FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54178/00 by Djamil Ali OSMANOV against Bulgaria and Application no. 59901/00 by Ali Ramadanov HUSSEINOV against Bulgaria

The European Court of Human Rights (First Section), sitting on 4 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President ,

Mr P. Lorenzen, Mr G. Bonello , Mrs F. Tulkens , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above applications introduced on 28 September and 16 December 1999 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Bulgarian nationals born in 1958 and 1964 respectively and living in Pazardjik. They are represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardjik. The respondent Government are represented by Mr S. Bojikov, Deputy Minister of Justice.

A. The circumstances of the case

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

In December 1993 the applicants were questioned as suspects in the destruction of a walnut tree owned by a State-owned company.

On 16 February 1994 the Pazardjik District Prosecutor’s Office opened criminal proceedings against the applicants.

On 11 December 1995 the first applicant was charged. The second applicant was charged on an unspecified date in December 1995. Immediately after the charging the applicants were ordered not to leave the town without authorisation as a measure to secure appearance before the competent authority.

On 21 December 1995 the applicants were indicted. The prosecutor, acting on behalf of the State enterprise, also brought a civil claim for damages against them.

The Pazardjik District Court held its first hearing on 18 March 1996. It heard the applicants and questioned three witnesses. Finding that the facts of the case needed further clarification, the court ordered an expert report on the value of the walnut tree timber and decided to call another witness. It adjourned the case.

The expert report was ready on 9 April 1996.

The next hearing took place on 23 April 1996. The court heard the expert and admitted his report in evidence. It held that the facts were in need of further elucidation, ordered the expert to supplement his report and adjourned the case.

The supplementary expert report was ready on 3 June 1996.

A hearing listed for 25 June 1996 failed to take place because the applicants’ lawyer was absent.

The next hearing was held on 9 August 1996. The prosecutor requested an additional expert report. The applicants’ lawyer agreed. The court ordered an additional expert report and adjourned the case.

The next hearing took place on 26 September 1996. The court repealed its prior order for an additional expert report, admitted certain documents gathered during the investigation in evidence and heard the parties’ closing arguments. After deliberating in chambers, it found that a material breach of the rules of procedure had taken place during the investigation. In particular, the applicants had not been properly charged, which had infringed their defence rights. Accordingly, the court remitted the case to the prosecution authorities with instructions to rectify this shortcoming and also to gather additional evidence.

Since no progress took place in the remitted case, in August 1999 the applicants complained to the Pazardjik Regional Prosecutor’s Office and the Chief Prosecutor’s Office about the length of the proceedings. On 24 August 1999 the Pazardjik Regional Prosecutor’s Office sent the applicants’ complaint to the Pazardjik District Prosecutor’s Office. On 14 September 1999 the Chief Prosecutor’s Office sent the applicants’ complaint to the Pazardjik Regional Prosecutor’s Office, ordering the prompt completion of the case. On 23 September 1999 the Pazardjik District Prosecutor’s Office informed the Pazardjik Regional Prosecutor’s Office and the applicants that the reason for the delay had been the failure of a witness to appear. It stated that measures had been taken for the speedy finalisation of the case.

On 18 March 2002 the Pazardjik District Prosecutor’s Office, finding that the relevant limitation period had expired, discontinued the criminal proceedings against the applicants. It also lifted the prohibition on the applicants to leave the town without authorisation.

B. Relevant domestic law and practice

Undertaking not to leave town without authorisation

Under Article 146 of the Code of Criminal Procedure (“CCP”), a measure to secure appearance before the competent authority must be imposed in respect of every person accused of having committed a publicly prosecuted offence.

The most lenient such measure is a written undertaking by the accused that he will not leave his place of residence without authorisation by the respective authority – the prosecutor or the court, depending on the stage of the proceedings (Article 149 of the CCP).

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention that the criminal proceedings against them had lasted unreasonably long. They also submitted, relying on Article 3 of the Convention, that the excessive length of the proceedings had put them under severe psychological pressure.

2. The applicants complained under Article 13 of the Convention that there was no effective domestic remedy to challenge the excessive length of the criminal proceedings.

3. The applicants complained under Article 6 of the Convention that the criminal proceedings against them had not been fair. They submitted that the law conferred too many powers on the prosecution authorities and that this impinged on the fairness of the proceedings.

THE LAW

1. Having regard to the fact that both applicants were co-accused in the same criminal proceedings and make identical complaints, the Court finds it convenient to join the applications (Rule 43 § 1 of the Rules of Court).

2. Referring to both Articles 3 and 6 of the Convention, the applicants complained of the length of the proceedings in question. The Court finds no indication of treatment attaining the “minimum level of severity” at which Article 3 of the Convention becomes relevant (see Howarth v. the United Kingdom (dec.), no. 38081/97, 14 September 1999). Accordingly, the Court will consider the complaint exclusively in connection with Article 6 of the Convention, which provides in its pertinent part:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government left it to the Court to decide on the admissibility of the complaint.

The applicants submitted that apparently the Government could not present any viable arguments against the admissibility of the complaint. According to them, the Article 6 of the Convention had been breached by reason of the length of the proceedings.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

3. In respect of their complaint about the fairness of the proceedings the applicants relied on Article 6 of the Convention, which provides, insofar as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government did not comment on this complaint. Neither did the applicants.

The Court considers that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see X v. the United Kingdom , no. 8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223 and EÄŸinlioÄŸlu v. Turkey , no. 31312/96, Commission decision of 21 October 1998, unreported). The Court notes that the proceedings against the applicants were discontinued by the prosecution authorities because the relevant limitation period had expired. The Court considers that in these circumstances the applicants can no longer claim to be victims of a violation of their right to a fair trial.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. In respect of their complaint about the lack of effective remedies against the allegedly unreasonable length of the proceedings the applicants relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government did not comment on this complaint.

The applicants submitted that they had tried to expedite the proceedings by complaining to the prosecution authorities, to no avail. However, these complaints did not constitute an effective remedy for the purpose of Article 13 of the Convention. In their view, Bulgarian law did not provide such a remedy.

The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join the applications;

Declares admissible, without prejudging the merits, the applicants’ complaints concerning the length of the criminal proceedings against them and the lack of effective remedies in this respect;

Declares inadmissible the remainder of the applications.

Søren Nielsen Christos Rozakis              Deputy Registrar President