ILIJKOV v. BULGARIA

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 33977/96

Petar ILIJKOV

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 29 October 1998)

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-17)1

A.The application

(paras. 2-4)1

B.The proceedings

(paras. 5-11)1

C.The present Report

(paras. 12-17)              2

II.ESTABLISHMENT OF THE FACTS

(paras. 18-75)              4

A.The particular circumstances of the case

(paras. 18-63)              4

B.Relevant domestic law

(paras. 64-76)              9

III.OPINION OF THE COMMISSION

(paras. 77-150)12

A.Complaints declared admissible

(para. 77)12

B.Points at issue

(para. 78)12

C.As regards Article 5 para. 3 of the Convention

(paras. 79-104)12

CONCLUSION

(para. 105)16

D.As regards Article 5 para. 4 of the Convention

(paras. 106-131)16

CONCLUSION

(para. 132)20

E.As regards Article 6 para. 1 of the Convention

(paras. 133-136)20

CONCLUSION

(para. 137)20

F.Recapitulation

(paras. 138-140)20

APPENDIX:DECISION OF THE COMMISSION

AS TO THE  ADMISSIBILITY OF THE APPLICATION21

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicant is a Bulgarian citizen, born in 1955 and resident in Plovdiv.  He is currently in prison.  He was represented before the Commission by Mr Mihail Ekimdjiev, a lawyer practising in Plovdiv.

3.The application is directed against Bulgaria.  The respondent Government were represented by Ms Ilina Taneva of the Ministry of Foreign Affairs and by Ms Violina Djidjeva, co-Agent at the Ministry of Justice.

4.The case concerns the applicant's complaints concerning the length of his detention on remand, the examination of his appeals against detention which ended with the Supreme Court's decisions of 28 May and 4 December 1996 and the length of the criminal proceedings against him.  The applicant invokes Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention.

B.The proceedings

5.The application was introduced on 25 October 1996 and registered on 26 November 1996.

6. On 26 November 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.  The Commission also decided, pursuant to Rule 36 of its Rules of Procedure, to indicate to the Government of Bulgaria that it was desirable in the interests of the Parties and the proper conduct of the proceedings before the Commission that all necessary steps be taken by the Government to preserve the applicant's health.  The Commission also decided, pursuant to Rule 36 of its Rules of Procedure, to invite the applicant to stop his hunger strike.

7.On 29 November 1996 the applicant informed the Commission that he had decided to terminate his hunger strike.  On 19 December 1996, in response to the Commission's request of 6 December 1996, the Government submitted information about the measures undertaken to preserve the applicant's health.  On 24 January 1997, noting that the imminent danger for the applicant's health did not exist any longer, the Commission decided not to maintain the interim measures under Rule 36 of its Rules of Procedure.

8.The applicant elaborated his complaints in the application form which was submitted on 11 December 1996 and transmitted to the Government on 13 December 1996.

9.The Government's written observations were submitted on 14 February 1997.  The applicant replied on 8 May 1997, after an extension of the time-limit fixed for that purpose.  

10.On 20 October 1997 the Commission declared admissible the applicant's complaints that there has been a violation of his right to a trial within a reasonable time or to release pending trial under Article 5 para. 3 of the Convention; that the proceedings concerning the appeals against his detention on remand before the Regional Court and the Supreme Court which ended with decisions of 28 May and 4 December 1996 were not in conformity with the requirements of Article 5 para. 4 of the Convention; and that the criminal proceedings against the applicant were unreasonably lengthy in violation of Article 6 para. 1 of the Convention. The Commission declared inadmissible the remainder of the application.

11.The text of the Commission's decision on admissibility was sent to the parties on 30 October 1997 and they were invited to submit further observations on the merits of the complaint under Article 5 para. 4 of the Convention.  The Government submitted observations on 25 May 1998, to which the applicant replied on 22 June 1998.

12.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

13.The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MML. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÎRSAN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

14.The text of this Report was adopted on 29 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

15.The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

16.The Commission's decision on the admissibility of the application is annexed hereto.

17.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

The criminal proceedings

18.On 4 October 1993 the applicant was arrested on charges of forgery of documents and fraud.  The applicant, with the assistance of a customs officer and two other accomplices, had made false customs declarations certifying fictitious exports of loads of cigarettes, which in reality had been sold in the country.  On the basis of the false declarations the applicant had obtained the reimbursement of 7,811,400 leva in excise tax and had attempted to obtain the reimbursement of another 7,419,000 leva, the total amount at stake having been 15,230,400 leva (about 3,000,000 FF at the time).

19.The charges preferred against the applicant were based on Section 212 para. 4 of the Penal Code (Наказателен кодекс) which provided for a punishment of ten to twenty years' imprisonment.

20.The preliminary investigation was concluded on 1 April 1994 when the indictment drawn up by the prosecutor was submitted to the Plovdiv Regional Court (Окръжен съд).

21.The Plovdiv Regional Court held several hearings. 

22.On several occasions the Regional Court adjourned the hearings as the case-file was in Sofia, at the Supreme Court (Βърховен съд), for the examination of the appeals submitted by the applicant and by the co-accused persons against the Regional Court's refusals to release them on bail.  In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the file of the criminal case together with the appeal to the Supreme Court.  As a result it was impossible for the Plovdiv Regional Court to deal with the case until the return of the file from Sofia.

23.This was the reason for the adjournment of a hearing scheduled for May or June 1994.  As the Regional Court was on vacation during the summer, the new date for the hearing was in October 1994.

24.The Regional Court held a hearing on 30 November 1994 and decided that a further hearing was necessary.

25.It was not possible to schedule a hearing until the end of February 1995 as the case-file was at the Supreme Court for the examination of the applicant's appeal against the decision of 30 November 1994 refusing the applicant's request for release (see para. 43 below).  According to the Government the Supreme Court delayed the examination of the applicant's appeal by at least one month as the applicant had appointed new lawyers.

26.The parties have not stated whether a hearing was held in 1995.

27.As from 19 February 1996 the Plovdiv Regional Court had to recommence the examination of the case because one lay judge (съдебeн заседател) had fallen ill and had to be replaced.  The new chamber of the court held a hearing on 26 and 27 March 1996 and decided to hold another hearing on 7 and 8 May 1996.

28.On 7 May 1996 the hearing was adjourned to 16 and 17 September 1996 as the case-file was at the Supreme Court for the examination of the applicant's appeal against the Regional Court's decision of 27 March 1996 refusing his application for bail.

29.The hearing scheduled for 16 and 17 September 1996 was adjourned  to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend. 

30.On 29 October 1996 the parties to the criminal case, including the applicant who at that time was on a hunger strike, appeared before the Plovdiv Regional Court.  The Court heard the medical experts who had been appointed on the previous day and had examined the applicant briefly.  The experts stated that the applicant needed to undergo a full examination in a hospital.  On 30 October 1996 the Court ordered the applicant's temporary placement in a hospital and adjourned the hearing, the reasons therefor being disputed between the parties.  The applicant submits that the reason for the adjournment was the absence of several witnesses and the Court's order for medical checks in a hospital, whereas the Government maintain that the only reason was the applicant's state of health, the medical experts having considered that he was not in a condition to participate in the hearing.

31.The hearing ultimately took place on 29, 30 and 31 January 1997.  The Plovdiv Regional Court heard witnesses and the submissions of the parties to the criminal case and examined other evidence.  The Court could not hear four of the witnesses as they did not appear.  The applicant apparently unsuccessfully requested the adjournment of the hearing in order to question these witnesses, whose attendance had previously been requested by both parties.

32.On 31 January 1997 the Court convicted the applicant and sentenced him to thirteen years' imprisonment.  His accomplices were also convicted and sentenced to terms of imprisonment between eleven and twelve years.  The Court reserved the reasoning of its judgment.  The reasoning was prepared on an unspecified date not earlier than three months following the delivery of the judgment.

33.On an unspecified date in 1997 the applicant appealed to the Supreme Court of Cassation (Βърховен касационен съд) against his conviction and sentence.

34.   The Supreme Court of Cassation listed the case for a hearing on 26 September 1997.  On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he had known one of the convicted persons and that he wished to withdraw.  The Court adjourned the hearing to 23 January 1998. 

35.By judgment of 18 March 1998 the Supreme Court of Cassation confirmed the applicant's conviction and sentence.

36.Throughout the proceedings the applicant was represented by a lawyer and, at some stages, by two or three lawyers simultaneously.

37.The parties have not indicated whether the applicant has instituted review (cassation) proceedings and, accordingly, whether the criminal proceedings are still pending.

The applicant's detention on remand

38.On 4 October 1993, the day of his arrest, the applicant was brought before an investigator who decided to detain him on remand.  This decision was approved by a prosecutor on an unspecified date.

39.On 14 October 1993, when the case was at the preliminary investigation stage, the applicant appealed to the Plovdiv Regional Court against his detention on remand.  The Court examined the case in camera, on the basis of the investigator's file and the applicant's petition.  By a decision of 3 December 1993 the Court dismissed the applicant's appeal. 

40.One of the applicant's accomplices, a Mr H., was released on bail on 6 November 1993, but was again arrested on 15 February 1994.  When at large Mr H. attempted to induce Mr. G., a witness, to give false evidence, a crime of which Mr H. was later convicted.  

41.Following the conclusion of the preliminary investigation in the applicant's case, and after its submission on 1 April 1994 to the Plovdiv Regional Court for trial, the applicant lodged seven requests for release on bail.  All requests were submitted to, and examined by, the Plovdiv Regional Court before which the case was pending.  Some of the decisions of the Regional Court were appealed against to the Supreme Court.

42.The first of those seven requests for release on bail was submitted on 3 October 1994 and was dismissed by the Regional Court on 6 October 1994.

