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FOURTH
SECTION
CASE OF FILEVA v. BULGARIA
(Application
no. 3503/06)
JUDGMENT
STRASBOURG
3
April 2012
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 Fileva v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3503/06)
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, Ms Maria Panayotova Fileva (“the
applicant”), on 12 January 2006.
2. The
applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva,
lawyers practising in Plovdiv. The
Bulgarian Government (“the Government”) were represented
by their Agents, Ms M. Dimova and Mr V. Obretenov, of the Ministry of
Justice.
3. On
11 May 2010 the Court (Fifth
Section) declared the application partly inadmissible and decided to
communicate to the Government the complaints concerning the
applicant’s alleged lack of access to court to enable her to
seek damages from the prosecution and the alleged lack of
impartiality of the criminal courts which examined the accusations
against her.
- The
Government and the applicant submitted written observations on the
admissibility and merits on 20 September and 3 December 2010
respectively.
- The
application was later transferred to the Fourth Section of the Court,
following the reorganisation of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Ms
Maria Panayotova Fileva is a Bulgarian national who was born in 1948
and lives in Asenovgrad.
A. The criminal proceedings against the applicant
- On
17 June 1999 the applicant, at that time an employee of the
Asenovgrad agricultural land commission (“the land
commission”), was questioned on suspicion of abuse of office.
She was suspected, inter alia, of attempting to impede the
adoption of amendments to a land redistribution plan adversely
affecting plots of agricultural land previously restored to her
husband, a member of the Asenovgrad municipal council at the relevant
time.
- Criminal
proceedings were instituted soon afterwards, on 6 July 1999. On 16
May 2001 the applicant was charged with three offences – one
committed in 1992 and the other two in 1999.
- In
2004 the case was placed on a special register in the Chief Public
Prosecutor’s Office, apparently because it was considered to
have a corruption element.
- The
investigation of the case against the applicant continued until
29 June 2005.
- On
14 July 2005 the Plovdiv regional public prosecutor’s office
terminated the criminal proceedings against the applicant. It was
concluded that the applicant’s actions relating to the events
of 1999 did not constitute a crime and that it had not been proved
that the applicant had been party to the offence in 1992.
- On
23 March 2006, following an internal review of cases ordered by the
Chief Public Prosecutor’s Office, a prosecutor from the Plovdiv
appellate public prosecutor’s office quashed the decision of 14
July 2005 and ordered the resumption of the criminal proceedings
against the applicant, on the ground that the investigation had been
incomplete and that the conclusions reached did not correspond to the
evidence collected. In particular, it was noted that a key witness –
the chairman of the land commission who had established breaches of
duty on the part of the applicant – had not been questioned and
that the applicant should have been questioned again in relation to
one of the charges.
- On
16 January 2007 the applicant was presented with modified charges,
consisting of two counts of abuse of office and one count of drawing
up a false document in an official capacity. On the same date, the
criminal proceedings in respect of the offence committed in 1992 were
terminated, as it had not been proved that the applicant had been a
party to the offence, and as the prosecution had now become
time-barred.
- On
10 October 2007 the Plovdiv Regional Court convicted the applicant
and gave her a suspended sentence of two years’ imprisonment.
- In
a judgment of 10 April 2008 the Plovdiv Court of Appeal acquitted the
applicant on one of the counts of abuse of office and upheld the
conviction on the remaining counts. It reduced the applicant’s
sentence to a suspended term of one year’s imprisonment. That
judgment was upheld by the Supreme Court of Cassation in a final
judgment of 11 July 2008.
B. The civil proceedings for damages
- On
25 November 2005 the applicant, relying on the termination of the
criminal proceedings against her of 14 July 2005, brought an action
for damages under the State and Municipalities Responsibility for
Damage Act (“the SMRDA”) against the prosecuting
authorities for unlawful prosecution.
- The
applicant submitted that on 28 November 2005 her representative in
the domestic proceedings was told by a prosecutor at the Plovdiv
regional public prosecutor’s office that bringing an action
under the SMRDA could have unfavourable consequences for the
applicant. On an unspecified date in March 2006 the same prosecutor
told the applicant’s representative that she had made a mistake
in pursuing the proceedings for damages against the advice given on
28 November 2005, as the criminal proceedings against the applicant
had been resumed.
- On
3 July 2006 the applicant’s representative sent an open letter
through the Bulgarian media to the Chief Public Prosecutor’s
office, averring that the prosecution authorities had resumed the
proceedings against the applicant in retaliation for the proceedings
for damages she had brought against the State. At least one other
case similar to that of the applicant was reported by the media.
- In
a newspaper publication the Supreme Cassation Public Prosecutor’s
Office denied the allegations made in the letter of 3 July 2006.
- In
a newspaper published on 6 July 2006 a spokesperson for the Plovdiv
appellate public prosecutor’s office was quoted as stating that
it was against the interests of the prosecuting authorities to allow
claims engaging the State’s responsibility, as this adversely
affected the Bulgarian taxpayer. Also, the Chief Public Prosecutor
was quoted as stating that there was cause for concern, in that the
lack of criteria for the resumption of criminal proceedings left
scope for abuse of process. Further, in a newspaper published on 5
July 2006 the applicant gave her account of the events stating she
was innocent.
- In
a judgment of 6 November 2006 the Plovdiv Regional Court rejected the
applicant’s action for damages. The court held that because
criminal proceedings were pending against the applicant her action
had been brought prematurely. As to the period before the proceedings
were terminated, the Court found that in view of their resumption in
March 2006 the proceedings up to that moment could not be considered
unlawful, nor had the State’s responsibility been engaged in
that respect.
- The
applicant appealed. In a judgment of 10 July 2007 the Plovdiv Court
of Appeal found against her. The court dismissed the applicant’s
request for the proceedings to be stayed until the resumed criminal
proceedings against her had ended, reasoning that this was irrelevant
to the outcome of her civil action for damages, which was grounded on
her claim that the criminal proceedings had been terminated. In the
absence of a final act terminating those proceedings the action for
damages could not be upheld.
- In
a final judgment of 11 December 2008 the Supreme Court of Cassation
quashed the lower court’s judgment in part. It allowed the
applicant’s action in so far as the criminal proceedings
relating to the 1992 offence, which had been terminated, were
concerned (see paragraph 13 above, in fine) and awarded her
2,000 Bulgarian levs (BGN). The court reasoned that the applicant’s
right to compensation arose on the date of the second termination of
those proceedings on 16 January 2007 and not from the termination on
14 July 2005. It subscribed to the lower court’s conclusions in
respect of the charges related to the offences committed in 1999,
namely that there had been no final act terminating the criminal
proceedings against the applicant given that the proceedings had been
resumed.
II. RELEVANT DOMESTIC LAW
A. State and Municipalities’ Responsibility for
Damage Act of 1988
- Section
2(1)(2) of the 1988 Act provides as follows:
“The State shall be liable for damage caused to
individuals by organs of [the investigation], the prosecution and the
courts through unlawful:
...
2. bringing of criminal charges, if the
person concerned has been acquitted or if the criminal proceedings
are discontinued because the offence was not committed by the person
concerned, or [that person’s] act does not constitute a
criminal offence...”
- Individuals who have been acquitted or had the
proceedings against them discontinued on one of the grounds set forth
in section 2(1)(2) – which, according to an interpretative
decision of the Supreme Court of Cassation (тълк.
реш. № 3 от 22 април
2005 г. по тълк.
гр. д. № 3/2004 г.,
ОСГК на ВКС),
include discontinuance because the
charges have not been made out – can obtain compensation for
the mere fact that criminal proceedings have been instituted against
them. Paragraph 1 of the transitional and concluding provisions of
the 1988 Act provides that all matters which have not been addressed
in the Act are to be resolved in line with the general provisions of
civil and labour law. Section 110 of the 1951 Obligations and
Contracts Act, which is also applicable to proceedings under the 1988
Act (тълк. реш. № 3
от 22 април 2005 г.
