The Challenges in front of the Bulgarian Magistrates concerning the practice and application of the European Convention on Human Rights upon taking decisions for lawful arrest of the citizens.
The right of liberty in the system of values, acquired from The States that belong to the democratic society, takes a central position, which is confirmed by the enormous number of case-law practice in front of The European Court on Human Rights upon the application of Article 5 of the European Convention on Human Rights. The Convention leads in minimal standards for the protection of human rights and the basic freedoms which have to be respected by the Member-States of the Council of Europe, and also to be prevented without any limitations in this respect, except the ones, which are explicitly mentioned in the Convention. In the recent years ,developing the democratic society in our country, following the huge social-economic reforms, taking place in the state, and the enlarging rate of criminality, the Bulgarian legislator and magistrates are looking forward to enforce the European guarantees on protection of human rights, taking into consideration the requirements of the society for effective and fair criminal trial. Following this, it must be noted that the right of liberty is of primary importance in a democratic society, but in some cases the competent State bodies ought to take measures for limiting that right of the individual, in order to protect from further offenses and to guarantee security of the other members of the society. These limitations are explicitly put forward in the wording of Article 5, point 1,A-F of the European Convention on Human rights. First of all they must be interpreted strictly without any misinterpretations, and it shouldn’t be extended the meaning of them, secondly each of these limitations must be provided in the legislation of the country, which has to be clear enough, understandable and admissible for any person in the territory of the state, and also to be predictable. On the third these limitations of the right of liberty must be applied only according the procedures, prescribed by law- in an open, public and fair hearing in front of impartial and independent judicial body, created by the power of law, and following certain rules, that guarantee the equality of procedural arms of the adversarial parties and their possibilities to represent them.
Article 5(1)(c) governs the arrest and detention of persons for the purpose of enforcing criminal law. It serves the initiation of criminal proceedings. The power of arrest is a necessary element of the criminal justice system, but must be properly exercised in order to comply with Article 5.
It is important to note that the European Convention on Human Rights, enters only the minimal standards that are mandatory for the State’s legislation. However, each State is free to develop those standards in its national legislation as well as to incorporate more rigid ones as long as it does not deviate from the basic prerequisites and procedural safeguards, set up by the Convention.
There are three cumulative grounds for arrest under Article 5(1)(c):
o For the purpose of bringing before the competent legal authority on reasonable suspicion of committing an offence.
o Where reasonably necessary to prevent the commission of an offence.
o To prevent a person fleeing after commission of an offence.
The arrest is legal where there is a reasonable suspicion that the accused party has committed an offence or/and the arrest can be reasonably considered needed for prevention the commission of an offence that the accused person intends to commit or is committing at the moment. The detention additionally requires probability of fleeing оr the existence of as reasonable ground to suppose that once released the arrested person will again commit an offence. It should be accepted that grounds for detention are not explicitly indicated as the Institutions have acknowledged the risk of destroying evidence, the risk of manipulation of witnesses.
As most cases that have come before the Court under Article 5(1)(c), have concerned reasonable suspicion of having committed an offence, the focus will be placed on the first ground.
For the purposes of Article 5(1)(c) detention ceases to be justified on the day on which the charge against the person is determined. If a person is lawfully convicted, the subsequent detention is governed by Article 5(1)(a); if acquitted, he or she must be released.
“Reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.
The level of suspicion necessary does not therefore mean that the investigating authorities should have obtained sufficient evidence to bring charges at the point of arrest, or even while the person is in their custody. The arresting person does not need to be certain that an offence has in fact been committed.
Art.5 p.1(c) requires only the existence of “reasonable suspicion”. It is not mandatory the commission of the criminal offence or its exact character to be determined at the moment of the arrest. The interrogation at the deprivation of liberty under art.5 p.1 (c) aims to help the investigation through confirmation or rejection of the grounds for the arrest. Whether the continuing existence of the suspicion is sufficient to ground the continuing deprivation of liberty is an issue that refers to art. 5 p.3 not to art.5 p.1(c)
At the same time if an individual is arrested due to reasonable suspicion of having committed an offence or in order to prevent the commission of an offence or the fleeing after the commission, the requirement of the ECHR are observed only if the arrest or the detention aim the accused party to be brought to institution authorized by law, interpreted as competent judicial authority. The Court adopted this idea in 1961 and sticks to it in the Greek case as well as in the case Ireland v. Great Britain. Everyone arrested under Article 5(1)(c) is entitled to be brought before a “competent legal authority” – judge or other officer authorised by law to exercise judicial power. The relevant court must have jurisdiction to hear the case, must be independent by the parties, and must have power to make binding decisions concerning release.
What is reasonable depends on the circumstances of the case.
· There are several cases on Art.5.3. against Bulgaria, where the Court gradually changes its views in regard of reasonable suspicion. In the first cases, the Court accepted the Government’s views that detention was based on “reasonable suspicion”. Later on the Court discussed “reasonable suspicion” as a conditio sin e qua non and in recent cases it usually mentions that “reasonable suspicion does not in itself suffice to order detention”. The fact is that Bulgarian law and practice presumed that the suspicion of prosecution authorities was reasonable. Until recently the court was required to determine a measure of constraint in all circumstances – even where there was nothing in the file to support such reasonableness in the case. The 2006 new Code of Criminal Procedure makes progress in this regard, by saying that the restraining measure - detention in custody, shall be taken when there is a reasonable suspicion that the accused has committed a crime, which is punishable with imprisonment or a more severe punishment, and at the same time the evidence on the case indicate that a real danger that the accused may abscond or commit a crime exists.
An “offence” for the purposes of Article 5(1)(c), must be one which is “concrete and specific” The suspicion must therefore relate to past conduct capable of amounting to a specific criminal offence, not an intention to commit an offence.
Reasonable suspicion under Article 5(1)(c) is the basis of detention. The moment when reasonable suspicion is dispelled, the detention, once lawful at the beginning, ceases to be lawful. The fact that a detainee is released without being brought before the competent legal authorities does not necessarily invalidate the arrest or detention - providing that a person is detained in a manner consistent in all other ways with Article 5(1)(c), and provided he or she is released in a timely fashion.
The hypothesis of legal deprivation of liberty under art. 5, p.1 (c) refers mostly to the measure of constraint «Detention on remand» and the equalized to it «Home arrest» regulated in articles 56, 57, 63, 64 in the Bulgarian Criminal Procedure Code. The Bulgarian legislation underwent a lot of amendments in the field influenced by the European standards for protection of human rights. The judgments of the European Court of Human Rights in Strasbourg on the cases Lukanov v. Bulgaria 1997, Asenov v. Bulgaria 1998, Nikolova v. Bulgaria, Ilijkov v. Bulgaria played a crucial role for the reform of the Bulgarian criminal procedure. The echo of these judgments against our country led to significant amendments in Criminal Procedure Code responding to the spirit and the purposes of ECHR and providing maximum guaranties limiting the arbitrary deprivation of liberty.
The risk of arbitrary detention on remand of a person accused in committing a crime is reduced by the legislative regulation of the following principles that are underlied in the amendments of the Criminal Procedure Code from 1999, 2001 and 2003 , these principles are completely valid in the Bulgarian Criminal Procedure Code now in force. First of all the decision for detention on remand should be taken only by a judicial authority that is legally and practically independent from the executive power and the parties, including from the prosecution. Secondly this decision could be taken only after a public, competitive hearing giving equal opportunities to the opposite theses. Thirdly the detention is not permissible when there is not enough evidence case materials collected in accordance with the applicable law grounding the reasonable assumption that the person has committed the criminal offence he is accused of. Last but not least even when the above mentioned conditions are present the prolonged deprivation of liberty without a conviction entered into force should be socially necessary with a view to the existence of a real risk the accused person to flee or to commit a criminal offence.
The grounds for taking the measure of constraint “Detention on remand” in the pre – trial proceedings are stipulated in art. 63 of the Criminal Procedure Code – “a reasonable assumption that the accused party has committed a criminal offence punishable by deprivation of liberty or another, severer punishment, and evidence case materials indicate that he/she poses a real risk of absconding or committing criminal offence”.
According to the Bulgarian legislation the burden of the committed crime is not longer a ground for detention with a view to art.5 p.1 (c) ECHR which comprehensively mentions the permissible grounds for deprivation of liberty. The burden of the committed crime should not ground the detention on remand because the measure of constraint is not a punishment. The European Court of Human Rights underlines that the burden of the accusations could lead to detention of a person but not by itself but only as a serious motif for fleeing. (Letelier v. France 1991)
It is also impermissible the detention on remand to be mandatory when committed certain kind of criminal offences defined by the law. The Court is required to establish the necessity of detention in each individual case..
