Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31195/96

by Ivanka NIKOLOVA

against Bulgaria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 February 1996

by Ivanka NIKOLOVA against Bulgaria and registered on 26 April 1996

under file No. 31195/96;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national born in 1943 and residing

in Plovdiv. Before the Commission she is represented by Mr. Mihail

Ekimdjiev, a lawyer practising in Plovdiv.

The facts of the case as submitted by the applicant may be

summarised as follows.

A. Particular circumstances of the case

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.

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.

In accordance with the provisions of the Financial Control Act

(Zakon za finansovia kontrol), as in force at the relevant time, the

final act of the audit was sent to the prosecution authorities who had

to examine whether the circumstances in which the cash deficit occurred

revealed criminal acts.

On 15 March 1995 the Regional Investigation Office (Regionalna

sledstvena sluzhba) in Plovdiv ordered the opening of criminal

proceedings on the matter. The order of 15 March 1995 allegedly

indicated that the criminal proceedings were instituted "against" the

applicant. In the months which followed Mr. S., the investigator

(sledovatel) in the case, examined a number of witnesses and collected

other evidence. The applicant was also examined as a witness.

On 24 October 1995 the applicant was arrested and charged under

Section 203 para. 1 in conjunction with Section 201 of the Penal Code

(Nakazatelen kodeks), with misappropriation of funds in large amounts.

On the same day investigator S. heard the applicant and decided to

detain her on remand. On 9 November 1995, apparently without having

heard the applicant, a prosecutor from the Regional Prosecutor's Office

in Plovdiv (Okrazhna prokuratura) confirmed the investigator's decision

to detain her.

On an unspecified date the applicant appealed to the Plovdiv

Regional Court (Okrazhen sad) against her detention on remand. In his

written submissions to the Court the applicant's lawyer stated inter

alia that the charges were unfounded and that there was no danger of

absconding because the applicant had a husband and two children, and

because she had not attempted to abscond during the six months since

she had become aware of the criminal charges against her. Also, the

lawyer submitted that a year earlier the applicant had undergone

gynaecological surgery from which she had not yet completely recovered.

He enclosed medical certificates.

In accordance with the established practice the applicant's

lawyer transmitted his appeal and submissions to the Regional Court

through the Regional Prosecutor's Office. The Prosecutor's Office

apparently added to the file the investigator's decision of

24 October 1995 to detain the applicant and the prosecutor's

confirmation of 9 November 1995, and transmitted the file to the

Regional Court. The Court examined the case in camera, without the

presence of the parties.

On 11 December 1995 the Court dismissed the appeal. The Court

noted that the applicant was accused of misappropriation of funds in

large amount, a crime which carried a penalty of imprisonment of ten

or more years. Also, the medical certificates presented by the

applicant concerned her state of health during a past period of time.

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.

On 19 February 1996 the applicant's detention on remand was

discontinued and she was put under house arrest. On the same day she

was transferred from the hospital to her home.

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.

B. Relevant domestic law and practice

a. The Constitution and the Act on the Judiciary (Zakon za sadebnata

vlast) provide for the structure of the prosecution and of the

investigation authorities. A National Investigation Authority

(Natzionalna sledstvena sluzhba), 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 (Vissh sadeben savet), 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.

b. Code of Criminal Procedure (Nakazatelno-protzesualen kodeks)

It follows from Sections 152, 172 and 201 - 203 that an accused

person can be detained on remand by decision of an investigator or of

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.

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.

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.

Sections 43, 48, 86, 176 - 178, 196, 201, 208, 219 - 220 and 235

- 237 concern the competence of the prosecutor and of the investigator

in penal proceedings.

According to these provisions and to the legal theory and

practice the prosecutor has a double function in penal proceedings.

At the preliminary investigation stage he supervises the investigation

and gives mandatory instructions. Also, throughout the proceedings the

prosecutor effects a "control for lawfulness". At the judicial stage

of the proceedings he is entrusted with the task to prosecute the

accused and to represent the prosecution in court.

According to Section 86 the prosecutor and the investigator are

under an obligation to collect both incriminating and exonerating

evidence.

Section 43 provides that 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

mandatory 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.

According to Sections 48 para. 2 and 201 the investigator has

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.

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.

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.

Section 152 para. 5

"(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."

According to the current practice the court examines the appeals

against detention on remand in camera, without the participation of the

parties. If the appeal is dismissed the court does not notify the

detained of the decision taken.

In a decision of 17 September 1992 the Supreme Court found that

the imposition of detention on remand could be contested before a court

only 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 his release from the prosecution

authorities if there had been a change of circumstances (opredelenie

No. 94 po n.ch.h.d. No. 754/92, I n.o., Sb. 1992-93 str. 173).

Periodic judicial review of the lawfulness of a detention on

remand becomes possible only when the criminal case is already in the

hands of the court. At this stage of the proceedings the court before

which the case is pending also decides whether to release or detain the

accused.

c. The Penal Code

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.

COMPLAINTS

1. The applicant submits that there has been a breach of Article 5

para. 3 of the Convention. Thus, after her arrest she was brought only

before an investigator. She was not brought before the prosecutor who

confirmed her detention on remand. Furthermore, the prosecutor cannot

be regarded as "officer authorised to exercise judicial power" as he

was conducting and supervising the criminal proceedings against the

applicant. Moreover, the applicant was not brought before the Regional

Court which examined her appeal against detention.

2. The applicant also complains that there has been a breach of

Article 5 para. 4 of the Convention. She submits that this provision

requires implicitly that the habeas corpus proceedings be adversarial

and be conducted in the presence of the detained person. Moreover, the

same facts also amount to a breach of Article 6 of the Convention as

she did not have a "fair hearing" of her appeal against detention.

3. The applicant invokes also Article 13 of the Convention stating

that the possibilities to appeal against her detention were not

effective remedies. Thus, the law did not provide for a possibility

to appeal before a higher tribunal against the decision of the Regional

Court of 11 December 1995. Also, a detained person can appeal before

a court against detention only once. There is no possibility for a

periodical judicial review.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 February 1996 and registered

on 26 April 1996.

On 27 February 1997 the Commission decided to communicate to the

respondent Government the applicant's complaints concerning her

detention on remand, raised by her under Articles 5, 6 and 13 of the

Convention. The Commission declared inadmissible the applicant's

complaints under Article 6 paras. 1 and 3 of the Convention concerning

the fairness of the criminal proceedings against her and her complaint

of an alleged breach of Article 25 of the Convention.

The time-limit for the Government's written observations expired

on 8 May 1997. The Government have not requested its extension. By

letter of 22 May 1997 the Government were informed that the case would

be examined during the Commission's session beginning on 30 June 1997

and that no observations have been received.

On 28 May 1997 the Commission granted the applicant legal aid.

THE LAW

1. The applicant raises complaints under Article 5 paras. 3 and 4

(Art. 5-3, 5-4) of the Convention as regards her arrest and detention

and also in respect of the examination of her appeal against detention.

She considers that Articles 6 and 13 (Art. 6, 13) of the Convention are

also applicable.

The Government have not submitted observations.

Having examined the applicant's complaints concerning her

detention on remand, the Commission finds that they raise serious

questions of fact and law which are of such complexity that their

determination should depend on an examination of the merits. This part

of the application cannot, therefore, be regarded as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other grounds for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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NIKOLOVA v. BULGARIA

NIKOLOVA v. BULGARIA