CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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 2 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  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 reports 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.   A.     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 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 examined the case 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.   B.     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 - 203 that an accused person 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 approved by the prosecutor within 24 hours.         There is no legal obstacle for a prosecutor, having taken a decision to detain an accused person on remand, or having approved the investigator's decision, later to submit an indictment in court and to represent the prosecution against the same accused person.   In practice this is often the case.         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 examination.   After the examination 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, 86, 176 - 178, 196, 201, 208, 219 - 220 and 235 - 237 concern the competence of the prosecutor and of the investigator in penal proceedings.         According to these provisions and to the legal theory and practice the prosecutor has a double function in penal proceedings. At the preliminary investigation stage he supervises the investigation and gives mandatory instructions. Also, throughout the proceedings the prosecutor effects a "control for lawfulness".    At the judicial stage of the proceedings he is entrusted with the task to prosecute the accused and to represent the prosecution in court.         According to Section 86 the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence.         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.         Section 152 para. 5        "(5)   The detained person shall be provided immediately with a possibility to file an appeal before the competent court against the [imposition of detention].   The court shall pronounce itself   within a time-limit of three days from the filing of the appeal by means of a final decision."         According to the current practice the court examines the appeals against detention on remand in camera, without the participation of the parties.   If the appeal is dismissed the court does not notify the detained of the decision taken.         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.   c.     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 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.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 6 February 1996 and registered on 26 April 1996.         On 27 February 1997 the Commission decided to communicate to the respondent Government the applicant's complaints concerning her detention on remand, raised by her under Articles 5, 6 and 13 of the Convention.   The Commission declared inadmissible the applicant's complaints under Article 6 paras. 1 and 3 of the Convention concerning the fairness of the criminal proceedings against her and her complaint of an alleged breach of Article 25 of the Convention.         The time-limit for the Government's written observations expired on 8 May 1997.   The Government have not requested its extension.   By letter of 22 May 1997 the Government were informed that the case would be examined during the Commission's session beginning on 30 June 1997 and that no observations have been received.         On 28 May 1997 the Commission granted the applicant legal aid.     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 considers that Articles 6 and 13 (Art. 6, 13) of the Convention are also applicable.         The Government have not submitted observations.         Having examined the applicant's complaints concerning her detention on remand, the Commission finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This part of the application cannot, therefore, be regarded as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds for declaring it inadmissible has been established.         For these reasons, the Commission, unanimously,           DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without       prejudging the merits of the case.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber