FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42987/98
by Antim Todorov VACHEV
against Bulgaria
The European Court of Human Rights (First Section), sitting on 19 June 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrsF. Tulkens,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 26 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 Antim Todorov Vachev, is a Bulgarian national who was born in 1941 and lives in Teteven. He is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government are represented by Mrs G. Samaras, co-agent, 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 against the applicant
The applicant was the executive director of Elprom-EMT, a State-owned company, against which bankruptcy proceedings were opened in 1997.
On 14 May 1997 the Teteven District Prosecutor’s Office opened criminal proceedings against him, the deputy director of the company and a company employee.
On 3 June 1997 the applicant was charged with abuse of office and with making of false official documents, contrary to Articles 282 § 2 and 311 § 1 of the Criminal Code (“CC”). It was alleged that he, together with the deputy director, had abused his managerial position during the period April 1996 – March 1997 and had occasioned losses to the company in order to furnish a financial benefit to a private limited liability company in which his wife was a member. The alleged loss to Elprom-EMT amounted to 23,302,275 old Bulgarian levs (“BGL”). It was also alleged that, to facilitate that offence, the applicant had made false documents and had instigated the deputy director and a company employee to make false documents.
On 6 June 1997 a prosecutor of the Lovech Regional Prosecutor’s Office ordered the suspension of the applicant from his position of executive director, reasoning that the charges against him were for job-related offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office.
On 20 June 1997 the investigator in charge of the case ordered a financial expert report, which was assigned to two former employees of Elprom‑EMT.
On 4 August 1997 counsel for the applicant requested to be allowed to consult the case file. The request was granted on 10 August.
A graphological expert report ordered earlier was ready on 18 September 1997.
On 25 September 1997 the applicant was questioned. Counsel for the applicant requested to be allowed to inspect the case file. The investigator allowed them to consult certain documents but refused access to the whole file.
On 16 October 1997 the financial expert report ordered on 20 June 1997 was ready.
On 20 October and 25 November 1997 the investigator ordered expert reports on the prices of certain items relevant to the investigation.
On 10 December 1997 the applicant was questioned and was allowed, together with his counsel, to consult certain documents in the case file, including the expert reports.
On 29 December 1997 counsel for the applicant requested the disqualification of one of the experts who had prepared the financial expert report. They argued, inter alia, that one of the experts had been chief accountant of Elprom-EMT and had been disciplinarily dismissed by the applicant, which cast doubt on his objectivity. The request was denied.
It seems that most of the witnesses in the case were questioned on dates between June and December 1997.
On 10 February 1998 the applicant was questioned. The applicant’s request to be allowed to consult the case file was granted.
On 12 February 1998 counsel for the applicant again requested the disqualification of the experts who had prepared the financial expert report. They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of Elprom-EMT.
The same day the applicant was presented with the amended charges. The counts against him included aggravated embezzlement facilitated by making of false official documents (Article 202 in conjunction with Article 311 of the CC), embezzlement (Article 201 of the CC), abuse of office (Article 282 of the CC), deliberate entering into detrimental contracts on behalf of the company he was managing (Article 220 of the CC), and making of false official documents (Article 311 of the CC). It was charged that between March 1996 and February 1997 he, together with the deputy director of Elprom-EMT, had embezzled company assets amounting to BGL 4,833,264.54, for the commission of which offence he had made false official documents, that in June 1995 he had embezzled a trailer owned by Elprom-EMT, that between March 1996 and February 1997 he, together with the deputy director, had abused his office to furnish a financial benefit on a private company, that between August 1996 and January 1997 he, together with the deputy director, had deliberately made detrimental contracts between Elprom-EMT and the same private company to which he had furnished a financial benefit, and that in December 1994 he had made two false invoices amounting to 365,000 German marks.
After the charging the applicant was questioned in the presence of counsel. He refused to give explanations.
On 16 February 1998 the applicant and his counsel were allowed to consult the entire case file. The applicant objected to the expert reports and requested the disqualification of the experts. The investigator denied his requests and proposed to the prosecution that the applicant be indicted.
On 16 June 1998 counsel for the applicant requested that the case be remitted for additional investigation, arguing that that was necessary to rectify certain procedural violations.
On 9 July 1998 the Teteven District Prosecutor’s Office granted the request and referred the case back to the investigation. It held that the relevant circumstances about the relations between Elprom-EMT and the private company allegedly having benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences. It gave specific instructions as to the facts which had to be established. It further held that the applicant’s request for the disqualification of one of the experts who had prepared the financial expert report was well-founded, since the expert had been disciplinarily dismissed by the applicant and the applicant had good reasons to fear his lack of objectivity. It was hence necessary to prepare a new expert report. In addition, it held that it was necessary to charge the applicant anew, since the original presentation of the charges against him had not been specific enough.
On 4 November 1998 the investigator, complying with the instructions of the prosecution, commissioned a new expert report.
On 26 April 1999 the Teteven District Prosecutor’s Office, finding that the investigator in charge of the case had not carried out any of its instructions apart from commissioning an expert report, replaced him with a new one.
On 1 June 1999 the new investigator proposed to discontinue the case, reasoning that the charges against the applicant were not supported by sufficient evidence.
On 7 June 1999 the Teteven District Prosecutor’s Office rejected the proposal and referred the case back for additional investigation. It held that the evidence was not sufficient because the investigation had not been performed thoroughly.
On 9 June 1999 the investigator allowed the applicant to consult the case file.
On 13 June 1999 the expert report commissioned on 4 November 1998 was ready.
On 7 January 2000 counsel for the applicant informed the investigator that she would be unavailable until 18 January.
On 19 January 2000 the investigator charged the applicant anew. The allegations included, apart from the previous charges, a new charge under Article 219 of the CC (mismanagement resulting in loss for the company). After the charging the investigator questioned the applicant and allowed him and his counsel to consult the case file.
On 31 January 2000 the investigator recommended that the applicant be indicted solely under Article 219 of the CC.
On 14 February 2000 the Teteven District Prosecutor’s Office decided to discontinue the investigation in respect of the charges under Articles 202 (aggravated embezzlement), 282 (abuse of office) and 311 (making of false official documents) of the CC. On 23 March 2000 the Lovech Regional Prosecutor’s Office overturned that decision and referred the case back to the investigator. On appeal by the investigator on 6 April 2000 the Veliko Tarnovo Appellate Prosecutor’s Office affirmed the overturning.
On 12 May 2000 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC. Its decision was overturned by the Veliko Tarnovo Appellate Prosecutor’s Office on 21 July 2000 and the case was referred back to the Lovech Regional Prosecutor’s Office with instructions to carry out certain investigative steps (inter alia, to order an expert report) and elucidate certain facts relating to transactions carried out by Elprom-EMT in 1996‑97.
On 4 August 2000, when the case was back at the investigation stage, the investigator ordered an additional expert report.
On 12 June 2001 the investigator allowed the applicant and his counsel to consult the case file.
On 19 June 2001 the investigator recommended that the applicant be indicted under Articles 219 (mismanagement resulting in loss), and 311 (making of false official documents) of the CC.
On 20 July 2001 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC and to transfer the case to the Teteven District Prosecutor’s Office for continuation of the proceedings under the remaining charges.
On 5 September 2001 the Teteven District Prosecutor’s Office remitted the case for additional investigation, holding that the investigative steps carried out up till then had not established all relevant circumstances.
On 24 September 2001 the investigator ordered a new expert report, assigning it to new experts.
It seems that the proceedings are still pending at the investigation stage.
2. The applicant’s house arrest
On 3 June 1997 the applicant was put under house arrest by an investigator who saw him in person and questioned him.
On 12 June 1997 the applicant lodged with the Teteven District Prosecutor’s Office a request to be released on bail. He argued, inter alia, that there was no danger of him fleeing or obstructing the investigation, especially if account was taken of the fact that he had been removed from office.
On 16 June 1997 the Teteven District Prosecutor’s Office denied the applicant’s request. It held that the seriousness of the alleged offence, corroborated by the evidence collected thus far, and the early stage of the investigation warranted that the applicant be kept under house arrest. In particular, it was striking that the State-owned company managed by the applicant ran into financial troubles exactly at the time when the alleged offence had been committed. It was true that the applicant’s removing from office diminished his capability to jeopardise the investigation. Nevertheless, it did not prevent him from entering into contact with employees of Elprom-EMT – his former subordinates and potential witnesses – and suborning them, and from visiting the company’s premises. Only his house arrest constituted sufficient safeguard against that eventuality. Also, the applicant’s financial means and good international connections indicated that he might easily abscond.
On 19 June 1997 the applicant appealed to the Lovech Regional Prosecutor’s Office, reiterating his arguments. The appeal was dismissed by order of 8 July 1997.
On 16 July 1997 the applicant appealed to the Chief Prosecutor’s Office.
On 3 September 1997 the Chief Prosecutor’s Office dismissed the appeal. It held that there was information about the applicant attempting to suborn employees of Elprom-EMT and that a forensic expertise and the questioning of other witnesses were impending.
On 16 September 1997 the applicant lodged an appeal with the Head of the Investigations Division of the Chief Prosecutor’s Office. In addition to his previous arguments, he asserted that the allegations of his suborning witnesses were completely unfounded and that his close links with his family made it unlikely for him to abscond.
On 31 October 1997 the Head of the Investigations Division dismissed the appeal, holding that there had been no change in the circumstances.
In the meantime, on 7 August and 2 September 1997, the Teteven District Prosecutor’s Office denied two requests by the applicant to be allowed to leave his home for one day, to attend a village feast and a meeting of the board of directors of a company whose member he was.
A request by the applicant to be allowed to leave his home for one day to attend a solemn session of the municipal council, of which he was member, followed by a concert and a cocktail, was denied on 29 October 1997. The Teteven District Prosecutor’s Office noted that the investigation was in its final stage, with the questioning of the last group of witnesses impending. The applicant could easily contact such witnesses during the event and try to influence them.
On 12 November 1997 the Teteven District Prosecutor’s Office allowed the applicant to leave his home for one day to attend a session of the municipal council, at which measures for the restructuring and the financial recovery of Elprom-EMT would be discussed. It held that the applicant’s presence would contribute to the session deliberations, and that although he could try to establish contacts with potential witnesses, strict adherence to the session’s agenda and control of his contacts before and the after the session would prevent that.
On 19 November 1997 the Teteven District Prosecutor’s Office denied an application for release by the applicant. It held that the investigation had not exceeded an unreasonable time and that there still remained witnesses to be questioned.
On 4 December 1997 the applicant submitted a new request for release on bail.
On 16 December 1997 the Teteven District Prosecutor’s Office granted bail, setting the amount at BGL 3,000,000. It found that the questioning of witnesses in the criminal case against the applicant was almost complete, that the applicant’s hitherto behaviour indicated that he was unlikely to flee, and that his removal from office reduced to minimum the risk of re-offending.
On an unspecified date in December 1997 the applicant paid the amount of the bail and was released from house arrest.
B. Relevant domestic law and practice
1. The offences with which the applicant was charged at the time of his placing under house arrest
Article 282 § 1 of the CC makes it an offence for a manager or an official to, inter alia, abuse his power or rights in order to provide a financial benefit to himself or another person, provided that this leads to non-negligible harmful consequences. Paragraph 2 of that Article provides that in cases where the offender is a high-ranking manager or official the offence is punishable by one to eight years’ imprisonment.
Article 311 § 1 of the CC makes it a offence for a manager or an official, while acting within the sphere of his duties, to make an official document containing false information or statements with a view to using it as proof of such information or statements. The offence is punishable by up to five years’ imprisonment.
2. House arrest
Under Article 146 of the Code of Criminal Procedure (“CCP”), a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecuted offence. One such measure is house arrest.
Article 147 of the CCP, as in force at the relevant time, provided that measures to secure appearance were intended to prevent the accused from fleeing, re-offending, or thwarting the establishing of the truth. When imposing a particular measure, the competent authority had to have regard to the dangerousness of the alleged offence, the evidence against the accused, his health, family status, profession, age, etc. (Article 147 § 2).
Article 151 of the CCP, as in force at the material time, defined house arrest as follows:
“House arrest shall consist of a prohibition for the accused to leave his home without permission by the respective organs.”
In its interpretative decision no. 10/1992, the Constitutional Court (решение № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обнародвано в ДВ брой 63 от 4 август 1992 г.) held as follows:
“... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].”
At the relevant time and until January 2000 house arrest at the pre-trial stage of criminal proceedings could be ordered by an investigator or by a prosecutor. The investigator or the prosecutor were not under an obligation to hear in person the accused when ordering house arrest.
At the relevant time the CCP did not provide for judicial review of house arrest. Thus, the only possibility for a person put under house arrest was to apply to a prosecutor who could order his release. If the prosecutor refused to release the person under house arrest, he or she could appeal to a higher prosecutor (Articles 181 and 182 of the CCP).
The CCP was amended with effect from 1 January 2000 and at present provides for full initial and subsequent judicial control of house arrest.
3. The Legal Status of Prosecutors and Investigators
A summary of the relevant law may be found in Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, pp. 3282‑83, §§ 66‑68).
4. Other relevant provisions of the CCP
Article 154 § 1, as worded at the relevant time, provided as follows:
“... the regional prosecutor may suspend the accused form office, in cases when the [alleged] offence has been committed in connection with the work [of the accused] and there are sufficient grounds to believe that the position of the accused will put obstacles to the objective, comprehensive, and full clarification of the circumstances of the case.”
5. Other relevant law
Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the court ... for unlawful:
1. pre-trial detention..., if [the detention order] has been overturned for lack of lawful grounds[.]”
6. Decision No. 1 of 1997 the Assembly of the Criminal Chambers of the Supreme Court of Cassation
On 21 March 1997 the Assembly of the Criminal Chambers of the Supreme Court of Cassation decided to request the Constitutional Court to rule on the compatibility of Article 152 of the CCP, governing detention on remand, with, inter alia, Article 5 of the Convention. It reasoned that the Convention was incorporated into Bulgarian law and that therefore any statutory rule should be in compliance with it. It also stated that when deciding cases before them the Bulgarian courts should take into account the case-law of the Court (определение № 1 от 21 март 1997 г. по н.д. № 1/1997 г. на ОСНК на ВКС, Бюлетин на ВКС и ВАС на РБ, кн. 3‑4, 1997 г., стр. 1).
COMPLAINTS
1. The applicant complained under Article 5 § 1 (c) of the Convention that he had been put under house arrest in the absence of reasonable suspicion that he had committed the offences alleged against him.
2. The applicant complained under Article 5 § 3 of the Convention that upon his placing under house arrest he had not been brought 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 house arrest had been unjustified and unreasonably lengthy.
4. The applicant complained under Article 5 § 4 of the Convention about the non-availability of judicial review of his house arrest.
5. The applicant submitted that he had had no effective means to enforce his right to compensation for unlawful arrest, in breach of Article 5 § 5 of the Convention.
6. In addition, the applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.
THE LAW
A. Complaint under Article 5 § 1 (c) of the Convention that there was no reasonable suspicion against the applicant at the time of his placing under house arrest
In respect of his complaint the applicant relied on Article 5 § 1 (c) of the Convention, which provides as follows:
“1. 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 Government submitted that the applicant’s house arrest had been imposed in full compliance with domestic law and the Convention. At the time of his placing under house arrest and his charging there had been sufficient reasons to believe that he had committed the offences alleged against him. The authorities had chosen to apply a more lenient measure than detention on remand. They had taken into account all relevant circumstances, including the possibility that the applicant might try to obstruct the investigation by influencing witnesses and destroying documents.
The applicant replied that the Government had not advanced a convincing explanation why they considered that the suspicion against him had been reasonable. They had merely stated that the conduct alleged against him fell within the ambit of the criminal law provisions on which the authorities had relied to put him under house arrest. What the Government had not shown, however, was that the information available to the authorities indicated to a reasonable degree that the applicant had in fact committed the alleged offences. In this respect, they had relied on the gravity of the charges against him, which, however, could not lead to a conclusion as to whether those charges were supported by sufficient evidence. Apparently the Government considered that it was enough to bring serious charges against a person to justify that person’s deprivation of liberty, regardless of whether the charges were borne out on the facts. The facts of the case indicated that throughout the period of the house arrest the prosecution authorities did not have any concrete information that a offence had been committed.
The Court emphasises that the “reasonable suspicion” test under Article 5 § 1 (c) of the Convention requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed an offence, though what may be regarded as reasonable will depend on all the circumstances of the case. Facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge (see O’Hara v. the United Kingdom, no. 37555/97, §§ 34 and 36, ECHR 2001‑X).
The Court notes that the authorities apparently had information that the State-owned company managed by the applicant had bestowed a pecuniary benefit to a private company owned by applicant’s relatives and had in the same time run into financial troubles. They relied on documentary evidence and witnesses’ statements. The applicant has not substantiated his complaint under Article 5 § 1 (c) and, in particular, has not shown that the authorities acted arbitrarily. The Court sees no reason to doubt that the suspicion against the applicant reached the level required by Article 5 § 1 (c) or that the purpose of his deprivation of liberty was to confirm or dispel that suspicion.
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 that upon the imposition of his house arrest the applicant was not brought before a judge or other officer authorised by law to exercise judicial power
The applicant contended that his house arrest, ordered by an investigator, had entailed a breach of Article 5 § 3 of the Convention, which reads in pertinent part:
“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 Government did not comment on this complaint.
Referring to the cases of Assenov and Others (cited above) and Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999-II), the applicant maintained that the investigator which had put him under house arrest and the prosecutors who had later upheld that measure could not be considered as “judge[s]” or “other officer[s] authorised by law to exercise judicial power“.
The Court considers 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.
C. Complaint under Article 5 § 3 that the applicant’s house arrest between June and December 1997 was unjustified and unreasonably lengthy
The applicant contended that his continued house arrest entailed a breach of Article 5 § 3, which reads, insofar as relevant:
“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. ...”
The Government maintained that the applicant’s house arrest had not exceeded a reasonable time. The authorities had relied on sufficient and relevant reasons to deny the applicant’s requests for release. Given the gravity of the charges against him, the authorities could legitimately presume that he would have an incentive to jeopardise the investigation. He had been the executive director of the company-victim of the alleged criminal activity, and, if free, he would have had the possibility to destroy incriminating documents. Also, the applicant had failed to substantiate his requests for release.
As to the authorities’ diligence, the Government pointed to the fact that most of the investigative steps had been performed at the time the applicant had been under house arrest.
The applicant replied that in all his requests for release he had averred that there was no danger of him fleeing or obstructing the investigation, especially if account was taken of the fact that he had been removed from office. He had also put forward arguments relating to his societal standing, health and advanced age. The prosecution authorities had stated that the offence with which he had been charged was a serious one and that there was a danger of him influencing witnesses. However, they had failed to substantiate this finding and had overlooked his other arguments. The applicant concluded that his detention was not grounded on relevant and sufficient reasons.
Under the Court’s case-law, the issue of whether a period of deprivation of liberty is reasonable cannot be assessed in abstracto but according to the special features of the case. In each case the Court must establish whether the grounds given by the authorities for the continued deprivation of liberty were “relevant” and “sufficient”. If that is the case, the Court must then ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152‑53, ECHR 2000‑IV).
The applicant was put under house arrest on 3 June 1997 and released on an unspecified date between 16 and 31 December 1997. His deprivation of liberty thus lasted approximately six and a half months.
The Court finds that when examining the applicant’s requests for release, the prosecution authorities found that if released he, being the former executive director of the company in respect of which he was investigated, could, notwithstanding the fact that he had been removed from office, easily try to suborn company employees which were due to testify. In this connection, the Court notes that the charges against the applicant concerned acts committed in concert with certain company employees, and that it was alleged that he had instigated them to make false documents, thus helping him to occasion losses to the company. It may therefore be concluded that the authorities’ concern that the applicant could influence witnesses was well-founded. The Court also takes into account the fact that in November 1997 the applicant was allowed to leave his home on one occasion. It is also noteworthy that once all witnesses had been questioned, the applicant was released.
The Court must also establish whether the proceedings were conducted with the requisite diligence during the relevant period. Noting that most witnesses were examined during that period and that no intervals of inactivity are observed, it finds that between June and December 1997 the investigation proceeded at a good pace.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaint under Article 5 § 4 of the Convention about the non-availability of judicial review of the applicant’s house arrest
The applicant alleged that he could not obtain judicial review of his house arrest, contrary to Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
1) The Government submitted that the applicant had failed to exhaust domestic remedies in respect of this complaint. They argued that according to the Bulgarian Constitution international treaties, including the Convention, were part of domestic law and took priority over the provisions of domestic law which went against them. More and more often the Bulgarian courts relied on the Convention in deciding the cases before them. As an example the Government cited decision No. 1 of 1997 of the Assembly of the Criminal Chambers of the Supreme Court of Cassation, in which it had decided to refer a provision of the CCP to the Constitutional Court, considering that it was contrary to Article 5 of the Convention. Given these facts, the applicant could have applied to a court, relying directly on the Convention. The court would have been obliged, by virtue of the Convention itself, to examine and rule on his application for release. Moreover, while the CCP was silent on the issue, there was no express prohibition of judicial review of house arrest.
The applicant argued that at the relevant time the CCP did not contain a procedure whereby a person could challenge his or her house arrest before a court. The national courts could not be expected to produce and apply a non-existent procedure to conform to the requirements of Article 5 § 4 of the Convention. It was true that the Convention was part of the domestic law of Bulgaria, but that did not make an application based directly on Article 5 § 4 en effective domestic remedy.
The Court finds that questions of exhaustion of domestic remedies in respect of complaints under Article 5 § 4 of the Convention are inevitably related to the merits of such complaints. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits and reserved for later consideration (see Öcalan v. Turkey (dec.), no. 46221/99, 14 December 2000, unreported).
2) The Government did not comment on the substance of the complaint.
The applicant submitted that during the period of his house arrest there had been no procedural possibility of judicial review of that arrest. Despite the Government’s assertion that the applicant could have relied on the direct applicability of the Convention in domestic law, it would have been unreasonable to expect the national courts to “produce” and apply a non-existing procedure, even though it could be argued that this was theoretically possible.
The Court considers 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. Complaint under Article 5 § 5 of the Convention about the alleged lack of an enforceable right to compensation
The applicant claimed that the impossibility to obtain compensation of the alleged breaches of the preceding paragraphs of Article 5 of the Convention was violative of paragraph 5 of the same Article, which provides:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
The Government did not comment on this complaint.
The applicant submitted that under Bulgarian law it was not possible to obtain compensation for deprivation of liberty which had violated the Convention but had been effected in accordance with the requirements of the CCP, which had been the case with his house arrest. He also submitted that the State Responsibility for Damage Act spoke only of pre-trial detention, which term referred to a specific kind of deprivation of liberty, remand in custody. As house arrest was a different kind of deprivation of liberty, it did not fall within the ambit of the Act.
The Court considers 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 § 1 of the Convention about the length of the criminal proceedings against the applicant
In respect of his complaint about the length of the criminal proceedings the applicant relied on Article 6 of the Convention which in its relevant part provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the proceedings had been complex, involving several different charges against different persons for continued criminal activity. The investigation authorities had questioned forty-seven witnesses coming from all parts of the country; some of those witnesses had to be questioned twice. Numerous other investigative steps had been carried out: complex forensic reports, collection of hundreds of documents, inspections, confrontations, etc. The complexity of the case was illustrated by the fact that the case file ran to 2022 sheets, bound in eight volumes.
As regards the conduct of the applicant, the Government submitted that he had failed to request the recusal of the experts who had prepared the financial expert report in a timely manner, thus making it necessary for the prosecutor to remit the case back to the investigation for the appointment of new experts. The remitting had also been necessary because the counsel retained by the applicant, being also counsel of Elprom-EMT in the bankruptcy proceedings against the company, had a potential conflict of interests and needed to be replaced.
As to the conduct of the authorities, the Government averred that they had acted diligently. In particular, the first phase of the proceedings had been completed within the statutory deadline of nine months. An important reason for the delay after 2001 had been the need to find a suitably qualified expert to prepare a forensic report needed for the purposes of the investigation. The authorities could not be blamed for the difficulties in finding such an expert in view of the specific field of expertise needed.
The applicant agreed that the case had been complex, but maintained that nevertheless the amount of time taken by the authorities to deal with it had been excessive, going far beyond the time-limits laid down in the CCP.
Concerning his conduct, the applicant submitted that he had requested the disqualification of the experts who had prepared the financial expert report quite early on, but that his requests had been denied. The only delay stemming from his conduct had been between 4 and 18 January 2000 and between 6 and 8 June 2001, when his counsel had been unavailable.
As to the conduct of the authorities, the applicant argued that the bulk of the delay had resulted from the poor co-ordination between the prosecution and the investigation. In particular, the prosecution had referred the case thrice back to the investigation. In one of those instances there had ensued a dispute as to whether some of the charges against the applicant should be dropped, which had consumed additional time to resolve. Also, the authorities had generally failed to display great diligence in dealing with the case. The Government’s argument that the preparation of the expert reports had been time-consuming was not very convincing because the investigator in charge of the case could have performed all other investigative steps while awaiting their preparation.
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.
For these reasons, the Court unanimously
Decides to join to the merits the question of the exhaustion of domestic remedies in respect of the applicant’s complaint about the non-availability of judicial review of his house arrest;
Declares admissible, without prejudging the merits, the applicant’s complaints concerning his right to be brought before a judge or another officer authorised by law to exercise judicial power, the non-availability of judicial review of his house arrest, the lack of an enforceable right to compensation for the alleged breaches of Article 5, and the length of the criminal proceedings against him;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy