E.M.K. v. BULGARIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43231/98
by E.M.K.
against Bulgaria

The European Court of Human Rights (First Section), sitting on 13 November 2003 as a Chamber composed of

MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsF. Tulkens,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 17 October 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, E.M.K., is a Bulgarian national who was born in 1973 and lives in Sofia. The applicant is represented before the Court by Mr Y. Grozev and Ms K. Yaneva, lawyers practising in Sofia. The respondent Government are represented by Ms M. Pasheva, 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.

During the period September 1995 – May 1996 the applicant was a university student in finance in the town of Svishtov, at the Danube river. He was also the manager of a sport‑shoes shop in the town of Novi Pazar, in north‑eastern Bulgaria (situated at approximately 415 kilometres from Sofia), owned by his girlfriend.

1.  The criminal proceedings against the applicant

(a)  Offences with which the applicant was charged

(i)  First offence

On 12 April 1995 Mr E.S.A., a Greek citizen, drove through Bulgaria in a jeep with a trailer to transfer a corpse from Germany to Greece. At about 11.00 p.m. he stopped on the ring‑road of Sofia. A car stopped in front of the jeep, three men came out of it and approached the jeep. One of them tried to hit Mr E.S.A. with a hammer through the jeep’s window. Another got into the jeep and attacked him with a knife. Mr E.S.A. managed to knock off the knife, but in the meantime the man with the hammer hit him in the face. Then the three men threw Mr E.S.A. out of the vehicle, kicked him several times while he was lying on the ground, and drove away with the jeep.

(ii)  Second offence

At about 10.30 p.m. on 9 March 1996 Ms M.V. stopped her car in front of the house of friend of her mother’s and stepped out to wipe the ice from the windscreen. A man wearing a wool hat approached her, threatened her, sat in the driver’s seat of her car and drove away.

(b)  Preliminary investigation

An investigation into the first incident was opened on 13 April 1995. Mr E.S.A. was presented with photographs of several persons, including the applicant, and later was questioned. He identified the applicant as one of the assailants and described the assailant as having a dark complexion and short brown hair. Apparently the identification procedure was tainted as the investigator did not, as provided by the Code of Criminal Procedure (“CCP”), question Mr E.S.A. about the distinctive features of the person to be identified prior to presenting him with the photographs. Also, it seems that the record was not signed by one of the certifying witnesses, as required by the CCP.

Following the identification, the investigator drew up a ruling to summon the applicant. On 11 and 12 July 1995 a process server visited the applicant’s home to deliver the summons but was informed by a neighbour that the applicant was absent.

On 23 August 1995 the investigator charged the applicant in absentia with aggravated robbery and ordered his detention.

On 5 September 1995 a prosecutor of the Sofia City Prosecutor’s Office confirmed the investigator’s order for the applicant’s detention.

On 22 September 1995 the applicant was listed in a police posting as a wanted criminal suspect.

On 5 October 1995 several police officers went to the home of the applicant to arrest him. They informed his parents that he was wanted. The applicant’s mother told the officers that she had spoken with the applicant the previous day and that he was in Svishtov taking his university examinations.

The next day, 6 October 1995, the applicant’s mother went to the Investigation Service and, being a practising lawyer, requested permission to represent the applicant together with another lawyer. She requested the investigator to allow her to get acquainted with the charges and informed him that the applicant would appear for questioning in a week’s time. The investigator refused to acquaint her with the charges.

The applicant refused to appear for questioning. According to him, this was due to his believing that the accusation was “false and absurd” and to his fear of being ill-treated while in custody.

On 10 October 1995 the police issued a nation‑wide search warrant for the applicant. According to the applicant, in practice no steps were undertaken in that respect and he was not hiding, but staying in hotels in Svishtov and taking his examinations.

On 17 October 1995 a prosecutor from the Sofia City Prosecution Office ordered the investigator to allow the applicant’s mother to participate in the proceedings.

On 23 October 1995 the applicant’s lawyers requested the examination of several witnesses who, it was asserted, could establish his alibi. They argued that at the time of the alleged offence the applicant had been in Novi Pazar in connection with the investigation of the robbery of the shop he was managing there. On unspecified dates later in the autumn of 1995 five witnesses testified that the applicant had been in Novi Pazar prior to and at the time of the attack on Mr E.S.A. in Sofia.

On 26 October 1995 the investigator proposed that the investigation be stayed on the ground that the applicant was missing and sent the case file to the Sofia City Prosecutor’s Office.

On 8 November 1995 a prosecutor from that office refused to stay the investigation and ordered the carrying out of further investigative steps. She found, inter alia, that the photographs pursuant to which the applicant had been identified and the report from the examination of the crime scene were missing from the case file and that Mr E.S.A. had not been properly questioned.

In the beginning of December 1995 the applicant’s lawyers requested that the order for the applicant’s detention be revoked. They relied on the fact that the identification procedure with the participation of Mr E.S.A. was flawed and on the testimony that the applicant had been in Novi Pazar at the time of Mr E.S.A.’s robbing.

The Sofia City Prosecutor’s Office rejected the request by an order of 15 December 1995, reasoning that the proceedings were at a too early stage, that the applicant was charged with a serious intentional offence and that there was no indication that he would not abscond, obstruct the investigation or commit another offence. In particular, the applicant was in hiding.

On the same date the investigator again proposed that the proceedings be stayed on the ground that neither the applicant, nor Mr E.S.A. could be located.

On 20 December 1995 the applicant’s lawyers requested, unsuccessfully, from the Sofia City Prosecutor’s Office to replace the investigator.

On 8 January 1996 the Sofia City Prosecutor’s Office stayed the proceedings because Mr E.S.A. had to be summoned from Germany, where he was living, for questioning.

On 22 January 1996 the applicant’s lawyers filed with the Chief Prosecutor’s Office a request for the revocation of the order for the applicant’s detention. The Chief Prosecutor’s Office refused. It held that there was no indication that if not in custody, the applicant would not abscond, obstruct the investigation or commit another offence. In particular, he was in hiding.

On 29 January 1996 the proceedings were resumed because Mr E.S.A. had arrived in Bulgaria and could be questioned. During questioning he stated that the person who had assaulted him with a hammer had been a man of medium height, aged between thirty and thirty‑five years, with short hair and brown eyes. In contrast to his earlier statement, he testified that the attacker had been light‑skinned.

On 30 January 1996 Mr E.S.A. was questioned again and said that during the 13 April 1995 identification he had been presented with five or six pictures, not nine as had been stated in the record.

On 28 February 1996 the applicant’s lawyers again requested from the Chief Prosecutor’s Office that the order for the applicant’s detention be revoked. They argued that the evidence thus far adduced convincingly demonstrated that the applicant was not Mr E.S.A.’s attacker. The Chief Prosecutor’s Office replied that it could not rule on the request.

A renewed request dated 4 March 1996 remained unanswered.

On 29 March 1996 the investigator proposed that the proceedings be stayed because the applicant was missing.

By an order of 8 April 1996 the Sofia City Prosecutor’s Office refused to stay the proceedings and sent the case back to the investigator, holding that the earlier instructions for additional investigative steps had not been complied with and that key pieces of evidence had not been gathered. It also noted that no effective actions had been undertaken to locate and arrest the applicant.

In the meantime, on or about 10 March 1996, an investigation relating to the robbery of Ms M.V.’s car was opened by the Sofia District Prosecutor’s Office (see above, “Second Offence”).

On 9 April 1996 the picture of the applicant appeared in the daily newspapers. When Ms M.V. saw the pictures, she went to the police and stated that it was the applicant who had robbed her car.

On 8 May 1996 the applicant, after consulting with his lawyers, turned himself in and was immediately arrested. He was then formally presented with the charges against him.

On 16 May 1996 Ms M.V. was questioned. She described the offender as a twenty‑five year old man with large mouth and big eyes.

On 17 May 1996 the applicant was charged with robbing Ms M.V.’s car.

On 11 June 1996 the investigator in the proceedings relating to Mr E.S.A.’s robbery recommended that the charges against the applicant be dropped, as it appeared that he was not the offender. By an order of 21 June 1996 the Sofia City Prosecutor’s Office refused and returned the case for further investigation.

On 18 June 1996 the Sofia City Prosecutor’s Office, which was supervising the proceedings relating to Mr E.S.A.’s robbery, took charge of the investigation relating to Ms M.V.’s robbery as well. It ordered an additional questioning of Ms M.V. with a view to establishing, inter alia, on what basis she was able to identify the applicant and whether she was categorical about that.

On 24 July 1996 the two investigations were merged.

On 19 November 1996 the investigator proposed that the applicant be committed for trial for the alleged robbery of Ms M.V.’s car but that the charges in respect of the robbery of Mr E.S.A. be dropped.

On 4 January 1997 the Sofia City Prosecutor’s Office refused to drop the charges, ordered additional investigative actions, and held that the applicant was to be indicted for both offences.

On 23 January 1997 the investigator presented the applicant with the amended charges, proposed that he be committed for trial and transmitted the case file to the Sofia City Prosecutor’s Office.

(b)  Trial

On 5 March 1997 the Sofia City Prosecutor’s Office submitted to the Sofia City Court a two‑count indictment against the applicant.

On 10 March 1997 the reporting judge set the case down for hearing on 3‑5 February 1998 and ordered that Mr E.S.A. be summoned from Germany, where he resided, by letter rogatory.

The summons was served on Mr E.S.A. not later than 28 August 1997.

The first hearing was held on 3‑5 February 1998, at which another judge was presiding. The court heard testimony from at least fourteen witnesses. A second hearing was scheduled for 30 June 1998 because Ms M.V. and two other witnesses failed to show up.

During the hearing on 30 June 1998 the Sofia City Court questioned Ms M.V. and the other witnesses. Mr E.S.A.’s testimony from the preliminary investigation was read out before the court because he was absent from the hearing.

On 1 July 1998 the Sofia City Court gave judgment, acquitting the applicant of all charges against him. However, the court did not announce the reasons for its judgment until 8 December 1998. It held that Ms M.V.’s and Mr E.S.A.’s testimony regarding the physical features of the offender was very unreliable. The court also refused to take into account the results of the photograph identification made on 13 April 1995 by Mr E.S.A., holding that it had been effected in breach of the relevant rules of evidence and was thus inadmissible. Finally, the court found it established that the applicant had an alibi in respect of both alleged offences. As regards the first alleged offence, it found that at the time of the robbery of Mr E.S.A. the applicant had been in Novi Pazar because the shop he had been managing there had been robbed several days before that. As regards the second alleged offence, the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend.

(c)  Appeal proceedings

On 13 July 1998 the Sofia City Prosecutor’s Office lodged with the Sofia Court of Appeals an appeal against the judgment, stating that the Sofia City Court had not properly established the facts. The appeal did not mention further particulars in support of this position and stated that additional arguments would be provided after the announcement of the reasons for the judgment by the Sofia City Court.

On 17 July 1998 the applicant’s lawyer requested the Sofia Court of Appeals to declare the prosecution appeal inadmissible for failure to specifically describe the non-elucidated facts.

On 29 December 1998, after having received on 8 December the reasons for the Sofia City Court’s judgment, the Sofia City Prosecutor’s Office filed an “additional submission” which contained detailed arguments in support of its earlier filing. It submitted that the Sofia City Court had erroneously assessed certain testimony and that its findings of fact did not correctly reflect the evidence presented.

On 13 January 1998 the applicant’s lawyer made an objection, arguing that the appeal should be declared inadmissible as the first filing had been defective and the “additional submission” – allegedly the valid appeal – had been lodged out of time.

The Sofia Court of Appeals accepted the appeal for consideration, briefly noting that the detailed argumentation had been filed later because of the late announcement of the reasons for the Sofia City Court’s judgment and that there was no indication that the appeal was out of time.

A hearing was held on 11 March 1999 at which oral argument was heard but no new evidence presented.

On the same date the Sofia Court of Appeals quashed the Sofia City Court’s judgment and remitted the case to the Sofia City Prosecutor’s Office on the sole ground that on 23 January 1997 the applicant had been charged in violation of the procedural requirements, his signature being missing from the minutes of the charging. Thus, it was unclear whether he had understood the nature and cause of the accusation against him. That amounted to a serious violation of the applicant’s defence rights despite the fact that his lawyers had been present at the charging.

The court’s judgment was not subject to appeal, as it did not put an end to the criminal proceedings.

(d)  Proceedings after the remittal

On 12 May 1999 the Sofia City Prosecutor’s Office returned the case to the investigator, instructing him to carry out certain investigative actions.

The applicant was charged anew on 14 July 1999. The investigator recommended his committal for trial.

On 2 November 1999 the Sofia City Prosecutor’s Office submitted to the Sofia City Court an indictment against the applicant.

On 5 November 1999 the reporting judge set the case down for hearing on 1, 2 and 5 June 2000.

The Sofia City Court held several hearings on 1, 2 and 5 June, 10 October and 2 November 2000 and 2 February and 8 March 2001.

In a judgment of 8 March 2001 the applicant was again acquitted of all charges against him. The Sofia City Court held that Mr E.S.A.’s testimony about the physical features of the offenders was controversial and unreliable. It also held that the photograph identification was inadmissible because effected in breach of the relevant rules of evidence. The court went on to hold that Ms M.V.’s testimony about the physical features of the person who had robbed her was likewise unreliable. The court further held that the applicant had an alibi for both offences. As regards the first alleged offence, from 10 till 12 April 1995 the applicant had been in Novi Pazar, because the shop he had been managing there had been robbed on 9 April 1995. He had stayed at a friend’s house and had met officers from the local police station and several other persons. He had taken a train in the evening of 12 April, at 11.55 p.m., and had arrived back in Sofia in the morning of 13 April 1995. As regards the second alleged offence, the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend.

The Sofia City Prosecutor’s Office appealed against the judgment to the Sofia Court of Appeals.

The Sofia Court of Appeals held a hearing on 5 October 2001.

In a judgment of 23 January 2002 the Sofia Court of Appeals upheld the acquittal.

No appeal was lodged against the judgment and it entered into force on 11 February 2002.

2.  The applicant’s detention

(a)  Detention pending trial

On 8 May 1996 the applicant turned himself in and was immediately arrested pursuant to the investigator’s order for his detention of 5 September 1995.

On 17 May 1996, when the applicant was also charged with the robbery of Ms M.V.’s car, his detention was confirmed by the investigator on the ground that another investigation was pending against him (Article 152 § 3 of the CCP).

On 24 June 1996 the Sofia City Prosecutor’s Office held, in response to an application for bail, that the applicant had been charged with a serious intentional offence, that there was a risk that he would flee, jeopardise the investigation, or reoffend. In particular, prior to his arrest he had been hiding. Also, another investigation was pending against him, which, according to Article 152 § 3 of the CCP, made detention mandatory. It therefore refused bail.

On 11 September 1996 the applicant again applied for bail.

On 24 September 1996 a prosecutor from the Sofia City Prosecutor’s Office granted bail but apparently his order was not found in the case file and was never put into effect.

On 26 September 1996 the deputy‑head of the Sofia City Prosecutor’s Office reversed the bail order, holding that under Article 152 § 2 of the CCP a detainee charged with a serious intentional offence could only be released if there existed serious indications that he or she would not abscond, obstruct the investigation or commit an offence. In the case at hand this prerequisite was missing. On the contrary, the available information indicated that there was a serious risk of the applicant fleeing or committing an offence, because he had been hiding for ten months prior to his arrest. Moreover, another investigation was pending against him, which excluded release on bail.

The applicant’s lawyer appealed against this order to the Chief Prosecutor’s Office. By an order of 14 October 1996 the Chief Prosecutor’s Office dismissed the appeal. It held that the applicant had been charged with two serious intentional offences and that sufficient evidence pertaining to his guilt had been collected. Furthermore, in view of the nature of the alleged offences, the applicant’s release could seriously obstruct the investigation. There was also a danger that the applicant could flee.

(b)  Detention during the trial

On 10 March 1997 the reporting judge from the Sofia City Court held of her own motion that there were no grounds for granting bail at that point and decided to continue the applicant’s detention.

On 7 May 1997 the applicant’s lawyer requested the applicant’s release. It was argued that the investigation had already been completed and there was hence no risk of the applicant jeopardising it, and that there was no indication that if released the applicant, who was a student and wished to continue his education, would commit an offence. Moreover, he had not tried to hide because he had never been properly summoned.

In a decision of 8 May 1997 made in private the reporting judge refused bail. He held that the applicant had been charged with serious intentional offences, which meant that release was only possible if the exception of Article 152 § 2 of the CCP was applicable. However, prior to his arrest the applicant had been hiding for approximately ten months, thus demonstrating his intention to jeopardise the investigation. On the other hand, another investigation was pending against him, which, under Article 152 § 3 of the CCP, excluded the possibility for release.

The applicant did not appeal against the decision to the Supreme Court of Cassation.

On an unspecified date in August or September 1997 the applicant’s lawyer again requested the applicant’s release, arguing that he had a permanent address and was enrolled in university and that his girlfriend had given birth to his baby on 9 October 1996.

The reporting judge at the Sofia City Court rejected the applicant’s request in a decision of 8 September 1997 made in private. She held, inter alia, that the applicant’s lengthy hiding had hindered the investigation and that another investigation was pending against him for a robbery allegedly committed in Novi Pazar. It appears that the judge was referring to the investigation into the robbery of the applicant’s girlfriend’s shop, in which the applicant was not the suspect, but the victim.

On 18 September 1997 the applicant’s lawyer appealed against the decision to the Supreme Court of Cassation. She lodged the appeal with the Sofia City Court, but the court rejected it as inadmissible, holding that, being his mother, the applicant’s lawyer could not also act as his defence counsel. Following this, on 22 September 1997 the applicant lodged an appeal in person. He argued that he had not been hiding: he had been taking his university examinations and staying in hotels; the authorities had never made an effective effort to find him. He further explained the misunderstanding concerning the investigation in Novi Pazar. In addition, he complained that the Sofia City Court had failed to address the question of the reliability of the evidence on which the charges had been based or to consider the factors militating against his continued detention.

On 7 October 1997 the Supreme Court of Cassation, sitting in private and in the presence of a prosecutor, dismissed the appeal. It noted that the applicant had been charged with two serious intentional offences, that he had been hiding and that there had been no change in circumstances warranting his release. Despite the applicant’s explanation concerning the misunderstanding in respect of the Novi Pazar investigation, the Supreme Court of Cassation repeated the reference to an investigation pending against him there.

On 5 February 1998, the third day of the trial, the Sofia City Court granted bail, setting the amount at five million Bulgarian levs. The court held that prior to the arrest the applicant had been in Svishtov taking his university examinations, that there was no indication that he would abscond, that his clean criminal record suggested that there was little danger of him committing an offence, and that there was no risk that he would obstruct the investigation. The applicant posted bail the same day and was released on 6 February 1998.

B.  Relevant domestic law and practice

1.  The offences with which the applicant was charged

Article 199 § 1 (1) of the Criminal Code (“CC”), read in conjunction with Article 198 § 1 thereof, provides that robbery of chattels in large amounts is punishable by five to fifteen years’ imprisonment.

2.  Detention pending trial and during the trial

(a)  Officer ordering arrest and detention

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 he or she 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).

(b)  Grounds for detention

Article 152 §§ 1 and 2 of the CCP, as in force at the relevant time, provided as follows:

“1.  Pre‑trial detention shall be ordered [in cases where the charges concern] a serious intentional offence.

2.  In the cases falling under paragraph 1 [pre‑trial detention] may be dispensed with if there is no risk of the accused obstructing the course of justice, absconding or committing further offences.”

Paragraph 3 of Article 152, as in force until 11 August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused, or where he or she was a repeat offender.

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 court considered that Article 152 § 3 of the CCP 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.

By Article 93 § 7 of the CC, a “serious” offence is one punishable by more than five years’ imprisonment.

The Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments to the CCP in force since 1 January 2000) was that Article 152 § 1 required that a person charged with a serious intentional offence 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 (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 detention before the trial

Article 152 § 5 of the CCP, as in force until August 1997, provided as follows:

“The detained person 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, in deciding on appeals against pre‑trial detention, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order (опред. № 24 от 23 май 1995 г. по н.д. 268/1995 г. на ВС I н.о.).

In a decision of 17 September 1992 the Supreme Court found that the imposition of pre‑trial detention could be contested before a court only once (опред. № 94 по н.ч.х.д. 754/1992 г. на ВС I н.о.). Thus, until the amendment of the CCP in August 1997, periodic judicial review of the lawfulness of detention was only possible at the trial stage, when the criminal case was pending before a court.

(d)  Judicial review of detention during the trial

By Article 304 § 1 of the CCP, the detainee’s requests for release at the trial stage of the criminal proceedings are examined by the trial court. The Code does not provide for any limitation on the number or frequency of the requests for release. It follows from Article 304 §§ 1 and 2 of the CCP that such requests may be examined in private or at a public hearing.

The trial court’s decision on a request for release is subject to appeal to a higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 317 § 2 until February 1998 and Article 318 § 2 after that). Article 348 provides that the appellate court may examine the appeal in private or, if it considers it necessary, at a public hearing.

COMPLAINTS

1.  The applicant complained under Article 5 § 1 (c) of the Convention that his arrest had been unlawful and that the order for his detention was not based on a reasonable suspicion of him having committed an offence.

2.  The applicant complained under Article 5 § 3 of the Convention that after his arrest he was not brought before a judge or a judicial officer. The applicant considered that neither the investigator who ordered his detention, nor the prosecutor who later confirmed it could be regarded as officers exercising judicial power within the meaning of that Article.

3.  The applicant complained under Article 5 § 3 of the Convention about the length of his detention. Firstly, he submitted that as the investigation progressed, he seamed increasingly innocent and there was therefore no persistent reasonable suspicion against him. Secondly, he asserted that there were no other relevant and sufficient grounds justifying his remaining in custody. Lastly, he argued that even if it could be considered that his detention was otherwise warranted, it was in breach of the Convention by reason of its excessive length.

4.  The applicant complained that his requests for release were examined by the Sofia City Court in private and by the Supreme Court of Cassation in private and in the presence of a prosecutor, in breach of the principle of equality of arms enshrined by Article 5 § 4 of the Convention, and that he was not allowed a continuing review of his detention at reasonable intervals. He also submitted that the proceedings in which he sought to challenge his detention were inadequate in other respects as well.

5.  The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings against him.

6.  The applicant raised two further complaints under Article 6 § 1 of the Convention in respect of the fairness of the first proceedings in the Sofia Court of Appeals. First, he submitted that the quashing of the judgment of acquittal on the sole ground that the applicant’s defence rights had been infringed by the prosecution authorities ran counter to the basic concept of fair trial. He claimed that this was a device employed by the Sofia Court of Appeals to give the prosecution a second chance to put him on trial under the false pretence of concern for his rights. Second, he complained that the court considered the prosecution appeal on the merits despite the procedural violations in its filing.

THE LAW

A.  Complaint under Article 5 § 1 (c) of the Convention

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’s arrest had been effected in compliance with the requirements of Article 5 § 1 (c) of the Convention. At time of the ordering of the arrest the applicant had been charged with armed robbery, which was a “serious offence” within the meaning of the CC. Article 152 of the CCP made detention mandatory in such circumstances. The purpose of the order for the applicant’s arrest had been to prevent him from fleeing, reoffending, or jeopardising the investigation. For more than ten months the applicant had been hiding, and for this reason he had been arrested only on 8 May 1996.

The applicant submitted that his arrest had not been lawful because no effective efforts had been made prior to that for his summoning to appear for questioning. Also, although the arrest had complied with the requirements of Article 152 § 1 of the CCP, it had been effected in breach of paragraph 2 of the same Article. In particular, there were no indications that the applicant would flee, because he was taking his university examinations, had a permanent address and had voluntarily turned himself in; that he would commit an offence, because he had a clean criminal record; and that he would obstruct the investigation, because all witnesses had been questioned and all other pieces of evidence had been gathered.

The applicant further argued that at the time of his arrest there had existed no reasonable suspicion that he had committed an offence. The only pieces of information on which the authorities had relied to ground the suspicion against him had been the photograph identification and the description given by Mr E.S.A. The identification, however, had been made in breach of the relevant rules of the CCP for the gathering of such evidence, and had later been considered as inadmissible by the trial court. Also, the applicant’s identification as the person who had robbed Ms M.V.’s car was based solely on the victim’s inconsistent description of the offender, which was later given no credit by the trial court.

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 of the Convention. 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. The applicant’s arguments pertaining to the existence or lack of other relevant and sufficient reasons for his remaining in custody fall to be examined not in relation with his complaint under Article 5 § 1 (c), but rather in relation with his complaint under Article 5 § 3 of the Convention.

As regards the lack or existence of a “reasonable suspicion” against the applicant at the time of his arrest, the Court emphasises that the reasonable suspicion test under Article 5 § 1 (c) of the Convention requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed an offence, though what may be regarded as reasonable will depend on all the circumstances of the case. Facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge (see O’Hara v. the United Kingdom, no. 37555/97, §§ 34 and 36, ECHR 2001‑X).

The Court notes that the Sofia City Court excluded the applicant’s photograph identification by Mr E.S.A. from the evidence because it found that it had been made in breach of the relevant rules of evidence. However, it does not consider that this is decisive of the question whether there was a reasonable suspicion against the applicant. In this connection, the Court reiterates that the standard imposed by Article 5 § 1 (c) of the Convention does not presuppose that the facts which raise a suspicion should be of the same level as those necessary to justify a conviction. In the case at hand the authorities had a description of the offender given by the victim, Mr E.S.A., and a photograph identification, which were sufficient to raise at least a reasonable suspicion against the applicant at the time of his arrest.

The Court further notes that after 17 May 1996 the applicant’s detention was also based on the suspicion that he had robbed Ms M.V.’s car. This suspicion was grounded on Ms M.V.’s averment that she had identified the applicant as the robber. The fact that Ms M.V.’s testimony was later considered as unreliable by the Sofia City Court does not automatically mean that it was not enough to raise a reasonable suspicion against the applicant at the time of his arrest.

Finally, the Court recalls that the purpose of questioning and the other investigative actions performed during detention under Article 5 § 1 (c) of the Convention was to further the criminal investigation by way of confirming or dispelling the suspicion grounding the applicant’s arrest.

In sum, the Court finds that the applicant’s initial arrest was based on a “reasonable suspicion”, within the meaning of Article 5 § 1 (c) of the Convention, of him 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.

B.  Complaint under Article 5 § 3 of the Convention that after his arrest the applicant was not brought before a judge or a judicial officer

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 submitted that the applicant had had the possibility to appeal against his detention, which he had used. He had, personally or through his lawyers, filed appeals with the prosecution authorities during the pre-trial phase of the proceedings and with the courts during the trial phase of the proceedings.

The applicant replied that the right guaranteed by Article 5 § 3 of the Convention was for the detainee to be brought before a judge or other judicial officer automatically, on the motion of the authorities, without filing an appeal against detention. However, the applicant had not been so brought, and had only had the possibility to request release from the prosecution authorities. The prosecutors deciding on his detention had not been independent and impartial, because they could act as parties in the criminal proceedings against him. Moreover, they had not seen the applicant in person.

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.  Complaint under Article 5 § 3 of the Convention that the applicant’s detention was unjustified and unreasonably lengthy

In respect of his complaint that his detention was unjustified and unreasonably lengthy the applicant relied on Article 5 § 3 of the Convention, which reads, insofar 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 Government maintained that the length of the applicant’s detention was due to his complicated criminal activities, the joinder of several investigations against him and the need to send letters rogatory to Germany. In their view, the fact that the court, which had twice rejected the applicant’s requests for release, did eventually grant bail in view of the diminished risk of the applicant jeopardising the investigation showed that it had assessed the need for detention with objectivity.

The applicant replied that he had not been engaged in any criminal activities with other persons. Moreover, the letter rogatory to Germany had been executed for not more than four months. The applicant also submitted that he had been released because the judge in his trial had been replaced, and the new judge had based his decision on an analysis of the truly relevant facts for or against the applicant’s detention.

The applicant argued that his detention had not been based on relevant and sufficient reasons. He had no reason to abscond, as he had a young child. There was also no indication that he would commit an offence or tamper with evidence or try to suborn witnesses.

The applicant further argued that during his detention the authorities had not conducted the proceedings with the requisite diligence. The preliminary investigation had not proceeded at a good pace. There had also been a lengthy interval between the submission of the indictment to the Sofia City Court and the first hearing.

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.

D.  Complaints under Article 5 § 4

The applicant complained that his requests for release were examined by the Sofia City Court in private and by the Supreme Court of Cassation in private and in the presence of a prosecutor, in breach of the principle of equality of arms enshrined by Article 5 § 4 of the Convention, and that he was not allowed a continuing review of his detention at reasonable intervals. He also submitted that the proceedings in which he sought to challenge his detention were inadequate in other respects as well.

Article 5 § 4 of the Convention 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.”

The Government submitted that the applicant’s detention was thrice reviewed by the Sofia City Court. On each occasion the applicant had the possibility to appeal to the Supreme Court of Cassation. However, he had used this opportunity only the third time. Then his appeal was reviewed by the Supreme Court of Cassation, which had, however, not dealt with the sufficiency of the evidence against the applicant, because this was an issue going to the merits of the criminal case against him.

The applicant submitted that the reporting judge at the Sofia City Court had examined his requests for release in private, without hearing him in person. Likewise, the Supreme Court of Cassation had examined the applicant’s appeal of 22 September 1997 in private and in the presence of a prosecutor, to whose submissions the applicant had not had the opportunity to reply. It was not until the hearing on 5 February 1998 that the applicant’s request for release had been examined in his presence.

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.

E.  Complaint under Article 6 § 1 of the Convention about the length of the proceedings

In respect of his complaint about the length of the proceedings against him the applicant relied on Article 6 § 1 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...”

The Government submitted that although at first sight the overall length of the proceedings appeared excessive, the delay was not entirely without justification. In particular, this time included a period of ten months during which the applicant had been hiding and thus hindering the investigation. Later the case had moved through several levels of court and letters rogatory had to be sent to Germany.

The applicant submitted that the authorities had been responsible for most of the delays. In particular, there had been a long period of inactivity between the submitting of the indictment to the Sofia City Court in March 1997 and the first hearing on 3‑5 February 1998. Also, and more importantly, the applicant’s acquittal by the Sofia City Court had been quashed by the Sofia Court of Appeals in March 1999 on the sole ground that the applicant’s defence rights had been breached during the preliminary investigation. In the applicant’s view, this had been arbitrary and the proceedings after that quashing had been completely unnecessary and merely adding a further three years to the overall length of the criminal case.

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.

F.  Complaints under Article 6 § 1 of the Convention about the fairness of the first proceedings before the Sofia Court of Appeals

In respect of his complaints about the fairness of the first proceedings before the Sofia Court of Appeals the applicant relied on Article 6 § 1 of the Convention , which provides, as relevant:

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

The Government submitted that the Sofia Court of Appeals had remitted the case to the prosecution authorities because it had found that there had been a serious breach of the rules of procedure leading to the infringement of the applicant’s defence rights. Thus, the purpose of the court’s judgment was to protect the applicant’s fair trial rights, not to breach them.

The applicant maintained that the quashing of his acquittal on the sole ground that his defence rights had been breached amounted per se to a violation of his right to a fair trial.

The Court considers that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted (see X v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223 and Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998, unreported). The Court notes that the applicant was eventually acquitted by a judgment of 8 March 2001 of the Sofia City Court, which entered into force on 11 February 2002. In these circumstances, he can no longer claim to be a victim of a violation of his right to a fair trial.

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

For these reasons, the Court

Unanimously declares admissible, without prejudging the merits, the applicant’s complaints concerning the fact that after his arrest he was not brought before a judge or a judicial officer, concerning the justification for and the length of his detention, concerning the judicial review of his detention, and concerning the length of the criminal proceedings against him;

By a majority declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
              Deputy RegistrarPresident

Full & Egal Universal Law Academy