CEDH · PRESS;GENERAL;ENG — 25 mars 1999

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s23A41E03 { width:36pt; display:inline-block } .s96E23477 { margin-top:0pt; margin-bottom:0pt; text-indent:360pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sB9D5CABB { width:28.35pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s36603326 { width:18.34pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s5752D6FA { font-family:Arial; font-weight:bold; font-variant:small-caps } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sE94AE824 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-indent:-28.35pt; text-align:justify } .s85325123 { width:28.35pt; text-indent:0pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt }   EUROPEAN COURT OF HUMAN RIGHTS                           182 25.3.1999 Press release issued by the Registrar     JUDGMENT IN THE CASE OF NIKOLOVA v. BULGARIA     In a judgment delivered at Strasbourg on 25 March 1999 in the case of   Nikolova v. Bulgaria (application no.   31195/96), the European Court of Human Rights held unanimously there had been violations of Article 5 §§ 3 and 4 (right to liberty) of the European Convention on Human Rights.     1.   Principal facts     The applicant, Ivanka Nikolova, is a Bulgarian national who was born in 1943 and lives in Plovdiv.     The applicant was suspected of having misappropriated funds while working as a cashier and accountant at a State-owned enterprise.   In October 1995 she was arrested and brought before an investigator who decided, with a prosecutor’s approval, to detain her on remand.   In November 1995 the applicant appealed against her detention to the competent court.   She advanced arguments which in her view demonstrated that there was no danger of her absconding, committing crimes or obstructing justice, and also requested to be released on medical grounds. The court examined the case in camera , after having received the prosecutor’s comments.   The court dismissed the appeal noting that the applicant was charged with a serious wilful crime and that the medical evidence was out of date.   2.   Procedure and composition of the Court     The application to the Commission, which was lodged on 6 February 1996, was declared partly admissible on 2 July 1997.    Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report on 20 May 1998.   In its report the Commission expressed the unanimous opinion that there had been a violation of Article 5 § 3 of the Convention and, having found that the remainder of the applicant’s complaints raised under Articles 5, 6 and 13 fell to be examined under Article 5 § 4 of the Convention, that there had been a violation of this latter provision.     The Commission referred the case to the Court on 6 July 1998.     Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to the Grand Chamber of the new European Court of Human Rights on the entry into force of the Protocol, on 1 November 1998.     Judgment was given by a Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber   ( Swiss ) , President , Elisabeth Palm   ( Swedish ), Antonio Pastor R idruejo   ( Spanish ) , Luigi F errari B ravo (San Marino) [1] , Giovanni Bonello   ( Maltese ) , Jerzy M akarczyk   ( Polish ) , Pranas K ūris   ( Lithuanian ) , Viera S trážnická   ( Slovak ) , Peer L orenzen   ( Danish ) , Marc F ischbach   ( Luxemburger ) , Volodymyr B utkevych   ( Ukrainian ) , Josep C asadevall   ( Andorran ) , Boštjan Z upančič   (Slovenian), Hanne Sophie G reve   ( Norwegian ) , András Baka   ( Hungarian ) , Rait Maruste   ( Estonian ) , Snejana Botoucharova   ( Bulgarian ) , Judges ,   and also M ichele de S alvia , Registrar .     3.   Summary of the judgment [2]   Complaints     The applicant complained that following her arrest she had not been brought before “a judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention.   She further complained under Article 5 § 4 of the Convention that the judicial proceedings concerning her appeal against detention were not adversarial and that the scope of the judicial review of lawfulness was limited. The applicant also alleged that Article 13 of the Convention was violated in that she had no remedy against the violations of Article 5.   Decision of the Court     Government’s preliminary objection     The Court found unanimously that the Government were estopped from relying on their preliminary objection as regards the exhaustion of domestic remedies as they had not raised it when the admissibility of the application had been considered by the Commission.     Article 5 § 3 of the Convention     The Court found unanimously that the investigators and the prosecutors under Bulgarian law and practice did not meet the criteria of independence and objective impartiality established in the Court’s case-law and that therefore they could not be considered officers exercising judicial power within the meaning of Article 5 § 3 of the Convention.   There had been, therefore, a violation of the applicant’s right to be brought before a judge or an officer exercising judicial power.     Article 5 § 4 of the Convention     The Court noted that the Plovdiv Regional Court when examining the applicant’s appeal against her detention had only verified whether the applicant had been charged with a “serious wilful crime” within the meaning of the Penal Code and whether her medical condition required release, thus without having examined concrete facts concerning the soundness of the charges against the applicant and the issue whether there existed a danger of absconding.   The Court found unanimously that this approach, which was based on section 152 §§ 1 and 2 of the Code of Criminal Procedure and the Supreme Court’s practice, was contrary to the requirement of Article 5 § 4 of the Convention that the judicial review of detention should encompass all the conditions essential for its lawfulness, in the Convention sense.     The Court further found, unanimously, that the proceedings before the Plovdiv Regional Court did not ensure equality of arms as they were held in camera , because the prosecutor submitted comments which were not communicated to the applicant, and also due to the fact that the applicant was not allowed to consult the case-file.     Article 13 of the Convention     The Court found, unanimously, that Article 5 § 4 of the Convention was a lex specialis in respect of Article 13 and that, consequently, it was not necessary to examine the complaint under the latter provision.     Article 41 of the Convention     The Court, unanimously, found no causal link between the violations of the Convention and the pecuniary damage allegedly suffered by the applicant and dismissed her claims in this respect.   The Court further, by 11 votes to 6, dismissed the applicant’s claim for non-pecuniary damage, having found that its judgment constituted sufficient just satisfaction.   By 16 votes to 1 the Court awardedthe applicant 14 million Bulgarian levs in respect of costs and expenses.     Several judges expessed separate opinions and these are annexed to the judgment.     The Court’s judgments are accessible on its Internet site (www.dhcour.coe.fr) on the day of their delivery.     Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contact: Roderick Liddell Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91   [1]   [2] 1 Judge elected in respect of San Marino 2 This summary by the registry does not bind the Court.