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CASE OF BELCHEV
v. BULGARIA
(Application no. 39270/98)
JUDGMENT
STRASBOURG
8 April 2004
FINAL
08/07/2004
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 Belchev v. Bulgaria,
The European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr E. Levits,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on 18 March 2004,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 39270/98) against
the Republic of Bulgaria lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian
national, Mr Anton Belchev Belchev (“the applicant”), on 24 September 1997.
2. The applicant was represented by Mr M. Ekimdjiev, a lawyer
practising in Plovdiv. The Bulgarian Government (“the Government”) were
represented by their Agents, Ms V. Djidjeva and Ms M. Dimova, of the Ministry
of Justice. In a letter of 8 April 2003 the applicant objected to the representative
powers of the Agents and invited the Court to ignore the observations submitted
by them on the Government’s behalf. On 18 March 2004 the Court decided
to reject the applicant’s objection.
3. The applicant alleged, in particular, that after his arrest
he had not been brought before a judge or another officer authorised by
law to exercise judicial power, that the reasons relied on by the national
authorities to keep him in custody had been insufficient, that he had had
no enforceable right to compensation in respect of the alleged breaches
of Article 5 of the Convention and that the criminal proceedings against
him had lasted unreasonably long.
4. The application was transmitted to the Court on 1 November
1998, when Protocol No. 11 to the Convention came into force (Article 5
§ 2 of Protocol No. 11).
5. The application was originally allocated to the Fourth Section
of the Court (Rule 52 § 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
6. By a decision of 11 May 2000 the Court (Fourth Section) declared
the application partly inadmissible.
7. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 § 1). This case was assigned to the newly composed First
Section (Rule 52 § 1).
8. By a decision of 6 February 2003 the Court (First Section)
declared the application partly admissible.
9. The applicant, but not the Government, filed observations
on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1957 and lives in Plovdiv.
A. The criminal proceedings against the applicant
1. The preliminary investigation
11. On 11 March 1996 the Plovdiv District Prosecutor’s Office
opened an investigation against Mr Hamanov, a bank branch manager, and
several others, in connection with a number of financial transactions effected
by them (see Yankov v. Bulgaria, no. 39084/97, § 11, 11 December
2003 and Hamanov v. Bulgaria, no. 44062/98, § 11, 8 April 2004).
12. In the course of the investigation Mr Hamanov was accused, inter
alia, of having guaranteed on behalf of the bank – without having
the right to do so – nine promissory notes issued by companies related
to the applicant.
13. On an unspecified date in November 1996, in the course of
questioning, Mr Hamanov stated that the applicant had prompted him to guarantee
the promissory notes. On the basis of this statement the investigator decided
to accuse the applicant of having incited and abetted Mr Hamanov to commit
the alleged crime.
14. On 14 November 1996 the applicant was charged under Article
282 §§ 2 and 3 in conjunction with Article 20 §§ 3 and 4 of the Criminal
Code (“CC”) with having incited and abetted Mr Hamanov to breach his professional
duties with a view to an unlawful gain for himself and others.
15. Eight persons were charged in all. The charges were modified
several times in the course of the investigation.
16. During the investigation, which lasted about fourteen months,
the investigator heard forty-seven witnesses, examined numerous financial
and banking documents, commissioned expert reports, and undertook searches.
17. On 5 May 1997 the investigation was completed and the case
file was sent to the prosecutor.
18. On 1 July 1997 the prosecutor submitted to the Plovdiv District
Court a thirty-two-page indictment accompanied by twenty binders of documentary
evidence.
2. The trial
19. The first hearing took place from 17 to 30 September 1997.
The Plovdiv District Court heard the accused as well as several witnesses
and experts. Some witnesses did not appear. Both the prosecution and the
defence requested an adjournment.
20. The trial resumed on 25 November 1997. The District Court
heard several witnesses. Ten other witnesses were absent as they had not
been subpoenaed properly and others, albeit subpoenaed, did not show up.
The trial was adjourned until 7 January 1998.
21. The trial resumed on 7 and 8 January 1998. The court adjourned
it to 9 April, as some witnesses did not appear, and ordered an additional
financial report.
22. The hearing listed for 9 April 1998 was adjourned to 6 July
and then again to 19 October by reason of the ill health of one of the
applicant’s co?accused.
23. On 19 October 1998 the District Court held its last hearing.
It heard the closing argument of the parties.
24. On 30 October 1998 the District Court found the applicant
guilty of having incited and abetted Mr Hamanov to guarantee on behalf
of the bank, without having the right to do so, nine promissory notes.
It sentenced him to six years’ imprisonment and banned him from engaging
in financial dealings for a period of nine years.
25. The reasoning of the District Court’s judgment was deposited
in the registry of that court on an unspecified date in late January 1999.
26. Several times during the proceedings the case file was unavailable
as it would be transmitted to the competent court for the examination of
appeals submitted by the applicant’s co?accused against their detention.
In practice, upon such an appeal, the entire case file would be transmitted
together with the appeal.
27. Throughout the proceedings the District Court and later
the Regional Court sought police assistance to establish the addresses
of witnesses and ensure their attendance.
3. The appeal proceedings
28. On 26 November 1998 the applicant appealed against his conviction
and sentence.
29. More than a year later, on 6 December 1999, the Plovdiv
Regional Court held its first hearing, which was adjourned to 13 March
2000 because of health problems of the applicant.
30. On 13 and 14 March 2000 the Regional Court resumed its hearing
in the case.
31. On 5 June 2000 the Regional Court quashed the lower court’s
judgment and remitted the case to the preliminary investigation stage.
4. Renewed preliminary investigation
32. The Regional Prosecutor’s Office, considering that the Regional
Court’s judgment was unclear or erroneous, sought to appeal against it
or request its interpretation. There ensued a dispute about the time-limit
for such an appeal, which was brought by the prosecution authorities to
the Supreme Court of Cassation. On 27 November 2000 that court dismissed
the prosecution’s request.
33. Nothing was done in the case thereafter, at least until
April 2003, date of the latest information from the parties. At that time
the investigation in the applicant’s case was pending before the prosecution
authorities.
B. The applicant’s detention
34. On 14 November 1996 the applicant was arrested and brought
before an investigator who decided to detain him. That decision was confirmed
the same day by the District Prosecutor’s Office.
35. On an unspecified date towards the end of November or the
beginning of December 1996 the applicant applied for release to the District
Prosecutor’s Office. He asserted that there was no evidence of him having
committed a crime. Also, he had a permanent address and could not obstruct
the investigation.
36. On 3 December 1996 the District Prosecutor’s Office dismissed
the application on the ground that the applicant had been charged with
a serious intentional crime, in which case the law provided for pre?trial
detention. The testimony of two of the witnesses and certain documents
indicated that the applicant had engaged in unlawful conduct. The District
Prosecutor’s Office also found a likelihood that the applicant would try
to hide important documents relating to the facts of the crime of which
he was accused.
37. On 4 December 1996 the applicant appealed to the Regional
Prosecutor’s Office. He argued that there was no danger of him absconding,
as he had a permanent address, nor of him impeding the investigation.
38. The appeal was dismissed on 18 December 1996. The Regional
Prosecutor’s Office held that since the applicant had been charged with
a serious intentional crime, he had to be detained by virtue of paragraph
1 of Article 152 of the Code of Criminal Procedure (“CCP”). He could only
be released if the exception of paragraph 2 of that Article was applicable.
However, this was not the case, because there was a risk that if released
he might impede the investigation by suborning witnesses and hiding documents,
regard being had to the complexity of the case, the high number of witnesses
to be questioned and the need to organise confrontations between the applicant
and certain witnesses.
39. On 20 December 1996 the applicant appealed to the Chief
Prosecutor’s Office. He argued that there was no evidence of him having
committed a crime and that the Regional Prosecutor’s Office had not relied
on any specific facts justifying the conclusion that the applicant might
abscond or tamper with evidence.
40. On 17 January 1997 the Chief Prosecutor’s Office dismissed
the appeal. It subscribed to the reasoning of the lower prosecutor’s offices,
but also relied on the fact that there was another investigation pending
against the applicant which, pursuant to Article 152 § 3 of the CCP, barred
any possibility for release. That investigation had been opened during
the 1980s and in 1997 was still pending without having proceeded to trial.
41. On 18 February 1997 the applicant applied for release, arguing, inter
alia, that his state of health was such that detention could be dangerous
for him.
42. On 26 February 1997 the applicant was sent to a hospital
for a medical examination.
43. On 4 March 1997 the Regional Prosecutor’s Office dismissed
the applicant’s request for release on the ground of ill health but ordered
his transfer to hospital. It referred to its earlier findings about the
reasons for the applicant’s continuing in detention.
44. On 14 March 1997 the applicant applied to the Chief Prosecutor’s
Office for release on health grounds. The application was referred to the
Regional Prosecutor’s Office.
45. After examining the application, on 25 March 1997 the Regional
Prosecutor’s Office ordered the applicant’s release on bail. It relied
on the conclusions of the medical experts, noting that the applicant would
not be able to maintain the required dietary regime and undergo the necessary
medical supervision if he were returned from hospital to the detention
facility. In addition, the supervising prosecutor and the investigator
had come to the opinion that all documentary evidence had been gathered
and the facts of the case had been clarified. Therefore, there was no risk
of the applicant tampering with evidence. The investigation was continuing
only in view of the fact that there were difficulties in summoning certain
witnesses. Finally, there was no indication that the applicant would abscond.
As to the fact that another investigation was pending against him, the
Prosecutor’s Office found that this should not be used to the applicant’s
detriment as the investigation in question had already been pending for
more than ten years.
46. On 28 March 1997 the applicant posted bail and was released.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The offence with which the applicant was charged
47. Article 282 § 1 of the CC provides:
“A person [exercising a function of managing another’s property or an official
function], who acts in breach or dereliction of his professional duties
or exceeds his power or rights with a view to a pecuniary gain for himself
or another or damage to another, and thus causes significant harm, shall
be punished with up to five years’ imprisonment...”
48. Article 282 § 3, read in conjunction with the first and
the second paragraphs of the same provision, provides for three to ten
years’ imprisonment in very grave cases when the resulting damage is substantial
or the offender holds a high ranking post.
49. Article 20 § 3 of the CC defines an “inciter” as one who
has intentionally incited another to commit a crime. Article 20 § 4 defines
an “abettor” as one who has intentionally aided another in the commission
of a crime, by counselling, advising, offering help etc. Both inciters
and abettors are accomplices in the crime and are punishable in the same
manner as the principal, account being taken of the nature and the degree
of their participation (Article 21 § 1).
B. Provisions relating to pre?trial detention
1. Power to order pre?trial detention
50. At the relevant time and until the reform of the CCP of
1 January 2000 an arrested person was brought before an investigator who
decided whether or not the accused should be remanded in custody. The investigator’s
decision was subject to approval by a prosecutor. The role of investigators
and prosecutors under Bulgarian law has been summarised in paragraphs 25?29
of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC],
no. 31195/96, ECHR 1999?II).
2. Legal criteria and practice regarding the requirements and
justification for pre?trial detention
51. Pre?trial detention was governed by Article 152 of the CCP,
which read in relevant part:
“1. Pre?trial detention shall be imposed [in cases where the
charges concern] a serious intentional crime.
2. In the cases falling under paragraph 1 [detention] may be
dispensed with if there is no risk of the accused evading justice, obstructing
the investigation, or committing further crimes. ...”
52. A “serious” crime is defined by Article 93 § 7 of the CC
as one punishable by more than five years’ imprisonment.
53. The Supreme Court has held that it was not open to the courts,
when examining an appeal against pre?trial detention, to inquire whether
there existed sufficient evidence to support the charges against the detainee.
The courts had to examine only the formal validity of the detention order
(îïðåä. ¹ 24 îò 23 ìàé 1995 ã. ïî í.ä. ¹ 268/95 ã. íà ÂÑ ² í.î.).
54. According to the Supreme Court’s practice at the relevant
time (it has now become at least partly obsolete as a result of amendments
in force since 1 January 2000), Article 152 § 1 required that a person
charged with a serious intentional crime be detained. An exception was
only possible, in accordance with Article 152 § 2, where it was clear beyond
doubt that any risk of absconding or re-offending was objectively excluded
as, for example, in the case of a detainee who was seriously ill, elderly
or already in custody on other grounds, such as serving a sentence (îïðåä.
¹ 1 îò 4 ìàé 1992 ã. ïî í.ä. ¹ 1/92 ã. íà ÂÑ ² í.î.; îïðåä. ¹ 48 îò
2 îêòîìâðè 1995 ã. ïî í.ä. ¹ 583/95 ã. íà ÂÑ ² í.î.; îïðåä. ¹ 78 îò 6 íîåìâðè
1995 ã. ïî í.ä. 768/95 ã.).
55. Paragraph 3 of Article 152, as in force until August 1997,
provided that remand in custody was mandatory without exception where other
criminal proceedings for a publicly prosecutable crime were pending against
the accused person, or where he was a recidivist.
56. On 21 March 1997 the Supreme Court of Cassation examined
a request by the Chief Prosecutor for an interpretative decision on Article
152 of the CCP. The Supreme Court of Cassation considered that Article
152 § 3 of the Code was incompatible with the Constitution, the Convention
and the International Covenant on Civil and Political Rights. It therefore
decided to submit the matter to the Constitutional Court which is competent
to rule on the compatibility of legislation with the Constitution and international
treaties. Ultimately, the Constitutional Court did not decide the point
as the impugned provision was repealed with effect from 11 August 1997.
C. The State Responsibility for Damage Act
57. Section 2 of the State Responsibility for Damage Act of
1988 („Çàêîí çà îòãîâîðíîñòòà íà äúðæàâàòà çà âðåäè, ïðè÷èíåíè íà ãðàæäàíè“)
provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the
organs of ... the investigation, the prosecution, the courts ... for:
1. unlawful pre?trial detention ..., if [the detention order]
has been set aside for lack of lawful grounds[.]”
58. The reported case-law under section 2(1) of the Act is scant.
In two recent judgments the Supreme Court of Cassation held that pre?trial
detention orders must be considered as being “set aside for lack of lawful
grounds” – and that State liability arises – where the criminal proceedings
have been terminated on grounds that the charges have not been proven (ðåø.
¹ 859/2001 ã. îò 10 ñåïòåìâðè 2001 ã. ïî ã.ä. ¹ 2017/2000 ã. íà ÂÊÑ) or
where the accused has been acquitted (ðåø. ¹ 978/2001 ã. îò 10 þëè
2001 ã. ïî ã.ä. ¹ 1036/2001 ã. íà ÂÊÑ). The view taken appears to be that
in such cases the pre?trial detention order is retrospectively deprived
of its lawful grounds as the charges were unfounded.
59. On the other hand, the Government have not informed the
Court of any successful claim under section 2(1) of the Act in respect
of unlawful pre?trial detention orders in connection with pending criminal
proceedings or proceedings which have ended with final convictions. It
appears that rulings putting an end to pre?trial detention in pending criminal
proceedings have never been considered as decisions to “set aside for lack
of lawful grounds” within the meaning of section 2(1) of the Act. Also,
the terms “unlawful” and “lack of lawful grounds” apparently refer to unlawfulness
under domestic law.
60. By section 2(2) of the Act, in certain circumstances a claim
may be brought for damage occasioned by the “unlawful bringing of criminal
charges”. Such a claim may be brought only where the accused person has
been acquitted by a court or the criminal proceedings have been discontinued
by a court or by the prosecution authorities on the ground that the accused
person was not the perpetrator, that the facts did not constitute a criminal
offence or that the criminal proceedings were instituted after the expiry
of the relevant limitation period or despite a relevant amnesty. In contrast
with the solution adopted under section 2(1) (see paragraph 58 above),
the Supreme Court of Cassation has held that no liability arises under
section 2(2) where the criminal proceedings were discontinued at the pre?trial
stage on the ground that the accusation was not proven (ðåø. ¹ 1085/2001
ã. îò 26 þëè 2001 ã. ïî ã.ä. ¹ 2263/2000 ã. íà ÂÊÑ ²V ã.î.).
61. Persons seeking redress for damage occasioned by decisions
of the investigating and prosecuting authorities or the courts in circumstances
falling within the scope of the State Responsibility for Damage Act have
no claim under general tort law as the Act is a lex specialis and
excludes the application of the general regime (section 8(1) of the Act;
ðåø. ¹ 1370/1992 ã. îò 16 äåêåìâðè 1992 ã., ïî ã.ä. ¹ 1181/1992 ã.
íà ÂÑ ²V ã.î.). The Government have not referred to any successful
claim under general tort law in connection with unlawful pre?trial detention.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 § 3 OF THE CONVENTION
A. Alleged violation of the right to be brought before a judge
or other officer authorised by law to exercise judicial power within the
meaning of Article 5 § 3 of the Convention
62. The applicant complained under Article 5 § 3 of the Convention
that upon his arrest he had not been brought promptly before a judge or
other officer authorised by law to exercise judicial power.
63. Article 5 § 3 of the Convention provides, as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph
1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power...”
64. The applicant stated that neither the investigator who had
decided to detain him, nor the prosecutor who had confirmed that decision
could be deemed independent officers authorised by law to exercise judicial
power. He referred to the Court’s findings in the cases of Assenov
and Others (judgment of 28 October 1998, Reports of Judgments
and Decisions 1998?VIII, p. 3299, §§ 147?150) and Nikolova (cited
above, §§ 50?51).
65. The Government accepted that Bulgarian law at the relevant
time could not be regarded as being in conformity with Article 5 § 3. They
contended, however, that introducing judicial control of arrests of suspects
was not feasible without changing the legislation first. In this connection,
they informed the Court that amendments to the CCP, effective 1 January
2000, introduced full judicial control in respect of any measure affecting
the individual’s rights during the pre?trial stage of criminal proceedings.
66. In previous judgments which concerned the system of detention
pending trial as it existed in Bulgaria until 1 January 2000, the Court
found that neither investigators before whom accused persons were brought,
nor prosecutors who approved detention orders could be considered to be
“officer[s] authorised by law to exercise judicial power” within the meaning
of Article 5 § 3 of the Convention (see Assenov and Others, cited
above, pp. 2298?99, §§ 144?50; Nikolova, cited above, §§
49?53; and Shishkov v. Bulgaria, no. 38822/97, §§ 52?54,
ECHR 2003-... (extracts)).
67. The present case also concerns detention pending trial before
1 January 2000. Upon his arrest the applicant was brought before an
investigator who did not have power to make a binding decision to detain
him. In any event, neither the investigator, nor the prosecutor who confirmed
the detention were sufficiently independent and impartial for the purposes
of Article 5 § 3, in view of the practical role they played in the prosecution
and their potential participation as a party to the criminal proceedings
(see paragraphs 34 and 50 above). The Court refers to its analysis of the
relevant domestic law contained in its Nikolova judgment (see
paragraphs 28, 29 and 49?53 of that judgment).
68. It follows that there has been a violation of the applicant’s
right to be brought before a judge or other officer authorised by law to
exercise judicial power within the meaning of Article 5 § 3 of the Convention.
B. Alleged violation of the right to trial within a reasonable
time or to release pending trial
69. The applicant complained under Article 5 § 3 of the Convention
that his detention had been unjustified and unreasonably lengthy.
70. Article 5 § 3 of the Convention provides, as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph
1 (c) of this Article ... shall be entitled to trial within a reasonable
time or to release pending trial. ...”
71. Referring to the Court’s judgments in the cases of Shishkov (cited
above, §§ 57?67) and Nikolov v. Bulgaria (no. 38884/97, §§ 66?77,
30 January 2003), the applicant claimed that the reasons relied on
by the national authorities to keep him in custody had been insufficient.
72. The Government did not comment on this complaint.
73. The Court notes that the applicant was arrested on 14 November
1996 and was released on bail on 28 March 1997 (see paragraphs 34 and 46
above). The period to be examined is therefore four months and fourteen
days.
74. The persistence of a reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for
the lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish whether
the other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national authorities
displayed “special diligence” in the conduct of the proceedings (see Labita
v. Italy [GC], no. 26772/95, §§ 152?53, ECHR 2000?IV).
75. In its final admissibility decision of 6 February 2003 in
the present case the Court rejected as manifestly ill?founded the applicant’s
assertion that there had been no reasonable suspicion of his having committed
an offence. The applicant was held in custody on the basis of a suspicion
that he had incited and abetted Mr Hamanov to breach his professional duties
with a view to an unlawful gain for himself and others.
76. As to the grounds for the continued detention, the Court
notes that in the case of Ilijkov v. Bulgaria (no. 33977/97, 26
July 2001), it observed that during the period in question the authorities
had applied law and practice establishing a presumption that detention
pending trial was always necessary in cases where the sentence faced went
beyond a certain threshold of severity. The presumption was only rebuttable
in very exceptional circumstances where even a hypothetical possibility
of absconding, re?offending or collusion was excluded, due to serious illness
or other exceptional factors. It was moreover incumbent on the detained
person to prove the existence of such exceptional circumstances, failing
which he was bound to remain in detention pending trial throughout the
proceedings. The above principles were based on Article 152 §§ 1 and 2
of the CCP, as worded at the material time, and the Supreme Court’s practice
at that stage.
77. At the time of the applicant’s detention those provisions
were still in force and the same practice prevailed.
78. The Court must nevertheless examine whether those provisions
and practice, which were clearly incompatible with Article 5 § 3 of the
Convention (see Ilijkov, cited above, §§ 84?87), were actually
applied in the instant case.
79. It notes that when rejecting the applicant’s request for
release the District Prosecutor’s Office mentioned that presumption in
its reasons. The Regional Prosecutor’s Office also relied on the presumption
(see paragraphs 36 and 38 above). It is true that in order to exclude the
application of the exception of paragraph 2 of Article 152 of the CCP the
prosecution authorities stated that there was a likelihood that the applicant
would try to hide documents and suborn witnesses. However, they did not
provide any reasoning in support of these findings which were, therefore,
of a purely declaratory nature (see Nikolov, cited above, § 73).
In this connection the Court recalls that “[w]here the needs of the investigation
are invoked in ... a general and abstract fashion they do not suffice to
justify the continuation of detention (see Clooth v. Belgium,
judgment of 12 December 1991, Series A no. 225, p. 16, § 44).
80. Moreover, when examining the applicant’s appeal against
the Regional Prosecutor’s Office refusal to release him, the Chief Prosecution
Office applied another provision of the CCP, paragraph 3 of Article 152,
which excluded any possibility of the release of a person against whom
more than one investigation was pending (see paragraph 40 above). It is
noteworthy in this respect that the separation or joinder of criminal investigations
was a matter determined by the prosecution authorities without judicial
control. That approach was incompatible with Article 5 § 3 of the Convention
(see Nankov v. Bulgaria, no. 28882/95, §§ 83 and 84, Commission
report of 25 May 1998 and Yankov, cited above, § 173).
81. The Court thus finds that the authorities failed to justify
the applicant’s remand in custody for the period of four months and fourteen
days. In these circumstances it is not necessary to examine whether the
proceedings were conducted with due diligence.
82. The Court is not unmindful of the fact that the majority
of length?of?detention cases decided in its judgments concern longer periods
of deprivation of liberty and that against that background four months
and fourteen days may be regarded as a relatively short period in detention.
Article 5 § 3 of the Convention, however, cannot be seen as authorising
pre?trial detention unconditionally provided that it lasts no longer than
a certain period. Justification for any period of detention, no matter
how short, must be convincingly demonstrated by the authorities. That has
not happened in this case.
83. The Court therefore finds that there has been a violation
of the applicant’s right under Article 5 § 3 of the Convention to trial
within a reasonable time or to release pending trial.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
84. The applicant complained under Article 5 § 5 of the Convention
that he had no enforceable right to compensation in respect of the alleged
breaches of Article 5.
85. Article 5 § 5 of the Convention provides:
“Everyone who has been the victim of arrest or detention in contravention
of the provisions of this Article shall have an enforceable right to compensation.”
86. The applicant stated that under Bulgarian law it was not
possible to obtain compensation for detention which violated the Convention
but was effected in accordance with the requirements of the CCP. He stressed
that there had never been a single precedent of a detainee obtaining compensation
in such circumstances.
87. The Government submitted that since there had been no violation
of the preceding paragraphs of Article 5, no issue arose under Article
5 § 5. In the alternative, they submitted that the applicant was free to
bring an action for damages either under the general tort law or under
the State Responsibility for Damage Act.
88. The Court notes that the applicant’s pre?trial detention
infringed his right to be brought promptly before a judge or other officer
authorised by law to exercise judicial power (see paragraph 68 above) and
his right to trial within a reasonable time or release pending trial (see
paragraph 83 above).
89. It follows that Article 5 § 5 of the Convention is applicable.
The Court must therefore establish whether or not Bulgarian law afforded
the applicant an enforceable right to compensation for the breaches of
Article 5 of the Convention in his case.
90. By section 2(1) of the State Responsibility for Damage Act,
a person who has been remanded in custody may seek compensation only if
the detention order has been set aside “for lack of lawful grounds”. This
expression apparently refers to unlawfulness under domestic law. As far
as it can be deduced from the scant practice reported under this provision,
section 2(1) has only been applied in cases where the criminal proceedings
have been terminated on the basis that the charges were unproven or where
the accused has been acquitted (see paragraphs 57?59 above).
91. In the present case the applicant’s pre?trial detention
was considered by the courts as being in full compliance with the requirements
of domestic law and the proceedings against him are still pending. Therefore,
the applicant has no right to compensation under section 2(1) of the State
Responsibility for Damage Act. Nor does section 2(2) of the Act apply (see
paragraph 60 above).
92. It follows that in the applicant’s case the State Responsibility
for Damage Act does not provide for an enforceable right to compensation.
93. Furthermore, it does not appear that such a right is secured
under any other provision of Bulgarian law (see paragraph 61 above).
94. The Court thus finds that Bulgarian law did not afford the
applicant an enforceable right to compensation, as required by Article
5 § 5 of the Convention. There has therefore been a violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
95. The applicant complained under Article 6 § 1 of the Convention
about the length of the criminal proceedings against him.
96. Article 6 § 1 of the Convention provides, as relevant:
“In the determination of ... any criminal charge against him, everyone
is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
97. The applicant submitted that the investigation had been
completed within a reasonable time but stated that there had been delays
during the trial and the appeal. In particular, the hearings before the
District Court had been held at unreasonably long intervals. Also, a long
time had elapsed between the delivery of the District Court’s reasoning
in January 1999 and the first hearing before the Regional Court. Furthermore,
the case had been remitted to the investigation stage and was likely to
continue for several more years. As to the applicant’s conduct, not a single
hearing had been adjourned solely on his account.
98. In the Government’s view, the authorities had worked on
the case with the required diligence, particularly during the investigation.
The case was very complex: it concerned eight persons accused of offences
relating to complex financial operations. The case file ran to twenty binders.
At the trial stage the prosecution had relied on approximately sixty witnesses
and the defence had called more witnesses. The difficulties in summoning
so many witnesses had inevitably caused adjournments. The applicant or
some of the other co-accused had been responsible for a number of adjournments
because of illness and where they had sought to adduce additional evidence.
The District and the Regional Courts had taken all necessary measures to
reduce the delay: they had listed hearings in three?month intervals and
had sought police assistance for subpoenaing witnesses.
99. The Court notes that the applicant was involved in the proceedings
on 14 November 1996. In April 2003, the date of the latest information
from the parties, the proceedings were pending at the preliminary investigation
stage following the Regional Court’s judgment of 5 June 2000 which quashed
the applicant’s conviction and sentence and remitted the case for renewed
investigation (see paragraphs 13?14 and 33 above).
100. The period to be examined has therefore lasted more than
seven years thus far.
101. The Court observes that the criminal proceedings against
the applicant were factually and legally complex. They involved several
persons accused of having committed offences in relation to a number of
financial transactions (see paragraphs 11?15 above).
102. Until October 1998, when the applicant was convicted by
the District Court, there were no significant delays imputable to the authorities.
However, the Regional Court held its first hearing on the applicant’s appeal
in December 1999, more than one year after the appeal was submitted. Furthermore,
nothing has been done in the case since 5 June 2000. It is still pending
at the preliminary investigation stage (see paragraph 33 above).
