STOITCHKOV AND SHINDAROV v. BULGARIA



                     AS TO THE ADMISSIBILITY OF

      Application No. 24571/94        Application No. 24572/94

      by Grigor STOITCHKOV            by Lubomir SHINDAROV

      against Bulgaria                against Bulgaria

      The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the applications introduced on 14 March 1994 by

Grigor Stoitchkov and Lubomir Shindarov against Bulgaria and registered

on 8 July 1994 under file Nos. 24571/94 and 24572/94;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case as submitted by the applicants may be

summarised as follows.

      The first applicant, born in 1926, was Deputy Prime Minister of

Bulgaria from 1978 until 1989.    The second applicant, born in 1920

was Deputy Minister of Public Health from 1981 until 1989.  The

applicants are Bulgarian citizens, currently retired. Before the

Commission the first applicant is represented by Mr. Eniu Komitov, and

the second applicant by Mr. Georgi Varbanov, lawyers practising in

Sofia.

Particular circumstances of the case

Preliminary investigations

      In 1990 the Prosecutor General's Office brought charges against

the applicants for failure to undertake the necessary protection

measures against the effects of nuclear radiation, which had permeated

into Bulgaria following the accident in the Chernobyl nuclear power

station on 26 April 1986.  At the time of the accident the first

applicant was Chairman of the Standing Governmental Committee against

Natural Calamities and Severe Industrial Accidents, the second

applicant was Chief State Sanitary Inspector of Bulgaria and also

professor and researcher in medicine.

      During the preliminary investigations documentary evidence was

collected, witnesses were examined, and a group of leading national

experts in medicine and a nuclear physicist submitted two reports.

      On 22 February 1991 the Prosecutor General's Office indicted the

applicants.  According to the bill of indictment in 1986 and 1987 the

applicants had failed to take adequate measures required by their

respective positions despite having been regularly informed by experts

about the radiation level and its medical consequences.

      The applicants were indicted under Section 356z of the Criminal

Code for violating existing rules for nuclear safety (see below

Relevant domestic law).  The indictment listed further provisions

breached by the applicants such as the Law on the Peaceful Use of

Nuclear Power, the Regulation on Nuclear Safety, the Regulation on

Urgent Measures in Cases of Natural Calamities and Severe Industrial

Accidents, the Law on the Public Health, and the Regulations for the

Application of the Law on the Public Health.

      The first applicant was also charged under Section 356i of the

Criminal Code in connection with the economic losses which had occurred

allegedly as a result of his behaviour (see below Relevant domestic

law).

First instance proceedings

      The Supreme Court, sitting as a court of first instance, held

several hearings on the case, during which it heard experts and

witnesses and examined other evidence. At the hearing on 15 April 1991

the applicants' lawyers requested that the Court should appoint an

international expert group of representatives of the International

Atomic Energy Agency.  The Court declined the request and instead

appointed another group of national experts.

      On 12 December 1991 the Supreme Court sentenced the first

applicant to three years' imprisonment and the second applicant to two

years' imprisonment.  The Supreme Court found the applicants guilty on

the grounds and under the provisions referred to in the indictment.

The reasoning part of the judgment stated inter alia that the first

applicant "by virtue of his inactivity had breached Section 4 of Part

II, Sections 5 and 6 of Part VII as such and in their functional link

with the other provisions of the 1972 Regulation on Nuclear Safety, for

example Section 4 of Part VI and Section 2 of Part VII."

Second instance proceedings

      Upon the applicants' and the Prosecutor's appeals, the Chamber

of the Supreme Court, sitting as a court of second instance, examined

the case.

      In the course of the proceedings, on 11 December 1992 the Council

of Ministers adopted a new Regulation on Nuclear Protection, which

replaced the 1972 Regulation on Nuclear Safety.

      On 16 September 1993 the Court quashed the first applicant's

conviction insofar as it concerned the crime under Section 356i of the

Criminal Code and returned this part of the case to the Prosecutor

General's Office.  The Court found that the first instance Court had

breached the first applicant's defence rights by declining the request

of the defence for additional questions to the experts in connection

with the assessment of the alleged economic losses.

      On the other hand the Chamber of the Supreme Court upheld the

applicants' conviction under Section 356z of the Criminal Code, though

it modified the reasons therefor as the first instance Court had

incorrectly examined the applicants' acts under various provisions of

different laws and regulations.  Some of those provisions were

inapplicable as they could not be considered "rules for nuclear safety"

within the meaning of Section 356z of the Criminal Code.  Others did

not directly concern the applicants' behaviour.  Instead, it had been

necessary and sufficient to examine whether Section 2 Part VII of the

Regulation on Nuclear Safety had been breached.  The crime which the

applicants had committed was still that under Section 356z of the

Criminal Code, but in conjunction only with Section 2 Part VII of the

Regulation on Nuclear Safety.  Although this specific provision had not

served as ground for either the indictment or the first instance

judgment, the modification of the judgment did not impede the

applicants' defence rights and the case did not have to be returned to

the Prosecutor General's Office.  This was so because there was no

change in the facts on which the conviction had been based and also

because Section 2 Part VII of the Regulation on Nuclear Safety was in

fact a general summary rule for nuclear safety, which embodied the

various provisions invoked in the indictment and the first instance

decision.  The applicants had had the opportunity to discuss in their

pleadings the issues relating to the breach of Section 2 Part VII of

the Regulation on Nuclear Safety and they had in fact done so.

      The Chamber of the Supreme Court also discussed the applicants'

argument that certain paragraphs in the first instance judgment

disclosed political bias.  The Court found that the judgment had always

referred to, and had based its conclusions on, an analysis of the

applicants' behaviour during the relevant period of time, not on their

political beliefs.  The Court also dismissed as unsubstantiated the

applicants' assertion that the purpose of the trial had been political.

The applicants' sole argument had been that they had been randomly

chosen to stand trial among many other former officials, equally

involved in the events at issue.

      As a result of this judgment the first applicant's punishment was

reduced to two years' imprisonment.  The second applicant's term of

imprisonment remained unchanged.

Review proceedings

      The applicants submitted petitions for review before the Penal

Plenary of the Supreme Court in accordance with Section 350 of the Code

of Criminal Procedure (see below Relevant domestic law), alleging inter

alia that the modification of the judgment by the second instance Court

had violated their defence rights and that the Court should have

applied the new Regulation on Nuclear Safety, adopted in 1992, which

contained different rules.

      On 1 October 1993, upon the applicants' petition, the Supreme

Court temporarily suspended the execution of their sentences in view

of the complexity of the case.

      On 6 July 1994, after several hearings, the Penal Plenary of the

Supreme Court upheld the applicants' convictions and also decided to

release the second applicant on probation in view of his age and

health.

      In response to the applicants' argument concerning the revised

reasoning in the second instance judgment, the Court stated that

throughout the proceedings the applicants had been on trial for the

same crime and based on facts for the breach of the same general rule

for nuclear safety, namely the rule that the exposure of the population

to nuclear radiation should be as low as reasonably achievable.  This

had not changed simply because the indictment and the first instance

judgment had referred to various specific elaborate rules, whereas the

second instance Court had chosen to point to the provision containing

the general rule.  Moreover, the applicants had built their defence on

challenging the applicability of precisely this general rule by stating

that it had been merely a scientific theory and not a legally binding

rule.  Therefore, and since no new facts had served as grounds for the

conviction, the Court found that there had been no violation of the

applicants' defence rights.

      Addressing the applicants' complaint that the new Regulation for

Nuclear Protection should have been applied, the Court found that the

1992 Regulation was even less favourable for the applicants and

therefore the case did not fall under Section 2 para. 2 of the Criminal

Code, which provided for the application of the more favourable

provision, had the law been changed before the judgment's entry into

force.  Moreover, the rule of Section 2 Part VII of the old Regulation

was reiterated in the 1992 Regulation albeit in a different wording.

      In a dissenting opinion, the minority stated inter alia, that the

modification of the grounds for the sentence had been in violation of

the applicants' defence rights.  This was so because the second

instance Court had found that various provisions on nuclear safety,

referred to in the first instance judgment, had been inapplicable and

therefore the Court had in fact quashed the first instance judgment.

It was unlawful despite such findings to uphold the judgment and to

substitute completely its grounds.

Relevant domestic law

a.    Sections 356z and 356i of the Bulgarian Criminal Code, insofar

as relevant, state as follows:

      Section 356z

     "(1) Whoever breaches the rules for nuclear and radiation

safety, having knowingly disregarded the likelihood that bodily

harm or death might be caused to others, shall be punished with

imprisonment of up to three years."

     ..."

Section 356i

     "Where by virtue of a crime under [Section 356z], as a

result of a negligent conduct:

     a) there has been substantial pecuniary damage;

     ...

the punishment shall be: under subpara. (a), imprisonment of up

to five years; ..."

Chlen 356z

     "(1) Koito narushi pravilata za iadrenata ili

radiatsionnata bezopasnost, kato dopuska, che mozhe da posledva

telesna povreda ili smurt na drugigo, se nakazva s lishavane ot

svoboda do tri godini.

     ..."

Chlen 356i

     "Kogato s deianie po predhodnia chlen po nepredpazlivost

sa prichineni:

     a) znachitelni imushtestveni vredi;

     ...

nakazanieto e po bukva "a" - lishavane ot svoboda do pet godini;

..."

b.    The Code of Criminal Procedure, which defines the Supreme Court

powers in the review proceedings, states insofar as relevant:

Section 328

"The judgment shall be modified or set aside:

      1.   whenever it is contrary to the law;

      2.   whenever substantial breaches of procedural law have

           occurred;

      3.   whenever there has been deficiency of proof;

      4.   whenever it is ill-founded;

      5.   whenever the punishment imposed is manifestly unfair."

Section 349

"(1)  Review proceedings shall be admissible for the examination of:

      1. conviction judgments, which have entered into force;

      2. decisions for termination of the criminal proceedings ...;

      3. second instance judgments ...;

..."

Section 350

"Review proceedings shall be instituted upon the petition of the

convicted ..."

Section 356

"Review proceedings shall be admissible in the case of substantial

breaches under Section 328."

Section 357

"(1)  Should it find the petition for review well founded, the review

court shall either:

1. set aside the first and the second instance judgments and return the

case for renewed examination;

2. set aside the first and the second instance judgments and suspend

or terminate the proceedings;

3. set aside the second instance judgments and uphold or modify the

first instance judgment;

4. modify the second instance judgment.

..."

Chlen 328

"Prisadata podlezhi na otmeniavane ili izmeniavane:

1. kogato e narushen zakonat;

2. kogato e dopusnato sashtestveno narushenie na protsesualnite

pravila;

3. kogato e postanovena pri nepalnota na dokazatelstvata;

4. kogato ne e obosnovana;

5. kogato nalozhenoto nakazanie e iavno nespravedlivo."

Chlen 349

"(1) Na pregled po reda na nadzora podlezhat:

1. vlezlite v sila prisadi;

2. vlezlite v sila opredelenia, s koito se prekratiava nakazatelnoto

presledvane ...;

3. resheniata na vtorata instantsia ...

..."

Chlen 350

"Proizvodstvoto za pregled po reda na nadzora se obrazuva po molba na

osadenia ..."

Chlen 356

"Pregled po reda na nadzora se dopuska pri osobeno sashtestveni

narushenia po chlen 328."

Chlen 357

"(1) Kogato nameri predlozhenieto za pregled po reda na nadzora za

osnovatelno, nadzornata instantsia mozhe:

1. da otmeni prisadata na parvata instantsia i reshenieto na vtorata

instantsia i da varne deloto za novo razglezhdane;

2. da otmeni prisadata na parvata instantsia i reshenieto na vtorata

instantsia i da prekrati ili spre nakazatelnoto proizvodstvo;

3. da otmeni reshenieto na vtorata instantsia i da ostavi v sila ili

izmeni prisadata;

4. da izmeni reshenieto na vtorata instantsia.

..."

COMPLAINTS

      The applicants complain of the alleged unfairness of the criminal

proceedings, of violations of their defence rights and of the alleged

partiality of the courts.  Thus they were convicted for the violation

of a provision which had not been brought against them prior to the

decision of the second instance court.  Moreover, they were convicted

for the violation of a regulation which had been replaced by new

legislation in the course of the second instance proceedings.  The

applicants further complain that the first instance court rejected

their request for the appointment of an international expert group,

such international participation having been essential in view of the

complexity of the case and the partiality of the national experts.  The

applicants invoke Article 6 paras. 1 and 3(a),(b) and (c) of the

Convention.

      The applicants submit that numerous phrases in the judicial

decisions indicate political bias against them.  Moreover, during the

trial there were demonstrations before the court and a campaign in the

media, which made the proceedings political.  In this respect Article

14 of the Convention in conjunction with Article 6 has been violated.

THE LAW

1.    The applicants complain under Article 6 paras. 1 and 3 (a),(b)

and (c) (Art. 6-1, 6-3-a, 6-3-b, 6-3-c) of the Convention of the

alleged unfairness of the criminal proceedings, of violations of their

right to prepare their defence and of the alleged partiality of the

courts.  They also complain under Article 14 in conjunction with

Article 6 (Art. 14+6) of the Convention of the alleged discrimination

on political grounds.  Article 6 paras. 1 and 3(a),(b) and (c) (Art.

6-1, 6-3-a, 6-3-b, 6-3-c) of the Convention, insofar as relevant, state

as follows:

      "1.  In the determination of ... any criminal charge against him,

      everyone is entitled to a fair ... hearing ... by an independent

and   impartial tribunal ...

      ...

      3.   Everyone charged with a criminal offence has the following

      minimum rights:

           a. to be informed promptly ... and in detail, of the nature

              and cause of the accusation against him;

           b. to have adequate time and facilities for the preparation

              of his defence;

           c. to defend himself in person or through legal assistance

              of his own choosing ..."

2.    The Commission, having regard to the similarities of the

applications, finds it convenient to join them in accordance with Rule

35 of its Rules of Procedure.

3.    The Commission has first examined its competence ratione temporis

and ratione materiae in the present case.

a)    The Commission recalls that the Convention has entered into force

in respect of Bulgaria on 7 September 1992, and in accordance with the

generally recognised principles of international law, the Commission

is only competent to examine complaints against violations of the

Convention by virtue of acts, facts or decisions that have occurred

after that date.  Insofar as the applicants' complaints relate to a

period of time prior to 7 September 1992, the Commission finds that

this part of the applications is outside its competence ratione

temporis and therefore incompatible with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

      Nevertheless, the Commission recalls its case-law according to

which "when the Commission's competence (ratione temporis) begin in the

course of proceedings before a second instance, it may examine such

proceedings, but not those at first instance" (No.8261/78, D.R. 18

p.150) and "where a court delivers a judgment after the entry into

force of the Convention in respect of the State in question, the

Commission is competent ratione temporis to ensure that the proceedings

which this judgment concluded complied with the Convention, because

proceedings conducted before a court are concluded by the final

decision, which embodies any defects by which they may be affected."

(No.9453/81, Dec. 13.12.82, D.R. 31 p.204).

      Noting that the second instance decision in the instant case was

delivered on 16 September 1993, i.e. after the Convention's entry into

force in respect of Bulgaria, the Commission finds that it is competent

ratione temporis to examine the second instance proceedings ending with

the decision of the Chamber of the Supreme Court of 16 September 1993.

b)    The Commission must next examine whether the review proceedings

before the Penal Plenary of the Supreme Court, ending with the judgment

of 6 July 1994, fall within the scope of Article 6 (Art. 6) of the

Convention.

      The Commission notes that it was within the powers of the Penal

Plenary of the Supreme Court to examine, and in fact it did examine,

whether the first and second instance judgments were contrary to the

law or ill-founded, whether there had been a substantial breach of

procedure or whether the punishment had been manifestly unfair.  The

Penal Plenary of the Supreme Court in the review proceedings was

competent to quash the judgments of the Supreme Court and of the

Chamber of the Supreme Court or, as it happened, to uphold them.

      In the Commission's view these proceedings must therefore also

be regarded as having the effect of determining the criminal charges

against the applicants within the meaning of Article 6 para.1

(Art. 6-1) of the Convention.

4.    The applicants complain under Article 6 paras. 1 and 3 (Art. 6-1,

6-3) of the Convention that they were convicted for the violation of

a provision which had not been brought against them prior to the

decision of the second instance court.

       As the requirements of paragraph 3 of Article 6 (Art. 6-3) are

to be seen as particular aspects of the right to a fair trial

guaranteed by paragraph 1 (Art. 6-1), the Commission will examine the

complaints under both paragraphs taken together (cf. F.C.B. v. Italy

judgment of 28 August 1991, Series A no. 208-B, p. 20, para. 29).

      The Commission recalls its case-law according to which an accused

person has the right to be informed not only of the grounds for the

accusation, that is, not only of the acts with which he is charged and

on which the indictment is based, but also of the nature of the

accusation, namely the legal classification of the acts in question.

In addition, because of the logical link between subparagraphs 3(a),

(b) and (c) of Article 6 (Art. 6-3-a, 6-3-b, 6-3-c), the information

about the nature and cause of the accusation must be adequate to enable

the accused to prepare his defence accordingly (No.524/59, Dec.

19.12.60, Yearbook 3 pp.322, 344; No 8490/79, Dec. 12.3.81, D.R. 22

p.140). In the present case the question arises whether there had been

a change in the nature of the accusation and if so, whether the

applicants had been able to defend themselves against it.

      The Commission notes that throughout the proceedings the

applicants were accused under the same provision of the Criminal Code,

namely Section 356z.  In the indictment and in the first instance

judgment, the conclusion that the applicants' acts constituted a

violation of Section 356z resulted from an analysis of numerous

provisions from several laws and regulations such as the Law on

Peaceful Use of Nuclear Power, the Law on Public Health, the Regulation

on Nuclear Safety, the Regulation on Urgent Measures in Cases of

Natural Calamities and Severe Industrial Accidents.  The Chamber of the

Supreme Court, acting as second instance court, based the reasoning of

its judgment on only one provision, namely Section 2 Part VII of the

Regulation on Nuclear Safety, which had been mentioned in, but not

stated as a ground for, the first instance judgment.

      Furthermore, the Chamber of the Supreme Court and the Penal

Plenary of the Supreme Court in the review proceedings found that

Section 2 Part VII was a general rule embodying various specific rules

for nuclear safety, among them those which had been the grounds for the

indictment and the first instance judgment.  Furthermore, the

indictment and the first instance judgment in its 77 pages, discussed

in their reasoning parts numerous departmental regulations and chose

to state as grounds for their final conclusions only part of them.

Notably Section 2 Part VII of the Regulation on Nuclear Safety was

among the provisions discussed in the reasoning part of the first

instance judgment.

      Throughout the proceedings, moreover, the applicants' lawyers

founded their submissions inter alia on the statement that all rules

for nuclear safety and above all the general rule for nuclear safety,

which was that embodied in Section 2 Part VII of the Regulation on

Nuclear Safety, had merely been the expression of a scientific theory,

and therefore not applicable as binding legal rules. In addition, the

applicants presented all their arguments against the application of

Section 2 Part VII in the review proceedings, where the Penal Plenary

of the Supreme Court examined inter alia whether the judgments under

review were contrary to the law, ill-founded or proof deficient.  As

a result, the applicants could and in fact did defend themselves under

this provision.

      It follows that this part of the applications is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.    The applicants further complain under Article 6 (Art. 6) of the

Convention that the first instance court rejected their request for the

appointment of an international expert group and that all the judgments

in their case disclosed political bias.  They also invoke Article 14

in conjunction with Article 6 (Art. 6) stating that there had been

discrimination on political grounds against them and that the purpose

of their conviction had been political.

      Insofar as these complaints concern the preliminary investigation

and the first instance proceedings ending with the judgment of

12 December 1991, the Commission has just found that it is not

competent ratione temporis to examine this part of the complaints.

      As regards the remainder of the complaints under Article 6

(Art. 6) of the Convention, the Commission recalls that its task is to

ascertain whether the proceedings considered as a whole, including the

way in which evidence was taken, were fair  (see Eur. Court H.R.,

Windisch judgment of 27 September 1990, Series A no. 186, p. 10, para.

25).

      In the present case the Commission finds no indication that in

the second instance proceedings and in the review proceedings, the

applicants, who were represented by four lawyers, could not

sufficiently put forward their point of view, that the judges were

biased or that the proceedings were otherwise unfairly conducted.

Moreover, the judgments resulted from the analysis of evidence derived

from documents, testimonies of numerous witnesses and reports of

several groups of leading national experts.  The Courts addressed in

detail almost every objection of the applicants.  Furthermore, it does

not transpire that the judgments disclosed judicial prejudice toward

the applicants' political beliefs.

      As regards their complaints under Article 14 in conjunction with

Article 6 (Art. 14+6) of the Convention of the alleged discrimination

on political basis, the Commission has just found that there is no

appearance of a political bias in the present case.

      This conclusion is equally valid insofar as the applicants may

be understood as complaining under Article 18 in conjunction with

Article 5 subpara. (1)(a) (Art. 18+5-1-a) of the Convention in that the

purpose of their conviction had been political.

      It follows that this part of the applications is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

6.    The applicants also invoke Article 6 (Art. 6) of the Convention

in that they were convicted based on a provision of the Regulation on

Nuclear Safety, which had been replaced by new legislation in the

course of the second instance proceedings.

      The Commission, which has examined this complaint under Article

7 of the Convention, finds that the applicants had been prosecuted and

convicted under Section 356z of the Criminal Code, which had never been

amended.  Moreover, the departmental regulation at issue had been  in

force from 1972 until 1992, i.e. at the time when the criminal offence

was committed.  In any event, the penalty imposed on the applicants had

been reduced and mitigated, rather than increased by the second

instance and the review Courts.

      It follows that the remainder of the applications is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      1.   DECIDES TO JOIN APPLICATIONS Nos. 24571/94 AND 24572/94;

      2.   DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

      (M.F. BUQUICCHIO)                      (C.L. ROZAKIS)

 

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