AS TO THE ADMISSIBILITY OF

                       Application No. 33977/96

                       by Petar ILIJKOV

                       against Bulgaria

     The European Commission of Human Rights sitting in private on

20 October 1997, the following members being present:

           Mr    S. TRECHSEL, President

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM    E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 25 October 1996

by Petar ILIJKOV against Bulgaria and registered on 26 November 1996

under file No. 33977/96;

     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 14

     February 1997 and the observations in reply submitted by the

     applicant on 8 May 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Bulgarian national born in 1955 and residing

in Plovdiv.  He is currently in prison.  Before the Commission he is

represented by Mr Mihail Ekimdjiev, a lawyer practising in Plovdiv.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

A.   Particular circumstances of the case

     The criminal proceedings

     On 4 October 1993 the applicant was arrested on charges under

Section 212 paras. 1,2 and 4 of the Penal Code (Nakazatelen kodeks)

concerning forgery of documents and fraud effected between 9 April and

10 September 1993.  The applicant, with the assistance of a customs

officer and two other accomplices, had made false customs declarations

certifying fictitious exports of loads of cigarettes, which in reality

had been sold in the country.  On the basis of the false declarations

the applicant had obtained the reimbursement of 7,811,400 leva in

excise tax and had attempted to obtain the reimbursement of another

7,419,000 leva, the total amount at stake having been 15,230,400 leva

(about 3,000,000 FF at the time).

     The preliminary investigation was concluded on 1 April 1994 when

the indictment drawn up by the prosecutor was submitted to the Plovdiv

Regional Court (Okrazhen sad).

     The Plovdiv Regional Court held several hearings.  There is a

dispute between the parties as to the reasons for certain adjournments.

     It appears undisputed, however, that some of them were related

to the examination of the appeals, submitted to the Supreme Court

(Varhoven sad) by the applicant and by his accomplices, against the

refusals of the Plovdiv Regional Court to order their release on bail

(see below, The applicant's detention on remand).  In practice,

whenever such an appeal was submitted, the Plovdiv Regional Court

transmitted the file of the criminal case together with the appeal to

Sofia, to the Supreme Court.  It was thus impossible for the Plovdiv

Regional Court to deal with the case until the return of the file from

the Supreme Court.

     It appears that the case-file was thus transmitted: on or about

20 May 1994 and returned shortly after 30 June 1994; on or about

7 December 1994 and returned shortly after 21 February 1995; on or

about 28 September 1995 and returned shortly after 6 November 1995; on

or about 16 April 1996 and returned shortly after 28 May 1996;  on

19 November 1996 and returned shortly after 4 December 1996.  When

transmitting the case-file on 19 November 1996 the Regional Court

accompanied it with a note asking for a speedy examination in view of

the fact that a hearing had been scheduled for 19 December 1996.

     As from 19 February 1996 the Plovdiv Regional Court had to

recommence the examination of the case because one juror (sadeben

zasedatel) had fallen ill and had to be replaced.  The new chamber of

the court held a hearing on 26 and 27 March 1996.

     Another hearing was scheduled for 7 and 8 May 1996, but at that

time the case-file was in Sofia at the Supreme Court.  As a result the

hearing was adjourned for 16 and 17 September 1996, the earliest dates

available, in view of the courts' holidays.  However, since a juror had

broken his leg and was unable to attend, the hearing was adjourned

again for 29 and 30 October 1996.

     On 29 October 1996 the parties to the criminal case, including

the applicant who at that time was on a hunger strike (see below, The

applicant's hunger strike), appeared before the Plovdiv Regional Court.

The Court heard the medical experts who had been appointed on the

previous day and had examined the applicant briefly.  The experts

stated that the applicant needed to undergo a full examination in a

hospital.  On 30 October 1996 the Court ordered the applicant's

temporary placement in a hospital and adjourned the hearing, the

reasons therefor being disputed between the parties.  The applicant

submits that the reason for the adjournment was the absence of several

witnesses and the Court's order for medical checks in a hospital,

whereas the Government maintain that the only reason was the

applicant's state of health, the medical experts having considered that

he was not in a condition to participate in the hearing.

     The hearing ultimately took place on 29, 30 and 31 January 1997.

The Plovdiv Regional Court heard witnesses and the submissions of the

parties to the criminal case and examined other evidence.  The Court

could not hear four of the witnesses as they did not appear.  The

applicant apparently unsuccessfully requested the adjournment of the

hearing in order to question these witnesses, whose attendance had

previously been requested by both parties.

     On 31 January 1997 the Court convicted the applicant and

sentenced him to thirteen years' imprisonment.  His accomplices were

also convicted and sentenced to terms of imprisonment between eleven

and twelve years.  The Court reserved the reasoning of its judgment.

As of 1 May 1997 the reasoning was not yet prepared.

     It appears that when adjourning the hearings the Plovdiv Regional

Court often did not fix a date for the next hearing, but announced the

date later, through summons sent to the parties.  On several occasions

the summons was received by the applicant between ten days and two

weeks prior to the date of the hearing.

     Throughout the proceedings the applicant was represented by a

lawyer and, at some stages, by two or three lawyers simultaneously.

     On an unspecified date in 1997 the applicant appealed to the

Supreme Court of Cassation (Varhoven kasatzionen sad) against his

conviction and sentence.  The case is currently pending before the

Supreme Court of Cassation.

     The applicant's detention on remand

     On 4 October 1993, the day of his arrest, the applicant was

brought before an investigator who questioned him, in the presence of

his lawyer, and decided to detain him on remand.  This decision was

approved by a prosecutor on an unspecified date.

     On 14 October 1993, when the case was at the preliminary

investigation stage, the applicant appealed to the Plovdiv Regional

Court against his detention on remand.  The Court examined the case in

camera, on the basis of the investigator's file and the applicant's

petition.  By a decision of 3 December 1993 the Court dismissed the

applicant's appeal.

     One of the applicant's accomplices, a Mr H., was released on bail

on 6 November 1993, but was again arrested on 15 February 1994.  When

at large Mr H. attempted to induce Mr. G., a witness, to give false

evidence, a crime under Section 293 of the Penal Code, of which Mr H.

was later convicted.

     Following the conclusion of the preliminary investigation in the

applicant's case, and after its submission on 1 April 1994 to the

Plovdiv Regional Court for trial, the applicant lodged seven requests

for release on bail.  All requests were submitted to, and examined by,

the Plovdiv Regional Court before which the case was pending.

     The requests for release were submitted and dismissed as follows:

the first request, of 3 October 1994, was dismissed by the Regional

Court on 6 October 1994; another request was dismissed by the Regional

Court on 30 November 1994 and, on appeal, the Regional Court's refusal

to release the applicant was confirmed by the Supreme Court on

21 February 1995; a request of 11 July 1995 was dismissed by the

Regional Court on 21 September 1995 and, on appeal, the Regional

Court's refusal to release the applicant was confirmed by the Supreme

Court on 6 November 1995; a request whereby the applicant asked the

Regional Court to annul or alter its refusal of 30 November 1994 was

rejected on 4 December 1995; a request for release on bail of

15 January 1996 was refused by the Regional Court on 20 February 1996;

a request made at the oral hearing on 27 March 1996 was refused by the

Regional Court on the same day, the refusal was confirmed by the same

court by a decision of 9 April 1996 and, on appeal, by the Supreme

Court on 28 May 1996; a request of 15 October 1996 was refused by the

Regional Court on 29 October 1996 and, on appeal, the refusal to

release the applicant on bail was confirmed by the Supreme Court on

4 December 1996.

     In its decision of 21 February 1995 confirming the refusal of the

Regional Court to release the applicant on bail, the Supreme Court

stated that under Section 152 paras. 1 and 2 of the Code of Criminal

Procedure every person accused of a crime punishable by ten or more

years imprisonment had to be detained on remand, the only exception

being a case where it is clear, beyond doubt, that there is no danger

of absconding or re-offending.  In the Supreme Court's view such would

only be cases where, for example, the accused person is seriously ill,

or of an old age or in other condition which excludes the danger of

absconding or re-offending.  Since the applicant was charged with a

crime punishable by more than ten years imprisonment, and as no special

circumstances excluding the danger of absconding or repetition had been

established, there existed no grounds to order the applicant's release

on bail.  The Court referred to its case-law on the matter (see below,

Relevant domestic law and practice).

     The Supreme Court further refused to deal with the applicant's

contention that the evidence against him was weak.  The Court found

that it was not competent to do so in the framework of proceedings

concerning detention on remand.  Its only task was to examine whether

the conditions for detention on remand under Section 152 of the Code

of Criminal Procedure had been met.

     In its decision of 4 December 1995 refusing to annul or alter its

decision of 30 November 1994 as regards the applicant's detention on

remand, the Plovdiv Regional Court stated, in response to the

applicant's assertion that the evidence in the case was weak, that

discussing the evidence in the case and making conclusions related to

the applicant's guilt would be a serious breach of procedure.  The

Court reiterated that the only factors to be taken into account when

deciding on the detention on remand were the gravity of the charges and

the requirements of Section 152 of the Code of Criminal Procedure.

     In its decision of 4 December 1996 confirming the refusal of the

Plovdiv Regional Court of 29 October 1996 to release the applicant on

bail, the Supreme Court stated inter alia that the danger of

absconding, of re-offending and of obstructing the proceedings was

presumed on the basis of the gravity of the crime with which the

applicant had been charged.  The Court further stated that this

conclusion was not affected in any way by the applicant's health

problems, which could be dealt with at the penitentiary, or by the

length of the detention, despite its inevitable negative consequences.

The Court further found that the complaints of the applicant under the

Convention were unfounded.  In particular, the applicant wrongly

considered that certain provisions of the Code of Criminal Procedure

were contrary to the Convention.

     The applicant's hunger strike

     On 23 September 1996 the applicant commenced a hunger strike to

protest against his continuing detention on remand.  On 24 September

1996, upon the order of the prison administration, the applicant was

examined by a doctor.  The doctor recommended regular medical

examinations every second day.  On 4 October 1996, on the eleventh day

of the hunger strike, the applicant was examined by a commission of

three doctors.  They found that the hunger strike had had some effect

on the applicant's state of health, but that it was not significant.

Therefore, artificial feeding was not yet necessary.  The doctors also

explained to the applicant that irreversible changes may occur after

the fifteenth day.

     On 7 October 1996 in the morning the applicant refused to drink

water or accept any other liquid.  At about 2.30 p.m. the medical

doctor at the prison administered an intravenous infusion with the

applicant's consent.

     On 8 October 1996 the applicant refused to accept another

intravenous infusion and did not drink or eat.  On the same day the

director of the prison consulted a prosecutor over the telephone and

authorised the medical commission of three doctors to administer

artificial feeding if necessary.  The order was based on Section 86 of

the Law on the Execution of Punishments (Zakon za izpalnenie na

nakazaniata).

     On 10 October 1996 the medical commission examined the applicant

for the eighth time since the beginning of his strike.  The commission

found that there had been dystrophic changes in the applicant's liver

and that his cardiac rhythm was accelerated.  The commission also found

that the applicant was capable of understanding the consequences of his

acts and that he firmly wanted to continue the strike.  With a view to

preserving the applicant's health the medical commission administered

forced feeding with sweetened yogurt and amino-acids, by using a

medical stomach-tube. The commission also ordered further forced

feeding with concentrated fluid substance prepared at the Medical

Academy in Plovdiv.

     The medical commission drew up a report on 28 October 1996

describing the applicant's state of health on the twenty-seventh day

of his strike.  Dystrophic changes had occurred in several internal

organs.  The continuation of the hunger strike, despite the forced

feeding, was found to be dangerous for the applicant's life.

     It appears that the applicant was brought to a hospital on 2

November 1996 and was returned to the prison a day or two later.

     On 6 November 1996 the applicant was brought to a hospital for

comprehensive examinations, pursuant to the order of the Plovdiv

Regional Court of 30 October 1996.  The conclusion after the

examination was that the applicant's life was not in danger, partly

owing to the forced feeding.  Further to the previously diagnosed

problems, the applicant had developed a gastritis, which could have

been caused by the inadequate alimentary regime.  A treatment with

medicaments was prescribed in this respect.  While in hospital the

applicant's forced feeding  through a medical stomach-tube continued.

     On 8 November 1996 the applicant returned to the prison, where

he continued his hunger strike and was regularly examined and fed

forcefully by the doctor at the prison.  On 18 November 1996 the

applicant made a handwritten declaration stating that he was aware of

the fatal consequences of his acts, but insisted not to be fed

forcefully.  The forced feeding continued, however, because the prison

doctor considered that its suspension would endanger the applicant's

life.

     On 19 November 1996 a commission of three medical doctors drew

up another report on the applicant's condition, after having examined

him at the Medical Academy in Plovdiv.  The report stated inter alia

that the applicant was fit to participate in the hearing of his case

and that more active treatment should be applied against the gastritis,

there having been a danger of acute ulcer.

     On 26 November 1996, upon the applicant's request, he was issued

with a medical certificate drawn up by the doctor at the prison.  The

certificate stated inter alia that the applicant had lost twenty

kilograms.

     On 26 November 1996 the applicant decided to start accepting

liquids temporarily, until 19 December 1996, in order to preserve his

health.  He made a handwritten declaration in this respect.

     On 28 November 1996 the applicant decided to suspend his hunger

strike.

     According to a medical certificate of 20 January 1997, the

applicant's health is satisfactory.

B.   Relevant domestic law and practice

     Paragraphs 1 and 2 of Section 152 of the Code of Criminal

Procedure, as in force at the relevant time and 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 committing another crime."

"(1)  Miarka za neotklonenie zadarzhane pod strazha se vzema za

prestaplenie, za koeto e predvideno nakazanie lishavane ot

svoboda deset ili poveche godini ili smurt.

(2) V sluchaite po predhodnata alinea miarkata za neotklonenie

ne se vzema ako niama opasnost obviniaemiat da se ukrie ili da

izvarshi drugo prestasplenie."

     These provisions, 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."

"(1) Miarka za neotklonenie "zadarzhane pod strazha" se vzema za

tezhko umishleno prestaplenie.

(2)  V sluchaite po al. 1 miarkata za neotklonenie mozhe da ne

se vzeme, ako niama opasnost obviniaemiat da se ukrie, da osueti

razkrivaneto na obektivnata istina ili da izvarshi drugo

prestaplenie."

     According to Section 93 para. 7 of the Penal Code "serious" is

a crime punishable by more than five years' imprisonment.

     The Supreme Court has stated that it is not open to the courts,

when examining an appeal against detention on remand, to inquire

whether there exists sufficient evidence supporting the charges against

the detainee.  The courts have to examine only the lawfulness of the

detention order, i.e. to establish whether there exists a "real danger"

of absconding or of repetition (Decision of 23 May 1995) (opred. No. 24

** n.d. 268/95, I n.o., Sb. 1995, str. 149).

     Paragraph 4 of Section 152 of the Code of Criminal Procedure, as

in force at the relevant time and until 4 June 1995, provided as

follows:

"(4)  The detained person shall be provided immediately with a

possibility to file an appeal before the court against the

[imposition of detention].  Within a time-limit of three days

from the filing of the appeal the court shall pronounce a

decision which is final."

"(4) Na zadarzhania se osiguriava nezabavno vazmozhnost da

obzhalva pred sada miarkata za neotklonenie. Sadat se proiznasia

v tridneven srok ot podavaneto na zhalbata s opredelenie, koeto

e okonchatelno."

     At the trial stage of the criminal proceedings, according to

Section 304 of the Code of Criminal Procedure, the trial court examines

the detainee's requests for release.  According to Section 344 the

decision of the trial court is subject to appeal to the higher court.

The law does not require the trial court or the higher court to decide

within a particular time-limit.

     According to Section 347 and Section 348 para. 2 of the Code of

Criminal Procedure when an appeal has been lodged against a court order

(such as an appeal against detention on remand) the case-file is

transmitted by the lower court to the higher court "when necessary",

or can be requested by the latter.

     Section 86 of the Law on the Execution of Punishments reads as

follows:

"In case a detained person refuses to take food and this

endangers his life or his health, the necessary medical measures

shall be taken in accordance with the doctor's prescription."

"Kogato lisheniat ot svoboda otkazva da priema hrana i tova

sazdava opasnost za zhivota ili zdraveto mu, po predpisanie na

lekaria se vzemat neobhodimite meditzinski merki."

COMPLAINTS

1.   The applicant complains that he was subjected to torture and

inhuman and degrading treatment contrary to Article 3 of the

Convention. He claims that the forced feeding during his hunger strike

was administered by unqualified personnel through a dirty rubber hose,

in a manner which caused violent pain and a sense of helplessness and

represented a serious risk for his life. In particular, according to

independent medical advice, obtained from the London Medical Foundation

for the Care of Victims of Torture, forced feeding administered without

qualified medical supervision on persons on hunger strike may result

in cardiac arrest and death.

     The applicant also claims that his exceptionally long detention

on remand amounted to inhuman and degrading treatment as it was causing

mental demoralisation, breaking of his volitional and physical

stability and a sense of humiliation and helplessness.

2.   The applicant complains that his detention on remand was unlawful

and contrary to Article 5 para. 1 of the Convention.  He submits that

even if the arrest may have been lawful, the continuation of his

detention after a certain lapse of time was not justified, there having

been no danger of absconding or committing a crime.

     The applicant also complains under Article 5 para. 3 of the

Convention that his detention on remand was unreasonably long and that

following his arrest in October 1993 he was not brought before a judge

or other officer exercising judicial power, the investigator not being

sufficiently independent and impartial under Bulgarian law.  As regards

the length of the detention the applicant submits that the case was not

legally complex and that a reasonable bail would have served the

purpose of guaranteeing his appearance in court.  Also, after the

collection of most of the evidence in the case, there could not

possibly exist a danger of him concealing evidence or otherwise

hindering the administration of justice.

     The applicant also raises a complaint under Article 5 para. 4 of

the Convention in respect of the examination of the appeals against his

detention on remand.  He maintains that his appeals were not examined

"speedily" as required by Article 5 para. 4, that the courts decided

in camera and did not provide the guarantees of adversarial

proceedings. Also, his appeals were rejected arbitrarily, without

examining any evidence.  Instead, the Supreme Court in its decision of

4 December 1996 refusing release on bail stated that the  danger of

absconding, of re-offending or of obstruction of justice was presumed

as the applicant had been charged with a serious crime.  Referring to

the jurisprudence of the Supreme Court according to which the courts

are competent to examine only the "formal lawfulness" of the detention,

the applicant also argues that the judicial control on the lawfulness

of his detention was deprived of its essence, the power of the courts

having been very limited.