по т. гр. д. № 3/2004
г., ОСГК на ВКС;
реш. № 7768 от 10 юни
2010 г. по адм. д. №
14132/2009 г., ВАС, ІІІ
о.), provides that the limitation period for tort claims is
five years.
B. Code of Criminal Procedure
26. Article 237 § 1
of the Code of Criminal Procedure of 1974 (“the 1974 Code”),
in force at the relevant time, provided for the termination of
criminal proceedings by the prosecution in cases, inter
alia, where it had transpired
that no offence had been committed.
- Any
decision under Article 237 § 1 of the 1974 Code in which the
conditions for termination set by that provision had not been met and
which had not been appealed against before the courts could be
quashed by the appropriate higher-ranking prosecutor’s office
of its own motion (Article 237 § 7 of the 1974 Code). That
was not limited in time and could be done at any time before the
prosecution became time-barred.
- The
text of Article 237 § 7 of the Code was reproduced in
Article 243 § 9 of the new Code of Criminal Procedure of
2005 (“the 2005 Code”). On 14 October 2010 a draft law
proposing, inter alia, an amendment of Article 243 § 9 of
the 2005 Code setting a one-year term for resuming previously
discontinued criminal proceedings was rejected by the Bulgarian
parliament. The draft law reasoned that the amendment was necessary
in view of the lack of stability of the prosecution authorities’
acts discontinuing criminal proceedings and the fact that their
discretion to resume proceedings was not limited in time.
- By
virtue of Article 237 § 3 of the 1974 Code, any decision of the
prosecution to terminate criminal proceedings was subject to appeal
before the courts by the accused or the victim of the alleged offence
within seven days following notification of the decision. The courts
were competent to uphold or quash the decision terminating the
proceedings or to amend the grounds for termination. The existence of
a final decision of a public prosecutor to terminate the criminal
proceedings or of a final court ruling upholding a decision of the
prosecution to that effect was an absolute obstacle to prosecuting
the same person for the same offence (Article 21 § 1 (6)
of the 1974 Code).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that as a result of the
resumption of the criminal proceedings against her she had been
deprived of access to court to seek damages from the prosecution and
that the criminal courts examining the charges against her had
lacked impartiality, contrary to Article 6 § 1 of the
Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by an independent and impartial
tribunal ... ”
A. Complaint relating to an alleged breach of Article 6
§ 1 in the civil proceedings for damages
1. Admissibility
- The
Government stated that the applicant could not claim to be a victim
of a violation of the Convention, because the domestic courts had
acknowledged in the proceedings for damages that there had been a
breach of the Convention, and had awarded her BGN 2,000.
- The
applicant disagreed.
- While
it is true that the applicant was ultimately awarded damages in
respect of the 2007 discontinuation of the criminal proceedings
relating to the 1992 offence alleged against her (see paragraph 23
above), the resumption of the criminal proceedings brought to an end
her civil action in respect of the remaining charges. To that effect
the applicant can still claim to be a victim of a breach of her right
of access to a court as guaranteed by Article 6 § 1 of the
Convention.
34. Accordingly,
the Court rejects the Government’s preliminary objection based
on loss of victim status. It further notes
that this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 (a) of the Convention. Nor is it inadmissible
on any other grounds. It must therefore be declared admissible.
2. Merits
- The
Government argued that the applicant’s
right of access to court had not been infringed, as the domestic
courts in the civil proceedings against the State had examined the
claims made by her and had awarded her damages. They further averred
that the public prosecutor’s decision of 14 July 2005 to
terminate the criminal proceedings had become final after the expiry
of the seven-day term for appealing against it, and that from that
moment the applicant had had a right to compensation under the SMRDA.
At the same time, the Government stated that the resumption of the
criminal proceedings constituted grounds for staying the civil
proceedings for damages.
- The
applicant stated that the domestic courts in the
civil proceedings had dismissed her action in respect of two of the
three charges brought against her, solely on account of the
resumption of the criminal proceedings. This, in the applicant’s
view, demonstrated that by resuming these proceedings the public
prosecutor’s office had managed to affect the outcome of
proceedings to which it was a party.
- The
Court reiterates that Article 6 § 1 of the Convention secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it
embodies the “right to court”, of which the right of
access constitutes one aspect (see Golder v. the United Kingdom,
21 February 1975, §§ 28-36, Series A no. 18, and
Kostadin Mihaylov v. Bulgaria, no. 17868/07, § 37,
27 March 2008).
- In
addition, that provision embodies the right to a fair trial, which
incorporates, inter alia, the requirement of equality of arms
in the sense of a fair balance between the parties where each party
must be afforded a reasonable opportunity to present their case -
under conditions that do not place them at a substantial disadvantage
vis-à-vis their opponent (see Stran Greek
Refineries and Stratis Andreadis v. Greece, 9 December 1994, §
46, Series A no. 301 B).
- In
the proceedings at issue, the applicant brought an action against the
public prosecutor’s office for damages stemming from allegedly
unlawful charges and relying on the termination of the criminal
proceedings against her in July 2005. The decision on
termination, however, remained open to revision by the higher
prosecution authority and while the civil case was pending
before the first level of jurisdiction it was reversed and the
criminal proceedings against the applicant were resumed. That
resumption prompted the domestic courts to dismiss her action as
premature.
- Against
this background, the Court will examine whether in the circumstances
of the present case, the decision of 23 March 2006 to resume the
criminal proceedings against the applicant while the civil
proceedings for damages brought by her were pending entailed a breach
of her right of access to court and of the fair trial guarantee
embodied in Article 6 § 1.
- In
the case at hand, the criminal proceedings were resumed on the ground
that the investigation had been incomplete and that the conclusions
drawn from the evidence collected had been imprecise or wrong. The
prosecuting authorities did not refer to any specific deficiencies
(such as newly discovered evidence, abuse of power, manifest errors
in the application of substantive law or any other weighty reasons
stemming from the interests of justice) which could have prompted the
resumption of the proceedings. Nor did the Government adduce any such
deficiencies.
- The
Court observes that the prosecuting authorities were not required to
indicate any specific grounds or reasoning justifying the decision in
question and that it could be issued in any event where they
considered that the termination was not justified under Article 237 §
1 of the CCP 1974 (see paragraphs 26 and 27 above). That decision is
apparently not subject to judicial review (contrast with Withey v.
United Kingdom (dec.), no. 59493/00, ECHR 2003 X).
- That
said, the Court cannot speculate as to whether the criminal
proceedings were resumed in “retaliation” for the
applicant’s action for damages or in order to stifle it.
However, it cannot but observe that the prosecution authorities as a
party to the proceedings under the SMRDA were able to affect their
outcome simply by resuming the criminal proceedings against her. The
decision to resume not only defeated the applicant’s civil
claim, it also made it impossible for the civil court to adjudicate
on it.
- To
conclude, in the specific circumstances of the present case the Court
considers that in the absence of procedural safeguards such as
limitation in time, reference to well-defined statutory criteria, or
judicial review the discretion of the prosecution authorities to
resume the criminal proceedings gave them, as a defendant in the
proceedings for damages, the possibility to influence their scope and
outcome unilaterally. This placed the applicant at a substantial
disadvantage vis-à-vis her opponent, thus impairing the
very essence of her right of access to court in breach of the fair
trial guarantee embodied in Article 6 § 1. In this connection,
the Court considers it noteworthy that this regime was viewed as
creating a risk of abuse by the Chief Public Prosecutor himself (see
paragraph 20 above).
- Accordingly,
the Court finds that there has been a violation of Article 6 § 1
of the Convention.
B. Complaint relating to an alleged breach of Article 6
§ 1 in the criminal proceedings against the applicant
- The
applicant complained of a violation of Article 6
§ 1 in that the criminal courts lacked objective impartiality
because they had an interest in convicting her, as her acquittal
would have bound the State to pay her damages. In particular, she
averred that the criminal courts had been well aware of the
importance of the outcome of the criminal proceedings for the success
of her action for damages, as the case had been highly publicised. In
addition, allowing compensation claims against the prosecuting
authorities adversely affected the budget of the judiciary, and this
alone cast doubt on the criminal courts’ impartiality.
- The
Government disagreed. They submitted that the criminal courts had
convicted the applicant following a thorough examination of the
evidence against her, and that they had no information on the
progress of the civil proceedings for damages issued by her.
- The
Court has stressed that a tribunal must be impartial from a
subjective as well as an objective view (see Mustafa (Abu Hamza)
(No. 1) v. United Kingdom (dec.), no. 31411/07, § 37,
18 January 2011; for a description of the two tests developed by the
Court, see Micallef v. Malta [GC], no. 17056/06, §§
93-99, 15 October 2009).
- The
Court notes that no allegation is made as to the subjective
impartiality of any of the judges. As regards objective impartiality,
the Court accepts that a virulent media coverage of the proceedings
might adversely affect the fairness of a trial (see Ninn-Hansen v.
Denmark (dec.), no. 28972/95, ECHR 1999-V). At the same time, the
function of the courts as a forum for settlement of disputes does not
preclude discussion of the dispute elsewhere, including in the
general press (see, mutatis mutandis, The Sunday Times v.
the United Kingdom (no. 1), 26 April 1979, § 65, Series A
no. 30). In the case at hand the media coverage was not in any way
directed against the applicant so as to possibly prejudice the
judges. In fact, part of the material published in the media did not
concern the applicant at all (see paragraph 18 above).
- In
addition, the general allegations that it was in the domestic courts’
interest to convict the applicant so as to avoid budgetary
constraints are entirely speculative. In addition, the situation must
be distinguished from that which obtained in the case of Mihalkov
v. Bulgaria (no. 67719/01, § 48, 10 April 2008) where any
award made to the applicant was payable out of the budget of the
court which was a co-defendant in the proceedings for damages.
- Next,
the Court, in examining the criminal proceedings against the
applicant following their resumption, observes that such resumption
did not in itself contradict the requirements of Article 6 § 1
of the Convention. The findings reached above (paragraphs 41-45) do
not mean that the public prosecutor’s office should refrain
from resuming criminal proceedings where an action for damages
stemming from a previous termination of proceedings has been lodged.
Nor do they mean that a decision to terminate criminal proceedings
cannot be reversed. However, the principles of legal certainty
enshrined in Article 6 of the Convention require such decisions to be
based on well-established criteria, accompanied by terms and
safeguards to prevent potential abuse of process in relation to
the resumption of criminal proceedings. As already noted (see
paragraph 44 above) despite legislative attempts to amend the
impugned provisions (see paragraph 28 above), Bulgarian law does not
provide for such safeguards. That fact distinguishes the present case
from the situation which obtained in Withey, cited above,
where the Court observed that any application to resurrect the
proceedings was made to a court which considered the application from
the standpoint of certain criteria including the fairness of the
re-opening. Nevertheless, in the case at hand the Court cannot share
the applicant’s misgivings about the reasons for the resumption
of the criminal proceedings against her. In particular, it is not for
the Court to determine whether there were genuine shortcomings in the
initial investigation which justified the resumption of the criminal
proceedings. Nor, as noted earlier, can it speculate as to whether
the criminal proceedings were resumed in “retaliation”
for the applicant’s action for damages or in order to stifle
it.
- The
above considerations suffice to allow the Court to conclude that
there is no appearance of a violation of Article 6 § 1 in
respect of the criminal proceedings against the applicant. It follows
that the applicant’s complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and
4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 40,000 euros (EUR) in respect
of non pecuniary damage.
- The
Government contested these claims as excessive and unsubstantiated.
- The
Court notes that in the present case an award of just satisfaction
can only be based on the fact that the applicant was denied her right
of access to a court as regards her civil rights. Ruling on an
equitable basis, as required by Article 41 of the Convention, the
Court awards her EUR 3,200, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 6,188.33 for costs
and expenses incurred before the domestic courts and for those
incurred before the Court. In support of her claim she presented a
contract for legal representation, a time sheet and a translation
contract, as well as a contract for legal representation and receipts
for state fees in connection with the proceedings before the domestic
courts. The applicant requested that the amount under this head
awarded by the Court for the proceedings before it be paid into the
bank account of her representatives, Mr M. Ekimdzhiev and
Ms K. Boncheva, with the exception of EUR 400 which she had
paid as an advance payment on the legal fees.
- The
Government contested these claims as exorbitant.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court further reiterates that
legal costs are only recoverable to the extent that they relate to
the violation that has been found (see D.H. and Others v. the
Czech Republic [GC], no. 57325/00, § 220, ECHR 2007 IV).
In the present case, regard being had to the
documents in its possession and the above criteria
and having regard to the fact that a violation was found only of
Article 6 in respect of the civil proceedings for damages, the Court
considers it reasonable to award the sum of EUR 1,600 under all
heads. EUR 1,200 of that amount is to be transferred directly into
the bank account of the applicant’s legal representatives, Mr
M. Ekimdzhiev and Ms K. Boncheva.
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
- Declares unanimously the
complaint under Article 6 § 1 concerning the lack of access to
court in the civil proceedings for damages admissible and the
remainder of the application inadmissible;
- Holds by six votes to one that
there has been a violation of Article 6 § 1 of the Convention;
- Holds by six votes to one
(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
3,200 (three thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,600 (one thousand six hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses, EUR 1,200 of which to be transferred directly into the
bank account of the applicant’s representatives;
(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 unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 3 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Hirvelä
is annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE HIRVELÄ
- I
respectfully disagree with the majority of the Chamber that there has
been a violation of Article 6 § 1 of the Convention as regards
the civil proceedings for damages.
- The
regional public prosecutor terminated the criminal
investigation against the applicant on 14 July 2005 since it had not
been proved that the applicant had committed a crime. However, on 23
March 2006 the higher prosecutor, the Chief Public Prosecutor’s
Office, reviewed the decision, quashed it and ordered the resumption
of the pre-trial investigation finding that the previous
investigation was incomplete and did not correspond to the evidence
collected. The applicant was charged on 16 January 2007 and on 10
October 2007 the Regional Court convicted her. On 10 April 2008 the
Court of Appeal mainly upheld the conviction and imposed on her a
suspended sentence of one year’s imprisonment.
- The
applicant relying on the termination of the criminal proceedings
brought an action for damages for unlawful prosecution. The Regional
Court and the Court of Appeal rejected her request, holding that the
action was premature since the criminal proceedings were pending
against her. The Supreme Court of Cassation on 11 December 2008
subscribed to the lower courts’ conclusions that there had been
no final termination of the criminal proceedings against the
applicant as they had been resumed.
- The
applicant complained that as a result of the resumption of the
criminal proceedings she was deprived of her right of access to court
to seek damages from the prosecution.
- The
majority concluded that there was a violation of 6 § 1 since the
prosecuting authorities did not refer to any specific deficiencies in
the first investigation or other convincing reasons for resumption.
Furthermore, there were no procedural safeguards such as time-limits,
statutory criteria or judicial review of the decision to resume the
prosecution, which gave the prosecution authorities the possibility
to influence the course of the proceedings for damages.
- I
fully agree with the majority that there should be no scope for abuse
of power. However, I do not agree that no pertinent reasons were
given for reopening the lower prosecutor’s decision. The Chief
Prosecutor’s Office found that the decision of the lower
prosecutor was incorrect. That decision was based on an incomplete
pre-trial investigation and the conclusions reached did not
correspond to the evidence. It was pointed out that the key witness
had not been questioned. The criticism of the regional prosecutor’s
decision was justified and confirmed by the national courts since the
applicant was ultimately convicted. In my opinion the higher
prosecutor’s decision to resume the proceedings was based on
appropriate reasons. Furthermore, it is worth noting that the
decision to resume the proceedings was taken nine months after the
decision to terminate them. The applicant was not left in a state of
uncertainty for an unacceptable length of time.
- Therefore,
I conclude that there has been no violation in this case.
