FIFTH SECTION
DECISION
Application no. 30506/04
by Encho Eftimov PETKOV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 2 November 2010 as a Committee composed of:
Rait Maruste, President,
Mark Villiger,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 14 August 2004,
Having regard to the declaration submitted by the respondent Government and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
The application was lodged by Mr Encho Eftimov Petkov, a Bulgarian national who was born in 1975 and lives in Burgas. The applicant was not legally represented. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 September 1996 the applicant, who was suspected of having committed a murder, was arrested and placed in pre‑trial detention.
On 16 November 1998 he and two others were put on trial for aggravated murder. On 9 February 2001 the Vratsa Regional Court convicted all three of them of aggravated murder. It sentenced the applicant to fifteen years’ imprisonment.
The applicant appealed, and on 21 February 2002 the Sofia Court of Appeal found him not guilty, and on 25 February 2002 decided to release him on bail.
On unspecified dates the prosecution and the civil parties appealed on points of law. On an unspecified date the Supreme Court of Cassation quashed the Sofia Court of Appeal’s judgment and remitted the case to that court.
On 7 May 2003 the Sofia Court of Appeal quashed the Vratsa Regional Court’s judgment and referred the case back to the preliminary investigation stage.
On 3 September 2004 the prosecuting authorities informed the applicant that they could not provide him with copies of the documents in the file because the case had been sent for additional investigation and the file was at the National Investigation Service.
On the date of the latest information from the applicant (12 March 2009) he had still not been informed of the results of that additional investigation.
B. Relevant domestic law
An amendment to the 1974 Code of Criminal Procedure that entered into force on 2 June 2003 introduced the possibility for accused persons to request that their case be brought for trial if the investigation had not been completed within two years in cases concerning serious offences and one year in all other cases (new Article 239a). Paragraph 140 of the amendment’s transitional provisions provided that that possibility applied with immediate effect in respect of investigations opened before 1 June 2003.
The procedure under that provision was as follows. The accused person had to submit a request to the relevant court, which then had seven days to examine the file. It could refer the case back to the prosecuting authorities or terminate the criminal proceedings. If the case was referred to the prosecuting authorities, they had two months to file an indictment or to terminate the proceedings, failing which the court was bound to terminate the proceedings against the person who had made the request.
The 2005 Code of Criminal Procedure, which came into force on 29 April 2006 and replaced and repealed the 1974 Code, envisages a similar procedure, in Articles 368 and 369.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention about the conditions in which he had been kept while in detention, and alleged that he had been ill‑treated by the custodial staff.
2. Relying on Article 4 § 1 of the Convention, he complained that between 2 September 1996 and 25 February 2002 he had never been formally placed in pre‑trial detention.
3. Relying on Article 4 § 2 and Article 5 § 1 of the Convention, he complained that during his detention he had been forced to work without pay.
4. Relying on Article 5 § 2 of the Convention, he complained that he had not been informed of the reasons for his arrest.
5. Relying on Article 5 §§ 3 and 4 of the Convention, he complained that he had not been brought before a judge except within the framework of the criminal proceedings, and that his detention had been unlawful.
6. Relying on Article 6 § 1 of the Convention, he complained that he had been brought before a court two and a half years after his arrest.
7. Relying on Article 6 § 2 of the Convention, he alleged that his pre‑trial detention had been in breach of the presumption of innocence.
8. Referring to the facts relating to his other complaints, the applicant alleged that his rights under Article 6 § 3 and Article 8 of the Convention had been breached.
9. Lastly, the applicant complained about the length of the criminal proceedings against him.
THE LAW
1. The Court considers that the complaint concerning the length of the criminal proceedings against the applicant (no. 9) falls to be examined under Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
On 5 November 2009 the Court decided to give the Government notice of that complaint. On 18 June 2010 it received from the Government a declaration whose text, in so far as relevant, reads:
“... The Government hereby wish to express ... [their] acknowledgment of the violation of some of the guarantees of Article 6 § 1 of the Convention in the domestic proceedings ... in which the applicant was involved. ... [T]he Government acknowledg[e] ... a violation of the “reasonable time” requirement.
Consequently, the Government are prepared to pay to [the applicant] the amount of 2,600 [euros,] which they consider reasonable in the light of the Court’s case-law. [That sum], which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses[,] will be converted into Bulgarian [levs] at the exchange rate applicable at the time of payment, and will be free of any taxes that may be chargeable to the applicant. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the [Convention]. In the event of failure to pay this sum within the said three‑month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government, therefore, request that this application be struck out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention. ...”
On 13 September 2010 the applicant, who had been invited to comment on the declaration, asked the Court to continue examining the case. He considered that the amount offered by the Government was insultingly low.
Article 37 § 1 (c) of the Convention allows the Court to strike an application out of its list where:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
In certain circumstances the Court may strike out an application under those provisions on the basis of a unilateral declaration by the respondent government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI). In the present case, having regard to the Government’s admission in relation to the complaint of which they were given notice, and to the amount of compensation that they propose – which is comparable to the sums awarded in similar cases –, the Court considers that it is no longer justified to continue the examination of the application. In view of its extensive case‑law concerning the length of criminal proceedings, including in cases against Bulgaria (see, among many others, Ilijkov v. Bulgaria, no. 33977/96, §§ 111‑18, 26 July 2001; Kitov v. Bulgaria, no. 37104/97, §§ 66‑75 and 78‑85, 3 April 2003; Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, §§ 23‑30, 23 September 2004; Vasilev v. Bulgaria, no. 59913/00, §§ 89‑96, 2 February 2006; and Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §§ 17‑26, 22 October 2009), the Court is further satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application. Accordingly, it should be struck out of the list.
2. As regards the remaining complaints raised by the applicant (nos. 1‑8), in the light of all the material in its possession, and in so far as the matters complained of are 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 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
Takes note of the terms of the respondent Government’s declaration;
Decides to strike the application out of its list of cases in so far as it relates to the complaint, examined under Article 6 § 1 of the Convention, about the length of the criminal proceedings against the applicant;
Declares the remainder of the application inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
Full & Egal Universal Law Academy