EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 30381/96

Vassil Mironov

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 1 December 1998)

- i-

30381/96

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 ‑ 16) ............................................. 1

A. The application

(paras. 2 ‑ 4) ......................................... 1

B. The proceedings

(paras. 5 ‑ 11) ........................................ 1

C. The present Report

(paras. 12 ‑ 16) ....................................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17 ‑ 50) ............................................ 3

A. The particular circumstances of the case

(paras. 17 ‑ 45) ....................................... 3

B. Relevant domestic law

(paras. 46 ‑ 50) ....................................... 5

III. OPINION OF THE COMMISSION

(paras. 51 ‑ 102) ........................................... 7

A. Complaints declared admissible

(para. 51) ................................................. 7

B. Points at issue

(para. 52) ................................................. 7

C. As regards Article 5 para. 3 of the Convention

(paras. 53-72) ............................................. 7

CONCLUSION

(para. 73) ................................................ 10

D. As regards Article 6 para. 1 of the Convention

(paras. 74-87) ............................................ 10

CONCLUSION

(para. 88) ................................................ 11

30381/96 - ii -

TABLE OF CONTENTS

Page

E. As regards Article 8 of the Convention

(paras. 89-97) ............................................ 11

CONCLUSION

(para. 99) ................................................ 13

F. Recapitulation

(para. 100-102) ........................................... 13

CONCURRING OPINION OF Mr. H. DANELIUS

JOINED BY Mrs G.H. THUNE, Mrs J. LIDDY, Mr N. BRATZA and Mr D . Å VABY ..............              14

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ..................... 15

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Bulgarian citizen, born in 1930 and resident in Rousse.

3 . The application is directed against Bulgaria.  The respondent Government were represented by Ms Ilina Taneva of the Ministry of Foreign Affairs and Ms Galina Samaras, co-Agent.

4 . The case concerns the length of the applicant's detention on remand and of the criminal proceedings against him, and the alleged interference by the prison authorities with the applicant's right to respect for his correspondence.  The applicant invokes Article 5 para. 3, Article 6 para. 1 and Article 8 of the Convention.

B. The proceedings

5 . The application was introduced on 5 October 1994 and registered on 6 March 1996.

6 . On 22 October 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 16 December 1996.  The applicant replied on 18 March and 9 May 1997.  On 21 January 1997 the Commission granted the applicant legal aid for the representation of his case.

8 . On 23 October 1997 the Commission declared admissible the applicant's complaints under Article 5 para. 3 of the Convention concerning his right to a trial within a reasonable time or to release pending trial; under Article 6 para. 1 of the Convention of the length of the criminal proceedings against him; and under Article 8 of the Convention that the prison administration checked the content and requested the translation of his application form to the Commission.  It declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 5 November 1997 and they were invited to submit further observations.  The Government submitted observations on 27 May 1998, to which the applicant replied on 3 July 1998.  The Government submitted additional information on 19 October 1998.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

11 . Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

C. The present Report

12 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13 . The text of this Report was adopted on 1 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15 . The Commission's decision on the admissibility of the application is annexed hereto.

16 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17 . The applicant has had several convictions on various charges.  His convictions date from 1949, 1960, 1964, 1982, 1986 and 1988.  Prior to the events relevant to the present case he had served several prison terms.

The applicant's detention and the proceedings against him

18 . On 22 April 1992 a preliminary investigation was opened against the applicant and several other persons on charges, inter alia , of misappropriation of funds by means of forgery of documents under Section 212 para. 4 of the Penal Code ( Наказателен кодекс ).  It was alleged, inter alia , that the applicant and his accomplices had offered non-existing deliveries of clothes by using forged documents to convince potential buyers to sign a contract and to pay an advance.  In one transaction the buyer issued a letter of credit the payment of which was obtained by the applicant allegedly through the presentation of false invoices.  According to the indictment drawn up after the conclusion of the preliminary investigation the charges concerned an amount of about 20 million leva (about 5.5 million FF at the relevant time).

19 . On 30 April 1992 the applicant's office and apartment were searched in his presence and documents were seized.  On 21 October 1992 a prosecutor ordered the applicant's arrest.

20 . On 18 November 1992 the applicant was arrested and detained on remand.  On 1 December 1992 his lawyer unsuccessfully appealed to the Rousse Regional Court (Окръжен съд) against his client's detention on remand.  Thereafter and until his release the applicant filed with the prosecution authorities numerous petitions for release.

21 . On 18 January 1993 the Chief Public Prosecutor's Office (Главна прокуратура) dismissed another petition for release as there existed a danger of absconding and of repetition.  On 13 April 1993 the investigator (следовател) charged the applicant with some additional crimes and confirmed that the 1992 order for his detention on remand was in force.

22 . One of the applicant's alleged accomplices, Ms D., was summoned by the investigator in August 1992 but could not be found until February 1993.  In February 1993 she was officially charged and released on bail.  In 1995 Ms D. fled abroad.  Two other accused persons failed to appear when summoned and were subsequently detained on remand.

23 . On 13 May 1993 the applicant began serving the remainder of a twelve years' prison term which had been imposed following his convictions of 1986 and 1988.

24 . In the course of the proceedings the investigator in Rousse collected documentary material, questioned 51 witnesses and ordered reports by five experts.  Some of the witnesses were questioned in courts in other cities by the "delegation of power" procedure (разпит по делегация).

25 . On 9 March 1994 the preliminary investigation was concluded and an indictment against the applicant and six other persons was submitted to the Rousse Regional Court.  On 17 March 1994 the case was transmitted back to the prosecution authorities for further investigation.

26 . On 6 June 1994 a revised indictment was submitted to the Rousse Regional Court.

27 . On 20 June 1994 the Court, acting ex officio , confirmed the applicant's detention on remand and ordered the questioning of twenty witnesses.  As these witnesses resided in several different regions, the questioning was to be effected by judges in several different courts.

28 . On 5 and 6 September 1994 the Court held a hearing.  The applicant, five of the alleged accomplices and their lawyers were present.  The Court heard the accused persons, eleven witnesses and three experts who presented their reports.

29 . On 29 December 1994 the Court found that there had been irregularities at the preliminary investigation stage of the proceedings.  As a result the case had to be returned to the prosecution authorities for further investigation.

30 . On 7 February 1995 the file concerning another preliminary investigation was joined to the case.  On 25 April 1995 the investigator charged the applicant with some additional crimes and confirmed that the 1992 order for his detention on remand was in force.

31 . On 31 May 1995 the investigation was concluded and an indictment was submitted to the Rousse Regional Court.  On 9 October 1995 the Court returned the case to the prosecutor for further investigation.

32 . On 11 December 1995 the prosecutor again submitted an indictment  to the Court.

33 . On 22 January 1996 the Rousse Regional Court, acting ex officio , ordered the preparation of the case for a hearing, which included the questioning of twenty witnesses in six judicial regions of the country, and confirmed the applicant's detention on remand.

34 . On 29 April 1996 the Lovech Regional Court examined the state of enforcement of the applicant's 1986 and 1988 sentences.  The Court ordered his conditional release on parole (предсрочно условно освобождаване), thus granting a remission of the remaining part of his twelve years' prison term.  The applicant was not released as he was under detention on remand in connection with the pending criminal proceedings against him.

35 . On 30 May 1996 the applicant submitted to the Rousse Regional Court a petition for release on bail (под гаранция).  This was granted on 3 June 1996.  The amount of the bail was fixed at 800,000 leva (about 35,000 FF at the time).  The decision stated inter alia that the Court had taken into account "the information about [the applicant's] state of health".

36 . The applicant failed to post bail and was not released.

37 . He appealed against the decision of 3 June 1996, stating that he could never find 800,000 leva.  On 30 September 1996 the Supreme Court (Върховен съд) dismissed the appeal.  The Court found that in view of the crimes with which the applicant was charged, and because he was a recidivist, it was obligatory under Section 152 of the Code of Criminal Procedure (Наказателно процесуален кодекс) that he should be detained on remand.  In the Supreme Court's view release on bail was not possible.  Therefore, the Regional Court's decision of 3 June 1996 was contrary to the law.  However, the Supreme Court could not quash it and could not order the applicant's detention on remand as the decision was challenged only by the applicant, not by the prosecutor.

38 . On 30 September 1996 the applicant was convicted by the Rousse District Court (Районен съд) in other criminal proceedings, opened in 1995, for having threatened to kill a person.  The applicant had sent letters to a prosecutor stating that he would see to it that she and her family would be "liquidated".  He was convicted under Section 114 para. 3 of the Penal Code and sentenced to two years' imprisonment.

39 . On 16 January 1997 the conviction and sentence were confirmed on appeal by the Rousse Regional Court.  The applicant began serving the two years' prison term on 20 February 1997.

40 . On 20 May 1997, upon the applicant's petition for review, the Supreme Court quashed the 1996 conviction and acquitted the applicant.

41 . Following this judgment the applicant remained in the Lovech prison on the strength of the orders for his detention on remand in the framework of the pending criminal proceedings.

42 . On 11 August 1997 the applicant posted bail of 800,000 leva (about 2,500 FF at the time) and was released.

43 . On 8 September 1997 the Rousse Regional Court held a hearing in the criminal case against the applicant and his alleged accomplices.  The applicant was present.  The hearing was adjourned because the applicant and another person were not legally represented and due to the absence of two of the accused persons.  It appears that their whereabouts had not been established despite the Court's request which had been sent to the police.  The Court ordered the arrest of the persons who had not appeared and decided that the case would be listed for a hearing after their apprehension.

44 . The case was listed for a hearing on 6 June 1998.  The parties have not substantiated any later developments.

The applicant's correspondence with the Commission

45 . On 13 February 1996 the applicant prepared his application form to the Commission in English and allegedly sent it through the prison administration, as required by the relevant law and prison regulations.  At least until 14 March 1996 the applicant was under the impression that his application to the Commission had been withheld by the prison administration. On that date he wrote a letter to the Commission complaining about the alleged hindrance of his right to bring an application.  He stated that the prison administration had insisted on  an official translation into Bulgarian, that he had allegedly offered his own translation, and that this had been rejected.  With his letter of 14 March 1996 to the Commission the applicant enclosed a second copy of his application form.  In fact the application form signed by the applicant on 13 February 1996 was received by the Commission on 4 March 1996.  The application was registered by the Commission on 6 March 1996.  The second application form of 14 March 1996, identical in content, arrived on 25 March 1996.

B. Relevant domestic law

46 . The relevant part of Section 152 of the Code of Criminal Procedure, as in force until 4 June 1995, provided as follows:

"(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years' imprisonment or capital punishment.

(2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or of committing another crime ..."

47 . The relevant part of Section 152 of the Code of Criminal Procedure, as in force after 4 June 1995 and until August 1997, provided as follows:

"(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.

(2) In the cases referred to in paragraph 1 [detention on remand] may not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.

(3) Paragraph 2 shall not apply where other criminal proceedings for [a publicly prosecuted] crime are pending against the accused person, or where [the accused is a recidivist] ..."

48 . Under the Code of Criminal Procedure as in force at the relevant time the prosecutor's decision to detain the accused person is subject to appeal to the District Court.  A second judicial appeal is not possible during the investigation stage.  At the judicial stage of the criminal proceedings the detainee may submit to the trial court an unlimited number of requests for release.  The trial court's decision is subject to appeal to the higher court.

49 . Under Section 37 para. 2 of the Law on the Execution of Punishments (Закон за изпълнение на наказанията), as in force at the relevant time, the prisoners' letters to the President's Office, the Council of Ministers, the Committee for State Control, the Ministry of Justice, the Ministry of the Interior and the prosecution authorities were not subject to control if they had been submitted in a sealed envelope.  The letters to the Commission were not covered by this provision until its amendment in June 1998.  According to Section 43 of the Regulations implementing the Law on the Execution of Punishments (Правилник за приложение на Закона за изпълнение на наказанията) all petitions and appeals by prisoners are sent to the addressees after their registration in a register maintained by the prison administration.  The entries to be made in the register include the subject matter of the petition or appeal, except where it has been submitted in a sealed envelope.

50 . Section 33 of the Law on the Execution of Punishments provides inter alia that a detained person has the right to receive and send letters subject to control by the prison administration.  Under para. 2 of Section 37 of the Regulations, a letter sent by, or to, a prisoner may be withheld where its content is such that on grounds of "security, [the prison] regime, or on the basis of educational considerations", this is necessary.  The decision to withhold a letter is taken by the group officer (отряден началник).  The prisoner shall be informed thereof.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

51 . The Commission has declared admissible the following complaints of the applicant:

- under Article 5 para. 3 of the Convention concerning his right to a trial within a reasonable time or to release pending trial;

- under Article 6 para. 1 of the Convention of the length of the criminal proceedings against him; and

- under Article 8 of the Convention that the prison administration checked the content and requested the translation of his application form to the Commission.

B. Points at issue

52 . Accordingly, the points at issue in the present case are:

- whether there has been a violation of Article 5 para. 3 of the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention; and

- whether there has been a violation of Article 8 of the Convention.

C. As regards Article 5 para. 3 of the Convention

53 . Article 5 para. 3 of the Convention, insofar as relevant, reads as follows:

"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.  Release may be conditioned by guarantees to appear for trial."

54 . The applicant alleges that the length of his detention on remand went beyond all reasonable limits.  This was despite the numerous requests for release submitted to all levels of the prosecution authorities.  The applicant maintains that he was a victim of the acts of corrupt prosecutors and investigators who wanted to destroy his business.

55 . The applicant further submits that the decision of 3 June 1996 ordering his release on bail was fictitious as it was extremely difficult for him to secure 800,000 leva, the amount of the bail.

56 . The Government submit that the applicant was a recidivist and was accused of committing a crime which carried a penalty of 10 to 20 years' imprisonment.  In these circumstances Section 152 para. 3 of the Code of Criminal Procedure provided for mandatory detention on remand.  The Government recall that nevertheless on 3 June 1996 the Regional Court ordered the applicant's release on bail because he invoked his health problems.  However, the applicant did not post the bail, in which situation he could not be released.

57 . In respect of the amount of the bail the Government submit that the courts have taken into account the seriousness of the accusations which concerned the misappropriation of about 20 million leva (5.5 million FF at the time), the fact that the applicant had had six convictions, and that at the relevant time he did not have dependent children and possessed certain property.  The Government further state that due to the rapid devaluation of the Bulgarian currency in 1996 and 1997 the amount of the bail, which at the moment when it was fixed was the equivalent of about 35,000 FF, was worth less than 2,500 FF in February 1997 and until the applicant paid it in August 1997.  Therefore, the Government consider implausible the applicant's statement that for a long period of time he was unable to secure the amount of the bail.

58 . The Government thus maintain that the period of the applicant's detention on remand to be taken into account was between 18 November 1992 and 13 May 1993 (almost six months) and between 29 April 1996 and 3 June 1996 (one month and one week).  This period of detention was not contrary to Bulgarian law and was "reasonable", within the meaning of Article 5 para. 3 of the Convention.

59 . Thus, the proceedings which concern the criminal activity of several persons are factually and legally complex.  The case-file contains 2,158 pages organised in 15 volumes.  The indictment, which consists of 25 pages, is based on the testimony of 51 witnesses and 5 experts and on voluminous documentary evidence.

60 . The Government further stress the fact that two of the applicant's co-accused went into hiding, which caused a certain delay.

61 . Referring to the applicant's complaint under Article 6 para. 1 of the Convention the Government also state that the investigator and later the courts had to question many witnesses residing in different parts of the country which necessitated the use of the "questioning by delegation of power" procedure.

62 . Under this procedure the judge dealing with the case prepares a list of questions and sends it to all parties to the proceedings who are invited to add other questions if they wish to do so.  The fact that some of the accused persons in the applicant's case were at large caused a delay at this stage.  Once the list of questions is finalised it is transmitted to the competent local court which summons the witness for a hearing of which all parties to the proceedings are also informed.  Any minor deficiency in the above procedure may cause the adjournment of the questioning hearing which in turn affects the course of the criminal proceedings as a whole.

63 . The Government submit that the need to resort to the above complex procedure caused the delay between 22 January 1996 and 8 September 1997.

64 . The Government also assert that the applicant's own inactivity  contributed to the delay in his release on bail.  His first request for release to the Rousse Regional Court where he was on trial dates from 30 May 1996.  However, his case was pending before the trial court between 9 March and 17 March 1994; again between 6 June and 29 December 1994; again between 31 May and 9 October 1995; and lastly after 11 December 1995.  According to the relevant law the applicant had the right to submit an unlimited number of applications for release on bail to the trial court but he failed to use this opportunity.

65 . The Commission recalls that the question whether a period of pre-trial detention can be considered "reasonable" within the meaning of Article 5 para. 3 must be assessed in each case according to its special features.  It falls in the first place to the national judicial authorities to examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying continued detention.  Such circumstances may be, for example, the existence of a danger of absconding, of collusion, or of repetition of offences.  It is essentially on the basis of the reasons given in the domestic decisions and of the true facts stated by the applicant in his appeals that the Convention organs must examine the complaint under Article 5 para. 3 of the Convention (Eur. Court HR, W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, pp. 15-19, paras. 30 ‑ 42).

66 . If the grounds justifying the continued detention were "relevant" and "sufficient", the Convention organs must also ascertain whether the national authorities displayed "special diligence" in the conduct of the proceedings (Eur. Court HR, Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, pp. 374, 388, para. 35).

67 . In the present case the applicant was detained on remand between 18 November 1992 and 13 May 1993 (see paras. 20 and 23), then between 29 April 1996 and 20 February 1997 (see paras. 34 and 39), and again between 20 May and 11 August 1997 (see paras. 40 and 42).  His detention lasted therefore for 18 months and one week.

68 . The Commission notes that the applicant was a recidivist who at the relevant time had six convictions and that therefore there may have existed a danger that he would re-offend or abscond. Furthermore, the applicant has not substantiated any element capable of putting into doubt the grounds justifying his detention.

69 . As to the Government's argument that the applicant did not make full use of the possibility to request his release during the judicial stage of the criminal proceedings by submitting applications for bail to the trial court the Commission notes that the trial court examined ex officio the question of the prolongation of his detention (see paras. 27 and 33).  Moreover, it would have served no useful purpose for the applicant to request release on bail at the time when he was serving his prison term.  The Commission notes that he requested his release one month following the expiration of his prison term (see paras. 34 and 35).

70 . However, the applicant failed to post bail following the decision of 3 June 1996 granting release on bail.  Examining the particular facts of the case and the submissions of the parties as regards the amount of the bail (see paras. 35, 42 and 57) the Commission finds in this respect that the applicant has not shown that the amount was unreasonably high.

71 . As to the conduct of the proceedings, the Commission notes that there have been delays attributable to the authorities (see paras. 25, 29 and 31).  The Commission also observes that the proceedings are complex owing inter alia to the number of the accused persons and the need to question many witnesses residing in different parts of the country.

72 . Assessing the above elements as a whole and in view, in particular, of the global length of the applicant's detention on remand (see para. 67), the Commission does not consider that there has been a violation of the applicant's right to trial within a reasonable time or to release pending trial within the meaning of Article 5 para. 3 of the Convention.

CONCLUSION

73 . The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 3 of the Convention.

D. As regards Article 6 para. 1 of the Convention

74 . Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."

75 . The parties refer to their submissions in respect of the conduct of the proceedings as summarised above (see paras. 54, and 59-64).

76 . The Commission notes that the criminal proceedings against the applicant were instituted on 22 April 1992 and that on 30 April 1992 a search was conducted in his apartment in his presence (see paras. 18 and 19).  It may be considered, therefore, that by 30 April 1992 the applicant was "charged" with a criminal offence within the autonomous meaning of this term under Article 6 para. 1 of the Convention (see Eur. Court HR, Hozee v. the Netherlands judgment of 22 May 1998, para. 43 et seq., to be published in Reports 1998).

77 . However, the period to be taken into consideration is to be counted as from 7 September 1992, when the declaration whereby Bulgaria recognised the right of individual petition for the purposes of Article 25 of the Convention took effect (cf. Eur. Court HR, Proszak v. Poland judgment of 16 December 1997, Reports 1997-VIII, pp. 2765, 2772, paras. 30 and 31).

78 . The criminal proceedings against the applicant are still pending at the trial stage (see para. 44). Therefore, up to the moment of the adoption of the present report the period to be taken into consideration is six years and three months.

79 . In addition, in order to determine the reasonableness of the length of time in question, regard must be had to the state of the case on 7 September 1992 (Proszak judgment, loc. cit.).

80 . The Commission reiterates at the outset that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, the Kemmache v. France judgment (nos. 1 and 2) of 27 November 1991, Series A no. 218, p. 27, para. 60).  It is necessary among other things to take account of the importance of what is at stake for the applicant in the litigation (see, for instance, the Phocas v. France judgment of 23 April 1996, Reports 1996-II, p. 546, para. 71).

81 . The Commission notes that the preliminary investigation, which was twice recommenced for further investigation, was eventually completed on 11 December 1995 (see para. 32).  As a whole it therefore lasted three years and three months.

82 . The Commission notes that the investigation authorities were dealing with accusations against seven persons some of whom did not appear when summoned.  Also, during the above period of time they questioned 51 witnesses, appointed 5 experts, and examined voluminous documentary material (see paras. 18, 22, 24 and 30).  However, eleven months passed in sending the case to and back from the Rousse Regional Court (see paras. 25-32).  This was apparently due to the fact that the investigation had been incomplete. The ensuing delay was therefore imputable to the authorities.

83 . The Commission further notes that two years and nine months have elapsed since the beginning of the applicant's trial following the submission of the indictment on 11 December 1995 (see paras. 32 and 44).  The Commission accepts the Government's argument that some of the delay was inevitable as twenty witnesses were to be questioned through the time-consuming questioning by the "delegation of power" procedure.  However, it does not appear that this procedure took up all the time since 11 December 1995.

84 . Furthermore, the first hearing before the Rousse Regional Court was held on 8 September 1997, one year and nine months after the submission of the indictment (see para. 43).  Another nine months elapsed before the case was listed again for a hearing on 6 June 1998 (see para. 44).  Parts of these delays are imputable to the authorities which did not secure the attendance of two of the accused persons (see para. 43).

85 . Lastly, the Commission does not find it established that any particular delay has been caused by the applicant.

86 . It is true that the case against the applicant is apparently complex owing inter alia to the number of the accused persons and the need to question many witnesses residing in different parts of the country.  However, the Commission considers that these difficulties are not sufficient to justify the length of the proceedings.

87 . On the basis of the above considerations, noting what is at stake for the applicant in the proceedings in question, and observing that the proceedings which have lasted for six years are still pending at the trial stage, the Commission considers that the reasonable time within the meaning of Article 6 para. 1 of the Convention has been exceeded.

CONCLUSION

88 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

E. As regards Article 8 of the Convention

89 . Article 8 of the Convention, insofar as relevant, reads as follows:

"1. Everyone has the right to respect for his ... correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

90 . The applicant complains that the prison administration checked the content and requested the translation of his application to the Commission.

91 . The Government state that they have inspected the correspondence register of the Lovech prison for the period of time between 8 and 23 February 1996 and that there was no entry which would indicate that the applicant had sent a letter to the Commission through the prison authorities.  The Government conclude that the applicant's assertion that he sent the application form through the prison administration and not by handing it over to a visitor is not based on any evidence.

92 . The Government admit that under Bulgarian law as in force at the relevant time the Commission was not listed among the bodies to which the prisoners were entitled to write without control of their letters.  In their letter of 19 October 1998 the Government informed the Commission that in June 1998 the law had been amended.  The Government submit that in any event under the legislation in force at the relevant time prisoners' letters to the Commission could not be withheld under Section 37 of the Regulations to the law on Execution of Punishments, as this would not have been considered necessary on grounds of "security, [the prison] regime or on the basis of educational considerations".

93 . The Commission recalls that an interference with the right to respect for a person's correspondence is in breach of Article 8 of the Convention unless it is lawful and necessary in a democratic society for one of the purposes provided for under the second paragraph of this provision.

94 . According to the Convention organs' case-law, some measure of control over prisoners' correspondence is called for in order to secure the order in prison and is not in itself incompatible with the Convention.  However, under the Convention there can be no compelling reason for the control of the Commission's correspondence (cf. Eur. Court HR, Campbell v. the United Kingdom judgment of 25March 1992, Series A no. 233, pp. 18, 22, paras. 44-45 and 62).

95 . The Commission notes that under Sections 33 and 37 of the Law on the Execution of Punishments and Sections 37 and 43 of the Regulations to this Law, as in force at the relevant time and until June 1998, it was in principle possible for an officer of the prison administration to check the content of letters to the Commission to verify whether there were reasons to withhold them relating to "security, [the prison] regime, or on the basis of educational considerations" (see paras. 49 and 50).

96 . Against this background the Commission considers that there is sufficient prima facie evidence supporting the applicant's allegations that on 13 February 1996 he sought to send the application form through the prison administration, that the latter examined its content, and that the applicant was told that an official translation into Bulgarian was necessary before the form could be sent (see para. 45). The Commission further notes that the Government have not submitted a copy of the relevant part of the prison correspondence register and have not adduced any other evidence.

97 . The Commission accepts, therefore, the credibility of the applicant's version of the facts and finds that there has been an interference with his right to respect for his correspondence.

98 . This interference was provided for by Bulgarian law.  However, it follows from the Convention organs' case law (see para. 94 above) that the interference cannot be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention.

CONCLUSION

99 . The Commission concludes, by 23 votes to 2, that in the present case there has been a violation of Article 8 of the Convention.

F. Recapitulation

100 . The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 3 of the Convention (para. 73).

101 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 88).

102 . The Commission concludes, by 23 votes to 2, that in the present case there has been a violation of Article 8 of the Convention (para. 99).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

CONCURRING OPINION OF Mr H. DANELIUS

JOINED BY Mrs G.H. THUNE, Mrs J. LIDDY, Mr N. BRATZA and Mr D. ŠV ÁBY

We agree that there has been no violation of Article 5 (3) of the Convention by reason of the global length of the applicant’s detention on remand. We wish to specify that in our view the period involved was not that set out at paragraph 66 of the Report (eighteen months and one week) but closer to thirteen and a half months.

With respect, we consider that the periods involved at paragraph 66 should be calculated in a different way. We can agree that in the circumstances of this case the first period involved lasted from 18 November 1992 to 13 May 1993, i.e. almost six months. We also agree that the third period lasted from 20 May to 11 August 1997, i.e. approximately two months and three weeks. However, the second period should in our view be calculated from 29 April to 30 September 1996 (instead of 20 February 1997), i.e. approximately five months.

The date 30 September 1996 was the date on which the applicant was convicted by the Rousse District Court and sentenced to two years’ imprisonment (paragraph 37 of the Report). The date 20 February 1997 was the date on which, although he was already imprisoned, his sentence began in terms of domestic law, apparently because of the effect in domestic law of his intervening appeal to the Rousse Regional Court (paragraph 38 of the Report).

The Court has had occasion to rule on whether detention on remand ceases with the pronouncement of a first instance judgment for the purposes of Article 5 (3) notwithstanding that under domestic law it may continue until after an appeal and final sentence. Thus, in B. v. Austria (Judgment of 28 March 1990, Series A, vol. 175) the Court confirmed its earlier jurisprudence in the Wemhoff case (judgment of 27 June 1968) that “a person convicted at first instance, whether or not he has been detained up to this moment, is in the position provided for by Article 5 (1) (a) which authorises deprivation of liberty ‘after conviction’. This last phrase cannot be interpreted as being restricted to the case of final conviction…”. The Court added in the B. v. Austria case that “it also has to be stressed that there exist important differences among the Contracting States on the question whether a person convicted at first instance has started serving his sentence while an appeal is pending. In this regard the Court, like the Commission, finds it reasonable that the important guarantees of Article 5 (3) of the Convention should not be made dependent on any one particular national situation”.

Accordingly, we consider that if account had been taken of the B. v. Austria judgment the period between 30 September 1996 and 20 February 1997 was to be regarded as detention “after conviction by a competent court” within the meaning of Article 5 para. 1 (a) of the Convention and should therefore not be included in the assessment of whether the applicant’s detention on remand exceeded a reasonable time.

[1]   The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.