FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39964/03
by Zlati Svetoslavov ZLATEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 28 September 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 8 December 2003,
Having regard to the observations submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Zlati Svetoslavov Zlatev, is a Bulgarian national who was born in 1946 and lives in Aksakovo. He was represented before the Court by Mr B. Tsvetkov, a lawyer practising in Varna.
The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, 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 preliminary investigation against the applicant
On an unspecified date a preliminary investigation for robbery was opened against the applicant. He was questioned as a suspect on an unspecified date and a search of his apartment was conducted on 23 and 24 October 1991. On an unspecified date the preliminary investigation was suspended.
The preliminary investigation was resumed on 28 March 1996 and then again suspended on 30 April 1996.
The preliminary investigation against the applicant was again resumed on 23 February 1999. On an unspecified date in 1999 it was discontinued in respect of the applicant and was transformed as being against an unknown perpetrator.
The applicant was never formally charged with an offence.
2. The seizure of the applicant's possessions
In the course of the search of the applicant's apartment on 23 and 24 October 1991 the investigating authorities seized various items, such as a helm, an electric sander, a car radio, a stereo, thirty-two turbot fishing nets, three goby fishing nets, five bluefish and shad fishing nets, two fishing hooks, a car battery, six life jackets, a leather bag, nine signal rockets and a reversible boat coupling. According to the applicant the items were either new or of high quality. The seized items were held by the investigating authorities as physical evidence in the preliminary investigation against the applicant.
On the instructions of the Varna district public prosecutor's office of an unspecified date part of the seized items were returned to four individuals who had reported them stolen and from whom they had apparently been stolen. The items were returned to their owners only after the authorities had verified the owners' claims on the basis of ownership documents and identification checks. The said transfers were effected on 27 November 1991, 8 and 16 January 1992 and 12 April 1996.
On 17 March 1999 the Varna regional public prosecutor's office invited the applicant to receive the remainder of the items in their possession. He refused to accept them as he claimed that most of the items were either missing, had been replaced with similar such of lower quality or had become unusable for their intended purpose.
On 4 June 1999 the Varna Regional Investigation Service invited the applicant to receive the helm. It is unclear whether he did so.
3. The proceedings under the State Responsibility for Damage Act
On an unspecified date in 1999 the applicant initiated an action for damages under section 2 (2) of the State Responsibility for Damage Caused to Citizens Act of 1988 (renamed on 12 July 2006 to the State and Municipalities Responsibility for Damage Act: “the SRDA”).
The applicant sought compensation in the amount of 22,453 Bulgarian levs (approximately 11,514 euros) for the missing, lost or destroyed items seized from him as physical evidence in the course of the preliminary investigation against him which had subsequently been terminated. The applicant argued that in so far as he would have been entitled to compensation for an unlawful indictment, the preliminary investigation against him should also be considered to have been unlawful and subject to compensation, including, in particular, the damage resulting from the conducted search and seizure of his possessions.
In a judgment of 17 August 2001 the Varna Regional Court found that the applicant had no right of action under the SRDA against the authorities because he had never been indicted for an offence and, therefore, no liability arose for the investigation and the prosecution authorities under section 2 of the Act.
The applicant appealed against this judgment on 21 September 2001 arguing that the preliminary investigation against him constituted a de facto indictment as he had to endure the negative effects of an ongoing criminal investigation against him, such as the search and seizure of his possessions.
In a judgment of 19 February 2002 the Varna Court of Appeal found against the applicant and upheld the lower court's findings that he had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act.
On 19 March 2002 the applicant filed a cassation appeal against the judgment of the Varna Court of Appeal. He argued that the State's liability under the Act arose from the fact that there had been a preliminary investigation against him for robbery, subsequently discontinued, which amounted to having been subjected to unlawful criminal proceedings.
In a final judgment of 30 July 2003 the Supreme Court of Cassation found against the applicant and upheld the lower courts' judgments. It also found that the applicant had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act. In so far as the applicant had never been charged, but had only been questioned as a suspect and then as a witness, the court found that no liability arose for the authorities in question. Moreover, the Supreme Court of Cassation noted that the investigation and the prosecution authorities could also not be held liable under the Act for any of their actions or inactions related to the safekeeping of the seized items.
B. Relevant domestic law and practice
The relevant domestic law and practice have been summarised in the judgments in the cases of Karamitrov and Others v. Bulgaria (no. 53321/99, §§ 29-45, 10 January 2008) and Atanasov and Ovcharov v. Bulgaria (no. 61596/00, §§ 30-42, 17 January 2008).
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 of the Convention that a number of his moveable properties had been unlawfully seized by the authorities, that they had been unjustifiably held for a significant number of years thereby depriving him of their use, and that they had either been handed over to third persons, had gone missing or had become unfit for their intended purpose.
2. The applicant also complained under Article 6 of the Convention that a criminal investigation had in effect been pending against him since 1991, even though in 1999 it had officially been transformed as being against an unknown perpetrator, because he still had to endure the negative effects from the search and seizure conducted in its context.
THE LAW
1. The applicant complained under Article 1 of Protocol No. 1 of the alleged unlawful seizure of a number of his moveable properties, that they had been held by the authorities for a significant length of time, that part of them had been handed over to third persons while the remainder had either gone missing or had become unfit for their intended purpose. Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government did not comment.
(a) The Court notes at the outset that the applicant's possessions were seized by the authorities in 1991 while the Convention entered into force for Bulgaria on 7 September 1992. It further notes that three of the transfers of seized items to other individuals were also effected before that date.
It follows that these complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) In respect of the fourth transfer of items on 12 April 1996, the Court finds that it does not need to consider whether the applicant had available any effective domestic remedies which he should have exhausted as it notes that, in any event, he submitted his complaint more than nine years after the authorities disposed of the items. Even if he learnt of this transfer much later, he must have become aware of it at the latest in 1999 when he was invited to receive back the items that remained with the authorities.
It follows that the complaint in respect of the transfer of items on 12 April 1996 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
(c) In respect of the seized items which remained with the authorities, the Court notes that on 17 March and 4 June 1999 the Varna regional public prosecutor's office invited the applicant to receive them back which he refused to do. Thus, thereafter the authorities ceased to hold the items as evidence in the preliminary investigation, which had, in any respect, been discontinued in respect of the applicant. This brought an end to the continuing situation which had existed thus far and the six-month period started to run in respect of the applicant to submit a complaint to the Court. Instead, he initiated proceedings for damage against the investigation and the prosecution authorities under the SRDA. Such proceedings, however, were bound to fail in view of the domestic courts' constant case law that there is no right of action under the SRDA against the investigation and the prosecution authorities for acts or actions other than those exhaustively listed in section 2 of the Act (see Karamitrov and Others v. Bulgaria, no. 53321/99, §§ 75-79, 10 January 2008). Accordingly, the six-month time limit, which started to run on 4 June 1999 at the latest, cannot be considered to have been extended by virtue of the applicant's use of the procedure under the SRDA because it was clearly not effective as it could not have remedied the complaint current before the Court. The applicant however submitted his complaint in 2003.
Thus, it follows that this part of the complaint has also been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant also complained that a lengthy criminal investigation had in effect been pending against him since 1991. He relied on Article 6 § 1 of the Convention which, in so far as relevant, 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 Court notes that the preliminary investigation in respect of the applicant had been discontinued on an unspecified date in 1999 and that he submitted his application in 2003.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy