Lukanov v. Bulgaria

AS TO THE ADMISSIBILITY OF

Application No. 21915/93

by Andrei Karlov LUKANOV

against Bulgaria

The European Commission of Human Rights sitting in private on

12 January 1995, the following members being present:

MM. H. DANELIUS, Acting President

F. ERMACORA

G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 September 1992

by Andrei Karlov Lukanov against Bulgaria and registered on 25 May 1993

under file No. 21915/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

5 April 1994 and the observations in reply submitted by the

applicant on 25 May 1994;

- the parties' oral submissions at the hearing on 12 January 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant, a Bulgarian citizen born in 1938, was first a

Minister of the Bulgarian Government, then Deputy Prime Minister, and

as from 1989 until 1990 Prime Minister of Bulgaria. He is currently

a member of the Bulgarian National Assembly.

Particular circumstances of the case

On 9 March 1992 the authorities seised the applicant's passport

with reference to Section 7 para. (d) of the Bulgarian Passport Act

(for all references to Bulgarian law see below, Relevant domestic law).

The applicant filed an appeal on which the authorities have so far not

decided.

I.

On 1 July 1992 the Prosecutor General requested the Bulgarian

National Assembly to institute criminal proceedings against the

applicant on suspicion of having contravened Section 203 of the

Bulgarian Penal Code. He was in particular accused of having

participated between 1986 and 1990 as a Deputy Prime Minister in

27 decisions which granted assistance and credits of altogether

34.594.500 USD and 27.072.000 convertible Bulgarian Leva to less

developed countries such as Nicaragua, Cuba, Laos and others. The

request continued:

<Translation>

"The decisions ... have led to extremely severe results for

the country's economy in respect of its potential, resources and

export capacity, and have objectively led to an incapacity to

repay its foreign debt. It should be emphasised that due to such

decisions harmful to the country, and other illegal acts of party

and government leaders, during this period our foreign debt which

in 1986 amounted to 4.119.700 USD, increased to 10.656.900.000

USD in 1989 ...

The described situation corresponds to the qualification of

the crime of the 'benefit of using one's position' in respect of

particularly big amounts, which qualifies as a specifically

severe case, falling under Section 203 and Section 219 para. 3

of the Penal Code.

The crimes mentioned are 'serious' in the context of Section

93 para. 7 of the same Code."

On 7 July 1992 the National Assembly decided to suspend the

applicant's parliamentary immunity and to permit the institution of

criminal proceedings against him, as well as his arrest and detention

on remand.

On 9 July 1992 Public Prosecutor D., of the Investigation

Department of the General Prosecution, ordered the applicant's

prosecution and his detention on remand. The order reiterated the

grounds for the initiation of criminal proceedings as stated in the

Prosecutor General's request to the National Assembly of 1 July 1992.

As to the reasons for imposing detention on remand, it relied on the

extent of public exposure of the committed crime, the personality of

the performer and the need to secure the applicant's appearance before

court, as well as on Sections 50, 177, 180, 196 para. 2 and 207, and

Sections 146 to 148 and 152 para. 1 of the Code of Criminal Procedure.

The applicant's prosecution was further ordered in connection with

Sections 201, 202 para. 1 (1) and 282 para. 3 of the Penal Code.

Still on 9 July 1992 the applicant was arrested and remanded in

custody on the premises of the National Investigation Service in Sofia.

The applicant was represented by various lawyers who, at least until

12 August 1992, had the right to speak with him alone (see below, IV.).

On 9 July 1992 the applicant's lawyer filed an appeal with the

Bulgarian Supreme Court, requesting the applicant's release from

detention. The appeal stated that, contrary to Section 148 para. 1 of

the Code of Criminal Procedure, the warrant of arrest mentioned no

grounds for the applicant's arrest. The grounds given could in fact

serve for any arrest. Furthermore, according to Section 152 of the

Code of Criminal Procedure, it did not suffice if the detention was

justified on the ground that the applicant risked a sentence of more

than ten years' imprisonment, since para. 2 of Section 152 required as

grounds for detention a danger of absconding or of committing a further

crime. The appeal also invoked Section 31 para. 4 of the Bulgarian

Constitution.

On 13 July 1992 the Supreme Court dismissed the appeal. The

Court decided in the presence of the Public Prosecutor, but in the

absence of the applicant and his lawyers. The decision stated:

<Translation>

"Under Section 152 para. 1 of the Code of Criminal

Procedure detention is ordered if a sentence of ten or more years

of imprisonment or the death penalty is envisaged for the crime.

The offences in Section 203 para. 1 of the Penal Code envisage

such a penalty.

(This provision) contains two cumulative prerequisites -

misappropriation must have occurred on a large scale and must

have been particularly serious.

The particularly large scale derives from the nominal value

of the public property involved. The seriousness of the case

results from the fact that the misappropriation was done in

complicity with other persons and from the extremely high degree

of public danger of the act and the subject (Section 93 para. 8

of the Penal Code). The argument that the hypothesis of Section

152 para. 2 of the Code of Criminal Procedure applies in this

case is groundless.

At the time of the accusation the applicant was a member of

the National Assembly. He preserves this quality by virtue of

Section 72 of the Constitution of Bulgaria up to the moment when

judicial facts occurred by virtue of which the powers of a member

of the National Assembly may be suspended. In his capacity as

member of the National Assembly the applicant represents the

people as a whole. It is precisely in this capacity that the

possibility of Section 152 para. 2 of the Code of Criminal

Procedure applying to his case becomes more likely than in the

case of an applicant who does not have the status of a member of

the National Assembly.

Furthermore, the applicant undertook a judicial appeal

against the administrative act by which his diplomatic passport

... was withdrawn ... These actions of his cast well-founded

doubts as to whether future actions will not be undertaken by him

in the context of Section 152 para. 2 of the Code of Criminal

Procedure.

According to Section 70 of the Constitution of the Republic

of Bulgaria '... the members of the National Assembly cannot be

detained and no legal prosecution can be initiated against them

except for serious crimes and with the permission of the National

Assembly ...'. The logical and systematic interpretation of the

aforesaid provision imposes the conclusion that the measure of

restriction, 'detention', in the context of the Penal Code is

determined by the high level of public danger of the act and by

the special status of the person who has committed it and is the

subject of the crime, a member of the National Assembly.

For this reason the legislator envisaged a qualified

measure of restriction, detention, in similar cases. The

Prosecutor's Office is competent to impose this measure."

II.

On 4 September 1992 the applicant's lawyer filed a request with

the Prosecutor General to be released from detention. Alleging a

change in circumstances concerning the applicant's state of health and

with reference to Article 3 of the Convention, the lawyer complained

of the insufficient conditions of the premises where the applicant was

detained, in particular as other people at the hospital suffered from

contagious diseases and he was obliged to share cutlery and use common

toilets. Reference was made in particular to the reports of the

medical experts (see below, C. Applicant's state of health) according

to which such conditions constituted a considerable risk for the

applicant's health. The applicant apparently did not receive a reply.

III.

On 5 September 1992 the applicant's lawyer filed a complaint with

the Supreme Court against the tacit refusal of the Prosecutor General

to grant the request of 4 September 1992. Under Article 6 of the

Convention a public hearing on the applicant's appeal was requested.

On 17 September 1992 the Supreme Court rejected the appeal as the

law did not provide for judicial control over the acts of the

prosecution during the preliminary investigation of a criminal case.

The sole exception to this rule was the possibility to appeal against

an order for the imposition of detention. Besides, the Supreme Court

had already dealt with the applicant's appeal against his detention,

and under the law the imposition of detention could only be contested

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

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

could always request the investigating authorities to replace detention

on remand by another measure where there had been a change of

circumstances. However, this was within the competence of the

investigating authorities, whose decisions could be contested before

the prosecution, albeit not before the court.

IV.

Based on the conclusions of the medical experts (see below,

20 October 1992, requested Public Prosecutor D. to release the

applicant. It transpires from the subsequent order of Public

Prosecutor D. of 2 November 1992 that the Prosecutor General dismissed

this request on 22 October 1992.

On 28 October 1992 Public Prosecutor D. met the applicant and a

lawyer at Sofia hospital. According to the minutes established, the

lawyer requested D., who was conducting the investigation, to decide

on the applicant's request for release. The applicant himself pointed

out that it was absurd to rely for his detention on the fact that he

had complained about the withdrawal of his passport. He also did not

have another passport. There was no danger of repeating the offence,

as he was no longer in a position to do so. As a result, his release

was imperative. The applicant also drew attention to the necessity of

convalescence which was impossible in detention.

By order of 2 November 1992 Public Prosecutor D. dismissed the

applicant's request for release as the Prosecutor General had already

dealt with it. It was stated that the applicant's lawyers had been

informed of the Prosecutor General's decision of 22 October 1992, and

that no further appeal was possible. The order explained that the

Prosecutor General was aware of the medical reports and had refused the

request as there were no new circumstances permitting the applicant's

release.

V.

By letter of 9 November 1992 the applicant's lawyer requested the

General Prosecution to terminate the investigations, explaining that

the investigations had commenced on 8 July 1992, and that the two

months of investigations envisaged by the law had expired on

8 September 1992. After prolongation, on 8 November 1992 a period of

four months had expired. According to Section 222 para. 3 of the Code

of Criminal Procedure, a further prolongation of two months was only

possible in "exceptional" cases. The lawyer contested the exceptional

nature of the applicant's case as in the past four months the General

Prosecution had not obtained new means of proof.

The lawyer also contested that the accusations disclosed an

offence. Thus, the decisions of the Council of Ministers had been

taken collectively within the framework of the constitutional powers

and the budget voted by the National Assembly; the decisions executed

State policies during the period concerned; the authority as such, and

not the applicant as Deputy Prime Minister, had dealt with the means

concerned and it had not been established that the applicant had

committed the offence in his own or another person's interest.

On 10 November 1992 the applicant's lawyer requested the

Prosecutor General to release the applicant as the further prolongation

breached Article 5 para. 3 of the Convention; contrary to Article 5

para. 1 (c) of the Convention no grounds had been given for detention.

The lawyer refused to comment on the allegation that, as a member of

the National Assembly, the applicant was particularly dangerous. On

the other hand, insofar as it was maintained that the applicant had

appealed against the refusal to apply for a passport, he had only

employed his rights under Bulgarian law. The lawyer further invoked

Articles 2 and 5 para. 4 of the Convention; under Article 6 para. 3 (b)

the lawyer complained that the applicant had not been informed of the

content of the accusations against him.

On 11 November 1992 the Prosecutor General orally informed the

applicant's lawyers that the applicant's request of 10 November 1992

had been dismissed as there were no new circumstances justifying

modification of detention. According to the Public Prosecutor's

subsequent letter of 25 November 1992, a copy of this decision was

transmitted on 16 November 1992 to the applicant's lawyer.

On 18 November 1992 the applicant personally wrote a letter to

the Prosecutor General complaining about the proceedings. He invoked

Section 180 of the Code of Criminal Procedure according to which the

Prosecution had to reply to requests in writing. The applicant

concluded that the criminal proceedings instituted against him had no

legal basis and constituted an overt political reprisal.

By letter of 20 November 1992 the applicant's lawyer asked Public

Prosecutor D. about the outcome of the request of 10 November 1992.

She explained that the information was important for the application

filed with the European Commission of Human Rights.

On 25 November 1992 Public Prosecutor D. replied that on

16 November 1992 the decision of 11 November 1992 had been transmitted

to the applicant's lawyer, and that minutes concerning these

occurrences had been prepared under Section 100 of the Code of Criminal

Procedure.

VI.

On 29 December 1992 the Bulgarian National Assembly reversed its

decision of 7 July 1992 (see above, I.) authorising the applicant's

detention on remand. On 30 December 1992 Prosecutor D. issued an order

for the applicant's release whereupon the applicant was released.

I.

On 6 August 1992 the Public Prosecutor ordered the applicant's

examination by a panel of medical experts. As from 10 August 1992 the

applicant underwent medical examinations at the Sofia Higher Medical

Academy.

The medical experts submitted their conclusions in four reports

between 18 and 28 August 1992. The experts relied inter alia on

previous reports on the applicant's health of the years 1988-1990.

According to these reports, the applicant suffered from malignant

chronic lymphocytic leucaemia, hypertensive disease and chronic

ischemic heart disease with stable stenocardia. The applicant was

detained in a cell without fresh air or natural lighting. It was

stated that the applicant required inter alia accommodation in premises

with sufficient fresh air and natural light, and that stress situations

were counter-indicated. The premises of the National Investigation

Service were inadequate. If the applicant was taken to Sofia

Penitentiary Hospital, the latter could offer a general capacity for

treating a wide range of diseases; however, it could not be stated

with certainty whether full prevention of contacts with persons having

different kinds of infections could be prevented. On the other hand,

since his chronic diseases were not in an aggravated stage, it was

unnecessary for the applicant to stay in hospital.

On 20 August 1992 Public Prosecutor D. issued an order in which

he confirmed the applicant's detention at the National Investigation

Service. The order, which stated that an appeal could be filed against

it, explained inter alia:

<Translation>

"The chronic lympholeukosis is in its initial clinical

phase (zero) and there are no indications of its progress or

deterioration. Experts are firm in their conclusion that this

disease does not call for medical treatment. The arterial

hypertension fluctuates and is easily susceptible to control

through small doses of beta-blockers. There are no indications

or signs of coronary insufficiency, disturbances of the heart

rhythm or cardiac problems. The results of the medical tests

show that medicaments have stabilised the (applicant's) health

condition. The hygienic requirements and the dietetic regime

prescribed by the experts should be observed. Regular check-ups

by a cardiologist and haematologist are called for, and, if

necessary, a control by a gastroenterologist. Hospitalisation

is unnecessary. Outpatients' treatment is recommended.

As is seen from the above, (the applicant's) health

condition does not call for modification of the detention ordered

on 7 July 1992. The medical facilities at the National

Investigation Service of the Ministry for the Interior are in a

position to provide the treatment and medicaments in the

outpatients' ward. Arrangements have also been made with the

Higher Military Medical Institute and the experts for regular

medical examination. The living conditions in the arrest

premises of the National Investigation Service correspond to the

hygienic requirements."

On 25 August 1992 the applicant's lawyer filed an appeal claiming

that the order directly endangered the applicant's health and life.

Thus, the National Investigation Service did not provide premises free

from stress, complying with the hygienic requirements, offering fresh

air, food rich in vitamins and the possibility of walks in the open.

The applicant apparently did not receive a reply to this appeal.

On 25 August 1992 the applicant was taken to the Sofia

Penitentiary Hospital.

II.

The applicant remained at the Sofia Penitentiary Hospital until

7 September 1992 when he was transferred back to the National

Investigation Service. Following a deterioration of his cardiovascular

condition on 10 and 11 September 1992 the applicant was taken to the

intensive care unit of the Sofia Higher Military Medical Institute.

On 11 September 1992 a medical commission informed the Public

Prosecutor that, after various complaints, an electrocardiogram had

been made of the applicant. As a result, he should remain under

medical supervision, his state of health being stable.

On 16 September 1992 a medical expert commission issued a report

on the applicant's health. The commission was composed of eight

doctors, among them the leading Bulgarian cardiologist. It found that

the applicant suffered from high blood pressure, calling for beta-

blockers and small doses of calcium. Moreover, the applicant had

apparently suffered from crises of angina pectoris, particularly at

night. On the other hand, there was no sign of a myocardial infarct.

The Report proposed that the applicant take certain medicaments and be

placed in a hospital environment.

On 17 September 1992 the Head of the Higher Military Medical

Institute reiterated these conclusions in a letter to the Public

Prosecutor. The applicant remained at the Higher Military Medical

Institute.

A further medical expert commission of six doctors examined the

applicant at the Higher Military Medical Institute and issued a report

on 2 October 1992. The commission noted malignant chronic lympholeuco-

sis, arterial hypertension and ischemia of the heart, but no signs of

cardiac insufficiency. Other difficulties concerned inter alia the

applicant's liver, prostate and eyes. The commission recommended beta-

blockers and other medication and a diet low in fat and calories. It

suggested a convalescence period of three weeks under medical

supervision at a hospital. A new examination would then be called for.

III.

The applicant's health being satisfactory, he was transported on

30 November 1992 to the premises of the National Investigation Service.

On 8 December 1992 his health deteriorated and he was taken to the

Sofia Higher Military Medical Institute.

On 11 August 1992 the applicant published an article in the

Bulgarian newspaper "Douma" entitled "Who will pay?".

As a result, by order of 12 August 1992, Public Prosecutor D.

prohibited the applicant from speaking alone with his lawyers.

Reference was made in particular to Section 75 para. 1 of the Code of

Criminal Procedure. The order which stated that it could be contested

by means of appeal explained:

<Translation>

"The daily papers and in particular the 'Douma' newspaper

after the date of detention of the accused ... published articles

by him. Such an article was also published in No. 191/

August 8 1992 of the said newspaper. Analysis has shown that

these publications are of a political nature. One of the aims

of these publications is to demonstrate that, irrespective of his

detention, the <applicant> continues to take an active part in

the public and political life of the country. This is

inadmissible in view of the measure of coercion applied to him.

Thus, public order is being infringed, mistrust of the judiciary

is being introduced, and the constitutional principle that rights

should not be abused has been violated. According to Section 10

para. 1 of the Code of Criminal Procedure, all citizens

participating in criminal proceedings are equal before the law

and in this connection no privileges based on public status are

admitted. Neither periodicals nor daily newspapers have

published or will publish materials written by persons in

custody. With a view to the nature of this procedural measure

of coercion, regulatory control has been imposed by the competent

bodies on the correspondence of those remanded in custody.

According to the law, it is inadmissible that the <applicant>

alone should enjoy such a privilege.

There are reasons to suspect that irrespective of the oral

warnings addressed to the <applicant> according to the conditions

of arrest, he is preparing written material which he transmits

to his defence lawyers at his meetings with them, when no one

else is present, under Section 75 of the Code of Criminal

Procedure, and which are then conveyed to the editorial boards

of newspapers and other organisations. This aims at introducing

public unrest and mistrust of the Bulgarian Judiciary. Thus, it

is necessary, provisionally, during the stay of the <applicant>

at the ... Higher Medical Academy, to restrict his right to meet

with his defence lawyers without anyone else being present, as

provided for under Section 75 of the Code of Criminal Procedure."

On 1 September 1992 Public Prosecutor D. issued a further order

according to which the applicant, who was now in the Sofia Penitentiary

Hospital, was not permitted to "see other persons, including members

of the family, members of the National Assembly, or his lawyers,

without permission in writing given under my signature. (The

applicant) is not to be given a typewriter; the prison regime has to

be applied very strictly to him, and no privileges will be granted, as

this would contravene Section 10 of the Code of Criminal Procedure".

Meanwhile, the Human Rights Committee of the Inter-Parliamentary

Union was seised of the applicant's case. The Committee examined in

particular the conditions of his detention. On 12 September 1992, at

the 88th Conference of the Inter-Parliamentary Council in Stockholm,

the Committee issued a Report on the applicant's case in which it

expressed doubts whether the applicant's detention was justified under

Bulgarian law. The matter is still under consideration.

Human Rights

On 9 November 1992 the applicant's lawyer informed Public

Prosecutor D. that the applicant had meanwhile filed an application

with the Commission. Section VII of the Application Form obliged him

to provide copies of domestic decisions. The applicant had not

received a reply from the authorities in particular to 1) the request

of 4 September 1992, 2) the complaint of 25 August 1992 against the

order of 20 August 1992, 3) the complaint addressed to the Supreme

Court and 4) the request for release of 22 October 1992. The Public

Prosecutor was requested to submit the necessary documents before

13 November 1992 to enable compliance with the Commission's time-

limits.

By letter of 9 November 1992 Public Prosecutor D. replied:

<Translation>

"The European Commission of Human Rights mentioned in your

request has not filed any request with the General Prosecution

enabling it to decide whether it should comply with the request

in the light of the sovereignty of its own jurisdiction. An

application form of the European Commission of Human Rights,

transmitted via the General Prosecution to (the applicant), is

personal and does not engage the responsibility of the General

Prosecution. The General Prosecution has no knowledge of its

content as it is a personal document transmitted to him as

personal correspondence. The (applicant's lawyers) and (the

applicant) are aware of the content of the decisions of the

General Prosecution as to the requests and complaints to which

you have referred. For this reason the General Prosecution has

fulfilled its obligations under the law. In view of the above

we shall not comply with your request."

Relevant domestic law

Section 5 para. 4 of the Constitution states that any

international instrument which has been ratified in the

constitutionally established procedure, promulgated and has come into

force with respect to the Republic of Bulgaria, shall be considered

part of domestic legislation of the country. It shall supersede any

domestic legislation stipulating otherwise.

Section 31 para. 4 of the Bulgarian Constitution states that the

restrictions of the rights of the accused shall not exceed those

necessary for the administration of justice.

According to Section 70, a member of the National Assembly is

immune from detention and criminal proceedings except where accused of

a serious crime, in which case a decision of the National Assembly

would be required.

Section 93 para. 7 of the Penal Code defines as a "serious case"

a crime sanctioned by at least five years' imprisonment or capital

punishment. Para. 8 defines as an "extremely serious case" a crime the

consequences of which demonstrate the particularly dangerous character

of the act and its perpetrator for society.

Section 201 of the Penal Code states that a civil servant who

misappropriates public or private funds, objects and other valuables

handed to him in his capacity as a civil servant or entrusted to him

to safeguard or manage, shall be punished with imprisonment lasting up

to eight years.

According to Section 202 the punishment for the misappropriation

of funds by a civil servant shall be between one and ten years if, in

order to facilitate misappropriation, a further crime was committed,

or if the offence was committed together with other persons.

Section 203 para. 1 states: "Whoever misappropriates very large

amounts of public funds due to his position in office shall, in serious

cases, be punished with imprisonment lasting between ten and thirty

years."

Section 219 para. 1 states: "If a civil servant, in his

administration of assets or of money in his possession or in the

execution of work which he has been ordered to do, negligently brings

about considerable material damage, or the destruction or dispersion

of the assets, to the disadvantage of the service concerned or the

national economy, he will be punished with imprisonment of up to three

years or forced labour of general interest." According to para. 3, if

the offence is committed with premeditation and does not constitute

another, more serious offence, punishment shall be up to eight years'

imprisonment.

Section 282 states:

<Translation>

"(1) A civil servant who does not comply with his professional

obligations or who commits an abuse of power with the purpose of

obtaining a material advantage for himself or for a third person

or of damaging another person, and if not insignificant material

damage could arise, the punishment will be up to five years'

imprisonment ...

(2) If the act results in considerable material damage or has

been committed by a person occupying a high administrative post,

the punishment will be imprisonment lasting eight years ...

(3) If the above-mentioned act constitutes a particularly serious

case the punishment will last between three and ten years ...".

Section 10 para. 1 of the Code of Criminal Procedure proclaims

the equality of all persons during criminal investigations.

Section 50 defines the accused as the person against whom a

charge is brought according to the conditions and rules of the Code.

Section 75 permits the lawyer of the accused to meet his client

without other persons being present.

Section 100 provides for the preparation of minutes for every act

of investigation.

Section 147 para. 1 states that the measures of judicial control

will serve the purpose of preventing the accused from absconding, from

committing a new offence, or from collusion. According to para. 2, the

measures decided upon must relate to the social danger of the offence,

the evidence incriminating the accused, his state of health, his family

situation, his profession, and any other information concerning his

personality.

According to Section 148 para. 1, every decision ordering

detention on remand must mention the date and place of the decision,

the authority concerned, the case, the name and date of birth of the

detained person, the crime of which he is accused, and the grounds of

detention. According to para. 2, a copy thereof is transmitted to the

accused.

Section 152 states, insofar as relevant:

<Translation>

"(1) Detention on remand shall be imposed if the charges concern

crimes punishable with imprisonment of ten years or more or with

capital punishment.

(2) The measure envisaged in the previous paragraph shall not

be imposed if there is no danger of the accused evading justice

or committing another crime.

...

(4) The detained person may immediately file an appeal before

the court against the imposition of detention. The Court shall

decide within a time-limit of three days by means of a decision

which is final."

Section 177 states that the Public Prosecutor may conduct the

entire investigations or a part thereof.

Section 180 para. 1 states that the investigating authorities

conduct their work by means of decisions. Para. 2 requires every

decision to refer to the date and place when it was taken, the

authority concerned and its signature, the case, the grounds, and an

operative part.

Section 196 para. 2 states that if the criminal matter falls

within the jurisdiction of the Supreme Court, the investigation shall

be conducted by a Public Prosecutor of the General Prosecution.

Section 207 states that if in the course of the investigations

sufficient evidence has been adduced, and there is no ground to stay

the prosecution, the investigating judge will decide to commit the

applicant for trial.

Section 222 states that the investigations must be brought to an

end within two months after they commenced. A further prolongation of

two months is possible. In exceptional cases, the investigations may

last up to six months. If the period is prolonged after two months,

the Prosecutor General will decide on the detention on remand.

According to Section 7 (d) of the Bulgarian Passport Act, a

passport may be seised if "its holder by leaving the territory

constitutes a threat to the security of the Republic of Bulgaria".

COMPLAINTS

on remand, there was no reasonable suspicion of him having committed

a crime within the meaning of Article 5 para. 1 (c) of the Convention.

He further complains that no grounds were given as to the necessity of

his arrest and detention in order to prevent him from committing an

offence or fleeing after having done so within the meaning of Article

5 para. 1 (c) of the Convention.

suffered inhuman and degrading treatment contrary to Article 3 of the

Convention. He complains in particular that the authorities refused

to take into account the recommendations of various medical experts;

as a result, his health seriously deteriorated. Moreover, it was

impossible for him to meet relatives or members of his parliamentary

group and of human rights organisations, and contacts with his lawyers

were restricted.

the applicant's appeal on 13 July 1992, decided in camera without the

applicant or other persons being present. The applicant relies in this

respect on Article 6 of the Convention.

criminal proceedings were instituted against him on the basis of acts

which did not constitute a criminal offence at the time when they were

committed.

Public Prosecutor's order of 12 August 1992 which prohibited him from

writing articles while in detention on issues irrelevant to the

investigations.

the purpose of his detention was political and did not correspond to

the grounds listed under Bulgarian law.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 September 1992. The

applicant made further submissions on 8 September and 18 November 1992.

The application form was submitted on 7 May 1993, and the application

was registered on 25 May 1993.

On 21 October 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated

25 May 1994.

On 30 August 1994 the Commission decided to invite the parties

to an oral hearing on the admissibility and merits of the application

at which their submissions should cover in particular complaints under

Articles 3, 5 and 18 of the Convention.

The hearing took place on 12 January 1995. The Government were

represented by their Agent, Mrs. G. Beleva, and by Mrs. J. Miteva. The

applicant, who was also present, was represented by Mrs. I. Lulcheva,

a lawyer practising in Sofia in Bulgaria.

THE LAW

(Art. 5-1-c, 18) of the Convention of his detention on remand. He

further complains that while remanded in custody he suffered inhuman

and degrading treatment contrary to Article 3 (Art. 3) of the

Convention. Under Article 6 para. 1 (Art. 6-1) of the Convention he

complains of the decision of the Supreme Court of 13 July 1992. Under

Article 7 (Art. 7) of the Convention he submits that there was no legal

basis for the charges brought against him. Under Article 10

(Art. 10) of the Convention the applicant complains that he was

prohibited from writing articles while in detention.

admissibility of the application. They contend that the applicant has

submitted his complaints to another procedure of international

investigation or settlement within the meaning of Article 27 para. 1

(b) (Art. 17-1-b) of the Convention, namely the Inter-Parliamentary

Union; that part of the application is incompatible ratione temporis

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention; and that the applicant has not

complied with the requirements under Article 26 (Art. 26) of the

Convention.

a) In respect of the conditions set out in Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention the applicant submits that he did not

initiate the proceedings before the Inter-Parliamentary Union, and that

the complaints dealt with by that institution were different from those

raised before the Commission.

The Government contend that the Inter-Parliamentary Union has

been seised of the same issues as are now before the Commission, and

that it is irrelevant under Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention whether or not the decisions of such institutions have any

binding effect; in any event, the resolutions of the Inter-

Parliamentary Union have great political weight. The Government refer

here as an example to the outcome of the proceedings before the Human

Rights Committee established under the UN Covenant on Civil and

Political Rights. In the Government's view, it is also irrelevant

whether or not the institution concerned is inter-governmental.

According to Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention "the Commission shall not deal with any petition ... which

... has already been submitted to another procedure of international

investigation or settlement ...".

In the present case, the Human Rights Committee of the Inter-

Parliamentary Union examined in particular the conditions of the

applicant's detention. On 12 September 1992, at the 88th Conference

of the Inter-Parliamentary Council, the Committee issued a Report on

the applicant's case. The matter is still under consideration by the

Union.

The Commission observes that the Inter-Parliamentary Union is an

association of parliamentarians from all over the world, set up inter

alia to unite parliamentarians in common action and to advance

international peace and cooperation. The Union is a non-governmental

organisation. The organs of the Union may adopt resolutions which are

communicated by the parliamentarians concerned to the national

parliaments and to international organisations.

The Commission has examined the meaning and scope of Article 27

para. 1 (b) (Art. 27-1-b) of the Convention. It considers that the

term "another procedure" refers to judicial or quasi-judicial

proceedings similar to those set up by the Convention. Moreover, the

term "international investigation or settlement" refers to institutions

and procedures set up by States, thus excluding non-governmental

bodies.

The Commission considers that the Inter-Parliamentary Union

constitutes a non-governmental organisation, whereas Article 27 para.

procedures. It follows that the procedures of the Inter-Parliamentary

Union do not constitute "another procedure of international

investigation or settlement" within the meaning of Article 27 para. 1

(b) (Art. 27-1-b) of the Convention.

Accordingly, the present application cannot be declared

inadmissible under Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention.

b) In respect of the Commission's competence ratione temporis to

examine his application, the applicant submits that, while the facts

complained of originated before 7 September 1992, i.e. the date when

Bulgaria ratified the Convention, the situation complained of continued

after the Convention had entered into force in respect of Bulgaria.

The Government submit that a number of complaints raised by the

applicant are outside the Commission's competence ratione temporis.

Reference is made for instance to the seizure of the applicant's

passport; the decision of the Public Prosecutor of 12 August 1992

prohibiting the applicant from speaking alone with his lawyers; the

Public Prosecutor's order of 1 September 1992 prohibiting the applicant

from seeing other persons; and the period of the applicant's detention

up to 7 September 1992.

The Commission recalls, on the one hand, that with effect from

7 September 1992 Bulgaria ratified the Convention and recognised the

Commission's competence under Article 25 (Art. 25) of the Convention

to receive individual petitions. It follows that any complaints about

facts occurring prior to 7 September 1992 are incompatible ratione

temporis with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

On the other hand, insofar as the facts complained of relate to

the period after 7 September 1992, the application cannot be declared

inadmissible as being incompatible ratione temporis with the provisions

of the Convention. However, the applicant's various complaints raise

different issues in respect of the Commission's competence ratione

temporis. The Commission will therefore duly examine its competence

when dealing with the individual complaints.

c) In respect of the requirements under Article 26 (Art. 26) of the

Convention, the applicant points out that the Supreme Court on

13 July 1992 dealt in the last resort with his appeal against

detention. On 17 September 1992 the Supreme Court rejected the

applicant's further appeal. The applicant's request of 10 November

1992 for release from detention was dismissed by the Prosecutor General

on 11 November 1992, the applicant's lawyer being served with the

decision on 16 November 1992. By submitting his claims on

8 September 1992 and an application form on 7 May 1993 the applicant

complied in particular with the six months' rule under Article 26

(Art. 26) of the Convention.

The Government maintain that the applicant has not complied with

the requirements under Article 26 (Art. 26) of the Convention. It is

submitted that the applicant filed his application with the Commission

on 1 September 1992, i.e. two months before 16 November 1992, the date

on which the final decision on the matter had been notified to the

applicant and on which consequently all domestic remedies had been

exhausted.

Under Article 26 (Art. 26) of the Convention "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law, and within a period of six months from the date on which the final

decision was taken".

The Commission notes that the Supreme Court in the final resort

dismissed the applicant's appeal on 13 July 1992. The applicant then

filed his submissions with the Commission on 1 and 8 September 1992.

On 17 September 1992 the Supreme Court rejected the applicant's further

appeal, though the Court stated that it was possible to file a

complaint with the Prosecutor General. The applicant filed an appeal

with the Prosecutor General which the latter dismissed on 11 November

1992 Within six months of this date, i.e. on 7 May 1993, the

applicant submitted his application form to the Commission.

The applicant has therefore exhausted domestic remedies and also

complied with the six months' time-limit as required by Article 26

(Art. 26) of the Convention. It follows that the application can also

not be declared inadmissible on these grounds.

3 The applicant complains that when he was arrested and detained

on remand there was no reasonable suspicion of him having committed a

crime within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention. He further complains that no grounds were given as to the

necessity of his arrest and detention in order to prevent him from

committing an offence or fleeing after having done so within the

meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. The

applicant also invokes Article 18 (Art. 18) of the Convention.

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention states:

"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; ...".

Article 18 (Art. 18) of the Convention states:

"The restrictions permitted under this Convention to the said

rights and freedoms shall not be applied for any purpose other

than those for which they have been prescribed."

a) The Commission recalls that any complaints about facts relating

to a period prior to 7 September 1992, the date of the entry into force

of the Convention in respect of Bulgaria, are incompatible ratione

temporis with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

In the present case, it is true that the Supreme Court in the

final resort dismissed the applicant's appeal on 13 July 1992, i.e.

before 7 September 1992, the date of the entry into force of the

Convention in respect of Bulgaria. After the Convention entered into

force in respect of Bulgaria, the applicant on 10 November 1992 filed

a request for release from detention on remand which the Prosecutor

General dismissed on 11 November 1992 on the ground that there were no

new circumstances justifying modification of detention.

The Commission is therefore competent to examine the grounds

given by the Supreme Court on 13 July 1992 for the applicant's arrest

and detention, insofar as these grounds remained unchanged and

continued to exist after the entry into force of the Convention in

respect of Bulgaria, until the applicant's release from detention on

30 December 1992.

b) The applicant submits that, insofar as the authorities refer, in

respect of the offence which he had allegedly committed, to Section 203

of the Bulgarian Penal Code, there was no claim, and no evidence, that

he misappropriated funds personally, and to his own benefit. Rather,

the acts of which he was accused concerned collective decisions of the

Government of the Republic of Bulgaria over the period 1986-1989.

Those decisions were taken within the constitutional powers of the

Council of Ministers, and in accordance with the policies of the

Bulgarian Government and the recommendations of the United Nations and

their agencies.

The applicant further states that Bulgarian law does not list the

grounds stated in the order of 9 July 1992 which referred to the nature

of the crime and his personality. Bulgarian law also does not list the

grounds stated in the decision of the Supreme Court of 13 July 1992,

namely that the applicant was detained because he was a member of the

National Assembly, and had appealed against the withdrawal of his

passport.

The applicant also invokes Article 18 (Art. 18) of the Convention

in that the purpose of his detention was political and did not

correspond to the grounds listed under Bulgarian law. In his view,

confirmation herefor can be seen in the decision of 12 August 1992

which banned meetings between the applicant and his lawyers, thereby

indicating that the true purpose of his detention was to restrict his

right actively and freely to express his political views as a member

of the National Assembly.

The Government submit that this part of the application is

manifestly ill-founded. Thus, the applicant's detention on remand was

lawful in that it was imposed by the competent organs on grounds

provided for by law. Reference is made here in particular to Sections

147 and 152 para. 1 of the Code of Criminal Procedure invoked by the

domestic authorities.

The Government submit that extending aid to Third World countries

is not an offence under Bulgarian law. However, this is not the

correct formulation of the grounds in respect of which charges were

brought against the applicant and other persons. Rather, the charges

were that, under the cover of development assistance, monies had been

transferred in different "deals" which infringed Bulgaria's economic

interests.

The Government also refer in this context to the Convention

organs' case-law, in particular the Bozano case, according to which,

where the Convention refers back to domestic law as in Article 5

para. 1 (c) (Art. 5-1-c), the Convention organs' supervisory powers are

limited since it is in the first place for the national authorities,

notably the courts, to interpret and apply domestic law (see Eur. Court

H.R., judgment of 18 December 1986, Series A no. 111, p. 25, para. 58).

The Government submit that the applicant's detention served no

other purpose than that for which it was prescribed, as set out in

Article 18 (Art. 18) of the Convention. The domestic authorities

strictly apply Bulgarian law equally to all persons, including the

applicant.

The Commission finds that these complaints raise serious

questions of fact and law which are of such complexity that their

determination should depend on an examination of the merits. This

aspect of the case cannot, therefore, be regarded as being manifestly

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

Convention, and no other ground for declaring it inadmissible has been

established.

4 The applicant complains under Article 3 (Art. 3) of the

Convention of inhuman and degrading treatment which he allegedly

suffered while remanded in custody. He complains in particular that

the authorities refused to take into account the recommendations of

various medical experts; as a result, his health seriously

deteriorated. For instance, he suffered stenocardiac arrests and had

worse basic indicators of his blood count. Twice he had to undergo

treatment in the intensive care unit at the Sofia Military Hospital.

He was sent to the Sofia Penitentiary Hospital despite the danger of

infections posing a risk to his health and life.

The applicant also complains of degrading treatment contrary to

Article 3 (Art. 3) of the Convention. Thus, it was impossible for him

to meet relatives or members of his parliamentary group and of human

rights organisations, and contacts with his lawyers were restricted.

The Government submit that this complaint is manifestly ill-

founded as the authorities constantly reviewed the applicant's health

and adequately reacted to the applicant's complaints and the various

medical reports. Reference is made to the fact that after 7 September

1992, the date on which the Convention entered into force in respect

of Bulgaria, the applicant spent altogether only 11 days in prison, and

the remaining time, altogether 137 days, in various hospitals, among

them the best in Bulgaria.

Article 3 (Art. 3) of the Convention states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

According to the Convention organs' case-law, ill-treatment

within the meaning of Article 3 (Art. 3) of the Convention must attain

a certain minimum level of severity, if it is to fall within the scope

of this provision. The assessment of this minimum is in the nature of

things relative and will depend on all the circumstances of the case

(see Eur. Court H.R., Ireland v. the United Kingdom judgment of

18 January 1978, Series A no. 25, p. 65, para. 162).

With regard to the nature of the present complaints, the

Commission further recalls its case-law according to which inhuman

treatment may be found to exist when a person's detention as such

causes him ill-health. In such cases, however, the Commission will

examine in particular the medical treatment at that person's disposal.

There remains furthermore the State's obligation to maintain a

continuous review of the detention arrangements employed with a view

to ensuring the health and well-being of all prisoners, having due

regard to the ordinary and reasonable requirements of imprisonment (see

No. 8224/78, Bonnechaux v. Switzerland, Comm. Report 5.12.79, D.R. 18

p. 126 et seq. at p. 148; No. 8317/78, McFeeley and others v. the

United Kingdom, Dec. 15.5.80, D.R. 20 p. 44 et seq. at p. 81).

In the present case the Commission will first examine the

applicant's state of health while in detention.

The Commission notes that before 7 September 1992, i.e. the date

on which the Convention entered into force in respect of Bulgaria,

medical reports were issued on the applicant's health between 18 and

28 August 1992.

Thereafter, further reports were issued on 16 September 1992 and

on 2 October 1992. These reports were prepared by numerous medical

experts, among them the leading Bulgarian cardiologist. It transpires

from these reports that the applicant suffered from malignant chronic

lympholeucosis, arterial hypertension and ischemia of the heart. While

the applicant had apparently suffered from angina pectoris, there was

no sign of a myocardial infarct.

While the applicant's state of ill-health was serious, the

Commission considers that his ailments were due to disorders which were

mainly of a long-lasting nature. Indeed, when preparing their reports,

the experts also relied on previous reports on the applicant's health

of the years 1988-1990. It has therefore not sufficiently been made

out that the applicant's ailments arose as the direct consequence of

his detention (see No. 9044/80, Chartier v. Italy, Comm. Report

8.12.92, D.R. 33, p. 41 et seq., at p. 58).

Against this background the Commission will examine whether the

treatment afforded to the applicant by the authorities was adequate.

In particular, a problem could arise under Article 3 (Art. 3) of the

Convention if no, or only insufficient, treatment was available to him.

On 7 September 1992, i.e. the date on which the Convention

entered into force in respect of Bulgaria, the applicant was

transferred from the Sofia Penitentiary Hospital to the National

Investigation Service. However, following a deterioration of his

cardiovascular condition on 10 and 11 September 1992, he was taken to

the intensive care unit of the Sofia Higher Military Medical Institute.

In the medical report of 16 September 1992 it was found that the

applicant should take certain medicaments and be placed in a hospital

environment. The report of 2 October 1992 recommended certain

medication and a convalescence period of three weeks under medical

supervision at a hospital. As a result, the applicant remained at the

Higher Military Medical Institute until 30 November 1992 when he

returned to the National Investigation Service. A week later, when his

health deteriorated, he was again taken to the Higher Military Medical

Institute. On 30 December 1992 he was released from detention.

The Commission finds that the applicant's state of ill-health was

monitored by numerous medical specialists, and that upon their

recommendation he was placed in hospital where he received the required

medical treatment. Indeed, after 7 September 1992 most of his

detention was spent in hospital. At one stage he was even brought to

the intensive care unit of the Sofia Higher Military Medical Institute.

Insofar as the applicant submits that he risked infection, inter

alia at the Sofia Penitentiary Hospital, he has not alleged that he was

brought into close contact with persons suffering from contagious

diseases, and indeed, it does not transpire that he was infected with

any particular illness while in hospital.

On the whole, the Bulgarian authorities reacted adequately to the

applicant's state of ill-health. They continuously reviewed the

detention arrangements employed with a view to ensuring the applicant's

health as required by Article 3 (Art. 3) of the Convention.

As a result the Commission considers that the manner in which the

applicant underwent detention does not constitute treatment attaining

the minimum level of severity falling within the scope of Article 3

(Art. 3) of the Convention.

Insofar as the applicant complains that the prohibition to meet

relatives and other persons amounted to degrading treatment contrary

to Article 3 (Art. 3) of the Convention, the Commission finds no

separate issue under this provision.

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

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

Convention.

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

Convention that the Supreme Court, when considering his appeal on

13 July 1992, decided in camera without the applicant or other persons

being present. However, the fact complained of relates to a period

prior to 7 September 1992 on which date the Convention entered into

force in respect of Bulgaria. This part of the application is

therefore incompatible ratione temporis with the provisions of the

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

6 Under Article 7 (Art. 7) of the Convention the applicant

complains that criminal proceedings were instituted against him on the

basis of acts which did not constitute a criminal offence at the time

when they were committed.

The Commission notes that the proceedings instituted against the

applicant have not yet been terminated. He has not, therefore, been

"held guilty of any criminal offence" as set out in Article 7 para. 1

(Art. 7-1) of the Convention.

The applicant cannot, therefore, be regarded as a victim of a

violation of Article 7 (Art. 7) of the Convention. This part of the

application is therefore manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

7 Under Article 10 (Art. 10) of the Convention the applicant

complains that during detention he was prohibited from writing articles

on issues irrelevant to the subject of the investigations. The

applicant refers here in particular to the Public Prosecutor's order

of 12 August 1992 which, as a result of the applicant's article

published on 11 August 1992, prohibited him from transmitting written

materials to his lawyers. The prohibition was renewed in November

1992 The applicant submits that the order of 12 August 1992 was fully

carried into effect until the end of August and in early September

1992.

The Government submit that the restrictions of the applicant's

freedom of expression corresponded to the requirements of detention.

In fact, there was no prohibition, only a limitation of the applicant's

contacts with his lawyers. While in detention the applicant wrote

altogether 26 substantial newspaper articles, seven of which appeared

after 7 September 1992, the date on which the Convention entered into

force in respect of Bulgaria. He also wrote a book which was published

after his release.

The Commission notes the applicant's submissions that this

prohibition had its effects in August and in early September 1992. In

the Commission's opinion, the applicant has not sufficiently

established any interferences with his right to freedom of expression

after 7 September 1992, which is the date of the entry into force of

the Convention in respect of Bulgaria.

This aspect of the application is therefore incompatible ratione

temporis with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints under Articles 5 para. 1 and 18

(Art. 5-1, 18) of the Convention regarding his detention on

remand; and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (H. DANELIUS)