State liability for the institution of criminal proceedings

Under Article 2(1), item 3, of the Bulgarian State and Municipalities Liability for Damage Act (ЗОДОВ), the State is liable for harm caused to individuals by investigating authorities, prosecutors and courts in connection with a criminal charge if the individual is acquitted or the proceedings are discontinued because the individual did not commit the act, because the act was not a criminal offence, or because the prosecution was already time-barred or the act had already been amnestied when the proceedings began.

The basis for State liability in the case of discontinuance on these grounds is the objective fact that criminal proceedings were instituted against the individual, who was formally accused of an offence under the Criminal Code, and the proceedings were subsequently discontinued. Under the State liability legislation, unlawfulness is assessed by reference to the final outcome of the criminal proceedings. A charge is unfounded (unlawful) where the prosecution is discontinued for lack of proof of the alleged offence, or where the accused is acquitted on the question of whether a crime took place or who committed it.

In assessing compensation for non-pecuniary damage, the court follows settled case law: fairness under Article 52 of the Obligations and Contracts Act is not an abstract concept. It requires an assessment of the objective circumstances of each case. These include the type, nature, intensity and duration of the harm compared with the claimant’s condition beforehand; the seriousness of the charge; whether it concerned one or several separate offences; whether the acquittal or discontinuance covered all or only some charges; the length of the proceedings, including whether they exceeded a reasonable time; and whether a measure of restraint was imposed and, if so, which one. The court also considers the effects on the claimant: any deterioration in health, its nature and extent, the claimant’s own experiences, and the overall impact of the prosecution on family life, friendships, work and public reputation, including public reaction to the case.

A single sum is awarded for all non-pecuniary harm arising from the wrong under Article 2(1), item 3, of the Act. The sum must be sufficient to compensate for the whole of that harm in accordance with the generally accepted standard of fairness and the particular circumstances. It should not exceed the fair amount necessary to compensate for the harm actually suffered.

The claimant bears the burden of fully proving the extent of the damage. The article therefore recommends engaging a lawyer to represent the claimant in court.

This article is not a legal opinion or advice about any particular situation or person. For assistance with unlawful detention, an unlawful charge or damage caused by a public authority, consult a lawyer practising tort law.