Information Note on the Court’s case-law 66

July 2004

Vachev v. Bulgaria - 42987/98

Judgment 8.7.2004 [Section I]

Article 5

Article 5-3

Judge or other officer exercising judicial power

House arrest on order of investigator: violation

Facts : The applicant was the executive director of a state-owned company. In May 1997, criminal proceedings were opened against him on charges of abuse of office and making false do cuments. In June 1997 the applicant was placed under house arrest by an investigator. Despite his appeals against this measure, he was only released from house arrest on bail in December 1997. In the meantime, the criminal proceedings against the applicant continued and charges against him were amended on a number of occasions. The prosecution referred the case back for additional investigation on several occasions, and there were different opinions between the prosecution and investigators on the charges o n which to indict the applicant. A plea bargain agreement between the applicant and the prosecution was reached in February 2003, and shortly thereafter the criminal proceedings were discontinued. The applicant complained about the measure placing him unde r house arrest without the necessary procedural guarantees as well as of the length of the criminal proceedings against him.

Law : Article 5 § 3 – The applicant’s house arrest had represented a deprivation of liberty within the meaning of Article 5. However , as the investigator who had ordered the house arrest could not be considered as a sufficiently independent and impartial officer for the purposes of this provision, there had been a violation of the applicant’s right to be brought before a “judge or othe r officer authorised by law to exercise judicial power”.

Conclusion : violation (unanimously).

Article 5 § 4 – The Government argued that the applicant had not exhausted domestic remedies since he could have applied to a court relying directly on the Conven tion. Whilst the Convention was incorporated in Bulgarian law and directly applicable, the Government had not furnished any example of a judicial decision in which a person under house arrest had successfully relied on Article 5 § 4 of the Convention to ap ply for release. Given the uncertainty of this remedy and the fact that at the material time Bulgarian law did not provide for judicial review of house arrest, the Government’s preliminary objection was dismissed and there had been a violation of this prov ision.

Conclusion : violation (unanimously).

Article 5 § 5 – Bulgarian law did not afford the applicant an enforceable right to compensation for his deprivation of liberty in conditions contrary to Article 5 § 3 and  § 4. Only persons placed in “pre-trial detention”, not house arrest as had been the applicant’s case, could seek compensation.

Conclusion : violation (unanimously).

Article 6 § 1 – The proceedings against the applicant had lasted approximately five years and nine months and had remained at a preliminary investigation stage. Whilst the case was legally and factually complex, there had been several periods of inactivity, poor coordination between the bodies involved (as evidenced by the numerous reformulations o f the charges) and many remittals of the case from the prosecution to the investigation authorities, which had contributed to the delay.

Conclusion : violation (unanimously).

Article 41 – The Court awarded the applicant 3,000 euros in respect of non-pecuni ary damage. It also made an award in respect of costs and expenses.

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

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