In the case of Lukanov v. Bulgaria (1),

        The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:

        Mr  R. Ryssdal, President,
        Mr  F. Matscher,
        Mrs E. Palm,
        Sir John Freeland,
        Mr  J. Makarczyk,
        Mr  D. Gotchev,
        Mr  B. Repik,
        Mr  U. Lohmus,
        Mr  J. Casadevall,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,

        Having deliberated in private on 2 December 1996 and
20 February 1997,

        Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar

1.  The case is numbered 25/1996/644/829.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.

2.  Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9).  They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________

PROCEDURE

1.      The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 March 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47).  It originated in an application
(no. 21915/93) against the Republic of Bulgaria lodged with the
Commission under Article 25 (art. 25) by a Bulgarian citizen,
Mr Andrei Karlov Lukanov, on 1 September 1992.  The applicant was shot
dead on 2 October 1996.

        The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Bulgaria recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).  The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 5 para. 1 and 18 of the Convention
(art. 5-1, art. 18).

2.      In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).


3.      The Chamber to be constituted included ex officio
Mr D. Gotchev, the elected judge of Bulgarian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)).  On 30 March 1996, in the presence of the
Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Matscher, Mrs E. Palm, Mr F. Bigi,
Sir John Freeland, Mr J. Makarczyk, Mr U. Lohmus and Mr J. Casadevall
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr B. Repik, substitute judge, replaced Mr Bigi, who had
died (Rules 22 para. 1 and 24 para. 1).

4.      As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Deputy Registrar, consulted the Agent of the
Bulgarian Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38).  Pursuant to the orders made in consequence
on 5 July and 21 October 1996, the Registrar received the applicant's
memorial on 3 October 1996 and the Government's written observations
on 8 October and 12 November 1996.  On 22 November 1996 the Secretary
to the Commission indicated that the Delegate would submit his
observations at the hearing.

5.      Following the applicant's death on 2 October 1996, the
Registrar received on 5 October a declaration to the President of the
Court to the effect that the applicant's widow,
Mrs Lilia Gerassimova-Lukanova, and two children,
Ms Anna Andreeva Lukanova and Mr Karlo Andreev Lukanov, wished to
pursue the proceedings on his behalf.

6.      In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
28 November 1996.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) for the Government

    Mrs S. Margaritova, Ministry of Justice,                   Agent;

(b) for the Commission

    Mr  S. Trechsel,                                        Delegate;

(c) for the applicant

    Mrs I. Loultcheva, lawyer practising in Sofia,           Counsel,
    Mr  S.E. Entchev,                                      Assistant.

        The Court heard addresses by Mr Trechsel, Mrs Loultcheva and
Mrs Margaritova.

AS TO THE FACTS

I.      Particular circumstances of the case

7.      The applicant was a Bulgarian citizen.  Formerly a Minister,
then Deputy Prime Minister and, in 1990, Prime Minister of Bulgaria,
he was a member of the Bulgarian National Assembly at the time of the
events giving rise to the present case.  On 2 October 1996 he was shot
dead outside his home.

8.      On leaving Sofia for Moscow on 7 March 1992, the applicant was
informed by the border police at Sofia Airport that an order had been
made to withdraw his diplomatic passport.  As the order was not shown
to him, he refused to hand over his passport.  Following a similar
incident on 11 March, the applicant lodged an appeal with the
Supreme Court, which rejected the appeal on the ground that no
administrative decision had been taken which could form the subject of
an appeal.  Subsequently, the applicant brought proceedings to obtain
compensation for non-pecuniary damage sustained as a result of the
unlawful order to withdraw his passport (see paragraph 24 below).

9.      On 1 July 1992 the Prosecutor-General requested the
National Assembly to authorise the institution of criminal proceedings
against the applicant on suspicion of having contravened Articles 203
and 219 para. 3 of the Criminal Code (see paragraphs 25 and 27 below).
The suspicion related in particular to his participation as a
Deputy Prime Minister between 1986 and 1990 in a number of decisions
granting sums, totalling 34,594,500 US dollars (USD) and
27,072,000 convertible Bulgarian leva, in assistance and loans to
certain developing countries, including Nicaragua, Cuba, Laos,
Kampuchea, Afghanistan, Angola and Yemen.  The request stated:

        "The decisions ... have dramatically affected the country's
        economic potential, its economic resources and export capacity,
        and have objectively speaking made it unable to repay its
        foreign debt.  It should be emphasised that, due to decisions
        of this nature causing prejudice to the country and other
        illegal measures taken by party and government leaders during
        this period, our foreign debt rose from USD 4,119,700 in 1986
        to USD 10,656,900,000 in 1989 ...