103. Having regard to the criteria established in its case?law
for the assessment of the reasonableness of the length of proceedings (see,
among many other authorities, Pelissier and Sassi v. France [GC],
no. 25444/94, ECHR 1999?II and Pedersen and Baadsgaard v. Denmark,
no. 49017/99, 19 June 2003), the Court finds that the length of the criminal
proceedings against the applicant failed to satisfy the reasonable time
requirement of Article 6 § 1 of the Convention.
104. It follows that there has been a violation of that provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
105. 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
106. The applicant claimed 6,800 euros (“EUR”) in non?pecuniary
damages. He made detailed submissions in respect of each violation of the
Convention in his case, emphasising the gravity of the case and referring
to some of the Court’s judgments.
107. Referring to some of the Court’s judgments in previous
similar cases against Bulgaria, the Government submitted that the claim
was excessive, in particular in view of the living standards in Bulgaria.
108. Having regard to all the circumstances of the case, and
deciding on an equitable basis, the Court awards the applicant EUR 2,500
in respect of non?pecuniary damage.
B. Costs and expenses
109. The applicant claimed EUR 4,675 for 93 hours and 30 minutes
of legal work on the Strasbourg proceedings, at the hourly rate of EUR
50. He claimed an additional EUR 439 for translation costs (58 pages),
copying, mailing and overhead expenses. The applicant submitted a fees’
agreement between him and his lawyer, a time?sheet and postal receipts.
He requested that the amounts awarded by the Court under this head should
be paid directly to his legal representative, Mr M. Ekimdjiev.
110. The Government stated that: (i) the claim for translation
and other expenses, with the exception of postage, was not supported by
documents; (ii) the number of hours claimed was excessive as the work done
by the lawyer could have been completed in half of the time claimed; and
(iii) the hourly rate of EUR 50 was excessive, regard being had to the
living standards in Bulgaria.
111. The Court notes that the applicant has submitted a fees
agreement and his lawyer’s time sheet concerning work done on his case
and that he has requested that the costs and expenses incurred should be
paid directly to his lawyer, Mr M. Ekimdjiev.
112. The Court considers that the number of hours claimed seems
to be excessive and that a reduction is necessary on that basis. It also
considers that a reduction should be applied on account of the fact that
some of the applicant’s complaints were declared inadmissible (see paragraphs
6 and 8 above). Also, the claim for translation expenses is not supported
by relevant documents. The Court further observes that the same lawyer
represented before it Mr Yankov, Mr Hamanov and Mr Belchev, who were all
co?accused in the same criminal proceedings (see paragraph 2 above, Yankov,
cited above, § 2 and Hamanov, cited above, § 2). In these circumstances,
having regard to the overlap in the facts and complaints in their applications,
the Court considers that a further reduction is appropriate.
113. Having regard to all relevant factors and deducting EUR
630 received in legal aid from the Council of Europe, the Court awards
EUR 2,000 in respect of costs and expenses, to be paid directly to
the applicant’s legal representative, Mr M. Ekimdjiev.
C. Default interest
114. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article
5 § 3 of the Convention in that upon his arrest the applicant was not brought
promptly before a judge or other officer authorised by law to exercise
judicial power
2. Holds that there has been a violation of Article
5 § 3 of the Convention in that the applicant’s pre?trial detention was
not justified throughout the whole period;
3. Holds that there has been a violation of Article
5 § 5 of the Convention in that Bulgarian law did not afford the applicant
an enforceable right to compensation;
4. Holds that there has been a violation of Article
6 § 1 of the Convention;
5. Holds
(a) that the respondent State is to pay, within three months
from the date on which the judgment becomes final according to Article
44 § 2 of the Convention, the following amounts, to be converted into Bulgarian
levs at the rate applicable at the date of settlement:
(i) EUR 2,500 (two thousand five hundred euros) in respect of
non?pecuniary damage, to be paid to the applicant himself;
(ii) EUR 2,000 (two thousand euros) in respect of costs and
expenses, to be paid directly to the applicant’s legal representative,
Mr M. Ekimdjiev;
(iii) any tax that may be chargeable on the above amounts;
(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;
6. Dismisses the remainder of the applicant’s claim
for just satisfaction.
Done in English, and notified in writing on 8 April 2004, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada
Christos Rozakis
Deputy Registrar
President
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