FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1509/05 by Rangel TERZIISKI and Others against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 30 September 2008 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Volodymyr Butkevych , Renate Jaeger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 14 December 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Rangel Krastev Terziiski, Mr Hristo Raynov Manchev, Mr Asen Angelov Kostov, Mr Velko Kolev Angelov and Mr Hristo Yankov Yankov, are Bulgarian nationals who were born in 1965, 1970, 1961, 1968 and 1966 respectively and live in the village of Stryama . They are represented before the Court by Mr s S. Stefanova and Mr A. Atanasov, lawyers practising in Plovdiv .

The circumstances of the case

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

On different dates in 1991 criminal proceedings were instituted against the five applicants and they were charged with theft and robbery. An indictment was introduced at court on an unspecified date in 1992.

On 3 December 1992 the Plovdiv Regional Court remitted the case to the investigation authorities finding that there had been procedural violations.

No investigative measures were taken until September 1998 when the second applicant was questioned. In the following months the rest of the applicants were also questioned and several confrontations took place.

On an unspecified date towards the end of 1999 the prosecution filed a new indictment with the Plovdiv Regional Court and the applicants were brought to trial.

By a judgment of 24 June 2002 the Plovdiv Regional Court convicted the first, second and fourth applicants of robbery and theft. It sentenced the first applicant to one year ' s imprisonment, and the second and the fourth applicants to three years ' imprisonment. All three sentences were suspended.

The Regional Court acquitted the third and the fifth applicants of all charges.

The prosecution filed an appeal against this judgment requesting more severe sentences in relation to the first, second and fourth applicants and the conviction of the third and fifth applicants.

On 8 October 2004 the Plovdiv Court of Appeal upheld the Regional Court ' s judgment, including the acquittal of the third and fifth applicants. Regarding the first, second and fourth applicants, it found that the suspension of the sentences had been justified in view, inter alia , of the excessive length of the proceedings. It held that:

“[For the aims pursued by the punishment to be achieved] it is not necessarily required that almost fourteen years after the offences were committed the three accused serve their sentences. Since the criminal proceedings were subject to excessive delays without there having been an objective justification for that delay, effective sentences are no longer appropriate either in terms of individual prevention or in terms of general prevention.”

The prosecution filed a cassation appeal against this judgment, arguing again that the sentences of the first, second and fourth applicants were too lenient and that that the third and fifth applicants should be convicted as well.

On 1 November 2005 the Supreme Court of Cassation upheld the lower courts ' judgments, including the acquittal of the third and fifth applicants. Further, it affirmed the Court of Appeal ' s conclusion that the first, second and fourth applicants should receive only suspended sentences in view of the excessive length of the criminal proceedings and of other mitigating circumstances. It held that:

“The lower courts have rightly taken into account the length of the criminal proceedings, which lasted for more than fourteen years and for which the accused bear no fault as they were known to the authorities from the very beginning. The purposes of a punishment are to rectify the perpetrator ' s behaviour and to have a preventive effect over the general public but these ends can only be achieved if the punishment has been imposed in good time. This, and also the other circumstances – clear records, remorse, reparation, even if only of a partial nature, of the damages caused – lead to the conclusion that the sentences imposed, with the application of Article 66 § 1 of the Criminal Code [the provision on suspension of sentences], conform to the respective offences.”

COMPLAINTS

1. The applicants complain ed under Article 6 § 1 of the Convention that the criminal proceedings in their case had lasted an unreasonably long period of time.

2. They also complained under Article 13 of the Convention that they had not had an effective remedy regarding the length of the proceedings.

THE LAW

A. Complaints of the third and the fifth applicants

The third and fifth applicants (Mr Asen Angelov Kostov and Mr Hristo Yankov Yankov) complained under Article 6 § 1 of the Convention that the criminal proceedings against them had lasted an unreasonably long period of time and under Article 13 that they had not had an effective remedy in that regard.

Article 6 § 1, in so far as relevant, reads:

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

Article 13 reads:

“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 Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaints of the first, second and fourth applicants

The first, second and fourth applicants (Mr Rangel Krastev Terziiski, Mr Hristo Raynov Manchev and Mr Velko Kolev Angelov) also complained that the criminal proceedings in their case had lasted unreasonably an long period of time (Article 6 § 1) and that they had not had an effective remedy in relation to this (Article 13).

The Court is only competent to examine the period after 7 September 1992 when the Convention entered into force for Bulgaria . It notes that after this date the proceedings lasted for more than thirteen years for pre-trial proceedings and three levels of court, which seems, on the face of it, too long. However, the question arises whether the first, second and fourth applicants may still be considered victims of the alleged violations of the Convention, given that the domestic courts gave them suspended sentences, making particular reference to the failure to comply with the reasonable time requirement in order to justify the suspension.

The Court has held that mitigation of sentence alone does not in principle remedy a failure to comply with the reasonable time requirement of Article 6 § 1 of the Convention with regard to criminal proceedings. However, it has accepted that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see Beck v. Norway , no. 26390/95, § 27 , 26 June 2001 , Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003 ‑ XI , and Hadjiiski and Iliev v. Bulgaria (dec.), nos. 68454/01 and 68456/01, 2 June 2005).

In the instant case the Plovdiv Court of Appeal and the Supreme Court of Cassation acknowledged expressly that the length of the criminal proceedings had been excessive and took this into account as a mitigating circumstance. The Court of Appeal analysed it in detail and, accepting that the actual serving of the sentences after such long delays in the proceedings had become pointless, upheld the suspension of the first, second and fourth applicants ' sentences. The Supreme Court of Cassation affirmed this reasoning. The courts thus made it clear that harsher punishments would have been imposed but for the excessive length of the proceedings.

In light of the above circumstances, the Court is of the opinion that the Bulgarian authorities expressly acknowledged, and then afforded redress for, the violation of Article 6 § 1 of the Convention.

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

In view of the above, the Court finds that the complaint under Article 13 is manifestly ill-founded as well.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints of the third and the fifth applicants , Mr Asen Ange lov Kostov and Mr Hristo Yankov Yankov ;

Declares the complaints of the remaining applicants inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President