3.   The applicant also complains under Article 6 paras. 1, 2 and 3

of the Convention that the judges examining his case were partial, that

the proceedings were unfair and unreasonably lengthy.  The applicant

states in particular that the proceedings were unduly delayed; that by

having to decide on seven applications for release on bail, the chamber

of the Plovdiv Regional Court which examined his case inevitably became

partial; that the reasons given for some of the refusals of bail

disclosed prejudged opinion and violated the presumption of innocence;

that the summons for some of the hearings were received by the

applicant in prison ten days prior to the date of the hearing which,

in view of the time necessary to organise a meeting with his lawyer,

left  the applicant without an adequate possibility to prepare for the

hearing; and that he has been on several occasions denied access to his

lawyers. In respect of the latter complaint the applicant has also

invoked Article 25 para. 1 of the Convention, claiming that there has

been a hindrance of the right to individual petition.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 25 October 1996 and registered

on 26 November 1996.

     On 26 November 1996 the Commission decided to communicate the

application to the respondent Government.  The Commission also decided,

pursuant to Rule 36 of its Rules of Procedure, to indicate to the

Government of Bulgaria that it was desirable in the interests of the

Parties and the proper conduct of the proceedings before the Commission

that all necessary steps be taken by the Government to preserve the

applicant's health.  The Commission also decided, pursuant to Rule 36

of its Rules of Procedure, to invite the applicant to stop his hunger

strike.

     On 29 November 1996 the applicant informed the Commission that

he had decided to stop his hunger strike.  On 19 December 1996, in

response to the Commission's request of 6 December 1996, the Government

submitted information about the measures undertaken to preserve the

applicant's health.  On 24 January 1997, noting that the imminent

danger for the applicant's health did not exist any longer, the

Commission decided not to maintain the interim measures under Rule 36

of its Rules of Procedure.

     The applicant elaborated his complaints in the application form

which was submitted on 11 December 1996 and transmitted to the

Government on 13 December 1996.

     The Government's written observations were submitted on

14 February 1997.  The applicant replied on 8 May 1997, after an

extension of the time-limit fixed for that purpose.

THE LAW

1.   The applicant complains that the length of his detention on

remand and the manner in which he was treated during his hunger strike

amounted to treatment contrary to Article 3 (Art. 3) of the Convention.

     Article 3 (Art. 3) of the Convention provides as follows.

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Government submit that the applicant's suffering was the

result solely of his own decision to commence a hunger strike.  He was

repeatedly informed of the grave consequences which might follow if he

persistently refused to accept food and liquids.  Also, the applicant

never claimed that the conditions in the prison were unbearable and

inhuman.  In fact, he has not claimed before the Commission that he had

been subjected to inhuman or degrading treatment by the prison

administration.  He has stated that the strike was in protest to the

refusal of the courts to release him on bail.

     The Government, referring to the Tyrer case (Eur. Court HR,

judgment of 25 April 1978, Series A no. 26), also submit that the

applicant's suffering has not attained such a level or intensity as

would be indicative of an inhuman or degrading treatment.

     The Government further reject the applicant's allegation that his

medical treatment and forced feeding during the hunger strike was

inhuman and degrading.  It is not true that the applicant was treated

by unqualified personnel.  While due to the economic crisis in the

country all medical institutions experience difficulties, there exists

strict professional control, the medical staff is well qualified and

maintains the quality of medical care.   The applicant's health was

closely monitored by medical doctors, and he was twice taken to a

hospital for full examinations. He was forcefully fed only when this

became necessary, by medical personnel, with the use of appropriate

medical equipment and substances.  Finally, the forced feeding was

administered according to a procedure prescribed by law.

     The applicant replies that the torture and inhuman and degrading

treatment complained of was the violent and unprofessional way in which

he was forcefully fed.  In particular, liquid food was poured into his

stomach by unqualified personnel through a dirty rubber hose,

a "medieval" treatment endangering his life.

     The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall under Article 3 (Art. 3).  The

assessment of this minimum is, in the nature of things, relative: it

depends on all the circumstances of the case, such as the duration of

the treatment, its physical or mental effects and, in some case, the

sex, age and state of health of the victim (Eur. Court HR, Ireland v.

the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65

para. 162).

     According to the Court's case-law a measure which is a

therapeutic necessity from the point of view of  established principles

of medicine, cannot in principle be regarded as inhuman and degrading.

The Convention organs must nevertheless satisfy themselves that the

medical necessity has been convincingly shown to exist (Eur. Court HR,

Herczegfalvy v. Austria judgment of 24 September 1992, Series A no.

244, p. 26 para. 83).

     Moreover, the Commission notes that the applicant does not claim

that he should have been left without any food or medicaments

regardless of the possible lethal consequences.  Consequently, the

applicant does not claim that the forced feeding per se, as an act of

disrespect for his will to continue the hunger strike, amounted to

torture and inhuman and degrading treatment contrary to Article 3

(Art. 3) of the Convention.

     The Commission, therefore, is called upon to examine whether the

manner in which the applicant was fed forcefully, and treated in

general during the hunger strike, amounted to torture or inhuman and

degrading treatment within the meaning of Article 3 (Art. 3) of the

Convention.

     The Commission notes that the applicant's statement that he was

fed by unqualified personnel through a dirty rubber hose is not

supported by the medical reports.  The applicant has not claimed that

these reports were false.  Nor has he challenged the medical doctors'

finding that forced feeding was necessary.  Indeed it aimed at

preserving his life, and was apparently decisive for the fact that the

applicant's health did not deteriorate.

     Also, it appears established that the applicant was under

constant medical supervision, that he was examined practically every

two or three days by one or more medical doctors, that he was twice

brought to hospital for extensive examinations and that the forced

feeding and the treatment were ordered and administered by medical

doctors.  Moreover, it does not appear that the feeding and medical

treatment resulted in any aggravation of the applicant's health.

     In these circumstances the Commission does not consider that the

applicant was subjected to torture or inhuman and degrading treatment

during the period of his hunger strike.

     As regards the applicant's complaint that the length of his

detention caused suffering which amounted to inhuman and degrading

treatment, the Commission notes that the applicant has not raised any

complaint in respect of the conditions of detention.  While his

prolonged stay in detention pending trial undoubtedly caused distress,

the Commission does not consider that in the particular case it

amounted to inhuman and degrading treatment contrary to Article 3

(Art. 3) of the Convention.  Also, the issues related to the length of

the detention on remand as such fall to be examined under Article 5

para. 3 (Art. 5-3) of the Convention.

     It follows that the applicant's complaints under Article 3

(Art. 3) of the Convention are manifestly ill-founded and have to be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention.

2.   The applicant complains that his detention on remand was unlawful

and contrary to Article 5 para. 1 (Art. 5-1) of the Convention.  He

also complains under Article 5 para. 3 (Art. 5-3) of the Convention

that his detention on remand was unreasonably lengthy and that

following his arrest in October 1993 he was not brought before a judge

or other officer exercising judicial power; and under Article 5 para.

4 (Art. 5-4) of the manner in which the courts examined his appeals

against detention.

     Article 5 (Art. 5) of the Convention, insofar as relevant, reads

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 brought

     promptly before a judge or other officer authorised by law to

     exercise judicial power and shall be entitled to trial within a

     reasonable time or to release pending trial.  Release may be

     conditioned by guarantees to appear for trial.

     4.    Everyone who is deprived of his liberty by arrest or

     detention shall be entitled to take proceedings by which the

     lawfulness of his detention shall be decided speedily by a court

     and his release ordered if the detention is not lawful.

     ..."

a)   In respect of the alleged unlawfulness of the applicant's

detention the Government have stated that he was arrested and accused

on serious charges, his detention on remand having been ordered and

confirmed in accordance with the law.

     The applicant replies that the warrant for his arrest did not

contain any reasoning as to the existence of a reasonable suspicion

against him, nor as regards the alleged danger of absconding,

obstruction of justice, or repetition.  Moreover, these issues were not

examined adequately even in the decisions of the courts confirming the

applicant's detention on remand, the only argument having been that the

detention was necessary in view of the grave accusations.  Also,

following his arrest he was not brought before a judge or other officer

exercising judicial power, which made the detention unlawful.

     The Commission does not find any indication that the applicant's

detention was unlawful under domestic law.  Furthermore, as regards the

alleged lack of a reasonable suspicion, it appears undisputed that the

accusations were based on documents such as false customs declarations

signed by the applicant.  Insofar as the applicant challenges the

reasons given by the courts to justify the continuation of his

detention, and insofar as he submits that he was brought before an

officer who was not independent and impartial, these are issues which

fall to be examined under Article 5 para. 3 (Art. 5-3) of the

Convention.

     The Commission finds, therefore, that the applicant's complaint

under Article 5 para. 1 (Art. 5-1) of the Convention is manifestly ill-

founded and has to be rejected under Article 27 para. 2 (Art. 27-2).

b)   The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention that following his arrest in October 1993 he was not brought

before a judge or other officer exercising judicial power.

     The Government have not commented on this point.  In his

observations in reply the applicant maintains that he was brought only

before an investigator, who, due to his status under the Code of

Criminal Procedure, does not meet the requirements of independence and

impartiality and cannot be considered an officer exercising judicial

power within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention, as interpreted in the Convention organs' case-law.

     The Commission notes that the above complaint is directed against

certain provisions of the Code of Criminal Procedure (cf. No. 24760/94,

Assenov, Ivanova, Ivanov v. Bulgaria, Comm. Report 10.7.97, paras. 130

- 143), as they have been applied at the time of the applicant's arrest

on 4 October 1993.  Apparently, there existed no remedy against the

alleged breach of Article 5 para. 3 (Art. 5-3) of the Convention.  In

these circumstances the six months' time-limit under Article 26

(Art. 26) of the Convention ran from the date of the alleged breach,

which allegedly occurred on 4 October 1993 and in the following several

days (cf. No. 12015/86, Dec. 6.7.88, D.R. 57, p. 108). However, the

application to the Commission was introduced on 25 October 1996, more

than six months thereafter.

     It follows that the above complaint has been introduced out of

the six months' time-limit under Article 26 (Art. 26) of the Convention

and that, therefore, it has to be rejected under Article 27 para. 3

(Art. 27-3).

c)   The applicant complains that there has been a breach of his right

under Article 5 para. 3 (Art. 5-3) of the Convention to a trial within

a reasonable time or release pending trial.

     The Government submit that the charges against the applicant

concerned serious crimes, punishable by more than five years

imprisonment.  In such cases Section 152 of the Code of Criminal

Procedure requires that the accused be detained on remand.  Release on

bail is possible, according to the jurisprudence, only in exceptional

circumstances, when there does not exist even a theoretical possibility

of absconding, repetition or hindering the administration of justice.

No such exceptional circumstances existed in the applicant's case.

Moreover, the conviction of Mr. H., one of the accomplices, for having

induced a witness to give false evidence, is indicative of the existing

danger of obstructing the investigation.

     The Government further indicate that the preliminary

investigation was concluded in April 1994, well within the relevant

time-limits.  Since then the Plovdiv Regional Court regularly scheduled

hearings in the case and took all necessary procedural steps to ensure

examination of the case within a reasonable time.  All delays were due

to reasons for which the Court was not responsible.

     On two occasions delays were caused by the fact that a juror had

fallen ill. Apart from these two occasions, in the Government's

submission, the applicant and the other three co-accused were

responsible for all remaining adjournments.  In particular, a delay of

two months was caused by the applicant's hunger strike when he was not

fit to attend the hearing.  Furthermore, every request for release and

appeal to the Supreme Court against the Regional Court's refusal caused

an inevitable delay of a month or two as the case-file had to be

transmitted to the Supreme Court in Sofia.  Moreover, the applicant and

the other co-accused, being aware that every appeal causes a delay,

kept sending appeals, despite the fact that there were no new

circumstances.  Therefore, in the Government's view, the applicant was

clearly not interested in the speedy examination of his case and was

abusing his right to appeal against his detention on remand.

     The Government conclude, referring to the criteria laid down in

Wemhoff v. Germany (Eur. Court HR, judgment of 27 June 1968, Series A

no. 7) that, taking into account the responsibility of the applicant

for most of the delays, the "reasonable time" within the meaning of

Article 5 para. 3 (Art. 5-3) and of Article 6 para. 1 (Art. 6-1) of the

Convention has not been exceeded.  The case was allegedly complex as

it concerned forgery of documents and required the appointment of

experts and the hearing of many witnesses.  Also, the Plovdiv Regional

Court had to strike a balance between the speedy examination of the

case and the necessity to examine carefully all evidence and deliver

a just judgment.

     The applicant replies that his continuing detention was

unnecessary as there was no danger of absconding, of repetition, or of

obstruction.  Furthermore, the courts when refusing bail did not give

any reasons why they considered that such danger existed but simply

referred to the gravity of the charges.

     The applicant disputes the Government's assertion that he is

responsible for most of the delays in the examination of the case.  He

submits, referring to the Court's case-law, that it is for the State

to organise its legal system so as to enable the courts to comply with

the Convention.  In the applicant's view it is disturbing to see the

Government stating that the exercise of a defence right, namely the

right to appeal against detention, can serve as an argument to justify

a restriction on another right, the right to a trial within a

reasonable time or to release pending trial.  The applicant states that

this is a dangerous remnant from the communist penal theory and

practice, according to which it was in the best interest of the accused

to cooperate, rather than to exercise his rights.

     In respect of the delays caused by jurors having fallen ill the

applicant submits that under Section 259 of the Code of Criminal

Procedure is was possible, at the outset, to appoint reserve jurors who

could have taken over without an interruption of the trial.  However,

this was not done.

     Having examined the above complaint, 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.

d)   The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention in respect of the examination by the Plovdiv Regional Court

and the Supreme Court, of his requests for release and his appeals

against the refusals of release on  bail.

     The Government have not commented on this complaint.

     The Commission notes that it can deal with the above complaint

only insofar as it concerns those proceedings which ended with the

Supreme Court's decisions of 28 May and 4 December 1996.  The

application to the Commission was lodged more than six months after the

final decisions in all earlier proceedings.  Therefore, the complaints

under Article 5 para. 4 (Art. 5-4) of the Convention concerning these

earlier proceedings have been introduced out of the six months' time-

limit under Article 26 (Art. 26) of the Convention and have to be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

     Having examined the applicant's complaint under Article 5 para. 4

(Art. 5-4) of the Convention in respect of the proceedings before the

Plovdiv Regional Court and the Supreme Court ending with the latter

court's decisions of 28 May and 4 December 1996, 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 paras. 1, 2 and 3

(Art. 6-1, 6-2, 6-3) of the Convention that the judges examining his

case were partial, that the proceedings were unfair and unreasonably

lengthy.

a)   In respect of the applicant's complaint of the length of the

proceedings, the Government refer to their submissions under Article

5 para. 3 (Art. 5-3) of the Convention.

     The applicant also refers to his submissions in respect of

Article 5 para. 3 (Art. 5-3) of the Convention.  The applicant further

maintains that the undue delays in the proceedings continue, the

Plovdiv Regional Court still not having delivered the reasoning of its

judgment of 31 January 1997.  As a result the examination of the

applicant's appeal against the conviction and sentence has not

commenced.

     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.

b)   As regards the alleged partiality of the courts, the alleged

breach of the presumption of innocence, and the alleged unfairness of

the proceedings the Government submit that when dealing with the

applications for release on bail the Plovdiv Regional Court did not

examine whether the accusations against the applicant were well-

founded, but only verified whether the requirements of Section 152 of

the Code of Criminal Procedure were satisfied.  Therefore, the judge

and the two jurors did not form an opinion on the detainee's guilt.

     The applicant replies that his case is very similar to the case

of Hauschildt v. Denmark (Eur. Court HR, judgment of 24 May 1989,

Series A no. 154) in that the same judge rejected his requests for

release on bail seven times during the trial.  In the applicant's view

this inevitably and objectively led to a prejudged opinion on the

applicant's guilt.  Also, having kept the accused in detention on

remand for a very long period of time, the court inevitably became

motivated to convict him, and to sentence him to a term of imprisonment

no lesser than the period of detention on remand, as an acquittal or

a shorter sentence could result in the court's liability under the Law

on State Liability for Damage (Zakon za otgovornostta na darzhavata za

vredi prichineni na grazhdani).  The applicant concludes that the

Plovdiv Regional Court was objectively and subjectively partial.

     The Commission recalls that a complaint under Article 6 (Art. 6)

of the Convention concerning alleged unfairness of criminal proceedings

would in principle be premature when these proceedings are still

pending: the applicant cannot claim at that stage to be a victim,

within the meaning of Article 25 (Art. 25) of the Convention, of a

violation of his right to a fair trial (cf. No. 31195/96, Dec. 27.2.97,

D.R. 88, p. 169).

     The Commission notes that in the applicant's case the appeal

proceedings have not commenced yet and that in these proceedings he

will be able to raise all arguments about the alleged partiality of the

Plovdiv Regional Court and the alleged unfairness of the proceedings.

Moreover, it is open to the applicant, in case the second instance

decision is unfavourable, to submit a petition for review to the

Supreme Court of Cassation, which is also competent to examine the

allegations now raised before the Commission (cf. Nos. 24571-24572/94,

Dec. 28.6.95, D.R. 82, pp. 85, 94).

     It follows that the applicant cannot, at this stage, claim to be

a victim of the alleged violations of his rights under Article 6

(Art. 6) of the Convention to a fair trial by an impartial tribunal and

that, therefore, this part of the application is manifestly ill-founded

and has to be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

c)   As regards the applicant's complaint that Bulgaria has not

complied with her obligation not to hinder the right of individual

petition under Article 25 (Art. 25) of the Convention the Government

submit information showing that as of 10 December 1996 the applicant

had met his lawyers in private 44 times. The Government also indicate

that the  domestic law guarantees the right of a detained person to

meet his lawyer and that the applicant has never raised complaints to

the domestic authorities in this respect.

     The applicant did not reply on this issue.

     The Commission considers that the applicant's complaint that

Bulgaria failed to comply with her obligation under Article 25 para.

1 (Art. 25-1) of the Convention not to hinder the right of individual

petition is wholly unsubstantiated and has to be rejected.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints under Article 5 para. 3 of the Convention that

there has been a breach of his right to a trial within a reasonable

time or to release pending trial; under Article 5 para. 4 of the

Convention in respect of the proceedings concerning the applicant's

appeals against his detention on remand which ended with the Supreme

Court's decisions of 28 May and 4 December 1996; and under Article 6

para. 1 of the Convention of the length of the criminal proceedings.

     DECLARES INADMISSIBLE the remainder of the application.

     DECIDES to take no further action in respect of the applicant's

complaint concerning the alleged hindrance of his right to individual

petition under Article 25 of the Convention.

        M. de SALVIA                         S. TRECHSEL

         Secretary                             President

     to the Commission                    of the Commission