NIKOLOVA v. BULGARIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 31195/96

                      by Ivanka NIKOLOVA

                      against Bulgaria

      The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 6 February 1996

by Ivanka NIKOLOVA against Bulgaria and registered on 26 April 1996

under file No. 31195/96;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Bulgarian national born in 1943 and residing

in Plovdiv.  Before the Commission she is represented by Mr. Mihail

Ekimdjiev, a lawyer practising in Plovdiv.

      The facts of the case as submitted by the applicant may be

summarised as follows.

Particular circumstances of the case

      The applicant used to work as a cashier and accountant in a State

owned enterprise.  An audit undertaken in the enterprise in the

beginning of 1995 revealed a cash deficit of 1,290,059 leva.

      In February 1995 the applicant was given a copy of the final act

of the audit, which stated inter alia that the she was responsible for

the shortage.  The auditors considered that the applicant had made

deliberately false entries in the accounting books and had thus

misappropriated funds.

      In accordance with the provisions of the Financial Control Act

(Zakon za finansovia kontrol), as in force at the relevant time, the

final act of the audit was sent to the prosecution authorities who had

to examine whether the circumstances in which the cash deficit occurred

revealed criminal acts.

      On 15 March 1995 the Regional Investigation Office (Regionalna

sledstvena sluzhba) in Plovdiv ordered the opening of criminal

proceedings on the matter.  The order of 15 March 1995 allegedly

indicated that the criminal proceedings were instituted "against" the

applicant.  In the months which followed Mr. S., the investigator

(sledovatel) in the case, examined a number of witnesses and collected

other evidence.  The applicant was also examined as a witness.

      On 24 October 1995 the applicant was arrested and charged under

Section 203 para. 1 in conjunction with Section 201 of the Penal Code

(Nakazatelen kodeks), with misappropriation of funds in large amounts.

On the same day investigator S. heard the applicant and decided to

detain her on remand.  On 9 November 1995, apparently without having

heard the applicant, a prosecutor from the Regional Prosecutor's Office

in Plovdiv (Okrazhna prokuratura) confirmed the investigator's decision

to detain her.

      On an unspecified date the applicant appealed to the Plovdiv

Regional Court (Okrazhen sad) against her detention on remand.  In his

written submissions to the Court the applicant's lawyer stated inter

alia that the charges were unfounded and that there was no danger of

absconding because the applicant had a husband and two children, and

because she had not attempted to abscond during the six months since

she had become aware of the criminal charges against her.  Also, the

lawyer submitted that a year earlier the applicant had undergone

gynaecological surgery from which she had not yet completely recovered.

He enclosed medical certificates.

      In accordance with the established practice the applicant's

lawyer transmitted his appeal and submissions to the Regional Court

through the Regional Prosecutor's Office.  The Prosecutor's Office

apparently added to the file the investigator's decision of

24 October 1995 to detain the applicant and the prosecutor's

confirmation of 9 November 1995, and transmitted the file to the

Regional Court.  The Court decided in camera, without the presence of

the parties.

      On 11 December 1995 the Court dismissed the appeal.  The Court

noted that the applicant was accused of misappropriation of funds in

large amount, a crime which carried a penalty of imprisonment of ten

or more years.  Also, the medical certificates presented by the

applicant concerned her state of health during a past period of time.

       On 5 February 1996 the applicant was urgently transferred to

hospital due to pain in her gall bladder.  On the same day she

underwent surgery.

      On 19 February 1996 the applicant's detention on remand was

discontinued and she was put under house arrest.  On the same day she

was transferred from the hospital to her home.

      In June 1996 the investigator concluded his work on the case and

sent the file to the Regional Prosecutor's Office with a proposal to

submit an indictment in court.  On an unspecified date the competent

prosecutor returned the case to the investigator for further

clarifications.

      On an unspecified date the applicant's lawyer unsuccessfully

requested the investigator in the case to repeat, in his and the

applicant's presence, the examinations and the other acts undertaken

during the period of time between the opening of the criminal

proceedings on 15 March 1995 and 24 October 1995, when the applicant

was officially charged.

      In September 1996 the applicant's lawyer asked the regional

prosecutor in charge of the case to provide him with authenticated

copies of certain documents, explaining that these documents had been

requested by the Secretariat of the Commission.  On 29 October 1996 the

prosecutor answered that any international correspondence had to be

transmitted officially through the Chief Public Prosecutor's Office.

      The applicant's lawyer does not claim that there existed any

obstacles for him to consult the file of his client's case and to make

unofficial copies of the documents at issue.

Relevant domestic law and practice

a.    The Constitution and the Act on the Judiciary (Zakon za sadebnata

vlast) provide for the structure of the prosecution and of the

investigation authorities.  A National Investigation Authority

(Natzionalna sledstvena sluzhba), comprising all investigators is set

up under the Act.  The prosecutors of all levels are under the

authority of the Chief Public Prosecutor.

      All investigators and prosecutors except the Chief Public

Prosecutor are appointed, promoted, or dismissed by the Supreme

Judicial Council (Vissh sadeben savet), an independent body part of

whose members are elected by the Parliament and the remainder by the

judiciary.  Upon completion of three years on the respective position

an investigator or a prosecutor obtains tenure and can be removed only

on limited grounds such as retirement or disability.  Investigators and

prosecutors enjoy immunity from suit, which can be lifted by decision

of the Supreme Judicial Council.

b.    Code of Criminal Procedure (Nakazatelno-protzesualen kodeks)

      It follows from Sections 152, 172 and 201 that an accused can be

detained on remand by decision of an investigator or of a prosecutor.

In cases where the decision to detain has been taken by an investigator

without the prior consent of a prosecutor it has to be subsequently

approved by the prosecutor.

      Based on Sections 209 and 210 and according to the usual

practice, an arrested person is brought before an investigator who

officially informs him of the charges brought against him and proceeds

immediately with his questioning.  After the questioning the

investigator decides whether to detain the accused, or informs him of

the prior decision taken in this respect by a prosecutor.  In cases

where the decision to detain is taken by the investigator the file is

then transmitted to the supervising prosecutor who decides whether to

approve the detention on remand.  In all cases the prosecutor decides

on the basis of the file, without hearing the accused.

      Sections 43, 48, 176 - 178, 196, 201, 208, 219 - 220 and 235 -

237 concern the competence of the prosecutor and of the investigator

in penal proceedings.

      Section 43 provides that the prosecutor has the following

functions in penal proceedings: "to direct the preliminary

investigation"; "to participate in the judicial stage of the

proceedings as a State prosecutor"; and "to effect a supervisory

control of lawfulness at all stages of the penal proceedings ..."  At

the preliminary investigation stage of the proceedings according to

Sections 176 - 178 the prosecutor is competent, inter alia: to give

mandatory instructions to the investigator; to participate in

examinations, searches or any other acts of investigation; to withdraw

a case from the competence of an investigator and to assign it to

another; to conduct himself an entire preliminary investigation or

particular acts of investigation.

      According to Sections 48 para. 2 and 201 the investigator has

certain independence from the prosecutor in respect of his working

methods and particular acts of investigation, but performs his

functions under the instructions and the supervision of the prosecutor.

      An investigator disagreeing with the instructions of the

prosecutor can submit objections to the higher prosecutor, whose

decision is final and obligatory for the investigator.  Section 178

read in conjunction with Sections 219 and 220 provides that, as an

exception to this rule, the investigator is free to conclude his work

on the preliminary investigation with a proposal to terminate the

proceedings or with a proposal to prepare an indictment.

      Under Sections 235 - 237 the prosecutor is competent, after

receiving the investigator's proposal, to terminate the proceedings,

to order additional investigations, or to prepare an indictment and

submit the case to the court.

c.    The appeal to a court against detention on remand is provided for

under Section 152 para. 5 of the Code of Criminal Procedure:

"... (5)   The detained person shall be provided immediately a

possibility to file an appeal to the respective court against

the [imposition of detention].  The Court shall decide within a

time-limit of three days by means of a decision which is final."

      In a decision of 17 September 1992 the Supreme Court found that

the imposition of detention on remand could be contested before a court

only once.  A new appeal was only possible where a detained person had

been released and then again detained.  In all other cases a detained

person could always request his release from the prosecution

authorities if there had been a change of circumstances (opredelenie

No. 94 po n.ch.h.d. No. 754/92, I n.o., Sb. 1992-93 str. 173).

      Periodic judicial review of the lawfulness of a detention on

remand becomes possible only when the criminal case is already in the

hands of the court.  At this stage of the proceedings the court before

which the case is pending also decides whether to release or detain the

accused.  At the preliminary investigation stage of the criminal

proceedings the detained can file unlimited number of applications for

release to the investigator and to the prosecution authorities, who

decide usually in camera.

d.    Under Section 75 of the Code of Criminal Procedure the lawyer of

an accused has the right to consult the file of the case and to make

excerpts.

e.    The Penal Code

      A crime under Section 201 in conjunction with Section 203 para. 1

is a misappropriation, in particularly large amounts, of funds, objects

and other valuables handed to the offender in his capacity of a civil

servant or entrusted to him to safeguard or manage.  This crime carries

a penalty of ten to thirty years imprisonment.

COMPLAINTS

1.    The applicant submits that there has been a breach of Article 5

para. 3 of the Convention.  Thus, after her arrest she was brought only

before an investigator.  She was not brought before the prosecutor who

confirmed her detention on remand.  Furthermore, the prosecutor cannot

be regarded as "officer authorised to exercise judicial power" as he

was conducting and supervising the criminal proceedings against the

applicant.  Moreover, the applicant was not brought before the Regional

Court which examined her appeal against detention.

2.    The applicant also complains that there has been a breach of

Article 5 para. 4 of the Convention.  She submits that this provision

requires implicitly that the habeas corpus proceedings be adversarial

and be conducted in the presence of the detained person.  Moreover, the

same facts also amount to a breach of Article 6 of the Convention as

she did not have a "fair hearing" of her appeal against detention.

3.    The applicant further complains under Article 6 paras. 1 and 3

of the Convention that she was deprived of the possibility to

participate, personally or through her lawyer, when the investigator

examined witnesses and collected other evidence in the period between

15 March 1995, when criminal proceedings against her were opened, and

24 October 1995, when she was officially charged.  The applicant

submits that there existed a "criminal charge" within the meaning of

Article 6 of the Convention since the opening of the criminal

proceedings against her on 15 March 1995.  However, she was officially

charged, and thus could enjoy the defence rights and procedural

safeguards applicable to an accused, only on 24 October 1995.  In the

meantime the investigator collected evidence and even examined her as

a witness, thus putting her in a situation where she had to say the

truth even if this would incriminate her.  The applicant submits that

there is a widespread deliberate tactic of the investigation

authorities to delay the official bringing of charges in breach of the

right of the accused to a fair trial.

4.    The applicant invokes also Article 13 of the Convention stating

that the possibilities to appeal against her detention were not

effective remedies.  Thus, the law did not provide for a possibility

to appeal before a higher tribunal against the decision of the Regional

Court of 11 December 1995.  Also, a detained person can appeal before

a court against detention only once. There is no possibility for a

periodical judicial review.

5.    The applicant alleges that there has been a breach of Article 25

of the Convention in that the regional prosecutor refused copies of

certain documents requested by the Secretariat of the Commission.

THE LAW

1.    The applicant raises complaints under Article 5 paras. 3 and 4

(Art. 5-3, 5-4) of the Convention as regards her arrest and detention

and also in respect of the examination of her appeal against detention.

She invokes also Articles 6 and 13 (Art. 6, 13).

      The Commission considers that it cannot, on the basis of the

file, determine the admissibility of the above complaints and that it

is therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of these complaints to the

respondent Government.

2.    The applicant complains under Article 6 (Art. 6) of the

Convention that  part of the preliminary investigation in her case was

conducted without her being able to participate or defend herself, due

to a deliberate delay in the official bringing of charges against her.

Also, she was put in a situation where she could incriminate herself,

because she was examined as a witness in the course of the criminal

proceedings against her.

     The Commission recalls that under Article 25 (Art. 25) of the

Convention the Commission may examine complaints only from persons

claiming to be victims of a violation of one of the Convention

provisions.

     The primary purpose of Article 6 (Art. 6), as far as criminal

matters are concerned, is to ensure as a whole a fair trial by a

"tribunal" competent to determine "any criminal charge".

Nevertheless, the requirements of paragraph 3(c) of Article 6

(Art. 6-3-c) could be relevant in pre-trial proceedings insofar as the

fairness of the trial is likely to be seriously prejudiced by an

initial failure to comply with them (Eur. Court HR, Imbrioscia v.

Switzerland judgment of 24 November 1993, Series A no. 275, p. 13,

para. 36; cf. also Can v. Austria, Comm. Report 12.7.84, paras. 49,

50, Eur. Court HR, Series A no. 96, pp. 15, 16).

     In particular, as regards the alleged danger of self-

incrimination, the Commission recalls that the right not to

incriminate oneself is an important element of the right to a fair

trial under Article 6 (Art. 6) of the Convention.  When faced with a

complaint in this respect the Convention organs must examine, in the

light of all circumstances of the case, whether the applicant has been

subject to compulsion to give evidence and whether the use made of the

resulting testimony at his trial offended the basic principles of a

fair procedure inherent in Article 6 para. 1 (Art. 6-1) of the

Convention (cf. Eur. Court HR, Saunders v. the United Kingdom judgment

of 17 December 1996, paras. 68, 69, to be published in Reports of

Judgments and Decisions 1996).

     However, the applicant's complaints concern an early stage of the

proceedings, namely the preliminary investigation, and not a "trial"

before a "tribunal" within the meaning of Article 6 (Art. 6) of the

Convention.  The criminal proceedings against the applicant are still

at this stage.  The Commission cannot speculate whether the applicant

will be put on trial, whether the evidence taken allegedly in breach

of her rights will be used at this trial, whether the trial will be

fair as a whole, or whether the applicant will be convicted.  The

Commission finds that the applicant cannot, at this stage, claim to be

a victim of the alleged violations of her rights under Article 6

(Art. 6) of the Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   The applicant also alleges that the regional prosecutor's refusal

to provide copies of certain documents amounted to a breach of

Article 25 (Art. 25) of the Convention.

     However, the Commission notes that under Section 75 of the Code

of Criminal Procedure the applicant's lawyer had the right to consult

the file and to make excerpts and that no complaint has been raised

about the existence of any impediments in the exercise of this right.

In these circumstances it does not appear that the prosecutor's

refusal to provide authenticated copies of certain documents

interfered with the applicant's right to effectively present and

pursue her complaints before the Commission (cf. Eur. Court HR,

Akdivar v. Turkey judgment of 16 September 1996, para. 103, to be

published in Reports of Judgments and Decisions 1996).

     For these reasons, the Commission,

     DECIDES TO ADJOURN the examination of the applicant's

     complaints under Articles 5, 6 and 13 (Art. 5, 6, 13) of

     the Convention concerning her arrest and detention and the

     examination of her appeal against detention;

     by a majority,

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                J. LIDDY

     Secretary                                   President

to the First Chamber                       of the First Chamber

 

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