BELCHEV v. BULGARIA

FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39270/98
by Anton Belchev BELCHEV
against Bulgaria

The European Court of Human Rights (First Section), sitting on 6 February 2003 as a Chamber composed of

MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 24 September 1997,

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 regard to the partial decision of 11 May 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anton Belchev Belchev, is a Bulgarian national who was born in 1957 and lives in Sofia, Bulgaria. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Mrs V. Djidjeva, co‑agent, of the Ministry of Justice.

A.  The circumstances of the case

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

1.  Course of the criminal proceedings against the applicant

(a)  The investigation

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 (dec.), no. 39084/97, 12 September 2002, unreported, and Hamanov v. Bulgaria (dec.), no. 44062/98, 6 February 2003, unreported).

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.

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.

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 with having incited and abetted Mr Hamanov to breach his professional duties with a view to an unlawful gain for himself and others.

Eight persons were charged in all. The charges were modified several times in the course of the investigation.

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.

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.

On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor.

On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence.

(b)  The trial

The trial opened on 17 September 1997. The 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.

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 to 7 January 1998.

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.

Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance.

The hearing listed for 9 April 1998 was adjourned to 6 July and then again to 19 October by reason of ill health of one of the applicant’s co‑accused.

On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties.

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.

The reasoning of the District Court’s judgment was deposited in the registry of that court on an unspecified date in late January 1999.

(c)  The appeal

On 26 November 1998 the applicant appealed against his conviction and sentence.

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.

On 13 and 14 March 2000 the Regional Court resumed its hearing in the case.

On 5 June 2000 the Regional Court quashed the lower court’s judgment and remitted the case to the investigation stage.

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.

As of January 2001 the investigation in the applicant’s case was pending before the prosecution authorities.

2.  The applicant’s detention on remand

On 14 November 1996 the applicant was arrested and brought before an investigator who decided to detain him on remand. That decision was confirmed the same day by the District Prosecutor’s Office.

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.

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.

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.

The appeal was dismissed on 18 December 1996. The Regional Prosecutor’s Office held that the applicant was not detained solely because he had been charged with a serious intentional crime, but also because there was a risk that he might impede the investigation by suborning witnesses and hiding documents, regard being had to the complexity of the case and the number of witnesses that had to be questioned.

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.

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 Code of Criminal Procedure (“CCP”), barred any possibility for release. That investigation had been opened in 1985 and in 1997 was still pending without having proceeded to trial.

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.

On 26 February 1997 the applicant was sent to hospital for a medical examination.

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 risk of the applicant tampering with evidence.

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.

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 of the opinion that all documentary evidence had been gathered and the facts of 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 subpoenaing 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.

On 28 March 1997 the applicant posted bail and was released.

3.  Relevant civil proceedings

In 1995 the beneficiary of two of the promissory notes guaranteed by Mr Hamanov brought an action against the bank to receive payment on them. The main defence of the bank was that the guarantee was void as Mr Hamanov had exceeded his powers by making it on its behalf. The proceedings ended by final judgment of the Supreme Court of Cassation of 20 June 1999 which held that the guarantee of the notes was valid and that Mr Hamanov had the power to make it on the bank’s behalf.

B.  Relevant domestic law and practice

1.  The offence with which the applicant was charged

Article 282 § 1 of the Criminal Code 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...”

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.

Article 20 § 3 of the Criminal Code 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).

2.  Provisions relating to detention on remand

(a)  Power of the prosecutor and the investigator to detain on remand

A summary of the relevant law may be found in Nikolova v. Bulgaria ([GC], no. 31195/96, §§ 28‑29, ECHR 1999‑II).

(b)  Legal criteria and practice regarding the requirements and justification for detention on remand

Detention on remand was governed by Article 152 of the CCP, which read in relevant part:

“1.  Detention on remand shall be imposed [in cases where the charges concern] a serious intentional crime.

2.  In the cases falling under paragraph 1 [detention on remand] may possibly not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing further crimes.

3.  Paragraph 2 shall not apply if other criminal proceedings for a publicly prosecuted crime are pending against the accused...”

A “serious” crime is defined by Article 93 § 7 of the Criminal Code as one punishable by more than five years’ imprisonment.

The Supreme Court has held that it was not open to the courts, when examining an appeal against detention on remand, 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 (опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о.).

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 on remand. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any danger 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 (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).

(c)  Judicial review of pre-trial detention

Article 152 § 5 of the CCP, as in force at the relevant time, provided as follows:

“The detainee shall be provided immediately with a possibility of filing an appeal with the competent court against the [imposition of detention]. The court shall rule within a time-limit of three days from the filing of the appeal by means of a final decision.”

The Supreme Court has held that the imposition of detention on remand could be contested before a court under this provision only once. After using this opportunity a detainee could only request release from the prosecuting authorities if there had been a change of circumstances (опред. № 94 от 17 септември 1992 г. по н.ч.д. № 754/92 г. на ВС І н.о.). Thus, until the amendment of the CCP in August 1997 periodic judicial review of the lawfulness of detention on remand was not possible at the pre-trial stage.

According to the practice at the relevant time, the court examined appeals against detention on remand in chambers, without the participation of the parties. An amendment of the CCP of August 1997 introduced the requirement that appeals against detention on remand be examined at a hearing with the participation of the detainee.

3.  Other relevant provisions

Section 2 of the State Responsibility for Damage Act of 1988 (Закон за отговорността на държавата за вреди, причинени на граждани) provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the court ... for unlawful:

1.  detention ..., if [the detention order] has been overturned for lack of lawful grounds[.]”

COMPLAINTS

1.  The applicant complained under Article 5 § 3 of the Convention that after his arrest he had not been brought before a judge or another officer authorised by law to exercise judicial power. In particular, he submitted that neither the investigator, nor the prosecutor who had confirmed his detention on remand, had corresponded to the requirements of this provision.

2.  The applicant complained that his arrest had been unlawful under domestic law and that there had existed no “reasonable suspicion” of him having committed an offence. He also claimed that the reasons relied on by the national authorities to keep him in custody had been insufficient.

3.  The applicant complained under Articles 5 § 4 and 13 of the Convention that at the relevant time there had been no effective procedure through which he could challenge the lawfulness of his detention.

4.  In addition, 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.

5.  Finally, the applicant complained under Article 6 of the Convention about the length of the criminal proceedings against him.

THE LAW

A.  Alleged non-compliance with the six-months’ time-limit

The Government maintained that the complaints under Article 5 of the Convention had been submitted out of time as the applicant’s first letter had been received by the Commission on 9 October 1997.

The applicant contested this argument. He stated that his first letter had been dated 24 and postmarked 27 September 1997.

The Court notes that the applicant was released on 28 March 1997 and that the application was introduced by letter dated 24 and postmarked 27 September 1997. It refers to its and the former Commission’s constant case-law according to which the date of introduction of an application is considered to be, in principle, the date of the first letter indicating an intention to lodge an application and giving at least a summary indication of the nature of the complaints to be made, not the date of its registration or the date figuring on the stamp affixed by the Court’s registry upon its receipt (see X v. Ireland, no. 8299/78, Commission decision of 10 October 1980, Decisions and Reports (DR) 22, p. 51, at pp. 71‑72, Erdoğdu and İnce v. Turkey [GC], nos. 25067/94 and 25068/94, § 30, ECHR 1999‑IV, and Korkmaz v. Turkey (dec.), no. 42589/98, 5 September 2002, unreported).

Accordingly, the Court finds that the application was introduced on 24 September 1997, within the six-months’ time-limit set by Article 35 § 1 of the Convention.

The Government’s objection must therefore be dismissed.

B.  Complaint that upon his arrest the applicant was not brought promptly before a judge or other officer authorised by law to exercise judicial power

The applicant contended that his arrest, ordered by an investigator and confirmed by a prosecutor, had entailed a breach of Article 5 § 3 of the Convention, which reads in pertinent part:

“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...”

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.

The applicant stated that neither the investigator who decided to detain him, nor the prosecutor who 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).

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C.  Complaints about the lawfulness and justification of the applicant’s detention on remand

1.  Alleged non-exhaustion of domestic remedies and abuse of the right of application

The applicant complained that his arrest had been unlawful, that there had existed no “reasonable suspicion” of him having committed an offence, and that the reasons relied on by the authorities to keep him in custody had been insufficient.

The Government maintained that the applicant had failed to exhaust all domestic remedies. In particular, the decision of the Chief Prosecutor’s Office confirming the refusal to release the applicant could be appealed before the Deputy Chief Prosecutor and the Chief Prosecutor. Also, all prosecutor’s decisions already into force could be altered at any time. Further, the applicant could have applied to a court under Article 152 § 5 of the CCP and brought an action for damages against the State.

The Government also claimed that by lodging an application with the Commission without first availing himself of these remedies, the applicant  had abused his right of application within the meaning of Article 35 § 4 of the Convention.

The applicant replied that both the appeals to the prosecution and to a court were ineffective because of the limited scope of their inquiry into the relevant circumstances justifying detention and the lack of proper procedure. He had chosen to apply to the prosecution authorities in view of the possibility to complain more than once, which gave him a better chance of obtaining release. As to the possibility of bringing a tort claim, it was inapposite as it could have not possibly secured his release.

The Court finds no merit in the Government’s contention that the application was abusive and dismisses that objection.

As regards the requirement of the exhaustion of domestic remedies, the Court considers that the applicant undoubtedly made normal use of the remedies available within the prosecutor’s offices system (see Assenov and Others, cited above, p. 3294, § 122).

As to the possibility for the applicant to file an action against the State for damages, the Court observes that in such an action he could not have sought review of the lawfulness of his detention and obtained release. It has accordingly no bearing on the question of exhaustion of domestic remedies (see Egue v. France, no. 11256/84, Commission decision of 5 September 1988, DR 57, p. 47, at pp. 66‑67, and Navarra v. France, no. 13190/87, Commission decision of 1 March 1991, DR 69, p. 165).

As regards the fact that the applicant did not apply to a court as he was entitled to do under Article 152 § 5 of the CCP, the Court notes that the applicant did make requests for release to the prosecution authorities, a remedy which had the same objective.

The Government’s objection of non-exhaustion of domestic remedies must thus be dismissed.

2.  Alleged unlawfulness of the applicant’s detention and lack of reasonable suspicion against him

The applicant complained that his arrest had been unlawful and that there had existed no “reasonable suspicion” of him having committed an offence. He relied on Article 5 § 1 (c) of the Convention which provides, as relevant:

“1.  ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

The Government maintained that the applicant had been detained in the course of pending criminal proceedings, on suspicion of having incited and abetted Mr Hamanov to commit an offence. His detention had been ordered pursuant to Article 152 § 1 of the CCP and was thus lawful.

The applicant disagreed. He insisted that his detention was not effected in accordance with domestic law, since the suspicion against him was not borne out by the facts. Moreover, the other reasons on which the authorities relied to keep him in custody were not relevant and sufficient, as required by Article 5 of the Convention.

The applicant advanced two substantial arguments in support of his contention that “reasonable suspicion” was lacking at the time of his arrest. First, he argued that, since Mr Hamanov could not have been suspected of committing a crime, regard being had to conclusions of the Supreme Court of Cassation in its 1999 judgment that the guaranteeing of the promissory notes was within his powers, the applicant could not have been suspected of inciting and abetting him to do so. Second, he submitted that the suspicion was based solely on information supplied by Mr Hamanov, which would have been insufficient to secure the conviction of the applicant.

The Court is not persuaded that the Supreme Court of Cassation’s judgment of 1999, delivered in a civil case, had the effect of eliminating the possibility of finding Mr Hamanov or the applicant criminally liable for the guaranteeing of the notes. In any event, the Court notes that the existence of “reasonable suspicion” against the applicant must be assessed according to the information available to the authorities at the time of his arrest and ensuing detention in 1996 and 1997. As to the assertion that the statements of Mr Hamanov would be insufficient to secure the conviction of the applicant, the Court observes that the standard imposed by Article 5 § 1 (c) does not presuppose that the facts which raise a suspicion should be of the same level as those necessary to justify a conviction (see O’Hara v. the United Kingdom, no. 37555/97, § 36, ECHR 2001‑X). The Court thus finds that the applicant was arrested on “reasonable suspicion” of having committed an offence, within the meaning of Article 5 § 1 (c).

Finally, in the light of all the material in its possession the Court does not find any indication that the applicant’s detention was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. The Court considers that it was made in accordance with domestic law and fell within the ambit of Article 5 § 1 (c) of the Convention, having been effected for the purpose of bringing the applicant before the competent legal authority on suspicion of having committed an offence.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  Alleged lack of justification of the detention

The applicant claimed that the reasons relied on by the national authorities to keep him in custody had been insufficient. His allegations in this respect fall to be examined under Article 5 § 3 of the Convention, which 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. ...”

The Court considers that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D.  Complaint about the lack of effective judicial review of the applicant’s pre-trial detention

The applicant alleged that he could not obtain a fully-fledged judicial review of his pre-trial detention, contrary to Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

He also relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that throughout his detention the applicant did not file an appeal under Article 152 § 5 of the CCP. He could have easily done so, particularly in view of the fact that he was legally represented.

The applicant did not deny that he could have filed such an appeal. He submitted, however, that, had he done so, the courts would have treated his arguments relating, in particular, to the sufficiency of the evidence against him and the other reasons justifying his detention, as irrelevant. Moreover, the proceedings would have been conducted in chambers.

Since Article 5 § 4 of the Convention provides a lex specialis in relation to the more general requirements of Article 13 (see M.A. and M.M. v. France (dec.), no. 39671/98, ECHR 1999‑VIII), the Court will examine the complaint only under Article 5 § 4.

The Court notes that the applicant did not file an appeal with the competent court, as he was entitled to do under Article 152 § 5 of the CCP. His allegations about the scope of the judicial review of his detention are a matter of pure speculation (see, mutatis mutandis, Assenov and Others, cited above, p. 3292, § 112). The Court cannot conjecture how the proceedings that the applicant never brought would have unfolded.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

E.  Complaint about the alleged lack of an enforceable right to compensation

The applicant claimed that the impossibility to obtain compensation of the alleged breaches of Article 5 §§ 3 and 4 of the Convention was violative of paragraph 5 of the same Article, which 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.”

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 of 1988.

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.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

F.  Complaint about the length of the criminal proceedings against the applicant

In respect of his complaint about the length of the criminal proceedings the applicant relied on Article 6 of the Convention which in its relevant part provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

In the Government’s view, the authorities had worked on the case with the required diligence, particularly during the investigation. The case had been 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 listed 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 Court had taken all necessary measures to reduce the delay: they had listed hearings in three-months intervals and had sought police assistance for subpoenaing witnesses.

The applicant agreed with the Government 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, nine months 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.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning his right to be brought before a judge or another officer authorised by law to exercise judicial power after his arrest, the justification for his detention on remand, the lack of an enforceable right to compensation, and the length of the criminal proceedings against him;

Declares the remainder of the application inadmissible.

Søren NielsenChristos Rozakis
              Deputy RegistrarPresident

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