FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 68356/01
by Ognian Nakov DOINOV
against Bulgaria
The European Court of Human Rights (First Section), sitting on 3 November 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
andMr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 29 December 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ognian Nakov Doinov, was a Bulgarian national who was born in 1935, lived in Vienna and passed away in 2000. He was represented before the Court by Mrs Y. Vandova, a lawyer practising in Sofia.
By letter of 26 March 2001 his wife, Mrs Elena Petkova Doinova, and his son, Mr Rosen Ognianov Doinov, informed the Court that they wished to continue the present application. They are also represented before the Court by Mrs Y. Vandova.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and his successors, may be summarised as follows.
1. Background
The applicant was formerly a member of the Bulgarian Communist Party (“BCP”), in which he held the position of Secretary of the Central Committee of the BCP (1976-1986) and was a Member of the Politburo of the Central Committee of the BCP (1977-1988).
He was also a Member of the National Assembly (1974-1990), the Minister for Industry and a Member of the Council of Ministers (1984-1986) and the Bulgarian Ambassador to Norway (1989-1990).
The applicant contends that following the democratic changes of 1989 the authorities started to systematically intimidate and harass both him and his family. In particular, despite continuing to have immunity as a Member of the National Assembly his family residence was searched, an inventory of all their possessions was made and several restrictions were placed on their real property.
Fearing further intimidation, reprisal and possible unjustified prosecution by the authorities the applicant left the country on 14 April 1990. Thereafter he resided in Vienna, Austria.
2. The criminal proceedings
Preliminary investigation No. 3/92 was opened on 9 July 1992 by the Chief Prosecutor’s Office against all the members of the Bureau of the Council of Ministers and the Secretariat of the Central Committee of the BCP for the period between 1981 and 1989. A total of twenty two persons were charged, on an unspecified date, that during the said period they had participated in the adoption of decisions to provide financial assistance or extend loans, totalling 243,537,000 old Bulgarian levs, (a) to foreign countries, in respect of the Government, and (b) to foreign political parties, in respect of the BCP. The decisions in question had been adopted by the Bureau of the Council of Ministers, the Secretariat or the Politburo of the Central Committee of the BCP. These persons, including the applicant, were charged under Section 203, in conjunction with Sections 201, 202 and 282, of the Criminal Code (see Relevant domestic law and practice) for having misappropriated, in concert, the aforementioned funds. It was contented that, in breach of their official duties, they had facilitated the misappropriation with the aim of obtaining an advantage for a third party, thereby causing considerable economic damage to the country’s economy. In view of the very large sums involved, the case was a particularly serious one.
In respect of the applicant, the initial charges against him were also under the above quoted provisions of the Criminal Code. It was contended that between 1981 and 1986 in his capacity of an official, Political Secretary of the BCP, and in concert with another ten officials, members of the Secretariat of the Central Committee of the BCP, had misappropriated public funds and property (8,171,347 old Bulgarian levs; 200,000 convertible Bulgarian levs; 2,175,500 United States Dollars; 8,000 tonnes of wheat; the value of organising a summit; 60 airplane tickets; 20,000 tonnes of oil; properties given to Ethiopia; training of 50 officials from Mozambique, 30 officers and 30 cadets from Ghana; and, training, accommodation and employment for 30 Turkish nationals), which had been entrusted to him for safekeeping and management and which represented a very serious offence and for a very large amount. In addition, it was claimed that in order to facilitate the aforesaid offence the applicant had perpetrated another offence – that in his capacity as an official, Secretary of the Central Committee of the BCP, had violated his obligations as such and had exceeded his authority with the aim of obtaining advantage for himself and for a third party and had caused severe damages, which was a very serious offence.
Because the applicant was in Austria at the time, the criminal proceedings continued in his absence. On an unspecified date, he retained an attorney to represent him before the investigation authorities.
The applicant’s detention on remand was ordered on 23 July 1992 by order of the Chief Prosecutor’s Office. The order was not enforced due to absence of the applicant from the country. On an unspecified date he was included in the list of persons being sought by the police.
The charges against the applicant were amended on 7 January 1993 by decision of the Chief Prosecutor’s Office. The charges continued to fall under the same provisions of the Criminal Code, but it was now contended (1) that between 1981 and 1988 in his capacity of an official, member of the Secretariat of the Central Committee of the BCP, and in concert with several other officials, members of the same body, had misappropriated public property amounting to 75,538,332 old Bulgarian levs; (2) that between 1986 and 1987 in his capacity of Deputy Chairman of the Council of Ministers and in concert with another eight officials, members of the same body, had misappropriated public property amounting to 36,008,324 old Bulgarian levs; or (3) that between 1981 and 1988 in his various official capacities has misappropriated public property amounting to 111,544,656 old Bulgarian levs. The applicant’s order to be detained on remand was confirmed on the grounds that the offences were serious, his character and the likelihood that he might abscond.
On 1 October 1993 the Chief Prosecutor’s Office sent a letter to the Chief Prosecutor’s Office of Austria asking it to detain and extradite the applicant to Bulgaria.
The applicant was detained on 9 December 1993 by the Austrian authorities.
On 8 December 1993 the applicant sought political asylum in Austria. He claimed that the criminal proceedings instituted against him in Bulgaria were politically motivated and completely unfounded, because at the time his actions did not constitute an offence under domestic criminal legislation.
The applicant was released by the Austrian authorities on 15 December 1993 on unspecified grounds.
On 6 January 1994 the Chief Prosecutor’s Office sent an official request to the Republic of Austria seeking the applicant’s extradition to Bulgaria.
By decision of 5 May 1994 the Vienna Court of Appeal refused the extradition request. It found that the actions of the applicant were clearly in conformity with the Bulgarian Constitution and the laws at the time and that the payments from the State budget to third countries and organisations were approved by decisions of the Council of Ministers and the laws on the State budget. Moreover, the applicant’s actions were deemed not to contravene the principles of international law and human rights. In addition, the court considered that the applicant had been acting in conformity with his rights and obligations as an official who could decide on the allocation of State funds, which he did not even undertake on his own, but as a member of a collective body, for which he was not individually culpable.
The criminal proceedings against the applicant continued without him. He contends that no investigative procedures were conducted thereafter in the proceedings.
On at least four occasions the criminal proceedings were stayed for undetermined periods of time. The last such occasion was on 28 May 1995 when the Chief Prosecutor’s Office stayed the proceedings because two of the defendants had become members of the National Assembly and enjoyed immunity from prosecution.
The applicant’s attorney filed a request on 3 June 1999 with the Chief Prosecutor’s Office demanding that the criminal proceedings be terminated. She referred to the findings of the Court in the case of Lukanov v. Bulgaria (judgment of 20 March 1997, Reports of Judgments and Decisions 1997‑II, pp. 529-547) which had examined the same criminal proceedings and had found them to be deficient because the actions of the defendant did not constitute an offence under domestic law. In addition, the applicant referred to the Government’s undertaking before the Council of Europe to avoid similar such violations in the future (Resolution DH (98) 203 adopted by the Committee of Ministers on 10 July 1998 at the 637th meeting of the Ministers’ Deputies).
On 15 June 1999 the criminal proceedings against the applicant were reopened by the Supreme Cassation Prosecutor’s Office and the case was remitted for further investigation to the Specialised Investigation Division.
On 24 August 1999 the applicant’s attorney filed a second request with the Chief Prosecutor’s Office and asked that it rule on her previous request of 6 June 1999. In response, the Supreme Cassation Prosecutor’s Office informed the attorney, by letter of 2 September 1999, that the case had been assigned to the Sofia City Prosecutor’s Office, which would rule on all requests in the proceedings.
On 17 September 1999 the Sofia City Prosecutor’s Office rejected the request of 3 June 1999, because it considered that it could not rule on its merits before the criminal proceedings had finished.
On 17 December 1999 the applicant’s attorney requested from the Sofia City Prosecutor’s Office and from the Specialised Investigation Division copies of the decisions to open the preliminary investigation, to charge the applicant, to stay the proceedings and to reopen them. She sought said documents in order to file a complaint with the Court. On 4 February 2000 the Sofia City Prosecutor’s Office refused the request, because it considered that the applicant’s attorney had been present at all the investigative procedures undertaken by the authorities, was therefore aware of the information contained in the documents and, moreover, that a defendant’s attorney was not entitled to receive copies of documents from the preliminary investigation.
By decision of the Sofia City Prosecutor’s Office of 28 January 2000 the criminal proceedings against the applicant were terminated and the order for his detention was rescinded. It found that the actions of the defendants, including the applicant, did not constitute an offence under domestic criminal legislation at the time. In particular, the funds in question had always been included as expenditures in the State budget, the decisions were adopted without exceeding the powers granted thereto under the existing legislation and the provisions of such aid was in harmony with the State’s international obligations. Reference was made to the decision of 5 May 1994 of the Vienna Court of Appeal to refuse the applicant’s extradition and the Lukanov judgment (cited above) where the Court had found in respect of the same proceedings that:
“no evidence has been adduced to show that such decisions were unlawful, that is to say contrary to Bulgaria’s Constitution or legislation, or more specifically that the decisions were taken in excess of powers or were contrary to the law on the national budget.”
The decision of the Sofia City Prosecutor’s Office was confirmed by the courts and entered into force on 27 March 2000.
B. Relevant domestic law and practice
A summary of the relevant domestic law and practice is available in the Lukanov judgment (cited above, pp. 538-539, §§ 25-30).
COMPLAINTS
1. The applicant complains under Article 7 of the Convention that the authorities initiated criminal proceedings against him for actions which they were allegedly aware did not constitute an offence under domestic criminal legislation at the time.
2. The applicant complains under Article 14, in conjunction with Article 7 of the Convention, that the criminal proceedings were politically motivated and that the unjustified prosecution against him amounted to discrimination on the basis of his former membership of the BCP and the positions he previously held in the party and the Government.
3. The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings. He contends that the authorities, even though they were allegedly aware that his actions did not constitute an offence under domestic criminal legislation, kept the criminal proceedings open for almost eight years. Moreover, this continued well after the Lukanov judgment (cited above) in the context of which the Court had examined the same criminal proceedings and had found them to be deficient because the actions of the defendant did not constitute an offence under domestic criminal legislation at the time.
4. The applicant complains, relying on Article 5 §§ 1 (c) and 3 of the Convention, that an order for his arrest and detention was issued for actions which the authorities were allegedly aware did not constitute an offence under domestic criminal legislation and that this order remained in effect until the termination of the criminal proceedings against him. He considers that the prerequisite for lawfully ordering detention under Article 5 § 1 (c) of the Convention was not present. In addition, he contends that the authorities failed to rescind the order for his detention earlier and refers to the Lukanov judgment (cited above) which examined the lawfulness of an order for the detention of one of the other defendants in the same proceedings.
THE LAW
A. Complaint under Article 6 § 1 of the Convention that the length of the criminal proceedings was in breach of the “reasonable time” requirement
The relevant part of Article 6 § 1 of the Convention provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. The remainder of the applicant’s complaints
The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the criminal proceedings against him;
Declares the remainder of the application inadmissible;
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy