CASE OF LUKANOV v. BULGARIA
(Application no. 21915/93)
20 March 1997
In the case of Lukanov v. Bulgaria,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mrs E. Palm,
Sir John Freeland,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr B. Repik,
Mr U. Lohmus,
Mr J. Casadevall,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 2 December 1996 and 20 February 1997,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Bulgaria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 5 para. 1 and 18 of the Convention (art. 5-1, art. 18).
There appeared before the Court:
(a) for the Government
Mrs S. Margaritova, Ministry of Justice, Agent;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mrs I. Loultcheva, lawyer practising in Sofia, Counsel,
Mr S.E. Entchev, Assistant.
The Court heard addresses by Mr Trechsel, Mrs Loultcheva and Mrs Margaritova.
AS TO THE FACTS
I. Particular circumstances of the case
"The decisions ... have dramatically affected the country’s economic potential, its economic resources and export capacity, and have objectively speaking made it unable to repay its foreign debt. It should be emphasised that, due to decisions of this nature causing prejudice to the country and other illegal measures taken by party and government leaders during this period, our foreign debt rose from USD 4,119,700 in 1986 to USD 10,656,900,000 in 1989 ...
The situation described is covered by the definition of the offence of `taking advantage of one’s position’ in respect of very large amounts of money, which constitutes a particularly serious matter falling within the provisions in Article 203 and Article 219 para. 3 of the Criminal Code.
The offences mentioned are `serious’ within the meaning of Article 93 para. 7 of the Code."
The prosecutor in addition ordered the applicant’s detention on remand, citing as grounds the need to show to the public the danger that the offences in question represented to society, the applicant’s identity and the need to secure his appearance before the trial court. The decision referred, inter alia, to Articles 147 and 152 para. 1 of the Code of Criminal Procedure (see paragraphs 29 and 30 below).
On 9 July 1992 the applicant was arrested and remanded in custody at the premises of the National Investigation Service in Sofia.
"Under Article 152 para. 1 of the Code of Criminal Procedure a suspect is to be detained on remand if the offence is punishable by ten years’ imprisonment or more or by the death penalty. Offences under Article 203 para. 1, of the Criminal Code carry such sentences.
[The above provision] lays down two cumulative conditions - the misappropriation must have occurred on a large scale and must have been particularly serious.
[Whether the misappropriation has occurred] on a particularly large scale depends on the value of the public property involved. The seriousness of the case is determined on the basis of whether the misappropriation was carried out with the complicity of others, the level of the threat to society involved in the [measures] and the subject matter (Article 93 para. 8, of the Criminal Code). The argument that the eventuality envisaged in Article 152 para. 2 ... applies in the instant case is unfounded.
When the accusation was made the applicant was a member of the National Assembly. By virtue of Article 72 of the Bulgarian Constitution he holds this status until such circumstances occur as may warrant the suspension from his functions as a member of the National Assembly. In his capacity as member of the National Assembly the [applicant] represents the people as a whole. It is precisely in this capacity that the [risk] mentioned in Article 152 para. 2 ... will materialise, and the likelihood of this is greater than in the case of an appellant who is not a member of the National Assembly.
Furthermore, the applicant has lodged a judicial appeal against the administrative measure resulting in the withdrawal of his diplomatic passport ... The fact that he has taken such a step gives good grounds for fearing that he will not refrain from committing acts of the type mentioned in Article 152 para. 2 ...
According to Article 70 of the Constitution `..., except in cases of serious crimes and where permission has been given by the National Assembly, its members may not be detained and no charges may be brought against them ...’. A logical and systematic interpretation of the aforesaid provision suggests that [what is decisive for] the measure of restraint, `detention’, [to be applied] in the context of the Criminal Code is whether the act entails a great danger to society and the particular status of the person who has committed it - a member of the National Assembly.
For this reason the legislature envisaged ... detention in [such] cases. The prosecutor’s office has power to impose such a measure."
The Supreme Court dismissed the appeal on 17 September 1992 on the grounds that the applicant had already appealed against his detention and that, under the relevant Bulgarian law, he was not entitled to lodge a further appeal.
At a meeting on 28 October 1992 between the public prosecutor and the applicant and his lawyer at the Military Hospital in Sofia, the lawyer invited the prosecutor to take a decision on the request for release. The applicant himself maintained that it was unreasonable to base his detention on the fact that he had complained about the withdrawal of his passport. He did not have any other passport. Nor was there any danger of his repeating the offence, as he was no longer in a position to do so.
On 2 November 1992 the public prosecutor dismissed the applicant’s request for release. He gave as reasons that the Prosecutor-General had already dealt with it and had been of the view that, notwithstanding the medical reports concerning the applicant, there were no new circumstances warranting his release. His lawyers had been informed of the Prosecutor-General’s decision of 22 October 1992 and had been advised that no further appeal was possible.
The lawyer also contested the charges against the applicant. The decisions of the Council of Ministers had been taken collectively in accordance with the Constitution and the budget voted by the National Assembly. The decisions in question had been taken simply with a view to implementing policies of the government in power at the time and it was the government, not the applicant as a Deputy Prime Minister, which had administered the relevant funds. In any event, it had not been established that the applicant had committed the offences in issue for his own benefit or for that of a third party.
On 25 November 1992 the public prosecutor replied that his decision of 11 November had been transmitted to the applicant’s lawyer on 16 November and that minutes relating to these measures had been prepared in accordance with Article 100 of the Code of Criminal Procedure.
II. Relevant domestic law
A. The Bulgarian Criminal Code of April 1968, as in force at the relevant time
Where an offence under Articles 201 or 202 involves particularly large amounts of public funds and is serious, Article 203 para. 1 provides for terms of between ten and thirty years’ imprisonment.
In a judgment of 1995 (no. 17/95) the Constitutional Court declared unconstitutional an amendment by the National Assembly to make it an express condition in Article 201 that the person concerned had used the funds to his own advantage or that of a third party. In the opinion of the Constitutional Court, such a limitation on the scope of the offence of misappropriation would entail too weak a protection of the right to property guaranteed by the Constitution of 1991. It should be decisive for the offence, not that there had been personal enrichment, but that the person had disposed of the means as though they were his own and had thereby harmed the owner’s interests.
In connection with the above, the Constitutional Court stated that the amendment in question had been in line with the Supreme Court’s interpretation of Article 201.
According to the Government, there was no example at the relevant time of a member of a government having been prosecuted under Articles 201 and 203 of the Criminal Code for his or her participation in collective decision-making by the government.
"If a public servant, in his administration of assets or of money in his possession or in the execution of work which he has been ordered to do, negligently causes considerable material damage, or the destruction or dispersal of the assets, to the disadvantage of the service concerned or the national economy, he will be punished by a term of imprisonment of not more than three years or by forced labour in the public interest."
According to paragraph 3, up to eight years’ imprisonment may be imposed if the offence is committed wilfully.
"(1) A public servant who does not fulfil his professional obligations or who commits an abuse of power with the aim of obtaining a material advantage for himself or for a third party or of causing damage to others, and if not insignificant material damage could arise, shall be punished by a term of not more than five years’ imprisonment ...
(2) If the act results in considerable material damage or has been committed by a person occupying a senior administrative post, the person concerned shall be liable to a term of imprisonment of eight years ...
(3) If such an act is particularly serious the term of imprisonment shall be between three and ten years ..."
B. The Bulgarian Code of Criminal Procedure of November 1974, as in force at the material time
"(1) Detention on remand shall be imposed if the charges concern crimes punishable by a term of imprisonment of ten years or more or by capital punishment.
(2) The measure envisaged in the previous paragraph shall not be imposed if there is no danger of the accused evading justice or committing another crime.
(4) The detained person may immediately lodge an appeal with the court against his detention. The Court shall decide within three days by means of a decision which is final."
PROCEEDINGS BEFORE THE COMMISSION
In its report of 16 January 1996 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of Article 5 para. 1 of the Convention (art. 5-1) and that no separate issue arose under Article 18 (art. 18). The full text of the Commission’s opinion is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
AS TO THE LAW
I. PRELIMINARY OBSERVATION
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 OF THE CONVENTION (art. 5-1)
"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;
In these circumstances, the Commission did not find it necessary to examine whether the detention was "lawful" under domestic law.
The applicant, for his part, stressed that the decisions leading to the charges against him and his being detained on remand had been taken collectively by the government at the time and in a manner which was consistent with the relevant law, including the then Bulgarian Constitution; the allocation of the funds in question had been effected in accordance with the national budget as adopted by the National Assembly and had subsequently been approved by the latter. The measures had been in keeping not only with the policies of the government at the time but also with relevant United Nations resolutions on development assistance. They had not benefited any members of the government or any third parties; the funds had been received in their entirety by the addressee countries.
Before the Court the Government stated that they were prepared to accept the Commission’s opinion that there had been a violation of Article 5 para. 1 of the Convention (art. 5-1), whilst at the same time informing the Court of the views of the Prosecutor-General, the authority which had ordered the applicant’s detention on remand (see paragraph 11 above). In this regard the Government pointed out that it was not within their competence to assess the measures taken in this case by the prosecution and the Supreme Court which, under the Constitution, were both independent judicial authorities.
It was a key element of the offence of misappropriation under Bulgarian law that the offender had dealt with someone else’s property as though it had been his or her own and had thereby infringed the owner’s interests; it was not decisive whether he or she had sought to obtain an advantage for himself or herself or for a third party (see paragraph 26 above). Furthermore, members of a body could by reason of their joint decisions and actions be found guilty if they had thereby knowingly committed acts which amounted to an offence. In the present case, since the collective decisions concerned had caused economic loss, criminal proceedings had been instituted against each member of the body which had taken those decisions (see paragraphs 9 and 11 above). The prosecutor had believed that the funds concerned had been spent in a manner which was unlawful since there was no information as to whether they had appeared in the budget as an expenditure.
Admittedly, the Prosecutor-General had not been in a position at the time to ascertain whether there was criminal intent. He had considered, having regard to the circumstances and complexity of the case, that this could only be determined in the course of the preliminary investigations.
Although not expressly stated in the order to detain the applicant on remand, the decision had been taken in view of who the applicant was and the gravity of the offence committed (see paragraphs 9 and 11 above). The Supreme Court too had laid stress on the applicant’s status as a member of the National Assembly (see paragraph 13 above). The extremely wide powers which he had enjoyed by virtue of his position had given him greater opportunities to abscond or commit further offences than he would have had otherwise. Furthermore, his position in society, his numerous contacts abroad and his repeated requests that the authorities return his passport, were all considerations which went to justify placing him in pre-trial detention. As stated by the Supreme Court, the fact that the applicant had appealed against the withdrawal of his passport had given rise to a justified suspicion that he might commit a further offence, within the meaning of Article 152 para. 2 of the Code of Criminal Procedure (see paragraph 13 above).
In the view of the Prosecutor-General, the contested pre-trial detention was in accordance with domestic law, including the Bulgarian Constitution, and had been entirely in keeping with Article 5 para. 1 (c) of the Convention (art. 5-1-c).
As to the observations made by the Government concerning the independence of the authorities which had taken the measures giving rise to the applicant’s Convention complaints (see paragraph 38 above), it should be emphasised that the Governments are answerable under the Convention for the acts of such authorities as they are for those of any other State agency. In all cases before the Court, what is in issue is the international responsibility of the State (see, mutatis mutandis, the Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56, p. 21, para. 63). Notwithstanding the Government’s acceptance of the Commission’s opinion that there had been a violation of Article 5 para. 1 (art. 5-1), the Court considers it appropriate to examine this question for itself.
The Court is of the view that the central issue in the case under consideration is whether the applicant’s detention from 7 September to 30 December 1992 was "lawful" within the meaning of Article 5 para. 1 (art. 5-1), including whether it was effected "in accordance with a procedure prescribed by law". The Court reiterates that the Convention here refers essentially to national law, but it also requires that any measure depriving the individual of his liberty be compatible with the purpose of Article 5 (art. 5), namely to protect the individual from arbitrariness (see, for instance, the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para. 54; and the Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, pp. 752-53, para. 40).
Where the Convention refers directly back to domestic law, as in Article 5 (art. 5), compliance with such law is an integral part of the obligations of the Contracting States and the Court is accordingly competent to satisfy itself of such compliance where relevant (Article 19) (art. 19); the scope of its task in this connection, however, is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, inter alia, the above-mentioned Bozano judgment, p. 25, para. 58; and the Kemmache v. France (no. 3) judgment of 24 November 1994, Series A no. 296-C, p. 88, para. 42).
In the light of the above, the Court is not persuaded that the conduct for which the applicant was prosecuted constituted a criminal offence under Bulgarian law at the relevant time.
However, the Court has not been provided with any fact or information capable of showing that the applicant was at the time reasonably suspected of having sought to obtain for himself or a third party an advantage from his participation in the allocation of funds in question (see, for instance, the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 25, para. 51). In this connection it is to be noted that the Government’s submission that there had been certain "deals" was found by the Commission to be unsubstantiated and was not reiterated before the Court. Indeed, it was not contended before the Convention institutions that the funds had not been received by the States concerned.
Having reached this conclusion, the Court does not need to examine whether the detention could reasonably be considered necessary to prevent his committing an offence or fleeing after having done so.
III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION (art. 18)
"The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
A. Non-pecuniary damage
B. Costs and expenses
(a) USD 3,100 for his lawyer Mrs Loultcheva’s work in connection with the case before the Commission;
(b) USD 3,272 and FRF 1,600 for his own and his lawyer’s travel and subsistence expenses in connection with the hearing before the Commission;
(c) USD 2,000 for his lawyer’s work in connection with the case before the Court;
(d) USD 1,800 for Mr Entchev’s work in connection with translation and interpretation in the proceedings before the Court;
(e) USD 3,284 and FRF 5,467 for Mrs Loultcheva’s and Mr Entchev’s travel and subsistence expenses in connection with their appearance at the Court’s hearing.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 para. 1 of the Convention (art. 5-1);
2. Holds that no separate issue arises under Article 18 of the Convention (art. 18);
(a) that the respondent State is to pay the applicant’s widow and two children within three months the following sums, to be converted into Bulgarian leva at the rate applicable on the date of settlement:
(i) 40,000 (forty thousand) French francs, in compensation for non-pecuniary damage, and
(ii) for legal costs and expenses, 13,456 (thirteen thousand, four hundred and fifty-six) US dollars and 7,067 (seven thousand and sixty-seven) French francs;
(b) that simple interest at the following annual rates shall be payable from the expiry of the above-mentioned three months until settlement:
(i) 4% per annum in relation to the sums awarded in French francs, and
(ii) 5% per annum in relation to the sum awarded in US dollars;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 20 March 1997.
 The case is numbered 25/1996/644/829. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-II), but a copy of the Commission's report is obtainable from the registry.