Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 21915/93

Andrei Lukanov

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 16 January 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-60) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-39). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 40-60). . . . . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

(paras. 61-94) . . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

(para. 61). . . . . . . . . . . . . . . . . . . . 11

B. Points at issue

(para. 62). . . . . . . . . . . . . . . . . . . . 11

C. As regards Article 5 para. 1 of the Convention

(paras. 63-83). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 84). . . . . . . . . . . . . . . . . . . . 14

D. As regards Article 18 of the Convention

(paras. 85-90). . . . . . . . . . . . . . . . . . 14

CONCLUSION

(para. 91). . . . . . . . . . . . . . . . . . . . 15

E. Recapitulation

(paras. 92-93). . . . . . . . . . . . . . . . . . 15

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 16

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, a Bulgarian citizen born in 1938, was first a

Minister of the Bulgarian Government, then Deputy Prime Minister, and

from 1989 until 1990 Prime Minister of Bulgaria. He is currently a

Member of Parliament.

3. The application is directed against Bulgaria. The respondent

Government were represented by their Agent, Mrs. G. Beleva, of the

Ministry of Foreign Affairs.

4. The case concerns the applicant's detention on remand on charges

of misappropriation of funds and transfer of monies to Third World

Countries, allegedly committed by the applicant as a Deputy Prime

Minister. The applicant invokes Articles 5 para. 1(c) and 18 of the

Convention.

B. The proceedings

5. The application was introduced on 1 September 1992 and registered

on 25 May 1993.

6. On 21 October 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and invite them to submit

written observations on admissibility and merits.

7. The Government's observations were submitted on 5 April 1994

after the extension of the time-limit fixed for this purpose. The

applicant's observations in reply were dated 25 May 1994. The

Government submitted additional observations on 18 July 1994, which

were sent to the applicant for information.

8. On 30 August 1994 the Commission decided to invite the parties

to an oral hearing. The hearing took place on 12 January 1995. The

Government were represented by their Agent, Mrs. G. Beleva, and by

Mrs. J. Miteva. The applicant, who was also present, was represented

by Mrs. I. Lulcheva, a lawyer practising in Sofia.

9. On 12 January 1995 the Commission declared the applicant's

complaints under Articles 5 para. 1 and 18 of the Convention

admissible. It declared the remainder of the application inadmissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 24 January 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

applicant submitted further observations by letter of 7 March 1995,

which were sent to the Government for information.

11. 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

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

13. The text of this Report was adopted on 16 January 1996 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.

14. 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.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. 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

17. On 1 July 1992 the Prosecutor General of Bulgaria requested the

Bulgarian National Assembly to permit the institution of criminal

proceedings against the applicant on suspicion of having contravened

Sections 203 and 219 para. 3 of the Bulgarian Penal Code. He was in

particular accused of having participated between 1986 and 1990 as a

Deputy Prime Minister in 27 decisions which granted assistance and

credits of altogether 34.594.500 USD and 27.072.000 convertible

Bulgarian Leva to less developed countries such as Nicaragua, Cuba,

Laos and others. The request continued:

"The decisions ... have led to extremely severe results for

the country's economy in respect of its potential, resources and

export capacity, and have objectively led to an incapacity to

repay its foreign debt. It should be emphasised that due to such

decisions harmful to the country, and other illegal acts of party

and government leaders, during this period our foreign debt which

in 1986 amounted to 4.119.700 USD, increased to 10.656.900.000

USD in 1989 ...

The described situation corresponds to the qualification of

the crime of the 'benefit of using one's position' in respect of

particularly big amounts, which qualifies as a specifically

severe case, falling under Section 203 and Section 219 para. 3

of the Penal Code.

The crimes mentioned are 'serious' in the context of

Section 93 para. 7 of the same Code."

18. On 7 July 1992 the National Assembly decided to suspend the

applicant's parliamentary immunity and to permit the institution of

criminal proceedings against him, as well as his arrest and detention

on remand.

19. On 9 July 1992 Public Prosecutor D., of the Investigation

Department of the General Prosecution, ordered the applicant's

prosecution and his detention on remand. The applicant was charged

under Article 203 of the Penal Code with having misappropriated, in

complicity with the Chairman and the other Vice-Chairmen of the then

Council of Ministers, the monies granted as assistance and credits to

less developed countries (see above para. 17). He was also charged

with a crime under Article 282 para. 3 of the Code for having breached

his official duties as Vice-Chairman of the Council of Ministers in

order to facilitate the misappropriation of funds.

20. As to the reasons for imposing detention on remand, the order

relied on the extent of public exposure of the committed crime, the

personality of the performer and the need to secure the applicant's

appearance before court, as well as on Sections 50, 177, 180, 196

para. 2 and 207, and Sections 146 to 148 and 152 para. 1 of the Code

of Criminal Procedure.

21. Still on 9 July 1992 the applicant was arrested and remanded in

custody on the premises of the National Investigation Service in Sofia.

22. On 9 July 1992 the applicant's lawyer filed an appeal with the

Bulgarian Supreme Court, requesting the applicant's release from

detention. The appeal stated that, contrary to Section 148 para. 1 of

the Code of Criminal Procedure, the warrant of arrest mentioned no

grounds for the applicant's arrest. The grounds given could in fact

serve for any arrest. Furthermore, according to Section 152 of the

Code of Criminal Procedure, the applicant's detention could not be

justified on the mere ground that he risked a sentence of more than ten

years' imprisonment, since para. 2 of Section 152 required as grounds

for detention a danger of absconding or of committing a further crime.

The appeal also invoked Section 31 para. 4 of the Bulgarian

Constitution.

23. On 13 July 1992 the Supreme Court dismissed the appeal. The

Court decided in the presence of the Public Prosecutor, but in the

absence of the applicant and his lawyers. The decision stated:

"Under Section 152 para. 1 of the Code of Criminal

Procedure detention is ordered if a sentence of ten or more years

of imprisonment or the death penalty is envisaged for the crime.

The offences in Section 203 para. 1 of the Penal Code envisage

such a penalty.

(This provision) contains two cumulative prerequisites -

misappropriation must have occurred on a large scale and must

have been particularly serious.

The particularly large scale derives from the nominal value

of the public property involved. The seriousness of the case

results from the fact that the misappropriation was done in

complicity with other persons and from the extremely high degree

of public danger of the act and the subject (Section 93 para. 8

of the Penal Code). The argument that the hypothesis of Section

152 para. 2 of the Code of Criminal Procedure exists in this case

is groundless.

At the time of the accusation the applicant was a member of

the National Assembly. He preserves this quality by virtue of

Section 72 of the Constitution of Bulgaria up to the moment when

judicial facts occurred by virtue of which the powers of a member

of the National Assembly may be suspended. In his capacity as

member of the National Assembly the applicant represents the

people as a whole. It is precisely in this capacity that the

possibility of Section 152 para. 2 of the Code of Criminal

Procedure applying to his case becomes more likely than in the

case of an applicant who does not have the status of a member of

the National Assembly.

Furthermore, the applicant undertook a judicial appeal

against the administrative act by which his diplomatic passport

... was withdrawn ... These actions of his cast well-founded

doubts as to whether future actions will not be undertaken by him

in the context of Section 152 para. 2 of the Code of Criminal

Procedure.

According to Section 70 of the Constitution of the Republic

of Bulgaria '... the members of the National Assembly cannot be

detained and no legal prosecution can be initiated against them

except for serious crimes and with the permission of the National

Assembly ...'. The logical and systematic interpretation of the

aforesaid provision imposes the conclusion that the measure of

restriction, 'detention', in the context of the Penal Code is

determined by the high level of public danger of the act and by

the special status of the person who has committed it ..., a

member of the National Assembly.

For this reason the legislator envisaged a qualified

measure of restriction, detention, in similar cases. The

Prosecutor's Office is competent to impose this measure."