        The situation described is covered by the definition of the
        offence of `taking advantage of one's position' in respect of
        very large amounts of money, which constitutes a particularly
        serious matter falling within the provisions in Article 203 and
        Article 219 para. 3 of the Criminal Code.

        The offences mentioned are `serious' within the meaning of
        Article 93 para. 7 of the Code."

10.     On 7 July 1992 the National Assembly waived the applicant's
parliamentary immunity under Article 70 of the Bulgarian Constitution
and authorised criminal proceedings against him and his arrest and
detention on remand.

11.     On 9 July 1992 the public prosecutor, Mr Doychev, of the
Investigation Department of the Prosecutor-General's Office, charged
the applicant under Article 203, in conjunction with Articles 201, 202
and 282, of the Criminal Code (see paragraphs 25 and 28 below) with
having misappropriated, in concert with the chairperson and the other
vice-chairpersons of the then Council of Ministers, the funds allocated
to certain developing countries as mentioned in paragraph 9 above.  In
breach of his official duties, he had facilitated the misappropriation
in order to obtain an advantage for a third party, thereby causing
considerable economic damage.  In view of the very large amounts of
money involved, the case was a particularly serious one.

        The prosecutor in addition ordered the applicant's detention
on remand, citing as grounds the need to show to the public the danger
that the offences in question represented to society, the applicant's
identity and the need to secure his appearance before the trial court.
The decision referred, inter alia, to Articles 147 and 152 para. 1 of
the Code of Criminal Procedure (see paragraphs 29 and 30 below).

        On 9 July 1992 the applicant was arrested and remanded in
custody at the premises of the National Investigation Service in Sofia.

12.     On the same date the applicant's lawyer lodged an appeal with
the Bulgarian Supreme Court, requesting his release.  She maintained
that, contrary to Article 148 para. 1 of the
Code of Criminal Procedure, the arrest warrant had failed to specify
the grounds for his arrest.  The fact that he risked a sentence of more
than ten years' imprisonment could not in itself justify his detention
since, under paragraph 2 of Article 152, it was also a condition that
there should be a risk of his absconding or of his committing a further
crime (see paragraph 30 below).  In addition, the measures had been
taken on the basis of the applicant's identity, notably the fact that
he was a member of the National Assembly, a consideration which was not
covered by any of the grounds that were exhaustively listed in
Article 147 para. 1 (see paragraph 29 below).

13.     At a court session held on 13 July 1992, at which the
public prosecutor but not the applicant or his lawyer was present, the
Supreme Court dismissed the appeal.  Its decision included the
following reasoning:

        "Under Article 152 para. 1 of the Code of Criminal Procedure
        a suspect is to be detained on remand if the offence is
        punishable by ten years' imprisonment or more or by the
        death penalty.  Offences under Article 203 para. 1, of the
        Criminal Code carry such sentences.

        [The above provision] lays down two cumulative conditions - the
        misappropriation must have occurred on a large scale and must
        have been particularly serious.

        [Whether the misappropriation has occurred] on a particularly
        large scale depends on the value of the public property
        involved.  The seriousness of the case is determined on the
        basis of whether the misappropriation was carried out with the
        complicity of others, the level of the threat to society
        involved in the [measures] and the subject matter (Article 93
        para. 8, of the Criminal Code).  The argument that the
        eventuality envisaged in Article 152 para. 2 ... applies in the
        instant case is unfounded.

        When the accusation was made the applicant was a member of the
        National Assembly.  By virtue of Article 72 of the
        Bulgarian Constitution he holds this status until such
        circumstances occur as may warrant the suspension from his
        functions as a member of the National Assembly.  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 [risk] mentioned in Article 152 para. 2 ...
        will materialise, and the likelihood of this is greater than
        in the case of an appellant who is not a member of the
        National Assembly.

        Furthermore, the applicant has lodged a judicial appeal against
        the administrative measure resulting in the withdrawal of his
        diplomatic passport ...  The fact that he has taken such a step
        gives good grounds for fearing that he will not refrain from
        committing acts of the type mentioned in Article 152 para. 2
        ...

        According to Article 70 of the Constitution `..., except in
        cases of serious crimes and where permission has been given by
        the National Assembly, its members may not be detained and no
        charges may be brought against them ...'.  A logical and
        systematic interpretation of the aforesaid provision suggests
        that [what is decisive for] the measure of restraint,
        `detention', [to be applied] in the context of the
        Criminal Code is whether the act entails a great danger to
        society and the particular status of the person who has
        committed it - a member of the National Assembly.

        For this reason the legislature envisaged ... detention in
        [such] cases.  The prosecutor's office has power to impose such
        a measure."

14.     On 23 August 1992 the applicant was hospitalised at
Sofia Penitentiary Hospital, where he received treatment.

15.     On 4 September 1992 the applicant, relying on a change in
circumstances concerning his state of health, filed a request with the
Prosecutor-General for his release.

16.     On 5 September 1992 his lawyer appealed to the Supreme Court
against the Prosecutor-General's implied refusal to grant the request
of 4 September 1992.

        The Supreme Court dismissed the appeal on 17 September 1992 on
the grounds that the applicant had already appealed against his
detention and that, under the relevant Bulgarian law, he was not
entitled to lodge a further appeal.

17.     Subsequently, the applicant's lawyer made a request for his
release to the public prosecutor.

        At a meeting on 28 October 1992 between the public prosecutor
and the applicant and his lawyer at the Military Hospital in Sofia, the
lawyer invited the prosecutor to take a decision on the request for
release.  The applicant himself maintained that it was unreasonable to
base his detention on the fact that he had complained about the
withdrawal of his passport.  He did not have any other passport.  Nor
was there any danger of his repeating the offence, as he was no longer
in a position to do so.

        On 2 November 1992 the public prosecutor dismissed the
applicant's request for release.  He gave as reasons that the
Prosecutor-General had already dealt with it and had been of the view
that, notwithstanding the medical reports concerning the applicant,
there were no new circumstances warranting his release.  His lawyers
had been informed of the Prosecutor-General's decision of
22 October 1992 and had been advised that no further appeal was
possible.

18.     By letter of 9 November 1992 the applicant's lawyer asked the
Prosecutor-General to terminate the investigation.  She recalled that
it had commenced on 8 July 1992 and, after the expiry of the statutory
period of two months, had been extended for another two months until
8 November 1992.  Under Article 222 para. 3 of the
Code of Criminal Procedure, a further extension could only be justified
in "exceptional" cases, which condition had not been satisfied in the
applicant's case.  Nor had the Prosecutor-General obtained any new
evidence during the four months which had elapsed since the
investigation had started.

        The lawyer also contested the charges against the applicant.
The decisions of the Council of Ministers had been taken collectively
in accordance with the Constitution and the budget voted by the
National Assembly.  The decisions in question had been taken simply
with a view to implementing policies of the government in power at the
time and it was the government, not the applicant as a
Deputy Prime Minister, which had administered the relevant funds.  In
any event, it had not been established that the applicant had committed
the offences in issue for his own benefit or for that of a third party.

19.     On 10 November 1992 the applicant's lawyer lodged a request for
his release with the Prosecutor-General, maintaining, inter alia, that
the further prolongation of his detention breached Article 5 para. 3
of the Convention (art. 5-3) and that, contrary to Article 5
para. 1 (c) (art. 5-1-c), no grounds had been given for his detention.
The argument that the applicant had appealed against the order to
withdraw his passport was unfounded as he had only exercised his rights
under Bulgarian law.  The lawyer refused to comment on the allegation
that the applicant constituted a particular danger to society on
account of his position as member of the National Assembly.

20.     On 11 November 1992 the Prosecutor-General informed the
applicant's lawyer orally that his request of 10 November 1992 had been
dismissed in the absence of any new circumstances justifying
modification of the decision to detain him on remand.

21.     In a letter of 18 November 1992 to the Prosecutor-General the
applicant, referring to Article 180 of the Code of Criminal Procedure,
complained about the prosecutor's failure to reply to his requests in
writing.  He asserted that the criminal proceedings against him had no
legal basis and amounted to an overt act of political reprisal.

22.     In a letter of 20 November 1992 to the public prosecutor, the
applicant's lawyer queried the outcome of the request of
10 November 1992 (see paragraph 19 above), stating that the information
was important for the application filed with the Commission.

