Information Note on the Court’s case-law

March 1997

Lukanov v. Bulgaria - 21915/93

Judgment 20.3.1997

Article 5

Article 5-1

Lawful arrest or detention

D etention on remand of parliamentarian on suspicion of having misappropriated public funds when he was Deputy Prime Minister: violation

[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its format ting and structure may therefore differ from the Case-Law Information Note summaries.]

I. PRELIMINARY OBSERVATION

It was not disputed that, following the applicant's death, his widow and two children were entitled to pursue the application on his behalf an d Court saw no reason to hold otherwise.

II. ARTICLE 5 § 1 OF THE CONVENTION

Court's jurisdiction confined to period after 7 September 1992, when Bulgaria ratified Convention and accepted Court's compulsory jurisdiction - however, its examination took into account that the grounds for applicant's detention from July until December 1992 remained the same.

Central issue was whether detention after 7 September 1992 was "lawful" within meaning of Article 5 § 1.

It was undisputed that applicant had, as member of government, taken part in decisions (granting funds in assistance and loans to certain developing countries) which had given rise to charges against him.

However, none of the provisions of the Criminal Co de relied on to justify the detention (Articles 201 to 203, 219 and 282) specified or even implied that anyone could incur criminal liability by taking part in collective decisions of this nature - no evidence adduced to show that such decisions were unlaw ful - Court not persuaded that conduct for which applicant was prosecuted constituted criminal offence.

What was more, as appeared from Bulgarian case-law, a constituent element of offence of misappropriation under Articles 201 to 203 was that offender had sought to obtain for himself or herself or for a third party an advantage - in addition referred Article 282 specifically made it an offence for a public servant to abuse power to obtain such advantage.

However, Court not provided with any fact or informa tion capable of showing that applicant was reasonably suspected of having sought to obtain for himself or a third party an advantage - not contended that funds not received by States concerned.

Thus, detention in issue was not "lawful" or effected "on reas onable suspicion of [his] having committed an offence" - no need to examine whether detention was necessary to prevent his committing an offence or fleeing after having done so.

Conclusion : violation (unanimously).

III. ARTICLE 18 OF THE CONVENTION

Court had regard to its conclusions with regard to Article 5 § 1.

Conclusion : no separate issue (unanimously).

IV. ARTICLE 50 OF THE CONVENTION

A. Non-pecuniary damage: compensation awarded on equitable basis.

B. Costs and expenses: awarded in full.

Concl usion : respondent State to pay specified sums to applicant's widow and two children (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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