EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 31195/96

Ivanka Nikolova

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-36)              3

A. The particular circumstances of the case

(paras. 16-32)              3

B. Relevant domestic law

(paras. 33-49)              5

III. OPINION OF THE COMMISSION

(paras. 50-86)              9

A. Complaints declared admissible

(para. 50) 9

B. Points at issue

(para. 51) 9

C. As regards Article 5 para. 3 of the Convention

(paras. 52-59)              9

CONCLUSION

(para. 60) 10

D. As regards Article 5 para. 4 of the Convention

(paras. 61-83)              10

CONCLUSION

(para. 84) 14

E. Recapitulation

(paras. 85-86)              14

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              15

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              23

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Bulgarian citizen, born in 1943 and resident in Plovdiv .  She was represented before the Commission by Mr Mihail Ekimdjiev , a lawyer practising in Plovdiv .

3. The application is directed against Bulgaria.  The respondent Government were represented by Ms Violina Djidjeva , co-agent.

4. The case concerns the alleged violations of the applicant's rights in respect of her arrest and detention on remand and the examination of her appeal against detention.  The applicant invokes Article 5 paras. 3 and 4 and Articles 6 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 6 February 1996 and registered on 26 April 1996.

6. On 27 February 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints raised by her under Articles 5, 6 and 13 and concerning her arrest and detention and the examination of her appeal against detention.  It declared the remainder of the application inadmissible.

7. The Government did not submit any observations.  On 28 May 1997 the Commission granted the applicant legal aid for the representation of her case.

8. On 2 July 1997 the Commission declared the remainder of the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 16 July 1997 and they were invited to submit observations on the merits.  The Government submitted observations on 9 October 1997, to which the applicant replied on 30 November 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM N. BRATZA, Acting President

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's partial and final decisions on the admissibility of the application are annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16.  The applicant used to work as a cashier and accountant in a State owned enterprise.  An audit undertaken in the enterprise in the beginning of 1995 revealed a cash deficit of 1,290,059 leva .

17. In February 1995 the applicant was given a copy of the final act of the audit, which stated inter alia that she was responsible for the shortage.  The auditors considered that the applicant had made deliberately false entries in the accounting books and had thus misappropriated funds.

18. On 15 March 1995 the Regional Investigation Office ( Регионална следствена служба ) in Plovdiv ordered the opening of criminal proceedings against the applicant.  It appears that soon after their institution the applicant became aware of the proceedings against her.  In the months which followed Mr S., the investigator ( следовател ) in the case, examined a number of witnesses and collected other evidence.  The applicant was also examined as a witness.

19. On 24 October 1995 the applicant was arrested and charged under Section 203 para. 1 in conjunction with Section 201 of the Penal Code ( Наказателен Кодекс ), with misappropriation of funds in large amounts.

20. 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 in Plovdiv ( Окръжна Прокуратура ) confirmed the investigator's decision to detain her.

21. On 6 November 1995 the applicant appealed against her detention to the  Chief Public Prosecutor's Office ( Главна прокуратура ).  Her lawyer 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.

22.  On 9 November 1995 the appeal was examined and dismissed by a prosecutor of the Regional Prosecutor's Office.  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 Section 152 para. 1 of the Code of Criminal Procedure ( Наказателно процесуален кодекс )".  The prosecutor further stated that the question whether or not Section 152 para. 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 Section 152 para. 2 of the Code "in view of the current stage of the proceedings".  It followed that the applicant's detention was lawful.

23. 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, repeating in detail the arguments made before the prosecution authorities (see para. 21), the applicant's lawyer stated inter alia that the charges were unfounded and that there was no danger of absconding.  Also, the lawyer enclosed medical certificates.

24. In accordance with the established practice the applicant's lawyer lodged his appeal and submissions through the Regional Prosecutor's Office.

25. On 4 December 1995 the Regional Prosecutor's Office transmitted  the appeal together with the investigator's file to the Regional Court.  The cover 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 Section 93(7) of the Penal Code and, [therefore], in accordance with Section 152 para. 1 of the Code of Criminal Procedure, the imposition of detention is obligatory.

The present case does not fall under Section 152 para. 2 of the Code of Criminal Procedure: [the present case] does not involve a situation where the accused has no possibility to abscond or commit other crimes, as required by the Supreme Court's practice [follows a reference to the Supreme Court's practice, see para. 35 below]."

26. 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 Section 93(7) of the Penal Code, that is, a crime under Section 203 of the Penal Code, punishable  by ten or more years' imprisonment.  In this respect there exists the requirement, under Section 152 para. 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 shall be dismissed."

27.  By decision registered on 28 December 1995 the Chief Public Prosecutor's Office dismissed an appeal of the applicant submitted against the decision of the Regional Prosecutor's Office of 9 November 1995.  A further appeal against this decision was dismissed by the Chief Public Prosecutor's Office by a letter of 12 January 1996.

28. 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.  By a report of the same date the experts found that the problems related to the surgery which she had had more than a year ago did not affect her condition, and that she could remain in detention.

29. 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.

30.  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.

31. 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.

32. 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.  The parties have not informed the Commission about any later developments.

B. Relevant domestic law

The Constitution and the Act on the Judiciary ( Закон за съдебната власт )

33. The Constitution and the Act on the Judiciary provide for the structure of the prosecution and of the investigation authorities.  A National Investigation Authority ( Национална следствена служба ), comprising all investigators is set up under the Act.  The prosecutors of all levels are under the authority of the Chief Public Prosecutor.  All investigators and prosecutors except the Chief Public Prosecutor are appointed, promoted, or dismissed by the Supreme Judicial Council ( Βисш Съдебен Съвет ), an independent body part of whose members are elected by the Parliament and the remainder by the judiciary.  Upon completion of three years on the respective position an investigator or a prosecutor obtains tenure and can be removed only on limited grounds such as retirement or disability.  Investigators and prosecutors enjoy immunity from suit, which can be lifted by decision of the Supreme Judicial Council.

Provisions of the Code of Criminal Procedure ( Наказателно Процесуален Кодекс ), as in force at the relevant time, concerning the powers of investigators and prosecutors in general

34. According to Section 43 and to the legal theory and practice the prosecutor has the following functions in penal proceedings: "to direct the preliminary investigation"; "to participate in the judicial stage of the proceedings as a State prosecutor"; and "to effect a supervisory control of lawfulness at all stages of the penal proceedings ..."  At the preliminary investigation stage of the proceedings according to Sections 176 - 178 the prosecutor is competent, inter alia : to give binding instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from the competence of an investigator and to assign it to another; to conduct himself an entire preliminary investigation or particular acts of investigation.

35. According to Sections 48 para. 2 and 201 the investigator enjoys a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the instructions and the supervision of the prosecutor.

36. An investigator disagreeing with the instructions of the prosecutor can submit objections to the higher prosecutor, whose decision is final and obligatory for the investigator.  Section 178 read in conjunction with Sections 219 and 220 provides that, as an exception to this rule, the investigator is free to conclude his work on the preliminary investigation with a proposal to terminate the proceedings or with a proposal to prepare an indictment.

37. Under Sections 235 - 237 the prosecutor is competent, after receiving the investigator's proposal, to terminate the proceedings, to order additional investigations, or to prepare an indictment and submit the case to the court.

38. According to Section 86 the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence.

Provisions of the Code of Criminal Procedure and pertinent practice concerning detention on remand and judicial appeals against detention

39. It follows from Sections 152, 172 and 201 - 203 that an accused person can be detained on remand by an investigator or a prosecutor.  In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor it has to be approved by the prosecutor within 24 hours. 

40. Based on Sections 209 and 210 and according to the usual practice, an arrested person is brought before an investigator who officially informs him of the charges brought against him and proceeds immediately with his examination.  After the examination the investigator decides whether to detain the accused, or informs him of the prior decision taken in this respect by a prosecutor.  In cases where the decision to detain is taken by the investigator the file is then transmitted to the supervising prosecutor who decides whether to approve the detention on remand.  In all cases the prosecutor decides on the basis of the file, without hearing the accused.

41. There is no legal obstacle for a prosecutor, having taken a decision to detain an accused person on remand, or having approved the investigator's decision, later to submit an indictment in court and to represent the prosecution against the same accused person.  In practice this is often the case.

42.  The pertinent part of Section 152, as in force at the relevant time, provided as follows:

(1) Detention on remand shall be imposed [in case where the charges concern] a serious wilful crime.

(2) In the cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused evading justice or of committing another crime.

...

(5) The detained person shall be provided immediately with a possibility to file an appeal before the competent court against the [imposition of detention].  The court shall pronounce itself  within a time-limit of three days from the filing of the appeal by means of a final decision."

43. According to Section 93(7) of the Penal Code "serious" is a crime punishable by more than five years' imprisonment.

44. According to the Supreme Court's practice Section 152 para. 1 of the Code of Criminal Procedure requires that a person charged with a serious wilful crime (or with a crime punishable by ten or more years imprisonment, according to this provision as in force before June 1995) shall be detained on remand.  The only exception is provided for under Section 152 para. 2 of the Code, which entitles the prosecutor not to detain an accused in case it is clear, beyond doubt, that there may be no danger of absconding or re-offending.  Such danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or of an old age, or who is detained on other grounds, such as serving a sentence ( опред . No. 1 от 4.5.1992г. по н.д . 1/92г. на ΒС II н.о ., Сб . 1992/93, стр . 172; опред . No. 4 от 21.2.1995 по н.д . 76/95г. на ΒС II н.о .; опред . No. 78 от 6.11.1995 по н.д . 768/95г. на ΒС II н.о .; опред . No. 24 по н.д . 268/95г. на ΒС, I н.о ., Сб.1995, стр . 149).

45. The Supreme Court has stated that it is not open to the courts, when examining an appeal against detention on remand, to inquire whether there exists sufficient evidence supporting the charges against the detainee.  The courts have to examine only the lawfulness of the detention order, i.e. to establish whether there exists a "real danger" of absconding or of repetition (Decision of 23 May 1995) ( опред . No. 24 по н.д . 268/95, I н.о ., Сб.1995, стр . 149).

46. According to the practice, as it existed until August 1997, the court examined the appeals against detention on remand in camera, without the participation of the parties.  In August 1997 an amendment of the Code of Criminal Procedure provided that appeals against detention shall be examined at an oral hearing with the participation of the detained person.

47. According to the practice at the relevant time the imposition of detention on remand could be contested before a court only once regardless of the length of the detention ( определение No. 94 по н.ч.х.д . No. 754/92, I н.о ., Сб . 1992-93 стр . 173).  An amendment of the Code of Criminal Procedure of August 1997 provides for a possibility to file a fresh appeal against detention whenever there has been a change of circumstances.

48. The 1997 amendments of the Code of Criminal Procedure did not affect paragraphs 1 and 2 of Section 152 of the Code.  These provisions remain in force.

The Penal Code

49. A crime under Section 201 in conjunction with Section 203 para. 1 is a misappropriation, in particularly large amounts, of funds, objects and other valuables handed to the offender in his capacity of a civil servant or entrusted to him to safeguard or manage.  This crime carries a penalty of ten to thirty years imprisonment.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

50. The Commission has declared admissible the applicant's complaints concerning her arrest and detention and the examination of her appeal against detention.

B. Points at issue

51. The points at issue in the present case are as follows:

- whether there has been a violation of Article 5 para. 3 of the Convention; and

- whether there has been a violation of Article 5 para. 4 of the Convention.

C. As regards Article 5 para. 3 of the Convention

52.  Article 5 para. 3 of the Convention provides as follows:

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial."

53. The applicant submits that after her arrest she was brought only before an investigator.  She was not brought before the prosecutor who confirmed her detention on remand.  The applicant submits that under Bulgarian law the prosecutor who confirms the detention on remand of an accused person is not required to hear that person.

54. Furthermore, referring to the Court's and the Commission's case-law, the applicant maintains that the prosecutor cannot be regarded as "officer authorised to exercise judicial power" as he was conducting and supervising the criminal proceedings against her and could represent the prosecution in court.  Nor did the investigator meet the criteria for independence and impartiality inherent in Article 5 para. 3 of the Convention.

55.  The Government state that under Bulgarian criminal procedure law the prosecutor is an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention.  Thus, the prosecutor is entrusted with inherently judicial functions, his main task being to supervise the conduct of the investigation in order to ensure its lawfulness.  The prosecutor's power to authorise the detention of an accused person forms part of this general function of supervision for lawfulness.  Furthermore, the prosecutor has another function, judicial by its nature: the prosecutor is the authority competent to terminate criminal proceedings on the basis of a finding that, inter alia , there is no sufficient proof of the guilt of the accused person.

56.  The Commission recalls that in the case of Assenov and others v. Bulgaria (No. 24760/94, Comm. Report 10.7.97, pending before the Court) it examined a practically identical complaint and concluded that there was a violation of Article 5 para. 3 of the Convention.  It sees no reason to reach a different conclusion in the present case.

57.  The Commission found in the Assenov case that the prosecutor, who under Bulgarian law is entrusted with a close supervision on the conduct of the investigation and at the same time can represent the prosecution in court, thus becoming a party to the criminal proceedings (see paras. 34 and 41 above), cannot be considered an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention (see the Assenov Report, loc. cit., para. 136).  Moreover, in the present case the applicant was never brought before a prosecutor (see para. 20 above).

58.  Upon her arrest the applicant was brought before an investigator (see para. 20).  However, under Bulgarian law the investigator lacks effective power to decide freely on issues of detention on remand as his decision is not valid without the prosecutor's approval (see para. 39).  Albeit institutionally autonomous, he has no practical independence from the prosecutor in respect of the conduct of the proceedings (see paras. 35 - 37 above) and cannot be considered "an officer authorised by law to exercise judicial functions" (see the Assenov Report, loc. cit., paras. 138 - 141).

59.  The Commission considers, therefore, that the applicant was not brought before an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention.

CONCLUSION

60.  The Commission concludes, unanimously, that in the present case there has been a violation of the applicant's right under Article 5 para. 3 of the Convention to be brought before a judge or other officer authorised by law to exercise judicial power.

D. As regards Article 5 para. 4 of the Convention

61.  Article 5 para. 4 of the Convention provides as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

62.  The applicant invokes Articles 5, 6 and 13 of the Convention stating, inter alia , that the remedies which she had against her detention on remand were not effective.  Thus, the Regional Court did not deal with any of the issues raised in her appeal and relevant to the lawfulness of her detention except for the question related to her health.  Neither the Regional Court, nor the prosecution authorities which examined her requests for release, gave any consideration to the serious arguments showing that there existed no danger of absconding, of committing other crimes, or of obstructing justice.  Furthermore, this approach is a reflection of the constant practice of the Supreme Court, the effect of which is that the courts, when examining an appeal against detention on remand, only verify whether the crime with which the detained person has been charged is a "serious wilful crime" within the meaning of the pertinent provisions.  The bringing of charges and their legal qualification being of the competence of the investigator and of the prosecutor, it is evident that in its present form the judicial control for lawfulness of detention on remand in Bulgaria is nothing more than a rubber-stamping process.

63.  The applicant further complains that the proceedings before the Plovdiv Regional Court concerning the examination of her appeal against detention on remand were not adversarial and were not conducted in her presence.  She submits that the need for an adversarial procedure is implied in Article 5 para. 4 of the Convention and also that habeas corpus proceedings must be conducted in the presence of the detained person.

64.  The applicant submits that she was not informed of the registration number of her case at the Regional Court or of the probable date of its examination.  As a result, she was deprived even of the possibility to submit additional evidence during the period of time between 14 November 1995, when she lodged her appeal, and 11 December 1995, when it was examined in camera by the Regional Court.  Moreover, she did not have access to the case-file.

65.  The applicant also complains that the law at the relevant time did not provide for a periodical judicial review of her detention on remand.

66.  The applicant states, for the first time in her observations on the merits submitted following the Commission's decision on admissibility, that her judicial appeal against detention was not examined speedily.  Thus, it was submitted on 14 November 1995 and was examined on 11 December 1995.

67.  The Government submit that under the Code of Criminal Procedure, as in force at the relevant time, the courts were not required to hold a hearing when examining an appeal against detention on remand.  The applicant had the right to submit documents and any other evidence.  Thus, the Regional Court in her case examined medical certificates.

68.  The Government further maintain that periodical judicial review of the applicant's detention was possible in case of a change of circumstances.  Furthermore, the applicant had the right to submit an unlimited number of requests for release to all levels of the prosecution authorities.  It was in fact in response to one of those requests that the prosecutor decided to release the applicant in view of her health problems.  Moreover, under the relevant law the prosecutor is under an obligation to follow on a permanent basis the developments in a case under investigation and to reverse a decision for detention on remand whenever there exist reasons to do so.  It was in this context that the prosecutor in the applicant's case appointed medical experts to examine her.

69.  The Government finally assert that the decision of the Regional Court of 11 December 1995 dismissing the applicant's appeal against her detention was well founded and dealt with all relevant issues.

70.  The Commission, noting that the applicant has invoked Articles 5, 6 and 13 of the Convention, must first delimit the scope of the issues before it (cf. Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1831, 1865, para. 126).  The Commission notes in this respect that the applicant's complaints (see paras. 62 - 66) are confined to the period of time when she was detained on remand.  No complaints have been raised in respect of her house arrest.  Nor has the applicant complained in respect of the length of her detention on remand.  Finally, the complaint that the applicant's appeal against her detention was not examined speedily (see para. 66) falls outside the scope of the present case as it had not been raised by the applicant in her application or at any time prior to the Commission's decision on its admissibility.

71. The Commission considers that the complaints raised by the applicant fall to be examined under Article 5 para. 4 of the Convention.

72.  By virtue of this provision arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty.  This means that the competent court has to examine not only compliance with the procedural requirements set out in domestic law, but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (Eur. Court HR, Brogan v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B).

73. According to the Convention organs' case-law under Article 5 para. 4 of the Convention a court examining an appeal against detention must provide guarantees of a judicial procedure.  When determining whether proceedings provide adequate guarantees, regard must be had to the particular circumstances (Eur. Court HR, De Wilde , Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12).  Thus, the proceedings must be adversarial and must always ensure the "equality of arms" between the parties, the prosecutor and the detained (Sanchez- Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107; Toth v. Austria judgment of 12 December 1991, Series A no. 224; Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B).

74.  Lack of access to certain documents in the investigation file, where their examination by the detained person or his counsel is essential for them to be able effectively to challenge the lawfulness of the arrest, deprive the detained person of his right to an adversarial procedure (Eur. Court HR, Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, p. 17, para. 29)

75.  In the present case the Commission notes that, as it transpires from the relevant law and practice (see para. 45), the Regional Court  could not inquire into whether or not there existed a reasonable suspicion against the applicant (cf. the Assenov Report, loc. cit., para. 162).

76.  Furthermore, Section 152 paras. 1 and 2 of the Code of Criminal Procedure apparently shift to the accused person the burden of proof as regards the absence of grounds for the detention on remand.  These provisions require the mandatory detention on remand of anyone who has been charged with a "serious wilful crime" unless it has been demonstrated beyond doubt that there exists no danger, even a hypothetical one, of absconding, of committing other crimes, or of obstructing justice (see paras. 42 and 44).

77.  The Commission need not examine whether this legislative approach is at all compatible with the principles enshrined in Article 5 of the Convention.  It will confine the examination of the case to the particular complaints expressly raised by the applicant.

78.  In this respect it appears that due to the operation of the shift of the burden of proof under Section 152 paras. 1 and 2 of the Code of Criminal Procedure (see paras. 42 and 44) the Regional Court tended to limit its examination of the applicant's appeal to a simple verification of whether or not the charges preferred against her could be qualified as an accusation concerning a "serious wilful crime" (see para. 26).  The only other issue dealt with by the Court was the applicant's health. Issues central to the lawfulness of her detention, such as whether or not there existed a danger of absconding or of committing crimes, were left without examination (cf. paras. 23 and 26).

79.  The Commission finds, therefore, that the scope and the nature of  the control exercised by the Regional Court in the habeas corpus proceedings did not satisfy the requirements of Article 5 para. 4 of the Convention as interpreted in the Court's case-law summarised above (see para. 72).

80.  The Commission further notes that the Regional Court examined the applicant's appeal against detention in camera after having received the prosecutor's comments inviting the Court to dismiss the appeal (see paras. 25 and 26).  These comments apparently were not communicated to the applicant and she was not given a possibility to reply.  Furthermore, it appears that the applicant was unable to consult the case-file or even to submit additional evidence following the lodging of her appeal.  The resulting effect inevitably ran contrary to the principle of equality of arms and adversarial proceedings.

81. In sum, examining the proceedings before the Regional Court in the applicant's case as a whole, the Commission considers that they involved flaws and fell short of the guarantees enshrined in Article 5 para. 4 of the Convention.

82.  As regards the Government's argument that the possibility to appeal to all levels of the prosecution authorities should also be taken into account when assessing the issues under Article 5 para. 4 of the Convention, the Commission recalls its finding that the prosecutor under the Bulgarian system cannot be considered a judicial officer within the meaning of Article 5 para. 3 of the Convention (see para. 57 above).  It clearly follows that the prosecutor cannot be considered a "court" within the meaning of Article 5 para. 4 of the Convention and that, therefore, any possibility to appeal to a prosecutor cannot constitute the remedy required by paragraph 4 of Article 5 of the Convention.

83.  In view of the above findings (paras. 79 and 81) the Commission considers it unnecessary to examine whether the applicant's rights under Article 5 para. 4 of the Convention were also violated on account of the fact that the relevant law at the time (see para. 47) did not provide for a periodic judicial review of her detention on remand.

CONCLUSION

84.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

E. Recapitulation

85.   The Commission concludes, unanimously, that in the present case there has been a violation of the applicant's right under Article 5 para. 3 of the Convention to be brought before a judge or other officer authorised by law to exercise judicial power (para. 60).

86.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 84).

  M.F. BUQUICCHIO                        N. BRATZA

     Secretary                    Acting President

to the First Chamber                  of the First Chamber