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FOURTH
SECTION
CASE OF SARKIZOV AND OTHERS v. BULGARIA
(Applications
nos. 37981/06, 38022/06, 39122/06, and 44278/06)
JUDGMENT
STRASBOURG
17
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 Sarkizov and Others
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,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications (nos. 37981/06,
38022/06, 39122/06, and 44278/06) 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 four
Bulgarian nationals, Mr Dimitar Alexandrov Sarkizov, Mr Vasil Petrov
Vasilev, Mr Dimitar Petkov Petkov, and Mr Kiril Dimitrov
Marinkov (“the applicants”), on 5 September 2006, 31
August 2006, 18 September 2006, and 12 September 2006, respectively.
- The
applicants were represented by Mr V. Stoyanov, a lawyer practising in
Pazardzhik. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms R. Nikolova, of the Ministry of
Justice.
3. The
applicants alleged, in particular, that their conviction had been
based to a decisive extent on anonymous witness testimony, and that
their defence rights had been unacceptably restricted, in breach of
Article 6 §§1 and
3 (d) of the Convention. The second and the fourth applicants alleged
furthermore that the travel bans imposed on them following
their release from prison had been unjustified and that they had not
had effective domestic remedies in this respect, in breach of
Articles 8 and 13 of the Convention and Article 2 §§
2 and 3 of Protocol No. 4 to the Convention.
- By
a decision of 1 June 2010 the Court decided to
join the applications, communicated the above-mentioned complaints to
the Government and declared the remainder of the applications
inadmissible. Under the provisions of Article 29 §
1 of the Convention, it decided to rule on the admissibility
and merits of the communicated complaints at the same time.
The case was later transferred to the Fourth Section of the Court,
following the re-composition of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1973, 1974, 1978 and 1967
respectively. The first, the second and the third applicants
live in Pazardzhik. The fourth applicant lives in Lozen.
A. The criminal proceedings against the applicants
1. The preliminary investigation
- On
12 October 2004 a preliminary investigation was opened against the
applicants in respect of sexual procurement.
- From
13 to 18 October 2004 the witnesses Mr Zh.M., Mr N.P., Ms R.M.
and Ms D.M. were questioned before a judge. Neither the applicants
nor their lawyers participated in the questioning.
- Mr
Zh.M. stated that the fourth applicant had owed him money and
therefore in March 2004 had offered him the sexual services of one of
the prostitutes controlled by him in lieu of payment. Mr Zh.M. had
accepted. Later the fourth applicant had proposed to “sell”
him the same woman for 2,000 euros (“EUR”).
- Mr
N.P. stated that in July 2004 he had seen two women standing on a
main road, had stopped his car and had asked them who was their boss.
They had replied that it was the fourth applicant. Then Mr N.P. had
called the fourth applicant, who was an acquaintance of his, and the
fourth applicant had confirmed that the women were working for him.
- Ms
R.M. stated that in the beginning of 2003 the fourth applicant had
suggested that she work for him as a prostitute. She had accepted and
the fourth applicant had bought her clothes and a bus ticket to
France. There a woman named I. had met her and had found her a hotel.
Ms R.M. had been instructed to give the money she earned to Ms I. who
would forward it on to the first, the second and the fourth
applicants through companies providing money transfer services. After
some time the fourth applicant had sent Ms R.M. to Belgium, where the
second applicant had met her. Later on, Ms R.M. had returned to
Bulgaria and had prostituted herself along the main roads. One day in
July 2004 another procurer had stopped his car and had suggested that
she work for him. She had told him that she had worked for the fourth
applicant, and had given him the latter’s phone number. He had
called the fourth applicant and had then left.
- Ms
D.M. stated that in February 2004 she had been contacted by the third
and the fourth applicants who had suggested that she work for them as
a prostitute. She had refused.
- On
an unspecified date the Pazardzhik District Public Prosecutor’s
Office decided that the identity of three other witnesses should be
kept secret.
- On
21 October 2004 witnesses with ID nos. 15 and 16 were questioned
before a judge. Before the interviews the judge verified the two
witnesses’ identity.
- Witness
no. 15 stated that she had dated the third applicant in the past.
According to her statements, in February 2004, while she was still
under age, the third applicant took her to a hotel in the town of P.
where he left her in a room with an unknown man. Then the man had
told her that he had paid the third applicant to have sex with her.
She spent about an hour with him. On another day witness no. 15 had
met the third applicant who had introduced her to the fourth
applicant and a woman named D. The third and the fourth applicants
had suggested to witness no. 15 and Ms D. that they work for them as
prostitutes. Witness no. 15 had accepted. Afterwards, on a number of
occasions from February to April 2004 witness no. 15 had been sent
either by the third or the fourth applicants to meet their clients in
different towns in Bulgaria. In April 2004 witness no. 15 had
informed the third and the fourth applicants that she no longer
wished to work for them.
- Witness
no. 16 stated that in February 2004 she had already been engaged in
prostitution when the fourth applicant had contacted her and had
suggested that she work for him. She had agreed and the first, the
second and the fourth applicants had made arrangements for her to
travel to Denmark, France and other countries in order to work as a
prostitute. She had sent them money by using money transfer services
or through third parties. After some time she had told them that she
no longer wished to work for them.
- Immediately
after the interviews the records of the witnesses’ statements
were presented to the applicants and their lawyers, and they were
given the opportunity to put questions. The applicants and their
lawyers stated in writing that they had acquainted themselves with
the records and had no questions to put to the anonymous witnesses.
- On
27 October 2004 the witness with ID no. 17 was questioned before a
judge who verified her identity. The first, the second and the fourth
applicants and the lawyers of the second and the fourth applicants
participated in the interview but the witness’ identity was
protected. The third applicant and his lawyer, as well as the first
applicant’s lawyer, although duly summoned, were absent.
Witness no. 17 stated that in the summer of 2003 she had accepted to
work as a prostitute for the first, the second and the fourth
applicants. They had arranged her travel to and stay in Denmark,
Norway and France, and she had sent money to individuals specified by
them. After some time she had informed the fourth applicant that she
no longer wished to work for him.
- The
District Court invited the applicants and their lawyers to put
questions to witness no. 17. The first, the second and the fourth
applicants expressly stated in writing that they had no questions for
her.
- On
4 November 2004 the District Court ordered three banks to inform the
prosecution and the police authorities of the international money
transfers ordered or received by certain individuals suspected of
having been involved in the applicants’ sexual procurement
activities. On 24 November 2004 the District Public Prosecutor
issued a similar order in respect of two other banks.
- On
an unknown date the applicants were accused of having induced into
prostitution, procured or transported, individually or in complicity
with each other, the three anonymous witnesses and other women.
- The
applicants were also apparently subject to special means of
surveillance for an unknown period of time.
2. The trial stage
- On
22 April 2005 the District Public Prosecutor’s Office filed an
indictment against the applicants. On an unknown date the District
Court decided that the public should be excluded from the trial.
- On
5 July 2005 the District Court held a hearing in the case. The
anonymous witnesses and nine other witnesses did not appear. The
court adjourned the hearing because of irregularities in the
summoning of witnesses.
- The
next hearing was held on 21 September 2005. Witness no. 15 was
present, but the other two anonymous witnesses and ten other
witnesses did not appear. The District Court adjourned the hearing
because of irregularities in the summoning of witnesses.
- On
4 November 2005 the District Court held a further hearing. The
anonymous witnesses and eleven other witnesses did not appear. The
Prosecutor’s Office submitted written statements by two of the
anonymous witnesses that they were aware of the criminal proceedings
and did not wish to attend the hearing. The applicants’ lawyers
requested that the anonymous witnesses be found and questioned. The
District Court held that the anonymous witnesses had been the victims
of the crimes of which the applicants had been accused, and therefore
were free to decide whether they wished to attend the hearing. It
questioned seven witnesses, who stated that they did not know or did
not remember anything about the case. However, two of the witnesses,
Mr A.D. and Mr I.S., admitted that they had received international
money transfers, and Mr A.D. specified that he had thus done the
fourth applicant who had had no identity card a favour. The Public
Prosecutor requested that the records of the witnesses’
statements before the investigator be read out in court. However, the
applicants did not give their consent and the District Court
dismissed that request.
- The
next hearing was held on 20 December 2005. The anonymous witnesses
and several other witnesses were again absent. The Prosecutor’s
Office submitted a police report attesting to the fact that one of
the anonymous witnesses was abroad. The District Court ordered that
the anonymous witnesses and the other absent witnesses be found and
brought before it. It further questioned four witnesses, including
the witness R.M. After that it read out R.M.’s testimony given
before a judge at the pre-trial stage (see paragraph 10 above),
finding that there was inconsistency in her statements. Another
witness, Ms Ts.V., stated that in October 2004 the fourth applicant
had suggested that she work for him as a prostitute but she had
refused.
- The
next hearing was held on 20 February 2006. The District Court
examined one witness and admitted the evidence obtained from the use
of special means of surveillance. The anonymous witnesses and several
other witnesses once again did not appear. The Prosecutor’s
Office stated that two of the anonymous witnesses were abroad and
that the third could not be found. The applicants’ lawyers
insisted that the anonymous witnesses be found and questioned, and
asserted that anonymity was not justified as the applicants knew the
identity of those witnesses. The District Court again ordered that
the anonymous witnesses and the other missing witnesses be found and
brought before it.
- A
further hearing was held on 28 March 2006. The anonymous witnesses
and several other witnesses did not appear. A police report was
submitted, stating that two of the anonymous witnesses had left the
country and the third one had not been found. The applicants’
lawyers insisted that the anonymous witnesses be found and
questioned, and expressed doubts about the efforts of the prosecution
authorities to ensure their presence at the trial. They further
requested the cancellation of the witness protection measures,
stating that the applicants were already aware of their identity. The
District Court found that the reasons for protecting the anonymous
witnesses persisted. Noting that the anonymous witnesses were abroad,
it read out their statements given at the pre-trial stage and
admitted them. It did the same with the testimony of Mr Zh.M. (see
paragraph 8 above), who appeared but stated that he did not remember
anything about the case, and with the testimony of three other
witnesses who had been questioned before a judge at the pre-trial
stage, including Mr N.P. and Ms D.M. (see paragraphs 9 and 11
above), who could not be found and summoned. The District Court also
read out and admitted a number of documents, such as reports on
international money transfers, police reports, and the information
obtained through the secret surveillance of the applicants. The
applicants’ lawyers unsuccessfully requested the recusal of the
panel.
- In
a judgment of 28 March 2006 the District Court convicted the
applicants, individually or in complicity with each other, of having
induced or attempted to induce into prostitution, procured or
transported the three anonymous witnesses and the witnesses Ms R.M.,
Ms D.M. and Ms Ts.V. Mr Sarkizov was sentenced to three years’
imprisonment and a fine, Mr Vasilev – to three years’
imprisonment and a fine, Mr Petkov – to three years and two
months’ imprisonment and a fine, and Mr Marinkov – to
five years’ imprisonment and a fine. The District Court found
that the victims’ statements, including those of the anonymous
witnesses, had been corroborated by the other evidence in the case,
such as other witness statements, reports on international money
transfers, reports from the border control authorities, and the
information obtained through the secret surveillance of the
applicants.
- Following
an appeal by the applicants, on 4 July 2006 the Pazardzhik Regional
Court held a hearing. It dismissed the applicants’ request that
the anonymous witnesses be questioned, finding that this was not
necessary.
- In
a judgment of 17 July 2006 the Regional Court upheld the sentence of
28 March 2006. It fully endorsed the findings and conclusions of the
District Court.
- The
judgment of 17 July 2006 was not subject to an appeal on points of
law and became final.
- On
an unknown date the applicants requested the reopening of the
criminal proceedings. In a judgment of 30 May 2007 the Supreme Court
of Cassation dismissed the request. It held that there had been no
procedural breaches in the examination of the anonymous witnesses at
the pre-trial stage, and that the applicants had been acquainted with
the examination records and had explicitly stated that they had no
questions to put to those witnesses. The court further emphasised
that the anonymous witnesses’ testimony had not been the sole
or decisive evidence for the applicants’ conviction, but had
been corroborated by a wealth of other evidence.
B. Subsequent restriction on the second and the fourth
applicants’ leaving the country
1. The second applicant
- The
second applicant was conditionally released from prison on 26 April
2007 with a six-month supervision period, which expired, apparently,
in October 2007.
- On
4 June 2007 the Pazardzhik Regional Police Directorate prohibited him
from leaving the country pending his rehabilitation (see paragraph
46 below). He appealed against the order, arguing that he had no
employment in Bulgaria and that the prohibition did not contribute to
his social re-integration, was excessive and unnecessary. In a final
judgment of 28 January 2008 the Supreme Administrative Court
dismissed the appeal. The court held that the prohibition had been
imposed in compliance with the law, on the grounds of the second
applicant’s conviction for an offence subject to public
prosecution, and that the ratio legis behind the
prohibition was to prevent criminally active individuals from
travelling abroad until they had proved that they had been reformed.
2. The fourth applicant
- On
an unknown date the fourth applicant was released from prison.
- On
7 April 2008 the Pazardzhik Regional Police Directorate prohibited
him from leaving the country pending his rehabilitation. He appealed
against the order, arguing that he had served his sentence, that
there were no pending criminal proceedings against him, that his work
as a football manager required frequent travel abroad and that he had
to accompany his son for medical treatment abroad. In a final
judgment of 18 December 2008 the Supreme Administrative Court
dismissed the appeal, holding that the assessment of the
administrative body was not subject to judicial control. The court
further held that the police authorities were not obliged to state
any reasons for their decision to impose the ban.
3. Duration of the travel bans and their cancellation
in respect of the second and the fourth applicants
- Seeing
that the travel bans were contingent on the judicial rehabilitation
of the second and the fourth applicants, these measures apparently
would have lasted at least until October 2010 for the second
applicant and until an unknown date in 2011 for the fourth applicant
(see paragraph 46 below). However, in October 2009 the Bulgarian
Identity Papers Act was amended to the effect that convicted
individuals who had served their sentences could no longer be
prohibited from leaving the country. As a result, all travel bans
imposed before that amendment ceased to have effect as from July 2010
(see Nalbantski v.
Bulgaria, no. 30943/04, § 25,
10 February 2011).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Anonymous witnesses
- Pursuant
to Articles 97a and 98 of the 1974 Code of Criminal Procedure (“the
1974 CCP”), in force until 29 April 2006, measures for the
protection of a witness had to be taken where there were sufficient
grounds to believe that his testimony had caused or could have caused
a real risk to his life, health or property or that of his close
relatives or other individuals with whom he had very close ties. The
decision that a witness should be protected had to specify the
reasons for the protection and its type. The pre trial
authorities and the court had a direct access to the protected
witness and were obliged to verify his identity before the interview.
A copy of the record of the interview with a protected witness had to
be presented immediately to the accused and his lawyer who were
entitled to put questions to the witness. The measures for protection
could be discontinued at the request of the protected witness or
where they were no longer necessary.
- Pursuant
to Article 99a of the 1974 CCP, the charges and the conviction could
not be based exclusively on the testimony of anonymous witnesses.
- These
provisions were superseded by Articles 123, 124 and 141 of the 2006
CCP, in force since 29 April 2006, which repeat their text almost
verbatim.
- In
a binding interpretative decision (тълк.
реш. № 2 от
16 юли 2009 г.
на ВКС по тълк.д.
№ 2/2009 г., ОСНК) of 16
July 2009 the Plenary Meeting of the Criminal Chambers of the Supreme
Court of Cassation resolved a number of contentious issues relating
to the construction of various provisions of the Criminal Code and
the 2006 CCP on the prosecution of human trafficking. In point 5 of
the decision it held that the victim of a human trafficking offence
could participate in the criminal proceedings as an anonymous
witness. It held that the accused’s defence rights could be
subjected to reasonable restrictions, including by granting anonymity
status to the testifying victim, in order to protect the latter’s
rights. However, a strict judicial control had to be exercised over
the reasons for granting anonymity to testifying victims and over the
procedures aimed at counterbalancing the restriction of the defence
rights. According to the Supreme Court of Cassation, in cases of
anonymous witnesses the legislation provided three procedural
safeguards against the risk of manipulating the evidence in favour of
the prosecution: (1) the direct contact between the judge and the
anonymous witness, which guaranteed, at the very least, that such a
witness indeed existed; (2) the right of the accused and his lawyer
to put questions to the anonymous witness immediately after his
questioning; and (3) the limited probative importance the legislation
attached to anonymous testimony (see paragraph 40 above). The court
made reference to the case-law of this Court and concluded that the
rules of fair trial would not be breached if the above procedures
were strictly complied with, and notably, if the accused has been
given the opportunity to put questions to the anonymous witness
immediately after the questioning of the latter.
B. Questioning of witnesses before a judge at the
pre-trial stage and reading out their testimony in court
- The
possibility to interview a witness before a judge, in cases where it
is likely that the witness would not be able to attend the trial due
to illness, absence or other reasons, or where his testimony would be
of “exceptional importance for the establishment of objective
truth”, was provided for in Article 210a of the 1974 CCP. The
provision was inserted with effect from 1 January 2000 with the aim
of creating a possibility to use evidence collected at the pre-trial
stage of the proceedings, while at the same time conforming to the
principle of immediacy of judicial proceedings. Article 210a § 2
specifically provided that the investigator or prosecutor in charge
of the interview had to ensure the witness’s presence and “a
possibility” for the accused and his counsel to take part in
the interview.
- Article
279 of the 1974 CCP allowed the statement of a witness given at the
pre-trial stage to be read out in court if, inter alia, there
was a considerable discrepancy between that statement and the
witness’ testimony given at the trial; if the witness had not
been found and summoned or was unable to appear in court; or if he
had appeared but had refused to testify at trial or had stated that
he did not remember anything. If the accused
was not represented, the court had to inform him that the testimony
thus read out would be used for the determination of the criminal
charges against him. Where the statement had been made before
a judge, pursuant to Article 210a of the 1974 CCP, there was no
requirement for the court examining the case to obtain the consent of
the parties (Article 279 § 1).
C. Travel
ban on convicted individuals pending their rehabilitation
- The
relevant domestic law and practice concerning travel bans on
convicted individuals pending their rehabilitation are set out in the
Court’s judgment in the case of Nalbantski, cited above,
§§ 25-29.
D. Rehabilitation of convicted offenders
- Under Article 87 § 1 of the 1968 Criminal Code, a
convicted individual may benefit from judicial rehabilitation. Such
rehabilitation may be granted by the court which convicted him or
her, if more than three years have elapsed since the serving of the
sentence, and the individual concerned has not committed another
offence punishable with imprisonment, has demonstrated good behaviour
and, in the case of offences committed with intent, has made good any
damage done. The latter requirement may be disregarded by the court
if there is good reason (Article 87 § 2).
E. The 1988 State and Municipalities Responsibility for
Damage Act
- Section
1 of the 1988 State and Municipalities Responsibility for Damage Act
(“the SMRDA”), as in force since July 2006, provides as
follows:
“The State and the municipalities shall be liable
for damage caused to individuals and legal persons by unlawful
decisions, actions or omissions by their organs and officials,
committed in the course of or in connection with the performance of
administrative action.”
- Pursuant
to the consistent case-law of the domestic courts, for the impugned
conduct to be considered unlawful, it must be in breach of national
law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§
1 and 3 (d) OF THE CONVENTION
- The
applicants complained that their conviction had
been based to a decisive extent on anonymous witness testimony. They
also complained that they had not been given the opportunity to
participate in the questioning of the anonymous witnesses. They
relied on Article 6 §§ 1 and 3
(d) of the Convention, which provide, as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. The parties’ submissions
- The
Government contested these arguments and maintained that the
applicants had been given the opportunity to put questions to these
witnesses immediately after their questioning before a judge at the
pre-trial stage, but had expressly refused to do so. They submitted
copies of written statements of the applicants and their lawyers to
this effect. They further argued that the granting of anonymity to
witnesses nos. 15, 16 and 17 had been necessary for their protection
and had not affected the applicants’ procedural rights. The
Government also contended that the applicants’ conviction had
not been based to a decisive extent on the testimony of the anonymous
witnesses, as their statements had been corroborated by other
evidence, such as the testimony of other witnesses and the results
from the secret surveillance of the applicants.
- The
applicants argued that it had not been necessary to grant anonymity
to witnesses nos. 15, 16 and 17 because they had already been aware
of their identity. They further stated that the anonymous witnesses
and the other witnesses who had testified at the pre-trial stage had
given their statements under pressure by the investigating
authorities. They complained that the prosecution authorities and the
trial court had made no efforts to summon the anonymous witnesses
despite the applicants’ requests because they had feared that
the witnesses would change their testimony, as other witnesses had
done.
B. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
C. Merits
- A statement of the general principles concerning the
use of incriminating statements made by absent witnesses may be found
in the Court’s recent judgment in Al-Khawaja and Tahery v.
the United Kingdom [GC], nos. 26766/05 and 22228/06,
§§ 120-147, 15 December 2011. In that judgment the
Court recalled that the guarantees in paragraph 3 (d) of Article 6
are specific aspects of the right to a fair hearing set forth in
paragraph 1 of this provision which must be taken into account in any
assessment of the fairness of proceedings. In addition, the
Court’s primary concern under Article 6 § 1 is to evaluate
the overall fairness of the criminal proceedings In making this
assessment the Court will look at the proceedings as a whole having
regard to the rights of the defence but also to the interests of the
public and the victims that crime is properly prosecuted and, where
necessary, to the rights of witnesses. The Grand Chamber recalled in
this context that the admissibility of evidence is a matter for
regulation by national law and the national courts and that the
Court’s only concern is to examine whether the proceedings have
been conducted fairly. Article 6 § 3 (d)
enshrines the principle that, before an accused can be convicted, all
evidence against him must normally be produced in his presence at a
public hearing with a view to adversarial argument. Exceptions to
this principle are possible but must not infringe the rights of the
defence, which, as a rule, require that the accused should be given
an adequate and proper opportunity to challenge and question a
witness against him, either when that witness makes his statement or
at a later stage of proceedings (see § 118 of Al-Khawaja and
Tahery [GC], cited above).
- There
are two requirements which follow from the above general principle.
First, there must be a good reason for the non-attendance of a
witness. Second, when a conviction is based solely or to a decisive
degree on depositions that have been made by a person whom the
accused has had no opportunity to examine or to have examined,
whether during the investigation or at the trial, the rights of the
defence may be restricted to an extent that is incompatible with the
guarantees provided by Article 6 (the so-called “sole or
decisive rule”) (ibid., § 119).
As regards the application of the latter rule, the Grand Chamber
concluded that where a hearsay statement is the sole or decisive
evidence against a defendant, its admission as evidence will not
automatically result in a breach of Article 6 § 1. At
the same time where a conviction is based solely or decisively on the
evidence of absent witnesses, the Court must subject the proceedings
to the most searching scrutiny. The question in each case is whether
there are sufficient counterbalancing factors in place, including
measures that permit a fair and proper assessment of the reliability
of that evidence to take place. This would permit a conviction to be
based on such evidence only if it is sufficiently reliable given its
importance in the case (ibid., § 147).
- The
Grand Chamber further noted that while the problems raised by
anonymous and absent witnesses are not identical, the two situations
are not different in principle, since each results in a potential
disadvantage for the defendant. The underlying principle is that the
defendant in a criminal trial should have an effective opportunity to
challenge the evidence against him. This principle requires not
merely that a defendant should know the identity of his accusers so
that he is in a position to challenge their probity and credibility
but that he should be able to test the truthfulness and reliability
of their evidence, by having them orally examined in his presence,
either at the time the witness was making the statement or at some
later stage of the proceedings (ibid., §
127).
- Applying
those principles to the present case, the Court notes that the
parties did not submit the decision of the pre-trial authorities
granting anonymity to witnesses nos. 15, 16 and 17. Thus, it is
unable to examine how the authorities assessed the necessity of this
measure. However, it is prepared to accept that as victims of sexual
procurement, the anonymous witnesses must have reasonably feared
reprisals at the hands of their procurers. Furthermore, the
applicants’ objections in this respect were examined and
dismissed by the District Court (see paragraph 28 above). As to the
applicants’ argument that they managed to discover the
anonymous witnesses’ identity, the Court considers it
irrelevant because it does not support the applicants’ thesis
that the anonymity status limited their opportunity to test those
testimonies.
- The
Court further considers that in the circumstances of the present case
the difficulties encountered by the defence in connection with the
anonymity granted to those witnesses were sufficiently
counterbalanced by the procedures followed by the judicial
authorities. In particular, the anonymous witnesses were questioned
at the pre-trial stage before a judge in compliance with Article 210a
of the 1974 CCP (see paragraphs 13-17 and 43 above). Immediately
after the interviews, the applicants and their lawyers were given the
opportunity to put questions to those witnesses and to cast doubt on
the credibility of their testimony. However, they expressly refused
to put questions and therefore can be considered to have waived their
right to challenge these statements (see, mutatis mutandis,
Zdravko Petrov v. Bulgaria, no. 20024/04,
§ 38, 23 June 2011, with further
references). The applicants, who were represented by
lawyers, should have been aware that the testimony thus obtained
could be used as evidence by the courts. Therefore the Court is
unable to share the applicants’ view that they were denied an
adequate and proper opportunity to challenge and question the
anonymous witnesses at the time when they made their statements.
- The Court notes that the applicants’ conviction
was not based solely or to a decisive extent on the anonymous
witnesses’ testimonies. The domestic courts had before them a
mass of other evidence, such as reports on money transfers,
information from the border control database, results from the use of
special surveillance measures, and statements of other witnesses,
that permitted them to make a fair and proper assessment of the
reliability of the anonymous witnesses’ testimonies, and the
applicants – to challenge or rebut them by giving evidence
themselves. The courts based the applicants’ conviction on a
thorough analysis of all those pieces of evidence and found that they
corroborated the anonymous witnesses’ account of the events. It
is true that even where the evidence of an absent witness has not
been sole or decisive, the Court has still found a violation of
Article 6 §§ 1 and 3 (d) when no
good reason has been shown for the failure to have the witnesses
examined (see, for example, in Lüdi v. Switzerland,
15 June 1992, Series A no. 238, Mild and Virtanen v. Finland,
no. 39481/98 and 40227/98, 26 July 2005, Bonev v. Bulgaria,
no. 60018/00, 8 June 2006; and Pello v. Estonia, no. 11423/03,
12 April 2007). This is because as a general rule witnesses should
give evidence during the trial and that all reasonable efforts will
be made to secure their attendance (see Al Khawaja and
Tahery [GC], cited above, § 120).
The applicants have criticised the failure of the authorities to make
reasonable efforts to secure the attendance of the anonymous
witnesses. However, the Court notes that the domestic courts made
reasonable efforts to have those witnesses located and summoned and
that their efforts cannot be dismissed as inadequate (see paragraphs
26 and 27 above). Furthermore, it does not lose sight of the
fact that the domestic courts are best placed to
assess whether it is appropriate to call a witness, and finds that
their decision not to persist in their efforts to find those
witnesses was neither unreasonable nor arbitrary in the
circumstances, seeing that the applicants were already given ample
opportunity to examine them and, moreover, under conditions which did
not place them at a substantial disadvantage vis à vis
the prosecuting authorities (see paragraphs 16-18 above, compare S.N.
v. Sweden, no. 34209/96, § 49, ECHR 2002 V).
- For
these reasons, the Court finds that the applicants’ rights
under Article 6 were not unacceptably restricted and that they were
able to participate effectively in the proceedings.
- It
follows that there has been no violation of Article 6 §§
1 and 3 (d) of the Convention in the applicants’ case.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO
THE CONVENTION
- The
second and the fourth applicants complained under Article 2 of
Protocol No. 4 about the travel ban which had been imposed on them
following their release from prison. This provision reads, in so far
as relevant, as follows:
“... 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. ...”
A. The parties’ arguments
- The
Government submitted that the second and the fourth applicants had
failed to exhaust domestic remedies, as they had not requested their
rehabilitation, which, if granted by the courts, would have
automatically put an end to their travel bans, and they had not
sought damages. On the merits, the Government maintained that the
travel bans had been imposed in compliance with the domestic
legislation and had been necessary for the prevention of crime, in
view of the nature of the offences committed by the applicants.
- The
second and the fourth applicants contended that the police
authorities had not provided reasons for the travel bans and the
national courts had carried out only a formalistic review of those
bans. The travel bans had been arbitrary.
B. The Court’s assessment
1. Admissibility
- Regarding
the Government’s objection that the second and the fourth
applicants could have requested their rehabilitation, the Court notes
that under Article 87 § 1 of the 1968
Criminal Code rehabilitation was not possible during the first three
years which followed the serving of a sentence (see paragraph 46
above). Therefore this opportunity was not available to the second
and the fourth applicants after their release from prison. In any
event, the Government have not argued that the lawfulness and
justification of a travel ban could be subject to examination in
rehabilitation proceedings. Therefore the Government’s first
objection should be rejected. As to the possibility of the second and
the fourth applicants claiming damages, the Court notes that such a
claim could not result in the lifting of the travel bans.
Furthermore, one of the prerequisites for a successful claim under
the SMRDA is the establishment of the unlawfulness of the act causing
the damage (see paragraphs 47-48 above). However, the domestic courts
dismissed the appeals by the second and the fourth applicants against
the travel bans, finding them lawful under national law (see
paragraphs 35 and 37 above). Accordingly, the Government’s
second objection should also be dismissed.
- The
Court further notes that the above complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and are not inadmissible on any other grounds. They must
therefore be declared admissible.
2. Merits
- The
Court cannot exclude that, having regard to the nature of the
offences committed by the second and fourth applicants, who were
apparently involved in running a prostitution ring in various
European countries, a ban on them leaving the country for a certain
period after the end of their prison terms could be found to be
justified under Article 2 of Protocol No. 4 (see examples of travel
bans found to be justified in paragraph 65 of the Court’s
judgment in Nalbantski (cited above)).
- The
Court notes, however, that in the present case the police and the
domestic courts applied the same automatic approach, criticised by
the Court in Nalbantski (cited above, §§
62 and 66-67): they gave no reasons for the travel bans, and
failed to examine the applicants’ individual situation and the
question of proportionality. Furthermore, as in Nalbantski
(ibid., §§ 26, 56 and
66), the courts were only competent to review the formal lawfulness
of the ban and not the need for such a measure, which was deemed to
fall exclusively within the discretionary power of the police
authorities (see paragraphs 35 and 37 above).
- In
these circumstances, in the absence of reasons and proper judicial
review of the question of proportionality by the domestic
authorities, the Court cannot speculate as to whether or not there
were grounds that could have justified the travel ban imposed on the
second and fourth applicants.
- The
authorities’ approach was as such incompatible with
Article 2 §§ 2 and 3 of Protocol No. 4, which
imposes a duty on the authorities to ensure that a restriction of an
individual’s right to leave his or her country is, from the
outset and throughout its duration, justified and proportionate. That
assessment should normally be subject to review by the courts, since
they offer the best guarantees of independence, impartiality and
lawfulness of the procedures. The scope of their review should enable
them to take account of all the factors involved (see Gochev v.
Bulgaria, no. 34383/03, § 50, 26 November 2009,
with further references).
- As
that was not done in the present case, the Court finds that there has
been a breach of Article 2 of Protocol No. 4 in respect of the second
and the fourth applicants.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
second and fourth applicants complained that they had not had any
effective domestic remedies available to them in respect of the
travel bans and that their personal and business lives had been
affected by that measure. They relied on Articles 8 and 13 of the
Convention.
- In
view of its findings above under Article 2 of Protocol No. 4, the
Court finds that the above complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
are not inadmissible on any other grounds. They must therefore be
declared admissible.
- The
Court considers, however, that in the circumstances of the present
case no separate issue arises under Articles 8 and 13.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- 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.”
- Each
of the second and the fourth applicants claimed
25,000 euros (EUR) in damages generally, for violations of the
Convention in their case.
- The
Government argued that the claims were excessive.
- The
Court considers that in the circumstances of the present case
the finding of a violation constitutes sufficient just satisfaction
for any non pecuniary damage which the second and the fourth
applicants may have suffered.
B. Costs and expenses
- The
second and the fourth applicants also claimed
EUR 3,000 for twenty-seven hours of legal work by their lawyer in the
proceedings before the domestic courts and the Court. In support of
their claim they presented contracts and time sheets.
- The
Government considered these amounts excessive and unsubstantiated.
- 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. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court rejects the claim for costs and expenses
in the domestic proceedings and considers it reasonable to award
jointly to the second and the fourth applicants the sum of EUR 1,000
for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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
applicants’ complaints under Article 6 §§ 1 and 3
(d) and the complaints of the second and the fourth applicants
under Article 2 of Protocol No. 4 and Articles 8 and 13 of the
Convention, and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 §§
1 and 3 (d) of the Convention in respect of the applicants;
3. Holds that there has been a violation of Article
2 of Protocol No. 4 in respect of the second and the fourth
applicants;
- Holds that no separate issues arise under
Articles 8 and 13 of the Convention;
5. Holds that the finding of a violation of Article
2 of Protocol No. 4 constitutes in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the second and
the fourth applicants;
- Holds
(a) that
the respondent State is to pay jointly to Mr Vasilev and Mr Marinkov,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 1,000 (one thousand euros), plus any tax
that may be chargeable to them, in respect of
costs and expenses, to be converted into Bulgarian levs at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
