AS TO THE ADMISSIBILITY OF
Application no. 53820/00
by Mariana Yordanova BONEVA
The European Court of Human Rights (First Section), sitting on 10 November 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 12 October 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Mariana Yordanova Boneva, is a Bulgarian national who was born in 1967 and lives in Kirkovo. She is represented before the Court by Ms E. Nedeva, a lawyer practising in Plovdiv.
The respondent Government were represented by their agent, Ms M. Dimova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings
At the relevant time, the applicant was the head of the financial department of the Kirkovo municipality.
A preliminary investigation was opened against the applicant on 28 September 1999. It was based on a tax assessment, issued following an audit of March or May 1999, against the financial department of the Kirkovo municipality. The audit had established certain financial irregularities in the work of the department and that funds were missing. In the course of the audit the applicant had reimbursed part of the missing funds.
On 30 September 1999 the applicant was charged with misappropriation of funds and abuse of office. The applicant claims, which the Government have not challenged, that on that date the tax assessment had still not entered into force, because the deadline for appealing against it had still not expired.
On 28 February 2002 an indictment was entered against the applicant with the Momchilgrad District Court for misappropriation of funds and abuse of office.
By judgment of 7 May 2004 of the Momchilgrad District Court the applicant was acquitted of the charges against her. The judgment entered into force on 20 May 2004.
2. The applicant’s detention and her appeals against it
(a) The first arrest of the applicant
On 28 September 1999 the applicant was arrested at the local police station.
The applicant claims that at the time she was a candidate in the local mayoral elections. She further submits that she was coerced by the head of the police station into signing a request to withdraw from those elections.
Sometime following the arrest, allegedly as a result of the exerted pressure on her to sign the request to withdraw from the mayoral election, the applicant fainted.
The applicant was released at 12.55 p.m. on the same day and was taken to a medical facility for treatment.
(b) The second arrest of the applicant
On 30 September 1999 the applicant was arrested, charged with misappropriation of funds and abuse of office and remanded in custody upon a decision of an investigator, approved by the Kurdzhali Prosecutor’s Office.
(c) The applicant’s first appeal against her detention
On 4 October 1999 the applicant filed an appeal against her detention. She maintained that at the time of her arrest there had been insufficient evidence that she had committed an offence, because the tax assessment had still not entered into force. She also claimed that the charges against her should be reclassified, because she had returned the missing funds. Finally, she maintained that when she was placed in detention, the authorities had not taken into account, inter alia, her lack of a criminal record, her reputation in the community, her fragile health condition and the fact that she was married with two children.
On 8 October 1999 the Kurdzhali Regional Court, by a majority, dismissed the appeal, noting that the applicant had been charged with a serious offence, which automatically entailed that she should be detained pending trial as provided by Article 152 (1) of the Code of Criminal Procedure (“CCP”). The court further found that none of the exceptions provided for in Article 152 (2) of the CCP existed, namely that there was lack of evidence that she would not abscond, obstruct the investigation or re-offend. Furthermore, the court noted that the applicant’s health condition was not such as to warrant her release, that the investigation was at a very early stage and the gathering of facts and evidence was continuing.
(d) The applicant’s second appeal against her detention
On 18 October 1999 the applicant filed another appeal against her detention. She reiterated her previous grounds for appeal and also presented medical evidence that one of her children had developed a serious medical condition as a result of his mother’s detention.
On 21 October 1999 the Kurdzhali Regional Court heard the applicant’s appeal. The court agreed with the applicant that when she was detained notice had not been taken of the facts (1) that she had reimbursed the missing funds, (2) that she had a family with two small children which made it unlikely that she would abscond, (3) that she did not have a criminal record and was unlikely to re-offend, and (4) that a substantial part of the evidence against her had already been collected during the audit, so there was a limited possibility for her to obstruct the investigation. Based on the aforesaid and taking into account the medical condition of the applicant’s son, the court found that there was a change in the circumstances and ordered her release on bail of 5,000 Bulgarian Levs.
The applicant was released on the same day.
3. The applicant’s removal from office
By decision of 22 October 1999 the Deputy-Regional Public Prosecutor ordered the applicant to be removed from office on the grounds that she might obstruct the investigation if she remained in her current employment.
As a result, on 4 January 2000 the mayor of Kirkovo dismissed the applicant from her employment on the grounds that there were objective impediments to her performing her duties. The applicant did not appeal against the dismissal.
On an unspecified date, the applicant appealed against the decision of the Deputy-Regional Public Prosecutor to remove her from office. By decision of 16 March 2000 the Kurdzhali Regional Court dismissed the applicant’s appeal. The applicant appealed further. By final decision of 16 May 2000 the Plovdiv Appellate Court quashed the lower court’s decision and lifted the order to remove the applicant from office. The court found that only the Regional Public Prosecutor could have ordered the removal of the applicant from office, powers which the Deputy-Regional Public Prosecutor did not have.
4. The applicant’s action under the State Responsibility for Damages Act
On 12 October 2004 the applicant initiated an action under the State Responsibility for Damages Act. She sought compensation from the State for the alleged unlawful detention from 30 September 1999 until 21 October 1999. The case is still pending before the domestic courts.
B. Relevant domestic law and practice
1. Power to order pre trial detention
At the relevant time and until the reform of the CCP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court’s judgment in the case of Nikolova v. Bulgaria [GC] (no. 31195/96, §§ 45-53, ECHR 1999-II).
2. Grounds for pre-trial detention
At the relevant time and until the reform of the CCP of 1 January 2000 detention pending trial was mandatory in cases where the charges concerned a serious intentional offence. Detention could only be dispensed with, as interpreted by the Supreme Court, when it was clear and beyond doubt that any danger of absconding or re-offending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May1992, case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995, case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995, case no. 768/95, II Chamber; Decision no. 24, case no. 268/95, I Chamber, Bulletin 1995, p. 149). In some other decisions, the Supreme Court nevertheless embarked on an analysis of the particular facts to justify findings that there existed a danger of absconding or of offending (Decision No. 76 of 25.07.1997, case no. 507/97 II Chamber, Bulletin no. 9-10/97, p. 5; Decision no. 107 of 27.05.1998, case no. 257/98, II Chamber, Bulletin no. 3-4/98, p. 12).
The relevant domestic law and practice have been summarised in a number of judgments of the Court in several similar cases against Bulgaria (see, among others, the Nikolova, cited above, §§ 25-36; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
3. Scope of judicial control on pre-trial detention
On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person’s absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see the Supreme Court’s cases cited above and the decisions of the domestic authorities criticised by the Court in the cases of Nikolova, cited above, Ilijkov, cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).
1. The applicant complained under Article 5 § 1 (c) of the Convention that she was detained unlawfully both on 28 September 1999 and subsequently on 30 September 1999. In particular, she submits that the evidence against her at the time was not sufficient to lead to the conclusion that she was guilty of an offence because the tax assessment had still not entered into force.
2. The applicant complained under Article 5 § 3 of the Convention that after she was arrested on 30 September 1999 she was not brought promptly before a judge or other officer authorised by law to exercise judicial power.
3. Referring to Article 5 § 4 of the Convention, the applicant submits that on 8 October 1999 the Regional Court failed to examine all factors relevant to the lawfulness of her detention.
4. Relying on Articles 3 and 10 of the Convention and Article 3 of Protocol No. 1 of the Convention the applicant complained that during her detention on 28 September 1999 she was coerced into signing a request to withdraw from the mayoral elections and fainted as a result of the pressure exerted on her.
5. The applicant complained under Article 1 of Protocol No. 1 to the Convention, in conjunction with Article 6 § 2, that she was denied peaceful enjoyment of her possessions insofar as she was denied the opportunity to receive her habitual remuneration following the order of the Deputy-Regional Public Prosecutor of 22 October 1999 and her subsequent dismissal from work on 4 January 2000. She maintains that the order was unjust insofar as the presumption of innocence should have been applicable to her at that stage of the proceedings. She further maintains that the order was unlawful insofar as it was issued by the Deputy-Regional Public Prosecutor and not the Regional Public Prosecutor.
