by the authorities of which the applicant was not informed. 16. The preliminary investigation against the applicant was concluded on 16 May 2002. The resulting report of the investigator, which proposed that the criminal proceedings be discontinued due to insufficient evidence that the applicant was the perpetrator, was presented to the latter on 18 August 2002. 17. On the next day, 19 August 2002, the Slivnitsa Prosecutor's Office terminated the criminal proceedings against the applicant on the grounds that the accusation was not proven (Article 237, § 1 (2) of the Code of Criminal Procedure). 18. The applicant filed an appeal against his detention on the day he was detained – 26 June 2000. He claimed that there was no risk that he would abscond because he lived together with his family at a known registered address and had voluntarily presented himself to the authorities. The applicant also challenged the lawfulness of the order for his arrest and detention, because it had been issued solely on the basis of the complaint of the victim and he had never been invited to present himself to the authorities for questioning. 19. The applicant's appeal was examined on the next day, 27 June 2000. In a decision of the same day the Slivnitsa District Court dismissed the applicant's appeal on the basis that he had absconded and had been placed on the national most-wanted list as a result. From the minutes of the hearing it becomes apparent that there was some degree of confusion on the part of the parties as to whether the applicant had already been placed in pre-trial detention or was still being held in preliminary twenty-four hours police detention. The applicant claimed, which the Government did not expressly challenge, that the police report evidencing that he had presented himself voluntarily to the authorities on 26 June 2000 had not been presented for consideration by the court. In addition, he claimed that the examination of his appeal had been transferred to a new formation at the very last minute and that the presiding judge had previously ruled against him in a different set of criminal proceedings whereby he had imposed on him an administrative sanction. 20. Following the hearing on 27 June 2000, the applicant's attorney filed four petitions with the court seeking, inter alia, (1) to be allowed access to the investigation file, (2) a correction to the minutes of the hearing so that they reflected the applicant's assertions that he had voluntarily presented himself to the authorities, and (3) a copy of said minutes. Only the last request was granted. 21. The applicant appealed against the decision of the Slivnitsa District Court on 28 June 2000. 22. The appeal was examined and dismissed in a decision of 3 July 2000 by the Sofia Regional Court. During the hearing the prosecution presented the domestic court with a list of pending criminal investigations against the applicant which allegedly supported their argument that he might re-offend or abscond. His lawyer, however, challenged that assertion and noted that in some of those cases the applicant had presented himself to the authorities during the period when he was allegedly in hiding (see paragraph 10 above). In any event, the court found, in spite of the fact that the applicant had voluntarily presented himself to the authorities, that there was sufficient evidence that he might abscond or re-offend considering that he had already absconded in the context of the proceedings, had been placed on the national most-wanted list, had a prior conviction and there were other criminal proceedings opened against him. The court also considered that there was sufficient evidence that the applicant had perpetrated the offence with which he had been charged. 23. The applicant filed a second appeal against his detention on 13 July 2000, which was examined on 14 July 2000. In a decision of the same day the Slivnitsa District Court found in favour of the applicant and ordered his release on bail, which was to be paid within five days. 24. The applicant was released on 19 July 2000 after he deposited the bail amount. 25. The applicant was held at the Slivnitsa Investigation detention facility from 26 June to 19 July 2000. 26. The applicant contended, which the Government challenged, that (1) for the duration he was detained together with another three individuals in the same cell, (2) the cell had an area of six sq.m., (3) there were no windows or lighting, the cell being illuminated only from the light in the corridor, and (4) there were no beds, but just wooden racks on which to sleep and that the bed covers were lice-ridden. 27. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 28. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006). 29. The State and Municipalities Responsibility for Damage Act of 1988 (the “SMRDA” : title changed in 2006) provided, as in force at the relevant time, that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts in specific, exhaustively listed situations (sections 1-2). 30. In respect of conditions of detention, the relevant domestic law and practice under the SMRDA at the relevant time has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Yordanov (cited above, §§ 29-30). 31. In respect of the regime of detention, section 2 of the SMRDA provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for [an] unlawful: 1. pre-trial detention..., if [the detention order] has been set aside for lack of lawful grounds; 2. indictment for a criminal offence if... the opened criminal proceedings have been terminated [on the ground] that the act was not perpetrated by the [accused] person...” 32. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). 33. The reported case-law of the Supreme Court of Cassation under section 2, item 1 of the SMRDA prior to 2005 suggested that the term “lack of lawful grounds” referred to unlawfulness under domestic law (решение № 859/2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, решение № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). 34. At the same time, the reported case-law during the same period under section 2, item 2 of the SMRDA excluded its applicability to instances when the criminal proceedings were discontinued at the pretrial stage on the grounds that the accusation was not proven (решение № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.). 35. On 22 April 2005 the General Assembly of the Civil Chambers of the Supreme Court of Cassation (the “Supreme Court of Cassation”) adopted Interpretative decision no. 3/2004 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС), which is binding on the domestic courts. It decreed the following under item 7 of the said decision: “The respective organ [of the investigation, the prosecution or the courts] is also liable in the instances when the criminal proceedings have been terminated on the grounds that the accusation was not proven. The grounds for discontinuing [criminal proceedings] under Article 237, § 1 (2) of the Code of Criminal Procedure corresponds to the basis for seeking damage under section 2, item 2, alternative 3 of the SMRDA, namely '...that the act was not perpetrated by the [accused] person'”. 36. The Supreme Court of Cassation also decreed the following under item 13 of the said decision: “The pre-trial detention is unlawful when it does not adhere to the requirements of [the Code of Criminal Procedure]. The State is liable under section 2, item 1 of the SMRDA when the pre-trial detention has been revoked as unlawful, irrespective of the [subsequent] development of the pre-trial and court proceedings. In such case, the compensation is determined separately. If the person has been acquitted or the opened criminal proceedings have been terminated, the State is liable under section 2, item 2 of the SMRDA. In such case, the compensation for non-pecuniary damages includes the damage [stemming] from the unlawful pre-trial detention. If pecuniary damages have been suffered, the compensation for them is not included, but is awarded separately taking into account the particulars of each given case”. 37. The statute of limitations for actions for damage under the SMRDA is five years. In respect of persons seeking redress for criminal proceedings opened against them that are later terminated on the grounds that the act was not perpetrated by him or her, the time limit begins to run from the date of the decision for termination of the proceedings (section 110 of the Obligations and Contracts Act in connection with paragraph 1 of the Final Provision of the SMRDA and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). 38. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public. 39. The Slivnitsa Investigation detention facility was visited in 2006, but the CPT report of that visit has not been made public. 40. There are general observations about the problems in all investigation service establishments in the 1995, 1999 and 2002 reports, which are summarised in the Court's judgment in the case of Dobrev (cited above, §§ 44-48 and §§ 52-55).