FOURTH SECTION

DECISION

Application no . 44448/07 Venko Nikolov AGONTSEV against Bulgaria

The European Court of Human Rights ( Fourth Section ), sitting on 21 October 2014 as a Chamber composed of:

Ineta Ziemele , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 28 September 2007 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, and the additional observations submitted by the parties after the Court invited them to do so on 12 July 2013,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Venko Nikolov Agontsev , is a Bulgarian national who was born in 1967 and lives in Varna . He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva , lawyers practising in Plovdiv .

2. The Bulgarian Government (“the Government”) were represented by their Agent s , Ms M. Kotseva and Ms L. Gyurova , of the Ministry of Justice .

A. The circumstances of the case

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

4. On 22 September 2002 the prosecution authorities in Varna opened criminal proceedings in relation to the murder of Mr O.K. On 11 November 2002 the applicant was arrested and charged with instigating the murder. On 12 November 2002 he was placed in pre-trial detention, where he remained until 23 June 2003 when the Varna Regional Court ordered his release on bail. The amount of bail was set at 10,000 Bulgarian levs (BGN), which was paid by Ms N.G. On 26 June 2003 the applicant was released.

5. The preliminary investigation into Mr O.K. ’ s death continued until 31 October 2005, when the applicant and several other individuals were indicted and sent to trial.

6. In a judgment of 29 March 2007 the Varna Regional Court convicted the applicant of aiding and abetting Mr O.K. ’ s murder and sentenced him to sixteen years ’ imprisonment.

7. After delivery of the judgment, in a decision given at the same hearing, referring merely to the “degree of dangerousness of the offence committed and its [perpetrators], and the type and severity of the punishment imposed ”, the Varna Regional Court ordered that the applicant be placed once again in custody. He was detained at the end of the hearing.

8. On 4 April 2007 the applicant appealed against his placement in custody , pointing out that while on bail he had not attempted to abscond or obstruct the investigation. On 21 April 2007 the Varna Court of Appeal declared his appeal inadmissible, noting that at that stage of the proceedings a decision ordering placement in custody could not be challenged separately from the judgment on the merits.

9. In his initial application to the Court, the applicant stated that following his detention he had not been able to recover the bail paid in 2003. However, after communication of the application the respondent Government submitted documents showing that on 3 May 2007 a representative of Ms N.G. had requested that the bail be returned to her. On 19 September 2007 the representative presented a power of attorney, and the next day the Varna Regional Court ordered the Regional Investigation Service to pay the sum back.

10. Following appeals by the accused , on 30 January 2008 the Varna Court of Appeal quashed the Varna Regional Court ’ s judgment of 29 March 2007 and remitted the case. On 1 July 2008, following a fresh examination, the lower court acquitted the applicant and ordered his release with immediate effect.

11. Following further appeals by the prosecution, on 25 March and 28 December 2009 respectively , the Varna Regional Court ’ s judgment was upheld by the Varna Court of Appeal and the Supreme Court of Cassation.

B. Relevant domestic law and practice

12. The relevant provisions of domestic law concerning remedies for excessive length of proceedings have been summarised in the Court ’ s decisions in the cases of Balakchiev and Others v. Bulgaria (( dec. ), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria (( dec. ), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).

COMPLAINTS

13. The applicant complained under Article 6 § 1 and Article 13 of the Convention that the criminal proceedings against him had been excessively lengthy, and that there had been no effective remedy available to him in that regard .

14. He also complained under Article 1 of Protocol No. 1 and Article 13 of the Convention that the bail paid upon his release on 26 June 2003 had not been paid back after his renewed detention and that he had had no means of seeking its recovery.

15. The applicant complained under Article 5 § 1(c) of the Convention that the Varna Regional Court ’ s decision of 29 March 2007 to place him in custody had not been sufficiently reasoned. He also complained under Article 5 § 4 that he had been unable to challenge it. Lastly, he complained under Article 5 § 5 that he had had no means of seeking compensation for the other violations of Article 5.

THE LAW

A. Complaints concerning the length of the criminal proceedings

16. The applicant raised complaints under Article 6 § 1 and Article 13 of the Convention, which, in so far as relevant, read:

Article 6 § 1

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

Article 13

“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.”

17. In their initial submissions, the Government argued that the proceedings had been very complex and that the authorities had acted diligently. The applicant disagreed.

18. T he Court invited the parties, by letter of 12 July 2013, to make additional observations on the complaints at issue, in particular with regard to the domestic remedies concerning length of proceedings introduced in Bulgarian law in 2012 . T he Government pointed out that those remedies were available even to applicants who had already lodged their applications with the Court , referr ing to the Court ’ s finding s in the decisions in the cases of Balakchiev and Others and Valcheva and Abrashev ( cited above ) .

19. The applicant, on the other hand, considered that the remedies at issue were inapplicable to persons in a situation such as his, namely whose applications with the Court had been submitted before the ir introduction.

20. The Court reiterates that in its decisions in Balakchiev and Others ( §§ 53-85, cited above) and Valcheva and Abrashev ( §§ 92-124 , cited above) it found that the remedies at issue, under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability for Damage Act 1988, could be regarded as effective in respect of the allegedly unreasonable length of proceedings. In addition, i t found that the remedies in question were also available to applicants who had lodged their applications with the Court before their introduction. The applicant in the present case ha s not satisfied the Court that there exist special circumstances which could absolve him from pursuing such remedies, once hi s complaints have been dismissed as inadmissible.

21 . It follows that the complaint under Article 6 § 1 of the Convention concerning the length of proceedings must be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.

22 . S eeing that the newly-introduced remedies are available to persons in a position such as the applicant ’ s and are effective, the Court considers his complaint under Article 13 manifestly ill-founded (see Valcheva and Abrashev , cited above, §§ 128-29). Accordingly, this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaints concerning the alleged inability to recover bail

23. The Court is of the view that these complaints, raised under Article 1 of Protocol No. 1 and Article 13 of the Convention, are most appropriately examined under Article 1 of Protocol No. 1 alone, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

24. The Government pointed out that the bail had been paid back to Ms N.G. upon her request. The applicant did not comment.

25. The Court is of the view that there could be doubts as to whether the applicant can claim to be a victim of the alleged violation, seeing that the bail had been paid by a third party, Ms N.G., who was entitled to claim it back when the conditions for that had been fulfilled. However, the Court does not have to decide this question. It notes that even though the documents submitted by the Government do not expressly indicate that Ms N.G. recovered the bail, there were no obstacles in that regard and the Varna Regional Court ordered the R egional I nvestigat ion S ervice to pay the sum back (see paragraph 9 above). The applicant does not contest these facts.

26. It follows from the above that this complaint is manifestly ill ‑ founded and must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Remaining complaints

27. Lastly, the applicant raised a number of complaints under Article 5 of the Convention (see paragraph 15 above). However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

28. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President