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KOLEVI v. BULGARIA - 1108/02 [2009] ECHR 1838 (5 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1838.html
Cite as:
[2009] ECHR 1838,
59 EHRR 23,
(2014) 59 EHRR 23
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FIFTH
SECTION
CASE OF KOLEVI v. BULGARIA
(Application
no. 1108/02)
JUDGMENT
STRASBOURG
5
November 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kolevi v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 1108/02) against the Republic
of Bulgaria lodged with the Court on 17 December 2001 under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Mr Nikolai
Georgiev Kolev, a Bulgarian national who was born in 1949. Mr Kolev
was shot dead on 28 December 2002. His wife, Mrs Nanka Koleva,
his daughter, Ms Christina Koleva, and his son, Mr Georgi Kolev,
stated that they wished to pursue the application. They also
submitted additional complaints.
The
applicants were represented by Mr Y. Grozev and Mr B. Boev, lawyers
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Karadjova,
of the Ministry of Justice.
The
applicants alleged, in particular, that Mr Kolev's detention in 2001
had been unlawful and unjustified, that his appeals against his
detention had not been examined speedily and that the investigation
into the first applicant's murder had not been independent and
effective.
By
a decision of 4 December 2007, the Court declared the application
partly admissible and partly inadmissible.
The
applicants, but not the Government, filed further written
observations (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other's observations and submitted additional information
requested by the Chamber.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Mr
Kolev was a high-ranking prosecutor. Between 1994 and 1997 he was
Deputy Chief Public Prosecutor of Bulgaria and, thereafter, a
prosecutor at the Supreme Cassation Prosecution Office and later at
the Supreme Administrative Prosecution Office.
His
wife, Mrs Nanka Koleva, the second applicant, is a high-ranking
prosecutor.
A. The facts submitted by Mr Kolev in his application
of 17 December 2001 and letter of 22 October 2002
1. Mr Kolev's dismissal
On
10 January 2001 Mr Kolev was dismissed from his position by decision
of the Supreme Judicial Council, on an application by the Chief
Public Prosecutor, Mr F. The decision ordered Mr Kolev's retirement.
During
the months preceding Mr Kolev's dismissal, several other high-ranking
prosecutors were dismissed and ordered to take early retirement.
Mr
Kolev lodged an appeal before the Supreme Administrative Court
against his dismissal, stating, inter alia, that he had never
applied for retirement and that he had not reached retirement age. By
a judgment of 23 May 2001 a chamber of the Supreme
Administrative Court quashed the dismissal as contrary to the law,
noting that Mr Kolev had not reached retirement age and that even
though he was eligible for early retirement this could only be
ordered if requested by the person concerned.
On
appeal, that judgment was upheld on 10 December 2001 by a five-member
chamber of the Supreme Administrative Court.
On
an unspecified date in 2002 Mr Kolev resumed his office as a
prosecutor. He started work at the Supreme Administrative Prosecution
Office.
2. Mr Kolev's and others' accusations against the Chief
Public Prosecutor
Between
1999 and 2006 Mr F. was the Chief Public Prosecutor of Bulgaria.
According
to Mr Kolev, the real reason for attempting to force him to retire
was a conflict between him and the Chief Public Prosecutor. Mr Kolev
allegedly knew the Chief Public Prosecutor very well as they had been
in the same class as university students and had worked together for
an unspecified period. Observing the behaviour of the Chief Public
Prosecutor, Mr Kolev gradually formed the opinion that he was
suffering from a psychiatric disorder. Also, a conflict between the
two allegedly erupted in relation to plans – which Mr Kolev
resisted – to allow public access to the archives of the
military intelligence service dating from the communist period.
According to Mr Kolev's statements, supported by several other public
figures, the conflict also arose from the fact that the Chief Public
Prosecutor had developed an authoritarian style and had repeatedly
ordered other prosecutors to act unlawfully against persons whom the
Chief Public Prosecutor perceived as his enemies. In particular, on
numerous occasions the Chief Public Prosecutor had ordered his
subordinate colleagues to open criminal proceedings against other
persons on fabricated charges.
On
23 February 2001 the Chief Public Prosecutor met Mr Kolev and
allegedly ordered him to withdraw his appeal against the dismissal
order of 10 January 2001 (see paragraph 8 above), threatening him
with arrest and criminal prosecution if he did not comply.
In
March and April 2001 Mr Kolev made public his suspicions about the
mental health of the Chief Public Prosecutor. In interviews for the
press he stated that the Chief Public Prosecutor constantly feared
plots, mistrusted his colleagues and regularly ordered unlawful
actions to put pressure on persons whom he considered to be against
him. He referred to the recent suicide of a high-ranking prosecutor,
who had left a note stating that the Chief Public Prosecutor should
resign. Also, in January 2001 the Chief Public Prosecutor had
allegedly been very irritated by journalists who had reported that
his brother had been arrested in Germany on suspicion of smuggling
ancient coins and had ordered a series of criminal investigations and
reprisals against the journalists and other persons connected with
them. The car of one of the journalists had been set on fire soon
after the reports had been published. Many persons had been summoned
for questioning and various charges brought against some of them.
Mr
Kolev also wrote to the President of Bulgaria, informing him of his
suspicions concerning the mental health of the Chief Public
Prosecutor.
At
the relevant time other public figures also voiced the opinion that
the Chief Public Prosecutor was suffering from a mental disorder and
had committed numerous serious criminal acts. In 2002 Mr E.S., a
former member of Parliament known for his publications about alleged
crimes committed by high-ranking officials, published an open letter
to the Supreme Judicial Council and other institutions, stating that
the Chief Public Prosecutor had committed crimes and that he had a
mental disorder. One of the allegations was that in February 2000 the
Chief Public Prosecutor had murdered Mrs N.G., a lawyer who had
allegedly served as an intermediary for the payment of bribes by
criminals to prosecutors. Several public figures, including
prosecutors, made statements to the press on the matter, some of them
supporting the allegations.
The
Chief Public Prosecutor and other politicians denied the allegations
and stated that they were the victims of a campaign by criminal
groups which sought to destabilise the country and hamper pending
investigations.
In
January 2002 Mr Kolev initiated proceedings before the Supreme
Administrative Court seeking a declaration that the decision of the
Supreme Judicial Council of 1999 to propose that the President of
Bulgaria appoint Mr F. as Chief Public Prosecutor had been invalid
because of procedural irregularities. In January 2002 the Chief
Public Prosecutor requested a ruling from the Constitutional Court on
the question whether the Supreme Judicial Council's proposals to the
President were amenable to appeal before the Supreme Administrative
Court. On 28 March 2002 the Constitutional Court ruled that those
proposals were not amenable to appeal. On 18 May 2002 the proceedings
before the Supreme Administrative Court were discontinued.
3. Alleged campaign against Mr Kolev by the Chief
Public Prosecutor
Allegedly
in reaction to Mr Kolev's public accusations, within a short period
several sets of criminal proceedings were instituted against him and
members of his family. It appears that prior to these events, Mr
Kolev had never been the object of criminal investigations.
On
8 March 2001 Mr Kolev was charged with illegal possession of weapons,
as a handgun and a hand grenade had been found in his former office
after his dismissal. The proceedings were terminated by the Sofia
District Court on 29 June 2001 on the ground that Mr Kolev, who was
still a prosecutor as the decision ordering his retirement had not
yet entered into force, enjoyed immunity from prosecution.
In
April 2001 criminal proceedings were instituted against Mr Kolev on
charges that he had breached the law in connection with an
investigation he had conducted in 1991. Those proceedings were
terminated by a decision of the Sofia City Court of 9 August 2001.
In
June 2001 criminal proceedings were opened against Mr Kolev's father
on charges of illegal possession of fifty cartridges for a hunting
rifle. Mr Kolev's father was later indicted. On 2 October 2002 he was
acquitted. By a judgment of 13 January 2005 of the Sliven District
Court the prosecuting authorities were ordered to pay Mr Kolev's
father non pecuniary damages for the anxiety caused by his
indictment on charges that had proved unfounded.
In
June 2001 criminal proceedings were instituted against Mr Kolev in
relation to a telephone conversation of 31 May 2001 (see paragraph 28
below). Those proceedings were terminated by the Sofia District Court
on 2 August 2001.
In
June 2001 Mr Kolev was charged with aiding and abetting the murder of
Mrs N.G. in February 2000 (of which others had accused the Chief
Public Prosecutor). According to the charges, he had provided advice
which had facilitated the commission of the offence.
In
September 2001 criminal proceedings were instituted against Mr Kolev
and his son on charges that between 1995 and 1998 Mr Kolev had abused
his office to provide his son with a handgun free of charge. Those
proceedings were terminated on 18 July 2003 on the grounds that Mr
Kolev had died and that it could not be considered that his son had
acted wilfully.
4. Mr Kolev's arrest and detention
On
31 May 2001 Mr Kolev wrote to the Minister of the Interior and also
gave interviews to the press in which he stated that he had learned
that the Chief Public Prosecutor had ordered the fabrication of
criminal charges against him, which would consist of drugs being
“planted” on him with the aim of having him arrested on
drug charges and silencing him. This information was published
widely. On the same day Mr Kolev telephoned a former colleague and
told him not to participate in this planned operation. In connection
with that conversation, in June 2001 Mr Kolev was charged with having
attempted to put undue pressure on an official (see paragraph 25
above).
Mr
Kolev repeated his accusations in a complaint he sent to the Supreme
Judicial Council on 12 June 2001. He gave details, indicating the
names of several persons who were allegedly involved in the plot and
insisted, as he had done in previous complaints, that the Supreme
Judicial Council should appoint a commission to investigate the
crimes allegedly committed by the Chief Public Prosecutor.
On
20 June 2001 Mr Kolev was arrested in Sofia in front of his home by
officers of the anti-terrorist squad accompanied by Mr P. and
Mr Ts.I., two high-ranking prosecutors. Immediately after the
arrest Mr Kolev's flat and a vehicle belonging to Mr Kolev's son
were searched. According to the record drawn up on that occasion and
the charges brought later, several paper envelopes containing 2.6
grams of heroin and 1.89 grams of cocaine were found in Mr
Kolev's pockets and in the car. The authorities seized a handgun
lawfully owned by Mr Kolev's wife, and other belongings. A handgun
and eight cartridges were found in Mr Kolev's son's car, according to
the official record. The searches and seizures were approved the next
day by a judge at the Sofia City Court.
On
20 June 2001 a prosecutor ordered Mr Kolev's provisional detention
for a period of 72 hours, relying on Article 202 (1)(1) and (1)(3) of
the Code of Criminal Procedure.
On
the expiry of the 72-hour period, on 23 June 2001 another prosecutor
issued a fresh order for Mr Kolev's provisional detention for another
period of 72 hours, without mentioning the order of 20 June 2001. The
new order was based on Article 152a (2) and (3) of the Code of
Criminal Procedure.
On
23 June 2001 Mr Kolev was charged with illegal possession of drugs
and a firearm.
On
24 June 2001 a lawyer acting for Mr Kolev protested against his
detention in a complaint filed with the Supreme Judicial Council.
On
25 June 2001 Mr Kolev was brought before a judge at the Sofia City
Court.
The
prosecutor asked the court to order Mr Kolev's pre-trial detention.
Mr Kolev and his lawyer stated that the detention was unlawful and
was the result of a plot. Mr Kolev stated that he had seen
prosecutors P. and Ts.I., who had been present during his arrest,
placing two small paper packets among his belongings. Shortly after
that the same persons had placed, in Mr Kolev's presence, a handgun
in his son's car. Mr Kolev requested a fingerprint test, stating that
such a test would prove his allegations.
Mr
Kolev also invoked immunity from prosecution on the strength of the
fact that he was still a prosecutor. He also complained that he had
been detained unlawfully after the expiry on 23 June 2001 of the
72-hour statutory period.
The
Sofia City Court remanded Mr Kolev in custody. The court found that
the record drawn up during the arrest, which showed that drugs and a
handgun had been found, was sufficient evidence to establish a
reasonable suspicion that Mr Kolev had committed a serious offence.
It also noted that several sets of criminal proceedings were pending
against him (see paragraphs 21-27 above), which pointed to a danger
of him committing an offence. The court considered that Mr Kolev did
not have immunity from prosecution following his dismissal.
The
court refused to rule on the lawfulness of Mr Kolev's detention
during the period before 25 June 2001, stating that it was not
subject to judicial control and that its lawfulness had no bearing on
the issue to be decided by the court, namely whether or not to remand
Mr Kolev in custody.
On
28 June 2001 Mr Kolev's lawyer submitted a complaint to the Supreme
Judicial Council stating that on 21 June 2001 Mr Ts.I., a
high ranking prosecutor, had told him that he risked having
criminal charges brought against him if he persisted in defending Mr
Kolev. A week later, the lawyer had been asked to appear before a
prosecutor and “furnish explanations” in relation to a
case he had worked on in 1992 as investigator. The lawyer stated that
inadmissible pressure had been brought to bear on him and requested
an investigation.
On
3 July 2001 the Sofia Court of Appeal dismissed a consequent appeal
by Mr Kolev. One of the three judges gave a dissenting opinion.
The
majority stated that the court had no power to deal with Mr Kolev's
allegations that the drugs and firearm found during his arrest had
been “planted” by prosecutors, as that was a question
which concerned the merits of the criminal case and could not be
discussed in relation to Mr Kolev's detention.
The
dissenting judge stated that Mr Kolev enjoyed immunity from
prosecution and that in any event, having regard to all the available
information, Mr Kolev's detention had not been justified.
On
7 August 2001 Mr Kolev submitted a fresh appeal against his
continuing pre-trial detention. In accordance with the relevant
procedural requirements, the appeal was lodged with the Sofia
Investigation Service, which was in charge of the investigation
against him. On 14, 23 and 28 August 2001 Mr Kolev and his
lawyers complained, in submissions to the Sofia Investigation Service
and the Sofia City Prosecutor's Office, of the delay in the
examination of the appeal, which should have been transmitted to the
Sofia City Court. As the appeal was not transmitted, on 5 September
2001 Mr Kolev lodged an appeal directly with the Sofia City Court.
The court heard the case on 13 September 2001 and decided to release
the applicant from custody and place him instead under house arrest.
On
an unspecified date an indictment was submitted to the Sofia City
Court against Mr Kolev on charges of illegal possession of drugs and
a firearm.
On
22 November 2001 the Sofia City Court terminated the proceedings
before it and referred the case back to the prosecuting authorities.
The court noted that Mr Kolev enjoyed immunity from prosecution, his
dismissal not having entered into force.
On
29 November 2001, on an appeal by Mr Kolev against his house arrest,
the Sofia City Court ordered his release.
On
4 February 2002, following a final judgment of 10 December 2001
quashing the order for Mr Kolev's dismissal from his position as a
prosecutor (see paragraphs 10 and 11 above), the Sofia Court of
Appeal terminated the criminal proceedings against him as he enjoyed
immunity from prosecution. That decision was upheld on 30 April 2002
by the Supreme Court of Cassation.
The
courts found that the criminal proceedings against Mr Kolev had been
inadmissible from the outset. Pending examination of his appeal
against his dismissal, the immunity conferred on him by the
Constitution had not been removed. In such cases criminal proceedings
could be brought and pre-trial detention ordered only if the Supreme
Judicial Council had given its authorisation. That had not been done
in Mr Kolev's case.
Another
set of criminal proceedings against Mr Kolev was terminated by the
courts on 9 July 2002 on the same grounds.
B. The Supreme Judicial Council's decision concerning
the Chief Public Prosecutor
In
November 2002 the Supreme Judicial Council agreed to deal with the
public allegations against the Chief Public Prosecutor submitted by
Mr E.S., a former member of Parliament.
On
an unspecified date Mr Kolev requested leave to appear and speak
before the Supreme Judicial Council about the alleged unlawful
activities of the Chief Public Prosecutor. The request was refused.
On
4, 11 and 18 December 2002 the Supreme Judicial Council heard several
statements and examined documentary material. The Chief Public
Prosecutor was also invited to speak, but he did not attend.
Mr
A.A., the Head of the National Security Service, testified that in
June 2001 Mr F., the Chief Public Prosecutor, and another
high-ranking prosecutor, Mr. Ts.I., had given instructions that a
cargo aeroplane loaded with military equipment be allowed to leave
Bulgaria despite suspicions that the shipment violated a UN-imposed
arms embargo. Mr F. had personally explained in private to Mr A.A.
that he had intervened at the request of the President of Ukraine, Mr
Kuchma, as the latter's son was co-owner of the company to which the
aircraft belonged. Mr A.A. had refused to approve the actions of the
prosecutors and had informed the President of Bulgaria and the
Minister of the Interior. Since these events, two sets of criminal
proceedings had been opened against Mr A.A. by prosecutors.
Mr
E.I., a former Interior Minister, testified that Mr F. had threatened
him with bringing criminal proceedings against him. In 2001 he had
been summoned to appear before high-ranking prosecutors and
questioned about the purchase of several cars by the Ministry of the
Interior. Mr E.I. also testified that while he was Minister of the
Interior, numerous sets of criminal proceedings had been opened on
dubious grounds against Ministry officials working with him,
including his press officer.
Mr
V.M., a prosecutor from the Varna Appeals Prosecution Office, stated
that he had been the victim of intimidation and threats ordered by
Mr F., the Chief Public Prosecutor. He stated that Mr F. had
created a climate of fear and submission in the prosecution service.
Terrorising subordinates had become the usual method of management
and unconditional submission to the Chief Public Prosecutor was the
most valued quality of a subordinate prosecutor or staff member. Mr
F. and his small circle of trusted individuals ruled the prosecution
service. There was a practice of giving unlawful orders orally, with
which prosecutors and staff were required to comply. Refusal was
punished by arbitrary transfers of prosecutors to other functions and
towns and the bringing of criminal charges against members of their
families. Mr V.M. cited examples in this respect. Mr V.M. also spoke
about specific cases of unlawful termination of criminal proceedings
and unlawful intervention by high-ranking prosecutors in private
disputes.
Mrs
V.S., a prosecutor from Pleven, testified that she and several of her
colleagues had been improperly prevented from working on a case
involving a substantial financial interest. She complained to the
Supreme Judicial Council, whereupon she was summoned to furnish
explanations before the Deputy Chief Public Prosecutor, Mr H.M., and
three other high ranking prosecutors, and was told to withdraw
her complaint. Having heard her refusal, the Deputy Chief Public
Prosecutor said: “A second case of a prosecutor committing
suicide may occur”, apparently referring to the suicide, three
months earlier, of a high-ranking prosecutor. After this meeting,
disciplinary proceedings were instituted against Mrs V.S. and she was
deprived of salary bonuses. Following appeals by Mrs V.S., these
measures were set aside by the courts.
Mr
I.I., an investigator, testified that he had investigated the murder
of Mrs N.G., a lawyer from Yambol, who had had a close relationship
with the Chief Public Prosecutor. In this context, Mr I.I. discovered
evidence of criminal acts committed by prosecutors. His efforts to
secure evidence and investigate were frustrated, however, apparently
as a result of repeated information leaks. Since the only persons who
knew about the planned searches and seizures had been the Chief
Public Prosecutor and five high ranking prosecutors from his
close circle, the leak must have come from them. The Chief Public
Prosecutor personally supervised the course of the investigation
despite his close relationship with the victim. Also, Mr I.I.
discovered that two persons probably implicated in the murder had
fled the country with the help of the Chief Public Prosecutor. As
“punishment” for his probing into these facts, Mr I.I.
was later unlawfully ordered to retire.
The
Supreme Judicial Council heard evidence from other prosecutors who
also testified about an atmosphere of fear and submission in the
prosecution service, unlawful oral orders issued by high-ranking
prosecutors and repression against dissenters in the form of
deprivation of salary bonuses, transfers and threats.
Two
other persons who gave evidence to the Supreme Judicial Council did
not share these views.
Following
heated debates, during which divergent views were expressed by
members of the Council, on 18 December 2002 it adopted a decision in
which it stated, inter alia, that the Chief Public Prosecutor
had introduced an authoritarian style and unlawfully “punished”
prosecutors by transferring them or depriving them of salary bonuses,
and that an atmosphere of fear was paralysing the normal functioning
of the prosecution system. On the basis of these and other findings
concerning specific violations of the administrative rules, the
Council called on Mr F. to resign. The 25-member Council adopted the
decision by thirteen votes to nine with one abstention. The decision
was not legally binding, as at the relevant time the constitutional
grounds for termination of the Chief Public Prosecutor's appointment
were very limited (see paragraphs 128-131 below). Mr F. refused to
resign.
C. Mr Kolev's murder and the ensuing investigation
1. Mr Kolev's declarations that he feared for his life
In
his application to the Court, dated 17 December 2001, Mr Kolev
complained under Article 5 of the Convention about his detention
earlier that year. He stated that the violations of his rights were
the result of a merciless campaign against him orchestrated by the
Chief Public Prosecutor and that he had fears for his and his
family's safety.
Mr
Kolev repeatedly voiced in public and in letters to State
institutions his fear that he might be eliminated physically.
2. The murder and the authorities' first steps
On
28 December 2002 in the evening Mr Kolev was shot dead by an unknown
assailant in front of his home in Sofia.
The
police were alerted immediately by passers-by. Several police
officers and an investigator from the Sofia Investigation Service
arrived at the scene, searched the area for several hours and
interviewed passers-by.
At
the scene the police found and collected bullets and cartridges, a
revolver and a hand grenade which had not exploded.
The
Deputy Chief Public Prosecutor, the Interior Ministry Secretary and
other high-ranking officials visited the scene the same evening.
On
the same day an investigator from the Sofia Investigation Service
opened an investigation into the murder of Mr Kolev.
On
29 December the police and another investigator from the Sofia
Investigation Service searched the area again in daylight.
On
29 December 2002 the case was entrusted to an investigator from the
Sofia Investigation Service. On the same day the investigator ordered
ballistic and other expert reports and an autopsy.
The
autopsy carried out on 29 December revealed that Mr Kolev had
received eight shots, some of them in the head.
On
29 December the investigator interviewed twelve persons who had been
in the area at the time of the murder. Some of them had noticed two
to four men shortly before the shooting, but had not seen their
faces.
On
29 December the Deputy Chief Public Prosecutor appointed prosecutor
A.I., Head of Division at the Supreme Cassation Prosecution Office,
to supervise the investigation in the case. The case was registered
as under “special supervision” by that office.
On
30 December 2002 a senior officer of the national anti-terrorist
squad, Mr V.D., was shot and killed by an unknown assailant. In
statements they made later, the second applicant and other persons
stated that his murder was probably connected with Mr Kolev's murder,
since Mr V.D. had allegedly possessed information about Mr Kolev's
murderer.
3. Statements made immediately after the events
On
29 December 2002 Mr E.S., a former member of Parliament who had
previously accused the Chief Public Prosecutor of committing crimes,
appeared before the investigator as he wished to help with the murder
investigation. He had met Mr Kolev many times as both of them had
been interested in investigating the crimes allegedly committed by
the Chief Public Prosecutor. Their last meeting had been on 22 or 23
December 2002.
Mr
E.S. passed to the investigator information he had obtained from
Mr Kolev, with several supporting documents. In particular, he
stated that at their last meeting Mr Kolev had spoken about his
findings implicating the Chief Public Prosecutor in the murder of the
lawyer Mrs N.G. in February 2000. Mr Kolev had promised to put Mr
E.S. in contact with a fugitive who had been falsely charged with
that murder.
Mr
E.S. also stated that Mr Kolev, who had engaged for a certain period
in unlawful activities ordered by the Chief Public Prosecutor, had
later refused to continue and had started collecting evidence about
those activities. Owing to his mental disorder the Chief Public
Prosecutor constantly feared plots and considered as his enemy anyone
who criticised him or did not execute his orders. Thus, Mr Kolev had
been asked to open criminal proceedings on fabricated charges against
persons the Chief Public Prosecutor considered his enemies, or even
to commit murder. Among those “enemies” had been Mr V.M.,
a prosecutor at the Varna Appeals Prosecution Office and a former
candidate for the post of Chief Public Prosecutor, as well as
journalists who had revealed that the brother of the Chief Public
Prosecutor had been charged in Germany with illegal trading in coins.
Mr Kolev had told Mr E.S. that a number of high-ranking prosecutors
at the Supreme Cassation Prosecution Office and other persons spent
their time organising “revenge” against the “enemies”.
Mr Kolev had named Mr A.P., an officer of the national anti-terrorist
squad, as one of the Chief Public Prosecutor's “confidants”.
Mr A.P. had blackmailed a banker, Mr G.P.Ts., and had managed to
obtain large amounts of money from him. The banker had finally
complained but “in response” had been arrested on
fabricated charges and later a bomb had been found in his flat. Mr
E.S. submitted to the investigator a copy of a written statement made
by the banker in December 2000.
Mr
E.S. described in detail several more cases of alleged crimes
committed by Mr A.P. and the Chief Public Prosecutor, about which he
had learned from Mr Kolev. He gave the names of the persons involved.
Mr
E.S. also gave the name of an investigator who had told him that he
had been threatened by the Chief Public Prosecutor and who had
allegedly witnessed the latter's fits of insane rage. The
investigator had also learned that electronic files from the hard
drive of the computer found in the office of Mrs N.G., the lawyer
murdered in February 2000, had been deleted in the course of the
investigation because they had contained information implicating
prosecutors.
Mr
E.S. affirmed that Mr Kolev had told him that he feared for his life
and considered that the Chief Public Prosecutor had instructed Mr
A.P. to have him killed.
On
2 January 2003, a former trade union leader, Mr P.S., who had been
charged with criminal offences on allegedly fabricated grounds, made
public statements and also wrote to the investigation authorities. He
stated, inter alia, that he had had numerous conversations
with Mr Kolev, the last one having been on the day of his murder. Mr
Kolev had told him about his efforts to collect information
incriminating the Chief Public Prosecutor. Mr P.S. suggested
that the records of those conversations could be found, as he was
convinced that his and Mr Kolev's telephones had been tapped.
On
15 January 2003 the second applicant, Mr Kolev's wife, a prosecutor
from the Supreme Cassation Prosecution Office, made a public
statement addressed to the Supreme Judicial Council. A copy was also
sent to the investigator in the case. She accused Mr F., the Chief
Public Prosecutor, of having ordered her husband's murder, together
with Mr F.S. and Mr A.P. of the national anti-terrorist squad. In her
view, the Chief Public Prosecutor was suffering from a mental
disorder. Her late husband had refused to engage in unlawful acts
ordered by the Chief Public Prosecutor and had revealed the latter's
mental problems publicly, which had triggered a merciless campaign
against him. Mr Kolev had been arrested on fabricated charges and
several sets of criminal proceedings had been brought in 2001 and
2002 against him and his family members.
The
second applicant called on the Supreme Judicial Council to initiate
proceedings for the removal of the Chief Public Prosecutor from
office and to entrust the investigation of Mr Kolev's murder to
independent prosecutors. That was vitally necessary in her view,
having regard to the hierarchical structure of the prosecution
system, which allowed total control by the Chief Public Prosecutor,
and the atmosphere of fear which reigned among prosecutors and
investigators.
4. The investigation
On
2 January 2003 prosecutor A.I. appointed a team of five investigators
to work on the case. Three of them were from the Sofia Investigation
Service and the other two from the National Investigation Service.
In
the following days the experts appointed by the investigator
submitted their reports, describing in detail their findings and
conclusions. In particular, the shots that had killed Mr Kolev had
been fired at very close range, between 20 and 80 cm. The bullets
found in his body and at the scene had all been fired from the same
weapon, a 9 mm calibre handgun. Comparison with data kept by the
police had not linked the bullets with a weapon previously used to
commit another criminal offence. The revolver found next to Mr
Kolev's body had a different calibre. It could not be linked to
information about weapons used in criminal offences. The experts did
not find traces of powder on Mr Kolev's fingers or hand. The expert
who analysed the hand grenade noted that it was of a type used in the
army and the police and also considered that it had been placed next
to the body. It was further established that the hair taken from the
victim's clothes was Mr Kolev's hair.
On
6 January 2003 the second applicant, Mr Kolev's wife, appeared before
the investigator but refused to answer his questions and challenged
the independence of the investigation.
In
January 2003 the investigator searched Mr Kolev's office.
At
the beginning of February 2003 the investigator interviewed persons
who had seen Mr Kolev on 28 December 2002 and also obtained from the
police information about telephone calls made from or received by
Mr Kolev's home telephone on the day of the murder. The calls
were traced and the persons who had received them or made them
interviewed. One of the calls had been made from a mobile telephone
whose number was no longer valid and whose holder could not be
identified.
On
the basis of witness statements it was established that on the
evening of 28 December 2002 Mr Kolev had left his home intending to
buy food in a nearby shop. He had been shot on his way back from the
shop.
In
February 2003 the investigators questioned a man serving a prison
term who had allegedly told other persons that he had bribed Mr Kolev
in order to obtain release from prison. The man denied having said or
done so. Also in February 2003, a man who walked into a police
station and confessed to the murder of Mr Kolev was detained, but
released shortly after it was established that he suffered from a
mental disorder.
In
January and February 2003 several persons who had been passing in the
area at the time of the murder were questioned for a second time. The
police officer who had arrived first at the scene was also
questioned. A politician whose telephone number had been dialled from
Mr Kolev's home on the day of the murder was also questioned.
The
investigator also questioned a journalist who had known Mr Kolev.
The journalist stated that Mr Kolev had shared his fears with him,
stating that Mr F., the Chief Public Prosecutor, and two senior
officers of the national anti-terrorist squad – Mr A.P. and Mr
F.S. – wanted to liquidate him. The journalist further stated
that Mr F., the Chief Public Prosecutor, suffered from a mental
disorder and that guards from the National Guard Service and the
Sofia chief of police could testify to that.
In
March 2003 the investigators questioned another journalist, who had
published a book based on conversations with the notorious boss of a
criminal gang, Mr I.K. According to the journalist, Mr I.K. had told
her that Mr Kolev had worked for another criminal gang. In 1995
the two gangs had clashed over a consignment of illegally imported
cigarettes and Mr Kolev had tried to use his position to have Mr I.K.
moved to another detention facility, allegedly intending to use the
opportunity to have him killed. The transfer had been prevented by
two investigators of the National Investigation Service.
5. Suspension of the investigation, appeals and
additional investigative measures
On
26 September 2003 the investigator reported that it had not been
possible to identify the perpetrator, and proposed that the
proceedings be stayed. He transmitted the file to Mr Ts.I. from the
Supreme Cassation Prosecution Office since the case was under
“special supervision” by that office. The file was then
transmitted to the Sofia Prosecutor's Office, which decided on 8
October 2003 to stay the proceedings.
Mr
Kolev's relatives, including the second applicant, appealed.
On
16 June 2004 the Sofia City Court quashed the decision to stay the
proceedings and instructed the prosecuting authorities to take
additional measures. That decision was upheld by the Sofia Appeal
Court on 12 July 2004. The courts found that the investigation had
not taken all the measures that could lead to identifying the
perpetrator. In particular, Mr Kolev's wife, the second applicant,
had not been questioned. Having regard to her statement addressed to
the Supreme Judicial Council, it was important to question her and
then carry out further investigative measures to verify her
allegations. In addition, the investigator had not attempted to
establish whether there might be a link between Mr Kolev's murder and
persons affected by high-profile cases he had worked on. The courts
also noted that contrary to the relevant procedural rules, the case
file did not contain information about any efforts on the part of the
investigator to continue his inquiry after the proceedings had been
stayed and report periodically. The courts also considered that
ballistic and other experts should try to establish further details.
On
27 July 2004 the Sofia Prosecutor's Office instructed the
investigator to undertake further investigations.
On
25 August 2004 the second and third applicants were questioned. They
stated that they would not testify in the absence of their lawyer.
The second applicant was summoned again and appeared on 21 September
2004 but refused to discuss the case, stating that the case should be
investigated independently by the National Investigation Service.
In
September 2004 the experts appointed to clarify details about the
shooting submitted their report.
The
investigator also requested and received from the Supreme
Administrative Prosecution Office a list of cases of “public
interest” on which Mr Kolev had worked after his reinstatement
in 2002.
On
13 October 2004 the investigation was suspended by a decision of the
Sofia Prosecutor's Office on the ground that it had proved impossible
to identify the perpetrator.
The
applicants appealed. They stated, inter alia, that the
investigation was fully under the control of the Chief Public
Prosecutor and gave the authorities' failure to secure the
independence of the investigation as their reason for refusing to
testify.
By
decisions of 13 July and 22 August 2005 the Sofia City Court and the
Sofia Court of Appeal quashed the order staying the investigation and
instructed the prosecuting authorities to undertake further
investigations.
The
courts stated that the applicants were not entitled to refuse to
testify, regardless of their fears that the investigation was not
independent. Therefore, the applicants should be summoned again and
questioned. The applicants' request for Mr F., the Chief Public
Prosecutor, and several high ranking prosecutors to be
questioned should be considered afterwards. The courts also
instructed the investigation authorities to collect information about
cases that Mr Kolev had handled at the Supreme Cassation Prosecution
Office, where he had worked earlier in his career.
In
so far as the applicants had insisted that the investigation should
be handled by the National Investigation Service, which in their view
was more independent, the courts stated that that request was
inadmissible. The choice of investigators was at the discretion of
the prosecutor supervising the case. The courts lacked the power to
control that choice or to examine the applicant's allegations, namely
that the investigation was not independent owing to the hierarchical
structure of the prosecution system and the personal involvement of
the Chief Public Prosecutor in the case.
The
second applicant was questioned on 19 October 2005. She made the same
statements as those contained in her open letter of January 2003 to
the Supreme Judicial Council (see paragraph 82 above). She stated her
conviction that her husband had been killed because he had known too
much about the Chief Public Prosecutor and had been working to secure
his removal from office. Following the appointment of Mr F. as Chief
Public Prosecutor, Mr Kolev had initially obeyed some of his unlawful
orders, such as to put pressure on Mr V.M., a prosecutor from the
Varna Appeals Prosecution Office. However, at some point Mr F. had
asked Mr Kolev to kill Mr V.M. and he had refused. He had later
refused to obey other orders and had thus become an “enemy”
in Mr F.'s eyes. The Chief Public Prosecutor had first tried to
intimidate him and silence him through dismissal and fabricated
criminal charges and had later decided to eliminate him physically.
Mrs
Koleva also stated that she had herself witnessed the atmosphere of
fear and paranoia created by the Chief Public Prosecutor among her
colleagues. She insisted that all high-ranking prosecutors should be
questioned, including the Chief Public Prosecutor. She also requested
the questioning of Mr F.S., the head of the national anti-terrorist
squad.
Mrs
Koleva also stated that the murder, two days after Mr Kolev's death,
of Mr V.D., a senior officer at the national anti-terrorist squad
with whom Mr Kolev had been in contact in the context of his private
inquiry, had not been a coincidence. Mrs Koleva also noted that Mr
Ts.I. and Mr P., the prosecutors who had participated in planting
drugs and arresting Mr Kolev on fabricated charges in June 2001,
had been promoted soon thereafter and that the arrest had been
effected by officers of the national anti-terrorist squad loyal to
the Chief Public Prosecutor.
In
October 2005 the investigator questioned three persons who had been
Mr Kolev's lawyers. One of them, the former Chief Public Prosecutor,
Mr I.T., assessed as absurd the suggestion that Mr F., the Chief
Public Prosecutor, had been responsible for Mr Kolev's death.
In
November 2005 the investigator questioned Mr Kolev's son, who
confirmed his mother's views. He also stated that his father had
received threats by telephone. He stated that the investigation
should look for a link between his father's murder and the murder,
committed only two days after that, of Mr V.D. of the anti-terrorist
squad.
In
November 2005 the investigator also questioned Mr V.M., a prosecutor
from the Varna Appeals Prosecution Office and a former candidate for
the post of Chief Public Prosecutor (see paragraph 56 above). He
described in detail events dating from 2000, when Mr Kolev had asked
him to resign and threatened him with proceedings, allegedly on the
instructions of the Chief Public Prosecutor. Mr V.M. had refused,
whereupon he had been transferred to a small town by order of the
Chief Public Prosecutor. Mr V.M.'s complaint against the transfer,
examined by the Supreme Judicial Council in 2000, had been widely
publicised. Shortly after that, on 24 April 2000, his wife's notary
office had been set on fire. On 25 May 2000 a bomb had exploded
in the same office. Mr V.M. considered that those attacks had been
part of the Chief Public Prosecutor's campaign against him. Mr V.M.
stated that later, in 2001, Mr Kolev had contacted him and spoken
openly about his conflict with the Chief Public Prosecutor. He had
shared his fears, telling him that Mr A.P. of the anti-terrorist
squad was probably organising an attempt on his life.
In
November 2005 the investigator questioned another prosecutor, who
stated that he knew Mr Kolev only vaguely.
On
17 February 2006 the Sofia City Prosecutor's Office ordered the
investigation to be stayed on the grounds that the identity of the
perpetrator could not be established.
In
February 2006 the seven-year term of Mr F. as Chief Public Prosecutor
expired.
On
11 and 17 October 2006, the second and third applicants, Mr Kolev's
wife and son, were questioned again. They reiterated the facts on the
basis of which they believed that Mr F., the Chief Public Prosecutor,
and persons close to him, such as Mr F.S. and Mr A.P. of the national
anti-terrorist squad, had been involved in Mr Kolev's murder. They
also gave further details about criminal acts allegedly committed by
the former Chief Public Prosecutor.
On
unspecified dates after February 2006 the investigators questioned Mr
F.S. and Mr A.P. of the national anti-terrorist squad. They also
questioned five other officers of the same service who had
participated in Mr Kolev's arrest on 20 June 2001. The investigators
also received information from the Sofia police that Mr G.G., one of
those five officers of the national anti-terrorist squad, had been
named as the murderer by a “voluntary informant” who had
refused, however, to disclose his name and would not testify, even as
a protected witness. On 24 September 2008 a prosecutor of the Sofia
Prosecution Office ordered the suspension of the investigation,
considering that there was insufficient evidence to bring charges in
relation to Mr Kolev's murder.
II. RELEVANT DOMESTIC LAW
A. Detention without a court order
Articles
202 (1) and 203 of the Code of Criminal Procedure 1974 (“CCP
1974”), as in force at the relevant time, provided that a
suspect might be held in custody without official charges for up to
72 hours by a decision of a prosecutor.
Article
152a of the CCP 1974 provided that a person officially charged with
having committed a criminal offence might be detained provisionally
for up to 72 hours by a decision of a prosecutor. Within that
time-limit the accused person had to be brought before a court.
There
is no reported domestic case-law on the question whether or not the
72-hour detention periods under Articles 202 and 152a may be
consecutive.
B. Processing of appeals against remand in custody
Under
Article 152b of the CCP 1974, as in force at the relevant time,
appeals against remand in custody must be submitted to the relevant
investigator or prosecutor, who is under a duty to transmit them to
the competent court “immediately”. The court must hold an
oral hearing in the matter within three days of receipt of the
appeal.
C. Prosecutors' immunity and procedure for bringing
criminal charges against prosecutors
Until
September 2003, all judicial officers, including prosecutors, enjoyed
immunity from prosecution. According to Article 132 of the
Constitution, as in force until September 2003, read in conjunction
with its Article 70, criminal proceedings against prosecutors could
only be instituted if their immunity had been lifted by decision of
the Supreme Judicial Council. The Judiciary Act 1994 (section
27(1)(6) and section 134(3)) provided that the power to make
proposals to the Supreme Judicial Council for the lifting of a
judicial officer's immunity was vested in the Chief Public
Prosecutor.
Since
immunity could only be lifted on a proposal by the Chief Public
Prosecutor, which meant that it was not possible to lift the immunity
of the Chief Public Prosecutor against his will, in 1998 Parliament
amended the Judiciary Act 1994 empowering the Presidents of the
Supreme Court of Cassation and the Supreme Administrative Court and
the Minister of Justice to submit to the Supreme Judicial Council
proposals to lift the immunity of any judicial officer. On 14 January
1999 the Constitutional Court struck down the amendment finding that
it violated Article 127 (1) of the Constitution, which vested in the
prosecuting authorities the exclusive power to bring charges and
maintain the accusation against suspected offenders (реш.
№ 1 по к.д. № 34/1998).
In
June 2002 Parliament adopted another amendment aimed at remedying the
deficiency in the law. During the debates on the amendment, several
members of Parliament considered that it was unconstitutional in view
of the 1999 judgment of the Constitutional Court and expressed the
view that the deficiency had its origins in the text of the
Constitution and that it could only be remedied by amending the
Constitution. Parliament nevertheless adopted a text according to
which one fifth of the members of the Supreme Judicial Council could
propose to the full Council that the immunity of any judicial officer
be lifted.
On
16 December 2002 the Constitutional Court set aside the amendment
(реш. № 13 по
к.д. № 17/2002) referring to the reasons
given in its 1999 judgment. The
Constitutional Court did not comment on the question whether the
resulting impossibility of lifting the immunity of the Chief Public
Prosecutor was compatible with the constitutional principle of
legality and the fundamental rights protected by the Constitution.
The
deficiency was remedied with effect from 30 September 2003 when
Parliament amended the Constitution, introducing, under
Article 132 (4), the possibility for one fifth of the
members of the Supreme Judicial Council to seek a decision by that
Council authorising the bringing of charges and the detention of any
judicial officer. Furthermore, Article 132 of the Constitution
as amended no longer used the term “immunity” and limited
the number of cases in which the authorisation of the Supreme
Judicial Council was needed. According to the amended text, such
prior authorisation was only necessary for the bringing of charges
against judges and prosecutors where the charges concerned criminal
offences allegedly committed by them in the exercise of their
functions. Such authorisation was also necessary for detention orders
against judges and prosecutors, regardless of the nature of the
charges underlying the detention request. The Judiciary Act was
amended with effect from 9 April 2004 to reflect these new
constitutional provisions.
Following
the above-mentioned amendments, in theory any prosecutor or
investigator could bring charges against the Chief Public Prosecutor
without prior authorisation in respect of a criminal offence
unrelated to the exercise of the latter's functions. However, the
Chief Public Prosecutor could set aside any such decision taken by a
subordinate prosecutor or investigator. Also, the Supreme Judicial
Council's authorisation remained necessary for the Chief Public
Prosecutor to be remanded in custody.
By
further amendment of the Constitution in February 2007 all the
procedural limitations specific to criminal proceedings against
judicial officers were abolished. The new Judiciary Act 2007 reflects
this amendment in its provisions. Since February 2007, in theory any
prosecutor or investigator has the power, without prior
authorisation, to bring charges against the Chief Public Prosecutor
or request the relevant court to order his pre-trial detention where
there is sufficient information that he may have committed a criminal
offence. As mentioned above, however, the Chief Public Prosecutor may
set aside any such decision taken by a subordinate prosecutor or
investigator.
D. The prosecution system
1. Appointment, tenure, dismissal and temporary removal
from office of judicial officers in general and the Chief Public
Prosecutor in particular.
Under
the 1991 Constitution, all prosecutors have the status of judicial
officers (магистрати)
and are thus part of the judicial system. After three years of
service they obtain tenure. Appointment and dismissal of judicial
officers is only possible if decided upon by the Supreme Judicial
Council (see paragraphs 136 and 137 below). The Chief Public
Prosecutor, who is also a judicial officer, is appointed by the
President of Bulgaria on a proposal by the Supreme Judicial Council
for one non-renewable seven-year term of office. Before the expiry of
his term of office, the same grounds for dismissal apply as for all
other judicial officers. He can be dismissed by the President of
Bulgaria on a proposal by the Supreme Judicial Council.
Under
Article 129 of the 1991 Constitution, as in force until 30 September
2003, judicial officers with tenure, including prosecutors, could
only be dismissed upon retirement, in cases of permanent physical
incapacity or where they had been sentenced to deprivation of liberty
following a final conviction on charges concerning a wilfully
committed offence.
Since
30 September 2003, when the Constitution was amended, dismissal is
also possible on grounds of “a serious breach of, or systematic
non-compliance with, the judicial officer's duties” and in
cases of “acts harming the stature of the judiciary”. In
2006 Parliament adopted an amendment to the Constitution according to
which not only the Supreme Judicial Council but also two thirds of
the members of Parliament could propose to the President to dismiss
the Chief Public Prosecutor or the Presidents of the two Supreme
Courts on the grounds mentioned above. On 13 September 2006 the
Constitutional Court struck down the amendment ruling that it
purported to change the balance between the branches of power,
whereas the Constitution required that such changes should be adopted
by a Grand National Assembly. Several dissenting justices considered
that the amendment was indispensable as the existing legal regime did
not offer sufficient safeguards against unlawful acts committed by
high-ranking prosecutors or judges. In her dissenting opinion, one of
the justices noted the following:
“Having regard to the fact that the Supreme
Judicial Council includes members who are subordinate to the [Chief
Public Prosecutor and the Presidents of the two Supreme Courts] or
are in friendly relations with them, it is very likely that the
Supreme Judicial Council would not be able to form a majority in
favour of the dismissal of those three high-ranking judicial officers
... despite breaches of the law committed by them ...
Prior to [the impugned constitutional amendment] the
domestic legal order was helpless in such situations and the unlawful
behaviour of judicial officers had to be endured over long periods.
Tolerating lack of control and unaccountability is
contrary to the spirit of the Constitution. [Unfortunately], as a
consequence of [the majority's decision in the case under
examination] the control over the activities of high-ranking judicial
officers will remain ineffective, since it is exercised by themselves
and their subordinates.”
Under
the Judiciary Act 1994 (section 40) and the Judiciary Act 2007
(section 230), the Supreme Judicial Council has the power to remove
temporarily from office any judicial officer against whom criminal
charges have been brought.
2. Powers of the Chief Public Prosecutor
The
prosecution system in Bulgaria is centralised. All prosecutors are
under the authority of and report to the Chief Public Prosecutor
(section 112 of the Judiciary Act 1994, in force until 2007, and
section 136 of the Judiciary Act 2007).
The
Chief Public Prosecutor, as the highest prosecutor in the hierarchy,
has the power to issue binding orders concerning the work of every
prosecutor, including work on particular cases, or to take over a
case handled by another prosecutor (section 116 of the Judiciary Act
1994, in force until 2007, and sections 139 and 143 of the Judiciary
Act 2007).
The
Chief Public Prosecutor has the power to submit to the Supreme
Judicial Council proposals for the promotion, dismissal or
disciplinary punishment of prosecutors (sections 27, 30 and 172 of
the Judiciary Act 1994, in force until 2007, and section 38 and 312
of the Judiciary Act 2007).
Under
the CCP 1974, in force until 2006, the prosecutor controlled the
investigation (Article 48 (3) of the CCP 1974). This included the
power to give specific instructions, overrule the investigator or
take over the entire investigation (Article 176 (1) of the same
Code). The CCP 2006 reinforced the prosecutors' control and direct
participation in the investigation of criminal offences. Furthermore,
as a result of constitutional and legislative amendments of 2006,
2007 and 2009, the investigation service was integrated into the
prosecution system and is now administratively subordinate to the
Chief Public Prosecutor (Articles 127 and 128 of the Constitution and
sections 136, 148-153 of the Judiciary Act 2007). In 2009 the
Constitutional Court rejected a motion to declare unconstitutional
the 2009 amendments to the Judiciary Act which provided for such
subordination.
E. The Supreme Judicial Council
The
Supreme Judicial Council has 25 members. The Presidents of the
Supreme Court of Cassation and of the Supreme Administrative Court
and the Chief Public Prosecutor are members ex officio.
Parliament elects eleven members, among whom there may be judges,
prosecutors, investigators and lawyers. The remaining eleven members
are elected at separate delegates' assemblies of judges (electing six
members), prosecutors (electing four members) and investigators
(electing one member) (Article 130 of the Constitution, sections
17-20 of the Judiciary Act 1994, in force until 2007 and sections 17
and 20-26 of the Judiciary Act 2007).
Decisions
concerning, inter alia, the dismissal of a judicial officer or
a proposal to the President of Bulgaria to dismiss the Chief Public
Prosecutor must be taken by the members of the Supreme Judicial
Council by secret ballot. Until September 2003, when Article 131 of
the Constitution was amended, that was not the case in respect of
decisions concerning the lifting of judicial officers' immunity from
prosecution, which were taken by an open voting procedure. Between
September 2003 and February 2007 those decisions had to be taken by
secret ballot as well. Since February 2007 the Supreme Judicial
Council's authorisation is no longer necessary for the bringing of
charges of any kind against a judicial officer (see paragraph 127
above).
II. COMPARATIVE LAW AND OTHER RELEVANT MATERIAL
The
following paragraphs describe the relevant aspects of several member
States' legal systems, with the emphasis on the guarantees that exist
to secure the effective and independent investigation of cases
involving suspicion against high-ranking prosecutors. The report was
prepared on the basis of an overview of the legal systems of Croatia,
Cyprus, Estonia, France, Germany, Greece, Ireland, Italy, Malta,
Russia, Spain, Sweden, Switzerland, the former Yugoslav Republic of
Macedonia and the United Kingdom.
As
regards the status of high-ranking prosecutors, in many jurisdictions
they are part of the executive branch of the government, within which
they enjoy functional independence. In a few countries, such as Italy
and Greece, they are considered as part of the judiciary.
In
three countries special permission is required for the institution of
criminal proceeding against the Chief Public Prosecutor. These are
Croatia (from Parliament), Russia (from a panel of three Supreme
Court judges on a proposal by the President of Russia) and
Switzerland (from the Federal Department of Justice and Police). In
Switzerland, authorisation can only be refused if the proceedings
concern petty offences and it is estimated that a disciplinary
sanction would be sufficient. The decision not to grant authorisation
is subject to appeal before the Federal Court.
In
all other countries there are no such specific procedural obstacles
to bringing charges against the highest-ranking prosecutors.
The
prosecution systems of the countries surveyed are structured
hierarchically with higher-ranking prosecutors having the power to
give orders and instructions to the lower-ranking prosecutors.
Despite this structure, a number of safeguards are in place in the
legal systems of member States to ensure the effectiveness and
independence of the organs in charge of criminal investigations in
respect of high-ranking prosecutors. These safeguards include:
– transfer
of the case to another entity within or outside the prosecution
system;
– special
investigation procedure in cases involving suspicion against
high-ranking prosecutors;
– suspension
of the prosecutor under suspicion from his duties (in the case of the
highest-ranking prosecutor this decision would be made by the
political bodies in charge of his appointment); and
– general
safeguards such as guarantees ensuring functional independence of
prosecutors from their hierarchy and judicial control of the acts of
the prosecution service.
In
particular, in Sweden, a special unit within the prosecution system,
the national police-related crimes unit, handles the investigation
and subsequent indictment of prosecutors and police officers. The
prosecutor handling the investigation must have, if this is possible,
a higher rank than the one being investigated. If a head prosecutor
or his deputy is suspected of having committed a crime the case is
handled by the Prosecutor-General. The Parliamentary Ombudsman or the
Chancellor of Justice, two independent bodies outside the prosecution
system, will carry out the investigation if the Prosecutor-General is
concerned.
In
Malta the inquiry may be assigned to an ad hoc body in cases
concerning the conduct of public officers or of officers or servants
of a statutory body.
According
to the law in Spain, criminal proceedings against the highest-ranking
prosecutors (Fiscal General del Estado, Fiscales de Sala del
Tribunal Supremo) fall within the competence of the Criminal
Section of the Supreme Court. In criminal proceedings against judges,
judicial officers and prosecutors in general for crimes committed in
the exercise of their functions, the competence lies with the
Criminal Section of the High Court of each region. In both these
cases the investigating judge is chosen from among the members of the
section.
The
Code of Criminal Procedure in Italy has introduced a special
mechanism for determining the competent judge in cases where judges
or prosecutors are parties, with the aim of ensuring the autonomy of
the judge's decision in cases in which his or her colleagues are
involved.
In
a number of other countries, the investigation in cases involving
suspicion against high-ranking prosecutors is carried out following
the ordinary criminal procedure (Cyprus, England and Wales, Estonia,
France, Germany, Greece, Ireland and the Former Yugoslav Republic of
Macedonia). Nonetheless, there exist rules governing the distribution
of cases aiming at ensuring independence. In Germany, in cases where
the competent public prosecutor is subordinate to the public
prosecutor under suspicion, the case may be entrusted to a prosecutor
who is not bound by the instructions of the public prosecutor under
suspicion. Moreover, by agreement between the Länder, the
investigation can be taken over by another prosecution entity which
has no personal connections to the prosecutor under suspicion and
which is neither his subordinate nor his superior in the hierarchy.
General
procedural safeguards applicable in most countries include provisions
guaranteeing the institutional or functional independence of public
prosecutors, whether they are members of the judiciary or civil
servants. In England and Wales the institution of public prosecution
is based on a model described by academics as that of institutional
dependence and functional independence. In Ireland, prosecutors are
entirely independent in the performance of their functions.
Prosecutors
are protected from undue pressure through additional safeguards such
as the obligation to prosecute all offences except petty offences
(Germany, Switzerland, Italy, Spain and Greece). In England and Wales
and France, which recognise the principle of discretionary
prosecution, importance is attached to the transparency of official
guidelines.
Many
of the countries studied (Cyprus, Estonia, Germany, Greece, Ireland,
Italy, the Former Yugoslav Republic of Macedonia and Spain) provide
for the transfer or suspension of public prosecutors during the
course of criminal proceedings against them.
Finally,
in the legal system of England and Wales, any prosecutor's decision
made “corruptly” or considered as grossly unreasonable
can be challenged by judicial review or through the procedure of
abuse of process. In Switzerland all procedural acts of the Federal
Public Prosecutor are subject to appeal before the Federal Criminal
Court. Judicial control of the acts of the prosecution service is an
important safeguard also in Germany. If necessary, this control can
be transferred to another court outside the radius of action of the
prosecution service concerned.
The
Council of Europe Commissioner for Human Rights has issued an Opinion
concerning independent and effective determination of complaints
against the police, published on 12 March 2009 (document
CommDH(2009)4). The document describes as best practice in that area
the operation of an independent complaints body, with responsibility
for the investigation of complaints which may concern Articles 2 or 3
of the Convention. The Commissioner further noted that in some member
states, in order to address concerns about lack of independence of
prosecutors when they work on cases against the police with whom they
might have a close working relationship, specialist criminal
prosecution authorities with their own investigators had been
established. The example of ombudsman institutions which possess
powers to bring charges before the court on their own authority was
cited in this respect.
THE LAW
I. PRELIMINARY ISSUE
The
Court notes at the outset that the first applicant died after lodging
the present application and that his wife, daughter and son have
expressed their wish to continue the proceedings before the Court and
have submitted additional complaints (see paragraph 1 above). It has
not been disputed that the applicant's wife and children are entitled
to pursue the application on his behalf and the Court sees no reason
to hold otherwise (see Kozimor v. Poland, no. 10816/02, §§
25-29, 12 April 2007, and Lukanov v. Bulgaria, 20
March 1997, § 35, Reports of Judgments and Decisions
1997 II). For reasons of convenience, the text of this
judgment will continue to refer to Mr Kolev as an “applicant”,
although his wife and children are today to be regarded as having
this status.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
Court will deal with these complaints in the chronological order of
the events complained of.
A. Alleged violation of Article 5 § 3 (brought
promptly before a judge)
Mr
Kolev complained that he was brought before a judge five days and
eight hours after his arrest on 20 June 2001, in violation of Article
5 § 3 of the Convention. This provision reads, in so far as
relevant:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power ...”
Mr
Kolev submitted that it was unclear whether the three-day period of
detention under Articles 202 and 203 CCP and the three-day period
under Article 152a CCP could be applied consecutively but averred
that the long delay before he was brought before a judge was in
violation of the Convention and that the relevant domestic law did
not provide sufficient guarantees against such violations occurring.
He also argued that the delay in bringing him before a judge was part
of a series of arbitrary actions taken against him by order of the
Chief Public Prosecutor.
The
Government submitted that under domestic law it was lawful to keep a
suspect in detention for up to six days without bringing him before a
judge. Under Articles 202 and 203 CCP 1974, a suspect could be
detained for up to three days without charge. If no charges were
brought before the expiry of that period, the suspect had to be
released. However, Mr Kolev had been charged on the third day of his
detention. Thereafter, he had been detained on different grounds,
namely under Article 152a of the CCP 1974. Detention under that
provision could last for up to 72 hours. Mr Kolev was brought before
a judge on 25 June 2001, before the expiry of the second 72 hour
period.
The
Court observes that Article 5 § 3 requires that an arrested
individual be brought promptly before a judge or judicial officer,
the purpose of this guarantee being prevention of ill-treatment and
unjustified interference with individual liberty. While promptness
has to be assessed in each case according to its special features
(see, among others, Aquilina v. Malta, [GC], no.
25642/94, § 48, ECHR 1999 III), the strict time constraint
imposed by this requirement of Article 5 § 3 leaves little
flexibility in interpretation, otherwise there would be a serious
weakening of a procedural guarantee to the detriment of the
individual and the risk of impairing the very essence of the right
protected by this provision (see McKay v. the United Kingdom [GC],
no. 543/03, § 33, ECHR 2006 X).
In
its case-law, the Court has found that even in the context of
terrorism a period of four days and six hours between the arrest and
the presentation of the arrested person before a judge is excessive
and violates Article 5 § 3 (see Brogan and Others v. the
United Kingdom, 29 November 1988, § 62, Series A no. 145 B,
and Günay and Others v. Turkey, no. 31850/96, §§
20-23, 27 September 2001).
In
the case of Kandzhov v. Bulgaria (no. 68294/01, §§
65-67, 6 November 2008), the Court found that a period of three
days and twenty three hours violated Article 5 § 3 of the
Convention, noting in particular that Mr Kandzhov had been arrested
on charges of a minor non-violent offence and that without a valid
reason the prosecutors had awaited the very last moment when the
relevant period of detention under domestic law had been about to
expire (ibid.).
In
the present case the Government have not argued that it was not
possible to bring Mr Kolev before a judge earlier than five days and
eight hours after his arrest. The prosecutor's order of 23 June 2001
prolonging Mr Kolev's detention for a second 72-hour period did not
explain why it had not been possible to bring him before a judge
between 20 and 23 June 2001 and did not even mention the fact that he
had already been in detention for 72 hours (see paragraphs 30-35
above).
Having
regard to the above and the particular features of the present case,
the Court considers that by delaying bringing Mr Kolev before a judge
for five days and eight hours without any reason, the prosecutors
committed an arbitrary act incompatible with their duties under
Article 5 § 3 of the Convention.
As
in previous cases, the Court reiterates that what is at stake here is
the protection of the individual against arbitrary interferences by
the State with his right to liberty. Prompt judicial control is an
essential feature of the guarantee embodied in Article 5 § 3,
which is intended to minimise the risk of arbitrariness and to secure
the rule of law, one of the fundamental principles of a democratic
society (see Brogan and Others, cited above, § 58,
and Aksoy v. Turkey, 18 December 1996, § 76, Reports
1996-VI).
The
Court observes that Bulgarian law either gave blanket authorisation
for (see paragraph 157 above) or did not clearly prohibit consecutive
periods of police or prosecutor-ordered detention before an arrested
person was brought before a judge (twenty-four hours in police
detention, seventy-two hours' detention under Article 202 CCP 1974
and seventy two hours' detention under Article 152a CCP 1974) (see
paragraphs 117-119, 157 and 158 above). This deficiency in the
relevant law resulted in unacceptable delays incompatible with
Article 5 § 3, as seen in the present case and in the case of
Kandzhov (cited above).
In
the present case the Court therefore concludes that there has been a
violation of Article 5 § 3 of the Convention.
B. Alleged violations of Article 5 §§ 1 and 3
in respect of the alleged unlawfulness and arbitrary nature of Mr
Kolev's deprivation of liberty
Mr
Kolev complained that his deprivation of liberty in 2001 had been
unlawful and arbitrary and that it had been excessively lengthy. He
relied on Article 5 §§ 1 and 3 of the Convention, which
reads, in so far as relevant:
“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; ...
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article ... shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.”
1. The parties' submissions
The
applicants submitted that Mr Kolev had been deprived of his liberty
on the basis of fabricated evidence and that there had not therefore
been a reasonable suspicion that he had committed an offence. The
drugs and the firearm allegedly found on his arrest had been planted
by prosecutors. Mr Kolev's fingerprints had not been found on them.
Mr Kolev stated that his deprivation of liberty had been arbitrary
and constituted a gross violation of Article 5 and the principles
underlying the Convention, as it had been the result of a criminal
campaign against him on the part of the Chief Public Prosecutor. The
applicants stressed that since high-ranking prosecutors never took
part in arrests and searches, the participation of two such
prosecutors in Mr Kolev's arrest had been highly suspicious. One of
them, Mr Ts.I., had been the head of the investigation department and
reported directly to the Chief Public Prosecutor. His partiality had
been clearly exposed by the fact that on 21 June 2001 he had
threatened Mr Kolev's lawyer, but that incident had never been
investigated.
The
applicants submitted that the unlawfulness of Mr Kolev's deprivation
of liberty also stemmed from the fact that at the relevant time he
had enjoyed immunity, which could only be lifted by a decision of the
Supreme Judicial Council.
The
applicants further maintained that Mr Kolev's detention had not been
justified under Article 5 § 3. There had been no danger that he
would abscond, as evidenced by Mr Kolev's public statements and the
fact that he had remained at the authorities' disposal at all
relevant times.
In
the Government's view, the domestic courts had established that there
had been a reasonable suspicion against Mr Kolev. Therefore, his
detention had been justified.
As
far as Mr Kolev's immunity from prosecution was concerned, the
Government's position was that at the time of Mr Kolev's arrest and
detention the question whether or not he continued to enjoy immunity
pending the examination of his appeal against his dismissal had not
been settled in domestic case-law. In June and July 2001 the Sofia
City Court and the Sofia Court of Appeal had considered that the
effect of the dismissal order of January 2001 had been to terminate
Mr Kolev's appointment and remove his immunity with immediate effect,
regardless of any pending appeal proceedings. Eventually, the
opposite view had prevailed and the criminal proceedings against Mr
Kolev had been terminated. However, what was decisive in the present
case was the fact that the authorities had not acted in bad faith.
Therefore, it could not be said that Mr Kolev's arrest and detention
had been unlawful under domestic law.
2. The Court's assessment
The
Court points out at the outset that it has declared the above
complaints admissible only in so far as they concerned Mr Kolev's
deprivation of liberty between 13 September and 29 November 2001,
when he was under house arrest. While the parties' arguments and the
relevant facts concern both this period and Mr Kolev's deprivation of
liberty before 13 September 2001 without drawing a distinction, the
Court will limit its findings to the period between 13 September and
29 November 2001.
(a) Alleged unlawfulness (Article 5 §
1)
It
is well established in the Court's case-law that any deprivation of
liberty must, in addition to falling within one of the exceptions set
out in sub-paragraphs (a)-(f), be “lawful”. Where the
“lawfulness” of detention is in issue, including the
question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural
rules of national law. Compliance with national law is not, however,
sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness. Arbitrariness may take
different forms but it is clear that detention will be arbitrary
where, despite complying with the letter of national law, there has
been an element of bad faith or deception on the part of the
authorities (see Saadi v. the United Kingdom [GC], no.
13229/03, § 67, ECHR 2008 ...; Bozano v. France,
18 December 1986, Series A no. 111; and Čonka v. Belgium,
no. 51564/99, ECHR 2002 I).
“Lawfulness”
also refers to the quality of the law in question, requiring that it
should be foreseeable as to its effects (see Amuur v. France,
25 June 1996, § 50, Reports 1996-III). Where this aspect
of the lawfulness of deprivation of liberty is disputed, the Court
must ascertain whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein. In matters concerning deprivation of liberty it is
particularly important that the general principle of legal certainty
be satisfied. It is therefore essential that the conditions for
deprivation of liberty under domestic law be clearly defined and that
the law itself be foreseeable in its application (see Baranowski
v. Poland, no. 28358/95, §§ 51 and 52, ECHR
2000 III, with further references).
The
Court observes that by a final judgment of 30 April 2002 the Supreme
Court of Cassation established that the criminal proceedings against
Mr Kolev had been inadmissible at the outset as he had enjoyed
immunity from prosecution at all the relevant times (see paragraphs
48 and 49 above). As the Court noted in its admissibility
decision in the present case, for all legal purposes that was an
acknowledgment that Mr Kolev's deprivation of liberty had been
unlawful under domestic law.
It
is true that not every fault discovered in a detention order renders
the underlying detention as such unlawful for the purposes of Article
5 § 1. A period of detention is, in principle, lawful if it is
based on a court order. A subsequent finding of a superior domestic
court that a lower court erred under domestic law in making the order
will not necessarily retrospectively affect the validity of the
intervening period of detention (see Mooren v. Germany
[GC], no. 11364/03, § 74, 9 July
2009).
In
the present case, however, the flaw identified in Mr Kolev's
detention order can fairly be described as a “gross and obvious
irregularity” (ibid., § 75), given that domestic law
prohibited in absolute terms the institution of criminal proceedings
and the detention of persons enjoying immunity from prosecution (see
paragraphs 48, 49 and 121 above). The detention order was therefore
issued in excess of jurisdiction and was thus invalid and as such
contrary to Article 5 § 1.
The
Court is not convinced by the Government's argument that the domestic
case-law had not been settled at the time of Mr Kolev's deprivation
of liberty and that it had been unclear whether dismissal from office
removed immunity with immediate effect or only if the order was
upheld on appeal. In the present case, a relevant consideration is
the fact that the unlawfulness of Mr Kolev's dismissal was flagrant
and obvious – he was ordered to retire despite the fact that he
had not reached retirement age and had not requested early retirement
(see paragraphs 8-12 above). In any event, if it is true that in
2001, ten years after the adoption of Bulgaria's Constitution in 1991
and nine years after the Convention's entry into force in respect of
Bulgaria in 1992, domestic law had not yet been settled on the issue
mentioned by the Government, the Court considers that this absence of
clarity can be seen in itself as a failure by the State authorities
to comply with their duties under Article 5 § 1 of the
Convention. These duties include an obligation to secure, in
legislation and case-law in matters concerning deprivation of
liberty, a high level of legal certainty, clarity and foreseeability
of the law (see the case-law cited in paragraph 174 above). A lack of
clarity in the legal rules regulating the essential conditions for
lawfulness of deprivation of liberty opens the door to arbitrariness
and is therefore incompatible with Article 5 § 1.
The
foregoing is sufficient to establish that Mr Kolev's deprivation of
liberty during the relevant period was not lawful in the sense of the
Convention and was thus contrary to Article 5 § 1.
It
is not necessary, therefore, to examine whether it violated this
provision on the additional ground that it was based on fabricated
charges, as alleged by the applicants.
(b) Alleged lack of justification and
excessive length (Article 5 § 3)
Mr
Kolev also complained, relying on Article 5 § 3, that his
deprivation of liberty between 13 September and 29 November 2001 (see
paragraph 172 above) had been unjustified and excessively lengthy.
Having
regard to its conclusion under Article 5 § 1 above, the Court
considers that it is not necessary to examine this complaint
separately.
C. Alleged violation of Article 5 § 4
Mr
Kolev complained under Article 5 § 4 that his appeal against his
detention, which was lodged on 7 August 2001, had not been examined
speedily. Article 5 § 4, in so far as relevant, reads as
follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily ...”
The
Government's position was that a number of procedural steps had been
under way at that time which, in the Government's view, justified the
delay. The applicants disagreed.
The
Court observes that the appeal, which was lodged on 7 August 2001,
was examined on 13 September 2001. It is not disputed that the
appeal's transmission to the courts was delayed by the Sofia
Investigation Service for almost one month, between 7 August and 5
September. Moreover, it is unclear whether that service transmitted
the appeal eventually or withheld it (see paragraph 44 above). Having
regard to the fact that domestic law prescribed that appeals against
detention must be transmitted to the courts “immediately”
(see paragraph 120 above), the manner in which the Sofia
Investigation Service treated the first applicant's appeal was
unlawful and arbitrary. Also, additional unlawful delay occurred
between 5 and 13 September (see paragraphs 44 and 120 above). In
these circumstances, the Court considers that the period of 36 days
is difficult to reconcile with the requirement of “speedy
examination” (see Rehbock v. Slovenia, no.
29462/95, §§ 85-88, ECHR 2000 XII,
G.B. v. Switzerland, no. 27426/95, §§
28-39, 30 November 2000 and Mooren v. Germany [GC], no.
11364/03, §§ 103-107, 9 July 2009). The Government's
argument that pending procedures justified the delay is
unsubstantiated and in any event unconvincing, the authorities being
under a duty to secure effective enjoyment of the detained person's
rights under Article 5 § 4, which in the event could have been
achieved, for example, by transmitting a copy of the file to the
relevant court.
It
follows that there has been a violation of Article 5 § 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
second, third and fourth applicants complained that the investigation
into Mr Kolev's death had not been independent or effective. This
complaint falls to be examined under Article 2 § 1 of the
Convention, which reads in so far as relevant:
“Everyone's right to life shall be protected by
law...”
A. The parties' submissions
The
applicants asserted that the authorities had failed to discharge
their positive obligations stemming from Article 2 as they had not
secured the investigation's independence and had failed to
investigate the allegations against the Chief Public Prosecutor and
other high-ranking officials with whom Mr Kolev had been in conflict,
despite serious indications that this was the most obvious line of
inquiry to be pursued. This had been the result of structural
deficiencies of the Bulgarian legal system, which did not provide for
the possibility of conducting a meaningful criminal investigation
against the Chief Public Prosecutor or against other persons whom he
sought to protect. Against this background, the steps undertaken in
the investigation, although necessary, were clearly not sufficient in
a case of contract killing.
The
Government stated that numerous investigative steps had been
undertaken and all possible measures to identify the perpetrator had
been tried. The investigation had been handled in accordance with the
normal procedure and there was no reason to doubt its independence
and impartiality.
The
Government submitted a written opinion by Mr V. Parvanov, Deputy
Chief Public Prosecutor, dated 23 April 2009, admitting that for a
certain period of time it had been constitutionally impossible to
bring criminal charges against the Chief Public Prosecutor. Moreover,
according to the Deputy Chief Public Prosecutor, despite the
constitutional amendments of 2003 and 2007, it was still practically
impossible to bring charges against the Chief Public Prosecutor
since, in accordance with the “internal hierarchical order”
in the prosecution service, as provided for by law, “nobody
ha[d] the power to issue a final order for the opening of an
investigation against him”.
B. The Court's assessment
1. Applicable principles
The
obligation of States to protect the right to life under Article 2 of
the Convention requires by implication that there should be an
effective official investigation when individuals have been killed.
The duty to conduct such an investigation arises in all cases of
killing and other suspicious death, whether the perpetrators were
private persons or State agents or are unknown (see Menson v. the
United Kingdom (dec.), no. 47916/99, ECHR 2003 V;
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 110, ECHR 2005 VII; Kaya and Others
v. Turkey, no. 4451/02, § 35, 24 October 2006; and
Angelova and Iliev v. Bulgaria, no. 55523/00, § 93,
ECHR 2007 IX).
The
investigation must be effective in the sense that it is capable of
leading to the establishment of the relevant facts and the
identification and punishment of those responsible. The authorities
must have taken the reasonable steps available to them to secure the
evidence concerning the incident. The investigation's conclusions
must be based on thorough, objective and impartial analysis of all
relevant elements. While the obligation to investigate is of means
only and there is no absolute right to obtain a prosecution or
conviction, any deficiency in the investigation which undermines its
capability of establishing the circumstances of the case or the
person responsible is liable to fall foul of the required measure of
effectiveness (see Nachova and Others, cited above, §
165; Ramsahai and Others v. the Netherlands [GC], no.
52391/99, § 321, ECHR 2007 ...; and Brecknell v. the
United Kingdom, no. 32457/04, § 66, 27 November 2007).
For
an investigation to be effective, the persons responsible for and
carrying out the investigation must be independent and impartial, in
law and in practice. This means not only a lack of hierarchical or
institutional connection with those implicated in the events but also
a practical independence (see Ramsahai and Others, cited
above, §§ 325 and 333-346; Scavuzzo-Hager and Others v.
Switzerland, no. 41773/98, §§ 78 and 80-86, 7 February
2006; and Ergi v. Turkey, 28 July 1998, §§ 83-84,
Reports 1998 IV).
There
must be a sufficient element of public scrutiny of the investigation
or its results to secure accountability in practice, maintain public
confidence in the authorities' adherence to the rule of law and
prevent any appearance of collusion in or tolerance of unlawful acts.
Furthermore, a requirement of promptness and reasonable expedition is
also implicit in the notion of effectiveness. It must be accepted
that there may be obstacles or difficulties which prevent progress in
an investigation in a particular situation. However, a prompt
response by the authorities in investigating a use of lethal force is
essential (see McKerr v the United Kingdom, no. 28883/95, §
114, ECHR 2001 III and Ramsahai and Others, cited above,
§ 321).
2. Application of those principles in the present case
It
is undisputed that the investigation into Mr Kolev's killing started
promptly and that numerous urgent and indispensible investigative
steps were taken without delay in the days after his death (see
paragraphs 64-74 above). The applicants' main grievance was,
however, that the investigation had lacked independence and
objectivity owing to institutional deficiencies and unlawful
practices in the prosecution system and had not examined the possible
involvement of high-ranking prosecutors and other officials.
The
Court observes that the Bulgarian authorities investigating
Mr Kolev's killing had before them solid evidence of a serious
conflict between Mr Kolev and Mr F., the Chief Public Prosecutor at
the time (see paragraphs 8-30, 52, 62 and 63 above).
They
also had evidence that Mr F. and other high-ranking prosecutors might
have ordered, initiated or at least approved a series of unlawful
acts against Mr Kolev and his family during the relevant period.
These included: (i) Mr Kolev's dismissal in January 2001 (see
paragraphs 8 12 above), (ii) a campaign against him and his
family, which consisted of bringing criminal charges against Mr
Kolev, his son and his father on various unrelated grounds within a
short period of time between March and September 2001, some of these
charges having proved to be unfounded and none of them having been
upheld by the courts (see paragraphs 21-27 above), (iii) Mr Kolev's
unlawful arrest on 20 June 2001 effected in a manner predicted by him
(see paragraphs 28-30, 49 and 179 above), (iv) an unlawful delaying
of Mr Kolev's bringing before a judge when he was detained by
prosecutors' orders in June 2001 (see paragraphs 31-35, 162 and
165 above) and (v) unjustified delays in the transmission to the
courts of his appeal against his detention in August 2001, resulting
in an extension of Mr Kolev's deprivation of liberty (see paragraphs
44 and 185 above).