        On 25 November 1992 the public prosecutor replied that his
decision of 11 November had been transmitted to the applicant's lawyer
on 16 November and that minutes relating to these measures had been
prepared in accordance with Article 100 of the
Code of Criminal Procedure.

23.     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 the prosecutor decided to release the
applicant on bail.

24.     On 12 March 1994 the Sofia City Court awarded the applicant
compensation for non-pecuniary damage suffered as a result of the
attempts made by the border police to withdraw his passport in the
absence of a lawful order to this effect.  The decision was confirmed
by the Supreme Court on 9 February 1995.

II.     Relevant domestic law

    A.  The Bulgarian Criminal Code of April 1968, as in force at the
        relevant time

25.     Under Article 201 of the Criminal Code, public servants who
misappropriate public or private funds which are in their possession
in their capacity as public servants or which they have been entrusted
with to keep secure or administer are liable to up to eight years'
imprisonment.  If a further offence has been committed in order to
facilitate the misappropriation or if the offence has been committed
with the complicity of others, between one and ten years' imprisonment
may be imposed (Article 202).

        Where an offence under Articles 201 or 202 involves
particularly large amounts of public funds and is serious, Article 203
para. 1 provides for terms of between ten and thirty years'
imprisonment.

26.     As appears from a number of rulings by the Supreme Court
(D 133-77-II, p. 80; D 63-79-I, p. 61; D 271-85-II, p. 87; D 172-88-I,
bull. no. 12/88, p. 4; D 144-79-I, p. 73; D 315-75-II, p. 52; and
D 5-83-Pl., p. 17) supplied by the applicant's lawyer in consultation
with the Agent of the Government before the Court's hearing, at the
material time a condition for the offence of misappropriation under
Article 201 of the Criminal Code was that the person concerned had
disposed of the means in question as though they were his or her own,
in order to obtain an advantage for himself or herself or for a
third party.

        In a judgment of 1995 (no. 17/95) the Constitutional Court
declared unconstitutional an amendment by the National Assembly to make
it an express condition in Article 201 that the person concerned had
used the funds to his own advantage or that of a third party.  In the
opinion of the Constitutional Court, such a limitation on the scope of
the offence of misappropriation would entail too weak a protection of
the right to property guaranteed by the Constitution of 1991.  It
should be decisive for the offence, not that there had been personal
enrichment, but that the person had disposed of the means as though
they were his own and had thereby harmed the owner's interests.

        In connection with the above, the Constitutional Court stated
that the amendment in question had been in line with the
Supreme Court's interpretation of Article 201.

        According to the Government, there was no example at the
relevant time of a member of a government having been prosecuted under
Articles 201 and 203 of the Criminal Code for his or her participation
in collective decision-making by the government.

27.     Article 219 para. 1 provides:

        "If a public 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 causes considerable
        material damage, or the destruction or dispersal of the assets,
        to the disadvantage of the service concerned or the
        national economy, he will be punished by a term of imprisonment
        of not more than three years or by forced labour in the public
        interest."

        According to paragraph 3, up to eight years' imprisonment may
be imposed if the offence is committed wilfully.

28.     Article 282 provides:

        "(1)  A public servant who does not fulfil his professional
        obligations or who commits an abuse of power with the aim of
        obtaining a material advantage for himself or for a third party
        or of causing damage to others, and if not insignificant
        material damage could arise, shall be punished by a term of not
        more than five years' imprisonment ...

        (2)   If the act results in considerable material damage or has
        been committed by a person occupying a senior administrative
        post, the person concerned shall be liable to a term of
        imprisonment of eight years ...

        (3)   If such an act is particularly serious the term of
        imprisonment shall be between three and ten years ..."

    B.  The Bulgarian Code of Criminal Procedure of November 1974, as
        in force at the material time

29.     Under Article 147 para. 1 of the Code of Criminal Procedure,
an accused may be placed under court supervision in order to ensure
that he or she does not abscond or commit a new offence or to prevent
collusion.  The kind of measure imposed depends on the evidence against
the accused, his or her state of health, family situation, profession
and any other information concerning his or her character.

30.     Article 152 provides, in so far as relevant:

        "(1)  Detention on remand shall be imposed if the charges
        concern crimes punishable by a term of imprisonment of
        ten years or more or by 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 lodge an appeal with
        the court against his detention.  The Court shall decide within
        three days by means of a decision which is final."

PROCEEDINGS BEFORE THE COMMISSION

31.     In his application (no. 21915/93) to the Commission of
1 September 1992 the applicant complained that his arrest and detention
on remand had been incompatible with Article 5 para. 1 (c) of the
Convention (art. 5-1-c), in that there was no reasonable suspicion of
his having committed a crime and that the measures were not necessary
in order to prevent him from committing an offence or fleeing.  He
further complained that while remanded in custody he had suffered
inhuman and degrading treatment in breach of Article 3 (art. 3) and
that, contrary to Article 6 (art. 6), he had not been afforded a
public hearing before the Supreme Court.  In addition, he complained
that the criminal proceedings against him concerned acts which did not
constitute a criminal offence at the material time and thus gave rise
to a breach of Article 7 (art. 7).  He alleged that there had been a
breach of Article 10 of the Convention (art. 10) on account of an order
by the public prosecutor prohibiting him from writing articles about
matters related to the investigations.  Finally, he contended that
there had been a breach of Article 18 of the Convention (art. 18).

32.     On 12 January 1995, the Commission declared the application
admissible in so far as it concerned the applicant's complaints under
Articles 5 para. 1 and 18 of the Convention (art. 5-1, art. 18) and
declared the remainder of his application inadmissible.

        In its report of 16 January 1996 (Article 31) (art. 31), it
expressed the unanimous opinion that there had been a violation of
Article 5 para. 1 of the Convention (art. 5-1) and that no separate
issue arose under Article 18 (art. 18).  The full text of the
Commission's opinion is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar

1.  For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________

FINAL SUBMISSIONS TO THE COURT

33.     At the hearing on 28 November 1996, the Government, as they had
done in their written observations to the Court, conceded that there
had been violations of Article 5 para. 1 of the Convention (art. 5-1).

34.     On the same occasion the lawyer for the applicant reiterated
his request in his memorial to find that there had been violations of
Article 5 para. 1 (art. 5-1) and to award him just satisfaction under
Article 50 of the Convention (art. 50).

AS TO THE LAW

I.      PRELIMINARY OBSERVATION

35.     The applicant was shot dead outside his home on 2 October 1996,
while the case was pending before the Court (see paragraph 7 above).
It has not been disputed that his widow and two children
(see paragraph 5 above) were entitled to pursue the application on his
behalf and the Court sees no reason to hold otherwise (see, for
instance, the Ahmet Sadik v. Greece judgment of 15 November 1996,
Reports of Judgments and Decisions 1996-V, p. 1652, para. 26).

II.     ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 OF THE CONVENTION
        (art. 5-1)

36.     The applicant alleged that there had been a violation of
Article 5 para. 1 of the Convention (art. 5-1), which, in so far as
relevant, reads:

        "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;

        ..."

37.     The applicant, with whom the Commission agreed, was of the
opinion that the facts which had been invoked against him at the time
of his arrest and during his continued detention (see paragraphs 9, 11
and 13 above) could not, in the eyes of an objective observer, be
construed as misappropriation of funds or as a breach of official
duties aimed at facilitating the commission of such an offence.
Accordingly, there had been no "reasonable suspicion of [his] having
committed an offence" within the meaning of Article 5 para. 1 (c)
(art. 5-1-c).  Nor could the detention be "reasonably considered
necessary to prevent his committing an offence or fleeing after having
done so".

        In these circumstances, the Commission did not find it
necessary to examine whether the detention was "lawful" under
domestic law.

        The applicant, for his part, stressed that the decisions
leading to the charges against him and his being detained on remand had
been taken collectively by the government at the time and in a manner
which was consistent with the relevant law, including the then
Bulgarian Constitution; the allocation of the funds in question had
been effected in accordance with the national budget as adopted by the
National Assembly and had subsequently been approved by the latter.
The measures had been in keeping not only with the policies of the
government at the time but also with relevant
United Nations resolutions on development assistance.  They had not
benefited any members of the government or any third parties; the funds
had been received in their entirety by the addressee countries.

38.     The Government maintained before the Commission that the
applicant's detention had been effected on the grounds of suspicion of
his having committed a crime and had been in conformity with
Bulgarian law.  Although it was true that the allocation of development
aid had not as such constituted a criminal offence, the charges in
question had been brought because the transfers of funds had, under the
cover of development assistance, involved improper "deals" causing
damage to Bulgaria's economic interests.  The Government were, however,
not in a position to provide any details of such "deals" as it would
adversely affect the confidentiality of the criminal proceedings
instituted against the applicant and eight other former
government members.

        Before the Court the Government stated that they were prepared
to accept the Commission's opinion that there had been a violation of
Article 5 para. 1 of the Convention (art. 5-1), whilst at the same time
informing the Court of the views of the Prosecutor-General, the
authority which had ordered the applicant's detention on remand
(see paragraph 11 above).  In this regard the Government pointed out
that it was not within their competence to assess the measures taken
in this case by the prosecution and the Supreme Court which, under the
Constitution, were both independent judicial authorities.

39.     The Prosecutor-General's submission on the applicant's
complaints included the following observations.

        It was a key element of the offence of misappropriation under
Bulgarian law that the offender had dealt with someone else's property
as though it had been his or her own and had thereby infringed the
owner's interests; it was not decisive whether he or she had sought to
obtain an advantage for himself or herself or for a third party
(see paragraph 26 above).  Furthermore, members of a body could by
reason of their joint decisions and actions be found guilty if they had
thereby knowingly committed acts which amounted to an offence.  In the
present case, since the collective decisions concerned had caused
economic loss, criminal proceedings had been instituted against each
member of the body which had taken those decisions (see paragraphs 9
and 11 above).  The prosecutor had believed that the funds concerned
had been spent in a manner which was unlawful since there was no
information as to whether they had appeared in the budget as an
expenditure.

        Admittedly, the Prosecutor-General had not been in a position
at the time to ascertain whether there was criminal intent.  He had
considered, having regard to the circumstances and complexity of the
case, that this could only be determined in the course of the
preliminary investigations.

        Although not expressly stated in the order to detain the
applicant on remand, the decision had been taken in view of who the
applicant was and the gravity of the offence committed
(see paragraphs 9 and 11 above).  The Supreme Court too had laid stress
on the applicant's status as a member of the National Assembly
(see paragraph 13 above).  The extremely wide powers which he had
enjoyed by virtue of his position had given him greater opportunities
to abscond or commit further offences than he would have had otherwise.
Furthermore, his position in society, his numerous contacts abroad and
his repeated requests that the authorities return his passport, were
all considerations which went to justify placing him in
pre-trial detention.  As stated by the Supreme Court, the fact that the
applicant had appealed against the withdrawal of his passport had given
rise to a justified suspicion that he might commit a further offence,
within the meaning of Article 152 para. 2 of the
Code of Criminal Procedure (see paragraph 13 above).

        In the view of the Prosecutor-General, the contested
pre-trial detention was in accordance with domestic law, including the
Bulgarian Constitution, and had been entirely in keeping with
Article 5 para. 1 (c) of the Convention (art. 5-1-c).

40.     The Court observes at the outset that it has jurisdiction to
examine the facts and circumstances of the applicant's complaints in
so far as they related to the period after 7 September 1992, when
Bulgaria ratified the Convention and recognised the Court's
compulsory jurisdiction.  In doing so, it will take into account the
state of the proceedings as of that date (see, for instance, the
Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A,
p. 19, para. 53; and the Yagci and Sargin v. Turkey judgment of
8 June 1995, Series A no. 319-A, p. 16, para. 40), in particular the
fact that the grounds for his detention, stated in the detention order
of 9 July and the Supreme Court judgment of 13 July upholding the
order, remained the same until his release on 30 December 1992
(see paragraphs 11 and 13 above).  This has not been disputed before
the Court.

        As to the observations made by the Government concerning the
independence of the authorities which had taken the measures giving
rise to the applicant's Convention complaints (see paragraph 38 above),
it should be emphasised that the Governments are answerable under the
Convention for the acts of such authorities as they are for those of
any other State agency.  In all cases before the Court, what is in
issue is the international responsibility of the State
(see, mutatis mutandis, the Foti and Others v. Italy judgment of
10 December 1982, Series A no. 56, p. 21, para. 63).  Notwithstanding
the Government's acceptance of the Commission's opinion that there had
been a violation of Article 5 para. 1 (art. 5-1), the Court considers
it appropriate to examine this question for itself.

41.     Article 5 para. 1 of the Convention (art. 5-1) contains an
exhaustive list of permissible grounds for deprivation of liberty which
must be interpreted strictly (see, for instance, the Ciulla v. Italy
judgment of 22 February 1989, Series A no. 148, p. 18, para. 41).

        The Court is of the view that the central issue in the case
under consideration is whether the applicant's detention from
7 September to 30 December 1992 was "lawful" within the meaning of
Article 5 para. 1 (art. 5-1), including whether it was effected "in
accordance with a procedure prescribed by law".  The Court reiterates
that the Convention here refers essentially to national law, but it
also requires that any measure depriving the individual of his liberty
be compatible with the purpose of Article 5 (art. 5), namely to protect
the individual from arbitrariness (see, for instance, the Bozano
v. France judgment of 18 December 1986, Series A no. 111, p. 23,
para. 54; and the Benham v. the United Kingdom judgment of
10 June 1996, Reports 1996-III, pp. 752-53, para. 40).

        Where the Convention refers directly back to domestic law, as
in Article 5 (art. 5), compliance with such law is an integral part of
the obligations of the Contracting States and the Court is accordingly
competent to satisfy itself of such compliance where relevant
(Article 19) (art. 19); the scope of its task in this connection,
however, is subject to limits inherent in the logic of the
European system of protection, since it is in the first place for the
national authorities, notably the courts, to interpret and apply
domestic law (see, inter alia, the above-mentioned Bozano judgment,
p. 25, para. 58; and the Kemmache v. France (no. 3) judgment of
24 November 1994, Series A no. 296-C, p. 88, para. 42).

42.     Turning to the particular circumstances of the case, the Court
observes that it is undisputed that the applicant had, as a member of
the Bulgarian Government, taken part in the decisions - granting funds
in assistance and loans to certain developing countries - which had
given rise to the charges against him.

43.     However, none of the provisions of the Criminal Code relied on
to justify the detention - Articles 201 to 203, 219 and 282
(see paragraphs 11 and 13 above) - specified or even implied that
anyone could incur criminal liability by taking part in collective
decisions of this nature.  Moreover, no evidence has been adduced to
show that such decisions were unlawful, that is to say contrary to
Bulgaria's Constitution or legislation, or more specifically that the
decisions were taken in excess of powers or were contrary to the law
on the national budget.

        In the light of the above, the Court is not persuaded that the
conduct for which the applicant was prosecuted constituted a
criminal offence under Bulgarian law at the relevant time.

44.     What is more, the public prosecutor's order of detention of
9 July 1992 and the Supreme Court's decision of 13 July upholding the
order referred to Articles 201 to 203 of the Criminal Code
(see paragraphs 13 and 25 above).  As appears from the case-law
supplied to the Court, a constituent element of the offence of
misappropriation under Articles 201 to 203 of the Criminal Code was
that the offender had sought to obtain for himself or herself or for
a third party an advantage (see paragraph 26 above).  The order of
9 July in addition referred to Article 282 which specifically makes it
an offence for a public servant to abuse his or her power in order to
obtain such advantage (see paragraphs 9 and 28 above).

        However, the Court has not been provided with any fact or
information capable of showing that the applicant was at the time
reasonably suspected of having sought to obtain for himself or a
third party an advantage from his participation in the allocation of
funds in question (see, for instance, the Murray v. the United Kingdom
judgment of 28 October 1994, Series A no. 300-A, p. 25, para. 51).  In
this connection it is to be noted that the Government's submission that
there had been certain "deals" was found by the Commission to be
unsubstantiated and was not reiterated before the Court.  Indeed, it
was not contended before the Convention institutions that the funds had
not been received by the States concerned.

45.     In these circumstances, the Court does not find that the
deprivation of the applicant's liberty during the period under
consideration was "lawful detention" effected "on reasonable suspicion
of [his] having committed an offence".

        Having reached this conclusion, the Court does not need to
examine whether the detention could reasonably be considered necessary
to prevent his committing an offence or fleeing after having done so.

46.     Accordingly, there has been a violation of Article 5 para. 1
(art. 5-1) in the present case.

III.    ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION (art. 18)

47.     Before the Commission, the applicant alleged that there had
also been a violation of Article 18 of the Convention (art. 18), which
reads:

        "The restrictions permitted under [the] Convention to the said
        rights and freedoms shall not be applied for any purpose other
        than those for which they have been prescribed."

48.     The Commission, having regard to its findings with respect to
Article 5 para. 1 of the Convention (art. 5-1) (see paragraph 37
above), concluded that no separate issue arose under Article 18
(art. 18).  On this point too the applicant agreed with the Commission.

49.     The Court, bearing in mind its conclusions with regard to
Article 5 para. 1 (art. 5-1), likewise considers that no separate issue
arises under Article 18 (art. 18).

IV.     APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

50.     In his memorial to the Court, Mr Andrei Lukanov sought just
satisfaction under Article 50 of the Convention (art. 50), which reads:

        "If the Court finds that a decision or a measure taken by a
        legal authority or any other authority of a High Contracting
        Party is completely or partially in conflict with the
        obligations arising from the ... Convention, and if the
        internal law of the said Party allows only partial reparation
        to be made for the consequences of this decision or measure,
        the decision of the Court shall, if necessary, afford just
        satisfaction to the injured party."

    A.  Non-pecuniary damage

51.     The applicant claimed no compensation for pecuniary damage but
asked the Court to award him compensation for the moral and physical
injury which he had suffered as a result of the detention.

52.     The Government left the matter to the discretion of the Court,
whereas the Commission's Delegate suggested that the Court make an
award of 115,000 French francs (FRF), on the basis that a compensation
of FRF 1,000 for each of the 115 days during which the applicant had
been unlawfully detained would be adequate.

53.     The Court considers that sufficient just satisfaction would not
be provided solely by the finding of a violation and that compensation
has thus to be awarded.  Making an assessment on an equitable basis,
it awards FRF 40,000, to be converted into Bulgarian leva at the rate
applicable on the date of settlement, to his widow and two children,
who are pursuing his application on his behalf.

    B.  Costs and expenses

54.     The applicant further requested the reimbursement of costs and
expenses, in an amount in Bulgarian leva corresponding to the totals
of 13,456 US dollars (USD) and FRF 7,067, which were incurred in
respect of the following items:

(a)     USD 3,100 for his lawyer Mrs Loultcheva's work in connection
with the case before the Commission;

(b)     USD 3,272 and FRF 1,600 for his own and his lawyer's travel and
subsistence expenses in connection with the hearing before the
Commission;

(c)     USD 2,000 for his lawyer's work in connection with the case
before the Court;

(d)     USD 1,800 for Mr Entchev's work in connection with translation
and interpretation in the proceedings before the Court;

(e)     USD 3,284 and FRF 5,467 for Mrs Loultcheva's and Mr Entchev's
travel and subsistence expenses in connection with their appearance at
the Court's hearing.

55.     The Government left it to the Court's discretion to make an
award for costs and expenses.  The Commission's Delegate considered the
claims under items (a) to (c) to be reasonable and that an amount would
also have to be awarded with respect to such costs and expenses as
mentioned in items (d) and (e).

56.     The Court is satisfied that the costs and expenses claimed were
actually and necessarily incurred in the stated currencies and were
reasonable as to their quantum.  In accordance with its case-law it
awards to the applicant's widow and his two children the entirety of
the claim made under this head.

    C.  Default interest

57.     The Court considers it appropriate that default interest should
be payable at the rate of 4% per annum with regard to the sums awarded
in French francs and 5% per annum with respect to the sum awarded in
US dollars.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.      Holds that there has been a violation of Article 5 para. 1 of
        the Convention (art. 5-1);

2.      Holds that no separate issue arises under Article 18 of the
        Convention (art. 18);

3.      Holds

        (a)   that the respondent State is to pay the applicant's widow
        and two children within three months the following sums, to be
        converted into Bulgarian leva at the rate applicable on the
        date of settlement:

              (i)  40,000 (forty thousand) French francs, in
              compensation for non-pecuniary damage, and

              (ii) for legal costs and expenses, 13,456 (thirteen
              thousand, four hundred and fifty-six) US dollars and
              7,067 (seven thousand and sixty-seven) French francs;

        (b)   that simple interest at the following annual rates shall
        be payable from the expiry of the above-mentioned three months
        until settlement:

              (i)  4% per annum in relation to the sums awarded in
              French francs, and

              (ii) 5% per annum in relation to the sum awarded in
              US dollars;

4.      Dismisses the remainder of the claim for just satisfaction.

        Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 20 March 1997.

Signed: Rolv RYSSDAL
        President

Signed: Herbert PETZOLD
        Registrar