First of all it should be estimated the reasonable assumption that the accused person has committed a criminal offence. The term used in art 63 of the Criminal Procedure Code “evidence case materials” in comparison with the precedent term “case data” under art. 152 a para 6 of the old Criminal Procedure Code into force until 29.04.2006, introduces a new and practically different criteria from procedural point of view in a sense that the case evidence materials leading to reasonable assumption under art. 63 are close to the evidence needed for constitution of a person in capacity of an accused party under art. 219. The procedural rules for collecting of evidence under art.114 of the Criminal Procedure Code should be observed when building the circumstances which ground the provision of art.63 Criminal Procedure code if these rules are violated this will lead to exclusion of the respective evidence materials, respectively to the hesitation of the reasonable assumption/Fox, Camble and Hartly 1990г, Murry,1994/. So it is legally confirmed the opinion that only the colleted evidence materials accusing the person in suspicion of committing a crime and grounding the risk of fleeing and committing another crime are valid to convince the judge to detain an individual. If the reasonable assumption is not present the Court should not discuss the other two grounds for detention – the real risk of absconding or of committing a crime (Lukanov v. Bulgaria 1997).
According to art.63 CPC cumulatively with the above mentioned reasonable assumption of committing criminal offence it should exist a real risk of absconding and committing a crime as art. 5 p.1 (c) requires. In comparison with the Convention the Bulgarian legislation poses a higher requirement – the evidence case materials must indicate real risk of wrongful conduct of the accused person. In this hypothesis the detention on remand depends on the behavior of the accused person this way the legislator combines the preventive purpose of the detention with the purpose to provide a normal development and termination of the criminal proceedings. The idea to connect the detention on remand with the conduct of the accused person seems clearly in the provision of art. 63 para 3 CPC which stipulates that when the risk of absconding or committing a criminal offence no longer exist the individual could be released.
When the existence of real risk the accused party to flee or to commit a criminal offence is being estimated, it should be taken into consideration not only the burden of the crime but also the character of the person, his morals, home, profession, savings, his family relations and all other relations in the country he is accused in. /Neimeister,1968г, Muller v. France, 1997г/. The fact that a person was convicted before the detention should not define the risk that if released the person will commit a crime. In this case all the collected evidence materials should lead to the conclusion that the person is persistent in committing different or same kinds of criminal offences, that this person in spite of the served punishments deprivation of liberty continues his criminal activity. The above should be done through the relevant procedural order and should include information about other criminal proceeding initiated against the individual before or after committing the crime, the way the crime is committed, the damages caused by the crime; the public and the international echo from the criminal offence which in some cases could prevail the respect of the personal liberty (Tomazi 1991, Letelier 1991) On the other hand it should be taken into consideration the level of social risk of the criminal offence, the health condition, family status, profession and the age of the accused person.
The Bulgarian legislator to certain extent changes its principle opinion in the provision of art. 63 para 2 CPC stipulating that the real risk is always present when: 1. The accused party has been constituted in this capacity because of a criminal offence committed under the conditions of dangerous recidivism or repeated offending; 2. The accused party has been constituted in this capacity because of a serious intentional criminal offence and he/she has been sentenced for another serious intentional publicly actionable criminal offence to deprivation of liberty of no less than one year or to another severer punishment whose execution has not been deferred on grounds of Article 66 Criminal Code ;3. The accused party has been constituted in this capacity because of a crime punishable by not less than ten years of deprivation of liberty or another heavier punishment.” Nevertheless this provision is related to certain conditions. The real risk of absconding and committing a criminal offence is present only if the contrary is not established by the case evidence materials. The provision is legal refutable presumption and the burden of proof of all the envisaged grounds is on the pre - trial bodies according to art. 103 para 1 CPC. The possibility of the accused party and his / her counselor to refute the legal presumption does not transfer the burden of proof to these parties in the trial furthermore the Court ex officio can collect evidence under art. 107 para 3, art. 13 para 1 CPC regarding the defense and the accusation theses once the requests of the parties are over.
The request for detention on remand in accordance with art. 64 para 1 CPC is made by the prosecutor in accordance with his position of dominus litis in the course of the pre – trial proceedings. The provision of art.64 para 2 CPC requires the authority issuing the request to bring immediately the accused party before the court and if necessary the prosecutor could order a detention of the accused individual up to 72 hour. This provision of the Bulgarian Criminal Procedure Code is guided by the requirement of the art.5 p.3 of ECHP the accused party to be “brought promptly” before a judge. The Jurisprudence is full of judgments defining the permissible continuality of the factual detention until the bringing of the accused person before a judge. At the moment the Institutions accept that four days period respond to the idea and the conception of ECHR. That period gives an account of the objective obstacles for the immediate bringing of the accused party before a judge and each delay is considered as a breach of the ECHR.
It is up to the prosecutor to decide how to bring the accused person before the competent judicial authority. Factual detention, summons or other way permitted by the law. The deprivation of liberty is never mandatory. The will of the Bulgarian legislator is clearly expressed through the wording that “If necessary” the competent body can order detention until the accused is brought before the court. The purpose in conformity with the spirit of ECHR is the detention to be limited to extents needed for the normal course of the proceedings. It should be specified that the period under art. 64 para 2 Criminal Procedure Code is provided because in many cases there is a real objective impossibility to bring immediately the individual before the court. This period is not given to the pre – trial bodies to collect evidence materials although in practice it often happens. If there is not an objective obstacle to make a request for detention on remand the respective authorities are obliged to bring immediately the person before the court.
Art. 17 para 2 Criminal Procedure Code stipulates that nobody can be detained for more than 24 hour without a judicial sanction. During the 24 hours period the respective authority should decide whether the grounds to constitute a person in the capacity of accused party are present since the provisions of art. 17 para 1 and art. 64 para 2 CPC stipulate that the prosecutor can detain for 72 hour only an individual that has the capacity of accused party. In this case if there is enough data the investigative bodies – whether police investigator or investigating magistrate should constitute the individual as an accused party according to art. 219 para 1 and para 2 CPC or to art. 362 para 4 and art. 356 para 4 CPC. That 96 hours period which is permissible in a view with the applicable European criteria of the European Court of Human Rights should be also referred to the period envisaged in art. 63 para 4 CPC regulating the maximum duration of detention in the course of the pre – trial proceedings.
Any arrest under Article 5(1)(c) must be carried out in accordance with a procedure prescribed by law and must be ‘lawful.’ In addition, Article 5(1)(c) must be read in connection with Article 5(3). Thus, all persons arrested and detained under Article 5(1)(c) are entitled to be brought promptly before a court, and are also entitled to a trial within a reasonable time, or to release pending trial. Article 5(c) and (3) serve not only to protect against arbitrary detentions, but also to protect the physical integrity of a detained person and his/her right to life and a fair trial.
The purpose of the provision is to ensure that a person is not kept in detention on remand for longer than is reasonable /see Wemhoff v. Germany (1968)/. The key to understanding Article 5(3) is that it is part of the guarantee of physical liberty.
The national authorities are faced with two tasks under Article 5(3); first to ensure that detention at any stage of the pre-trial period is necessary in any given case, and second to ensure that the investigation is conducted with due diligence to ensure that the accused does not spend an excessive amount of time in pre-trial detention. An accused person in detention is entitled to have his case given priority and conducted with particular expedition.
The obligations under this sub-paragraph are to provide for a review “promptly” following initial arrest and detention, and also to provide periodic reviews of detention throughout the pre-trial period. At each review, the judge must consider all the factors militating against releasing a person on bail pending trial. A person who is charged with a criminal offence must always be released unless there are relevant and sufficient reasons to justify continued detention during the pre-trial phase.
“Other officer authorised by law” is co-terminus with competent legal authority in Article 5(1)(c). Thus the tribunal must be independent and impartial, and must have power to make a binding legal decision ordering release .
In the past, the Court has been satisfied so long as the requirements of independence and impartiality could be guaranteed, the prosecutor could be deemed to qualify as an “other officer authorised by law”. However, the general trend of the Court since 1990 has been to regard the prosecutor as being unable to possess the requisite independence and impartiality.
There are over 30 Bulgarian cases, where the Court declared violations of 5.3. in regard of the prosecutor and the notion of “officer authorized to exercise judicial power” – referring to the situation prior to the judgments in Assenov and in Nikolova v. Bulgaria and the resulting amendment of the Criminal Procedure Code in force as of 01.01.2000. The Court found and declared a violation of the right under Article 5.3. ECHR /See §§ 146-150 Assenov, Judgment of 28 October 1998; §§ 49-51 Nikolova, Judgment of 25 March 1999, §§52-54 Shishkov, Judgment of 09 January 2003 and §§ 54-56 Nikolov 30 January 2003 etc /, as the public prosecutor could not be seen as independent from the accusatory party in the trial. See e.g. Shishkov v Bulgaria of 9 January 2003:and in Yankov v. Bulgaria of 11 December 2003 the Court recalled that neither investigators before whom accused persons are brought, not prosecutors who approve detention orders, could be considered to be “officer[s] authorized by law to exercise judicial power” within the meaning of Article 5(3) of the Convention as they do not meet the requirements of impartiality and independence.
As a result of the sequence of cases against Bulgaria, the new Criminal Procedure Code declares the main principle of the Convention that IT IS SOLELY THE COURT that decides on the detention.
Now the new Criminal Procedure Code states that detention on remand shall be ordered by the competent court of first instance at the request of the prosecutor after a public hearing attended by the accused, his counsel and the prosecutor. This provision allows for a competitive, fair and objective procedure.
Moreover, whereas the Convention provides for a one instance court ruling, Bulgarian legislation states that the act of the first instance court is not final – it can be appealed or protested before the court of appeal which sits in a panel of three judges in an open court hearing only that this time if the accused does not appear before the court and there is no excusable reason for his absence the court session will be put forward.
In general, the key point is that the guarantee of Article 5 § 3 of the Convention applies to all forms of detention nevertheless their nature and issuing bodies. Everyone deprived of his freedom has the right to challenge the lawfulness of the deprivation nevertheless its duration. National authorities cannot deviate from the necessity to exercise an effective control on the lawfulness of detention. If it fails so, Article 5 § 3 has been violated. Therefore, as the Convention gives the procedure itself which is imperative and not to be questioned, it must be applied directly - there is no particular need for a national one because the Convention itself declares the competence of the court. Also, the ruling of the court that the detention has been unlawful is a prerequisite for the state’s responsibility for the damages caused by it.
Length of pre-trial detention
The emphasis throughout Article 5 is on liberty rather than detention. Accordingly, a person may not be kept in custody for the whole of the pre-trial period, without a periodic review of the grounds for detaining him/her. In other words, the question of detention must be kept constantly under review.
In respect of each of the grounds used to justify pre-trial detention, special diligence in the conduct of proceedings must be exercised by the courts to ensure that the period spent in custody does not extend beyond what is deemed reasonable (Iliikov v. Bulgaria (2001). What is reasonable will differ from case to case, and cannot be assessed in the abstract. Factors to be taken into consideration when deciding to detain or to continue the detention include:
Where the State authorities fail to conduct their investigations with due diligence and bring the detainee to trial within a reasonable time, there will be a violation of Article 5(3).
· According to Bulgarian’s new Criminal Procedure Code the detention in custody in the pre-trial proceeding shall not last for more than one year, if the charge is for a major malicious crime and for more than two years, if the charge is for a crime for which a punishment of not less than fifteen years of imprisonment or life imprisonment is provided. In the rest of the cases, the detention in custody in the pre-trial proceeding shall not last for more than two months.
· After expiry of the said time limits the detained shall be released forthwith by order of the prosecutor. Release can be issued by the court as well in accordance with the principle that the court, the prosecutor and the investigating bodies must release every person who has been unlawfully deprived of freedom.
· Where there is no more danger for the accused party to abscond or to commit crime, the measure of remand in custody shall be replaced with a less severe measure or shall be repealed.
Each time an accused appears before a court the latter must examine closely the reasons put forward to justifiy continued detention, as well as the defence arguments advocating release.The Court has held that continued detention in a given case may be justified only where there are “clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty“ (see Punzelt para. 73).The reasons given to justify continued detention must furthermore be relevant and sufficient to show that detention was not unreasonably prolonged and contrary to Article 5(3) (see Wemhoff). The presumption must accordingly always be in favour of release, unless there are stong reasons for continuing detention. These reasons must continue to apply throughout the pre-trial period. Accordingly, the question of continued detention up to the date of trial must be kept under regular examination; Article 5(3) is designed to ensure that a person is provisionally released as soon as continued detention can be no longer justified (see Neumeister). This requires that the accused has an automatic right to be brought before the judge on a regular basis.
The Court has held that the reasonableness of detention must be assessed in each case according to its special features (see Punzelt). Domestic courts must base their decisions on facts and information which give rise to the specific reason for refusing release.
The Court has always had regard to the reasons which are put forward to “justify the serious departure from the rules of respect for individual liberty and of the presumption of innocence which is involved in every detention without a conviction“. See Stogmuller v. Austria (1969) (at para. 4). The grounds for refusing release which are accepted under Article 5(3) are:
· Risk of non-appearance at trial;
· Risk that the detainee will interfere with the course of justice;
· Risk that the detainee will commit further offences; and
· Necessity of detention for the preservation of public order.
Risk of non-appearance
The risk that an accused would not appear at trial cannot be based solely on the severity of the sentence risked. Where it is possible to obtain guarantees that he or she will appear, he must be released, subject to the relevant conditions. The following factors must be considered when assessing whether it is appropriate to continue detention on the grounds that the accused will abscond:the accused’s character and personality ;the accused’s assets; the accused’s family links; the accused’s contacts abroad.; the heavy sentence to be expected ; the accused's particular state of detention; and the lack of well-established ties in the country.
The national court must be satisfied that at least some of these factors exist, giving reason to suppose that the consequences and hazards of flight will seem to the accused to be a lesser evil than continued imprisonment.
The danger of flight decreases as the time in detention passes, due to the likelihood that the period in pre-trial detention will be deducted from the eventual sentence, should the accused be convicted. Thus, courts must take this into account each time it is required to examine the question of continued pre-trial detention. Indeed the Court has stated that when the only remaining reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance (see Wemhoff at para. 15).
In Wemhoff, the Court noted that there must be a well-founded risk that the accused would, if released, take action to prejudice the administration of justice. Such risks include: interference with witnesses; warning other suspects; and destruction of evidence.
The risk cannot be a generalised one; there must be evidence to support the allegation of the risk.
Risk of further offences
The seriousness of a charge may reasonably justify a decision to detain a suspect in an attempt to prevent attempts to commit further offences. The past history and the personality of the accused should be taken into account. Consideration should be given as to whether any previous convictions relied upon were comparable either in nature or in the degree of seriousness to the charges against the accused.
The Court has consistently held that this ground may, in exceptional circumstances, be taken into account when assessing whether pre-trial detention of accused was justified. Gravity of the offence would not suffice. However, this ground may only be relied upon provided that the judge making the decision to detain, bases the decision on facts capable of showing that the accused's release would actually disturb public order (see Letellier para. 51).In addition, the detention would continue to be legitimate only if public order remains actually threatened.
· In the Mihov Case of 31 July 2003 and Yankov of 1 December 2003 the Court further stressed that continued detention could be justified in a given case only if there are specific indications of a genuine requirement of public interest, which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with Article 5(3) of the Convention. Therefore, the Court ruled, by failing to address concrete relevant facts and by relying solely on a statutory presumption based on the gravity of the charges and which shifted to the accused the burden of proving that there was not even a hypothetical danger of absconding, re-offending or collusion, the national authorities prolonged the applicant’s detention on grounds which cannot be regarded as sufficient. In these circumstances the Court did not deem it necessary to examine whether the proceedings were conducted with due diligence and found a violation of Article 5(3) of the Convention.
The imposition of guarantees to appear for trial must always be considered as an alternative to pre-trial detention where unconditional release would otherwise be considered too risky. Indeed, Article 5(3) specifically provides that release may be conditioned by guarantees to appear at trial. Bail conditions should be directed primarily towards appearance at trial; they should not have a punitive or compensatory purpose.
The main purpose of Article 5, paragraph 4, is to secure judicial overview of the legality of deprivation of liberty and to provide the deprived person with the remedy of “ habeas corpus”. Paragraph 4 requires that the judicial review shall take place “ speedily”. The compliance with this requirement must be assessed in the light of the specific circumstances of each case. The period which has to be taken into consideration is the day the application for release has been made. The relevant period comes to an end on the day the competent court has given judgment. If the proceedings have been conducted at two levels of jurisdiction, assessment must be made in order to determine whether the requirement of “speedily” has been complied with. Everyone who is deprived of his liberty by arrest or detention has the legal right to take proceedings in order to obtain “speedily” a review of the lawfulness of his deprivation. This procedure is with a judicial character and must provide the deprived person with an appropriate guarantees against uncontrollable deprivation of liberty. Regarding Article 5(4) arrested or detained person have a right to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness” of his deprivation of liberty. If the person is not detained anymore, Article 5 ( 4) still can be applied only if the decision concerning the release was not taken “speedily”. Even if the review by the Strasbourg organs leads to the conclusion that the detention was lawful, it must be made an assessment if the detained person had the possibility to obtain a lawfulness review by a domestic court at the time. This procedure is applicable also for a person of “ unsound mind”. The Court considers that it is essential for this person to have access to court and to be enabled to be heard in person, or if necessary, through a representative. If it is doubtful whether the applicant is capable of adequately presenting the relevant points, a counsel should have been appointed to assist him/ her in the proceedings.
Article 5 ( 4) requires arrested person to be informed of the reasons of his arrest in order to be able to take proceedings against the lawfulness of his detention.
The domestic court dealing with such matters must provide the “guarantees of a judicial procedure”: the proceedings must be adversarial and must always ensure “ equality of arms” between the parties - the prosecutor and the detainee.
As is clear from the text, Article 5 (4) has a general character. The existence of this right is not dependent on the reason for arrest or detention. In terms of the European Convention on Human Rights, this means that an individual may complain of a violation of his rights under Article 5 (4) even where he or she has been detained legitimately on one or more of the grounds listed in Article 5 (1). It also means that an individual may complain of a violation of Article 5 (4) where he has been detained on a ground to which none of the provisions of Article 5 (1) applies, in which event, of course, there will be a violation of the latter provision as well as Article 5 (4).
The right protected by Article 5 (4) is a procedural right, guaranteeing access to court for the purpose of taking legal proceedings. In this respect, then, the provision resembles Article 6 (1) of the Convention, which provision guarantees a fair hearing.
This principle means that it is essential that the detained person should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. The decision of the court must be given in public right after an oral hearing.
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Note
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Тhe European Court of Human Rights found violations of Article 5(4) in the cases of Bojinov, Yankov, Assenov, Al Nashif, Nikolova, Nikolov, Shishkov, Iliikov, Al-Akidi, Hristov, Mihov, Varbanov, Hamanov, etc. In most cases the violations of Art. 5, Par. 4 represent the lack of main principles, imposed by the Convention. The Republic of Bulgaria was convicted, because the hearing wasn’t conducted speedily enough ( Bojinov, Yankov, Hamanov), or because the hearing wasn’t in public ( Hamanov, Assenov, Yankov), or because the proceedings weren’t adversarial and arms weren’t equal.( Iliikov). In the case of Varbanov, the person was placed in a hospital for mental diseases with no judicial overview of the legality of deprivation of liberty.
In 2006 a new Criminal procedure code has entered into force. It provides guarantees for the implementation of the remedy of “habeas corpus” ( Art. 5, par. 4) concerning the detained persons in the pre- trial phase and during the trial before the domestic court. / see art. 65, art. 256 par.1 p.2, par.2, art. 256 par. 3, par. 4, art. 270 and art. 341, par.2 of the Criminal procedure code.
In the pre – trial phase the accused person who is under continued detention, made by a Court ( under the conditions of Art. 64 of the Criminal procedure code ), has the legal right promptly to take proceedings in order to obtain a review of the duration of his deprivation. ( under the conditions of Art. 65 ). The detained or his defender can set in motion this procedure by sending a request to the prosecutor’s office, which is obliged immediately to forward all the materials in the case at the court. If the request is addressed directly to the court, the latter is supposed to forward it at the prosecutor’s office by ordering an immediate sending of all materials. The competent Court is obliged to set the date for an oral hearing in a frame period of three days. The presence of a prosecutor and a defender of the detained person at the hearing is mandatory and it is a prerequisite for the validity of the procedure. The detained person has the right to refuse to be at the hearing. The procedure is also valid if the detained person is absent because of illness. During the pre – trial phase all the materials in original are at disposal of investigating authorities, which lead the investigation guided by the observing prosecutor. When there is a request under the conditions of Art. 65 of the Criminal procedure code the observing prosecutor who is governing the case orders to the investigating authorities to send all the materials in original, so they can be at disposal of the Court which will review the lawfulness of the detention. Regarding this procedure the detained person is provided with effective guarantees for a prompt judicial review. After making a decision in an oral hearing the competent Court sets a date in a frame period of seven days in case of litigation before the upper instance. All the parties – the prosecutor, the accused under detention or his defender have the right to appeal the decision concerning the lawfulness of detention before the upper Court in a frame period of three days. The Court estimates all circumstances in relation with the lawfulness of the detention, only guided by the evidence gathered during the investigation. The Court is supposed to estimate only if there is still a reasonable suspicion that the accused person has committed the crime and at the same time if there is the evidence on the case that indicates that a real danger that the accused may abscond or commit a crime exists still. Before deciding the Court has to estimate also the family and health status of the accused person, the accuser’s character and personality, the gravity of the crime committed, his/ her occupation, the elapsed time of detention, the motion of the investigation, the possibility him/ her to commit a crime, the eventual interference with witnesses, the cooperation with other suspects and the destruction of evidence. The analyze of all these facts has to find a place in the judicial Act ( Court’ s decision) in order all requirements of the Art. 5, par. 4 of the Convention to be completed and the accused person to be provided with guarantees for prompt, effective, impartial and fair hearing.
Regarding Art. 65, par. 5 of Criminal procedure code the Court’ s decision has to be executed immediately after the period of appeal has passed, unless there is an appeal addressed by prosecutor which is against the accused person. If the Court decides to release the accused person by imposing him/ her another measure – “bail” or “ domestic arrest”, practically this person can’ t be released immediately after the hearing. When the measure is changed in “domestic arrest” usually it takes about five to seven hours for the penitentiary administration to set all the papers before the release of the accused person. In case the measure is changed in “bail”, the detainee is released right after the bail is paid in.
Regarding art. 65, par. 6 of Criminal procedure code the Court can set a period of time, not more then two months, in which the detainee or his defender are not allowed to request the change of imposed continued detention, unless there is a sudden health problem. This measure is supposed to prevent from eventual continuous litigations, sent by the detainee or his/ her defender in order the proceedings in a pre – trial phase to be retarded. Always in case of request sent to the court, latter is obliged to require all the materials of the case from the prosecution. During the period of time in which all the materials are in Court, practically the investigation authorities are not able to conduct the investigation properly and in time, especially when the case is complex and with much evidence.
In the trial phase of the Criminal procedure the “reporting judge”, when estimating the case, has to observe the lawfulness of detention separately. The part of his decision concerning the lawfulness of the continued detention can be appealed separately in a special procedure set in Chapter XXII of Criminal procedure code. In contradiction with the principles of oral, fair and impartial hearing, the procedure set in Chapter XXII passes behind closed doors and the parties are not present at the hearing. Open hearing could be set as an exception. (see Art. 345, par. 1 of Criminal procedure code) This contradiction in Bulgarian legislation has to be eliminated.
There is another Act in Bulgarian legislation, which sets a procedure of a permanent judicial control of the continued detention. It is the new Health Act which is in force since January 1 2005 and which has replaced the old one. The Judicial control of the continued detention is in relation with persons with unsound mind. The new Health Act sets a completely new legal procedure concerning the status of persons of unsound mind. Regarding this Act the persons with unsound mind can be placed in mental hospitals for a mandatory treatment only if they are dangerous for themselves or for the public peace. This procedure is completely in accordance with the requirements of Art. 5 of the Convention and results form the practice of the European Court in Strasbourg.
Historically, both the continued detention and the mandatory treatment in a mental hospital are taken away form the authority of prosecutor’ s office and investigating bodies, because in terms of the European Convention they have no court status. The person with unsound mind can be placed in a mental hospital for a mandatory treatment only by a department Court, after a psychiatrical medical report. Every three months the competent department Court is obliged to examine the duration of the detention by using a psychiatrical medical report. The person placed in mental hospital, his/ her relatives and the prosecutor are also able to request before the Court the termination of the detention if there is no need for. The procedure is prompt. The hearing is open and oral. The presence of a prosecutor, mental specialist, the person who has a mental disease and his/ her defender is mandatory. / see Art. 158, par. 4 of Health Act/. The person with a mental disease must be examinated personally by the Court. If needed he/ she can be forced to present before the Court. When the person with unsound mind is not able to participate personally in the hearing because of a health problem, the Court is obliged to acquire a direct impression of his/ her mental status. / see Art. 158, par. 5 of Health Act/. The decision of the Department Court can be appealed in a time frame of seven days before the regional Court. / see par. 163 Health Act /. The decision of the Regional Court is final. If the decision for a placement in a mental hospital is appealed before the upper Court, during the time of appeal the decision of the first instance can’ t be executed except the first or the second instance decrees the opposite. Every three months the department Court is supposed to revise the duration of the detention by using a psychiatrical medical report from the hospital for mental diseases where the person of unsound mind is placed. The Court decides whether the mandatory treatment has to be terminated or continued. / see Art. 158, 159, 160 and 161 of Health Act.
The above mentioned principles ,which are implemented in our legislation and its application, are drafted from over 50-years of practice and case-law of The European Court on Human Rights and are a result from the application and interpretation of the European convention on Human Rights as a “living instrument” –they are still valid and useful like a guideline for the practice of the Bulgarian magistrates, in front of whom are raised complaints for violation the rights guaranteed by the Convention or in front of whom the parties in the proceedings are calling upon the wording and interpretation of the Convention or the case-law of The European Court on Human Rights. It is necessary the good knowledge of the Convention and the practice upon it and also the principles, interpreted by The European Court on Human Rights, in order to comply with the position in the Bulgarian legislation of direct effect of the Convention.
July,2008
Sofia, Bulgaria
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