NANKOV v. BULGARIA
Doc ref: 28882/95 • ECHR ID: 001-3862
Document date: September 10, 1997
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AS TO THE ADMISSIBILITY OF
Application No. 28882/95
by Ivan NANKOV
against Bulgaria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 14 March 1995 by
Ivan NANKOV against Bulgaria and registered on 6 October 1995 under
file No. 28882/95;
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
22 October 1996 and the observations in reply submitted by the
applicant on 24 February and 6 May 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Bulgarian national born in 1958 and residing
in Lovech. He is currently in prison.
The facts of the case as submitted by the parties may be
summarised as follows.
A. Particular circumstances of the case
Preliminary investigation
Prior to the events at issue the applicant had five convictions
and was in prison for a year and several months.
In 1992 and 1993, following several thefts committed in villages
in the regions of Troyan and Lovech, the prosecution authorities opened
preliminary investigations against unknown perpetrators.
On 7 April 1993, under the authorization of a prosecutor, the
police arrested the applicant and a Mr. K. ("the second co-accused"),
searched their apartments and confiscated various objects, among them
tools which could be used for opening a safe.
Between 7 and 9 April the applicant was detained at the police
station in Troyan. There he made handwritten statements in which he
admitted having committed several thefts. The police allegedly refused
his request to provide him with a lawyer and to bring him immediately
before a prosecutor.
On 9 April 1993 the applicant was brought to the local
Investigation Service (Regionalna sledstvena sluzhba) in Lovech.
There, in the presence of an ex officio lawyer and of a prosecutor, the
applicant was charged with at least eight thefts, allegedly committed
between 10 June 1992 and 12 March 1993. Also, the investigator
(sledovatel) decided to detain the applicant on remand, especially in
view of his previous convictions, as there was a danger of his
absconding and committing other crimes.
After having informed the applicant of his right to remain
silent, the investigator continued the same day with his interrogation.
The applicant admitted most of the crimes with which he was charged and
gave detailed information as regards the time and the manner in which
they had been committed. He also disclosed his accomplices.
When a copy of the minutes of the interrogation was presented to
the applicant for signature, he refused to sign. The applicant's
lawyer signed the minutes without objections.
On 12 April 1993 a third alleged accomplice, a Mr. N. ("the third
co-accused"), was arrested and charged with one of the thefts in the
case, allegedly committed by him together with the applicant.
The applicant was again interrogated on 12 May 1993.
On 7 May, 7 June and again on 4 August 1993 the investigator
examined fifteen or more witnesses.
On 17 June 1993 the investigator appointed four experts who had
to establish whether certain objects confiscated from the applicant or
his accomplices were connected with the crimes under investigation.
Reports from these and other additionally appointed experts were
presented on 14 July, 22 July and 27 August 1993.
On 1 September 1993 several additional preliminary investigations
were joined to the applicant's case. On 27 September 1993 the
applicant and the second co-accused were charged with another eighteen
thefts allegedly committed between 12 April 1992 and 12 March 1993 in
various villages in the region. Interrogated in the presence of his
lawyer, the applicant denied the charges.
On 7 October 1993 the preliminary investigation was concluded
and the case was sent to the Regional Prosecutor (Okrazhen prokuror)
in Lovech. On an unspecified date the applicant's co-accused were
released on bail. On 8 November 1993 the Regional Prosecutor prepared
a joint indictment against the three accused persons, submitted it to
the Lovech Regional Court (Okrazhen sad) and confirmed the applicant's
detention on remand.
The applicant was indicted under Section 196a in conjunction with
Sections 196 and 195 para. 1(3 - 5) of the Penal Code (Nakazatelen
kodeks) of eighteen thefts allegedly committed jointly with the second
co-accused and of one theft allegedly committed with the third co-
accused. The applicant was accused as the instigator and the main
actor in these crimes.
In December 1993 the applicant wrote to the Chief Public
Prosecutor complaining, inter alia, that he had been ill-treated by the
police upon his arrest in April 1993 and that some prison officers
breached his rights. His complaints, having been referred to the local
prosecution authorities, were dismissed by decisions of 10 August and
14 December 1994 of the District and the Regional Prosecutor's Offices.
First instance proceedings
The Lovech Regional Court held a three-day hearing on
8 - 10 February 1994. The Court admitted several civil claims for
examination within the framework of the penal proceedings, examined the
three co-accused, and heard eight experts and twenty-five or more
witnesses.
The applicant stated that he was innocent and that he had given
false confessions before the police and the investigator because of
threats of ill-treatment. The second co-accused also denied having
committed the crimes he had been charged with. The third co-accused,
who had been charged with only one theft allegedly committed together
with the applicant, made full confessions.
The Court confirmed the applicant's detention on remand and
adjourned the case.
On 28 March 1994 the Court held a second hearing. It heard
several witnesses, the lawyers' and the prosecutor's oral submissions
and the accused.
On 28 March 1994 the Court convicted the applicant and the third
co-accused of a theft committed on 6 October 1992 with the use of
special means to open locks. The Court acquitted the applicant and the
second co-accused on the charges concerning the remaining eighteen
thefts as the prosecution had failed to prove them beyond doubt. The
confessions made by the applicant before the police and the
investigator were considered as insufficient.
The applicant, as a recidivist, was sentenced under Section 196a
of the Penal Code to fifteen years' imprisonment.
Appeal proceedings
The applicant and the prosecution authorities appealed to the
Supreme Court. The other convicted person apparently did not appeal.
The Supreme Court scheduled a hearing for 15 June 1994. On that day
the hearing was adjourned for 19 September 1994 as the plaintiffs in
the civil actions had not been summoned properly.
On 15 June and again on 21 November 1994 the applicant's lawyers
unsuccessfully requested their client's release.
The case was again adjourned on 19 September 1994 until
14 November 1994, on 14 November 1994 until 16 January 1995, and on
16 January 1995 until 6 March 1995.
On 13 February 1995 the Supreme Court examined the applicant's
petition for release. The Court found that despite the lengthy period
of detention there were no grounds for the applicant's release because
the latest date for the hearing had been properly announced to the
parties and, therefore, the case would be examined soon.
On 6 March 1995 the applicant again requested to be released.
The hearing of the appeal eventually took place on 26 April 1995.
On 13 June 1995 the Supreme Court pronounced its judgment. It found
that the impugned judgment of the Lovech Regional Court contained
factual errors and inconsistencies in its operative part where,
apparently by some misunderstanding, the theft of 6 October 1992 was
mentioned both in the conviction part and in the acquittal part. Also,
some other conclusions of the lower court were unfounded. Therefore
the Supreme Court quashed the judgment of 28 March 1994 in its part
where the applicant was convicted of the theft of 6 October 1992 and
also in some of the parts where he was acquitted of certain
accusations. The case was referred back to the Lovech Regional Court.
Renewed examination of the case
On 16 October 1995 the Lovech Regional Court held a hearing in
the case. It noted that the acquittal of the second co-accused had not
been quashed by the Supreme Court and that therefore it had entered
into force. As a result the indictment against the applicant had to
be modified, to exclude the accusation that he had acted with an
accomplice. This amounted to a substantial modification of the
accusation which required a fresh indictment. Therefore the Court
terminated the judicial proceedings and sent the case again to the
prosecution authorities.
The Court also dealt with the applicant's "numerous petitions for
[release]". It noted that the accusation against him remained that
under Section 196a of the Penal Code, namely an accusation against a
recidivist. Therefore the detention on remand was obligatory, as
provided for by Section 152 para. 3 of the Code of Criminal Procedure
(Nakazatelno-protzesualen kodeks), amended in June 1995. For this
reason the release of the applicant was not possible.
On 19 October 1995 the applicant appealed to the Supreme Court
against the refusal of the Lovech Regional Court to release him. On
27 November 1995 the Supreme Court examined the appeal and found that
under Section 152 of the Code of Criminal Procedure the only possible
measure of judicial control as regards the applicant was his detention
on remand. This was so because the applicant had been accused under
Section 196a of the Penal Code, as a recidivist.
On 29 December 1995 the Lovech Regional Prosecutor delivered an
order in which it was noted, inter alia, that the remaining accusations
against the applicant were for an amount which was no longer "extremely
large" (osobeno goliam razmer) within the meaning of the Penal Code and
that, therefore, the case had to be sent to an investigator and then
to the District Prosecutor's Office (Raionna prokuratura)in Troyan.
On 16 December 1996, the investigator completed the additional
investigation and sent the case to the District Prosecutor in Troyan.
On an unspecified date the District Prosecutor submitted an indictment
to the District Court in Troyan.
On 21 March 1997 the District Court in Troyan considered that the
case did not fall within its jurisdiction and referred it to the
Regional Court in Lovech.
On 2 April 1997 the Lovech Regional Court considered that the
case had to be examined by the District Court in Troyan and returned
it back. On 10 May 1997 the Supreme Court resolved the competence
dispute and ordered the case to be heard by the District Court in
Troyan.
On 17 July 1997 the Troyan District Court held a hearing. The
Court heard the applicant, 6 witnesses and 4 experts. As several other
witnesses and experts did not appear, the Court adjourned the hearing
to 23 October 1997.
Since January 1997 the applicant has submitted unsuccessfully
several requests for release addressed to the courts in Lovech and
Troyan. On 5 June 1997 the President of the Troyan District Court
rejected such a petition submitted on 3 June 1997. He stated that the
applicant was a recidivist and that therefore there were no grounds to
release him. During the hearing on 17 July 1997 the Troyan District
Court refused the applicant's petition for release, made orally,
because there were no changes in the circumstances which had served as
grounds for the applicant's detention on remand.
Alleged ill-treatment in prison
On 8 November 1995 the applicant complained to the Regional
Military Prosecutor (Okrazhna voenna prokuratura) in Lovech that he had
been beaten by a prison guard on 5 November 1995 when he had protested
that a group of prisoners was kept in the open air in cold weather.
He submitted a medical certificate which showed a torn wound in the
area of his left eye, and a superficial wound with the skin rubbed off
in his right calf above the ankle. The applicant also submitted
handwritten declarations by 13 prisoners who confirmed the facts
complained of.
On 13 December 1995 the Regional Prosecutor delivered his
decision. He found that the applicant had disobeyed the orders of the
prison guard and had offended him while having his daily walk together
with a group of prisoners. For this reason the prison guard had
escorted the applicant to the guards' office and had ordered him to
explain his behaviour in writing. The two men had been alone in the
office when the applicant had made a sudden move. The prison guard,
who had been only recently recruited and was therefore unexperienced,
had reacted immediately and had applied self-defence techniques. The
guard had then ordered the applicant to go to his cell to fetch a piece
of paper for his explanations and had escorted him to the cell. While
in the cell the applicant had again made a sudden move and the guard
had again reacted in self-defence.
The prosecutor concluded that the prison guard had erred in his
assessment of the situation, having thought that he had been attacked.
In principle the guard's behaviour could be a crime under
Section 131(2)(4) of the Penal Code. However his mistake had been due
to his lack of experience. As a whole the guard's act was "trivial"
(maloznachitelen) within the meaning of Section 9 para. 2 of the Penal
Code (see below Relevant domestic law). For these reasons the
prosecutor refused to open criminal proceedings against the prison
guard, but added that the Director of the prison should impose a
disciplinary penalty.
Immediately after the incident of 5 November 1995 the applicant
was allegedly punished with a 14 days' stay in an isolation cell
(izolirane v nakazatelna kilia).
B. Relevant domestic law
a. A crime under Section 196a in conjunction with Sections 196 and
195 para. 1(3 - 5) of the Penal Code is a theft of objects or money
worth a very large amount; committed by a recidivist; in complicity
with other persons; through the use of special tools for opening locks,
destruction of fences or other obstacles; where the crime, in view of
its consequences and all circumstances, constitutes a very grave case.
The punishment for such a crime is ten to thirty years' imprisonment.
b. 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 between 4 June 1995 and 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 the preceding paragraph [detention on
remand] may not be imposed if there is no danger of the accused
evading justice or of 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] ..."
c. In August 1997 Section 152 was amended. Paragraph 3 was amended
as follows:
"(3) Detention on remand pending the preliminary investigation
cannot exceed one year. Where the accusation concerns a crime
punishable by more than 15 years' imprisonment, life imprisonment or
the death penalty, [this time-limit] is two years."
d. Section 194 para. 3 of the Code of Criminal Procedure provides
for the possibility to appeal to the higher prosecutor against a
refusal of a prosecutor to open criminal proceedings. Under the
Constitution and the Judiciary Act (Zakon za sadebnata vlast) there are
district, regional and chief public prosecutors.
e. Section 131(2) of the Penal Code concerns the infliction of
bodily harm by an officer of the police or of another service.
According to Section 9 para. 2 of the Penal Code an act which
formally has all the elements of a crime, but is manifestly "trivial",
shall not be considered a crime.
COMPLAINTS
1. The applicant complains, invoking Articles 3 and 13 of the
Convention, that he was beaten in prison on 5 November 1995; that his
ensuing complaint was dismissed arbitrarily by the Regional Prosecutor;
that he could not appeal against this decision because he was
threatened with solitary confinement if he did; and that generally
nothing was done by the authorities to remedy the ill-treatment to
which he was subjected on 5 November 1995.
2. The applicant contends also that there has been a breach of the
State's obligation under Article 25 of the Convention not to hinder the
right to individual petition. Thus, he was beaten because he stood for
his and the prisoners' rights. Moreover, he has been constantly
threatened and ill-treated since it became known that he had submitted
an application to the Commission.
3. The applicant complains under Article 5 of the Convention of his
continuing detention which was allegedly unlawful and excessively
lengthy.
4. The applicant also complains under Article 6 of the Convention
of the length and the alleged unfairness of the criminal proceeding
against him. Thus, the police during the first two days of his
detention forced him to make submissions by keeping him hungry for a
day. Moreover, he was threatened that he would be detained for many
months at the police station, without access to a lawyer or to a
prosecutor, if he did not confess.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 March 1995 and registered
on 6 October 1995.
On 26 June 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
22 October 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 24 February 1997 and submitted
additional observations on 6 May 1997.
THE LAW
1. The applicant complains, invoking Articles 3 and 13 (Art. 3, 13)
of the Convention, that he was ill-treated by a prison guard on
5 November 1995 and that he did not have an effective remedy before the
domestic authorities.
The Government submit that the applicant has not exhausted all
domestic remedies. Thus, according to Section 194 para. 3 of the Code
of Criminal Procedure the applicant could have appealed to the higher
prosecutor following the refusal to open criminal proceedings against
the prison guard, such an appeal being an effective and accessible
remedy. The Government further refer to the Commission's practice
according to which a civil action for damages is in principle an
effective remedy in cases of alleged breaches of Article 3 (Art. 3) of
the Convention (No. 8462/79, Dec. 8.7.80, D.R. 20, p. 184). However,
the applicant has not brought an action for damages.
The Government also maintain that the complaints under Articles 3
and 13 (Art. 3, 13) of the Convention are in any event manifestly ill-
founded. Thus, the applicant has not established that the alleged ill-
treatment attained the minimum level of severity, as required in the
Convention organs' case-law.
The applicant replies that he did not appeal to the Chief Public
Prosecutor's Office following the refusal of the lower prosecutor to
institute criminal proceedings against the prison guard because he
feared that the prison administration would put him under solitary
confinement if he appealed. As this would have made his contact with
the Commission impossible, he chose not to appeal but to continue his
correspondence with the Commission. The applicant states that "this
was the only reason for [his] failure to appeal to the Chief Public
Prosecutor's Office".
The applicant further submits that when complaining to the
Regional Military Prosecutor on 8 November 1995 he proved his claims
beyond any doubt. Nevertheless the opening of criminal proceedings was
refused. Also, the prison guard was not punished despite the Regional
Prosecutor's decision of 13 December 1995.
a) The Commission notes at the outset that the Regional Prosecutor
in his decision acknowledged the responsibility of the prison officer
for the incident and indicated that a disciplinary penalty should be
imposed. However, the Government have not commented on the applicant's
assertion that this was never done. Also, the applicant has not been
compensated in any way. In these circumstances the Commission
considers that the applicant may claim to be a victim, within the
meaning of Article 25 (Art. 25) of the Convention, of the alleged
breach of Article 3 (Art. 3).
The Commission recalls that under Article 26 (Art. 26) of the
Convention an applicant is required to have a normal recourse to
remedies which are available and capable of remedying the breaches
alleged. Article 26 (Art. 26) also entails a distribution of proof.
Once the Government have shown that an effective remedy existed, it
falls to the applicant to establish that it was ineffective in the
particular circumstances of the case or that there existed special
circumstances absolving him from having to make use of it (Eur. Court
HR, Beis v. Greece judgment of 20 March 1997, para. 32, to be published
in Reports 1997-II,
No. 34, para. 32).
In respect of a complaint of ill-treatment under Article 3
(Art. 3) of the Convention against Bulgaria the Commission has found
that where the applicant has submitted criminal complaints to "all
levels of the prosecution authorities", he is not required to embark
on another attempt to obtain redress through a civil action for damages
except, conceivably, in cases where the authorities, in the course of
criminal proceedings opened for this purpose, have carefully examined
the allegations of ill-treatment (Assenov, Ivanova, Ivanov v. Bulgaria,
No. 24760/94, Dec. 27.6.96, D.R. 86, pp. 54, 71).
The Government have stressed the applicant's failure to bring a
civil action for damages. In view of its conclusions below the
Commission does not consider it necessary to examine whether this was
a remedy to be exhausted by the applicant.
The Commission notes that the applicant has not submitted an
appeal under Section 194 para. 3 of the Code of Criminal Procedure to
the Chief Public Prosecutor's Office, which is the highest level of the
prosecutors' hierarchy. The applicant does not contend that this remedy
was not effective, his only assertion being that he did not appeal by
fear of reprisals. However, the Commission notes that the applicant
regularly addressed numerous complaints to various levels of the
prosecution authorities, including when he complained in 1993 to the
Chief Public Prosecutor of alleged ill-treatment and breaches of his
rights by the police and by the prison administration. Also, he wrote
freely to the Commission. It appears unclear why the fear of reprisals
would have prevented him from writing to the Chief Public Prosecutor
in respect of the incident of 5 November 1995.
The Commission therefore finds that the applicant has not
exhausted all domestic remedies within the meaning of Article 26
(Art. 26) of the Convention. It follows that the applicant's complaint
under Article 3 (Art. 3) must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
b) As regards the applicant's complaint under Article 13 (Art. 13)
of the Convention, the Commission has just found that he had at his
disposal a remedy which has not been shown to be ineffective or
unavailable. In view of this finding it is not necessary to examine
the applicant's contention that the Regional Prosecutor's decision of
13 December 1995, which indeed acknowledged the responsibility of the
prison officer, was arbitrary and did not provide an effective remedy.
It follows that the complaint under Article 13 in conjunction
with Article 3 (Art. 13+3) of the Convention is manifestly ill-founded
and must be rejected under Article 27 para. 2 (Art. 27-2).
2. The applicant complains that the incident of 5 November 1995 and
the general attitude of the prison administration amounted to a breach
of Bulgaria's obligation under Article 25 (Art. 25) of the Convention
not to hinder the right to individual petition.
The Government submit that this complaint has never been raised
before the domestic authorities and that the applicant's allegations
are not supported by any evidence.
The applicant maintains his complaint.
The Commission notes that the applicant has not substantiated the
existence of a link between the incident of 5 November 1995 and his
application to the Commission. Indeed, when complaining to the
prosecution authorities he stated that he had been beaten for having
protested against an order.
The Commission does not consider, therefore, that the applicant
was hindered in the exercise of his right to individual petition under
Article 25 (Art. 25) of the Convention.
3. The applicant complains under Article 5 (Art. 5) of the
Convention that his continuing detention was unlawful and excessively
lengthy.
Article 5 (Art. 5) of the Convention, insofar as relevant,
provides as follows.
"1. ... 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."
The Government submit that the applicant has not exhausted all
domestic remedies. Thus, he has not invoked his Convention rights, at
least in substance, before the competent domestic authorities.
The Government further submit that the applicant's detention was
lawful and justified under domestic law, which is in conformity with
Article 5 (Art. 5) of the Convention. Thus, under the relevant
provisions of the Code of Criminal Procedure a recidivist who is
charged with serious offences punishable by more than five years'
imprisonment has to be detained on remand, there being no other
alternative.
Furthermore, the applicant has not invoked any exceptional
ground, such as, for example, his state of health, or any change of
circumstances, to warrant a reassessment of the decision to detain him.
The Government, without referring to any particular legal provision,
submit that such reassessment would have been possible under Bulgarian
law had there been relevant new circumstances.
As regards the length of the detention the Government state that
the case is factually and legally complex; that the principle of
establishing the truth has precedence over the principle of rapidity;
and that at least for the time being the reasonable length of detention
has not been exceeded.
The applicant replies, inter alia, that he has submitted numerous
complaints to all competent institutions, that he is an innocent person
kept unlawfully in prison, and that his detention is unreasonably
lengthy.
He submits that the case against him was closed on 29 December
1995, but he was kept in detention for another nine months before he
was charged again officially. Also, he has been detained well beyond
the nine months' time-limit under Section 222 of the Code of Criminal
Procedure. Furthermore, the prosecutors and the courts did not comply
with the time-limits for the preparation of the indictment and for the
hearing of the case respectively, as provided for under the pertinent
regulations.
The Commission notes that the applicant submitted numerous
requests for release to the prosecution authorities and to the courts,
stating that his continuing detention was unlawful and unnecessary.
The Government have not indicated any other remedy which should have
been used by the applicant. It follows that the applicant has
exhausted all domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.
a) The Commission notes at the outset that the applicant's
complaints do not concern the first months of his detention, his
concerns being only that after the lapse of certain time his detention
on remand became allegedly unlawful and unreasonably lengthy. The
Commission is not called upon, therefore, to examine whether the
applicant's arrest and his bringing before an investigator and a
prosecutor in April 1993 were in conformity with the requirements of
the Convention.
b) The Commission considers that the applicant's complaint about the
length of his detention falls to be examined under Article 5 para. 3
(Art. 5-3) of the Convention.
Having examined the applicant's complaints under Article 5
para. 1 (Art. 5-1) of the Convention of the alleged unlawfulness of his
continuing detention and under Article 5 para. 3 (Art. 5-3) in respect
of its length, the Commission finds that they raise 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 has been
established.
4. The applicant complains under Article 6 (Art. 6) of the
Convention of the length and the alleged unfairness of the criminal
proceeding against him.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows.
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing within a
reasonable time by an ... impartial tribunal ..."
The Government submit that the requirements of Article 26
(Art. 26) of the Convention have not been met because the applicant has
not requested the courts to proceed quicker and has not invoked in
substance his right to a trial within a reasonable time. The
Government refer to the Castells v. Spain judgment of 23 April 1992
(Eur. Court HR, Series A no. 236). In any event, the Government are
of the opinion that the reasonable time requirement of Article 6 para.
1 (Art. 6-1) of the Convention has not been breached in view of the
complexity of the case, which involved numerous crimes committed with
different accomplices. Also, the behaviour of the applicant led to
delays.
The Government also submit that the application was introduced
at a moment when the case had been sent back from the Supreme Court to
the lower courts. Therefore, the applicant had at his disposal the
possibility of appealing against any later judgment which would be
given in his case and he cannot claim to be a victim of a breach of
Article 6 (Art. 6), there being no final decision in his case.
The applicant replies, inter alia, that he has exhausted all
possible remedies; that he is a victim of a violation because he has
been detained for four years; that the courts and the prosecutors did
not establish the truth but manipulated the evidence and abused their
power; and that all reasonable limits of the length of the proceedings
have been exceeded.
a) The Commission has first examined the applicant's complaint
concerning the length of the criminal proceedings against him.
In respect of the Government's objection under Article 26
(Art. 26) of the Convention the Commission recalls that the case of
Castells v. Spain (Eur. Court HR, loc. cit.), referred to by the
Government, concerned complaints under Article 10 (Art. 10) of the
Convention. As regards complaints under Article 6 para. 1 (Art. 6-1)
concerning the length of criminal proceedings the Commission has held
that an application by the accused to accelerate the proceedings cannot
be regarded as an effective remedy, the accused being under no
obligation to cooperate in proceeding against him (No. 8435/78, Dec.
6.3.82, D.R. 26, p. 18). The Government's objection must therefore
fail.
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 has been
established.
b) In respect of the applicant's complaint under Article 6 (Art. 6)
of the Convention that the proceedings against him were unfair, the
Commission recalls that according to Article 25 (Art. 25) it may
examine complaints only from persons claiming to be victims of a
violation of one of the Convention provisions.
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". Nevertheless,
the requirements of paragraph 3(c) of Article 6 (Art. 6-3-c) 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 proceedings against the applicant have not been
concluded by a final judgment. His conviction has been quashed and the
legal effect of his trial, which was allegedly unfair, has thus been
annulled. The Commission cannot speculate about how the applicant's
second trial will continue, whether it 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
violations of his right to a fair trial and respect of his defence
rights under Article 6 (Art. 6) 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 manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission,
unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints concerning the alleged unlawfulness and
the length of his detention on remand; and concerning the length
of the criminal proceedings against him;
by a majority,
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