The
investigators also had knowledge of accusations having been made by a
number of public figures, including prosecutors, about the working
methods of Mr F. as Chief Public Prosecutor, which allegedly included
resort to threats and unlawful bringing of fabricated charges against
persons he wished to put pressure on and an authoritarian style
consisting in centralising all decisions in his hands (see paragraphs
18 and 51-61 above). They also knew that the Supreme Judicial
Council had received information about alleged unlawful and criminal
acts committed by the Chief Public Prosecutor and that, as a result,
in December 2002, it had called on him to resign. Witness evidence
concerning some of those alleged unlawful acts had been given before
the investigators (see paragraphs 75-83 above) and the respondent
Government have not informed the Court of any other evidence
demonstrating the unreliability of the allegations against the Chief
Public Prosecutor. In addition, the investigators were aware that
public figures had expressed doubts about Mr F.'s mental health (see
paragraphs 18, 77, 82 and 92 above).
Finally,
the investigators had before them Mr Kolev's public statements made
shortly before his death to the effect that he feared for his life,
naming the Chief Public Prosecutor and persons close to him as
persons who might be interested in seeing him dead. The same
allegation was made after Mr Kolev's death by his family and other
persons (see paragraphs 62, 63, 82 and 106 above).
It
is not the Court's role to express views about the soundness of the
allegation that Mr F. and other high-ranking prosecutors and
officials were implicated in Mr Kolev's murder. Its task is limited
to examining the effectiveness of the investigation into his death,
in the light of the State's obligations flowing from Article 2 of the
Convention.
In
this context the Court considers that, having regard to the material
available to them as described in the preceding paragraphs, the
investigators should have explored the allegation that the Chief
Public Prosecutor and other high-ranking prosecutors and officials
might have been implicated in Mr Kolev's murder, even if the
allegation was eventually to prove unfounded. That is so because, as
the Court has stated in previous cases, the investigation's
conclusions must be based on thorough, objective and impartial
analysis of all relevant elements. Failing to follow an
obvious line of inquiry undermines the investigation's ability to
establish the circumstances of the case and the person responsible.
Such an investigation cannot be seen as effective (see the judgements
cited in paragraph 192 above, and Anguelova v. Bulgaria, no.
38361/97, § 144, ECHR 2002 IV).
The
Court must therefore examine whether the investigation into Mr
Kolev's murder was effective in the sense of exploring all relevant
elements in an objective manner and in the sense of being
independent.
It
notes that apart from hearing the testimonies of those who stated
that high-ranking prosecutors from the Chief Public Prosecutor's
circle, the Chief Public Prosecutor himself and officers of the
national anti-terrorist squad might have been behind the murder, the
investigation did nothing else to explore these allegations (see
paragraphs 62-116 above). In particular, neither the Chief Public
Prosecutor nor the other prosecutors whose names had been mentioned
repeatedly in the testimonies were ever questioned.
Indeed,
until September 2003 it was legally impossible in Bulgaria to bring
criminal charges against the Chief Public Prosecutor without his
consent. As a result, he could not be removed from office against his
will even if he happened to commit the most serious crime, as his
conviction was a prerequisite for the termination of his term of
office under the Constitution, as in force at the relevant time (see
paragraphs 121-125 and 129 above). Moreover, the Chief Public
Prosecutor could not be temporarily suspended from duty, as that
could only be done if charges had been brought against him (see
paragraph 131 above). In these circumstances, in the initial period
of the investigation into Mr Kolev's murder, it was legally
impossible to investigate any suspected involvement of the Chief
Public Prosecutor.
Furthermore,
even though the above deficiency was eventually remedied (see
paragraphs 125-127 above), the Court observes that it is undisputed
by the respondent Government that as a result of the hierarchical
structure of the prosecution system and, apparently, its internal
working methods, no prosecutor would issue a decision bringing
charges against the Chief Public Prosecutor. This appears to have
been due to the fact that the Chief Public Prosecutor and
high-ranking prosecutors have the power to set aside any such
decision taken by a subordinate prosecutor or investigator. As a
result, it is still the case that the Chief Public Prosecutor cannot
be temporarily suspended from duty against his will, as that can only
be done if charges have been brought against him (see paragraphs
125-127, 132-135 and 190 above).
In
the proceedings before the Court, the Government have not shown that
at least some of the numerous grave allegations made during the
relevant period against Mr F., the Chief Public Prosecutor (see
paragraphs 51-61 above), were ever investigated, at least at the
level of preliminary inquiries. In the Court's opinion, this fact is
highly relevant in the present case as it corroborates the
applicants' allegation concerning the absence in Bulgarian law of
sufficient guarantees for an independent investigation into offences
of which the Chief Public Prosecutor or other high-ranking officials
close to him may be suspected.
This
situation was apparently the result of a combination of factors
including the impossibility of bringing charges against the Chief
Public Prosecutor, the authoritarian style of Mr F. as Chief Public
Prosecutor, the apparently unlawful working methods he resorted to
and also institutional deficiencies. In particular, the prosecutors'
exclusive power to bring criminal charges against offenders, combined
with the Chief Public Prosecutor's full control over each and every
decision issued by a prosecutor or an investigator and the fact that
the Chief Public Prosecutor can only be removed from office by
decision of the Supreme Judicial Council, some of whose members are
his subordinates, is an institutional arrangement that has been
repeatedly criticised in Bulgaria as failing to secure sufficient
accountability (see paragraphs 121-127, 129, 135 and 136 above).
The
Court is not oblivious to the fact that a variety of State
prosecution systems and divergent procedural rules for conducting
criminal investigations may be compatible with the Convention, which
does not contemplate any particular model in this respect (see
information concerning the legal systems of several Contracting
States in paragraphs 138-152 above). Independence and
impartiality in cases involving high-ranking prosecutors or other
officials may be secured by different means, such as investigation
and prosecution by a separate body outside the prosecution system,
special guarantees for independent decision-making despite
hierarchical dependence, public scrutiny, judicial control or other
measures. It is not the Court's task to determine which system best
meets the requirements of the Convention. The system chosen by the
member State concerned must however guarantee, in law and in
practice, the investigation's independence and objectivity in all
circumstances and regardless of whether those involved are public
figures.
In
the present case, the Court accepts as plausible the applicants'
assertion that, given the centralised structure of the Bulgarian
prosecution system, based on subordination, its exclusive power to
bring charges and the procedural and institutional rules allowing
full control by the Chief Public Prosecutor over every investigation
in the country, in the circumstances prevailing when Mr F. was the
Chief Public Prosecutor it was practically impossible to conduct an
independent investigation into circumstances implicating him, even
after the constitutional amendment allowing in theory the bringing of
charges against him.
In
addition, in the present case, high-ranking prosecutors like
Mr Ts.I., who had participated personally in Mr Kolev's arrest
on 20 June 2001, found to have been unlawful by the domestic courts,
and whom Mr Kolev had publicly accused of having “planted”
fabricated evidence on him, were involved in the investigation (see
paragraphs 30, 36, 40, 49, 54 and 94 above). Furthermore, having
regard to the evidence before the Court, there is little doubt that
the investigation into Mr Kolev's murder was for practical purposes
under the control of the Chief Public Prosecutor, Mr F., until the
end of his term of office in 2006 (see paragraphs 67, 73, 84, 94,
132-135 and 190 above).
In
the Court's view, this involvement of persons against whom the victim
and his relatives had made serious complaints based on specific facts
is incompatible with the principles of impartiality and independence
required under the procedural limb of Article 2 of the Convention.
In
the investigation of Mr Kolev's murder, although the investigators
performed numerous acts such as analysing physical evidence,
questioning bystanders and probing possible threats that Mr Kolev
might have received, the fact that the investigation was under the
control of the very persons whom the victim and his relatives had
accused and the fact that it failed to follow one of the possible
lines of inquiry which clearly appeared to be relevant, undermined
decisively its effectiveness.
The
Court finds, therefore, that the investigation into Mr Kolev's death
was not independent, objective or effective. Moreover, the nature of
its serious deficiencies was such that the authorities can be said to
have failed to act 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.
While
it is true that the investigation continued after the expiry in
February 2006 of Mr F.'s term of office, the Court observes that no
serious investigation measures were undertaken after that point and
that the investigation was suspended (see paragraphs 114-116 above).
The investigation did not, therefore, meet the requirements of
Article 2 of the Convention, as interpreted in the Court's case law.
It
follows that there has been a violation of that provision.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed EUR 50,000 in respect of non-pecuniary damage for
the violations of Article 5 found in the present case. They invited
the Court to take into account the totality of the period of
Mr Kolev's unlawful detention despite the fact that it had
declared inadmissible, for failure to exhaust domestic remedies, his
complaint concerning part of that period.
The
applicants also claimed EUR 300,000 in respect of non pecuniary
damage in relation to the violation of Article 2. They submitted that
the authorities' indifference and failure to investigate effectively
Mr Kolev's murder had led to intense feelings of vulnerability and
injustice and significant suffering.
The
Government did not comment.
The
Court, having regard to the violations found in the present case,
awards to the second, third and fourth applicants jointly EUR 30,000
in respect of all non-pecuniary damage.
B. Costs and expenses
The
applicants claimed EUR 5,280 in respect of legal fees charged by
their lawyer for sixty-six hours' work on the proceedings before the
Court at an hourly rate of EUR 80. They submitted a legal fees
agreement between the second applicant and her lawyer and a time
sheet. They also asked the Court to order the payment of the costs
award directly into the bank account of their legal representative.
The
Government did not comment.
The
Court considers that the costs claimed were necessarily incurred and,
having regard to the exceptional nature of the present case, are
reasonable as to quantum. It awards the claim in full, the award
being payable directly into the bank account of the applicants' legal
representative.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that the first applicant's widow and
children have standing to continue the proceedings in his stead;
Holds that there has been a violation of the
first applicant's right under Article 5 § 3 of the Convention to
be brought promptly before a judge or other officer authorised by law
to exercise judicial power;
Holds that the first applicant's deprivation of
liberty between 13 September and 29 November 2001 was unlawful
and contrary to Article 5 § 1 of the Convention;
Holds that it is not necessary to examine
separately the complaint under Article 5 § 3 of the Convention
that the first applicant's deprivation of liberty was not justified
and was excessively lengthy;
Holds that there has been a violation of the
first applicant's right under Article 5 § 4 of the Convention to
have his appeal against detention examined speedily;
Holds that there has been a violation of Article
2 of the Convention in that the investigation into Mr Kolev's murder
was ineffective and lacked the requisite independence;
Hold
(a) that
the respondent State is to pay the second, third and fourth
applicants jointly, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Bulgarian
levs at the rate applicable at the date of settlement:
(i) EUR
30,000 (thirty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
5,280 (five thousand two hundred and eighty euros), plus any tax that
may be chargeable to the applicants, in respect of costs and
expenses, payable directly into the bank account of the applicants'
legal representative;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 5 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President