CASE OF SHISHKOV v. BULGARIA
Violation of Art. 5-3 with regard to right to be brought promptly before a judge;No violation of Art. 5-1;Violation of Art. 5-3 with regard to length of pre-trial detention;Violation of Art. 5-4 on account of lack of access to file;Violation of Art. 5-4 with regard to first appeal against detention;No violation of Art. 5-4 with regard to second appeal against detention;Non-pecuniary damage - financial award;Costs and expenses partial award
Christos Rozakis
9. The applicant was born in 1970 and lives in Rakovski, in the region of Plovdiv. 10. On 22 August 1997 the applicant was arrested on suspicion of having stolen from a Ms S. gold jewellery and money worth 20,110,448 Bulgarian levs (“BGL”). In view of the value of the stolen objects and money, the offence with which the applicant was charged constituted a “serious” offence, within the meaning of the Penal Code. According to the indictment drawn up later, the applicant, who had been employed by a private security company to keep Ms S.’s house , had taken advantage of her and her family’s departure on holiday to steal the above valuables on 2 August 1997. On the same day he had taken some of the jewellery and money to his sister’s home. Approximately ten days later, having learned that Ms S. had discovered the theft, the applicant had travelled to the nearby city of Plovdiv to sell some of the jewellery before returning home. On 19 August 1997 the applicant and his family (his wife and their two month-old child) had visited the applicant’s mother in the town of Perushtiza. There the applicant had given his mother the remaining money. 11. On the day of his arrest and on being questioned by an assistant investigator the following day, 23 August 1997, the applicant admitted the theft and directed the police to the persons who had bought some of the stolen jewellery from him. The majority of the valuables were recovered by the police the same day. The applicant’s mother returned the money she had been given by her son. 12. The period between 23 August and 10 October 1997 was taken up by procedural acts. No new evidence was collected during that period. The applicant was not interrogated. 13. On 26 August 1997 the assistant investigator transmitted the file to the District Prosecutor’s Office inviting it to reclassify the proceedings, which had begun as a summary investigation (дознание), into an ordinary investigation (следствие). On 5 September 1997 the District Prosecutor’s Office transmitted the case file to the Regional Prosecutor’s Office, as it considered that the proceedings came within the latter’s competence. By a decision dated 10 September 1997 a prosecutor from the Regional Prosecutor’s Office found that the case fell to be dealt with by the District Prosecutor’s Office and gave instructions for its return. On 12 September 1997 the case file was transmitted to the District Prosecutor’s Office. 14. By a letter of 19 September 1997 the applicant’s lawyer complained to the Regional Prosecutor’s Office of the delays in the proceedings and stated that he had been unable to obtain detailed information about the accusation and had been refused access to the case file. He also requested the removal of the district prosecutor. On 25 September 1997 that request was transmitted with the case file to the Regional Prosecutor’s Office. On 1 October 1997 it was dismissed and the case file was sent back to the District Prosecutor’s Office. 15. On 6 October 1997 the District Prosecutor’s Office decided to reclassify the proceedings as an ordinary investigation and not a summary investigation. On 8 October 1997 the case was assigned to an investigator with instructions to treat it as urgent in view of the fact that the accused was remanded in custody. 16. Between 10 October 1997 and 8 December 1997 the investigator questioned the applicant twice, summoned three witnesses, requested information from the National Bank about the exchange rates of certain currencies, appointed an expert to assess the value of the stolen objects, and brought charges against the applicant’s sister, Ms K., who had allegedly aided the applicant in selling the stolen objects. 17. The period after 8 December 1997 was taken up by procedural steps and efforts to clarify the exact number, weight, quality and value of certain missing pieces of jewellery, the difficulty being that there were discrepancies between the descriptions given by the applicant and by the owner. 18. On 21 January 1998 the investigator put an additional question to the expert. 19. On 30 January 1998 the investigator reformulated the charges against the applicant, notified him accordingly and questioned him briefly. On 5 February 1998 the investigator concluded his work on the case and transmitted the file to the District Prosecutor’s Office. 20. On 26 February 1998 the District Prosecutor’s Office referred the case back to the investigator, instructing him to appoint another expert to assess the value of the jewellery and to amend the charges. On 23 March 1998 the investigator appointed an expert. On 27 March 1998 the investigator amended the charges against the applicant and his sister, notified them accordingly and questioned them briefly. 21. On 23 March 1998 the investigator requested an extension of time in which to complete the investigation. The request, which was submitted through the District Prosecutor’s Office, was transmitted to the Regional Prosecutor’s Office on 30 March 1998. It appears that the case file was attached. The request was granted and the case file returned on an unspecified date at the beginning of April 1998. 22. On 14 May 1998 an indictment was submitted to the District Court. On 27 July 1998 the District Court sent the case back to the prosecutor for further investigation. On 19 August 1998 the prosecutor, considering that the value of the stolen objects was lower than that initially indicated, terminated the criminal proceedings as regards the excess and lodged a fresh indictment. The District Court listed the case for hearing on 19 December 1998. The parties have not informed the Court of any further developments. 23. The applicant was arrested on 22 August 1997. On 23 August 1997 he was brought before an assistant investigator who charged him and decided that he should be remanded in custody. The detention order, which was made on the basis that the applicant was charged with a serious offence, stated that there existed a danger of the applicant’s absconding or committing offences, without providing reasons. It was either authorised in advance or approved on the same day by a prosecutor. On 25 August 1997 the applicant appointed a lawyer to represent him. 24. On 3 September 1997 the applicant’s lawyer prepared an appeal to the Plovdiv District Court against his client’s detention pending trial. The appeal was submitted through the District Prosecutor’s Office, as required by Article 152a § 2 of the Code of Criminal Procedure. There is a dispute between the parties as to the date on which the appeal was actually submitted to the District Prosecutor’s Office. The applicant maintains that the appeal was handed over to the duty prosecutor on 3 September 1997 who, in accordance with the usual practice, transmitted it to the clerical staff without registering it himself. According to the Government, the date on which the appeal was registered, 8 September 1997, should be considered as the date of its submission, there being no proof that it had been submitted earlier. 25. On 15 September 1997, having established that his appeal against the applicant’s detention had not arrived at the District Court, the applicant’s lawyer submitted another copy thereof directly to the District Court. 26. On 16 September 1997 the District Prosecutor’s Office transmitted the applicant’s appeal against his detention to the District Court. On the same day a judge at the District Court listed the case for hearing on 19 September 1997. The applicant’s lawyer was summoned by telephone on the same day. 27. The District Court held a hearing on 19 September 1997 in the presence of the applicant, his lawyer and a prosecutor. The prosecutor stated that the appeal should be rejected on formal grounds as it had been submitted after the expiry of the seven-day time-limit under Article 152a § 1 of the Code of Criminal Procedure. The applicant’s lawyer explained that he had been refused access to the case file, which had prevented him from preparing the appeal on time. 28. By a decision of 19 September 1997 the District Court rejected the appeal. Noting that the appeal was dated 3 September 1997 whereas the decision to detain the applicant had been taken and notified to him on 23 August 1997, and observing that the applicant had authorised a lawyer to represent him on 25 August 1997, the court found that the appeal had been submitted after the expiry of the relevant seven-day time-limit and was inadmissible. The District Court further stated that there had been “no change of circumstances” within the meaning of Article 152a § 4 of the Code of Criminal Procedure (see paragraph 40 below). 29. On an unspecified date between 2 and 11 February 1998 the applicant’s lawyer submitted through the District Prosecutor’s Office a second appeal against his client’s detention pending trial. He stated inter alia that the applicant had admitted the theft, had directed the police to the stolen objects and had been co-operative. Also, there was no danger of his absconding because he had a wife and a young child, and no danger of his committing offences because he had no previous convictions and had shown remorse for his acts. The lawyer further stated that the relevant facts had already been established and that the applicant was not responsible for the prosecution’s difficulties in determining the exact value of the jewellery, such that there was no justification for his continuing detention. 30. The lawyer, who had been appointed by the applicant in October 1997 to replace his previous lawyer, did not indicate his address and telephone number on the appeal papers. The parties have not clarified whether this information appeared on other documents in the case file. 31. On 11 February 1998 the appeal was transmitted to the District Court. By an order made on Friday, 13 February 1998 the Court listed the matter for hearing on Monday, 16 February 1998 at 9.00 a.m., and summoned the applicant in person and the prosecutor. The applicant was summoned through the prison authorities. 32. On 16 February 1998 the District Court heard the applicant and the prosecutor. The applicant’s lawyer was not present. The applicant stated that he had admitted the offence, he had a seven-month old child and wanted to preserve his family. He explained that at the time of the theft he had been suffering from depression due to financial problems. The District Court refused to release the applicant. It noted that the charges against him concerned a serious wilful offence punishable by a period of three to fifteen years’ imprisonment and that Article 152 § 1 of the Code of Criminal Proceedings required that persons accused of offences of that category be remanded in custody. Furthermore, the investigation was still pending and there, therefore, existed a danger of his absconding or seeking to pervert the course of justice. The fact that the applicant had made a full confession did not affect in any way the question whether he should be remanded in custody. The court further stated that the applicant’s argument concerning his family could not serve as a ground for his release and added that he should have thought about his family before committing the offence. 33. On 1 April 1998 the applicant submitted through the District Prosecutor’s Office a third appeal against his detention pending trial. On 8 April 1998 the District Prosecutor’s Office transmitted the appeal to the District Court. 34. The District Court heard the appeal on 13 April 1998 in the presence of the applicant and his lawyer. The prosecutor stated that the applicant should be released. The District Court decided to release the applicant on bail. It noted that he had a permanent address, had not obstructed the investigation, and did not have a criminal record. The District Court further stated that the investigator had expressed the opinion that the applicant’s detention pending trial “had produced its effects”. Furthermore, there was no danger of his perverting the course of justice because the investigation had been concluded and no danger of absconding in view of his family situation. 35. The applicant gave a recognizance and was released on an unspecified date in April 1998. 36. The applicant produced copies of correspondence in January and March 1998 from the presidents of the Plovdiv District Court and of the Plovdiv Regional Court to the local Bar Association, apparently in reaction to complaints by lawyers of an existing practice of barring access to case files in cases concerning appeals against pre-trial detention. The president of the District Court acknowledged that the complaints were well-founded and stated, inter alia, that, “[r]egrettably, District Court judges rely on the hitherto prevailing practice and do not share my opinion ...” The president of the Regional Court informed the Bar Association that the matter had been discussed at length and that the judges had agreed that, contrary to the opinion of the Chief Public Prosecutor’s Office and the Regional Prosecutor’s Office in Plovdiv, there were no legal grounds for refusing access to case files in appeals against detention proceedings. 37. At the relevant time and until the reform of 1 January 2000 an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court’s Nikolova v. Bulgaria judgment ([GC], no. 31195/96, ECHR 1999-II). 38. The legal grounds for detention pending trial were set out in paragraphs 1 and 2 of Article 152 of the Code of Criminal Procedure, which, as worded at the material time, provided as follows: “(1) Detention pending trial shall be ordered [in cases where the charges concern] a serious wilful offence. (2) In cases falling under paragraph 1 [detention pending trial] may be dispensed with if there is no danger of the accused’s absconding, obstructing the investigation, or committing further offences.” According to Article 93 § 7 of the Penal Code a “serious” offence is one punishable by more than five years’ imprisonment. 39. The Supreme Court’s practice at the relevant time (which has since become obsolete as a result of the amendments in force since 1 January 2000) was to construe Article 152 § 1 of the Code of Criminal Procedure as requiring that a person charged with a serious wilful offence had to be remanded in custody. An exception was only possible, in accordance with Article 152 § 2, where it was clear and beyond doubt that any danger of absconding or reoffending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May 1992, case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995, case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995, case no. 768/95, II Chamber; Decision no. 24, case no. 268/95, I Chamber, Bulletin 1995, p. 149). 40. Article 152a of the Code of Criminal Procedure, as in force at the relevant time, provided as follows: “(1) The detained person shall be provided immediately with a possibility to file an appeal to a judge at the competent court against the [order for his detention pending trial], not later than seven days after [the detention order]. The judge shall summon the parties and decide at a hearing in open court not later than three days following the receipt of the appeal at the court. (2) The appeal shall be lodged with the body that ordered the detention. On the day it is lodged, the appeal, accompanied by the [detention order] and all materials in the case, shall be transmitted to the court. (3) The court shall deliver a decision which is not subject to appeal. The court shall either quash the detention order and impose another measure of control [of the accused] or dismiss the appeal. (4) In the event of a change of circumstances the detained person may lodge a fresh appeal to the court against the [detention order].” 41. According to the Supreme Court’s practice at the relevant time, it was not open to the courts, when examining appeals against detention pending trial, to assess whether there existed sufficient evidence to support the charges against the detainee. The courts must only examine the lawfulness of the detention order (Decision no. 24 of 23 May 1995, case no. 268/95, I Chamber, Bulletin 1995, p. 149).