A. Complaint under Article 5 § 3 of the Convention
The applicant complained under Article 5 § 3 of the Convention that after the arrest on 30 September 1999 she was not brought promptly before a judge or other officer authorised by law to exercise judicial power.
Article 5 § 3 of the Convention provides, as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...”
The Government concurred that the legislation in force prior to 1 January 2000 did not require detainees to be brought before a judge or other officer authorised by law to exercise judicial power. On the other hand, they argued that the applicant had available an appeals’ procedure against her detention, which she made use of and, as a result, was presented before a judge on 8 October 1999. The Government considered, therefore, that the applicant had de facto been brought promptly before judge or other officer authorised by law to exercise judicial power, as required under Article 5 § 3 of the Convention.
In her response, the applicant referred to the Court’s case-law, where it had found a violation as until 1 January 2000 pre-trial detention was ordered by a prosecutor or an investigator, who cannot be regarded as “judge[s]” or “other officer[s]” exercising judicial function (Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII; Nikolova, cited above; Shishkov v. Bulgaria, no. 38822/97, ECHR 2003-I (extracts); Yankov, cited above; and Hamanov v. Bulgaria, no. 44062/98, 8 April 2004).
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Complaint under Article 5 § 4 of the Convention
The applicant complained under Article 5 § 4 of the Convention that in its decision of 8 October 1999 the Kurdzhali Regional Court did not examine all factors relevant to the lawfulness of her detention.
Article 5 § 4 of the Convention provides the following:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government claimed that the court had made a thorough analysis of all relevant circumstances and facts for continuing the applicant’s detention and had not dismissed her appeal solely on the basis of the seriousness of the offence with which she had been charged. In particular, the court had considered her health condition and had found that it did not warrant her release.
The Government also stated that as of 8 October 1999 the court had not had grounds to immediately alter the coercive measure “detention in custody”.
The applicant responded that the court had failed to examine the arguments put forward by the applicant in her appeal concerning the absence of a reasonable suspicion that she had committed the offence. She reiterated her claim that the court merely relied on the seriousness of the offence with which she had been charged to justify her continued detention and to dismiss her appeal.
The applicant did not agree with the Government’s contention that the court had no grounds to immediately alter the coercive measure “detention in custody”. To the contrary, she considered that if the court had examined all factors relevant to the lawfulness of her detention it was within its powers to release her immediately.
The Court considers that the present case should be differentiated from other cases against Bulgaria where violations were found when the domestic courts applied mandatory detention (see Nikolova, cited above, §§ 54-66 and Ilijkov v. Bulgaria, no. 33977/96, § 88-106, 26 July 2001). By contrast, considering the short term of the applicant’s detention for only three weeks and the fact that two reviews were conducted over the period by the domestic courts of the grounds for her continued detention, the Court considers that in this particular case, despite the existing statutory requirement at the time for mandatory detention, the domestic courts adhered to the requirements of Article 5 § 4 of the Convention.
In particular, the Court observes that the applicant’s first appeal was heard on 8 October 1999, which was eight days after she was detained on 30 September 1999. At the time, the domestic court concluded, on the basis of the facts before it, that her release was not warranted and took into account, inter alia, her health condition and that the investigation was at a very early stage and the gathering of facts and evidence was continuing. In response the applicant’s second appeal, however, which was heard two weeks later on 21 October 1999, the domestic court found that her continued detention was no longer justified due to a change in circumstances – her son’s serious medical condition – and ordered her release.
Taken as a whole, therefore, and by strictly limiting the assessment of compliance with the requirements under Article 5 § 4 of the Convention to the very particular circumstances and factual confines of the present case, which differentiate it from the above mentioned cases where violations were found, the Court considers that the domestic courts adhered to said requirements.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. The remainder of the applicant’s complaints
The Court has examined the remainder of the applicant’s complaints as submitted by her. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint that when she was arrested on 30 September 1999 she was not brought promptly before a judge or other officer authorised by law to exercise judicial power (Article 5 § 3).
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
BONEVA v. BULGARIA DECISION
BONEVA v. BULGARIA DECISION