43.  Another request, submitted on an unspecified date, was dismissed by the Regional Court on 30 November 1994.  The Regional Court's refusal to release the applicant was confirmed by the Supreme Court on 21 February 1995.

44.In its decision of 21 February 1995 the Supreme Court stated that under Section 152 paras. 1 and 2 of the Code of Criminal Procedure detention on remand was mandatory for every person accused of a crime punishable by ten or more years imprisonment, the only exception being a case where it is clear, beyond doubt, that there is no danger of absconding or re-offending.  In the Supreme Court's view such would only be the case where, for example, the accused person is seriously ill, or of an old age or in any other condition which excludes the danger of absconding or re-offending.  Since the applicant was charged with a crime punishable by more than ten years imprisonment, and as no special circumstances excluding the danger of absconding or repetition had been established, there existed no grounds to order the applicant's release on bail.  The Supreme Court referred to its practice on the matter.

45.The Supreme Court further refused to deal with the applicant's contention that the evidence against him was weak.  The Court found that it was not competent to do so in the framework of proceedings concerning detention on remand.  Its only task was to examine whether the conditions for detention on remand under Section 152 of the Code of Criminal Procedure had been met.

46.The applicant again requested his release on bail on 11 July 1995.  This application was dismissed by the Regional Court on 21 September 1995.  On appeal the Regional Court's refusal to release the applicant was confirmed by the Supreme Court on 6 November 1995.  The Supreme Court stated that the applicant could be released only if there existed unequivocal evidence which established beyond any doubt that there was no danger of absconding, re-offending or obstructing justice.  However, no such evidence was available in the particular case.

47.By decision of 4 December 1995 the Regional Court refused the applicant's request, submitted on an unspecified date, to annul or alter its previous decision concerning his detention on remand.  Addressing the applicant's argument that the material in the case indicated that he had not committed a crime, the Court stated that it was not open to it to analyze the evidence in the criminal case.  The lawfulness of the detention was to be gauged on the basis of the accusation preferred against the applicant.  The only other element to be examined was whether or not there existed  exceptional circumstances demonstrating beyond any doubt that there was not even a hypothetical danger of absconding, re-offending or obstructing justice.  However the Court had already found that no such circumstances existed.

48.A further request for release on bail, submitted on 15 January 1996, was refused by the Regional Court on 20 February 1996.

49.At the hearing on 27 March 1996 before the Regional Court the applicant made an oral request to be released.  This was refused on the same day.  The Court stated that there had been no change of circumstances and that the law did not provide for a time-limit for detention on remand.

50.On 1 April 1996 the applicant's lawyer lodged an appeal to the Supreme Court against the decision of 27 March 1996.  The appeal was submitted through the Regional Court, according to the established practice.  The lawyer stated inter alia that all evidence in the criminal case had already been examined and that therefore there was no danger of obstructing justice.  Furthermore, there was no danger of absconding.  The applicant had been abroad at the time when the investigation had commenced and had voluntarily returned.  He had never been convicted of a criminal offence, had a family and a permanent residence.  The applicant also stated that the length of his detention violated the Convention.

51.   On 4 April 1996 the applicant submitted a handwritten appeal to the Supreme Court against the Regional Court's decision of 27 March 1996.  The appeal was lodged at the Regional Court, according to the established practice.

52.By decision of 9 April 1996 delivered in camera the Regional Court, before transmitting the appeals to the Supreme Court, confirmed its refusal of 27 March 1996 to release the applicant.  The Court stated inter alia that the applicant's arguments could not, under the constant practice of the Supreme Court, serve as a basis for a decision to release him.

53.The applicant's appeal of 1 April 1996 was transmitted to the Supreme Court on 1 May 1996.  On 10 May 1996 the applicant submitted another appeal against the Regional Court's refusal to release him.  This appeal was joined to the previous appeals. 

54.On 22 May 1996 a prosecutor of the Chief Public Prosecutor's Office submitted to the Supreme Court written comments on the appeals, inviting the Court to dismiss them.  These comments were not communicated to the applicant.

55.On 28 May 1996 the Supreme Court dismissed the appeals.  The Court found that Section 152 para. 1 of the Code of Criminal Procedure required the applicant's detention on remand and that the case before it did not fall under the exception to this rule, as provided for under Section 152 para. 2 of the Code.

56.The Court also stated that the length of the proceedings and the questions whether the accusations were well-founded were irrelevant.

57.On 15 October 1996 the applicant submitted another request for release on bail.  At that time he was on a hunger strike which he had commenced on 23 September 1996 in protest to his continuing detention on remand.  The request was reiterated during the hearing of 29 and 30 October 1996.

58.At the oral hearing on 30 October 1996 the Regional Court refused the request.  The Court stated inter alia that there had been no change of circumstances, the applicant's worsening health not being conclusive of a need to release him.

59.On 6 November 1996 the applicant's lawyers lodged an appeal against the decision of 30 October 1996.

60.On 11 November 1996, before transmitting the appeal to the Supreme Court, the Regional Court sitting in camera confirmed its decision of 30 October 1996. 

61.On 19 November 1996 the appeal was transmitted to the Supreme Court.

62.On 25 November 1996 a prosecutor of the Chief Public Prosecutor's Office submitted to the Supreme Court written comments on the appeal, inviting the Court to dismiss it.  These comments were not communicated to the applicant.

63.On 4 December 1996 the Supreme Court dismissed the appeal.  The Court stated inter alia that the danger of absconding, of re-offending and of obstructing the proceedings was presumed on the basis of the gravity of the crime with which the applicant had been charged.  This  was not affected in any way by the applicant's health problems, which could be dealt with at the place of detention, or by the fact that the detention was lengthy, despite its inevitable negative consequences.  The Court further found that the complaints of the applicant under the Convention were unfounded.  In particular, the applicant wrongly considered that certain provisions of the Code of Criminal Procedure were contrary to the Convention.

B.Relevant domestic law and practice

Provisions of the Code of Criminal Procedure and practice as regards the legal requirements and justification for detention on remand

64.Paragraphs 1 and 2 of Section 152, as in force at the relevant time and until 4 June 1995, provided as follows:

"(1)Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years' imprisonment or capital punishment.

(2)In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or committing another crime."

"(1)  Мярка за неотклонение задържане под стража се взема за престъпление, за което е предвидено наказание лишаване от свобода десет или повече години или смърт.

(2) Β случаите по предходната алинея мярката за неотклонение не се взема, ако няма опасност обвиняемият да се укрие или да извърши друго престъпление."

65.These provisions, as in force after 4 June 1995 and until August 1997, provided as follows:

"(1)Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.

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

"(1) Мярка за неотклонение "задържане под стража" се взема за тежко умишлено престъпление.

(2)  Β случаите по ал. 1 мярката за неотклонение може да не се вземе, ако няма опасност обвиняемият да се укрие, да осуети разкриването на обективната истина или да извърши друго престъпление."

66.According to Section 93 para. 7 of the Penal Code "serious" is a crime punishable by more than five years' imprisonment.

67.The Supreme Court has stated that it is not open to the courts, when examining an appeal against detention on remand, to inquire whether there exists sufficient evidence supporting the charges against the detainee.  The courts have to examine only the lawfulness of the detention order (Decision of 23 May 1995) (опред. No.24 по н.д. 268/95, I н.о., Сб.1995, стр.149).

68.According to the Supreme Court's practice Section 152 para. 1  requires that a person charged with a serious wilful crime (or with a crime punishable by ten or more years' imprisonment, according to this provision as in force before June 1995) shall be detained on remand.  The only exception is provided for under Section 152 para. 2, which entitles the authorities not to detain an accused in case it is clear, beyond doubt, that there may be no danger of absconding or re-offending.  Such danger must be objectively excluded as, for example, in the case of an accused who is seriously ill, or of an old age, or who is detained on other grounds, such as serving a sentence (опред. No. 1 от 4.5.1992г. по н.д. 1/92г. на ΒС II н.о.,  Сб. 1992/93, стр. 172;  опред. No. 4 от 21.2.1995 по н.д. 76/95г. на ΒС II н.о.; опред. No. 78 от 6.11.1995 по н.д. 768/95г. на ΒС II н.о.; опред. No. 24 по н.д. 268/95г. на ΒС, I н.о., Сб.1995, стр. 149).

Provisions of the Code of Criminal Procedure as regards the examination of appeals against detention on remand at the trial stage of the criminal proceedings

69.According to Section 304 para. 1 at the trial stage of the criminal proceedings the detainee's requests for release are examined by the trial court.  The law does not provide for any limitation on the number or frequency of the requests for release.

70.   It follows from Section 304 paras. 1 and 2 that these requests may be examined in camera or at an oral hearing.  The law does not require the trial court to decide within a particular time-limit.    

71.The trial court's decision as regards a request for release is subject to appeal to the higher court (Section 344 para. 3).  The appeal must be lodged in a seven days' time-limit (Section 345) with the trial court (Section 348 para. 4 in conjunction with Section 317 as in force at the relevant time).  According to Section 347, after having received the appeal, the trial court, sitting in camera, shall decide whether there exist grounds to annul or alter its decision. If it does not find a reason to do so the trial court shall transmit the appeal to the higher court. 

72.Before doing so the trial court must communicate the appeal to the prosecutor and receive his written observations (Section 348 para. 4 in conjunction with Section 320).  The law does not require the communication of the prosecutor's observations to the appellant.

73.Section 348 provides that the appeals court may examine the appeal in camera or, if it considers it necessary, at an oral hearing.  The law does not require the appeals court to decide within a particular time-limit. 

The Penal Code

74.  A crime under Section 212 para. 4 is a misappropriation of possessions in very large amounts effected through the use of forged documents.  This crime is punishable by a term of imprisonment of ten to twenty years.

 Other relevant law

75.As of 1997 the Supreme Court split into a Supreme Court of Cassation and a Supreme Administrative Court. 

76.Under the Code of Criminal Procedure a person who has been detained on remand during the preliminary investigation of the case, and who has later been convicted and sentenced to a term of imprisonment, is considered to be in detention on remand until the  conviction and sentence become enforceable, i.e. when they are upheld by the appellate court or, if no appeal has been submitted, when the time-limit for an appeal expires.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

77.The Commission has declared admissible the complaints:

-that the applicant's right to a trial within a reasonable time or to release pending trial was violated;

-that the proceedings concerning the applicant's appeals against his detention on remand before the Regional Court and the Supreme Court which ended with decisions of 28 May and 4 December 1996 were not in conformity with the requirements of the Convention; and

-that the criminal proceedings against the applicant were unreasonably lengthy.

B.Points at issue

78.The points at issue in the present case are:

-whether there has been a violation of Article 5 para. 3 of the Convention;

-whether there has been a violation of Article 5 para. 4 of the Convention;

-whether there has been a violation of Article 6 para. 1 of the Convention.

C.As regards Article 5 para. 3 of the Convention

79.Article 5 para. 3 of the Convention, insofar as relevant, reads as follows:

"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.  Release may be conditioned by guarantees to appear for trial."

80.The applicant submits that his detention was unreasonably long.  He asserts that the case was not legally complex and that a reasonable bail would have served the purpose of guaranteeing his appearance in court.  Also, after the collection of most of the evidence in the case, there could not possibly exist a danger of him concealing evidence or otherwise hindering the administration of justice.  Therefore, his continuing detention was unnecessary as there was no danger of absconding, of repetition, or of obstruction.  Furthermore, the courts when refusing bail did not give any reasons why they considered that such danger existed but simply referred to the gravity of the charges.

81.The applicant disputes the Government's assertion that he is responsible for most of the delays in the examination of the case.  He submits, referring to the Court's case-law, that it is for the State to organise its legal system so as to enable the courts to comply with the Convention.  In the applicant's view it is disturbing to see the Government stating that the exercise of a defence right, namely the right to appeal against detention, can serve as an argument to justify a restriction on another right, the right to a trial within a reasonable time or to release pending trial.  The applicant states that this is a dangerous remnant from the communist penal theory and practice, according to which it was in the best interest of the accused to cooperate, rather than to exercise his rights.

82.In respect of the delays caused by lay judges having fallen ill the applicant submits that under Section 259 of the Code of Criminal Procedure is was possible, at the outset, to appoint reserve lay judges who could have taken over without an interruption of the trial.  However, this was not done.

83.The Government submit that the charges against the applicant concerned serious crimes.  In such cases Section 152 of the Code of Criminal Procedure requires that the accused be detained on remand.  Release on bail is possible, according to the jurisprudence, only in exceptional circumstances, when there does not exist even a theoretical possibility of absconding, repetition or hindering the administration of justice.  No such exceptional circumstances existed in the applicant's case.  Moreover, the conviction of Mr H., one of the accomplices, for having induced a witness to give false evidence, is indicative of the existing danger of obstructing the investigation.

84.The Government further maintain that the courts correctly qualified as irrelevant the applicant's arguments that the accusations against him had not been based on sufficient evidence and that the detention on remand had become unreasonably lengthy.  The applicant's release on bail would have been possible only if he had proved that there existed no danger, not even a hypothetical one, of absconding or of re-offending.  However, the applicant allegedly did not submit any evidence in this respect.

85.The Government further indicate that the preliminary investigation was concluded in April 1994, well within the relevant time-limits.  Since then the Plovdiv Regional Court regularly scheduled hearings in the case and took all necessary procedural steps to ensure examination of the case within a reasonable time.  All delays were due to reasons for which the Court was not responsible.

86.On two occasions delays were caused by the fact that a lay judge had fallen ill. Apart from these two occasions, in the Government's submission, the applicant and the other co-accused were responsible for all remaining adjournments.  In particular, a delay of two months was caused by the applicant's hunger strike when he was not fit to attend the hearing.  Furthermore, every request for release and appeal to the Supreme Court against the Regional Court's refusal caused an inevitable delay of a month or two as the case-file had to be transmitted to the Supreme Court in Sofia.  Moreover, the applicant and the other co-accused, being aware that every appeal causes a delay, kept sending appeals, despite the fact that there were no new circumstances.  Therefore, in the Government's view, the applicant was clearly not interested in the speedy examination of his case and was abusing his right to appeal against his detention on remand. 

87.The Government conclude, referring to the criteria laid down in Wemhoff v. Germany (Eur. Court HR, judgment of 27 June 1968, Series A no. 7) that, taking into account the responsibility of the applicant for most of the delays, the "reasonable time" within the meaning of Article 5 para. 3 of the Convention has not been exceeded.  The case was allegedly complex as it concerned forgery of documents and required the appointment of experts and the hearing of many witnesses.  Also, the Plovdiv Regional Court had to strike a balance between the speedy examination of the case and the necessity to examine carefully all evidence and deliver a just judgment.

88.The Commission recalls that the question whether a period of pre-trial detention can be considered "reasonable" within the meaning of Article 5 para. 3 must be assessed in each case according to its special features.  It falls in the first place to the national judicial authorities to examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying continued detention.  Such circumstances may be the existence of a danger of absconding, of collusion, or of repetition of offences.  It is essentially on the basis of the reasons given in the domestic decisions and of the true facts stated by the applicant in his appeals that the Convention organs must examine the complaint under Article 5 para. 3 of the Convention (Eur. Court HR, W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, pp. 15-19, paras. 30-42).

89.The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Convention organs must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (Eur. Court HR, Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, pp. 374, 388, para. 35).

90.If the grounds justifying the continued detention were "relevant" and "sufficient", the Convention organs must also ascertain whether the national authorities displayed "special diligence" in the conduct of the proceedings (ibid., para. 35).

91.In the present case the applicant's detention on remand began with his arrest on 4 October 1993 (see para. 18) and ended on 31 January 1997 when the applicant was convicted (see para. 32).

92.The applicant's imprisonment after 31 January 1997 is detention "after conviction by a competent court" within the meaning of Article 5 para. 1(a) of the Convention and, consequently, does not fall to be examined under paragraph 3 of this provision.  The fact that detention pending appeal is considered under domestic law as detention on remand (see para. 76) does not affect its qualification under Article 5 of the Convention (cf. Eur. Court HR, B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, paras. 35-40).

93.The applicant's detention on remand lasted, therefore, three years, three months and 27 days.

94.Examining the question whether the reasons relied upon by the authorities to justify the applicant's continued detention were relevant and sufficient, the Commission notes that when dismissing the applicant's requests for release the courts stated that there was a danger of absconding, re-offending and obstructing justice (see paras. 44, 46, 47 and 63).

95.The findings of the courts in this respect were not based on an analysis of evidence, but solely on the fact that the applicant was charged with a crime punishable by ten or more years' imprisonment (ibid.).  The Supreme Court stated that the existence of a danger of absconding, re-offending and obstructing justice was presumed due to the gravity of the charges (see para. 63). Furthermore, it is an established practice of the Supreme Court, as applied in the applicant's case, that only exceptional circumstances, such as the detained person being immobilised by illness, would overturn the presumption (see para. 68).

96.However, the Commission recalls that where a reason relied upon to justify a continued detention is the alleged risk of absconding, such risk cannot be gauged solely on the basis of the severity of the sentence faced, although that is a relevant element (Eur. Court HR, Muller v. France judgment, loc. cit., para. 43).

97.The authorities in the applicant's case gave no consideration to other relevant circumstances, such as his statement that he had voluntarily returned from abroad, that he had never been convicted, and that he had a family and a stable way of life (see paras. 50, 52 and 55).  In this respect the present case is distinguishable from the case of Contrada v. Italy (Eur. Court HR, judgment of 24 August 1998, para. 58 et seq.).

98.The Commission considers that by failing to address these relevant issues and by relying solely on the gravity of the charges the authorities prolonged the applicant's detention on grounds which cannot be seen as sufficient.

99.As to the conduct of the proceedings the Commission notes that at least eleven months (see paras. 23, 25 and 28) were taken up by delays due to the transmission of the case-file to the Supreme Court in Sofia for the examination of the appeals of the applicant and of the other accused persons against the Regional Court's refusals to release them on bail. 

100.The Commission considers that while the examination of the appeals necessarily required time, it was for the national authorities to organise the proceedings in a more economical manner and reduce the delays.  Therefore, the Commission finds that at least a part of the delays totalling eleven months was imputable to the authorities.

101.The Commission also notes that when a lay judge fell ill in February 1996 the trial before the Regional Court had to recommence (see para. 27).  As this happened approximately one year and ten months following the beginning of the trial, this period of time was in fact wasted.  The ensuing delay was thus imputable to the authorities, they not having availed themselves of the existing legal possibility to commence the trial with the participation of a reserve lay judge.

102.Furthermore, on at least two occasions when listing the case for hearings the Regional Court fixed dates with intervals of three or four months, on the last occasion when the applicant had been in detention on remand for more than two years (see paras. 23 and 28).

103.It is true that certain delays may not be imputed to the authorities and that there may have been delays caused by the applicant (see para. 25 in fine and para. 30).  However, it remains a fact that significant delays in the proceedings were the responsibility of the authorities.

104.The Commission finds, therefore, that the authorities did not display the required special diligence in the conduct of the proceedings.

CONCLUSION

105.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention.

D.   As regards Article 5 para. 4 of the Convention

106.Article 5 para. 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." 

107.   The applicant alleges violations of Article 5 para. 4 of the Convention in the proceedings before the Regional Court and the Supreme Court concerning his appeals against detention.  The Government disputes his allegations.

108. The Commission recalls at the outset that it has declared admissible only the complaints concerning the proceedings before the Regional Court and the Supreme Court which ended with the latter court's final decisions of 28 May and 4 December 1996 (see para. 77).  These commenced upon the applicant's requests for release on bail submitted on 27 March 1996 and 15 October 1996 respectively (see paras. 49 - 63).  Therefore, the applicant's complaints under Article 5 para. 4 of the Convention must be examined only insofar as they concern the above proceedings.

109.  The applicant founds his complaint under Article 5 para. 4 of the Convention on the allegations that the scope of the judicial control of the lawfulness of his detention was very limited, that the courts did not provide the required guarantees of adversarial proceedings, and that they did not decide speedily.

a)  The scope and nature of the judicial control of lawfulness

110.The applicant states that his appeals against detention were rejected arbitrarily, without the examination of any evidence.  Thus, the Supreme Court in its decision of 4 December 1996 refusing release on bail stated that the danger of absconding, of re-offending or of obstructing justice was presumed as the applicant had been charged with a serious crime.  Referring to the jurisprudence of the Supreme Court according to which the courts are competent to examine only the "formal lawfulness" of the detention, the applicant also argues that the judicial control on the lawfulness of his detention was deprived of its essence, the power of the courts having been very limited.

111.The Government maintain that the courts acted lawfully when dismissing the applicants' appeals against his detention.  Thus, they correctly qualified as irrelevant the applicant's arguments that the accusations against him had not been based on sufficient evidence and that the detention on remand had become unreasonably lengthy.

112.The Government refer to the Supreme Court's practice and reiterate that in the applicant's case release on bail would have been possible only if he had proved that there existed no danger, not even a hypothetical one, of absconding or of re-offending.  However, the applicant allegedly did not submit any evidence in this respect.

113.The Commission recalls that by virtue of Article 5 para. 4 of the Convention arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty.  This means that the competent court has to examine not only compliance with the procedural requirements set out in domestic law, but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (Eur. Court HR, X. v. the United Kingdom judgment of 5 November 1981, Series A no. 46; Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 34, para. 65).

114. In the applicant's case the courts found that the question whether or not the accusations against him were based on sufficient evidence was irrelevant to the examination of his appeals against detention on remand (see para. 49 in conjunction with paras. 45 and 47, and paras. 52 and 56).  It thus transpires from this finding and from the relevant domestic case-law (see para. 67), as confirmed by the Government (see para. 111), that the courts could not and did not inquire into whether or not there existed a reasonable suspicion against the applicant (cf. Assenov and others v. Bulgaria, Comm. Report 10.7.97, para. 162, pending before the European Court of Human Rights; Nikolova v. Bulgaria, Comm. Report 20.5.98, paras. 75-79, pending before the European Court of Human Rights). 

115.In the light of the Convention organs' case-law (see para. 113) the Commission finds that, therefore, the courts failed to provide a possibility for a full review of the lawfulness of the applicant's detention as required by Article 5 para. 4 of the Convention.

116.Furthermore, Section 152 paras. 1 and 2 of the Code of Criminal Procedure apparently shift to the accused person the burden of proof as regards the absence of grounds for the detention on remand.  These provisions require the mandatory detention on remand of anyone who has been charged with a "serious wilful crime" unless it has been demonstrated beyond doubt that there exists no danger, even a hypothetical one, of absconding, of committing other crimes, or of obstructing justice (see paras. 64, 65 and 68).   

117.In this respect it appears that due to the operation of the shift of the burden of proof under Section 152 paras. 1 and 2 of the Code of Criminal Procedure the Regional Court and the Supreme Court tended to limit their examination of the applicant's appeals to a simple verification of whether or not the charges preferred against him could be qualified as an accusation concerning a "serious wilful crime" (see para. 49 in conjunction with paras. 44, 46 and 47 in fine, and paras. 50, 52, 55 and 63).  The only other issue dealt with by the Court was the applicant's health.  The applicant's arguments that there was no danger of absconding, of collusion, or of committing crimes, as raised in his appeal of 1 April 1996 (see para. 50) were left without examination (see para. 52). 

118.The Commission finds, therefore, that the scope and the nature of  the control exercised by the Regional Court and the Supreme Court in the proceedings under examination did not satisfy the requirements of Article 5 para. 4 of the Convention.

b)  The guarantees of adversarial proceedings

119.The applicant states that the courts examined his appeals in camera and did not provide the guarantees of adversarial proceedings.

120.The Government have not commented on this issue.

121.The Commission recalls at the outset that Article 5 para. 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention.  Nevertheless, a State which institutes such a system must in principle afford to the detainees the same guarantees on appeal as at first instance (see Eur. Court HR, Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, para. 84).

122.A court examining an appeal against detention must provide guarantees of a judicial procedure.  Thus, the proceedings must be adversarial and must adequately ensure the "equality of arms" between the parties, the prosecutor and the detained. The person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60; Brogan and Others v. the United Kingdom, loc. cit., p. 34, para. 65; Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107; Toth v. Austria, loc. cit.; Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B).

123.The Commission notes that on 27 March 1996 and 30 October 1996 the Regional Court examined the applicant's appeals at oral hearings in the presence of the applicant and his lawyers (see paras. 49 and 58).  The Regional Court thus provided adequate procedural guarantees as required by Article 5 para. 4 of the Convention.

124.The Regional Court dealt with the applicant's appeals also by decisions of 9 April 1996 and 11 November 1996 (see paras. 52 and 60).  In these proceedings, which were conducted in camera, the material before the Regional Court apparently included only the case-file and the applicant's appeals.  It has not been alleged by the parties that the Court received comments from the prosecution authorities.  Also, it should be observed that the Regional Court's decisions of 9 April and 11 November 1996 were mere confirmations of the previous decisions taken by the same court.  In view of the above the Commission does not consider that the proceedings leading to the aforementioned decisions involved any violation of the requirement of adversarial procedure, within the meaning of the Convention organs' case-law under Article 5 para. 4 of the Convention.

125.However, the Supreme Court examined the applicant's appeals against detention in camera after having received the prosecutor's comments inviting the Court to dismiss the appeals (see paras. 54 and 62).  These comments apparently were not communicated to the applicant and he was not given a possibility to reply.

126.The Commission considers that the resulting effect, insofar as the proceedings before the Supreme Court are concerned, inevitably ran contrary to the principle of equality of arms and adversarial proceedings. 

c)The speediness of the proceedings

127.The applicant states that his appeals against his detention on remand were not examined "speedily" as required by Article 5 para. 4 of the Convention.  Thus, the appeal which was submitted on 15 October 1996 was examined by the Regional Court ten days later.  Furthermore, it took usually up to a month for his appeals against the Regional Court's decisions to reach the Supreme Court.

128.The Government have not commented on the question whether the Regional Court examined the applicant's requests for release speedily.

129.As regards the examination by the Supreme Court of the appeals against these refusals, the Government state that the time which elapsed between the submission of each of the two appeals under consideration (1 April and 6 November 1996) and the dates of the respective decisions of the Supreme Court (28 May and 4 December 1996 respectively) was within the limits of the Convention requirements.  The Government explain that the appeals had to be registered and transmitted to the Supreme Court in Sofia.  Then, the Chief Public Prosecutor's Office had to prepare written submissions.  Finally, the examination of the appeals required certain time.

130.In the Government's submission another difficulty was that the courts had to deal with the requests for release and the appeals of three co-accused.  Thus, on 5 April 1996, four days after the submission of the applicant's appeal of 1 April 1996, an appeal was submitted by one of the other co-accused.  This appeal was joined to the applicant's appeal.  A similar situation occurred in November 1996.

131.  In view of its findings above (see paras. 118 and 126) the Commission considers that it is not necessary to examine the applicant's assertion that Article 5 para. 4 of the Convention was violated on the separate ground that his appeals against detention were not dealt with speedily.

CONCLUSION

132.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

E.As regards Article 6 para. 1 of the Convention

133.Article 6 para. 1, insofar as relevant, provides as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."

134.The parties refer to their submissions in respect of the length of the applicant's detention (see paras. 80, 81 and 84-86).  The applicant further submits that the undue delays of the proceedings continued after his conviction.  Thus, the reasoning of the judgment of 31 January 1997 was not delivered for several months which caused a delay in the commencement of the appeal proceedings. 

135.The Commission notes that the period to be taken into consideration began on 4 October 1993 (see para. 18).  It continued at least until 18 March 1998 when the Supreme Court of Cassation dismissed the applicant's appeal (see paras. 35 and 37).  It has not been indicated by the parties whether the proceedings are still pending (see para. 37).  In these circumstances the period to be taken into consideration is four years, five months and 14 days. 

136.The Commission refers to its above findings in respect of a number of delays in the proceedings (see paras. 99-104).  The Commission further notes that delays of at least several more months occurred due to the fact that the Regional Court did not deliver promptly the reasoning of its judgment of 31 January 1997 (see para. 32) and due to the withdrawal of a prosecutor (see para. 34).  In the light of the above the Commission finds that the criminal case against the applicant has not been examined within a "reasonable time" within the meaning of Article 6 para. 1 of the Convention (cf. B. v. Austria judgment of 28 March 1990, loc. cit., pp. 18, 19, paras. 49-55).

CONCLUSION

137.The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

F.Recapitulation

138.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 105).

139.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 132).

140.The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 137).

        M. de SALVIA                        S. TRECHSEL

         Secretary                                     President

      to the Commission                   of the Commission

 

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