BELCHEV v. BULGARIA

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39270/98
by Anton BELCHEV

against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 11 May 2000 as a Chamber composed of

MrG. Ress, President,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić,
MrJ. Hedigan,
MrM. Pellonpää,
MrsS. Botoucharova, judges,[Note1]

andMrV. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 24/27 September 1997[1] and registered on 9 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anton Belchev, is a Bulgarian national, born in 1957 and living in Sofia. He is represented before the Court by Mr Mihail Ekimdjiev, a lawyer practising in Plovdiv.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.Particular circumstances of the case

The applicant was a manager of a bank and of an investment fund in Plovdiv.

In 1996 a preliminary investigation no. 300/96 was opened by the Plovdiv District Public Prosecutor against the applicant and eight other persons in respect of a number of financial transactions.

On 14 November 1996 the applicant was detained on remand under section 282 of the Criminal Code on suspicion of having committed a continuing serious offence as an accomplice to another co-accused, Mr H., whom he was alleged to have aided and abetted in his unlawful activity with a view to obtaining an unlawful gain for himself and others.

The applicant submitted that he had been arrested a few hours after another co‑accused, Mr H., gave his testimony to the Plovdiv Public Prosecutor, describing in detail how he had been abetted and assisted by the applicant in the commission of the offence. The applicant contested the validity of the testimony, on the grounds that Mr H. had been questioned twice within 2 hours by the public prosecutor and it had been during the second 0time that he consented to reply to the prosecutor’s questions without his lawyer being present. He further alleged that on 25 September 1997 when Mr H. had been questioned about this, he stated that the above had been said only in an informal conversation with the Public Prosecutor.   

On 3 December 1996 the Plovdiv District Public Prosecutor dismissed the applicant’s application for release on the ground that he had intentionally committed a serious criminal offence punishable with five to ten years’ imprisonment, in which case the law provided for pre-trial detention. The prosecutor also found that there was a clear and present danger that the applicant might obstruct the course of justice and tamper with evidence, as the investigation team had yet to examine complicated financial and business dealings.

On 4 December 1996 the applicant appealed to the Plovdiv Regional Public Prosecutor. That appeal was dismissed on 18 December 1996 on the ground that the applicant was not detained solely because he had been charged with a serious intentional offence, but also because there was a danger that he might obstruct the course of justice by committing further offences, regard being had to the complexity of the case, the number of witnesses and the volume of evidence that had yet to be examined.

On 17 January 1997 the applicant’s appeal to the Chief Public Prosecutor was dismissed on the grounds that he had committed a serious crime and that there existed a danger of committing further offences or obstructing the course of justice. In addition, another preliminary investigation no. 112TP/96 against him was pending which, in accordance with the relevant law at the time, barred any possibility for release. This preliminary investigation against the applicant was opened on an unspecified date under suspicion of him having committed an offence punishable under Article 219 § 4 of the Criminal Code, and has not yet been terminated.

On 4 March 1997 the Regional Public Prosecutor dismissed the applicant’s request for release on the ground of ill-health, but ordered his transfer to hospital.

On 14 March 1997 the applicant applied to the Chief Public Prosecutor for release on health grounds. This application was referred to the Regional Public Prosecutor in whom the appropriate power was vested.

On 25 March 1997 the Regional Public Prosecutor’s Office ordered the applicant’s release on bail. The prosecutor relied on the conclusions of the medical experts and noted that the applicant would not be able to maintain the required dietary regime and to benefit from the necessary medical supervision if he were returned from hospital to the detention facility. In addition, the supervising prosecutor and the investigator in case no. 300/96 had expressed the opinion that all the evidence in the case had been compiled and the issues in the case had been clarified. Therefore, there was no danger of 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 no. 112TP/96 was pending against him, the prosecutor found that this should not be used to the detriment of the applicant as the investigation in question had already been pending for some 10 years. Throughout the period of his detention, the applicant did not appeal to the court, as he was entitled to under domestic law.

During the preliminary investigation the District Public Prosecutor and the investigator heard, inter alia, 9 accused persons and 47 witnesses and examined various financial and banking documents, payment orders, reports from searches of the premises and ballistic experts and report of 12 February 1997 prepared by a handwriting expert. No other information is available concerning the course of the investigation.

The preliminary investigation in file no. 300/96 against the applicant and eight other persons was completed on an unspecified date between February and April 1997. An indictment was submitted to the District Court on 20 June 1997. The District Court listed a hearing for September 1997.

This first hearing took place between 17 and 27 September 1997. The court heard some of the witnesses, whereas others, albeit summoned, did not appear. The court decided that it needed to examine a financial expert’s report and adjourned the trial until 25 November 1997.

A further adjournment to 7 January 1998 was ordered as some of the witnesses who had been summoned did not attend and the expert’s report had not been finalised.

The trial resumed on 7 and 8 January 1998. The court adjourned the hearing as some summoned witnesses had not appeared and ordered an additional financial report.

The hearing in the applicant’s trial which had been scheduled for 9 April 1998 was adjourned to 6 July 1998 and then to 19 October 1998 due to another co-accused’s ill health.

On 30 October 1998 the Plovdiv District Court found the applicant guilty and sentenced him to six years’ imprisonment.

On 19 November 1998 the applicant appealed against his conviction complaining, inter alia, that neither he nor his lawyer had had the opportunity to examine five witnesses who had been heard during the preliminary investigation.

On 6 December 1999 the Plovdiv Regional Court held its first hearing, which was adjourned to 13-17 March 2000, due to the applicant’s health problems.

The applicant’s first letter to the Commission was signed by his lawyer. The letter is dated 24 September 1997. The envelope of that letter is postmarked 27 September 1997. A power of attorney signed by the applicant and dated 25 September 1997 is enclosed.

B.Relevant domestic law and practice

Section 282 of the Criminal Code (Наказателен кодекс)

“(1) A person [exercising a function of managing another person’s property or an official function], who acts in breach or dereliction of his or her official duties, or exceeds his or her power or rights with a view to obtaining a material gain for himself or others or inflicting damage to others, and thus causes harm or substantial damage, shall be punished with up to five years’ imprisonment…”

The third paragraph of section 282, read in conjunction with the first and the second paragraphs of the same provision, provides for a punishment of three to ten years’ imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high ranking post.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention was arbitrary, as under domestic law any suspect charged with having intentionally committed an offence must remain in detention pending trial. He further complains that the warrant for his arrest did not contain any reasoning as to the existence of a reasonable suspicion against him, or as to the alleged danger of absconding, obstructing the course of justice or committing further offences. 

The applicant complains under Article 5 § 3 of the Convention that upon his arrest he was not brought before a judge or other officer authorised by law to exercise judicial power.

The applicant complains under Articles 5 § 4 and 13 of the Convention that the proceedings by which the lawfulness of his detention was to be reviewed by a court were not effective as, according to the Bulgarian law and practice at the relevant time, the judicial review was purely formal.

The applicant further complains under Article 5 § 5 of the Convention that domestic law does not secure his right to compensation for the alleged violations of Article 5.

The applicant also complains under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively lengthy. In particular, that there was a period of inactivity from April to August 1997, that there were substantial intervals between the hearings of the Plovdiv District Court, that the court did not take the necessary measures for witnesses and expert witnesses to be summonsed properly and that the Plovdiv Regional Court scheduled its first hearing after almost one year and one month.

He further complains under Article 6 §§ 1 and 3 of the Convention in respect of the alleged unfairness of the proceedings. In particular, he submits that the court admitted newspaper articles in evidence.

THE LAW

1.The applicant complains under Article 6 §§ 1 and 3 that his right to fair criminal proceedings was violated.

The Court recalls that a complaint under Article 6 of the Convention concerning alleged unfairness of criminal proceedings would in principle be premature when these proceedings are still pending. An applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his or her right to a fair trial in respect of proceedings which have not been concluded ([see] application no. 37355/97 Decision of 20.4.99, unpublished; application no. 31195/96 Decision of 27.2.97, DR. 88, p. 169).

The Court notes that in the instant case, the applicant has filed an appeal with the Plovdiv Regional Court. In these proceedings he will be able to raise all arguments about the alleged partiality of the Plovdiv District Court and the alleged unfairness of the proceedings. Moreover, it is open to the applicant, in case the second instance decision is unfavourable, to appeal to the Supreme Court of Cassation, which is also competent to examine the allegations now raised before the Court.

It follows that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his rights under Article 6 to a fair trial by an impartial tribunal and that, therefore, this part of the application is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

2.As regards the applicant’s complaints under Article 5 § 1 that the applicant’s detention was arbitrary; under Article 5 § 3 that the applicant was not brought before a judge; under Articles 5 § 4 and 13 that, at the material time, the examination of the applications for release by the competent court was purely formal and did not represent an effective domestic remedy; under Article 5 § 5 concerning the alleged lack of compensation for the alleged violations of Article 5; and under Article 6 § 1 that the criminal proceedings against him were excessively lengthy, the Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, by a majority,

DECIDES TO ADJOURN the examination of the complaints under Article 5 § 1 that the applicant’s detention was arbitrary; under Article 5 § 3 that the applicant was not brought before a judge; under Articles 5 § 4 and 13 that, at the material time, the examination of the applications for release by the competent court was purely formal and did not represent an effective domestic remedy; under Article 5 § 5 concerning the alleged lack of compensation for the alleged violations of Article 5; and under Article 6 § 1 of the Convention concerning the alleged excessive length of the criminal proceedings against the applicant;

DECLARES INADMISSIBLE the remainder of the application.

Vincent BergerGeorg Ress

RegistrarPresident

[1] The letter was dated 24 September 1997 and postmarked 27 September 1997.

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