FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51796/99
by Veselin Petrov SPASOV
against Bulgaria
The European Court of Human Rights (First Section), sitting on 29 September 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 17 June 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Veselin Petrov Spasov, is a Bulgarian national, who was born in 1969 and lives in Plovdiv. He is currently in prison. The applicant was represented before the Court by Mr D. Marinov, a lawyer practising in Plovdiv.
The respondent Government were represented by their agent, Ms M. Kotzeva, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings
(a) The offence
On 5 February 1997 a murder was committed in the village of Markovo. A man had been shot in the head while in the driver’s seat of his car, apparently from the back seat of the vehicle, which had then been abandoned by the perpetrator or perpetrators. The victim had not been robbed.
A preliminary investigation against an unknown perpetrator was opened on the same day.
(b) The preliminary investigation
On 23 July 1997 another individual, Mr K., was arrested on unrelated charges. He later confessed to having committed the murder on 5 February 1997 and to having shot the victim, but claimed to have been incited to do so by the applicant.
On 6 August 1997 the home of the applicant was searched by the police.
The applicant was questioned as a witness on 8 August 1997. He admitted that he was present at the time of the murder, but denied that he had incited Mr K. The applicant claimed that Mr K. wanted them to rob the victim, but that he had been opposed to the plan and that, in the end, Mr K. had merely shot the driver. The applicant claimed to have run away from the murder scene fearing that Mr K. might also shoot him.
On 11 August 1997 Mr K. was charged with the murder of 5 February 1997 and for unlawful possession of firearms.
On 28 August, 7 and 13 October 1997 Mr K. gave detailed statements to the investigation in the presence of his lawyer. He claimed that only the applicant had known the victim and that it was he who had suggested him as a possible target of a robbery because allegedly he always carried a lot of money with him. In addition, Mr K. claimed that the applicant had insisted that they shoot him, because otherwise he could identify them. Mr K. also claimed that the applicant had devised a plan how to ask the victim to drive them to the village of Markovo, where he had an uncle, purportedly to attend a birthday. The applicant was to sit in the front seat and Mr K. behind the victim. The applicant was then supposed to ask the driver to stop the car for a moment and once he got out, in order to avoid being accidentally hit by the discharged bullet cartridge, Mr K. was to shoot him. The applicant was then supposed to return to the car and take the victim’s money. In fact, once the driver was shot the applicant had run away, allegedly because he saw some people watching them from a nearby house.
On 15 October 1997 the applicant was arrested and charged with being an accomplice to the murder with an avaricious intent and for inciting Mr K. to commit the offence. The offence carried a possible sentence of fifteen to twenty years’ imprisonment, life imprisonment or life imprisonment without parole. The applicant was placed in pre-trial detention.
Throughout the criminal proceedings the applicant was represented by counsel. He maintained his innocence and contested the version of events presented by Mr K. He claimed that Mr K. was solely responsible for the murder and that, even though he had been in the victim’s car prior to the murder, he had not been aware of his intentions to commit the offence.
Before the investigators a witness, Mr A., testified that he had been called by Mr K. on the night of the murder and that he had been with him and the applicant before they left with the victim. He stated that they had told him that they needed to collect some money from an individual, that they had been waiting for him to come out of a gambling establishment and that they had asked him to wait for them with his car at a certain location on the outskirts of the city.
Another witness, Mr Kr., testified before the investigators that he had met Mr K. around a month after the murder and that the latter had bragged about having killed an individual for his money, but that his accomplice became scared and ran away.
It is unclear how long the preliminary investigation lasted.
On an unspecified date an indictment against the applicant was submitted to the Plovdiv Regional Court for being an accomplice to the murder with an avaricious intent.
(c) The first court proceedings
Three hearings were conducted before the Plovdiv Regional Court between 4 February 1998 and 28 September 1998.
On 28 September 1998 the Plovdiv Regional Court remitted the case to the investigation stage. It found that the offence should be reclassified as a robbery accompanied by murder, which required additional investigations to be performed. Allegedly no additional investigation was conducted.
On 28 December 1998 the charges against the applicant were amended and on 5 January 1999 a revised indictment was entered against the applicant and Mr K. with the Plovdiv Regional Court for attempted robbery accompanied by murder. The offence carried a possible sentence of fifteen to twenty years’ imprisonment, life imprisonment or life imprisonment without parole.
(d) The second court proceedings
Seven hearings were held before the Plovdiv Regional Court between 22 March 1999 and 1 February 2000.
By judgment of 1 February 2000 the Plovdiv Regional Court found the applicant and his co-accused guilty of attempted robbery accompanied by murder, sentenced each of them to seventeen years’ imprisonment and ordered them to pay damages to the victim’s family.
Upon appeal by the applicant, on 13 June 2000 the Plovdiv Appellate Court quashed the lower court’s judgment and, for reasons not indicated by the parties, remitted the case to the investigation stage.
On 26 October 2000 a revised indictment was entered against the applicant and Mr K. with the Plovdiv Regional Court for attempted robbery through use of force which resulted in murder. The offence carried a possible sentence of fifteen to twenty years’ imprisonment, life imprisonment or life imprisonment without parole.
(e) The third court proceedings
The Plovdiv Regional Court started rehearing the case on 13 February 2001 and conducted a total of five hearings until 9 July 2001. The court obtained testimony from the accused and numerous witnesses – at some hearings more than twenty of them were scheduled to be heard. The witnesses gave statements in respect of the events prior to and after the murder, the whereabouts and actions of the accused and the victim, their character and state of mind prior to and after the event, the difficult financial situation of the applicant and his relationship with the victim. The court also obtained several experts’ opinions, such as, for example, a ballistics test, a psychological examination of the accused and a post-mortem examination of the victim.
At the hearing on 1 March 2001 the victim’s family joined the proceedings as civil claimants. The applicant contends, which the Government dispute, that during the testimony of Mr K. on that day he was asked:
“Why did you murder [the victim]?”
The applicant maintains that Mr K.’s response was that:
“They made me do it.”
Following an alleged intervention by the prosecution, Mr K.’s lawyer and the judge, he allegedly changed his statement to:
“[The applicant] made me do it.”
The minutes of the court hearing meanwhile, have recorded that Mr K. stated that:
“I shot [the victim] because I was compelled to do it, specifically [the applicant] compelled me to shoot [him].”
Due to the large number of witnesses and experts the court was unable to conclude the hearing on that day and reconvened on the following day.
On 2 March 2001 the applicant filed a request with the court to correct the minutes of the court hearing of 1 March 2001, claiming that it did not accurately reflect the initial response of Mr K. prior to the alleged intervention by the prosecution, his lawyer and the judge. The court apparently declined the request of the applicant, because it deemed that the wording contained in the minutes accurately reflected the testimony given by Mr K.
At the court hearing on 21 May 2001 a witness for the prosecution, Mr D., retracted the statement he had given before the investigators. The witness had for a while shared a prison cell with the applicant. He gave the following statement before the court:
“... What is written in the statement [before the investigators] I think is not true, [because] I was manipulated by the prison authorities in order to be moved [out of] the isolation ward – that’s what they promised. [Regarding the] statement meanwhile, they obtained testimony from another witness the same way, who was also manipulated and now they moved him to another prison. I don’t know all the things I wrote about. I have already retracted these statements and I don’t know why that has not been reflected in the case file. They wanted me to write that which was written. ...”
In response to a request by the applicant’s lawyer for the court to note the given testimony that there was prevalent witness tampering, Mr D. clarified his testimony as follows:
“... I am not aware of another witness to have been manipulated in this case, ... I said, that [they] continue to manipulate people, but not in this case.”
By judgment of 9 July 2001 the Plovdiv Regional Court found the applicant guilty of being an accomplice to attempted robbery resulting in murder and sentenced him to seventeen years’ imprisonment. Mr K. was also found guilty of attempted robbery resulting in murder, as well as for unlawful possession of firearms, and was sentenced to fifteen years and six months’ imprisonment. They were also ordered to pay damages to the victim’s family.
In its judgment, the court analysed in detail the evidence before it and the more than thirty witnesses’ testimonies and eight experts’ opinions. The court did not base its decision on the testimony of the witness who had retracted his testimony at the hearing of 21 May 2001, but it did take into account the statements given before the investigators by those witnesses who had meanwhile passed away (Mr A. and Mr Kr.).
The court gave credence to the statements of Mr K., who expressed great remorse for his actions, and the version of events presented by him. The court found them to be supported by the other witnesses’ testimonies and by the evidence in the case.
The court did not accept as truthful the applicant’s assertions that he was an involuntary witness to the murder. It found his statements contradictory and unsupported by the other evidence in the case. In particular, the court recalled that only the applicant had known the victim and his alleged wealth, that it was the applicant who had convinced him to drive them to the village of Markovo, that he had no prior agreement to visit anyone there and that he was having financial difficulties. In addition, the court did not accept the applicant’s assertions that Mr K. had shot the victim on his own accord. If that had been case, the court argued, Mr K. would then have robbed him if that had been his intention. Instead, he had abounded the scene and had chased after the applicant who had run away. In addition, the court did not find any truth in the applicant’s version that he had run away fearing for his life, because he had then waited for Mr K. to catch up, both had then returned to the city together and had visited friends. Based on this reasoning, the court found the applicant to have been instrumental in identifying the victim as a potential target for the robbery, to have planned and executed how to deceive him into driving them to Markovo and to have abandoned the crime scene only because he feared that they had been seen. Moreover, the court considered that only the applicant had something to gain by the killing of the victim, rather than simply robbing him, because they knew each other while Mr K. did not and could easily have robbed him at gunpoint without necessarily shooting him.
On 6 August 2001 the applicant appealed against the judgment of the Plovdiv Regional Court. He claimed that the court had violated the rules of procedure by not hearing his request to correct the minutes of the court hearing of 1 March 2001 in camera, but had dismissed it in open court. In addition, he argued that the court had failed to determine whether there had been witness tampering, as evidenced by the testimony of Mr D. of 21 May 2001. Separately, the applicant maintained that the court had not given satisfactory reasoning in its judgment and had incorrectly evaluated the evidence before it. He maintained that Mr K. had acted on his own accord and that he, the applicant, was an unfortunate and unwilling witness to the murder.
Mr K. did not appeal against the judgment of the Plovdiv Regional Court.
By judgment of 4 January 2002 the Plovdiv Appellate Court upheld the lower court’s judgment, but decreased the sentence of the applicant to fifteen years and six months’ imprisonment. It re-examined the evidence and witnesses’ testimonies in the case and concurred with the lower court’s assessment of the facts. The court also found that there had not been any violations of the rules of procedure by the lower court. In respect of the minutes of the hearing of 1 March 2001, the court found that there was no need for a separate court hearing, because the hearing in question was still ongoing and was in its second day when the applicant made his request on 2 March 2001. Accordingly, there had been no need to convene a separate hearing on the matter.
In addition, the Plovdiv Appellate Court addressed and dismissed the applicant’s arguments as unsubstantiated. In particular, the court disagreed with the applicant’s assertion that he was an unwilling witness to the murder, because it was not supported by the other evidence in the case. It agreed with the lower court that it was the applicant who knew the victim, his habits, place of residence, financial situation and that it was he who had in fact organised the transgression. The only reason that the victim was not robbed was because the applicant had thought that they had been seen and, instead of returning to the car to take his money, had run away.
In conclusion, the Plovdiv Appellate Court stated as follows:
“... The conclusions of the first-instance court are based on an assessment of all the evidence collected in the case, [and] it has outlined and justified [its] motives [in respect] of which evidence and why it has reached a [finding] of guilt of the accused. ... There are no serious procedural violations, as claimed [by the applicant].”
On 29 January 2002 the applicant filed a cassation appeal citing grounds almost identical to those in his appeal to the Plovdiv Appellate Court, whereby he challenged the assessment of the evidence and witnesses’ testimonies by the first and second instance courts and their respective conclusions.
By final judgment of 14 May 2002 the Supreme Court of Cassation upheld the lower courts’ judgments. It considered that the applicant had failed to cite any specific grounds for a cassation appeal, but had presented arguments essentially questioning the assessment of the evidence by the lower courts. The court recalled in this respect that it was not competent to re-examine the evidence in the case within the context of cassation proceedings. Nevertheless, the Supreme Court of Cassation considered the applicant’s arguments and stated the following:
“The factual findings of the Plovdiv Appellate Court are the result of a logical, comprehensive and objective analysis of the evidence.
...
It is wrongly speculated with the claim that the delivered [sentence] rests solely on the “response” of the accomplice, who has not appealed. The numerous evidence in the case, whose genuine substance has been correctly assessed, is in conformity with the confession of the accused Mr K. and there was no reason for the lower courts not to [consider it accurate].
The assessment of the evidence by the court, competent to determinatively rule on the facts as a last instance, which is the [Appellate] Court, is objective, logical and correct. The [applicant] improperly demands from the third-instance court to draw different conclusions in respect of some of the witnesses’ testimonies (Mr A., Mr B. and Ms K.), powers which, considering the nature of cassation [proceedings], this court does not have.
Accordingly, the Supreme Court of Cassation considers that the facts established by the Plovdiv Appellate Court are not affected by the deficiencies claimed by [the applicant]. The findings of the court regarding [the applicant’s] decisive role in organising and perpetrating the felonious act are correct and there is no reason for “reconsidering” the case.”
2. The applicant’s pre-trial detention and his appeals against his detention
The applicant was arrested and placed in pre-trial detention on 15 October 1997 upon an order of an investigator, which was confirmed by a prosecutor later on the same day.
The parties have not provided details about the first year and a half of the applicant’s detention.
On 15 April 1999 the applicant appealed against his detention, claiming, inter alia, that it was no longer justified. The applicant maintained that there was no danger of him absconding. He claimed that if that was his intention he would already have done so as he had had sufficient forewarning that the authorities were actively investigating the murder. Purportedly, he had had ample time to abscond, if that had been his intention, between the time of the arrest of Mr K., the search of his home on 6 August 1997 and his arrest on 15 October 1997. Separately, the applicant maintained that there was no danger of him obstructing the investigation or re-offending. The appeal was heard by the Plovdiv Regional Court on 3 May 1999. On that day the applicant withdrew his appeal, because he was allegedly worried that these proceedings would delay the criminal proceedings, in which a hearing had been scheduled for 14 May 1999.
On 20 May 1999 a new appeal was filed by the applicant against his detention citing grounds similar to those in his previous appeal. On 31 May 1999 the applicant’s father passed away and he informed the court on 1 June 1999 of the additional circumstances for consideration when assessing the grounds of his appeal. A hearing of the appeal was set for 6 June 1999, but was postponed for 8 June 1999. The courts did not rule on the applicant’s appeal.
On 15 July 1999 the applicant filed another appeal against his detention reiterating his previous arguments. A specific reference was made to an alleged violation of the applicant’s rights under Article 5 §§ 3 and 4 of the Convention. A hearing date was set for 22 July 1999. The courts did not rule on the applicant’s appeal.
On 1 February 2000 the applicant was convicted and sentenced to a term of imprisonment. Upon appeal by the applicant, the judgment was quashed on 13 June 2000 and the case was remitted to the investigation stage.
The rehearing of the case started on 13 February 2001.
On 18 April 2001 the applicant allegedly filed a new appeal against his detention on grounds similar to those in his appeal of 15 July 1999. On 25 April 2001 the Plovdiv Regional Court dismissed the appeal. On 2 May 2001 the applicant appealed against the decision to the Plovdiv Appellate Court. He claimed that there could no longer be any danger that he might abscond, re-offend or hamper the investigation. He also inferred that there were indications in the criminal proceedings that there had been witness tampering by the prosecution. On an unspecified date the Plovdiv Appellate Court dismissed the applicant’s appeal.
On 9 July 2001 the applicant was convicted and sentenced to a term of imprisonment. The sentence was upheld on appeal and became final on 14 May 2002.
The Government have not provided copies of the relevant documents concerning the applicant’s appeals.
B. Relevant domestic law and practice
1. Grounds for pre-trial detention
(a) Before 1 January 2000
At the relevant time and until the reform of the CCP of 1 January 2000 detention pending trial was mandatory in cases where the charges concerned a serious intentional offence. Detention could only be dispensed with, as interpreted by the Supreme Court, when it was clear and beyond doubt that any danger of absconding or re-offending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May1992, case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995, case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995, case no. 768/95, II Chamber; Decision no. 24, case no. 268/95, I Chamber, Bulletin 1995, p. 149). In some other decisions, the Supreme Court nevertheless embarked on an analysis of the particular facts to justify findings that there existed a danger of absconding or of offending (Decision No. 76 of 25.07.1997, case no. 507/97 II Chamber, Bulletin no. 9‑10/97, p. 5; Decision no. 107 of 27.05.1998, case no. 257/98, II Chamber, Bulletin no. 3-4/98, p. 12).
The relevant domestic law and practice have been summarised in a number of judgments of the Court in several similar cases against Bulgaria (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999‑II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
(b) Since 1 January 2000
As of that date the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation).
The relevant part of the amended Section 152 provides:
“(1) Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment ... , where the material in the case discloses a real danger that the accused person may abscond or commit an offence.
(2) In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case:
1. in cases of special recidivism or repetition;
2. where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non-suspended sentence of not less than one year imprisonment;
3. where the charges concern an offence punishable by not less than ten years’ imprisonment or a heavier punishment.
(3) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence.”
It appears that divergent interpretations of the above provisions were observed in the initial period of their application, upon their entry into force on 1 January 2000.
In June 2002 the Supreme Court of Cassation clarified that the amended Section 152 excluded any possibility of a mandatory detention. In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities. The presumption under paragraph 2 of Section 152 was only a starting point of analysis and did not shift the burden of proof to the accused (TR 1-02 Supreme Court of Cassation).
2. Scope of judicial control on pre-trial detention
On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person’s absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see the Supreme Court’s cases cited above and the decisions of the domestic authorities criticised by the Court in the cases of Nikolova v. Bulgaria [GC], cited above, Ilijkov v. Bulgaria, cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).
In June 2002, interpreting the amended provisions on pre-trial detention, the Supreme Court of Cassation stated that when examining an appeal against pre-trial detention the courts’ task was not only to verify whether the initial decision on remand in custody had been lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including the amount of the recognisance as the case may be (TR 1‑02 Supreme Court of Cassation).
3. Appeals against detention at the trial stage of the proceedings
According to Section 304 § 1 of the Code of Criminal Procedure at the trial stage of the criminal proceedings the detainee’s requests for release are examined by the trial court. It follows from Section 304 §§ 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.
The trial court’s decision as regards a request for release is subject to appeal to the higher court (Section 344 § 3). The appeal must be lodged within a seven days’ time-limit (Section 345) with the trial court (Section 348 § 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.
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.
COMPLAINTS
1. The applicant complained under Article 5 § 1 (c) of the Convention that he was detained unlawfully. In particular, that the evidence against him at the time of his arrest was not sufficient to lead to the conclusion that he was guilty of an offence.
2. The applicant complained under Article 5 § 3 of the Convention that after he was arrested on 15 October 1997 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.
3. The applicant complained under Article 5 § 3 of the Convention that his detention was excessively lengthy and unjustified.
4. The applicant complained under Article 5 § 4 of the Convention that the domestic courts did not examine all factors relevant to the lawfulness of his detention. In addition, he claimed that his appeal of 15 April 1999 had been decided in violation of the requirement for a speedy decision and that the courts refused to hear his appeals of 20 May 1999 and 15 July 1999. In addition, relying on Article 13 of the Convention, the applicant complained that he did not have at his disposal an effective domestic remedy for his complaints under Article 5 of the Convention.
5. The applicant complained under Article 6 of the Convention that the criminal proceedings against him were unfair. In particular, he claimed that there had been witness tampering, that the courts had not properly evaluated the evidence before them and that they had failed to give sufficiently reasoned judgments.
THE LAW
A. Complaint under Article 5 § 1 (c) of the Convention that the applicant was unlawfully detained
The applicant complained under Article 5 § 1 (c) of the Convention that he was detained unlawfully and that the evidence against him was not sufficient to lead to the conclusion that he was guilty of an offence. In particular, he claimed that the authorities relied solely on the confession of his co-accused, who might simply have been vindictive towards him.
Article 5 § 1 of the Convention provides, insofar as relevant:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
The Court considers that the applicant’s detention fell within the ambit of Article 5 § 1 (c) of the Convention, as it was imposed for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence. There is nothing to indicate that the formalities required by domestic law were not observed.
As regards the alleged lack of reasonable suspicion, the Court recalls that the standard imposed by Article 5 § 1 (c) of the Convention does not presuppose the existence of sufficient evidence to bring charges, or find guilt, at the time of arrest. Facts which raise a suspicion need not be of the same level as those necessary to bring a charge (see O’Hara v. the United Kingdom, no. 37555/97, § 36, ECHR 2001‑X).
In the present case, the Court considers that the authorities had sufficient information at the time of arrest to ground a “reasonable” suspicion against the applicant, namely his co-accused, Mr K., had made a full confession and had identified the applicant as the person who had incited him to commit the murder. The applicant’s assertions, on the other hand, that Mr K. was vindictive and that the version of events presented by him was untrustworthy and unreliable have not been substantiated.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 5 § 3 of the Convention that the applicant was not brought promptly before a judge
The applicant complained under Article 5 § 3 of the Convention that when he was arrested on 15 October 1997 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power
The relevant part of Article 5 § 3 of the Convention reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power...”
The Court notes that from the parties’ submissions it is unclear whether court hearings were held before 4 February 1998 when the applicant was brought before a judge. The six-month period therefore started to run not later than on that date, for the purposes of Article 35 § 1 of the Convention (see, among others, Hristov v. Bulgaria (dec.), no. 35436/97, 19 September 2000). The applicant introduced his first letter with the Court on 17 June 1999.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Complaint under Article 5 § 3 of the Convention that the applicant’s detention was excessively lengthy and unjustified
The applicant complained under Article 5 § 3 of the Convention that his detention was excessively lengthy and unjustified.
The relevant part of Article 5 § 3 of the Convention 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.”
The Government maintained that the grounds for the applicant’s continued detention were sufficient and relevant, and that the proceedings were not unreasonably delayed.
The Government contended that the investigation authorities, and subsequently the courts, had taken into account the existence of the requisite factual grounds for imposing and maintaining the applicant’s detention. In particular, the existence of sufficient evidence that he had committed the offence and the lack of prerequisites excluding the probability that he may abscond, re-offend or hamper the investigation.
Furthermore, the Government maintained that at all times the judicial authorities considered all the relevant circumstances while respecting the presumption of innocence towards the applicant. They contended that the extremely grave offence with which he had been charged should also be taken into consideration.
The applicant did not reply to the Government’s observations in respect of this complaint.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
D. Complaints under Article 5 § 4 of the Convention
The applicant complained that the domestic courts did not examine all factors relevant to the lawfulness of his detention. In addition, he claimed that his appeal of 15 April 1999 had been decided in violation of the requirement for a speedy decision and that the courts refused to hear his appeals of 20 May 1999 and 15 July 1999.
Article 5 § 4 of the Convention provides the following:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government made no separate observations on this complaint. In their submissions under Article 5 § 3 of the Convention, they stated that the courts had taken into account the existence of the requisite factual grounds for maintaining the applicant’s detention. In particular, the existence of sufficient evidence that he had committed the offence and the lack of prerequisites excluding the probability that he may abscond, re-offend or hamper the investigation.
The applicant submitted that the appeal of 15 April 1999 had not been heard by the domestic courts for more than nineteen days before he withdrew it on 4 May 1999. He also contended that the courts failed to rule on his appeals of 20 May 1999, 1 June 1999, 15 July 1999 and 18 April 2001. Accordingly, the applicant submitted that the guarantee envisaged under Article 5 § 4 of the Convention of the right of judicial control on the lawfulness of his continued detention was breached by the domestic courts failure to rule on said appeals.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
E. Complaint under Article 6 of the Convention about the fairness of the criminal proceedings
The applicant complained under Article 6 of the Convention that the criminal proceedings against him were unfair. In particular, he claimed that there had been witness tampering, that the courts had not properly evaluated the evidence before them and that they had failed to give sufficiently reasoned judgments.
Article 6 § 1 of the Convention provides, insofar as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government submitted that the right of the applicant to a fair trial had not been violated and that the judgements of the domestic courts were well motivated and reasoned. They contended that the courts delivered their respective judgments after having analysed all the evidence before them.
In respect of the domestic courts’ alleged failure to objectively assess the testimony of the witness Mr D., given at the hearing of 21 may 2001, the Government contended that said testimony had no bearing on the outcome of the proceedings and referred to the substance of witness’s statement (see, above, part A.1.(e). of The Facts).
The Government referred to the domestic courts’ judgments and stated that they had answered all arguments of the applicant now before the Court. Furthermore, they contended that the domestic courts had delivered their judgments after having undertaken objective, comprehensive and complete assessments of all the evidence in the case, that the guilt of the applicant had been proven in a decisive manner and that the applicant’s assertions that the court’s judgments were unjust have not been substantiated.
The applicant replied that the domestic courts, despite the evidence before them, refused to examine and assess whether the evidence collected at the investigation stage of the proceedings was lawfully gathered. He considered that the domestic courts wrongly based their conclusions on the testimonies of his co-accused and the witnesses Mr A. and Mr Kr. The applicant also claimed that the testimony of Mr D. had shown that there had been violations in how the preliminary investigation had been conducted. The applicant further argued that the inadequacies in the witnesses’ testimonies had not been adequately addressed by the domestic courts.
The applicant also argued that a number of arguments raised by him before the second and third instance courts were never examined. He considered, therefore, that the courts had failed to give reasoned judgments.
The Court notes at the outset that the applicant essentially calls into question the manner in which the courts assessed evidence pointing to his guilt. It recalls its established principle that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, was fair (see, among other authorities, Laukkanen and Manninen v. Finland, no. 50230/99, § 33, 3 February 2004).
The Court observes that the domestic courts based their findings on the detailed confession of the applicant’s co-accused and the numerous witness testimonies and experts’ opinions, which corroborated it. The Court finds no indication that the applicant was prevented from properly arguing his case or from submitting his arguments to the courts, the more so as he was represented by counsel at all stages of the criminal proceedings.
The factual and legal reasons for the courts’ judgments were set out at considerable length and detailed description was made of the reasoning on which the courts relied when making their findings that the applicant had been instrumental in planning and perpetrating the offence. The applicant did not adduce any other evidence capable of casting doubt on the courts’ findings in this respect. His inferences of possible widespread witness tampering were unsubstantiated. Furthermore, the domestic courts did not rely on the testimony of Mr D. who claimed to have been forced to testify against the applicant.
In these circumstances, the Court does not find that the national courts’ approach to the evidence was contrary to the requirements of Article 6 of the Convention.
Moreover, the Court recalls that it is not its function to substitute its own assessment of the facts and evidence for that of the national courts or to act as a court of appeal (see, among many other examples, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34). Accordingly, it is not for this Court to challenge the conclusions of the domestic courts which based on the evidence before them reached a finding of guilty in respect of the accused. Their findings do not appear arbitrary.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning
– the length of, and justification for, his pre-trial detention (Article 5 § 3), and
– the alleged limited scope, or lack, of judicial review of the lawfulness of his detention (Article 5 § 4).
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy