CASE of NIKOLOVA V. BULGARIA

CASE OF NIKOLOVA v. BULGARIA

(Application no. 31195/96)

JUDGMENT

STRASBOURG

25 March 1999

NIKOLOVA v. BULGARIA JUDGMENT 18

In the case of Nikolova v. Bulgaria,

The European Court of Human Rights, sitting, in accordance with Article27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by ProtocolNo.11[1], and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges:

Mr L. Wildhaber, President,
Mrs E. Palm,
Mr A. Pastor Ridruejo,
Mr L. Ferrari Bravo,
Mr G. Bonello,
Mr J. Makarczyk,
Mr P. Kūris,
Mrs V. Strážnická,
Mr P. Lorenzen,
Mr M. Fischbach,
Mr V. Butkevych,
Mr J. Casadevall,
Mr B. Zupančič,
Mrs H.S. Greve,
Mr A.B. Baka,
Mr R. Maruste,
Mrs S. Botoucharova,
and also of Mr M. de Salvia, Registrar,

Having deliberated in private on 17 December 1998 and on 25February and 5 March1999,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.The case was referred to the Court, as established under former Article19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 15 July 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 31195/96) against the Republic of Bulgaria lodged with the Commission under former Article 25 by a Bulgarian national, MrsIvanka Nikolova, on 6 February 1996.

The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Bulgaria recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 §§ 3 and 4 of the Convention.

2.In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A[2], the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (former Rule 30).

3.As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr R. Bernhardt, the President of the Court at the time, acting through the Registrar, consulted the Agent of the Bulgarian Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure.

4.After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio MrsS.Botoucharova, the judge elected in respect of Bulgaria (Article 27 §2 of the Convention and Rule 24 § 4 of the Rules of Court), MrL.Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and MrJ.-P.Costa and MrM.Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were MrA.Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, MrR. Türmen, MrsV. Strážnická, Mr P. Lorenzen, Mr V. Butkevych, MrJ.Casadevall, Mrs H.S. Greve, Mr A.B. Baka and Mr R. Maruste (Rule24 § 3 and Rule 100 § 4). Subsequently MrB.Zupančič and MrL.Ferrari Bravo, substitute judges, replaced MrCosta and MrTürmen who were unable to take part in the further consideration of the case (Rule24§5(b)).

5.The applicant’s lawyer was given leave by the President to use the Bulgarian language (Rule 34 § 3). Pursuant to the order made on 31August1998, the Registrar received the Government’s and the applicant’s memorials on 30 November 1998.

6.At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mrs M. Hion, to take part in the proceedings before the Grand Chamber.

7.In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 17 December 1998.

There appeared before the Court:

(a) for the Government
Mrs V. Djidjeva, Ministry of Justice, Agent;

(b) for the applicant
Mr M. Ekimdjiev, Lawyer, Counsel,
Mr Y. Grozev, Lawyer, Adviser;

The Court heard addresses by Mrs Hion, Mr Ekimdjiev and MrsDjidjeva.

THE FACTS

I. the circumstances of the case

8.The applicant, Mrs Ivanka Nikolova, is a Bulgarian national born in 1943 and residing in Plovdiv.

A. The applicant’s detention on remand

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 Article152 § 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 28December 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.

B. Judicial appeal against detention

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.”

C. Termination of the applicant’s detention on remand

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.

II. relevant domestic law and practice

A. The prosecuting authorities

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.