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FOURTH
SECTION
CASE OF
PRESCHER v. BULGARIA
(Application
no. 6767/04)
JUDGMENT
STRASBOURG
7 June
2011
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 Prescher v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Fatoş Araci, Deputy Section Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6767/04) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mrs Bella Asenova
Prescher (“the applicant”), on 16 February 2004.
- The
applicant was represented by Ms G. Yonkova, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms R. Nikolova, of the Ministry of
Justice.
- The
applicant alleged, in particular, that the criminal proceedings
against her had lasted too long, that the travel ban imposed on her
while they were pending had been unjustified and that the resulting
interference with her family life had been disproportionate.
- On
10 September 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 of the Convention). The case was subsequently
assigned to the Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1962 and lives in Hanover.
She has been married to a German national since 1996.
A. The criminal proceedings against the applicant
- On
18 September 1992 an investigation was opened in Bulgaria against the
applicant, who lived in Germany at that time, on suspicion that she
had issued fraudulent cheques. On 28 September 1992 the applicant was
charged in absentia and her pre-trial detention was ordered. A
warrant for her arrest was issued and the proceedings were suspended.
- The
applicant learned of the proceedings against her on an unspecified
date in late 1995 during a telephone conversation with the Bulgarian
prosecuting authorities. On 14 December 1995 she was arrested by the
German police in connection with extradition proceedings opened
against her. Later on she was released. On 13 March 1998 the German
authorities decided to extradite her. On 5 October 1998 they invited
her to appear before the Bulgarian authorities by 26 October 1998,
which she did not do. On 12 December 1998 the applicant was
extradited to Bulgaria and taken to Sliven prison.
- The
criminal proceedings were resumed on 29 January 1999. On 17 May
1999 the applicant was charged again and questioned.
- On
9 July 1999 the Sofia district prosecutor terminated the criminal
proceedings against the applicant, finding that the charges had not
been proved.
- It
appears that thereafter the applicant returned to Germany.
- On
11 October 2001 the Sofia city prosecutor quashed the decree of 9
July 1999 and remitted the case for further investigation.
- On
2 July 2002 the applicant travelled to Bulgaria and was arrested at
Varna airport. The next day she was informed that the proceedings had
been resumed and was questioned. She was released on bail on 11 July
2002.
- In
the period from 3 December 2002 to 4 June 2004 the investigator
proposed on two occasions that the criminal proceedings be
discontinued but the Sofia city prosecutor ordered a further
investigation and on the latter date sent the case to Sliven regional
public prosecutor's office. In a decree of 2 July 2004 the latter
discontinued the criminal proceedings and referred the file to the
Sofia district public prosecutor's office. A jurisdiction dispute
arose, which was settled on 9 November 2004 when Burgas appeals
public prosecutor's office quashed the decree of 2 July 2004 and held
that the Sofia city public prosecutor's office had authority to deal
with the case.
- Meanwhile,
on 14 October 2004 the applicant made a request under Article 239a of
the Code of Criminal Procedure that the case against her be examined
by a court. On 3 December 2004 the prosecuting authorities sent the
file to the Sofia District Court. It appears that a jurisdiction
dispute arose between the District Court and the Sofia City Court,
which was settled on 7 February 2005.
- On
18 February 2005 the District Court invited the Sofia city prosecutor
to indict the applicant within two months. It appears that this was
done on an unspecified date in 2005.
- On
26 October 2007 the District Court terminated the proceedings against
the applicant as time-barred.
B. The prohibition on leaving the country
- On
22 July 2002 the Sofia city prosecutor imposed a ban on the
applicant's leaving Bulgaria without permission.
- In
2002 the applicant made two requests to be allowed to visit Germany,
which were dismissed by the Sofia city prosecutor on 27 September
and 12 December 2002, respectively.
- On
13 May 2003 the applicant again requested to be allowed to travel to
Germany, stating that her husband was ill. She submitted medical
certificates. On 15 May 2003 the Sofia city prosecutor dismissed the
request. He stated that the family reasons put forward by the
applicant did not justify the temporary lifting of the travel ban. He
further noted that the case was factually and legally complex and
required further investigation. The prosecutor also considered that
the risk of the applicant absconding could not be ruled out, noting
the 1995-98 extradition proceedings.
- A
subsequent request by the applicant was dismissed on 14 August 2003.
The refusal was upheld by the City Court on 29 August 2003.
- On
10 December 2003 the applicant again requested to be allowed to visit
Germany for a month in order to spend the festive season with her
family. She argued that she had never obstructed the investigation.
On 12 December 2003 the Sofia city prosecutor again dismissed
her request. Following an appeal, on 31 December 2003 the City Court
upheld the refusal, reasoning that there was a risk that the
applicant would not return to Bulgaria, which would additionally
delay the criminal proceedings. The court noted that the delays which
had occurred between 1992 and 2001 had been exclusively due to the
applicant's behaviour.
- It
appears that the applicant made another unsuccessful request for
permission to travel on an unknown date in 2004.
- There
is no information as to whether the applicant requested the lifting
of the ban after 29 April 2006, when the Code of Criminal Procedure
of 2005 came into force. The applicant states that the District Court
allowed her to visit her family in Germany on two occasions after 8
August 2006.
- The
prohibition on leaving the country was cancelled on 26 October 2007,
when the criminal proceedings were terminated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Article 239a of the Code of Criminal Procedure (CCP)
of 1974
- An
amendment of June 2003 introduced the new Article 239a of the CCP,
which provided for the opportunity for a person who has been charged
to have his case examined by a court if the investigation has not
been completed within the statutory time-limit (two years in
investigations concerning serious offences and one year in all other
investigations).
B. Prohibition on leaving the country
- Article
35 § 1 of the 1991 Constitution provides that “[e]veryone
shall have the right to ... leave the country” and that this
right “may be subject to restrictions provided for in the law
in the interest of national security or for the protection of public
health and the rights and freedoms of others”.
- Pursuant to Article 153a § 1 of the Code of
Criminal Procedure of 1974, in force until April 2006, the public
prosecutor had the power to rule that an individual accused of a
deliberate offence punishable by imprisonment may not leave Bulgaria
without a prosecutor's permission. Until April 2006, such decisions
were not amenable to judicial review. Where a request for permission
to travel on particular dates was lodged the prosecutor had to rule
within three days (Article 153a § 2), this ruling being amenable
to judicial review (Article 153a §§ 3 and 4). At the trial
stage, the power to impose a travel ban was vested in the trial court
(Article 153a § 5). The Supreme Court of Cassation has held that
trial court decisions under Article 153a § 5 were subject to
appeal to a higher court (реш. №
129 от 8 май
2003 г. по н. д. №
780/2002 г., ВКС, I н.
о.).
- On
29 April 2006 the above provisions were superseded by Article 68
of the Code of Criminal Procedure 2005, The legal regime described
above remained unchanged, except that it became possible for the
courts to set aside the initial decision of the prosecutor to impose
a travel ban in cases where there was no risk of fleeing abroad.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against her had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”
- The
Government argued that the case had been factually and legally
complex and the charges against the applicant had been serious. The
delays which had occurred before 1998 had been caused to a large
extent by the applicant, who had absconded and obstructed the
investigation. They further argued that the applicant had not availed
herself in due time of the right under Article 239a of the 1974 CCP
to have her case examined by the court.
- The
applicant replied that on 14 October 2004 she had made a request
under Article 239a of the CCP 1974. However, due to a jurisdiction
dispute, her request was not examined until 18 February 2005. She
further argued that she had not caused any delays at the trial stage
of the proceedings. She maintained that the overall length of the
proceedings of about fifteen years had been excessive.
A. Period to be taken into consideration
- The
parties agreed that the applicant had learned of the criminal
proceedings against her on an unspecified date in 1995, when she had
a telephone conversation with the prosecuting authorities. However,
the Court accepts that the applicant's situation was substantially
affected on 14 December 1995, when she was arrested by the
German authorities in connection with the extradition proceedings
against her (see Foti and Others v. Italy, 10 December 1982,
§§ 52 and 53, Series A no. 56). The period ended on 26
October 2007, when the District Court terminated the proceedings as
time-barred.
- However,
the Court notes that only those periods when the case was actually
pending, that is, the periods when there had been no effective
decision in the determination of the charges against the applicant
and when the authorities were under an obligation to take such a
decision, should be taken into account (see, mutatis mutandis,
Skorobogatova v. Russia, no. 33914/02, § 39, 1
December 2005). Accordingly, the period between 9 July 1999 and
11 October 2001 is not to be counted towards the total period,
because there were no criminal charges against the applicant, as the
proceedings had been terminated. Thus the proceedings were pending
between 14 December 1995 and 9 July 1999 and between 11 October 2001
and 26 October 2007.
- Accordingly,
the period under consideration is approximately nine years and seven
months, during which time the case was pending before the pre-trial
authorities and the trial court.
B. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3(a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case
and the conduct of the applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- Applying
these criteria, the Court does not find that that the applicant's
case was particularly complex. In respect of the applicant's conduct,
it notes that she refused to appear before the pre-trial authorities,
which caused a delay of about three years (see paragraph 7 above). On
the other hand, the Court finds a number of delays in the
proceedings, which were attributable to the authorities, such as
several remittals of the case by the public prosecutor to the
investigating authorities, periods of inactivity, and jurisdiction
disputes (see paragraphs 13-14 above).
- In
view of the above, having regard to the overall duration of the
proceedings and the delays attributable to the authorities, the Court
considers that in the instant case the length of the proceedings
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO
THE CONVENTION
- The
applicant complained that the prohibition on her leaving the country
pending the criminal proceedings had been unjustified and
disproportionate. She relied on Article 2 of Protocol No. 4, which
provides, in so far as relevant:
“2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of [that right] other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others...”
- The
Government argued that the ban had been imposed on the applicant in
compliance with the law and in the interests of criminal justice. The
measure was necessary because the applicant had obstructed the
investigation.
- The
applicant contested these arguments. She maintained that the ban had
not been necessary as there had been no risk that she would abscond.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3(a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that Article 2 of Protocol No. 4 guarantees to any
person the right to freedom of movement, including the right to leave
any country. Any measure restricting that right must be in accordance
with the law, pursue one of the legitimate aims referred to in the
third paragraph of the above-mentioned Convention provision and be
necessary in a democratic society for the achievement of that aim.
Such a measure must strike a fair balance between the public interest
and the individual's rights (see Gochev v. Bulgaria, no.
34383/03, § 44, 26 November 2009).
- The
Court observes that in this case it was not disputed that the ban
imposed on the applicant constituted an interference with her rights
under Article 2 of Protocol No. 4.
- With
regard to the lawfulness and the legitimate aim of this interference,
the Court is satisfied that the ban was based on the provisions of
the relevant legislation (see paragraphs 26-28 above). Furthermore,
being designed to prevent the applicant from fleeing abroad, and thus
to ensure the smooth progress of the proceedings and the possibility
of enforcing any resultant sentence, the ban may be said to have
pursued the legitimate aims of maintenance of public order and
prevention of crime.
- The
Court observes that in the instant case the ban was imposed on
22 July 2002 and was lifted on 26 October 2007. Thus, it lasted
about five years and three months.
- Even
if justified at the outset, a measure restricting an individual's
freedom of movement may become disproportionate if it is extended
over a long period (see, mutatis mutandis, Gochev,
cited above, § 49, with further references).
- The
Court notes that the authorities had, at least initially, reason to
be apprehensive about the possibility of the applicant's fleeing. The
applicant refused to cooperate with the Bulgarian investigating
authorities, which necessitated her extradition from Germany and
delayed the criminal proceedings by three years. This might have been
sufficient to justify the ban at the beginning.
- However,
as time went by, other factors militating in favour of lifting the
ban emerged: the pace of the proceedings was unusually slow, the
applicant did not obstruct the investigation and did not try to
abscond although she was at liberty in Bulgaria, her prolonged
absence from Germany increased the burden on her family life and she
was not able to take care of her husband, who was ill. None of these
matters seems to have been adequately addressed by the courts dealing
with the applicant's requests and appeals. On the contrary, the
prosecuting authorities and the courts continued automatically to
rely on the risk that the applicant would abscond, a risk which must
have receded in view of the amount of time which passed and the
apparent inaction of the authorities conducting the proceedings.
Furthermore, the authorities did not consider whether the applicant's
presence continued to be necessary after so many years of
investigation. It is true that in August 2006 the applicant received
permission to travel abroad on particular dates (see paragraph 23
above). Although she did not provide information on the reasons which
motivated the grant of permission, the Court cannot but note that it
was given after the ban had been applied for four years and shortly
before the expiration of the statutory prescription, when it must
have become clear that the proceedings stood little chance of ending
with a final judgment.
- The
Court, taking into account the overall duration of the travel ban
before its temporary lifting and the other circumstances outlined
above, finds that the Bulgarian prosecuting authorities and courts
failed to provide sufficient justification for the continued
prohibition on the applicant's travelling abroad throughout its
duration (see Riener v. Bulgaria, no. 46343/99, §
128, 23 May 2006).
- There has therefore been a violation of Article 2 of
Protocol No. 4.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the travel ban, which had prevented her
from maintaining normal contact with her husband in Germany, had
amounted to an unjustified interference with her family life. She
relied on Article 8 of the Convention, which provides, in so far as
relevant:
“1. Everyone has the right to respect
for his ... family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government argued that the travel ban had not been disproportionate
because the applicant's husband could join the applicant in Bulgaria.
Moreover, the applicant had the opportunity to maintain contact with
her husband by telephone, to receive correspondence and to be visited
by him while in custody.
- The
applicant submitted that the lengthy and unjustified travel ban had
practically destroyed her relations with her husband in Germany,
which could not be regarded as justified for the achievement of any
legitimate aim. Nor could her husband be required to mitigate the
effects of the ban by settling in Bulgaria.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible. However, having
regard to the reasons for which it found a violation of Article 2 of
Protocol No. 4 (see, in particular, paragraph 50 above), the
Court does not consider it necessary to examine the same facts again
by reference to Article 8 (see Riener, cited
above, § 134, and A. E. v. Poland, no.
14480/04, §§ 53 and 54,
31 March 2009).
IV. THE REMAINDER OF THE APPLICANT'S COMPLAINTS
- The
applicant also complained, relying on Article 6 §
3 (a) and (c) of the Convention, that she had not been informed
promptly of the nature and cause of the accusation against her and
had not been allowed to meet her lawyer when she was arrested by the
Bulgarian authorities on 12 December 1998. She further
complained under Article 5, §§ 1,
2 and 3 of the Convention that her arrests on 12 December 1998 and 2
July 2002 had been unlawful, that she had not been informed promptly
of the reasons for them and had not been brought promptly before a
judge.
- The
Court has examined the remainder of the applicant's complaints as
submitted by her. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols.
- It
follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
V. 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
1. Pecuniary damage
- The
applicant claimed the following amounts in respect of pecuniary
damage: 1) 40,000 euros (EUR) paid by her husband to cover her living
expenses in Bulgaria in the period from 2002 to August 2006; and
2) EUR 4,426 for plane tickets. In support of these claims
she presented copies of bank statements, as well as air travel
reservations and plane tickets dating from the end of 2006 and 2007
concerning trips made by the applicant. Some of the tickets concerned
dates after the lifting of the travel ban.
- The
Government stated that there was no causal link between the support
paid by the applicant's husband and the violations of the Convention,
since it was likely that the applicant was being supported by her
husband even before the period under consideration. They further
argued that the claim for travel expenses had not been supported by
sufficient documents.
- The
Court considers that the above claims are not supported by convincing
evidence. As regards sums allegedly paid by the applicant's husband
for her living expenses, the applicant has not convincingly
established the nature of the alleged payments and any causal link
with the violations found (see Riener v. Bulgaria,
cited above, no. 46343/99, § 163). The same applies with regard
to the claim for the price of plane tickets. Accordingly, the Court
dismisses the claims for compensation for pecuniary damage.
2. Non-pecuniary damage
- The
applicant claimed EUR 1,250,000 for the period during which she had
been prohibited from leaving the country and generally, for
violations of the Convention in her case.
- The
Government argued that the claim was excessive.
- The
Court considers that the applicant must have suffered non pecuniary
damage as a result of the violations of the Convention found in the
present case. Having regard to the materials in its possession and
ruling on an equitable basis, it awards EUR 5,000 to the applicant,
plus any tax that might be chargeable.
B. Costs and expenses
- The
applicant claimed EUR 2,769.60 for the costs and expenses incurred
before the Court, of which EUR 2,400 were for lawyer's fees and EUR
369.60 were for the costs of the applicant's lawyer's travel to
Hanover. She further claimed 4,000 levs (BGN) for lawyer's fees
incurred in the domestic proceedings and BGN 1,500 paid for her bail.
She submitted a time-sheet in connection with the proceedings before
the Court and receipts for the travel expenses.
- The
Government considered these amounts excessive and unsubstantiated. As
to amount of the bail, they argued that it must have been restored to
the applicant when the proceedings had been discontinued.
- The
Court reiterates that an applicant may recover his costs and expenses
only in so far as they have been actually and necessarily incurred
and are reasonable as to quantum. In the instant case, having regard
to the documents in its possession and the above-mentioned criteria,
the Court considers it reasonable to award the applicant EUR 1,000.
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
- Declares admissible the complaints concerning
the length of proceedings, the prohibition on leaving the country and
the alleged interference with the applicant's family life, and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of
the excessive length of the criminal proceedings against the
applicant;
- Holds that there has been a violation of Article
2 of Protocol No. 4 to the Convention;
- Holds that there is no need to examine
separately the complaint under Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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
on the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