24. On 11 August 1992 the applicant published an article in the

Bulgarian newspaper "Douma" entitled "Who will pay?".

25. As a result, by order of 12 August 1992, Public Prosecutor D.

prohibited the applicant from speaking alone with his lawyers.

Reference was made in particular to Section 75 para. 1 of the Code of

Criminal Procedure. The order, which stated that it could be contested

by means of appeal, explained:

"The daily papers and in particular the 'Douma' newspaper

after the date of detention of the accused ... published articles

by him. Such an article was also published in

No. 191/August 8 1992 of the said newspaper. Analysis has shown

that these publications are of a political nature. One of the

aims of these publications is to demonstrate that, irrespective

of his detention, the [applicant] continues to take an active

part in the public and political life of the country. This is

inadmissible in view of the measure of coercion applied to him.

Thus, public order is being infringed, mistrust of the judiciary

is being introduced, and the constitutional principle that rights

should not be abused has been violated. According to Section 10

para. 1 of the Code of Criminal Procedure, all citizens

participating in criminal proceedings are equal before the law

and in this connection no privileges based on public status are

admitted. Neither periodicals nor daily newspapers have

published or will publish materials written by persons in

custody. With a view to the nature of this procedural measure

of coercion, regulatory control has been imposed by the competent

bodies on the correspondence of those remanded in custody.

According to the law, it is inadmissible that the [applicant]

alone should enjoy such a privilege.

There are reasons to suspect that ... the [applicant] is

preparing written material which he transmits to his defence

lawyers ... and which [is] then conveyed to the editorial boards

of newspapers and other organisations. This aims at introducing

public unrest and mistrust of the Bulgarian Judiciary. Thus, it

is necessary, provisionally, during the stay of the [applicant]

at the ... Higher Medical Academy, to restrict his right to meet

his defence lawyers without anyone else being present, as

provided for under Section 75 of the Code of Criminal Procedure."

26. On 1 September 1992 Public Prosecutor D. issued a further order

according to which the applicant, who was now in the Sofia Penitentiary

Hospital, was not permitted to "see other persons, including ...

members of the National Assembly ... without permission in writing

given under [the Prosecutor's] signature. [The applicant] is not to

be given a typewriter ...".

27. Alleging a change in circumstances concerning his state of

health, on 4 September 1992 the applicant filed a request with the

Prosecutor General to be released from detention. On 5 September 1992

the applicant's lawyer filed a complaint with the Supreme Court against

the tacit refusal of the Prosecutor General to grant the request of 4

September 1992. A public hearing on the applicant's appeal was

requested with reference to Article 6 of the Convention.

28. On 17 September 1992 the Supreme Court rejected the appeal as the

law did not provide for judicial control over the acts of the

prosecution during the preliminary investigation of a criminal case.

The sole exception to this rule was the possibility to appeal against

an order for the imposition of detention. Besides, the Supreme Court

had already dealt with the applicant's appeal against his detention,

and under the law the imposition of detention could only be contested

once. A new appeal was only possible where a detained person had been

released and then again detained. In all other cases a detained person

could always request the investigating authorities to replace detention

on remand by another measure where there had been a change of

circumstances. However, this was within the competence of the

investigating authorities, whose decisions could be contested before

the prosecution, albeit not before the court.

29. On 20 October 1992 the applicant's lawyer requested Public

Prosecutor D. to release the applicant. It transpires from the

subsequent order of Public Prosecutor D. of 2 November 1992 that the

Prosecutor General dismissed this request on 22 October 1992.

30. On 28 October 1992 Public Prosecutor D. met the applicant and his

lawyer at the Military Hospital in Sofia. According to the minutes

established, the lawyer requested D., who was conducting the

investigation, to decide on the applicant's request for release. The

applicant himself pointed out that it was absurd to rely for his

detention on the fact that he had complained about the withdrawal of

his passport. He also did not have another passport. There was no

danger of repeating the offence, as he was no longer in a position to

do so. As a result, his release was imperative. The applicant also

drew attention to the necessity of convalescence which was impossible

in detention.

31. By order of 2 November 1992 Public Prosecutor D. dismissed the

applicant's request for release as the Prosecutor General had already

dealt with it. It was stated that the applicant's lawyers had been

informed of the Prosecutor General's decision of 22 October 1992, and

that no further appeal was possible. The order explained that the

Prosecutor General was aware of the medical reports and had refused the

request as there were no new circumstances permitting the applicant's

release.

32. By letter of 9 November 1992 the applicant's lawyer requested the

General Prosecution to terminate the investigations, explaining that

the investigations had commenced on 8 July 1992, and that the two

months of investigations envisaged by the law had expired on

8 September 1992. After prolongation, a period of four months had

expired on 8 November 1992. According to Section 222 para. 3 of the

Code of Criminal Procedure, a further prolongation of two months was

only possible in "exceptional" cases. The lawyer contested the

exceptional nature of the applicant's case as in the past four months

the General Prosecution had not obtained new means of proof.

33. The lawyer also contested that the accusations disclosed an

offence. Thus, the decisions of the Council of Ministers had been

taken collectively within the framework of the constitutional powers

and the budget voted by the National Assembly; the decisions executed

State policies during the period concerned; the authority as such, and

not the applicant as Deputy Prime Minister, had dealt with the means

concerned and it had not been established that the applicant had

committed the offence in his own or another person's interest.

34. On 10 November 1992 the applicant's lawyer requested the

Prosecutor General to release the applicant as the further prolongation

breached Article 5 para. 3 of the Convention; contrary to Article 5

para. 1 (c) of the Convention no grounds had been given for detention.

The lawyer refused to comment on the allegation that, as a member of

the National Assembly, the applicant was particularly dangerous. On

the other hand, insofar as it was maintained that the applicant had

appealed against the refusal to apply for a passport, he had only

exercised his rights under Bulgarian law. The lawyer further invoked

Articles 2 and 5 para. 4 of the Convention; under Article 6 para. 3 (b)

the lawyer complained that the applicant had not been informed of the

content of the accusations against him.

35. On 11 November 1992 the Prosecutor General orally informed the

applicant's lawyers that the applicant's request of 10 November 1992

had been dismissed as there were no new circumstances justifying

modification of detention. According to the Public Prosecutor's

subsequent letter of 25 November 1992, a copy of this decision was

transmitted on 16 November 1992 to the applicant's lawyer.

36. On 18 November 1992 the applicant personally wrote a letter to

the Prosecutor General complaining about the proceedings. He invoked

Section 180 of the Code of Criminal Procedure according to which the

Prosecution had to reply to requests in writing. The applicant

concluded that the criminal proceedings instituted against him had no

legal basis and constituted an overt political reprisal.

37. By letter of 20 November 1992 the applicant's lawyer asked Public

Prosecutor D. about the outcome of the request of 10 November 1992.

She explained that the information was important for the application

filed with the European Commission of Human Rights.

38. On 25 November 1992 Public Prosecutor D. replied that on

16 November 1992 the decision of 11 November 1992 had been transmitted

to the applicant's lawyer, and that minutes concerning these

occurrences had been prepared under Section 100 of the Code of Criminal

Procedure.

39. On 29 December 1992 the Bulgarian National Assembly reversed its

decision of 7 July 1992 authorising the applicant's detention on

remand. On 30 December 1992 Prosecutor D. issued an order for the

applicant's release whereupon the applicant was released.

B. Relevant domestic law

1. Bulgarian Constitution of July 1991.

40. Section 5 para. 4 of the Constitution states that any

international instrument which has been ratified in the

constitutionally established procedure, promulgated and has come into

force with respect to the Republic of Bulgaria, shall be considered

part of the domestic legislation of the country. It shall supersede

any domestic legislation stipulating otherwise.

41. Section 31 para. 4 of the Bulgarian Constitution states that the

restrictions of the rights of the accused shall not exceed those

necessary for the administration of justice.

42. According to Section 70, a member of the National Assembly is

immune from detention and criminal proceedings except where accused of

a serious crime, in which case a decision of the National Assembly is

required.

2. Bulgarian Penal Code of April 1968, amended, as in force at

the relevant time.

43. Section 93 para. 7 of the Penal Code defines as a "serious case"

a crime sanctioned by at least five years' imprisonment or capital

punishment. Para. 8 defines as an "extremely serious case" a crime the

consequences of which demonstrate the particularly dangerous character

of the act and its perpetrator for society.

44. Section 201 of the Penal Code states that a civil servant who

misappropriates public or private funds, objects and other valuables

handed to him in his capacity as a civil servant or entrusted to him

to safeguard or manage, shall be punished with imprisonment lasting up

to eight years.

45. According to Section 202 the punishment for the misappropriation

of funds by a civil servant shall be between one and ten years if, in

order to facilitate misappropriation, a further crime was committed,

or if the offence was committed together with other persons.

46. Section 203 para. 1 provides for a heavier penalty where a crime

under Articles 201 or 202 involves particularly large amounts. It

reads as follows: "Whoever misappropriates particularly large amounts

of public funds due to his position in office shall, in serious cases,

be punished with imprisonment lasting between ten and thirty years."

47. Section 219 para. 1 reads: "If a civil servant, in his

administration of assets or of money in his possession or in the

execution of work which he has been ordered to do, negligently brings

about considerable material damage, or the destruction or dispersion

of the assets, to the disadvantage of the service concerned or the

national economy, he will be punished with imprisonment of up to three

years or forced labour in the general interest." According to para. 3,

if the offence is committed wilfully and does not constitute another

more serious offence, punishment shall be up to eight years'

imprisonment.

48. Section 282 provides:

"(1) A civil servant who does not comply with his professional

obligations or who commits an abuse of power with the purpose of

obtaining a material advantage for himself or for a third person

or of damaging another person, and if not insignificant material

damage could arise, shall be punished with up to five years'

imprisonment ...

(2) If the act results in considerable material damage or has

been committed by a person occupying a high administrative post,

the punishment shall be imprisonment lasting eight years ...

(3) If the above-mentioned act constitutes a particularly serious

case the punishment will last between three and ten years ...".

3. Bulgarian Code of Criminal Procedure of November 1974,

amended, as in force at the relevant time.

49. Section 10 para. 1 of the Code of Criminal Procedure proclaims

the equality of all persons during criminal investigations.

50. Section 50 defines the accused as the person against whom a

charge is brought according to the conditions and rules of the Code.

51. Section 75 permits the lawyer of the accused to meet his client

without other persons being present.

52. Section 100 provides for the preparation of minutes for every act

of investigation.

53. Section 147 para. 1 states that the measures of judicial control

will serve the purpose of preventing the accused from absconding, from

committing a new offence, or from collusion. According to para. 2, the

measures decided upon must relate to the social danger of the offence,

the evidence incriminating the accused, his state of health, his family

situation, his profession, and any other information concerning his

personality.

54. According to Section 148 para. 1, every decision ordering

detention on remand must mention the date and place of the decision,

the authority concerned, the case, the name and date of birth of the

detained person, the crime of which he is accused, and the grounds of

detention. According to para. 2, a copy thereof is transmitted to the

accused.

55. Section 152 provides, insofar as relevant:

"(1) Detention on remand shall be imposed if the charges concern

crimes punishable with imprisonment of ten years or more or with

capital punishment.

(2) The measure envisaged in the previous paragraph shall not

be imposed if there is no danger of the accused evading justice

or committing another crime.

...

(4) The detained person may immediately file an appeal before

the court against the imposition of detention. The Court shall

decide within a time-limit of three days by means of a decision

which is final."

56. Section 177 provides that the Public Prosecutor may conduct the

entire investigations or a part thereof.

57. Section 180 para. 1 states that the investigating authorities

conduct their work by means of decisions. Para. 2 requires every

decision to refer to the date and place when it was taken, the

authority concerned and its signature, the case, the grounds, and an

operative part.

58. Section 196 para. 2 states that if the criminal matter falls

within the jurisdiction of the Supreme Court, the investigation shall

be conducted by a Public Prosecutor of the General Prosecution.

59. Section 207 states that if in the course of the investigations

sufficient evidence has been adduced, and there is no ground for

staying the prosecution, the investigating judge will decide to commit

the applicant for trial.

60. According to Section 222 the investigations must be brought to

an end within two months after they commenced. A further prolongation

of two months is possible. In exceptional cases, the investigations

may last up to six months. If the period is prolonged after two

months, the Prosecutor General will decide on the detention on remand.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

61. The Commission declared admissible the applicant's complaints

under Articles 5 para. 1 and 18 (Art. 5-1, 18) of the Convention

regarding his detention on remand.

B. Points at issue

62. Accordingly the issues to be determined are:

- whether there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention; and

- whether there has been a violation of Article 18 (Art. 18) in

conjunction with Article 5 para. 1 (Art. 5-1) of the Convention.

C. As regards Article 5 para. 1 (Art. 5-1) of the Convention

63. The applicant complains that when he was detained on remand,

there was no reasonable suspicion of his having committed a crime

within the meaning of Article 5 para. 1 (c) )Art. 5-2,-c) of the

Convention. He further complains that no grounds were given as to the

necessity of his arrest and detention in order to prevent him from

committing an offence or fleeing after having done so within the

meaning of Article 5 para. 1 (c) (Art. 5-1,-c) of the Convention. The

applicant also alleges that his detention was unlawful under domestic

law.

64. Article 5 para. 1 (Art. 5-1) of the Convention, insofar as

relevant, provides as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so; ...".

65. The Commission recalls the Convention organs' case law according

to which Article 5 para. 1 (c) (Art. 5-1,-c) of the Convention sets out

three alternative circumstances in which detention may be effected for

the purpose of bringing a person before the competent legal authority:

where a person is reasonably suspected of having committed an offence,

when it is reasonably considered necessary to prevent a person from

committing an offence or fleeing after having done so. Also, the

detention must be "lawful" within the meaning of Article 5 para. 1 (c)

(Art. 5-1,-c) of the Convention (Eur. Court H.R. De Jong, Baljet and

Van den Brink judgment of 22 May 1984, Series A no. 77, p. 21,

para. 44).

(a) Reasonable suspicion of having committed an offence

66. The applicant submits that, insofar as the authorities refer, in

respect of the offence which he had allegedly committed, to Section 203

of the Bulgarian Penal Code, there was no claim that he misappropriated

funds personally, or that he obtained a personal benefit. Rather, the

acts of which he was accused concerned collective decisions of the

Government of the Republic of Bulgaria over the period 1986-1989.

Those decisions were taken within the constitutional powers of the

Council of Ministers, and in accordance with the policies of the

Bulgarian Government and the recommendations of the United Nations and

their agencies. Moreover, there has never been an accusation against

him as regards specific "deals" as contended by the Government in their

submissions before the Commission.

67. The Government submit that extending aid to Third World countries

is not an offence under Bulgarian law. However, this is not the

correct formulation of the grounds in respect of which charges were

brought against the applicant and other persons. Rather, the charges

were that, under the cover of development assistance, monies had been

transferred in different "deals" which infringed Bulgaria's economic

interests. However, the Government cannot provide details in this

respect as this would affect adversely the confidentiality of the

criminal proceedings against the applicant, which are still pending.

68. The Commission recalls the Convention organs' case law according

to which a "reasonable suspicion" presupposes the existence of facts

or information which would satisfy an objective observer that the

person concerned may have committed an offence. As a rule, problems

in this area arise on the level of the facts. The question then is

whether the arrest and detention were based on sufficient objective

elements to justify a "reasonable suspicion" that the facts at issue

had actually occurred (see Eur. Court H.R., Fox, Campbell and Hartley

judgment of 30 August 1990, Series A no. 182, pp. 16 - 18,

paras. 32 - 34; Murray judgment of 28 October 1994, Series A

no. 300-A, paras. 50 - 63).

69. However, in the present case no doubts in this respect have been

raised by the applicant. He does not contest the allegation that he

took part in the decisions of the Government to allocate certain funds

as assistance to less developed countries.

70. The Commission has noted that the Government also allege that the

payments to Third World countries were part of improper "deals" entered

into by the applicant. However, no accusations of this nature were

raised against the applicant by the prosecuting authorities at the time

of his arrest and continued detention. Furthermore, no indication

thereof can be found in any of the orders, petitions, decisions or

other documents which concern the investigations against the applicant

and which have been submitted by the parties (see above paras. 17-38).

Furthermore, the Government have not in any way substantiated these

accusations in the proceedings before the Commission. Therefore, they

could not be considered as grounds on which the authorities had formed

their opinion as to the existence of a "suspicion" against the

applicant.

71. The Commission considers that in addition to its factual side,

the existence of "reasonable suspicion" within the meaning of Article

5 para. 1 (c) (Art. 5-1,-c) requires that the facts invoked can be

reasonably considered as falling under one of the sections describing

criminal behaviour in the Penal Code. Thus, there could clearly not

be a "reasonable suspicion" if the acts or facts invoked against a

detained person did not constitute a crime at the time when they

occurred.

72. In the present case, in the Prosecutor General's request to the

National Assembly of 1 July 1992, the offences invoked against the

applicant were those under Sections 203 and 219 para. 3 of the

Bulgarian Penal Code (see above para. 17). These provisions concern,

respectively, the misappropriation of funds and the wilful causing, by

a civil servant in his administration of assets, of a material damage.

73. The Commission notes that the applicant was charged with offences

under Sections 203 and 282 para. 3 of the Code, namely with

misappropriation of funds and also with breach of his official duties

with the purpose of obtaining a material advantage or of causing damage

to others. The latter crime was allegedly committed in order to

facilitate the misappropriation of funds, which was apparently the main

charge against the applicant and has been the ground for his detention

(see above para. 19). Misappropriation of funds was the sole offence

invoked in the Supreme Court's decision of 13 July 1992 confirming the

applicant's detention (see above para. 23).

74. However, the facts indicated as grounds of the accusations

against the applicant, for example in the Prosecutor General's request

to the National Assembly of 1 July 1992 and in the order for the

applicant's arrest of 9 July 1992 (see above paras. 17 and 19),

concerned exclusively his participation, as Deputy Prime Minister, in

decisions for the transfer of monies to Third World countries. It does

not transpire from these documents that the applicant was accused of

having used any of those monies for his own benefit or to the

advantage of others. Moreover, the decisions were taken collectively,

by the Bulgarian Government, and were therefore a reflection of its

policy (see the Prosecutor General's request to the National Assembly

of 1 July 1992, above para. 17).

75. Finally, the Commission notes that even the Government expressly

admit that extending aid to Third World countries is not an offence

under Bulgarian law (see above para. 67).

76. It follows from the above considerations that the facts invoked

against the applicant at the time of his arrest and during his

continued detention could not, in the eyes of an objective observer,

be construed as amounting to misappropriation of funds, and to a breach

of duties committed with the purpose of facilitating the offence of

misappropriation of funds.

77. As a result, the Commission finds that, when the applicant was

detained on remand, there was no "reasonable suspicion of [his] having

committed an offence" within the meaning of Article 5 para. 1 (c)

(Art. 5-1,-c) of the Convention.

(b) Reasonable necessity to prevent commission of an offence or

fleeing after commission of an offence

78. The Commission has next examined whether the applicant's

detention was necessary in order to prevent him committing an offence

or fleeing after having done so.

79. The Commission notes that there has never been a contention on

the part of the Bulgarian authorities that the applicant's detention

was necessary in order to prevent his committing an offence.

80. It is true that when examining the applicant's appeal against his

detention, the Supreme Court in its decision of 13 July 1992 referred

to issues concerning the applicant's diplomatic passport, thus implying

that there was a danger of absconding (see above para. 23). However,

in the Commission's opinion, the applicant's detention could not be

justified by an alleged danger of "fleeing after having [committed an

offence]", when he could not be reasonably suspected of having

committed an offence (see above, para. 77).

81. It follows that the applicant's detention could not be reasonably

justified under the grounds invoked by the Government and provided for

in Article 5 para. 1 (c) (Art. 5-1,-c) of the Convention.

(c) Lawfulness of the applicant's detention

82. According to the Convention organs' case-law "lawfulness" of

detention presupposes conformity with domestic law in the first place

and also, as confirmed by Article 18 (Art. 18) of the Convention,

conformity with the purposes of the restrictions permitted by Article 5

para. 1, (Art. 5-1) as well as no arbitrariness. (Eur. Court H.R.,

Ashingdane judgment of 28 May 1985, Series A no. 93, p. 21, para. 44;

Bozano judgment of 18 December 1986, Series A no. 111, p. 25,

para. 58). The Commission notes that the applicant has raised, inter

alia, issues concerning the lawfulness of the detention order in view

of the absence of sufficient grounds therein and also issues of time-

limits for detention on remand under Bulgarian law (see above

paras. 32, 33 and 63).

83. However, in view of its finding above (para. 81), the Commission

does not consider it necessary to decide whether the applicant's

detention was "lawful" under domestic law within the meaning of

Article 5 para. 1(c) (Art. 5-1,-c) of the Convention.

CONCLUSION

84. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention.

D. As regards Article 18 (Art. 18) of the Convention

85. Article 18 (Art. 18) of the Convention provides:

"The restrictions permitted under this Convention to the said

rights and freedoms shall not be applied for any purpose other

than those for which they have been prescribed."

86. The applicant submits that the purpose of his detention was to

prevent him from actively and freely expressing his political views as

a member of the National Assembly and from participating in political

life. Thus, his arrest did not correspond to the grounds listed under

Bulgarian law. Also, during detention he was prohibited from writing

articles on political issues even though they were unrelated to the

subject of the investigations. The applicant refers here in particular

to the Public Prosecutor's order of 12 August 1992 which, as a result

of the applicant's article published on 11 August 1992, prohibited him

from transmitting written materials to his lawyers (see above,

paras. 24 - 26).

87. The Government submit that the applicant's detention served no

other purpose than that for which it was prescribed, as set out in

Article 18 (Art. 18) of the Convention. The domestic authorities

strictly apply Bulgarian law equally to all persons, including the

applicant.

88. According to the Convention organs' case-law, in a case such as

the present one concerning deprivation of liberty, Article 18 (Art. 18)

of the Convention requires that arrest and detention be in conformity

with the purposes of the restrictions permitted under Article 5 para. 1

(Art. 5-1) of the Convention (cf. Eur. Court H.R., Ashingdane judgment,

loc. cit., p. 21, para. 44).

89. In the present case, the Commission has just found that the

applicant's deprivation of liberty could not be reasonably justified

under Article 5 para. 1 (c) (Art. 5-1,-c) of the Convention for the

reasons invoked by the Government (see above, para. 81).

90. In the light of those considerations the Commission does not deem

it necessary to examine the same issue under Article 18 (Art. 18) of

the Convention (cf. Eur. Court H.R., Bozano judgment, loc. cit., p. 27,

para. 61).

CONCLUSION

91. The Commission concludes, unanimously, that no separate issue

arises under Article 18 (Art. 18) of the Convention.

E. Recapitulation

92. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention (see above,

para. 84).

93. The Commission concludes, unanimously, that no separate issue

arises under Article 18 (Art. 18) of the Convention (see above

para. 91).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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LUKANOV v. BULGARIA

LUKANOV v. BULGARIA

LEXI