Published on 25 April 2022
FOURTH SECTION
Application no. 36250/12
Ivan Stoyanov SLAVKOV and Others
against Bulgaria
lodged on 4 June 2012
communicated on 8 April 2022
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. The applicants are represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practicing in Plovdiv.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Criminal proceedings and detention of the first applicantIn October 2008 the first applicant was charged with having led an organised armed criminal group created for the commission of money laundering, pimping and drug trafficking. The offence, under Article 321 § 3 of the Criminal Code, was allegedly committed between June 2007 and August 2008 and was punishable with five to fifteen years’ imprisonment. In June or July 2009 the first applicant and his alleged accomplices were indicted and brought to court.
The first applicant was arrested on 20 October 2008. He remained in detention on remand until 11 July 2012, when he was released on bail; by that time the criminal proceedings against the group were still pending before the first-instance Varna Regional Court.
During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many of these occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for a year before being dismantled, his leading position in it and his having “authority” in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant’s “aggressiveness” in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts dismissed requests for release referring to a deterioration of the applicant’s physical and mental health while in custody, and to his stated intention to stand in local and national elections. Lastly, it was on numerous occasions underlined in the decisions refusing release that the criminal proceedings were very complex, that the hearings were being held at regular intervals, and that many delays had been caused by the defence.
In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and the remaining members of his group. The applicant was sentenced to ten years’ imprisonment. However, the conviction and sentence were eventually quashed by the Supreme Court of Cassation. After that the proceedings were transferred to the Specialised Criminal Court, where they were still pending as of the date of the latest information from the applicants in December 2021.
measures against the applicants under the 2005 actSince the offence the first applicant had been charged with fell within the scope of the Forfeiture of Proceeds of Crime Act 2005 (hereinafter “the 2005 Act”), in October 2008 the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) started an inquiry. It established that between 1997 and 2008 the first applicant and his wife (the second applicant) had received income from lawful sources equalling 1,517 minimum monthly salaries, whereas their expenses and those incurred by a company controlled by them (the third applicant) had been equivalent to 6,892 minimum monthly salaries. The applicants had in particular acquired several immoveable properties and several cars.
In December 2008 the Commission applied to the Varna Regional Court for an order freezing a number of assets of the three applicants – a flat in Varna owned by the first and second applicants, several cars, sums deposited in bank accounts, shares in companies – which could be the subject to a prospective claim under the 2005 Act for the forfeiture of assets worth 577,776 Bulgarian levs (BGN), the equivalent of 295,000 euros (EUR). Referring to the presumption contained in section 4(1) of the 2005 Act and to its findings as to the applicants’ income and expenditure summarised above, the Commission considered its prospective forfeiture claim well-founded. It pointed out moreover that without the measures sought the prospective forfeiture claim could be frustrated or hindered.
On 23 December 2008 the Varna Regional Court ordered only part of the measures sought by the Commission.
The Commission lodged an appeal with the Varna Court of Appeal, which, in a decision of 13 January 2010, froze all assets covered by the Commission’s application. It held that the question whether the assets at issue were the proceeds of crime and could be linked to the first applicant’s criminal activity was to be examined in the future forfeiture proceedings, whereas its task was only to satisfy itself that those assets were held by the persons indicated by the Commission. This was so, and the Commission’s application was otherwise sufficiently substantiated.
The applicants did not appeal against that decision before the Supreme Court of Cassation, as entitled to.
Subsequently the first and third applicants applied for the unfreezing of their assets, but the application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the fact that the criminal proceedings against the first applicant remained pending justified the continued validity of the measures under the 2005 Act. At this stage it was not permissible to assess the well-foundedness of the prospective forfeiture application.
As the criminal proceedings against the first applicant remain pending (see above), the freezing of the applicants’ assets has remained in force as well, at the least until December 2021 when the latest information from the applicants was received. No forfeiture claim has yet been brought.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
The relevant provisions of the 2005 Act and the practice of the national courts have been summarised in Todorov and Others v. Bulgaria (nos. 50705/11 and 6 others, §§ 90-114, 13 July 2021).
In addition, the provisions of the 2005 Act concerning freezing of assets with a view of their forfeiture have been described in Nedyalkov and Others v. Bulgaria (dec.) (no. 663/11, §§ 46-57, 10 September 2013).
COMPLAINTS
1. The first applicant complains under Article 5 § 3 of the Convention of the length of his detention on remand. He complains in addition under Article 5 § 5 of the Convention of the lack of an enforceable right to compensation in that regard.
2. The three applicants complain under Article 1 of Protocol No. 1 of the freezing of their assets under the 2005 Act. They consider this measure arbitrary and take issue with its lengthy duration.
The applicants explain that they did not appeal against the Varna Court of Appeal’s decision of 13 January 2010 on the freezing of their assets, because such an appeal would not have represented an effective remedy. This was so because of the national courts’ “automatism” in imposing interim measures under the 2005 Act, without any assessment as to the possible criminal provenance of the respective assets.
QUESTIONS TO THE PARTIES
1. Was the length of the first applicant’s detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Did the applicant have an enforceable right to compensation for his detention in alleged contravention of Article 5 § 3, as required by Article 5 § 5 of the Convention?
2. Was the freezing of the applicants’ assets under the Forfeiture of Proceeds of Crime Act 2005 compliant with Article 1 of Protocol No. 1? In particular, could the authorities’ failure to show, even with a view of the preliminary character of the measures complained of, any suspected link between the assets concerned and any criminal activity of the first applicant, pose a problem in that regard (see, mutatis mutandis, the approach in Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, §§ 200-216, 13 July 2021)? Could, in addition, the duration of the measures against the applicants disrupt the fair balance under Article 1 of Protocol No. 1?
The parties are invited to specify what is the current state of the forfeiture proceedings against the applicants.
APPENDIX
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Ivan Stoyanov SLAVKOV
1967
Bulgarian
Varna
2.
Emel Nezhdet SLAVKOVA
1971
Bulgarian
Varna
3.
BARET AUTO OOD
2003
Bulgarian
Varna