FIRST SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45563/99
by Vladimir Nikolaevich ZHBANOV
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 24 March 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 Section’s partial decision of 13 December 2001,
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 Vladimir Nikolaevich Zhbanov, is a Russian national born in 1950 and living in Kiev, Ukraine. He is not legally represented. The respondent Government are represented by Mr S. Bojikov, Deputy-Minister of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 February 1994 the applicant, who was then residing in Bulgaria, was questioned as a suspect in the embezzlement of 20,000 Bulgarian levs (“BGL”) from a cooperative farm in liquidation whose legal counsel he had been.
On 30 March 1994 criminal proceedings were opened against the applicant.
On 27 July 1994 he was questioned.
On 29 July 1994 a graphological expert report was drawn up.
On 12 December 1994 the applicant was charged with embezzlement, falsification of official documents and false accusation of another. He was ordered to post bail in the amount of BGL 2,000. Under the then applicable law, an accused under bail could leave the country only with the prosecutor’s or the court’s permission.
On 23 February 1995 the applicant’s apartment was attached by order of the investigator, apparently as a security for an impending civil claim by the victim of the offence charged against the applicant. On the same date the applicant was allowed to consult the case file and was questioned.
On 15 March 1995 a technical expert report was drawn up.
On 27 March 1995 the applicant was questioned.
On 30 March 1995 another expert report was drawn up.
On 4 April 1995 the applicant was questioned.
On 5 April 1995 the investigator completed his work on the case and recommended that the applicant be indicted.
On 4 May 1995 the applicant was questioned.
On 2 June 1995 a prosecutor of the Popovo District Prosecutor’s Office presented the applicant with amended charges and questioned him.
By a decree of 28 March 1996 the Popovo District Prosecutor’s Office, finding that the applicant had not obstructed the criminal proceedings and that there was no danger of him absconding, allowed him to leave Bulgaria for one month and a half to visit his parents in Kiev, Ukraine.
The prohibition against the applicant leaving the country without prior permission of the prosecutor or the court was in force at least until 1 January 2000, when the Code of Criminal Procedure was amended.
On 12 September 2001 a prosecutor of the Popovo District Prosecutor’s Office presented all materials in the case file to the applicant.
On 14 September 2001 the Popovo District Prosecutor’s Office, noting that the relevant limitation period had expired, decided to drop the charges of falsification of official documents. On the same date it indicted the applicant for having embezzled BGL 20,000 and having falsely accused another of a serious offence.
On 15 December 2001 the applicant left Bulgaria and went to Ukraine, where he has resided ever since.
The first hearing in the applicant’s case, listed by the Popovo District Court for 17 December 2001, was adjourned because the applicant and several witnesses, despite being duly summoned, were absent.
A hearing fixed for 8 April 2002 was also adjourned because the applicant was not present.
A hearing listed for 3 June 2002 was likewise adjourned because of the applicant’s absence.
Apparently the proceedings are still pending.
COMPLAINTS
In his initial application the applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had lasted unreasonably long.
In his observations in reply to those of the Government the applicant complained under Article 6 §§ 1 and 3 of the Convention that he had not been informed in detail of the accusations against him, that he had not been appointed an ex officio counsel and that he had not been given the free assistance of an interpreter.
THE LAW
A. Complaint about the length of the criminal proceedings against the applicant
In respect of his complaint about the length of the criminal proceedings against him the applicant relied on Article 6 § 1 of the Convention, which provides, as relevant:
“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, despite being duly summoned, the applicant had failed to appear at the hearing listed for 17 December 2001. It had been impossible to summon him for the subsequent hearings because he had left Bulgaria in December 2001 and had not returned despite the fact that criminal proceedings were pending against him. This conduct indicated that the applicant’s stance toward the speedy conclusion of the proceedings was dubious.
The applicant maintained that the length of the criminal proceedings against him had been entirely due to the conduct of the authorities. They had failed to comply with the domestic law provisions on the time-limits for concluding an investigation and had failed to bring the proceedings to an end for more than eight years. Moreover, throughout the proceedings he had been unable to dispose of his apartment, which had been attached by order of the investigator.
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.
B. Complaints about the fairness of the criminal proceedings against the applicant
In respect of his complaints about the fairness of the criminal proceedings against him the applicant relied on Article 6 §§ 1 and 3 of the Convention , which provide, as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
...
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The Court considers that a complaint under Article 6 of the Convention concerning 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 right to a fair trial in respect of proceedings which have not been concluded (see Sakık and Others v. Turkey, nos. 23878‑84/94, Commission decision of 25 May 1995, Decisions and Reports (DR) 81‑A, p. 86, at p. 94, Nikolova v. Bulgaria, no. 31195/96, Commission decision of 27 February 1997, DR 88, p. 169 and Belchev v. Bulgaria (dec.), no. 39270/98, 11 May 2000, unreported).
The Court notes that the criminal case against the applicant has not even proceeded to its trial phase. During the trial and, eventually, in the ensuing appeals the applicant will be able to raise all arguments about the alleged breaches of his right to a fair trial.
It follows that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his right to fair trial under Article 6 §§ 1 and 3 of the Convention and that, therefore, these complaints are inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of the criminal proceedings against him;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy