MIRONOV v. BULGARIA
Doc ref: 30381/96 • ECHR ID: 001-4000
Document date: October 23, 1997
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AS TO THE ADMISSIBILITY OF
Application No. 30381/96
by Vassil MIRONOV
against Bulgaria
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 October 1994 by
Vassil Mironov against Bulgaria and registered on 6 March 1996 under
file No. 30381/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 December 1996 and the observations in reply submitted by the
applicant on 18 March and 9 May 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Bulgarian national born in 1930 and residing
in Rousse. Before the Commission he is represented by Mr Dobri Dobrev,
a lawyer practising in Lovech.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
a. The applicant's convictions and prison terms
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. Thus, he was in prison between March 1983 and May 1985.
In 1986 the applicant was convicted and sentenced to four years'
imprisonment by the Burgas Regional Court (Okrazhen sad). On 4 January
1988 he was convicted by the Kardjali Regional Court for forgery and
fraud and was sentenced to twelve years' imprisonment. On 14 June 1988
the Supreme Court (Varhoven sad) confirmed this judgment. Subsequently
the Kardjali Regional Court fixed a general term of twelve years'
imprisonment for these two convictions.
The applicant began serving his prison term on 18 December 1988.
On 29 November 1990 the Supreme Court, which was seized by the
applicant's second petition for review (molba za pregled po reda na
nadzora) of the convictions and the sentence, decided to suspend
temporarily the serving of his prison term, pending the outcome of the
review proceedings. The applicant was released on the following day.
On 27 September 1991 the Supreme Court dismissed the applicant's
petition for review. This decision had the effect of automatically
terminating the temporary suspension of the applicant's prison term.
However, due to an administrative omission the competent prosecutors
whose duty was to supervise the enforcement of sentences were not
informed of the Supreme Court's decision until some time in 1993.
On 13 May 1993 the serving of the applicant's twelve years'
sentence was renewed by an order of the Regional Prosecutor's Office
in Rousse. At that time the applicant was in prison as on 18 November
1992 he had been detained on remand in case No. 1856/92 on charges of
misappropriation of funds, allegedly committed in 1991 and 1992 (see
below).
On 29 April 1996 the Lovech Regional Court examined the state of
enforcement of the applicant's 1988 sentence. The Court ordered his
conditional release on parole (predsrochno uslovno osvobozhdavane),
thus granting a remission of the remaining part of his twelve years'
sentence. However, the applicant was not released in view of the
prosecutor's orders for his detention on remand in case No. 1856/92
(see below).
On 30 September 1996 the applicant was convicted by the Rousse
Regional Court 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
be "liquidated". He was convicted under Section 114 para. 3 of the
Penal Code and sentenced to two years' imprisonment.
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.
On 20 May 1997, upon the applicant's petition for review, the
Supreme Court quashed the 1996 conviction and acquitted the applicant.
b. The 1992 criminal proceedings and the applicant's detention on
remand
On an unspecified date in 1992 the investigation service
(sledstvena sluzhba) in Rousse opened preliminary investigation
No. 1856/92 against the applicant on charges of misappropriation of
funds by means of forgery of documents under Section 212 para. 4 of the
Penal Code (Nakazatelen kodeks). The charges concerned the activities
of A., the limited liability company which the applicant had registered
with other persons in 1991. 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 thorough the presentation of false invoices.
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 against his client's detention on remand.
On 18 January 1993 the Chief Public Prosecutor's Office (Glavna
prokuratura) dismissed another petition for release as there existed
a danger of absconding and of repetition. On 13 April 1993 and again
on 25 April 1995 the investigator (sledovatel) charged the applicant
with some additional crimes in the framework of case 1856/92 and
confirmed that the 1992 order for his detention on remand was in force.
At the time there were other criminal proceedings pending against
the applicant. They had been opened by the Gorna Oriahovitsa District
Prosecutor's Office (Raionna prokuratura) in 1990, on charges of
misappropriation of funds, but were eventually discontinued by a
prosecutor's decision of 24 January 1995. It appears that there has
been no separate decision for the applicant's detention on remand in
the framework of these criminal proceedings.
In the course of the proceedings in case 1856/92 the investigator
in Rousse collected documentary material and examined witnesses. Some
of the witnesses were examined by delegation in other cities.
On an unspecified date in 1994 the preliminary investigation in
case No. 1856/92 was concluded and an indictment was submitted to the
Rousse Regional Court. On 29 December 1994 the Court found that the
investigating authorities had incorrectly refused to allow the
examination of certain witnesses. As a result the case had to be
returned to the prosecution authorities for further investigation.
On an unspecified date in 1995 the additional investigation was
concluded and a new indictment was submitted to the Regional Court.
On 9 October 1995 a judge at the Court ordered the return of the case
again to the prosecution authorities. The order stated inter alia that
the prosecution authorities had not examined the applicant's request
for the replacement of the investigator in his case. Also, additional
evidence had to be collected.
On 16 October 1995 the Regional Prosecutor's Office in Rousse
refused the applicant's request for the replacement of the investigator
and sent the case for additional investigation. This was concluded
soon thereafter and an indictment was prepared on an unspecified date
in 1996.
The criminal proceedings against the applicant, which originated
in investigation case No. 1856/92 are still pending.
In a letter of 18 December 1995, one of his numerous letters to
the Chief Public Prosecutor, the applicant asked inter alia that
measures be taken against the Rousse Regional Prosecutor's Office
(Okrazhna prokuratura) for having delayed allegedly deliberately the
examination of the criminal case.
On 13 May 1996 the applicant unsuccessfully requested the Chief
Public Prosecutor to release him as he had no sentence to serve any
more, the courts having relieved him from serving the remainder of his
twelve years' sentence (see above, The applicant's convictions and
prison terms). The applicant further contended that the charges
against him in case No. 1856/92 were absurd.
On 3 June 1996 the Rousse Regional Court examined another request
for release and ordered the applicant's release on bail (pod
garantzia). The amount of the bail was fixed at 800,000 leva (about
30,000 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".
The applicant appealed against this decision, stating that he
could never find 800,000 leva. On 30 September 1996 the Supreme Court
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
(Nakazatelno-protzesualen kodeks) 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.
The applicant failed to post bail and was not released. On
20 February 1997 he began serving his 1996 sentence (see above).
Following the Supreme Court's judgment of 20 May 1997 which quashed the
1996 conviction and sentence and acquitted the applicant, he remained
in the Lovech prison, apparently on the strength of the orders for his
detention on remand in the framework of the criminal proceedings which
had commenced in 1992 and are still pending.
On 11 August 1997 the applicant posted bail of 800,000 leva and
was released.
c. The alleged taking of the applicant's and his company's property
In 1991 the applicant engaged in trade and registered limited
liability company A., together with several other persons, one of whom
was apparently a former prosecutor. On an unspecified date the
Bulgarian People's Party, a political party which has never been
represented in Parliament, also became a shareholder. The applicant
was a shareholder and the president of A.
Disputes developed among the shareholders and on 8 May 1992 the
commercial register at the local court registered the ousting of the
applicant and the election of a Mr. B. as president. On 13 July 1992
Mr. B. and the police broke into the applicant's apartment pursuant to
a prosecutor's order. The order instructed the police to assist the
new president of A. to take possession of the company's property.
On 15 September 1992 the Supreme Court quashed the decision of
8 May 1992. It appears that since 20 October 1992 the applicant has
again been legally recognised as president of A.
On 30 April 1992, in the framework of criminal case 1856/92, the
investigating authorities conducted a search in the applicant's
apartment and confiscated documents and a teargas gun.
On 30 November 1992, following the applicant's arrest, the
investigator in case 1856/92 decided to seize four automobiles as a
security in respect of the moneys allegedly misappropriated by the
applicant. The attachment order stated that the automobiles belonged
to the applicant. However, in a document issued later, on 13 April
1993, the investigator referred to the cars as the property of A., the
applicant's company. In his submissions before the Commission the
applicant also states that the cars belong to his company A.
Two of the attached automobiles were found and were taken for
keeping by the police. The other two were in the possession of two
shareholders of A.
