FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37981/06
by Dimitar Alexandrov SARKIZOV
against Bulgaria
lodged on 5 September 2006
Application no. 38022/06
by Vasil Petrov VASILEV
against Bulgaria
lodged on 31 August 2006
Application no. 39122/06
by Dimitar Petkov PETKOV
against Bulgaria
lodged on 18 September 2006
Application no. 44278/06
by Kiril Dimitrov MARINKOV
against Bulgaria
lodged on 12 September 2006
The European Court of Human Rights (Fifth Section), sitting on 1 June 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications nos. 37981/06, 38022/06, 39122/06 and 44278/06, lodged on 5 September, 31 August, 18 and 12 September 2006, respectively,
Having deliberated, decides as follows:
THE FACTS
The applicants are the Bulgarian nationals Mr Dimitar Alexandrov Sarkizov, born in 1973 (application No. 37981/06), Mr Vasil Petrov Vasilev, born in 1974 (application No. 38022/06), Mr Dimitar Petkov Petkov, born in 1978 (application No. 39122/06), and Mr Kiril Dimitrov Marinkov, born in 1967 (application No. 44278/06).
Mr Sarkizov, Mr Vasilev and Mr Petkov live in Pazardzhik. Mr Marinkov lives in the village of Lozen.
The applicants are represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.The criminal proceedings against the applicants
(a) The preliminary investigation
On 12 October 2004 a preliminary investigation was opened against the applicants for sexual procurement.
From 13 to 18 October 2004 four witnesses were questioned before a judge at the pre-trial stage of the proceedings. Neither the applicants nor their lawyers participated in the questioning.
On 18 October 2004 the Pazardzhik District Court granted the request of the Pazardzhik District Police Administration to carry out a search in the applicants' apartments. The search took place on the following day, 19 October 2004. The police found and seized passports of foreign nationals, SIM cards, foreign phone cards, receipts, camera films, bank cards, cash and other items.
On an unspecified date the Pazardzhik district public prosecutor's office decided that the identity of three witnesses should be kept secret.
On 21 October 2004 witnesses with ID nos. 15 and 16 were questioned before a judge without the participation of the applicants or their lawyers.
On 27 October 2004 witness with ID no. 17 was questioned before a judge. Three of the applicants, Mr Sarkizov, Mr Marinkov and Mr Vasilev, as well as their lawyers, participated in the examination.
On 4 November 2004 the District Court ordered that three banks should inform the prosecution and the police authorities of the international money transfers ordered or received by certain individuals suspected of having been involved in the applicants' sexual procurement activities. On 24 November 2004 the district public prosecutor's issued a similar order in respect of two banks.
On an unknown date the applicants were accused of several counts of sexual procurement.
The applicants were also apparently subject to special means of surveillance for an unknown period of time.
(b) The trial stage
On 22 April 2005 the district public prosecutor's office filed an indictment against the applicants for sexual procurement. On an unknown date the District Court decided that the public should be excluded from the trial.
On 5 July 2005 the District Court conducted a hearing in the case. The anonymous witnesses and nine other witnesses did not appear. The court postponed the hearing because of irregularities in the summoning of witnesses.
The next hearing was conducted on 21 September 2005. The anonymous witness with ID no. 15 was present, but the other two anonymous witnesses and ten other witnesses did not appear. The District Court postponed the hearing because of irregularities in the summoning of witnesses. It also commissioned a medical expert's report to assess the ability of Mr Marinkov to participate in the trial in view of his hearing problems.
On an unknown date a medical expert's report was submitted to the District Court, which concluded that Mr Marinkov had a hearing impairment which did not prevent him from effectively participating in the trial.
On 4 November 2005 the District Court conducted a hearing. The anonymous witnesses and eleven other witnesses did not appear. The prosecutor's office submitted written statements by two of the anonymous witnesses that they were aware of the criminal proceedings and did not wish to attend the hearing. The applicants' lawyers requested that the anonymous witnesses be found and questioned. The District Court held that the anonymous witnesses were the victims of the crimes of which the applicants had been accused and therefore were free to decide whether they wished to attend the hearing. Mr Marinkov's lawyer stated that his client had impaired hearing and could not participate effectively in the hearing. He asked that a new medical expert's report be commissioned. The Dictrict Court found that no additional expert report was needed. During the hearing the applicants' lawyers and Mr Marinkov made three requests for recusal of the panel, which were dismissed. The District Court also questioned seven witnesses.
The next hearing was conducted on 20 December 2005. The anonymous witnesses and several other witnesses were again absent. The prosecutor's office submitted a police report that one of the anonymous witnesses was abroad. The District Court questioned four witnesses and ordered that the anonymous witnesses and the seven missing witnesses be found and brought before it.
The next hearing was conducted on 20 February 2006. The anonymous witnesses and several other witnesses once again did not appear. The prosecutor's office stated that two of the anonymous witnesses were abroad and that the third one could not be found. The applicants' lawyers insisted that the anonymous witnesses be found and questioned and stated that the anonymity was not justified as the applicants knew the identity of those witnesses. The court examined one witness and admitted the evidence obtained from the use of special means of surveillance. It again ordered that the anonymous witnesses and the other missing witnesses be found and brought before it.
A hearing was conducted on 28 March 2006. The anonymous witnesses and several other witnesses did not appear. A police report was submitted, stating that two of the anonymous witnesses had left the country on 25 October 2005 and 10 January 2006, respectively, and that the third one had not been found. The applicants' lawyers insisted that the anonymous witnesses be found and questioned and expressed doubts of the efforts of the prosecution authorities to ensure their presence at the trial. They further requested the cancellation of the witness protection measures, stating that the applicants were aware of their identity. The District Court found that the reasons for protecting the anonymous witnesses persisted and refused to cancel the prosecutor's order granting anonymity. Noting that the anonymous witnesses were abroad, it read out their statements given at the pre-trial stage and incorporated them into the body of evidence in the case. It did the same with the testimony of the four other witnesses given at the pre-trial stage. The applicants' lawyers unsuccessfully requested the recusal of the panel.
In a judgment of 28 March 2006 the District Court convicted the applicants, individually or in complicity with each other, of having induced into prostitution, procured or transported several women, including the three anonymous witnesses. Mr Sarkizov was sentenced to three years' imprisonment and a fine, Mr Vasilev – to three years' imprisonment and a fine, Mr Petkov – to three years and two months' imprisonment and a fine, and Mr Marinkov – to five years' imprisonment and a fine. It appears from the reasoning of the District Court that most of the convictions were based to a decisive extent on the statements of the anonymous witnesses. The court nevertheless found that these statements were corroborated by other evidence in the case, including the results from the secret surveillance. Separately, on the basis of an intercepted telephone conversation between Mr Marinkov and an unknown individual the District Court held that Mr Marinkov had sought ways to create the appearance that the money received by him originated from legal obligations. The District Court noted that Mr Marinkov's lawyer had objected to the use of this record, stating that the conversation had been held between Mr Marinkov and himself as his lawyer. The court, however, found that the identity of Mr Marinkov's interlocutor was not proven, so the conversation was not covered by attorney-client privilege and therefore the evidence was admissible. No details were given for the other secret surveillance records, which were referred to in the judgment as corroborating evidence.
Following an appeal, on 4 July 2006 the Pazardzhik Regional Court conducted a hearing. It dismissed the applicants' request for questioning of the anonymous witnesses, finding that this was not necessary.
In a judgment of 17 July 2006 the Regional Court upheld the sentence of 28 March 2006. It fully endorsed the findings and conclusions of the District Court.
The judgment of 17 July 2006 was not subject to cassation appeal and became final.
On an unknown date the applicants requested reopening of the criminal proceedings before the Supreme Court of Cassation.
In a judgment of 30 May 2007 the Supreme Court of Cassation dismissed the request. It held that there had been no procedural violations in the examination of the anonymous witnesses at the pre-trial stage and that the applicants had been acquainted with the examination records and had been given the opportunity to pose indirect questions. The court noted that the applicants and their lawyers had not been entitled to participate in person in the examination of those witnesses because no charges had been brought against the applicants at the time the witnesses had made their statements.
2. The applicants' detention
On 20 October 2004 the applicants were detained under a prosecutor's order.
On 22 October 2004 the District Court ordered the pre-trial detention of Mr Sarkizov, Mr Vasilev and Mr Marinkov. It found, on the basis of the materials before it, that there was a reasonable suspicion that they had acted as sexual procurers and concluded that there was a risk that they would abscond or intimidate the witnesses. The court found that Mr Petkov should not be held in pre-trial detention because there was a lack of sufficient evidence against him but ordered him not to leave the town without authorisation. On 28 October 2004 the Regional Court upheld the detention of Mr Sarkizov, Mr Vasilev and Mr Marinkov and refused to examine the prosecutor's appeal against the release of Mr Petkov.
Acting on a second request by the district public prosecutor's office for the detention of Mr Petkov, on 29 October 2004 the District Court ordered that he also be placed in pre-trial detention. It held that there was a reasonable suspicion that Mr Petkov had acted as a sexual procurer and found that there was a risk that he would abscond or intimidate the witnesses. On 4 November 2004 the Regional Court upheld the decision of the District Court.
On unknown dates the applicants filed several requests for release, which were all dismissed by the domestic courts in 2004 and 2005.
During the trial stage of the proceedings the applicants filed another five requests for release, which were likewise dismissed by the domestic courts in 2005.
3. Places of detention
From 20 October 2004 to 1 March 2005 Mr Marinkov, Mr Vasilev and Mr Sarkizov were held in the detention facility of the Pazardzhik Regional Investigation Service, and from 1 March 2005 to an unspecified date in September 2006 – in Pazardzhik Prison.
It appears that from 20 to 22 October 2004 and from 29 October 2004 to an unspecified date Mr Petkov was detained in the detention facility of the Pazardzhik Regional Investigation Service, and subsequently – in Pazardzhik Prison, where he remained until an unspecified date in September 2006.
4. Subsequent restriction on Mr Vasilev and Mr Marinkov to leave the country
(a) Mr Vasilev
Mr Vasilev was conditionally released from prison on 26 April 2007 with a six-month supervision period.
On 4 June 2007 the Pazardzhik Regional Police Directorate prohibited Mr Vasilev from leaving the country pending his rehabilitation. He appealed against the order, arguing that he had no job in Bulgaria and that the prohibition did not contribute to his social re-integration and was excessive and unnecessary. In a final judgment of 28 January 2008 the Supreme Administrative Court dismissed the appeal. The court held that the prohibition was imposed in compliance with the law, on the grounds of the applicant's conviction for a publicly prosecutable offence, and that the ratio legis behind the prohibition was to prevent criminally active individuals from travelling abroad until they had proven that they had reformed.
(b) Mr Marinkov
On an unknown date Mr Marinkov was released from prison. On 7 April 2008 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation. He appealed against the order, arguing that he had served his sentence, that there were no pending criminal proceedings against him, that his work as a football manager required frequent travelling abroad and that he had to accompany his son for medical treatment abroad. In a final judgment of 18 December 2008 the Supreme Administrative Court dismissed the appeal, holding that the assessment of the administrative body was not subject to judicial control. The court further held that the police authorities were not obliged to state any reasons for their decision to impose the ban.
B. Relevant domestic law
In the relevant period section 76 § 2 of the Bulgarian Identity Documents Act of 1998 provided that individuals convicted of intentional publicly prosecutable offences might be refused permission to leave the country and might not be issued passports or similar such documents pending their legal rehabilitation. The measure was subject to appeal to the superior police authority and to the court. On 26 October 2009 this provision was repealed.
The legal rehabilitation of convicted felons occurs ex lege or is granted by the court upon request subject to certain conditions (Articles 86 and 87 of the Criminal Code). Pursuant to the information submitted to the Court, Mr Vasilev's legal rehabilitation would occur ex lege three years after the expiration of his supervision period, provided that no further crimes punishable by imprisonment have been committed. Mr Marinkov's legal rehabilitation would be granted by the court if no further crimes punishable by imprisonment have been committed within three years after his release from prison, provided that the additional conditions set out in Article 87 the Criminal Code have been satisfied.
COMPLAINTS
1. Relying on Article 5 of the Convention, the applicants complain (a) that their pre-trial detention was in violation of Article 5 § 1 (c) because there was neither a reasonable suspicion that they had committed a criminal offence nor a risk that they would abscond or reoffend; (b) under Article 5 § 1 (a) that their imprisonment was based on an unlawful judgment; (c) under Article 5 § 3 that their detention was excessively lengthy, (d) under Article 5 § 4 that they were denied effective review of the lawfulness of their detention, and (e) under Article 5 § 5 that they did not have an enforceable right to compensation for their unlawful detention.
2. The applicants complain under Articles 3 and 13 of the Convention that the conditions in which they were detained in the Pazardzhik Regional Investigation Service and in Pazardzhik Prison amounted to inhuman and degrading treatment. In particular, they state that the cells were small and overcrowded, below the ground level and with insufficient lighting, without access to a toilet, except for mornings and evenings, without physical exercise, fresh air, or adequate medical services, the food was insufficient and of poor quality, there were rodents and insects. They maintain in this respect that the State and Municipalities Responsibility for Damage Act of 1988 was not an effective remedy to exhaust because the deficiencies stemmed from insufficient funding which could not be remedied in this procedure.
3. The applicants complain under Article 8 of the Convention that the searches of their apartments were unlawful and unjustified. Likewise, they consider the disclosure of information regarding the money transfers received from abroad to have been in violation of domestic law.
4. The applicants complain under Article 1 of Protocol No. 1 to the Convention that during the search of their apartments the authorities seized without authorization some of their personal belongings, which were never returned to them, and that contrary to Article 13 of the Convention they had no effective domestic remedies in this respect.
5. The applicants complain under Article 8 of the Convention that they were subjected to unlawful secret surveillance in spite of the lack of evidence against them and that contrary to Article 13 of the Convention they had no effective domestic remedies in this respect. They further consider themselves potential victims of unlawful secret surveillance in the future.
6. The applicants complain of a violation of their right to a fair trial in breach of Article 6 of the Convention. In particular, they contend that their conviction was based to a decisive extent on anonymous witness testimony in violation of Article 6 §§ 1 and 3 (d) of the Convention and that they were denied the opportunity to challenge and question the witnesses against them, and that such anonymity was not justified. They further complain that the results from the alleged unlawful search and secret surveillance and the information on the money transfers were used as evidence in the criminal proceedings against them in violation of Article 6 § 1. They also complain that the public was unnecessarily excluded from the trial and that neither the trial court nor the appeal court represented an impartial tribunal within the meaning of Article 6 § 1 of the Convention because they dismissed the applicants' requests for gathering new evidence. In addition, Mr Marinkov complains under Article 6 § 1 that his hearing impairment prevented him from participating effectively in the trial and that an intercepted telephone conversation between him and his lawyer was unlawfully used as evidence against him.
7. Finally, Mr Vasilev and Mr Marinkov complain that following their release from prison they were imposed a prohibition to leave the country. They invoke Article 2 of Protocol No. 4, stating that their right to freedom to leave the country was violated; Article 8 because the prohibition prevented Mr Vasilev from finding a job abroad and Mr Marinkov – from going on business trips abroad; Article 6 because the national courts exerted formal control over the prohibition orders; and Article 13 because they had no effective remedy in relation thereto. Mr Vasilev also invokes Article 14 stating that the other applicants were not imposed such a restriction.
8. Mr Sarkizov complains, invoking Article 8 of the Convention, that his wedding ceremony, which was carried out in prison, lasted only three minutes, after which he was allowed to meet his wife for only five minutes.
THE LAW
A. Complaint under Article 6 §§ 1 and 3 (d) of the Convention
The applicants complain that their conviction was based to a decisive extent on anonymous witness testimony, that the anonymity of the witnesses was not justified and that they were denied the opportunity to challenge and question them.
Article 6 §§ 1 and 3 (d), insofar as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair hearing ... by [a] tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent government.
B. Complaint that Mr Vasilev and Mr Marinkov were prohibited from leaving the country
Mr Vasilev and Mr Marinkov complain that following their release from prison they were imposed a prohibition to leave the country. They invoke Article 2 of Protocol No. 4 to the Convention and Articles 6, 8 and 13 of the Convention.
The Court considers that this complaint falls to be examined only under Article 2 §§ 2 and 3 of Protocol No. 4 to the Convention and Articles 8 and 13 of the Convention.
Article 2 §§ 2 and 3 of Protocol No. 4 read as follows:
“2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 8, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent government.
C. The remainder of the applicants' complaints
The Court has examined the remainder of the applicants' complaints as submitted by them. However, 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 and its Protocols.
It follows that these parts of the applications must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants' complaints under Article 6 §§ 1 and 3 (d) concerning the use of untested anonymous witness testimony as evidence against them and the complaints of Mr Vasilev and Mr Marinkov under Article 2 §§ 2 and 3 of Protocol No. 4 and Article 8, individually and in conjunction with Article 13 of the Convention, that they were unjustifiably prohibited from leaving the country;
Declares the remainder of the applications inadmissible.
Stephen PhillipsPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy