KOLEVI v. BULGARIA

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1108/02
by KOLEVI
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 4 December 2007 as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska, substitute judges,
and Mrs C. Westerdiek, Registrar,

Having regard to the above application lodged on 17 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The application was submitted by Mr Nikolai Georgiev Kolev, a Bulgarian national who was born in 1949. Mr Kolev was shot dead on 28 December 2002. His wife, Mrs Nanka Koleva and his daughter, Ms Christina Koleva, stated that they wished to pursue the application. They also submitted additional complaints.

The applicants are represented before the Court by Mr Y. Grozev and Mr B. Boev, lawyers practising in Sofia. The respondent Government were represented by their agent Mrs M. Karadjova, 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.

Mr Kolev was a high-ranking prosecutor. Between 1994 and 1997 he was Deputy Chief Public Prosecutor of Bulgaria and, thereafter, a prosecutor at the Supreme Cassation Prosecution Office and later at the Supreme Administrative Prosecution Office.

His wife, Mrs Nanka Koleva, the second applicant, is a high-ranking prosecutor.

1. The facts submitted by Mr Kolev in his application of 17 December 2001 and letter of 22 October 2002

a) Mr Kolev’s dismissal

On 10 January 2001 Mr Kolev was dismissed from his position by decision of the Supreme Judicial Council, on an application by the Chief Public Prosecutor, Mr F. The decision ordered Mr Kolev’s retirement.

During the months preceding Mr Kolev’s dismissal, several other high-ranking prosecutors were dismissed and ordered to take early retirement.

Mr Kolev lodged an appeal before the Supreme Administrative Court against his dismissal, stating, inter alia, that he had never applied for retirement and that he had not reached retirement age. By a judgment of 23 May 2001 a chamber of the Supreme Administrative Court quashed the dismissal as contrary to the law, noting that Mr Kolev had not reached retirement age and that even though he was eligible for early retirement this could only be ordered if requested by the person concerned.

On appeal, that judgment was upheld on 10 December 2001 by a five-member chamber of the Supreme Administrative Court.

On an unspecified date in 2002 Mr Kolev resumed his office as a prosecutor. He started work at the Supreme Administrative Prosecution Office.

b) Mr Kolev’s accusations against the Chief Public Prosecutor

Between 1999 and 2006 Mr F. was the Chief Public Prosecutor of Bulgaria.

According to Mr Kolev, the real reason for attempting to force him to retire was a conflict between him and the Chief Public Prosecutor. Mr Kolev allegedly knew the Chief Public Prosecutor very well as they had been in the same class as university students and had worked together for an unspecified period. Observing the behaviour of the Chief Public Prosecutor, Mr Kolev gradually formed the opinion that he was suffering from a psychiatric disorder. Also, a conflict between the two allegedly erupted in relation to plans – which Mr Kolev resisted – to allow public access to the archives of the military intelligence service dating from the communist period. According to Mr Kolev’s statements, supported by several other public figures, the conflict also arose from the fact that the Chief Public Prosecutor had developed an authoritarian style and had repeatedly ordered other prosecutors to act unlawfully against persons whom the Chief Public Prosecutor perceived as his enemies. In particular, on numerous occasions the Chief Public Prosecutor had ordered his subordinate colleagues to open criminal proceedings against other persons on fabricated charges.

On 23 February 2001 the Chief Public Prosecutor met Mr Kolev and allegedly ordered him to withdraw his appeal against the dismissal order, threatening him with arrest and criminal prosecution if he did not comply.

In March and April 2001 Mr Kolev made public his suspicions about the mental health of the Chief Public Prosecutor. In interviews for the press he stated that the Chief Public Prosecutor constantly feared plots, mistrusted his colleagues and regularly ordered unlawful actions to put pressure on persons whom he considered to be against him. He referred to the recent suicide of a high-ranking prosecutor, who had left a note stating that the Chief Public Prosecutor should resign. Also, in January 2001 the Chief Public Prosecutor had allegedly been very irritated by journalists who had reported that his brother had been arrested in Germany on suspicion of smuggling ancient coins and had ordered a series of criminal investigations and reprisals against the journalists and other persons connected with them. The car of one of the journalists had been set on fire soon after the reports had been published. Many persons had been summoned for questioning and various charges brought against some of them.

Mr Kolev also wrote to the President of Bulgaria, informing him of his suspicions concerning the mental health of the Chief Public Prosecutor. He said that in the summer of 2000 the Chief Public Prosecutor had secretly visited a psychiatrist in Israel, who had treated him for paranoid schizophrenia.

At the relevant time other public figures also voiced the opinion that the Chief Public Prosecutor was suffering from a mental disorder and had committed numerous serious criminal acts. In 2002 Mr E. S., a former member of Parliament, known for his publications about alleged crimes committed by high-ranking officials, published an open letter to the Supreme Judicial Council and other institutions, stating that the Chief Public Prosecutor had committed crimes and that he had a mental disorder. One of the allegations was that in February 2000 the Chief Public Prosecutor had murdered Mrs N. G., a lawyer, who had allegedly served as an intermediary for the payment of bribes by criminals to prosecutors, including the Chief Public Prosecutor. Several public figures, including prosecutors, made statements to the press on the matter, some of them supporting the allegations.

The Chief Public Prosecutor and other politicians denied the allegations and stated that they were the victims of a campaign by criminal groups which sought to destabilise the country and hamper pending investigations.

In January 2002 Mr Kolev initiated proceedings before the Supreme Administrative Court seeking a declaration that the decision of the Supreme Judicial Council of 1999 to propose that the President of Bulgaria appoint Mr F. as Chief Public Prosecutor had been invalid because of procedural irregularities. In January 2002 the Chief Public Prosecutor requested a ruling from the Constitutional Court on the question whether the Supreme Judicial Council’s proposals to the President were amenable to appeal before the Supreme Administrative Court. On 28 March 2002 the Constitutional Court ruled that those proposals were not amenable to appeal. On 18 May 2002 the proceedings before the Supreme Administrative Court were discontinued.

In November 2002 the Supreme Judicial Council agreed to deal with the allegations against the Chief Public Prosecutor.

On an unspecified date Mr Kolev requested leave to appear and speak before the Supreme Judicial Council about the alleged unlawful activities of the Chief Public Prosecutor. That was refused.

In December 2002 the Supreme Judicial Council heard several statements and examined documentary material.

On an unspecified date in December 2002 the Supreme Judicial Council adopted a decision calling on the Chief Public Prosecutor to resign. The decision was not reasoned. Mr F. refused.

c) Criminal proceedings against Mr Kolev

Allegedly in reaction to Mr Kolev’s public accusations, several sets of criminal proceedings were instituted against him and members of his family.

On 8 March 2001 Mr Kolev was charged with illegal possession of weapons, as a handgun and a hand grenade had been found in his former office after his dismissal. The proceedings were terminated by the Sofia District Court on 29 June 2001 on the ground that Mr Kolev, who was still a prosecutor, as the decision ordering his retirement had not yet entered into force, enjoyed immunity from prosecution.

In April 2001 criminal proceedings were instituted against Mr Kolev on charges that he had breached the law in connection with an investigation he had conducted in 1991. Those proceedings were terminated by a decision of the Sofia City Court of 9 August 2001.

In June 2001 criminal proceedings were opened against Mr Kolev’s father on charges of illegal possession of fifty cartridges for a hunting rifle. Mr Kolev’s father was later indicted. On 2 October 2002 he was acquitted. By a judgment of 13 January 2005 of the Sliven District Court the prosecuting authorities were ordered to pay Mr Kolev’s father non-pecuniary damages for the anxiety caused by his indictment on charges that had proved unfounded.

In September 2001 criminal proceedings were instituted against Mr Kolev and his son on charges that between 1995 and 1998 Mr Kolev had abused his office to provide his son with a handgun free of charge. Those proceedings were terminated on 18 July 2003 on the grounds that Mr Kolev had died and that it could not be considered that his son had acted wilfully.

In June 2001 criminal proceedings were instituted against Mr Kolev in relation to a telephone conversation of 31 May 2001 (see below). Those proceedings were terminated by the Sofia District Court on 2 August 2001.

In June 2001 Mr Kolev was charged with aiding and abetting the murder of Mrs N. G. in February 2000 (of which others had accused the Chief Public Prosecutor). According to the charges, he had provided advice which had facilitated the commission of the offence.

d) Mr Kolev’s arrest and detention

On 31 May 2001 Mr Kolev wrote to the Minister of the Interior and also gave interviews to the press in which he stated that he had learned that the Chief Public Prosecutor had ordered the fabrication of criminal charges against him, which would consist of drugs being “planted” on him with the aim of having him arrested on drug charges and silencing him. This information was published widely. On the same day Mr Kolev telephoned a former colleague and told him not to participate in this planned operation. In connection with that conversation, in June 2001 Mr Kolev was charged with having attempted to put undue pressure on an official (see above).

Mr Kolev repeated his accusations in a complaint he sent to the Supreme Judicial Council on 12 June 2001. He gave details, indicating the names of several persons who were allegedly involved in the plot and insisted, as he had done in previous complaints, that the Supreme Judicial Council should appoint a commission to investigate the crimes allegedly committed by the Chief Public Prosecutor.

On 20 June 2001 Mr Kolev was arrested in Sofia in front of his home by officers of the anti-terrorist squad accompanied by Mr P. and Mr Ts. I., two high-ranking prosecutors. Immediately after the arrest Mr Kolev’s apartment and a vehicle belonging to Mr Kolev’s son were searched. According to the record drawn up on that occasion and the charges brought later, several paper envelopes containing 2.6 grams of heroin and 1.89 grams of cocaine were found in Mr Kolev’s pockets and in the car. The authorities seized a handgun lawfully owned by Mr Kolev’s wife, and other belongings. A handgun and eight cartridges were found in Mr Kolev’s son’s car, according to the official record. The searches and seizures were approved the next day by a judge at the Sofia City Court.

On 20 June 2001 a prosecutor ordered Mr Kolev’s provisional detention for a period of 72 hours, relying on Article 202 §§ 1(1) and 1(3) of the Code of Criminal Procedure.

On the expiry of the 72-hour period, on 23 June 2001 another prosecutor issued a fresh order for Mr Kolev’s provisional detention for another period of 72 hours, without mentioning the order of 20 June 2001. The new order was based on Article 152a(2) and (3) of the Code of Criminal Procedure.

On 23 June 2001 Mr Kolev was charged with illegal possession of drugs and a firearm.

On 24 June 2001 a lawyer acting for Mr Kolev protested against his detention in a complaint filed with the Supreme Judicial Council.

On 25 June 2001 Mr Kolev was brought before a judge at the Sofia City Court.

The prosecutor asked the court to order Mr Kolev’s pre-trial detention. Mr Kolev and his lawyer stated that the detention was unlawful and was the result of a plot. Mr Kolev stated that he had seen prosecutors P. and Ts. I., who had been present during his arrest, placing two small paper packets among his belongings. Shortly after that the same persons had placed, in Mr Kolev’s presence, a handgun in his son’s car. Mr Kolev requested a fingerprint test, stating that such a test would prove his allegations.

Mr Kolev also invoked immunity from prosecution on the strength of the fact that he was still a prosecutor.

He also complained that he had been detained unlawfully after the expiry on 23 June 2001 of the 72-hour statutory period.

The Sofia City Court remanded Mr Kolev in custody. The court found that the record drawn up during the arrest, which showed that drugs and a handgun had been found, was sufficient evidence to establish a reasonable suspicion that Mr Kolev had committed a serious offence. It also noted that several criminal proceedings were pending against him, which pointed to a danger of him committing an offence. The court considered that Mr Kolev did not have immunity from prosecution following his dismissal.

The court refused to rule on the lawfulness of Mr Kolev’s detention during the period before 25 June 2001, stating that it was not subject to judicial control and that its lawfulness had no bearing on the issue to be decided by the court: whether or not to remand Mr Kolev in custody.

On 28 June 2001 Mr Kolev’s lawyer submitted a complaint to the Supreme Judicial Council stating that on 21 June 2001 Mr Ts. I., a high-ranking prosecutor, had told him that he risked having criminal charges brought against him if he persisted in defending Mr Kolev. A week later, the lawyer had been asked to appear before a prosecutor and “give explanations” in relation to a case he had worked on in 1992 as investigator. The lawyer stated that inadmissible pressure had been brought to bear on him and requested an investigation.

On 3 July 2001 the Sofia Court of Appeal dismissed a consequent appeal by Mr Kolev. One of the three judges gave a dissenting opinion.

The majority stated that the court had no power to deal with Mr Kolev’s allegations that the drugs and firearm found during his arrest had been “planted” by prosecutors, as that was a question which concerned the merits of the criminal case and could not be discussed in relation to Mr Kolev’s detention.

The dissenting judge stated that Mr Kolev enjoyed immunity from prosecution and that in any event, having regard to all available information, Mr Kolev’s detention had not been justified.

On 7 August 2001 Mr Kolev submitted a fresh appeal against his continuing pre-trial detention. In accordance with the relevant procedural requirements, the appeal was lodged with the Sofia Investigation Service, which was in charge of the investigation against him. On 14, 23 and 28 August 2001 Mr Kolev and his lawyers complained, in submissions to the Sofia Investigation Service and the Sofia City Prosecutor’s Office, of the delay in the examination of the appeal, which should have been transmitted to the Sofia City Court. As the appeal was not transmitted, on 5 September 2001 Mr Kolev lodged an appeal directly with the Sofia City Court. The court heard the case on 13 September 2001 and decided to release the applicant from custody and place him instead under house arrest.

On an unspecified date an indictment was submitted to the Sofia City Court against Mr Kolev on charges of illegal possession of drugs and a firearm.

On 22 November 2001 the Sofia City Court terminated the proceedings before it and referred the case back to the prosecuting authorities. The court noted that Mr Kolev enjoyed immunity from prosecution, his dismissal not having entered into force.

On 29 November 2001, on an appeal by Mr Kolev against his house arrest, the Sofia City Court ordered his release.

On 4 February 2002, following a final judgment of 10 December 2001 quashing the order for Mr Kolev’s dismissal from his position as a prosecutor, the Sofia Court of Appeal terminated the criminal proceedings against him as he enjoyed immunity from prosecution. That decision was upheld on 30 April 2002 by the Supreme Court of Cassation.

The courts found that the criminal proceedings against Mr Kolev had been inadmissible from the outset. Pending examination of his appeal against his dismissal, the immunity conferred on him by the Constitution had not been removed. In such cases criminal proceedings could be brought and pre-trial detention ordered only if the Supreme Judicial Council had given its authorisation. That had not been done in Mr Kolev’s case.

Another set of criminal proceedings against Mr Kolev was terminated by the courts on 9 July 2002 on the same grounds.

2. Mr Kolev’s murder and the ensuing investigation

(a) Mr Kolev’s declarations that he feared for his life

In his application to the Court, dated 17 December 2001, Mr Kolev complained under Article 5 of the Convention about his detention. He stated that the violations of his rights were the result of a merciless campaign against him orchestrated by the Chief Public Prosecutor and that he had fears for his and his family’s safety.

Mr Kolev repeatedly voiced in public and in letters to State institutions his fear that he might be eliminated physically.

(b) The murder and the authorities’ first steps

On 28 December 2002 in the evening Mr Kolev was shot dead by an unknown assailant in front of his home in Sofia.

The police were alerted immediately by passers-by. Several police officers and an investigator from the Sofia Investigation Service arrived at the site, searched the area for several hours and interviewed passers-by.

On the site the police found and collected bullets and cartridges, a revolver and a hand grenade which had not exploded.

The Deputy Chief Public Prosecutor, the Interior Ministry Secretary and other high-ranking officials visited the site the same evening.

On the same day an investigator from the Sofia Investigation Service opened an investigation into the murder of Mr Kolev.

On 29 December the police and another investigator from the Sofia Investigation Service, searched the area again, in daylight.

On 29 December 2002 the case was entrusted to an investigator from the Sofia Investigation Service. On the same day the investigator ordered ballistic and other expert reports and an autopsy.

The autopsy, carried out on 29 December revealed that Mr Kolev had received eight shots, some of them in the head.

On 29 December the investigator interviewed twelve persons who had been in the area at the time of the murder. Some of them had noticed two to four men shortly before the shooting, but had not seen their faces.

On 29 December the Deputy Chief Public Prosecutor appointed prosecutor A. I., Head of Division at the Supreme Cassation Prosecutors Office, to supervise the investigation in the case. The case was registered as under “special supervision” by that office.

On 30 December 2002 a senior officer of the national anti-terrorist squad, Mr V. D., was shot and killed by an unknown assailant. In statements they made later, the second applicant and other persons stated that his murder was probably connected with Mr Kolev’s murder, in that Mr V. D. had allegedly possessed information about Mr Kolev’s murderer.

(c) Parties’ submissions about statements made immediately after the events

On 29 December 2002 Mr E. S., a former member of Parliament, who had previously accused the Chief Public Prosecutor of committing crimes, appeared before the investigator as he wished to help with the murder investigation. He had met Mr Kolev many times as both of them had been interested in investigating the crimes committed by the Chief Public Prosecutor. Their last meeting had been on 22 or 23 December 2002.

Mr E.S. passed to the investigator information he had obtained from Mr Kolev, with several supporting documents. In particular, he stated that at their last meeting Mr Kolev had spoken about his findings implicating the Chief Public Prosecutor in the murder of the lawyer Mrs N. G. in February 2000. Mr Kolev had promised to put Mr E. S. in contact with a fugitive who had been falsely charged with that murder.

Mr E. S. also stated that Mr Kolev, who had engaged for a certain period in unlawful activities ordered by the Chief Public Prosecutor, had later refused to continue and had started collecting proof about those activities. Owing to his mental disorder the Chief Public Prosecutor constantly feared plots and considered as his enemy anyone who criticised him or did not execute his orders. Thus, Mr Kolev had been asked to open criminal proceedings on fabricated charges against persons the Chief Public Prosecutor considered his enemies, or even to commit murder. Among those “enemies” had been Mr V. M., a prosecutor at the Varna Appeals Prosecution Office and a former candidate for the post of Chief Public Prosecutor, as well as journalists who had revealed that the brother of the Chief Public Prosecutor had been charged in Germany with illegal trading in coins. Mr Kolev had told Mr E. S. that a number of high-ranking prosecutors at the Supreme Cassation Prosecutors’ Office and other persons spent their time organising “revenge” against the “enemies”. Mr Kolev had named Mr A. P., an officer of the national anti-terrorist squad, as one of the Chief Public Prosecutor’s “confidants”. Mr A. P. had blackmailed a banker, Mr G. P. Ts., and had managed to obtain large amounts of money from him. The banker had finally complained but “in response” had been arrested on fabricated charges and later a bomb had been found in his apartment. Mr E. S. submitted to the investigator a copy of a written statement made by the banker in December 2000.

Mr E. S. described in detail several more cases of alleged crimes committed by Mr A. P. and the Chief Public Prosecutor, about which he had learned from Mr Kolev. He gave the names of the persons involved.

Mr E. S. also gave the name of an investigator who had told him that he had been threatened by the Chief Public Prosecutor and who had allegedly witnessed the latter’s fits of insane rage. The investigator had also learned that files from the hard drive of the computer found in Mrs N. G.’s office, the lawyer murdered in February 2000, had been deleted in the course of the investigation because they had contained information implicating prosecutors.

Mr E. S. affirmed that Mr Kolev had told him that he feared for his life and considered that the Chief Public Prosecutor had instructed Mr A. P. to have him killed.

On 2 January 2003, a former trade union leader, Mr P. S., who had been charged with criminal offences on allegedly fabricated grounds, made public statements and also wrote to the investigation authorities. He stated, inter alia, that he had had numerous conversations with Mr Kolev, the last one having been on the day of his murder. Mr Kolev had told him about his efforts to collect information incriminating the Chief Public Prosecutor. Mr P. S. suggested that the records of those conversations could be found, as he was convinced that his and Mr Kolev’s telephones had been tapped.

On 15 January 2003 the second applicant, Mr Kolev’s wife, a prosecutor from the Supreme Cassation Prosecutors’ Office made a public statement addressed to the Supreme Judicial Council. A copy was also sent to the investigator in the case. She accused Mr F., the Chief Public Prosecutor, of having ordered her husband’s murder, together with Mr F. S. and Mr A. P. of the national anti-terrorist squad. In her view, the Chief Public Prosecutor was suffering from a mental disorder. Her late husband had refused to engage in unlawful acts ordered by the Chief Public Prosecutor and had revealed the latter’s mental problems publicly, which had triggered a merciless campaign against him. Mr Kolev had been arrested on fabricated charges and several sets of criminal proceedings had been brought in 2001 and 2002 against him and his family members.

The second applicant called on the Supreme Judicial Council to initiate proceedings for the removal of the Chief Public Prosecutor from office and to entrust the investigation of Mr Kolev’s murder to independent prosecutors. That was vitally necessary in her view, having regard to the hierarchical structure of the prosecution system, which allowed total control by the Chief Public Prosecutor, and the atmosphere of fear which reigned among prosecutors and investigators.

(d) The investigation

On 2 January 2003 prosecutor A. I. appointed a team of five investigators to work on the case. Three of them were from the Sofia Investigation Service and the other two from the National Investigation Service.

In the following days the experts appointed by the investigator submitted their reports, describing in detail their findings and conclusions.

In particular, the shots that had killed Mr Kolev had been fired at very close range, between 20 and 80 cm. The bullets found in his body and at the scene had all been fired from the same weapon, a 9 mm calibre handgun. Comparison with data kept by the police had not linked the bullets with a weapon previously used to commit another criminal offence. The revolver found next to Mr Kolev’s body had a different calibre. It could not be linked to information about weapons used in criminal offences. The experts did not find traces of powder on Mr Kolev’s fingers or hand. The expert who analysed the hand grenade noted that it was of a type used in the army and the police and also considered that it had been placed next to the body. It was further established that the hair taken from the victim’s clothes was Mr Kolev’s hair.

On 6 January 2003 the second applicant, Mr Kolev’s wife, appeared before the investigator but refused to answer his questions and challenged the independence of the investigation.

In January 2003 the investigator searched Mr Kolev’s office.

At the beginning of February 2003 the investigator interviewed persons who had seen Mr Kolev on 28 December 2002 and also obtained from the police information about telephone calls made from or received by Mr Kolev’s home telephone on the day of the murder. The calls were traced and the persons who had received them or made them interviewed. One of the calls had been made from a mobile telephone whose number was no longer valid and its holder could not be identified.

On the basis of witness statements it was established that on the evening of 28 December 2002 Mr Kolev had left his home intending to buy food in a nearby shop. He had been shot on his way back from the shop.

In February 2003, the investigators questioned a man serving a prison term who had allegedly told other persons that he had bribed Mr Kolev in order to obtain release from prison. The man denied having said or done so. Also in February 2003, a man who walked into a police station and confessed to the murder of Mr Kolev was detained, but released shortly after it was established that he suffered from a mental disorder.

In January and February 2003 several persons who had been passing in the area at the time of the murder were questioned for a second time. The police officer who had arrived first at the scene was also questioned. A politician whose telephone number had been dialled from Mr Kolev’s home on the day of the murder was also questioned.

The investigator also questioned a journalist who had known Mr Kolev. The journalist stated that Mr Kolev had shared his fears with him, stating that Mr F., the Chief Public Prosecutor, and two senior officers of the national anti-terrorist squad - Mr A. P. and Mr F. S., wanted to liquidate him. The journalist further stated that Mr F., the Chief Public Prosecutor, suffered from a mental disorder and that guards from the National Guard Service and the Sofia chief of police could testify to that.

In March 2003 the investigators questioned another journalist, who had published a book based on conversations with a notorious boss of a criminal gang, Mr I. K. According to the journalist, Mr I. K. had told her that Mr Kolev had worked for another criminal gang. In 1995 the two gangs had clashed over a consignment of illegally-imported cigarettes and Mr Kolev had tried to use his position to have Mr I. K. moved to another detention facility, allegedly intending to use the opportunity to have him killed. The transfer had been prevented by two investigators of the National Investigation Service.

(e) Suspension of the investigation, appeals and additional investigation measures

On 26 September 2003 the investigator reported that it had not been possible to identify the perpetrator, and proposed that the proceedings be stayed. He transmitted the file to Mr Ts. I. from the Supreme Cassation Prosecutors’ Office since the case was under “special supervision” by that office. The file was then transmitted to the Sofia Prosecutor’s Office, which decided on 8 October 2003 to stay proceedings.

Mr Kolev’s relatives, including the second applicant, appealed.

On 16 June 2004 the Sofia City Court quashed the decision to stay proceedings and instructed the prosecuting authorities to take additional measures. That decision was upheld by the Sofia Appeal Court on 12 July 2004. The courts found that the investigation had not taken all measures that could lead to identifying the perpetrator. In particular, Mr Kolev’s wife, the second applicant, had not been questioned. Having regard to her statement addressed to the Supreme Judicial Council, it was important to question her and then carry out further investigative measures to verify her allegations. In addition, the investigator had not attempted to establish whether there might be a link between Mr Kolev’s murder and persons affected by high-profile cases he had worked on. The courts also noted that contrary to the relevant procedural rules, the case file did not contain information about any effort on the part of the investigator to continue his inquiry after the proceedings had been stayed and report periodically. The courts also considered that ballistic and other experts should try to establish further details.

On 27 July 2004 the Sofia Prosecutor’s Office instructed the investigator to undertake further investigations.

On 25 August 2004 the second and third applicants were questioned. They stated that they would not testify in the absence of their lawyer. The second applicant was summoned again and appeared on 21 September 2004 but refused to discuss the case, stating that the case should be investigated independently by the National Investigation Service.

In September 2004 the experts appointed to clarify details about the shooting submitted their report.

The investigator also requested and received from the Supreme Administrative Prosecution Office a list of cases of “public interest” on which Mr Kolev had worked after his reinstatement in 2002.

On 13 October 2004 the investigation was suspended by a decision of the Sofia Prosecutor’s Office on the grounds that it had proved impossible to identify the perpetrator.

The applicants appealed. They stated, inter alia, that the investigation was fully under the control of the Chief Public Prosecutor and gave the authorities’ failure to secure the independence of the investigation as their reason for refusing to testify.

By decisions of 13 July and 22 August 2005 the Sofia City Court and the Sofia Court of Appeal quashed the order staying the investigation and instructed the prosecuting authorities to undertake further investigations.

The courts stated that the applicants were not entitled to refuse to testify, regardless of their fears that the investigation was not independent. Therefore, the applicants should be summoned again and questioned. The applicants’ request for Mr F., the Chief Public Prosecutor, and several high-ranking prosecutors to be questioned should be considered afterwards. The courts also instructed the investigation authorities to collect information about cases that Mr Kolev had handled at the Prosecutor’s Office attached to the Supreme Court of Cassation, where he had worked earlier in his career.

In so far as the applicants had insisted that the investigation should be handled by the National Investigation Service, which in their view was more independent, the courts stated that that request was inadmissible. The choice of investigators was at the discretion of the prosecutor supervising the case. The courts lacked the power to control that choice or to examine the applicant’s allegations, namely that the investigation was not independent owing to the hierarchical structure of the prosecution system and the personal involvement of the Chief Public Prosecutor in the case.

The second applicant was questioned on 19 October 2005. She made the same statements as those contained in her open letter of January 2003 to the Supreme Judicial Council.

The second applicant stated her conviction that her husband had been killed because he had known too much about the Chief Public Prosecutor and had been working for his removal from office. Following the appointment of Mr F. as Chief Public Prosecutor, Mr Kolev had initially obeyed some of his unlawful orders, such as to put pressure on Mr V. M., a prosecutor from the Varna Appeals Prosecutors’ Office. However, at some point Mr F. had asked Mr Kolev to kill Mr V. M. and he had refused. He had later refused to obey other orders and had thus become an “enemy” for Mr F. The Chief Public Prosecutor had first tried to intimidate him and silence him through dismissal and fabricated criminal charges and had later decided to eliminate him physically.

Mrs Koleva also stated that she had herself witnessed the atmosphere of fear and paranoia created by the Chief Public Prosecutor among her colleagues. She insisted that all high-ranking prosecutors should be questioned, including the Chief Public Prosecutor. She also requested the questioning of Mr F. S., the head of the national anti-terrorist squad.

Mrs Koleva also stated that the murder, two days after Mr Kolev’s death, of Mr V. D., a senior officer at the national anti-terrorist squad with whom Mr Kolev had been in contact in the context of his private inquiry, had not been a coincidence. Mrs Koleva also noted that Mr Ts. I. and Mr P., the prosecutors who had participated in planting drugs and arresting Mr Kolev on fabricated charges in June 2001, had been promoted soon thereafter and that the arrest had been effected by officers of the national anti-terrorist squad loyal to the Chief Public Prosecutor.

In October 2005 the investigator questioned three persons who had been Mr Kolev’s lawyers. One of them, the former Chief Public Prosecutor, Mr I. T., assessed as absurd the suggestion that Mr F., the Chief Public Prosecutor, had been responsible for Mr Kolev’s death.

In November 2005 the investigator questioned Mr Kolev’s son, who confirmed his mother’s views. He also stated that his father had received threats by telephone. He stated that the investigation should look for a link between his father’s murder and the murder, committed only two days after that, of Mr V. D. of the anti-terrorist squad. In particular, Mr V. D. had often passed close to Mr Kolev’s home on his way back from work and had probably seen his former colleagues hanging around, which had rendered him a “dangerous” witness to be eliminated.

In November 2005 the investigator also questioned Mr V. M., a prosecutor from the Varna Appeals Prosecutors’ Office and a former candidate for the post of Chief Public Prosecutor. He described in detail events dating from 2000, when Mr Kolev had asked him to resign and threatened him with proceedings. Mr Kolev had explained that he had received instructions to that effect from the Chief Public Prosecutor. Mr V. M. had refused, whereupon he had been transferred to a small town by order of the Chief Public Prosecutor. Mr V. M.’s complaint against the transfer, examined by the Supreme Judicial Council in 2000, had been widely publicised. Shortly after that, on 24 April 2000, his wife’s notary office had been set on fire. On 25 May 2000 a bomb had exploded in the same office. Mr V. M. considered that those attacks had been part of the Chief Public Prosecutor’s campaign against him. Mr V. M. stated that later, in 2001, Mr Kolev had contacted him and spoken openly about his conflict with the Chief Public Prosecutor. He had shared his fears, telling him that Mr A. P. of the anti-terrorist squad was probably organising an attempt on his life.

In November 2005 the investigator questioned another prosecutor, who stated that he knew Mr Kolev only vaguely.

On 17 February 2006 the Sofia City Prosector’s Office ordered the investigation to be stayed on the grounds that the identity of the perpetrator could not be established.

3. Other developments

In February 2006 the seven-year term of Mr F. as Chief Public Prosecutor expired. Mr V. was appointed Chief Public Prosecutor.

B. Relevant domestic law

1. Detention without a court order

Articles 202(1) and 203 of the Code of Criminal Procedure 1974, as in force at the relevant time, provide that a suspect may be held in custody without official charges for up to 72 hours by a decision of a prosecutor.

Article 152a of the Code of Criminal Procedure 1974 provides that a person officially charged with having committed a criminal offence may be detained provisionally for up to 72 hours by a decision of a prosecutor. Within that time-limit the accused person must be brought before a court.

There is no reported domestic case-law on the question whether or not the 72-hour detention periods under Articles 202 and 152a may be consecutive.

2. Immunity under the Judiciary Act

Under the Judiciary Act 1994, as in force at the relevant time, judges and prosecutors enjoy immunity from prosecution which may be lifted by a decision of the Supreme Judicial Council if the Chief Public Prosecutor shows that there is sufficient information demonstrating that the person concerned may have committed an offence.

3. The prosecution system and the powers of the Chief Public Prosecutor

The prosecution system in Bulgaria is centralised. All prosecutors are under the authority of and report to the Chief Public Prosecutor (section 112 of the Judicial System Act 1994, as in force at the relevant time).

Under Bulgarian law, the prosecutor controls the investigation (Article 48(3) of the Code of Criminal Procedure 1974, as in force at the relevant time). This includes the power to give specific instructions, overrule the investigator or take over the entire investigation (Article 176(1) of the same Code).

The Chief Public Prosecutor, being the highest prosecutor in the hierarchy, has the power to issue binding orders concerning the work of every prosecutor, including work on particular cases, or to take over a case handled by another prosecutor (section 116 of the Judicial System Act 1994).

The Chief Public Prosecutor submits to the Supreme Judicial Council proposals for promotions, dismissals or disciplinary punishment of high-ranking prosecutors, who in turn have the power to make such proposals concerning prosecutors subordinate to them (sections 27 and 30 of the Judicial System Act 1994).

The new Code of Criminal Procedure 2006 and the new Judicial System Act 2007 contain similar provisions.

4. The State [and Municipalities’] Responsibility for Damage Act (“the SMRDA”) (words in square brackets added to the Act’s title in 2006)

Section 2 of the SRDA of 1988 provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

1. pre‑trial detention ..., if [the detention order] has been set aside for lack of lawful grounds;

2. criminal charges if... the opened criminal proceedings have been terminated [on the ground] that the act was not perpetrated by the [accused] person...”

The terms “unlawful” and “lack of lawful grounds” in section 2 refer to unlawfulness under domestic law.

In accordance with judicial practice, the State is liable for all damage caused by pre-trial detention where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) or the criminal proceedings terminated on grounds such as that the charges have not been proven, the perpetrated deed is not an offence or the criminal proceedings were unlawful at the outset as having been launched after the statute of limitations had expired or after an amnesty (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС).

On 22 April 2005 the General Assembly of the Civil Chambers of the Supreme Court of Cassation (the “Supreme Court of Cassation”) adopted Interpretative decision no. 3/2004 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС), which is binding on the domestic courts. It decreed the following:

“Pre-trial detention is unlawful when it does not adhere to the requirements of [the Code of Criminal Procedure].

The State is liable under section 2, sub-section 1 of the SMRDA when the pre-trial detention has been set aside as unlawful, irrespective of the [subsequent] development of the pre-trial and court proceedings. In such cases compensation is determined separately.

If the person has been acquitted or the opened criminal proceedings have been terminated, the State is liable under section 2, sub-section 2 of the SMRDA. In such a case, the compensation for non-pecuniary damage includes damage [arising] from the unlawful pre-trial detention. If pecuniary damage has been suffered, compensation for it is not included but is awarded separately, taking into account the particulars of each given case”.

No successful claims under section 2 of the Act have been reported in respect of pre‑trial detention in connection with pending criminal proceedings or proceedings which have ended with final convictions. It appears that rulings putting an end to pre‑trial detention in pending criminal proceedings have never been considered decisions to “set aside for lack of lawful grounds” within the meaning of section 2(1) of the Act.

All judgments in which State liability was found to arise under section 2 of the SRDA have related specifically to pre‑trial detention under Article 152 of the CCP, not to house arrest under Article 151 of the CCP or any other form of deprivation of liberty ordered in the context of criminal proceedings.

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).

COMPLAINTS

A. Complaints submitted by Mr Kolev

Mr Kolev complained that his arrest and deprivation of liberty between 20 June and 29 November 2001 had been unlawful under domestic law and thus contrary to Article 5 § 1 of the Convention.

In particular, in his capacity as prosecutor he enjoyed immunity from prosecution.

Mr Kolev also stated that his detention between 23 and 25 June 2001 had been ordered in violation of the statutory 72-hour maximum period of preliminary detention under domestic law.

Mr Kolev further submitted that there had been no reasonable suspicion against him. The charges had been based on fabricated evidence. The drugs and the firearm allegedly found upon his arrest had been planted by prosecutors. His fingerprints had not been found on them.

Mr Kolev stated that his deprivation of liberty had been arbitrary and constituted a gross violation of Article 5 and the principles underlying the Convention as it had been the result of a criminal campaign on the part of the Chief Public Prosecutor against him.

Relying on Article 5 § 3, Mr Kolev also complained that he had not been brought promptly before a judge following his arrest on 20 June 2001. He also alleged an infringement of his right under the same provision to trial within a reasonable time or release pending trial.

Mr Kolev complained under Article 5 § 4 that his appeal against detention submitted on 7 August 2001 had not been examined speedily.

B. Complaints submitted after Mr Kolev’s death

Mr Kolev’s wife and daughter complained that nothing substantial had been done in the investigation into his death. The investigation lacked the requisite independence and had been sabotaged with the aim of shielding those responsible for the murder.

Mr Kolev’s wife and daughter stressed that immediately after the murder the investigators had received from Mr E.S., a former member of Parliament, detailed information, including dates and names, which could lead to the identification of those responsible for the murder (see above), but had failed to investigate as that would have implicated the Chief Public Prosecutor.

THE LAW

A. Complaints under Article 5 concerning Mr Kolev’s detention

The first applicant complained under Article 5 §§ 1, 3 and 4 of the Convention in relation to his arrest and deprivation of liberty in 2001. Following his death, his heirs, the second and third applicants stated that they wished to pursue these complaints.

Article 5 reads in its relevant part:

“1. 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;

...

3. 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 and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. 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...”

1. The parties’ submissions

The Government stated that Mr Kolev had not exhausted all domestic remedies in respect of his detention as he had not appealed “by way of administrative review” in respect of his initial detention between 20 and 23 June 2001 and also because he had not sought damages under the State Responsibility for Damage Act following the finding of the Supreme Court of Cassation that he had enjoyed immunity from prosecution at all relevant times.

The Government also submitted that under domestic law there was no obstacle to keeping a suspect in detention for up to six days without bringing him before a judge. Under Articles 202 and 203 of the Code of Criminal Procedure 1974, a suspect could be detained for up to three days without charges. If no charges were brought before the expiry of that period, the suspect should be released. However, Mr Kolev had been charged on the third day of his detention. Thereafter, he had been detained on different grounds – Article 152a of the Code of Criminal Procedure 1974. Detention under that provision could last up to 72 hours. Mr Kolev was brought before a judge on 25 June 2001, before the expiry of that period.

In the Government’s submission, the domestic courts had established that there had been a reasonable suspicion against Mr Kolev. Therefore, his detention had been justified.

As far as Mr Kolev’s immunity from prosecution was concerned, the Government’s position was that at the time of Mr Kolev’s arrest and detention the question whether or not he continued to enjoy immunity pending the examination of his appeal against his dismissal had not been settled in domestic case-law. In June and July 2001 the Sofia City Court and the Sofia Court of Appeal had considered that the dismissal order of January 2001 had terminated Mr Kolev’s functions and removed his immunity instantly, regardless of any pending appeal procedures. Eventually, the opposite view had prevailed and the criminal proceedings against Mr Kolev had been terminated. However, what was decisive in the present case was the fact that the authorities had not acted in bad faith. Therefore, it could not be said that Mr Kolev’s arrest and detention had been unlawful under domestic law.

As regards the delay in the examination of Mr Kolev’s appeal of 7 August 2001 against his detention, the Government explained that a number of procedural steps had been under way at that time which, in the Government’s view, justified the delay.

The applicants stated that the detention order of 20 June 2001 had not been amenable to judicial review and that therefore the Government’s objection concerning the exhaustion of domestic remedies should be rejected. The applicants did not comment on the Government’s argument based on the State Responsibility for Damage Act.

The applicants further stated that the relevant domestic law did not clarify whether the three-day periods of detention under Articles 202 and 203 CCP and Article 152a CCP could be consecutive. Since Mr Kolev’s detention of five days and eight hours without bringing him before a judge clearly violated Article 5 § 3 of the Convention, the applicants took the view that the relevant domestic law should be interpreted in the sense that the periods could not be consecutive. In any event, in the applicants’ view the lack of clarity on this point violated the Convention requirement of clarity and foreseeability of the law.

In the applicants’ view, Mr Kolev’s detention had in any event been unlawful as at the relevant time he had enjoyed immunity, which could only be waived by a decision of the Supreme Judicial Council. That had been clearly established by the Bulgarian courts.

The applicants further argued that the detention had also been unlawful in that there had never been a reasonable suspicion against Mr Kolev, the charges having been fabricated and the criminal proceedings orchestrated by the Chief Public Prosecutor. The applicants stressed that high-ranking prosecutors never took part in arrests and searches. The participation of two such prosecutors in Mr Kolev’s arrest had been highly suspicious. One of them, Mr Ts. I., had been the head of the investigation department and reported directly to the Chief Public Prosecutor. His partiality had been clearly exposed by the fact that on 21 June 2001 he had threatened Mr Kolev’s lawyer, but that incident had never been investigated.

The applicants further maintained that the detention had not been justified under Article 5 § 3. No danger of absconding had existed, as witnessed by Mr Kolev’s public statements and his remaining at the authorities’ disposal at all relevant times.

The applicants also stated that Mr Kolev’s appeal of 7 August 2001 had not been examined speedily.

2. The Court’s decision on admissibility

Mr Kolev was deprived of his liberty within the meaning of Article 5 between 20 June and 29 November 2001. The Court must deal with Mr Kolev’s complaints which concern both his detention between 20 June and 13 September 2001 and his house arrest between the latter date and 29 November 2001.

In respect of the exhaustion of domestic remedies, the Court observes that the Government have not claimed that there existed a domestic remedy in relation to Mr Kolev’s complaint under Article 5 § 3 that he had not been brought promptly before a judge. Their reference to a possibility of appeal “by way of administrative review” was unclear and not supported by the provisions of the relevant domestic law. Furthermore, there is no settled practice establishing that it is possible under Bulgarian law to seek damages for delays in the examination of appeals against detention which may give rise to a breach of Article 5 § 4 (see Kolev v. Bulgaria, no. 50326/99, §§ 43, 44 and 74, 28 April 2005, and Andrei Georgiev v. Bulgaria, no. 61507/00, 26 July 2007).

The Government’s preliminary objection must be dismissed, therefore, in so far as Mr Kolev’s complaints under Article 5 § 3 (right to be brought promptly before a judge) and Article 5 § 4 (speedy review) are concerned.

In respect of the question whether Mr Kolev exhausted all effective domestic remedies in relation to his complaints under Article 5 §§ 1 and 3 that his deprivation of liberty had been unlawful and unjustified, the Court observes that by a final judgment of 30 April 2002 the Supreme Court of Cassation established that the criminal proceedings against Mr Kolev had been inadmissible at the outset as he had enjoyed immunity from prosecution at all relevant times.

It is apparent that for all legal purposes that was an acknowledgment that Mr Kolev’s deprivation of liberty had been unlawful under domestic law.

The Government’s position was that following the Supreme Court of Cassation’s finding of 30 April 2002 it had been open to Mr Kolev to seek compensation under the SRDA (see Relevant domestic law and practice above) but he had failed to do so.

The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Remli v. France, judgment of 23 April 1996, Reports 1996-II, p. 571, § 33). Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004 and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).

In respect of deprivation of liberty in Bulgaria, the Court has found that in certain cases an action for damages under the SRDA may be a remedy to be exhausted by applicants who claim to be victims of unlawful or unjustified detention, if the practicability of such an action in the particular circumstances has been convincingly established (see Andrei Georgiev, cited above, §§ 73-81, and, mutatis mutandis, Staykov v. Bulgaria, no. 49438/99, §§ 90-93, 12 October 2006; see also a case where the practicability of the remedy was not established - Popov v. Bulgaria, no. 48137/99, § 76, 1 December 2005).

In the present case, in accordance with the practice of the Bulgarian courts, it appears that Mr Kolev was entitled to compensation for his unlawful pre-trial detention between 20 June and 13 September 2001 but failed to institute proceedings.

However, no such entitlement has been shown to exist in respect of his house arrest, as the provisions of the SRDA, as interpreted by the Bulgarian courts, solely concern damage in the context of pre-trial detention. In the case of Vachev v. Bulgaria (no. 42987/98, § 75-82, ECHR 2004‑VIII (extracts)), the Court found that the absence of a possibility to seek damages in cases of unlawful house arrest was a violation of paragraph 5 of Article 5 of the Convention.

In these circumstances, the Court considers that the first applicant’s complaints under Articles 5 §§ 1 and 3 that his pre-trial detention between 20 June and 13 September 2001 was unlawful and unjustified must be rejected in accordance with Article 35 § 4 of the Convention for failure to exhaust domestic remedies under Article 35 § 1.

The Government’s objection must be dismissed in respect of the remainder of Mr Kolev’s complaints under Article 5. As far as these complaints are concerned, the Court considers, in the light of the parties’ submissions, that they raise serious issues of fact and law under the Convention, the determination of which require an examination of the merits. The Court concludes, therefore, that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B. Complaint under Article 2 concerning the investigation into Mr Kolev’s murder

The second and third applicants complained that the investigation into Mr Kolev’s death was not independent or effective.

This complaint falls to be examined under Article 2 § 1 of the Convention which reads in so far as relevant:

“Everyone’s right to life shall be protected by law...”

1. The parties’ submissions

The Government stated that numerous investigative steps had been undertaken and all possible measures to identify the perpetrator had been tried. The investigation had been handled in accordance with the normal procedure and there was no reason to doubt its independence and impartiality.

The applicants asserted that the authorities had failed to discharge their positive obligations stemming from Article 2 as they had not secured the investigation’s independence and had failed to investigate the allegations against the Chief Public Prosecutor and other persons with whom Mr Kolev had been in conflict, despite serious indications that this was the most obvious line of inquiry to be pursued. The steps undertaken in the investigation, although necessary, were clearly not sufficient in a case of contract killing.

2. The Court’s decision on admissibility

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.

For these reasons, the Court unanimously

Declares inadmissible the first applicant’s complaints under Article 5 §§ 1 and 3 of the Convention that his pre-trial detention between 20 June and 13 September 2001 was unlawful and not justified;

Declares the remainder of the application admissible, without prejudging the merits of the case.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

 

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