Kolevi v. Bulgaria

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 124

November 2009

Kolevi v. Bulgaria - 1108/02

Judgment 5.11.2009 [Section V]

Article 2

Article 2-1

Life

Effective investigation

Inability to prosecute, and supervision of the investigation by, a chief public prosecutor suspected by the family of masterminding the victim’s murder: violation

Article 5

Article 5-1

Lawful arrest or detention

Detention of a high-ranking official enjoying immunity from prosecution: violation

Facts – The first applicant, Mr Kolev, was a high-ranking prosecutor who was murdered in 2002. His wife and two children pursued his application after his death.

In 2001 and 2002 several public figures, including Mr Kolev, publicly stated that the Chief Public Prosecutor was suffering from a psychiatric disorder, had committed a number of serious crimes and had terrorised and punished any subordinate who dared disobey his orders even if unlawful. Mr Kolev told the authorities and the press that he expected to be arrested on fabricated drugs charges in an attempt to silence him. He also repeatedly voiced in public fears that he would be killed as part of a merciless campaign against him orchestrated by the Chief Public Prosecutor. In November 2002 the Supreme Judicial Council dealt with the public accusations against the Chief Public Prosecutor and called on him to resign, but he refused.

In January 2001, upon an application by the Chief Public Prosecutor, Mr Kolev was dismissed and forced to retire. On appeal, the courts quashed the dismissal as unlawful, noting that he had not reached retirement age or applied for early retirement. Meanwhile, in June 2001 he was arrested, charged with illegal possession of drugs and a firearm and remanded in custody. Subsequently he was placed under house arrest. He was released in November 2001. In February 2002 the criminal proceedings against him were dismissed on the grounds that he enjoyed immunity from prosecution and he was reinstated as a prosecutor. In December 2002 he was shot dead. Although a number of steps were taken in the investigation, it was repeatedly suspended for failure to identify the perpetrator.

Law – Article 5 § 1: The complaint had been declared admissible only in so far as it concerned Mr Kolev’s deprivation of liberty when under house arrest. The domestic law prohibited in absolute terms the institution of criminal proceedings and detention of persons enjoying immunity from prosecution. Mr Kolev’s detention order had therefore been issued in excess of jurisdiction and was thus invalid and as such contrary to Article 5 § 1. The Court was not convinced by the Government’s argument that the domestic case-law did not make it clear whether removal from office ended immunity with immediate effect or only if the order was upheld on appeal. Relevant here was the fact that the unlawfulness of Mr Kolev’s dismissal was flagrant and obvious. In any event, the absence of clarity could be seen in itself as a failure by the State authorities to comply with their Convention duties, which included an obligation to secure a high level of legal certainty, clarity and foreseeability.

Conclusion: violation (unanimously).

Article 2: It was undisputed that the investigation into Mr Kolev’s death had started promptly and that numerous urgent and indispensable investigative steps had been taken. The applicants had complained, however, that the investigation had lacked independence and objectivity. The investigative authorities had had before them solid evidence of a serious conflict between Mr Kolev and the Chief Public Prosecutor at the time. They had been aware that the Chief Public Prosecutor had ordered or approved unlawful acts against Mr Kolev, such as his dismissal, his arrest and detention, and the bringing of certain unfounded criminal charges against him and his family. They had also been aware of the findings of the Supreme Judicial Council concerning the Chief Public Prosecutor and of Mr Kolev’s public statements shortly before his death. The investigators had received testimony indicating that high-ranking prosecutors, including the Chief Public Prosecutor himself, might have been implicated in Mr Kolev’s murder. Consequently, in the absence of clear evidence that these allegations were groundless, the investigators should have examined them. That was decisive in the light of the Convention requirement that the findings of an investigation must be based on a thorough, objective and impartial analysis of all the relevant elements. The Court noted that until September 2003 it had not been legally possible to bring criminal charges against the Chief Public Prosecutor against his will. As a result, he could not have been removed from office even if he had committed the most serious crime. Nor could he have been temporarily suspended from duty. While eventually the law had been amended, in practice, and as the Government had admitted, no Bulgarian prosecutor was prepared to bring charges against the Chief Public Prosecutor. This had been due to a number of factors, including the hierarchical structure of the prosecution service, the authoritarian style of the then Chief Public Prosecutor, the apparently unlawful working methods he had resorted to and also institutional deficiencies. In particular, the prosecutors alone had the exclusive power to bring criminal charges while the Chief Public Prosecutor had the power to set aside any such decision. In addition, the Chief Public Prosecutor could only be removed from office by decision of the Supreme Judicial Council, some of whose members were his subordinates. This arrangement had been repeatedly criticised in Bulgaria as failing to secure sufficient accountability. The Court also considered it highly relevant that the Government had not informed the Court of any investigation into any of the numerous public allegations of unlawful and criminal acts by the former Chief Public Prosecutor. It accepted as plausible the applicants’ assertion that it was practically impossible to conduct an independent investigation into the circumstances implicating the Chief Public Prosecutor. Furthermore, there was little doubt that the investigation into Mr Kolev’s murder had for practical purposes been under the control of the Chief Public Prosecutor until the end of his term of office in 2006. Although the investigators had taken numerous steps, the fact that the investigation had been under the control of the accused and had failed to follow up one of the possible lines of inquiry which clearly appeared relevant had decisively undermined its effectiveness. The investigation into Mr Kolev’s death had, therefore, not been independent, objective or effective. Moreover, the nature of the serious deficiencies was such that the authorities could not be said to have acted adequately to secure accountability and maintain the public’s confidence in their adherence to the rule of law and their determination to avoid collusion in or tolerance of unlawful acts. The system chosen by the member State concerned had, however, to guarantee, in law and in practice, the investigation’s independence and objectivity in all circumstances, regardless of whether those involved were public figures. These deficiencies had not been remedied after the expiry in 2006 of the Chief Public Prosecutor’s term of office.

Conclusion: violation (unanimously).

Article 41: EUR 30,000 in respect of non-pecuniary damage.

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