The applicant submitted numerous complaints to various
institutions alleging that the prosecutor and the investigator who were
conducting his case had personal interest in it as they were connected
with private companies which sought to destroy his business. He stated
inter alia that the prosecutor had stolen the property of his company,
that in 1993 a sum of 1,400,000 leva disappeared from his company's
account with a private bank, that the investigator had asked him for
1 million leva in exchange for his release, and generally that his
arrest and detention were the result of a plot against him. On
29 November 1995 the applicant was heard personally by the Chief Public
Prosecutor of Bulgaria. The parties have not substantiated whether the
applicant's complaints have resulted in the institution of any
proceedings against the implicated persons.
In 1994 and again in 1996 the applicant, acting without a lawyer,
brought civil actions for damages against two prosecutors personally
and against the Regional Prosecutor's Office. After inviting the
applicant to clarify his claims on an unspecified date in the end of
1995 the Regional Court rejected the first claim as it clearly
constituted a criminal complaint, and sent it to the prosecution
authorities. The second civil claim concerned the alleged damages
suffered by the applicant from the fact that his 1988 conviction and
sentence of twelve years' imprisonment were allegedly unlawful. The
Kardjali Regional Court dismissed this claim on 9 December 1996.
The applicant apparently has not instituted civil proceedings to
recover a particular possession.
d. The applicant's correspondence with the Commission
On 13 February 1996 the applicant prepared his application form
to the Commission and 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 and enclosing 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. His second application
form of 14 March 1996, identical in content, arrived on 25 March 1996.
B. Relevant domestic law and practice
a. As regards the criminal proceedings and the detention on remand
A crime under Section 212 para. 4 of the Penal Code is a
misappropriation of large amounts effected through the use of forged
documents, when the case is grave. The penalty is ten to twenty years'
imprisonment.
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 ..."
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 case where the
charges concern] a serious wilful crime.
(2) In the cases under 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] ..."
b. As regards the alleged taking of property
Section 156 of the Code of Criminal Procedure provides that an
investigator, a prosecutor, or the court should "take measures", by way
of attachment or seizure, to secure the payment of sums, which could
become due in respect of a civil claim brought by the victims of the
alleged crime or in respect of fines or confiscations which could be
imposed if the accused person is convicted. Paragraph 4 of Section 156
reads as follows:
"The measure [to secure the payment] ... shall be effected
according to the Civil Procedure Code (Grazhdansko-protzesualen
kodeks)".
This provision is apparently construed in the sense that only the
rules concerning the types of seizures or attachments and the legal
consequences thereof are to be found in the Civil Procedure Code. It
has not been construed, in the courts' jurisprudence, as meaning that
prosecutors or investigators have to follow the procedure under the
Civil Procedure Code and, accordingly, apply to a court for an
attachment or seizure order.
In practice attachments and seizures are ordered by an
investigator or by a prosecutor, when the case is at the preliminary
investigation stage. This decision apparently can be appealed against
only to the higher levels of the prosecution authorities, as long as
the case has not been sent for trial.
According to Section 255 when the criminal case comes into the
hands of the court, the judge rapporteur, before the commencement of
the trial, is competent to decide on requests concerning the imposed
attachment or seizure. During the trial such requests are to be
examined by the trial court. According to Section 344 the orders
delivered by the judge rapporteur or by the court are subject to appeal
to the higher court (cf. opredelenie No. 398 ot 11.11.1993 po n.d.
No. 901/92, Sbornik nak. kolegii 1992/93, str. 176).
c. As regards the applicant's correspondence with the Commission
Under Section 37 para. 2 of the Law on the Execution of
Punishments (Zakon za izpalnenie na nakazaniata) 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 are not subject to control if they have
been submitted in a sealed envelope. The letters to the Commission are
not covered by this provision. According to Section 43 of the
Regulations implementing the Law on the Execution of Punishments 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.
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. In these cases the prisoner shall be informed.
COMPLAINTS
The applicant complains under Article 5 of the Convention that
his detention is unlawful and unreasonably lengthy. Thus, in 1990 he
was lawfully released from prison but afterwards, in November 1992, he
was detained on remand on new charges. However, as the new charges
allegedly proved very weak, in 1993 he was ordered to serve the
remaining part of his 1987 sentence. The applicant contends that the
purpose of his detention was to keep him out of business and to
facilitate the stealing of his property.
The applicant complains under Article 6 of the Convention of the
length of the criminal proceedings which are pending against him since
1992 and also that the prosecutors and the investigators in his case
are corrupt and biased.
The applicant complains, invoking Article 1 of Protocol No. 1 to
the Convention, that his and his company's property was stolen by
shareholders of A. and by the prosecutors and that nothing has been
done to punish the perpetrators.
The applicant also alleges that the prison administration checked
the content of his application to the Commission. He states that when
he passed to the prison administration his letter containing the
application form, he was told that an official translation into
Bulgarian was necessary since the application form had been written in
a foreign language, in English. The applicant offered his own
translation, but this was allegedly rejected.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 October 1994 and registered
on 6 March 1996.
On 22 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written 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.
THE LAW
1. The applicant complains under Articles 5 and 6 (Art. 5, 6) of the
Convention in respect of the criminal proceedings against him, under
Article 1 of Protocol No. 1 (P1-1) to the Convention of the alleged
taking of his and his company's property, and also of the alleged
control by the prison administration of his application form sent to
the Commission.
The Government make a preliminary objection that the application
is an abuse of the right of petition within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention because it is premature, the
applicant not having brought all his complaints before the national
authorities, and also because it contains defamatory statements which
tarnish Bulgaria's international reputation.
The applicant disputes the Government's position.
The Commission considers that the arguments relied upon by the
Government, insofar as they have been substantiated, cannot lead to a
finding that the application is an abuse of the right of petition
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention
(cf. No. 22497/93, Dec. 20.2.95, D.R. 80, p. 138; No. 24760/94, Dec.
27.6.96, D.R. 86, pp. 54, 68).
2. The applicant complains under Article 5 (Art. 5) that his
detention is unlawful and unreasonably lengthy.
Article 5 (Art. 5) of the Convention, 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:
a. the lawful detention of a person after conviction by
a competent court;
...
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;
...
3. 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.
..."
a) As regards the applicant's complaint under Article 5 para. 1
(Art. 5-1) of the Convention that his detention was unlawful the
Government submit that he has not exhausted all domestic remedies
because the criminal proceedings against him are still pending. The
Government further maintain that the applicant's detention has been
lawful at all times. Thus, there have been two grounds for his
detention - his conviction and his detention on remand and they were
lawfully imposed, in accordance with the applicable provisions of the
Code of Criminal Procedure.
The applicant replies inter alia, that his 1988 conviction was
based on false evidence and that therefore he should have been entitled
to its revision and annulment. Furthermore, the charges brought
against him in 1992 were invented and were a part of a plot which
involved corrupt prosecutors.
The Commission finds that this complaint is manifestly ill-
founded, the applicant's detention having been partly a detention
"after conviction by a competent court" under subpara. 1(a) of
Article 5 (Art. 5) of the Convention and, in its remaining part,
detention on remand in pending criminal proceedings, under subpara.
1(c) of this provision. Furthermore, in the light of all the material
in its possession the Commission does not find any indication that the
detention was unlawful or ordered otherwise than "in accordance with
a procedure prescribed by law", within the meaning of Article 5 para. 1
(Art. 5-1).
Insofar as the applicant may be understood as complaining that
there was no "reasonable suspicion" of his having committed a crime
when he was detained on remand in the framework of case 1856/92, the
Commission notes that the charges against him were based on documents,
testimonies and other evidence which indicated that he may have forged
documents and acted fraudulently in order to obtain money from third
persons. Finally, there was no dispute that the acts of which he was
accused were considered a crime under Bulgarian law (cf. Eur. Court HR,
Loukanov v. Bulgaria judgment of 20 March 1997, Reports 1997-II,
No. 34, para. 41).
It follows that this part of the application has to be rejected
as being manifestly ill-founded under Article 27 para. 2 (Art. 27-2)
of the Convention.
b) As regards the complaint under Article 5 para. 3 (Art. 5-3) of
the Convention concerning the length of the applicant's detention on
remand, the Government submit that the applicant has not complied with
Article 26 (Art. 26) as the criminal proceedings against him are still
pending, because he has not submitted requests for a speedy examination
of his case and also because he has not raised before the domestic
authorities, at least in substance, the complaint now made before the
Commission.
Furthermore, 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 Proceedings did not allow any discretion, but required that
the accused be detained 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.
The Government finally maintain that the length of the
applicant's detention was not contrary to Bulgarian law, which does not
provide for a time-limit for detention on remand. Also, it was
"reasonable", within the meaning of Article 5 para. 3 (Art. 5-3) of the
Convention, regard being had to the complexity of the investigation.
The applicant replies inter alia that he has submitted numerous
requests for release and has complained to all levels of the
prosecution authorities. He contends that the release on bail was
fictitious as he could not pay 800,000 leva. Furthermore, the
detention was unreasonably long.
The Commission recalls that the only remedies that Article 26
(Art. 26) requires to be exhausted are those which are available and
sufficient and relate to the particular breaches alleged (Eur. Court
HR, Brozicek v. Italy judgment of 19 December 1989, Series A no. 167,
p. 16, para. 32). When a State seeks to rely on the rule of exhaustion
of domestic remedies, it falls to the State to indicate the relevant
remedies that have not been utilised by those concerned (Eur. Court HR,
De Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May
1984, Series A no. 77, p. 18, para. 36).
The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention that there has been a violation of his right to "a trial
within a reasonable time or to release pending trial". It does not
appear that the fact that the criminal proceedings against him are
still pending has any relation to the question of exhaustion of
domestic remedies in respect of this complaint.
It is not disputed that the applicant appealed against his
detention on remand to the Rousse Regional Court on 1 December 1992,
shortly after his arrest, and that within the relevant period of time
he submitted many other requests for release to the prosecution
authorities and again to the court. Furthermore, he eventually
obtained an order for release on bail and then appealed against it,
seeking the lowering of the amount of bail. In all these petitions the
applicant disputed the existence of reasons justifying his detention
on remand and insisted to be released, thereby clearly invoking in
substance his right under Article 5 para. 3 (Art. 5-3) of the
Convention. Finally, the Government have not indicated any legal
provision in Bulgarian law which provides for a remedy other than those
used by the applicant.
The Commission, therefore, is satisfied that the applicant has
exhausted all domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.
Having examined the applicant's complaint under Article 5 para. 3
(Art. 5-3) of the Convention, the Commission finds that it raises
serious questions of fact and law which are of such complexity that
their determination should depend on an examination of the merits.
This part of the application cannot, therefore, be regarded as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other grounds for declaring it
inadmissible have been established.
3. The applicant complains under Article 6 (Art. 6) of the
Convention that the criminal proceedings in case 1856/92 have continued
for an unreasonably long period. He also complains that the
investigators and the prosecutors were biased and corrupt.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing
within a reasonable time by an ... impartial tribunal established
by law.
..."
The Government submit that the requirements of Article 26
(Art. 26) have not been complied with as the applicant has not
submitted requests for a speedy examination of his case. Furthermore,
the complaint is inadmissible as the criminal proceedings are still
pending.
The applicant replies inter alia that he has employed all
available remedies and that his complaints are well-founded.
a) As regards the applicant's complaint of the alleged bias of the
prosecutors and the investigators, the Commission recalls that the
primary purpose of Article 6 (Art. 6), as far as criminal matters are
concerned, is to ensure as a whole a "fair trial" by a "tribunal"
competent to determine "any criminal charge". The requirements of this
provision could be relevant in pre-trial proceedings insofar as the
fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with them (Eur. Court HR, Imbrioscia v.
Switzerland judgment of 24 November 1993, Series A no. 275, p. 13,
para. 36; cf. also Can v. Austria, Comm. Report 12.7.84, paras. 49, 50,
Eur. Court HR, Series A no. 96, pp. 15, 16).
However, the applicant's complaints of alleged bias concern the
preliminary investigation, and not a "trial" before a "tribunal" within
the meaning of Article 6 (Art. 6) of the Convention. The criminal
proceedings against the applicant are still pending. The Commission
cannot speculate whether the applicant will be put on trial, whether
the evidence taken will be used at this trial, whether the trial will
be fair as a whole, or whether the applicant will be convicted. The
Commission finds that the applicant cannot, at this stage, claim to be
a victim of the alleged violation of his right to a "fair trial" by an
"impartial tribunal" under Article 6 para. 1 (Art. 6-1) of the
Convention (cf. No. 31195/96, Dec. 27.2.97, D.R. 88, p. 169).
It follows that this part of the application is premature and
thus manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) As regards the complaint concerning the length of the criminal
proceedings in case 1856/92 against the applicant, the Commission notes
that the Government have not indicated any provision of Bulgarian law
which affords a remedy in respect of such a complaint. Moreover, the
Commission recalls that as regards complaints of excessive length of
criminal proceedings an application by the accused to accelerate the
proceedings cannot be regarded as an effective remedy. The accused
person cannot be obliged to step into the role of the prosecution and
advance the proceedings against himself (No. 8435/78, Dec. 6.3.82,
D.R. 26, pp. 18, 20). Finally, in his letter to the Chief Public
Prosecutor of 18 December 1995 the applicant indeed raised the question
of the alleged improper delays in the proceedings.
This complaint, therefore, cannot be rejected under Article 26
(Art. 26) of the Convention.
Having examined the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention concerning the length of the criminal
proceedings against him, the Commission finds that it raises serious
questions of fact and law which are of such complexity that their
determination should depend on an examination of the merits. This part
of the application cannot, therefore, be regarded as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other grounds for declaring it inadmissible have
been established.
4. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that he has been deprived unlawfully of certain possessions and
that nothing has been done to punish the perpetrators.
The Government submit that part of the complaints concern acts
of private persons, that the applicant has not exhausted all domestic
remedies in respect of the acts of the authorities complained of, and
that in any event their acts, such as the attachment of the applicant's
cars, were lawful and justified measures.
The applicant replies inter alia that he has exhausted all
possible remedies as he complained to all levels of the prosecution
authorities. Furthermore, in January 1994 he submitted a request to
the President of the Rousse Regional Court seeking the repeal of the
seizure order of 30 November 1992. As he did not receive an answer
he submitted another request to the President of the Supreme Court on
23 August 1994. The applicant admits that these requests were not in
the proper legal form, but states that the courts were required to
examine them.
The applicant also argues that the seizure had to be ordered by
an enforcement judge, in accordance with Section 319 of the Civil
Procedure Code, to which Section 156 para. 4 of the Code of Criminal
Procedure refers, and that this was not done in his case.
The applicant further states that his property was stolen with
the active participation of corrupt prosecutors and investigators and
that the respondent Government are hiding the facts, thus protecting
the criminals who ruined him.
a) Insofar as the applicant's complaints concern the seizure of
documents from his office on 30 April 1992 and other events prior to
7 September 1992, the date of the Convention's entry into force in
respect of Bulgaria, the Commission finds that it is not competent
ratione temporis to examine them.
The Commission further notes that most of the applicant's
complaints under Article 1 of Protocol No. 1 (P1-1) to the Convention,
such as the allegation that a sum of money has "disappeared" from his
company's bank account with a private bank and that some shareholders
of A. have allegedly unlawfully taken the property of the company,
concern acts of private persons and are incompatible ratione personae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
Insofar as the applicant complains of the refusal of the
authorities to prosecute those responsible for the alleged stealing of
his property, the Commission finds that this complaint is incompatible
ratione materiae with the provisions of the Convention, the Convention
not guaranteeing a right to institute criminal proceedings against a
third person (No. 7116/75, Dec. 4.10.76, D.R. 7, p. 91).
It follows that this part of the application has to be rejected
under Article 27 para. 2 (Art. 27-2) of the Convention.
b) As regards the seizure of four automobiles on 30 November 1992,
the Commission observes that they apparently belonged to A., a limited
liability company with its own legal personality, which is free to
bring an application to the Commission (cf. Eur. Court HR, Agrotexim
v. Greece judgment of 24 October 1995, Series A no. 330).
Nevertheless, the Commission need not decide whether the
applicant's complaint under Article 1 of Protocol No. 1 (P1-1) to the
Convention is raised in his individual capacity or on behalf of A., or
whether the applicant currently represents A., as this part of the
application is in any event inadmissible for failure to exhaust all
domestic remedies under Article 26 (Art. 26) of the Convention.
The Commission recalls the Convention organs' case-law according
to which normal recourse should be had by an applicant to remedies
which are available and capable of remedying the breaches alleged (Eur.
Court HR, Beis v. Greece judgment of 20 March 1997, Reports 1997-II,
No. 34, para. 32). There is no exhaustion of domestic remedies where
a domestic appeal is not admitted because of a procedural mistake (No.
6878/75, Dec. 6.10.76, D.R. 6, p. 79).
The applicant claims, without submitting a copy of any document
in this respect, that he has made a request to the President of the
Rousse Regional Court in January 1994, asking for the return of his
cars. However, it is unclear whether the criminal case against him was
already pending before the Rousse Regional Court at that time. If the
case was still at the preliminary investigation stage, the Court was
apparently not competent to examine the request.
In any event, the applicant did not appeal against the refusal
of the Rousse Regional Court to examine his request, but submitted, on
23 August 1994, a fresh petition, addressed to the President of the
Supreme Court. In this petition the applicant asked the President of
the Supreme Court to repeal the order of the investigator of
30 November 1992 and to order the return of his stolen property.
However, neither the Supreme Court, nor its President, are competent
to repeal orders of investigators.
Moreover, the applicant has not made before the national
authorities the submission which he is now putting before the
Commission: that the cars were seized in violation of Section 156
para. 4 of the Code of Criminal Procedure and the provisions of the
Code of Civil Procedure. In his numerous letters to various
institutions he stated that the seizure was unlawful, but only because
he had been a victim of a plot for the stealing of his possessions.
In these circumstances it does not appear surprising that the
authorities apparently treated the applicants' petitions as repeated
criminal complaints for the institution of criminal proceedings against
the allegedly implicated prosecutors.
Finally, insofar as the applicant claims that the cars are in the
possession of third persons without any legal ground, it is open to him
to seek their recovery by way of civil action for restitution.
The Commission considers, therefore, that the applicant has not
made proper use of the opportunities to challenge the seizure of the
cars before the national authorities and that, consequently, he has not
exhausted all domestic remedies within the meaning of Article 26
(Art. 26) of the Convention in this respect.
It follows that this part of the application has to be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
5. The applicant complains that the prison administration checked
the content and requested the translation of his application to the
Commission.
The Government provide excerpts of Section 33 of the Law on
Execution of Punishments and Section 37 of the Regulations for the
implementation of this law, which concern the prisoners' general
correspondence (see above Relevant domestic law and practice). The
Government state that the content of the prisoners' letters to the
Commission in general, and in the applicant's case, cannot be withheld
under Section 37 of the Regulations, as this would not be considered
necessary on grounds of "security, [the prison] regime or on the basis
of educational considerations".
The applicant maintains his complaint. He states in addition
that prisoners cannot send registered letters or make telephone calls.
The Commission considers that the applicant's complaint about the
control of his letter of 13 February 1996 to the Commission falls to
be examined in the light of the alleged hindrance of the right of
individual petition under Article 25 (Art. 25) of the Convention, and
also under Article 8 (Art. 8) of the Convention (cf. Campbell v. the
United Kingdom, Comm. Report 12.7.90, para. 74, Eur. Court HR, Series
A no. 233, p. 41). Furthermore, in his observations in reply to the
Government's observations the applicant raises a general complaint as
regards his right to correspondence.
a) Having examined the applicant's complaint about the control of
his letter of 13 February 1996 in the light of Article 8 (Art. 8) of
the Convention, the Commission finds that it raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. This part of the
application cannot, therefore, be regarded as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,
and no other grounds for declaring it inadmissible have been
established.
b) In respect of the alleged hindrance of the right to individual
petition the Commission finds no evidence that the applicant, whose two
application forms arrived promptly, and who was able to communicate
effectively with the Commission since the introduction of his
complaints, suffered any prejudice in regard to the presentation of his
application or that he was in any way frustrated in the exercise of his
right to submit an application.
The Commission does not consider, therefore, that the applicant
was hindered in the exercise of his right of individual petition under
Article 25 (Art. 25) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints: under Article 5 para. 3 of the Convention
of an alleged breach of 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 his complaint under Article 8 of the Convention that the
prison administration checked the content and requested the
translation of his application form to the Commission.
DECLARES INADMISSIBLE the remainder of the application.
DECIDES to take no further action in respect of the applicant's
complaint of the alleged hindrance of his right to individual
petition under Article 25 of the Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber