YANKOV v. BULGARIA

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39084/97
by Todor Antimov YANKOV
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 11 May 2000 as a Chamber composed of

MrG. Ress, President,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić,
MrJ. Hedigan,
MrM. Pellonpää,
MrsS. Botoucharova, judges,

andMrV. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 17 December 1997 and registered on 22 December 1997,

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 deliberated, decides as follows:

THE FACTS

The applicant, Mr. Todor Yankov, is a Bulgarian national, born in 1943 and living in Plovdiv. He is represented before the Court by Mr Mihail Ekimdjiev, a lawyer practising in Plovdiv.

A.Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.The course of the criminal proceedings against the applicant

a.Preliminary investigation

The applicant was an executive director of an agricultural investment fund and a financial company.

In 1996 a preliminary investigation no. 300/96 was opened by the Plovdiv District Public Prosecutor against him and eight other persons in respect of a number of financial transactions. The applicant was charged under Article 282 §§ 2 and 3 of the Criminal Code (see Relevant domestic law) on suspicion that he had breached his professional duties with a view to obtaining an unlawful gain for himself and others. On an unspecified date another preliminary investigation, under file number 929/96, concerning charges of misappropriation of funds was opened against him. It appears that throughout the investigation there were several modifications of the charges.

On 14 March 1996 the investigator dismissed the request of the applicant’s lawyer to be present when investigations were being carried out on the ground that it would hamper the examination of the case. The applicant’s subsequent appeal was dismissed on 21 March 1996 by the Plovdiv District Public Prosecutor. On 27 March 1996 that decision was upheld by the Regional Public Prosecutor. On 29 April 1996 the Chief Public Prosecutor dismissed the applicant’s further appeal on the ground that under the Code of Criminal Procedure in order to ensure the confidentiality and effectiveness of the investigation an investigator could restrict a defence lawyer’s access to the investigation.

On 5 November 1996 the Regional Public Prosecutor dismissed the applicant’s motion to join the two pending preliminary investigations against him (nos. 300/96 and 929/96) on the ground that it would render the investigation more difficult. The applicant’s ensuing appeal was dismissed on 4 December 1996 by the Chief Public Prosecutor.

During the preliminary investigation the District Public Prosecutor and the investigator heard, inter alia, 9 accused persons and 47 witnesses and examined various financial and banking documents, payment orders, reports from searches of the premises and ballistic experts and a report of 12 February 1997 prepared by a handwriting expert. No further information is available concerning the course of the investigation.

b.The trial

The preliminary investigation in file no. 300/96 against the applicant and eight other co-accused was completed on an unspecified date between February and April 1997. An indictment was submitted to the District Court on 20 June 1997. The District Court listed a hearing for September 1997.

This first hearing took place between 17 and 27 September 1997. The court heard some of the witnesses, whereas others, albeit summoned, did not appear. The court decided that it needed to examine an expert’s report regarding the real value of the capital assets of the company of which the applicant was the executive director and adjourned the trial to 25 November 1997.

A further adjournment to 7 January 1998 was ordered as some of the witnesses who had been summoned did not appear and the expert’s report had not been finalised.

The trial resumed on 7 and 8 January 1998. The court adjourned the hearing as some summoned witnesses had not appeared and ordered an additional financial report.

The hearing in the applicant’s trial which had been scheduled for 9 April 1998 was adjourned to 6 July 1998 and then to 19 October 1998 due to the applicant’s ill health.

On 30 October 1998 the Plovdiv District Court found the applicant guilty of having ordered his company’s bank to effect money transfers abroad in violation of the relevant financial regulations according to which they could only be effected for payment of merchandise or another lawful aim. The Court found that the applicant had ordered money transfers on behalf of clients of his financial company whom he had not fully identified and had not presented valid documentary proof of the transfers’ purpose. He was also found guilty for having issued a proxy with wide ranging powers to Mr M., in breach of his duty as the manager of the financial company. The applicant was acquitted on the remainder of the charges against him and sentenced to five years’ imprisonment.

c.Appeal proceedings

On 19 November 1998 the applicant appealed against his conviction complaining, inter alia, that neither he nor his lawyers had had the opportunity to examine five witnesses who had been heard during the preliminary investigation.

On 6 December 1999 the Plovdiv Regional Court held its first hearing, which was adjourned to 13-17 March 2000, due to one of the co-appellant’s health problems.

2.The applicant’s detention

a.Detention pending trial

On 12 March 1996 the applicant was arrested in the framework of investigation no. 300/96, and detained pending trial.

On 18 March 1996 the applicant appealed against his pre-trial detention to the Plovdiv Regional Public Prosecutor. He alleged, inter alia, that the facts on which he was charged, account being taken of the banking and currency regulations as in force at the relevant time, did not constitute a criminal offence and that he was therefore charged unlawfully. He also alleged that there had been no danger of his absconding or committing further offences. On 27 March 1996 the appeal was dismissed by the Regional Public Prosecutor who, inter alia, said:

“The accused Yankov has been charged under Article 282 § 2 of the Criminal Code. According to Article 152 § 1 of that Code, pre-trial detention is mandatory if a person is charged with the above offence. The possibility not to impose pre-trial detention is to be considered by the preliminary investigation bodies only if, regard being had to the nature of the case and the particular circumstances relating to the accused, there is no danger that he might abscond, commit further offences, or obstruct the course of justice. 

Departing from the particular circumstances of the case, it appears that if Yankov is released, there is a danger that he might abscond, commit further offences or obstruct the course of justice. Therefore, his pre-trial detention should not be cancelled. It should be upheld. The preliminary investigation bodies do not have an obligation to set out the facts on the basis of which the above conclusions have been made.”

On 18 April 1996 the applicant requested the District Court to release him on the ground that the charges laid against him did not contain particulars of the alleged offence and that the provisions invoked were inapplicable as he was not an employee or an officer of the bank whose funds were at stake. The applicant has not provided further information of the examination of this appeal.

On 29 April 1996 a prosecutor from the Chief Public Prosecutor’s Office upheld the Regional Public Prosecutor’s decision of 27 March 1996 on the ground that the applicant might abscond, commit further offences or obstruct the course of justice. The decision stated, inter alia, that the existence of such danger was supported by the data gathered concerning the case and, in particular, by the fact that different persons who had received some funds from the applicant had left Bulgaria. The arguments of the applicant, based on an analysis of the relevant banking and currency regulations, that he had not committed a crime, were to be assessed only by the investigator and then in the process of examination of the criminal case on the merits. In any event, the fact that there existed loopholes in the legislation as in force at the relevant time did not empower managers to breach their professional duties with a view to obtaining unlawful gain for himself or others. On 11 September 1996 a further appeal was dismissed by a higher ranking prosecutor at the Chief Public Prosecutor’s Office on the ground that, as the preliminary investigation was still pending, there was a risk that the applicant would seek to obstruct the course of justice.

On 12 September 1996 the applicant submitted to the District Prosecutor’s Office another request for release. He stated, inter alia, that six months had already passed since he had first been put in pre-trial detention, that the fact that his lawyer was not allowed to take part in the investigation amounted to deprivation of his right to a defence, that the applicant had already been heard and that all the relevant investigating activities had been terminated. He also contested the length of the pre-trial detention which in his opinion amounted to the serving of sentence.

On 15 November 1996 the applicant requested to be examined by medical doctors as his health was deteriorating due to the long period of detention.

On 12 December 1996 the applicant lodged further applications for release with the District and the Chief Public Prosecutors alleging that the investigation had exceeded the statutory maximum period and that therefore his detention had become unlawful.

On 13 December 1996 the District Public Prosecutor dismissed the application on the ground that the time-limit within which an investigation had to be concluded was not an absolute one, that it could be extended if there was a need for further investigations, and that in any event it did not affect directly the lawfulness of the accused person’s detention. He also noted that the applicant had been charged with a serious intentional offence and that two preliminary investigations were pending against him. On 28 December 1996 the applicant complained to the Regional Public Prosecutor that his pre-trial detention was unlawful.

This complaint was dismissed on 30 January 1997 on the grounds that two preliminary investigations were pending against him for serious offences, which excluded the application of section 152 § 2 of the Code of Criminal Procedure. The detention of the accused person was thus obligatory. Moreover, the investigation no. 300/96 was progressing and was soon to be completed.

On 13 February 1997 the applicant complained against his pre-trial detention to the District Court, on the ground that the statutory maximum period for the investigation had been exceeded and that, the accusation being based on already examined documents, there was no danger of him tampering with evidence. In addition, although he had been questioned on several occasions prior to his arrest he had never attempted to abscond.

The application was submitted to the District Prosecutor’s Office which, according to the established practice, had to transmit it to the District Court together with the case-file. The lawyer mentioned, inter alia, that to his knowledge the investigator in the case had proposed to the prosecutor in charge to release the applicant. As of 25 February 1997, when he complained to the District Prosecutor’s Office, his appeal had not yet been transmitted to the court. It cannot be inferred from the applicant’s submissions what happened further with his judicial appeal against the alleged unlawfulness of his pre-trial detention.

On an unspecified date the applicant complained to the prosecution authorities that his pre-trial detention, as ordered in the framework of preliminary investigation no. 929/96, the second investigation pending against him, had been unlawful. He stated, inter alia, that the time-limit for the preliminary investigation had expired and that the other co-defendants had been released despite the fact that they were charged with more serious offences. On 11 March 1997 the Regional Public Prosecutor examined the above appeal and decided to terminate the applicant’s pre-trial detention, as ordered in the framework of investigation file no. 929/96, as the applicant was detained pending trial under the preliminary investigation no. 300/96. Therefore, there was no danger of his absconding, committing further offences or obstructing the course of justice. The prosecutor further found that since the preliminary investigation no. 929/96 had been stayed, to continue the applicant’s pre-trial detention would violate his rights. In addition, other co-defendants had already been released from the pre‑trial detention.

The applicant’s pre-trial detention ordered in the framework of the preliminary investigation no. 300/96 was extended on 23 April 1997 by the District Public Prosecutor.

On 24 and 26 March 1997 the applicant’s lawyer reiterated his request for a medical examination of his client. He stated that upon his visit on 21 March 1997 he had found Mr Yankov in an apparently bad state of health. It appears that a medical examination was undertaken on an unspecified date in the following weeks. On 9 April 1997 the applicant’s lawyer requested his release from the District Prosecutor’s Office invoking the conclusions of the examining doctors. The applicant has not enclosed a copy of the medical report.

On 23 April 1997 the District Prosecutor’s Office refused to release the applicant. She took into consideration the medical report, which apparently concluded that the applicant suffered from high blood pressure, arterio-sclerosis, a kidney stone, diabetes, problems with his lungs and with the prostate, problems with the brains’ blood vessels and depression. The prosecutor found, after examining the treatment prescribed by the doctor, that the applicant could be treated in a pre-trial detention facility with a moderate risk for his health and that his state of health should be carefully followed. She also emphasised that the applicant had been charged with a serious offence which in her opinion made the applicant’s release impossible.

On 2 May 1997 this decision was appealed to the Regional Prosecutor’s Office. On 9 May 1997 the Regional Prosecutor’s Office informed the applicant that they were unable to deal with his appeal pending the return of the case-file from the Chief Public Prosecutor’s Office, which had requested it for examination of the state of the proceedings.

On 22 July 1997 the applicant appealed against his pre-trial detention to the District Court on the ground that the preliminary investigation organs had not collected any serious evidence against him. He further claimed that there was no point in keeping him detained when all the evidence had been collected and that the continuation of his pre-trial detention was contrary to the spirit of the Bulgarian Code of Criminal Procedure and certain international treaties. The applicant also reiterated the fact that he had a family, permanent address, that he was a respected citizen, and that there had never been convincing evidence that he might abscond, commit further offences or obstruct the course of justice. He further complained about his bad health and enclosed the medical report of 10 January 1997 prepared by three medical experts and other medical reports of 19 and 27 June 1997 according to which the applicant was suffering from high blood pressure which had affected his health. The lawyer also invoked the Convention and requested the court to give reasoned replies on each of the arguments concerning the alleged unlawfulness of the applicant’s 15 months’ continuing pre-trial detention.

After examining the applicant’s case in camera, the District Court dismissed the application for release on 28 July 1997. The court stated:

“The defendant Todor Antimov Yankov is indicted under section 282 § 3 of the Criminal Code with an aggravated case of continuous breach of his professional duties. In accordance with section 152 § 1 of the Code of Criminal Procedure pre-trial detention shall be imposed when a person is accused of having committed an intentional grave offence. In the case of the defendant Todor Yankov, he is suspected of having committed a grave intentional offence. The grounds for the exception provided for under paragraph 2 [of section 152] [allowing a detainee to be released from pre-trial detention] are not present in the [applicant’s] case, since there exists a real danger of his obstructing the course of the proceedings or absconding. In addition, according to section 152 § 3 of the Code of Criminal Procedure, the exception laid down in its § 2 cannot avail a defendant in a case where preliminary investigations for another criminal offence are pending against him. It is apparent from the documents in the case (volume 2, page 4-7) that the Plovdiv Dictrict Public Prosecutor’s Office had  transmitted to the Sofia Regional Public Prosecution relevant information in relation to another offence [preliminary investigation no. 421/97]. Therefore, there is no valid ground for the applicant’s release.”

The applicant has not submitted any other detail in respect of the investigation no. 421/97.

On 11 August 1997 the Plovdiv Regional Court in camera dismissed the applicant’s appeal on the same grounds. After having examined the medical report, that court held that the conditions of detention were not damaging for his health.

b.Detention during the trial

At the first trial hearing before the Plovdiv District Court from 17 to 27 September 1997 the applicant appealed against his detention. That court dismissed the applicant’s appeal on the ground that he had been charged with a serious intentional offence for which detention was mandatory and that the exception provided by Article 152 § 2 of the Code of Criminal Procedure could not avail a defendant in a case where preliminary investigations for another criminal offence were pending against him. This referred to preliminary investigation no. 421/97.

On 25 November 1997, at the second hearing before the Plovdiv District Court, the applicant appealed against his detention on the ground that he could not obstruct the course of justice, as all the evidence and relevant testimonies had already been examined by the court. The court dismissed his appeal and adjourned the hearing to 7 January 1998, to allow for the preparation of an audit report. On 27 November 1997 the applicant appealed against that decision to the Plovdiv Regional Court. On 15 December 1997 the appeal was dismissed.

On 9 February 1998 the applicant’s lawyer sought a medical examination for him, because his health had deteriorated and he had to spend 4 days in hospital. On 27 February 1998 the applicant was examined by a doctor who recommended that he should be sent to a hospital specialising in cardiology and that he should undergo a specialised medical treatment. On 9 March 1998 the applicant requested his release on the basis of that medical report. He further complained that there was no evidence of any danger that he might abscond or commit further offences. On 19 March 1998 the District Court examined the above appeal in the presence of the applicant. The court dismissed it holding that the health risk for the applicant was the same no matter whether he was in detention facilities or at home. It does not appear that that court examined the applicant’s allegations that there was no danger of his absconding or committing further offences. On 20 March 1998 the applicant was again examined by three doctors who found that he was suffering from thrombosis which might endanger his life and recommended rest and regular check-ups by a specialist. On 30 March 1998 the applicant’s further appeal against his detention was dismissed by the Regional Court sitting in camera. It found that there had been no change of circumstances or new facts capable of demonstrating that the applicant would not commit further offences, obstruct the course of justice or abscond.

In the meantime the applicant was transferred to hospital. On 1 April 1998 his lawyers tried to contact him in connection with a hearing on 9 April 1998, but allegedly were not allowed to do so by the prison authorities. That hearing was adjourned to 6 July 1998, as the applicant had been transferred to hospital. However, the court dismissed the applicant’s motion to allow him to submit another application against the lawfulness of his pre-trial detention on the basis of the state of his health. The applicant’s lawyers submit that they were not allowed to visit him in the hospital.

The applicant’s application against pre-trial detention on the ground of ill health was dismissed on 23 April 1998 by the District Court. On 11 May 1998 his further appeal was dismissed by the Regional Court on the ground that the applicant would obstruct the course of justice if released. The court further found that “the length of the detention could not serve as an argument for a deviation from the strict provisions of section 152 of the Code of Criminal Procedure” and that the applicant’s medical problems could be adequately addressed by his transfer to the Sofia prison, where medical service was presumably better. It appears that the applicant was transferred to the Sofia prison.

On 6 July 1998 the applicant requested again to be released on bail invoking his ill health and the excessive length of his detention. On 9 July 1998 at about 2 p.m. the District Court decided to release him on bail. The applicant posted bail and was released on 10 July 1998 at about 3 p.m.

3.The conditions of detention of the applicant and his punishment with solitary confinement in March 1998

On 20 March 1998 the applicant’s lawyers made representations to the Deputy‑Minister of Justice. They said, inter alia, that on 10 March 1998 they had visited the applicant in prison, who had had with him part of the manuscript of his book that he had been writing in prison and wanted to read to them. The prison guard warned him that he would report this to the director manager of the prison. By an order N/99 of 10 March 1998 the applicant was put in solitary confinement for seven days, on the ground that the book he was writing and that he wanted to publish denigrated the judicial system and the Government, thus represented a breach of disciplinary rules which was punishable with solitary confinement under the Regulations Implementing the Execution of Sentences Act (“the Regulations”) (Правилник за прилагане на Закона за изпълнение на наказанията).

According to the applicant, the solitary-confinement facility had no toilet, hygiene was poor, there was insufficient natural light, bedcovers and outdoor exercise. As apparently provided for under the rules governing solitary confinement, the applicant had his hair shaved off.

On an unspecified date it appears that the applicant’s lawyers had a telephone conversation in this respect with the General Director Manager of Prisons and Detention Facilities, in whom appropriate powers are vested to examine the appeals against solitary confinement (see the Relevant domestic law).

On 29 April 1998 the Deputy-Minister of Justice replied to the applicant’s lawyers. She stated, inter alia,:

“By an order N/ 99 of 10 March 1998 [of the prison authorities] the accused Yankov was sentenced to seven days’ solitary confinement. This disciplinary measure has been imposed because the papers seized contained expressions and qualifications which were offensive for the Ministry of the Interior employees, the investigation bodies, the judiciary, the prosecuton, the prison authorities, the state bodies and institutions (Article 46 of the Regulations). He was not sentenced because he had written the paper in question and wanted to take it out from the prison, which is, indeed, his right. That paper was given back to the accused Yankov.

The accused suffers from a chronic disease - thrombophlebitis. He has been constantly supervised and treated in the prison. He was sent twice for outside treatment and he will be sent again for outside treatment if the need arises”.

She also instructed the prison authorities to implement the relevant regulations properly and to guarantee prisoners’ rights of defence.

The applicant submits that as of 12 May 1998 the manuscript of his book had not been returned to him.

B.Relevant domestic law and practice

1.Criminal Code (Наказателен кодекс)

Section 282

“(1) A person [exercising a function of managing another person’s property or an professional function], who acts in breach or dereliction of his or her professional duties, or exceeds his or her power or rights with a view to obtaining a material gain for himself or others or inflicting damage to others, and thus causes harm or substantial damage, shall be punished with up to five years’ imprisonment…”

The third paragraph of section 282, read in conjunction with the first and the second paragraphs of the same provision, provides for a punishment of three to ten years’ imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high ranking post.

2.Code of Criminal Procedure (Наказателно - процесуален кодекс)

a.Pre-trial detention

Section 152 insofar as relevant, reads as follows

“(1) Where the accused is charged with having committed a serious offence with intent he shall be detained pending trial.

(2) In cases under the preceding paragraph [detention on remand] may not be imposed if there is no danger of the accused evading justice or committing further offence.”

Paragraph 3 of section 152, which was in force until August 1997, provided that the application of paragraph 2 of the same provision was excluded where other criminal proceedings for a publicly prosecuted crime were pending against the accused person, or where the accused was a recidivist.

Section 93 § 7 of the Criminal Code defines an offence as “serious” if it is punishable by more than five years’ imprisonment or a heavier punishment.

As interpreted by the Supreme Court practice section 152 § 2 of the Code of Criminal Procedure applies when a danger of absconding, obstructing the course of justice or committing further offence is objectively excluded as, for example, in the case of an accused who is seriously ill, elderly, or in detention on other grounds such as for serving a sentence (опред. No. 1 от 4.5.1992. по н.д. 1/92. на ВС II н.о., Сб. 1992/93, стр. 172; опред. No. 4 от 21.2.1995 по н.д. 76/95 на ВС II н.о.; опред. No. 78 от 6.11.1995 по н.д. 768/95 на ВС II н.о.; опред. No. 24 по н.д. 268/95 на ВС, I н.о., Сб.1995, стр. 149).

An amendment to section 152 was introduced in 1997. It provides that detention pending the preliminary investigation in a criminal case cannot exceed one year or two years, if the accused is charged with an offence punishable by fifteen years’ imprisonment or a heavier punishment. This provision does not concern detention after the commencement of the trial. No statutory time-limit exists in this respect.

b.Judicial review of pre-trial detention

Bulgarian law distinguishes between appeals against detention during the course of the preliminary investigation and appeals against detention after the commencement of the trial. The former were governed by section 152 § 5 of the Code of Criminal Procedure, which as in force at the material time and until August 1997, provided as follows:

“A person who has been detained shall be immediately afforded an opportunity to lodge an appeal against detention with the court having jurisdiction. The court shall rule within three days from the date of the appeal. Its decision shall be final.”

The practice at the material time, for the appeals against pre-trial detention, was to be heard in camera, without the parties being present. If the appeal was dismissed, the court did not notify the detained person of the decision taken. Since August 1997, with the entry into force of the new section 152a of Code of Criminal Procedure, an oral hearing is provided for in such cases.

According to section 304 § 1 at the trial stage of the criminal proceedings the detainee's requests for release are examined by the trial court. The law does not provide for any limitation on the number or frequency of the requests for release. 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 a higher court (section 344 § 3). The appeal must be lodged within a seven day 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. Before doing so the trial court must communicate the appeal to the prosecutor and receive his written observations (section 348 § 4 in conjunction with section 320). The law does not require the communication of the prosecutor's observations to the appellant.

Section 348 provides that the second instance court may examine the appeal in camera or, if it considers it necessary, at an oral hearing. The law does not require the second instance court to decide within a particular time-limit.

As to the relevant domestic practice, the First Criminal Division of the Supreme Court has held that, in deciding on appeals against pre-trial detention, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order (опред. No. 24 от 23.5.1995 по н.д. 268/95, I н.о. на ВС, Сб. 1995, стр. 149).

3.Regulation Implementing the Execution of Sentences Act (Правилник за прилагане на Закона за изпълнение на наказанията)

According to section 46 when prisoner’s writings and appeals contain denigrating and offensive language he may be subject to disciplinary and criminal punishment.

Section 98 provides that a prisoner who was sentenced to solitary confinement, may submit his appeal against this measure to the General Director Manager of Prisons and Detention Facilities (GUMLS) through a director manager of a prison or detention facility. Section 43 (2) provides that all appeals addressed to relevant state bodies shall be transmitted within 24 hours by the prison authorities. Section 98 sets out that the general director manager shall reply within three days upon receipt of the appeal. Such an appeal does not suspend the serving of the solitary confinement.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that his seven day’s stay in solitary confinement amounted to inhuman and degrading treatment and that he does not have an effective remedy in this respect. In particular, the solitary-confinement facility had no toilet, hygiene was poor, there was insufficient natural light, bedcovers and outdoor exercise. His hair was shaved off only to humiliate him. He further argues that solitary confinement caused deterioration of his health, as on 20 March 1998 when he was examined by three doctors, it was found that he was suffering from thrombosis which might endanger his life.

The applicant further complains under Article 10 of the Convention that the fact that he was put in solitary confinement only because he had been writing a book allegedly denigrating the judicial system and the Government and the confiscation of that manuscript by the prison authorities amounted to unjustified interference with his right to freedom of expression. He also complains that he does not have an effective remedy in this respect within the meaning of Article 13.

The applicant complains under Article 5 § 1 of the Convention that his detention was arbitrary, as under domestic law any suspect charged with having intentionally committed an offence must remain in detention pending trial. He further complains that the warrant for his arrest did not contain any reasoning as to the existence of a reasonable suspicion against him, or as to the alleged danger of absconding, obstructing the course of justice or committing further offences. 

The applicant complains under Article 5 § 3 of the Convention that upon his arrest he was not brought promptly before a judge or other officer authorised by law to exercise judicial power. He complains under the same Article that his detention was unreasonably lengthy, that there were no sufficient reasons justifying his long detention and that there were delays in the proceedings. The applicant also submits that an amendment to the Code of Criminal Procedure adopted on 12 August 1997 was discriminatory in that it limited the length of pre-trial detention, but only in respect of detention before the beginning of the trial.

The applicant complains under Article 5 § 4 of the Convention that the judicial review was only a formality. The applicant also alleges a violation of the same Article that his judicial appeals against his pre-trial detention were not examined speedily and that some of his applications for release were examined by the courts in camera. He only complains in respect of the proceedings instituted on 22 July 1997 when he appealed against his detention pending trial with the District Court and which ended on 11 August 1997 by a decision of the Appellate Court.

The applicant complains under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation for the alleged violations of Article 5 of the Convention.

The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively lengthy. In particular, that there was a period of inactivity from April to August 1997, that there were substantial intervals between the hearings of the Plovdiv District Court, that the court did not take the necessary measures for witnesses and expert witnesses to be summonsed properly, and that the Plovdiv Regional Court scheduled his first hearing after almost one year and one month.

He further complains under Article 6 §§ 1, 2 and 3 of the Convention in respect of the alleged unfairness of the proceedings. He submits that the District Court judges were partial, as the same judges decided the appeals against detention and the merits of the case, that the hearing of witnesses during the preliminary investigation was conducted without the applicant or his lawyers being present and that the court admitted newspaper articles in evidence.

THE LAW

1.The applicant complains under Article 5 § 1 of the Convention that his detention was unlawful and arbitrary.

Article 5 § 1, insofar as relevant, 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…”

In the light of all the material in its possession the Court does not find any indication that the applicant’s detention was unlawful or ordered otherwise than "in accordance with a procedure prescribed by law", within the meaning of Article 5 § 1. The Court considers that it was ordered and confirmed in accordance with domestic law and fell within the ambit of Article 5 § 1(c) of the Convention, as having been effected for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence. As regards the alleged lack of reasonable suspicion, the Court is not convinced by the applicant’s arguments in this respect. Although the charges against him underwent certain modifications during the preliminary investigation, the Court considers that at least part of the initial charges, and those which led to the applicant’s conviction, were based on a reasonable suspicion of his having committed criminal offences punishable under the Bulgarian Criminal Code. The charges against the applicant were based on documents, testimonies and other evidence which indicated that he might have, inter alia, forged invoices and documents, filled-in banking documents in breach of financial and banking regulations and breached his professional duties in order to transfer large sums of money out of Bulgaria from an unknown source with a view to obtaining an unlawful gain for himself and others.

It follows that the complaint under Article 5 § 1 is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and  4 of the Convention.

2.The applicant further complains under Article 6 §§ 1, 2 and 3 of the Convention that his right to fair criminal proceedings was violated and that the hearing of witnesses during the preliminary investigation was conducted without the applicant or his lawyers being present. He complains that the proceedings were unfair as a whole and that he was presumed guilty.

The Court recalls that a complaint under Article 6 of the Convention concerning the alleged unfairness of criminal proceedings would in principle be premature when these proceedings are still pending. An applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his or her right to a fair trial in respect of proceedings which have not been concluded ([see] application no. 37355/97 decision of 20 April 1999, unpublished; application no. 31195/96, decision of 27 February 1997, DR. 88, p. 169).

The Court notes that in the instant case, the applicant has filed an appeal with the Plovdiv Regional Court. In these proceedings he will be able to raise all arguments about the alleged partiality of the Plovdiv District Court and the alleged unfairness of the proceedings. Moreover, it is open to the applicant, in case the second instance decision is unfavourable, to appeal to the Supreme Court of Cassation, which is also competent to examine the allegations now raised before the Court.

It follows that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his right under Article 6 to a fair trial by an impartial tribunal and that, therefore, this part of the application is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

3.As regards the applicant’s complaints under Articles 3, 10 and 13 of the Convention in respect of the solitary confinement imposed on the applicant for having written a book; the complaints under Article 5 § 3 that he was not brought promptly before a judge or other officer authorised by law to exercise judicial power and that his pre-trial detention was excessively lengthy; the complaints under Article 5 § 4 concerning the speediness, the procedure and the scope of the judicial review of his detention; the complaint under Article 5 § 5 that domestic law does note secure his right to compensation for the alleged violations of Article 5 and the complaint under Article 6 § 1 as regards the length of the criminal proceedings against the applicant, the Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the complaints: a) under Articles 3, 10 and 13 in respect of the solitary confinement imposed on the applicant for having written a book; b) under Article 5 § 3 in respect of the applicant’s allegations that he was not brought promptly before a judge or other officer authorised by law to exercise judicial power and that his pre-trial detention was excessively lengthy; c) under Article 5 § 4 concerning the speediness, the procedure and the scope of the judicial review of his detention; d) under Article 5 § 5 as regards the alleged lack of compensation for the alleged violations of Article 5; and e) under Article 6 § 1 concerning the alleged excessive length of the criminal proceedings against the applicant;

DECLARES INADMISSIBLE the remainder of the application.

Vincent BergerGeorg Ress
RegistrarPresident

Full & Egal Universal Law Academy