FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73481/01 by Konstantin Bochev BOCHEV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 20 March 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa ‑ Nikolovska , Mr R. Maruste , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 February 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Konstantin Bochev Bochev, is a Bulgarian national who was born in 1964 and lives in Sofia . He is represented before the Court by Mrs S. Stefanova and Mr M. Ekimdzhiev , lawyers practising in Plovdiv .

A. The circumstances of the case

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

1. The criminal proceedings against the applicant

On 9 May 1998, at around 5 a.m., the applicant and an accomplice were surprised by the police while they were trying to enter a computer equipment shop through a hole in the wall in the basement of a housing building. It appears that they had been busy making the hole for a number of nights at the beginning of May 1998 and had attracted the attention of the inhabitants of the building.

In the morning of 9 May 1998 the applicant was armed; he opened fire against the police and detonated one hand grenade. In the exchange of gunfire the applicant ’ s accomplice was injured and later died, and a police officer was killed by a gunshot. The Special Anti ‑ Terrorism Squad („ Специализиран отряд за борба с тероризма “) intervened later in the morning. The applicant surrendered and was arrested at around 8.30 a.m., apparently after negotiations with the police, a psychologist and a prosecutor.

The same day the applicant was charged with attempted robbery, committed in concert and accompanied by murder (an offence under Article 199 § 2 of the Criminal Code (“the CC”)) and his detention on remand was ordered.

The charges against the applicant were later amended to include unlawful possession of firearms, explosives and ammunition in large quantities (an offence under Article 339 § 2 of the CC), murder of one police officer (an offence under Article 116 § 2 of the CC) and attempted murder of six police officers committed in a way and by means dangerous for the life of many and by a person who had already committed another murder of a police officer (an offence under Article 116 §§ 1 (4), (6), (11) and 2 of the CC). The charges for attempted robbery accompanied by murder were dropped by the Sofia City Prosecutor ’ s Office on 11 October 1999.

On 15 October 1998 the Sofia City Prosecutor ’ s Office prolonged the time-limit for investigation by two months.

It appears that the preliminary investigation was concluded on an unspecified date at the end of 1998 or the beginning of 1999. The investigator in charge of the case apparently transferred it to the Sofia City Prosecutor ’ s Office and suggested that the applicant be committed for trial.

On an unspecified date the Sofia City Prosecutor ’ s Office remitted the case for further investigation. The case was remitted to the investigator on two further occasions on 17 April and 2 July 1999.

On 13 August 1999 the results of the preliminary investigation were presented to the applicant and his lawyer. They did not make any comments regarding the materials in the case file.

The same day the investigator drew up a final conclusion, suggesting that the applicant be committed for trial, and transferred the case file to the Sofia City Prosecutor ’ s Office.

On an unspecified date the Sofia City Prosecutor ’ s Office prepared an indictment against the applicant and submitted it to the Sofia City Court.

On 21 February 2000 the judge-rapporteur, sitting in private, scheduled two hearings in the case for 8 and 9 June 2000. As required by Article 241 § 2 (4) of the Code of Criminal Procedure of 1974 (“the CCP”), as in force at the relevant time, he examined proprio motu whether the applicant ’ s detention on remand should be replaced with another measure for securing his appearance and confirmed it without providing any particular grounds. The formation which examined the applicant ’ s case consisted of two judges and three lay judges.

It is not clear what happened at the hearings of 8 and 9 June 2000.

On at least two occasions (9 and 10 May 2000) the applicant was brought to the Sofia City Court to get acquainted with the materials in the case-file.

On 5 December 2000 the applicant filed a written request with the Sofia City Court, seeking the remittal of the case to the investigation stage and arguing that a number of procedural violations had been committed prior to trial. This request was dismissed by the court at a hearing held on 13 December 2000. The same day the court heard one witness and granted the applicant ’ s request for further evidence. The hearing was adjourned for 8 February 2001.

On 8 February 2001 the court adjourned the hearing because the applicant ’ s lawyer, who had fallen ill, and several experts failed to appear.

On 9 April 2001 the court held a hearing. The applicant submitted a verbatim record of a session of the Bulgarian National Assembly of 15 May 1998, which included the Minister of Internal Affairs ’ statement regarding the police operation of 9 May 1998. He argued that the statement, which had been broadcasted by Channel 1 of the Bulgarian National Television and the publications about him in the press, had biased the investigation authorities and the court. He requested that the case be remitted to the investigation stage, relying on a violation of the presumption of innocence and a number of procedural violations allegedly committed at the pre-trial stage.

The court refused, holding, inter alia , that the applicant and his lawyer had been given access to the materials in the investigation files and that the applicant ’ s submissions about missing documents and evidence from the case-file were unsubstantiated. The court also found that the secrecy of the investigation had not been breached by Minister of Internal Affairs and that he only replied to a question of a Member of Parliament. As regards the alleged bias, the court noted that the applicant could have requested the withdrawal of the persons conducting the investigation or of the judges, but he had not availed himself of this possibility.

At the same hearing the applicant requested once more his release, but his request was disallowed.

The court adjourned the hearing because certain pieces of evidence, which it had already requested from the police and the Sofia Military Appellate Court, had not been sent.

On 6 July 2001 the court held a hearing. The applicant requested anew that the case be remitted to the investigation stage. He complained, inter alia , that he had not been able to meet with his lawyer in private at the pre-trial stage. He submitted two certificates: the first one issued on an unspecified date by the Ministry of Justice, Places of Detention Department (“ Главна дирекция ‘ Главно управление на местата за лишаване от свобода ’ ”) and stating that the meetings had been carried out with the knowledge of the investigator in charge Mr M; and the second one, issued on 4 June 2001 by the Ministry of Justice, Regional Section for Pre-trial Detention ( Областно звено „Следствени арести” към Главна дирекция „Главно управление на местата за лишаване от свобода” ), certifying that all the meetings between the applicant and his lawyer had been carried out “with the knowledge and authorisation and in the presence of the person leading the investigation”. Both certificates concerned the applicant ’ s detention in the detention facility of the National Investigative Service.

The court refused to remit the case. It held, inter alia , that the applicant ’ s allegations about the meetings with his lawyer were not supported by any evidence, as no register of the meetings was kept by the Department of Places of Detention. The court emphasised that at the trial stage the applicant had had the possibility to consult his lawyer in private.

Furthermore, despite the applicant ’ s protests, the court admitted expert evidence and adjourned the hearing because the physical evidence gathered at the pre-trial stage was not at the disposal of the court. The hearing was adjourned because of the applicant ’ s lawyer ’ s request to be allowed to get acquainted with newly presented evidence and to have an audio cassette sent by the military prosecution.

In the meantime, the judge-rapporteur was appointed Minister of Justice. The formation hearing the case did not include a reserve judge, therefore a new judge was appointed and the trial had to recommence.

A hearing listed for 16 October 2001 was adjourned because all the victims of the alleged offence had to be summoned anew.

At a hearing held on 29 November 2001 the court heard the prosecutor, the applicant and two witnesses and gave four victims leave to join the proceedings as civil parties.

At the same hearing the applicant requested anew his release, which was refused. He furthermore requested the withdrawal of one judge and the three lay judges on the ground that they had ruled on his requests for release and remittal for additional investigation before the trial had recommenced. The court refused.

The applicant insisted that the witnesses be heard before the experts. As some of them were absent and some physical evidence was still missing, the hearing had to be adjourned.

On 18 March 2002 a hearing took place. The court heard ten witnesses.

On 19 March 2002 the court held a hearing. The applicant insisted that the psychiatric and part of the medical reports be presented to the court only after all the witnesses were heard. This request was granted by the court.

Furthermore, the applicant stated that the case file did not include protocols for collecting certain pieces of physical evidence – clothes, bullets from a wound, fingerprints etc., which had been examined by the experts. He objected to admitting these expert reports in evidence. The court refused. It admitted abundant expert evidence (medical, ballistic, physical, biological, chemical and fingerprint) and heard several experts.

The applicant insisted that the case-file did not contain the records of all investigative activities carried out at the pre-trial stage. He submitted anew the two certificates issued by the Ministry of Justice, which indicated the exact dates on which the applicant participated in investigative activities and maintained that there should be records for all of them. He furthermore complained that despite his wish he could not meet his lawyer in private and that his lawyer had not been summoned for all investigation activities. Finally, he complained that the investigator in charge of the case had been biased because when he had brought charges against him, he had indicated that the applicant had committed an offence. Therefore, he requested that the case be remitted to the investigation stage. The court refused. It granted the applicant ’ s request to have an additional witness questioned and adjourned the hearing in order that he and other absent witnesses be summoned.

A hearing was held on 8 May 2002. The court heard witnesses and experts and admitted expert evidence. The hearing continued on 9 May 2002. The court examined the applicant ’ s request for release and adjourned the hearing because one witness and several experts failed to appear.

On 26 June 2002 a hearing took place. The applicant requested the withdrawal of the prosecutor because the latter had characterised his request for release as “immoral” at the previous hearing. The court refused, holding that the prosecutor ’ s remark did not violate the presumption of innocence, had not been taken into account by the court and was not indicative of bias.

The applicant requested that new evidence be collected and admitted. The court considered this evidence irrelevant for the case and, accordingly, dismissed the request.

At the same hearing the court heard one witness and admitted written evidence. It was adjourned because several experts failed to appear.

A hearing scheduled for 13 January 2003 was adjourned because one expert failed to appear and the evidence requested by the court from the Bulgarian National Television was not presented.

On 26 February 2003 the applicant dismissed his lawyer and expressed his wish to retain a new one of his own choosing. The hearing of that date was accordingly adjourned.

Between March 2003 and 16 June 2005 no hearing took place. One hearing listed for 16 July 2003 was adjourned because apparently one of the judges was busy with other matters, and another hearing scheduled for 15 February 2005 – because the applicant ’ s lawyer had not been properly summoned.

Eleven hearings (scheduled accordingly for 19 May, 23 September and 25 November 2003, 27 January, 29 March, 17 May, 18 May and 17 July 2004, 13 and 25 January and 17 March 2005) were adjourned either because the applicant had dismissed his representatives and the new ones requested adjournments to acquaint themselves with the entire case file, or because his representatives had fallen ill. The applicant apparently refused to be represented by a lawyer appointed ex officio by the court and complained that he had not been able to retain a lawyer because by section 37a § 2 of the Rules for the Application of the Enforcement of Sentences Act he was not allowed to contact a lawyer by telephone. On 23 September 2003 the court sent a letter to the Sofia Central Prison authorising the applicant to make a phone call to a lawyer. It appears that such authorisation was given by the court more than once.

On 16 June 2005 a hearing took place. The court granted the applicant ’ s request for the withdrawal of a reserve lay judge. Furthermore, acting on request of the applicant, it decided to hear two witnesses and ordered an additional psychiatric expert report. The hearing was adjourned.

The court held hearings on 13 and 14 October 2005 and gave judgment on 14 October 2005. It found the applicant guilty of murder of one police officer, attempted murder of another police officer and of illegal possession of firearms and explosives, sentenced him to thirty years ’ imprisonment and ordered him to pay damages to three civil claimants.

The applicant and the Sofia City Prosecutor ’ s Office filed appeals.

On 11 July 2006 the Sofia Appellate Court held a hearing. It admitted diverse material evidence and one psychiatric expert report and ordered another psychiatric expert report.

As of 4 December 2006 (the date of the latest communication of the applicant with the Court) the case was still pending before the Sofia Appellate Court.

2. The applicant ’ s appeals against detention

The applicant was arrested on 9 May 1998 and was detained on remand by investigator ’ s order of the same day. The grounds provided by the investigator were that the applicant had committed a serious wilful offence and that there was a real risk that he might abscond. The same day the investigator ’ s order was approved by a prosecutor.

As of 4 December 2006 the applicant had filed fifteen appeals against his detention.

(a) Appeals between October 1998 and March 2001

The first appeal was filed on 2 October 1998. It was dismissed by the Sofia City Court at an open hearing of 13 October 1998 in the presence of the applicant. The court held that:

“By virtue of an [investigator ’ s] order of 9 May 1998 ... Konstantin Bochev Bochev was charged under Article 199 § 2 (2) of the [CC]. He was detained on remand. The [investigator] has correctly established the preventive measure under Article 152 of the CCP. The accused Bochev has committed a serious wilful offence punishable by fifteen to twenty years ’ imprisonment, life imprisonment or death.”

This decision was not amenable to further appeal. Nevertheless, on 13 December 2000 the applicant filed an appeal with the Sofia Appellate Court against it. He complained that the lower court ’ s reasoning in support of his detention declared him guilty of an offence and thus demonstrated the court ’ s bias, violated the presumption of innocence and his right to a fair trial. On 15 January 2001 the Sofia Appellate Court, holding that the appeal was directed against a decision given in the pre-trial proceedings, interpreted the essence of the applicant ’ s complaints as a request for the imposition of a more lenient measure and forwarded the appeal to the Sofia City Court. The outcome of this appeal is unclear.

On 1 February 2001 the applicant filed an appeal with the Supreme Court of Cassation through the Sofia Appellate Court. On 13 February 2001 the latter returned the appeal on the ground that its decision to forward the appeal was not amenable to cassation review.

On 26 February 2001 the applicant tried to file another cassation appeal, which was returned by the Sofia Appellate Court on similar grounds on 4 April 2001.

On an unspecified date the applicant filed an appeal against the decision of the judge-rapporteur of 21 February 2000 by virtue of which his detention on remand had been confirmed proprio motu and the first hearings of his trial were scheduled (see above).

On 9 March 2001 the Sofia Appellate Court rejected this appeal. It held that the control exercised proprio motu by the rapporteur at this stage was provided as an additional guarantee for the lawfulness of pre-trial detention, which did not prevent the applicant from filing a separate appeal against detention with the first-instance court. Because of its nature this decision was not to be served on the accused and was not amenable to appeal.

The applicant filed a cassation appeal through the Sofia Appellate Court. On 4 April 2001 the latter returned the appeal on the ground that its decision was not amenable to cassation review.

(b) Appeals between April 2001 and May 2002

At the hearings held on 9 April and 29 November 2001, 19 March and 9 May 2002 the applicant made new requests for release. They were all dismissed, as follows: by the Sofia City Court – at the respective hearing (see above), and by the Sofia Appellate Court, accordingly, on 4 May 2001, 7 January, 15 April and an unspecified date in 2002.

The courts held that (1) the length of the applicant ’ s detention had not exceeded the reasonable time-limits, the case was complex and the trial was conducted diligently; (2) the applicant was accused of very serious offences, which led to the justified conclusion that he might abscond or re-offend and (3) there were no new circumstances warranting the applicant ’ s release.

In its decision of 4 May 2001 the Sofia Appellate Court considered that the presumption under Article 152 § 2 about the existence of a real risk that the applicant might abscond or re-offend applied to the case. Similarly, in two other decisions (given on 7 January and 15 April 2001) the Sofia Appellate Court emphasised that the lack of previous convictions, known identity and permanent place of abode, stressed by the applicant in his appeals, were not sufficient to rebut the presumption under Article 152 § 2 of the CCP.

In the proceedings before the Sofia Appellate Court the prosecutor filed on two occasions (11 April and 23 May 2002) written observations in support of the applicant ’ s detention. They were not communicated to the applicant and he did not comment on them. Furthermore, the court decided on the appeals in private.

The applicant tried to file a cassation appeal against the decision of the Sofia Appellate Court of 4 May 2001. On 28 May 2001 the Supreme Court of Cassation refused to entertain it on the ground that decisions given on requests for release at the trial stage were not amenable to cassation review. It went on to hold that paragraph 19 of the Act for Amending and Supplementing the CCP of 27 April 2001 provided for a cassation appeal only in respect of decisions given at the pre-trial stage, which was not the case.

(c) The remainder of the applicant ’ s appeals

Until 14 October 2005 the applicant filed six further appeals against his detention. They were dismissed by the Sofia City Court on 18 October 2002, 14 April 2003, 4 May, 8 September and 23 November 2004 and, accordingly, by the Sofia Appellate Court on appeal on 11 November 2002, 23 May 2003, 7 June, 21 September and 20 December 2004. The applicant ’ s appeal of 13 January 2005, filed by him at an open hearing on the merits, was not examined by the Sofia City Court because his lawyer was absent.

In dismissing the appeals the courts relied on the seriousness of the charges against the applicant, the complexity of the case and the diligent conduct of the proceedings. In their decisions of 4 May 2004 and 8 September and 23 November 2004 the Sofia Appellate Court and the Sofia City Court, respectively, stated that the length of the trial was due to the numerous adjournments caused by the applicant.

At the hearing of 8 September 2004 the applicant addressed the Sofia City Court in person and relying on Articles 3 and 5 §§ 3, 4 and 5, and 17 of the ECHR and on the judgments Ilijkov v. Bulgaria ( no. 33977/96, 26 July 2001 ) and Ječius v. Lithuania ( no. 34578/97, ECHR 2000 ‑ IX ), complained, inter alia , that his detention had not been ordered by a court, its duration was excessive, the scope of its judicial review was limited and did not include the existence or lack of reasonable suspicion, that the burden of proof in respect of new circumstances was shifted to him, that the conditions of his detention were humiliating and that his mother was ill.

The court dismissed the appeal, inter alia , on the following grounds: (1) the court could not examine the existence of reasonable suspicion at the trial stage within proceedings on appeal against detention because this would prejudge the merits of the case; (2) the applicant ’ s initial detention had been in conformity with the relevant laws; (3) the applicant was not the only relative who could take care of his mother and, furthermore, the illness of a relative could warrant the detainee ’ s release only in exceptional circumstances warranting personal care by the detainee; (4) the conditions of detention were relevant only in so far as they affected the applicant ’ s health, they were not a circumstance to be taken account of under Article 147 § 2 of the CCP; and (6) the length of the applicant ’ s detention was not unreasonable, moreover, the trial could not come to an end due to his consistent failure to organise properly his defence.

In their decisions of 18 October and 11 November 2002 the Sofia City Court and the Sofia Appellate Court, accordingly, relied, inter alia , on the applicant ’ s negative personality. According to the applicant, the source of information about his personality was a survey, prepared by the police in 1999, which depicted him as follows: “... cold smile, malicious, sneaky ..., [having the] look of a wild animal ...”.

In its decision of 23 May 2003 the Sofia Appellate Court refused to examine the lawfulness of the applicant ’ s initial pre-trial detention. It held that the issue had already been decided in a final decision and that it was only competent to consider appeals against decisions of the first-instance court given at the trial stage.

On 14 October 2005 the Sofia City Court gave its judgment (see above). In a separate decision the court confirmed the applicant ’ s detention.

On 1 November 2005 this decision was upheld on appeal by the Sofia Appellate Court.

At a hearing held on 14 August 2006 the applicant filed a new request for release, which was dismissed by the Sofia Appellate Court.

3. The applicant ’ s confinement to a psychiatric hospital

On an unspecified date the investigator in charge of the case ordered that the applicant be placed for examination in the Clinic for Forensic Psychiatry and Psychology of the Sofia Medical University. He was kept there between 29 October and 13 November 1998.

At a hearing held on 13 December 2000 by the Sofia City Court the applicant requested the remittal of the case to the investigation stage on the ground that, inter alia , he had been placed in a psychiatric clinic without the authorisation of a prosecutor. The court refused, holding, inter alia , that even assuming that this was a serious procedural violation the remittal of the case would not be capable of remedying it.

On 9 February 2001 the applicant filed a complaint with the Supreme Prosecutor ’ s Office in respect of his 1998 confinement and apparently requested an investigation into the matter. This complaint was forwarded to the Sofia City Court, which the Prosecutor ’ s Office considered competent to rule on all complaints relating to the criminal proceedings against the applicant.

4. Public statements and media campaign relating to the criminal proceedings against the applicant

(a) The answer of the Minister of Internal Affairs to a question of a Member of Parliament

On 15 May 1998 the Minister of Internal Affairs appeared before the National Assembly to answer a question put by one of its members relating to the organisation of the police operation of 9 May 1998 in which a police officer had been killed. He provided detailed information about the actions of the police prior to the impugned events and in the morning of 9 May 1998. He did not mention the name of the applicant and his accomplice. The persons found in the basement by the police were referred to as: “the shooting persons” and “the person who had put up armed resistance”. The Minister terminated the description of the facts with the following sentence: “At 8.30 the criminal detonated the grenade, was arrested and delivered to the investigative authorities”.

This statement was transmitted live by Channel 1 of the Bulgarian National Television.

(b) Articles in the press

The applicant submits that at the beginning of 2001 he received copies and acquainted himself with the contents of a number of articles in the press concerning the criminal proceedings against him.

The newspapers published numerous articles about the police operation, the applicant ’ s arrest and the criminal proceedings against him. He and his accomplice were referred to as “murderers” ( 168 Chasa of 23-29 October 1998, 24 Chasa of 13 May 1998 and Trud of 11 October 2000), “criminals” ( Sega of 11 May 1998 and 7 July 1998), “bandits” ( Trud of 10 May 1998, Sega of 10 and 11 May 1998 and 8 May 2000 and 24 Chasa of 12 May 1998) and “gangsters” ( Trud of 10 May 1998). The applicant has not issued proceedings against the newspapers.

A number of newspapers published excerpts of the applicant ’ s diary of 1997 and of his interviews with psychiatrists and psychologists after his arrest (the applicant presented copies of the weekly 168 Hours of 23 ‑ 29 October 1998 and of the daily Nos h ten Trud of 8 ‑ 9 December 1998).

5. Conditions of detention

The applicant was arrested on 9 May 1998 and detained on remand first in the detention facility of the National Investigative Service. On 29 December 1999 he was transferred to the Sofia Central Prison where he is currently detained. He is placed in a single cell, but is allegedly in contact with convicted criminals during his visits to the toilet, the bathroom and the daily outdoor exercises.

6. Restrictions on the applicant ’ s telephone calls in detention

The applicant made a written request to the prison authorities to use the prison telephone on two occasions: on 25 April 2001 to contact his son and his lawyer and on 12 April 2004 – to urgently contact his lawyer. Both requests were disallowed. The second refusal was provided with reasons, namely that the relevant laws did not provide for telephone calls with lawyers and that the applicant could contact one either in person during a visit or in writing.

7. Proceedings initiated by the applicant against Regulation No. 2 relating to the rules applicable to remand prisoners

On 17 June 2002 the applicant filed a claim with the Supreme Administrative Court seeking, inter alia , the revocation of section 1(2) of Regulation No. 2 relating to the rules applicable to detainees (see below, Relevant domestic law and practice). According to the said provision, in the absence of special rules, the legal regime of convicts applied to pre-trial detainees as well. In the applicant ’ s view this provision violated, inter alia , the presumption of innocence and the freedom of correspondence.

By a final judgment of 19 July 2002 the Supreme Administrative Court dismissed this claim.

8. Proceedings for compensation

On 11 July 2001 the applicant asked the prison administration to enter a complaint that he intended to send to the Chairperson of the Sofia City Court on the register of outgoing mail. This request was granted on 12 July 2001 and the complaint was apparently sent. According to the applicant, it constituted a claim for non-pecuniary damages against the Minister of Justice for the unlawful censorship of his correspondence between 9 May 1998 and 22 January 2001 in breach of the Constitution, the Convention, and a judgment of the Supreme Appellate Court of 22 December 2000. The Sofia City Court allegedly did not react to his claim.

On 17 September 2001 the applicant complained to the Chairperson of the Sofia City Court, who allegedly forwarded it to the college of judges who were in charge of the criminal proceedings against him. On 6 March 2003 the applicant complained to the Supreme Prosecutor ’ s Office but received no reply.

B. Relevant domestic law and practice

1. Grounds for detention

The grounds for detention pending trial before the reform of the CCP of 1 January 2000 and afterwards have been summarized in the Court ’ s decision in the case of Vasilev v. Bulgaria ( (dec.), no. 62544/00, 9 June 2005). On 29 April 2006 a new Code of Criminal Procedure entered into force.

Article 147 of the CCP, as in force at the relevant time, provided that the measures to secure appearance were intended to prevent the accused ’ s absconding, re-offending, or thwarting the establishing of the truth. When imposing a particular measure, the competent authority had to have regard to the dangerousness of the alleged offence, the evidence against the accused, his or her health, family status, profession, age, etc. (Article 147 § 2).

2. Appeals against detention

( a) Appeals against detention at the pre ‑ trial stage

By Article 152b of the CCP, appeals against detention at the pre-trial stage were filed through the prosecution authorities and were examined by a court. The court considered the appeal in an open hearing to which the detainee was summoned. The hearing took place not later than three days after the receipt of the appeal at the court (Article 152b § 4 ). The court examined all circumstances relating to the lawfulness of the detention and pronounced its decision at the hearing (Article 152b § 5). This decision was amenable to appeal to a higher court within a three-day time-limit (Article 152b § 8). The higher court examined the appeal in an open hearing to which the detainee was summoned (Article 152b § 9) and its decision was final. Until 1 January 2000 decisions of first-instance courts on appeals against detention were not amenable to further appeals (Article 152a § 3).

On the basis of the relevant law before 1 January 2000, the Supreme Court had stated that it was not open to the courts, when examining an appeal against pre ‑ trial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to only examine the lawfulness of the detention order under domestic law ( Решение â„– 24 of 23 май 1995 по н.д . 268/95, І н.о.) .

(b) Appeals against detention during the trial

By Article 304 § 1 of the CCP, at the trial stage of the proceedings detainees ’ requests for release were examined by the trial court. It followed from Article 304 §§ 1 and 2 that these requests could be examined in private or at an oral hearing. The law did not require the trial court to decide within a particular time-limit.

Following an amendment to the CCP of 30 May 2003 a new Article 268a was introduced. It read as follows:

“1. The question relating to [appeal against detention] may be raised at any time in the court proceedings. A new appeal [...] can be made in case of change of circumstances.

2. The court pronounces its decision in an open hearing. It shall not examine the existence of a reasonable suspicion that an offence has been committed.”

The trial court ’ s decision as regards a request for release was subject to appeal to the higher court (Article 344 § 3). The appeal had to be lodged within a seven-day time-limit (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 317, as in force at the relevant time). Article 348 provided that the appeals court could examine the appeal in private or, if it considered it necessary, at an oral hearing.

3. Issues to be considered by the judge-rapporteur in private after the indictment had been submitted by the prosecutor

After the prosecutor had submitted the indictment to the court, its president assigned the case to a judge-rapporteur. His or her task was to prepare the trial in verifying, inter alia , whether this particular court was competent to examine the case, whether there were any grounds for terminating or staying the proceedings or for remitting the case. He or she also had to verify whether the preventive measure imposed on the accused should be changed or revoked (Article 241 § 2 (4) of the CCP, as in force at the relevant time.).

4. Restrictions on detainees ’ correspondence

By section 10 of the Enforcement of Sentences Act of 1969 (“the ESA”) pre-trial detainees may be placed in prisons. The general regime applicable to convicts applies to pre ‑ trial detainees in so far as no special rules exist. Until 25 June 2002 these special rules were embodied in a regulation issued by the Minster of Justice (for the relevant period, Regulation â„– 2 of 19 April 1999, State Gazette no. 39/27 April 1999). Following an amendment of the ESA of 25 June 2002 the special rules about pre-trial detainees were included in the ESA (sections 128-132z) and the above regulation was no longer applicable.

Section 33 of the ESA provides, inter alia , that prisoners have the right to receive and send letters subject to control by the prison administration. This text was reproduced in section 25(1) of the above-mentioned Regulation No. 2. On 22 December 2000 the Supreme Administrative Court annulled this provision, holding that it was contrary to the Constitution of 1991 and Article 8 of the European Convention of Human Rights. However, section 33 of the ESA continued to be in force and after 25 June 2002 its text was reproduced anew in section 132g(3) of the ESA.

Only letters sent to the National Assembly, the President ’ s Office, the Council of Ministers, the Ministry of Justice, the Ministry of the Inter nal Affairs, the courts, the prosecution authorities and human rights organisation part of the United Nations or the Council of Europe were exempt from control, if they ha d been submitted in a sealed envelope (section 37(2) of the ESA) .

On 18 April 2006 the Constitutional Court declared section 132g(3) of the ESA unconstitutional ( Решение № 4 от 18 април 2006 по конституционно дело № 11 от 2005). It held that the automatic control of the correspondence of remand prisoners interfered with Article 34 of the Constitution (which permitted restrictions only pursuant to a court judgment), Article 30 § 4 of the Constitution (which provided for the protection of the secrecy of the communication between detainees and their lawyers) and Article 8 of the Convention and the case-law of the European Court of Human Rights. Since 6 May 2006 (the date of the entry into force of the decision), section 132g(3) of the ESA is no longer applicable.

On 1 September 2006 the Rules on the Application of the ESA were amended. Pursuant to the new section 178 detainees are entitled to unlimited correspondence which is not subject to control. Envelopes have to be sealed and opened in the presence of an officer from the prison administration so as to convince the latter that they do not contain money or other prohibited objects (section 178(2)).

COMPLAINTS

1. The applicant complained under Articles 3 and 5 § 3 of the Convention that (1) his detention had not been ordered by a court; (2) its length had been excessive (applicant ’ s letters of 26 March 2001, 31 July 2001, 4 August 2002, 15 December 2002; 14 June 2003, 9 March, 26 July and 3 November 2004 and 10 January 2005); (3) the burden of proof for providing new evidence warranting his release had been inadmissibly placed on him (applicant ’ s letters of 31 July 2001, 3 March 2002 and 14 June 2003) and (4) in dismissing his appeals against detention the courts had not taken into account all relevant circumstances and, in particular, had not examined the existence of a reasonable suspicion (applicant ’ s letters of 14 June 2003 and 26 July 2004).

2. The applicant complained that all decisions of the domestic courts in the proceedings of appeal against his detention had been in breach of Article 5 § 4 of the Convention. He submitted that the scope of review had been limited, as the authorities had relied only on the gravity of the charges, had not taken into account all relevant facts, and had not examined the existence of reasonable suspicion. Moreover, following the amendment to the CCP of 30 May 2003 the courts had been prevented from examining this issue (applicant ’ s letters of 26 March 2001, 3 March 2002, 15 December 2002, 14 June 2003, 26 July 2004, 3 November 2004). He also complained that on 23 May 2003 the Sofia Appellate Court had refused to examine the lawfulness of his initial detention. Finally, according to the applicant, the proceedings before the Sofia Appellate Court had not been adversarial as at least on two occasions (11 April 2002 and 23 May 2002) he had not been served with the statements of the prosecution (applicant ’ s letter of 16 February 2003).

3. The applicant complained under Article 5 § 5 of the Convention that he did not have an effective right to compensation for the alleged violations of Article 5 §§ 3 and 4.

4. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

5. In a letter of 3 May 2001 the applicant complained that until 22 December 2000 the correspondence with his lawyer had been subject to control by the prison administration. In a letter of 20 October 2002 the applicant further complained that, by section 132g(3) of the ESA, the correspondence of pre-trial detainees was subjected to control and that, by section 37a of the Rules on the Application of the ESA, pre-trial detainees were able to make phone calls only with close relatives and under the control of the prison administration. He complained that he could not contact a lawyer by phone, which interfered with the organisation of his defence. As the above restrictions were applied to convicted criminals as well, he considered that their application to pre ‑ trial detainees violated the presumption of innocence. Finally, the applicant complained that on 19 July 2002 the Supreme Administrative Court refused to annul the provisions of the regulation No. 2 relating to the rules applicable to detainees, according to which, in the absence of special rules, the provisions of the ESA in respect of convicts were applicable. For this reason he was not allowed to contact his lawyer by telephone. He relied on Articles 8 and 6 § 2 of the Convention .

6. In a letter of 3 May 2001 the applicant complain ed under Article 5 § 1 of the Convention that in 1998 he had been unlawfully placed in a psychiatric hospital by virtue of an investigator ’ s order and not at the order of a prosecutor or a court, as required by the CCP. Relying on Article 5 § 4 of the Convention, he complained that because the order had been immediately enforced he had been deprived of the possibility to appeal against it. Finally, he complained under Article 13 of the Convention that under domestic law he did not have effective remedies to protect his rights in this respect.

7. The applicant raised several complaints relating to the fairness of the proceedings against him:

7.1. Relying on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the applicant complained that for the whole duration of the pre-trial proceedings he had not been able to see his lawyer in private and that all their meetings had taken place in the presence of an investigator.

7.2. Relying on Article 6 § 3 (c) of the Convention, the applicant complained that after he had dismissed his lawyer on 26 February 2003, it had been impossible for him to retain a new one because the law prohibited him from making phone calls to lawyers. He complained furthermore that immediately after his arrest an ex officio lawyer had been appointed to represent him and he had not been given the opportunity to appoint a lawyer of his own choosing.

7.3. Furthermore, the applicant complained that the case ‑ file presented to him on 13 August 1999 had been incomplete and had missed documents which appeared later in the case-file before the Sofia City Court.

7.4. In a letter of 26 March 2001 the applicant complained that on 13 October 1998 the Sofia City Court had declared him t he perpetrator of a crime.

7.5. In further letter s of 3 May and 31 July 2001 the applicant complained that there was a campaign in the media for his defamation and for declaring him guilty in advance . He complained that the appellations “murderer”, “criminal” and “bandit” in the press and the statements of State officials, the investigator, the prosecutor and ministers, which declared him guilty, and in particular, the wording of the decision of the investigator of 9 May 1998, the statement of the Sofia City Court of 13 October 1998 and the speech of the Minister of Internal Affairs of 15 May 1998, violated the presumption of innocence, made it impossible for the court to be independent and impartial and rendered his trial unfair. He also complain ed that the grounds for imposing pre-trial detention, and in particular, the charges of an offence punishable by more than ten years ’ imprisonment or a heavier punishment, violated the presumption of innocence. Finally, he complain ed under Article s 6 § 1 and 13 of the Convention that he could not sue the responsible persons .

8. Relying on Article 2 § 1 of Protocol No. 7 and Articles 5 § 4 and 6 § 1 of the Convention , the applicant complained that (i) the Sofia Appellate Court and the Supreme Court of Cassation had refused to examine his appeals against the decision of the Sofia City Court of 13 October 1998 and against the decision of the judge-rapporteur of 21 February 2000; (ii) he had not been able to lodge an appeal against the above decision of the judge-rapporteur and that the decision had not been reasoned, had not been served on him and had been taken in private by a judge who was to rule later on the merits of the case and that the whole procedure was not adversarial.

9. The applicant complained under Article 14 of the Convention that he was discriminated against because the domestic law did not permit the institution of criminal proceedings for libel, unlawful placement in a psychiatric clinic, false accusation and disclosure of personal information against persons who enjoyed immunity from prosecution.

10. The applicant complained under Article 3 of the Convention that in dismissing his appeals against detention on 18 October 2002 and 12 November 2002 the Sofia City Court and the Sofia Appellate Court had relied on an insulting survey about his personality, which constituted humiliating treatment. He furthermore complained that he did not have an effective remedy against this violation.

11. The applicant complained under Article 17 of the Convention that in dismissing his appeal against detention on 4 May and 7 June 2004 the Sofia City Court and the Sofia Appellate Court had relied solely on the reasonableness of its length and had abused their power.

12. In a letter of 3 May 2001 the applicant complained that at the time of his arrest he had been forced to uncover his face for the media and that after that he had been beaten by a police officer in the presence of an investigator.

13. In a letter of 3 May 2001 the applicant complained that documents from the investigation file, his diary and records of his interviews with psychiatrists had been given to the media. He relied on Articles 3, 5, 6 and 8 of the Convention.

14. The applicant complained under Article 3 of the Convention that he had spent twenty months in isolation in the detention facility of the National Investigative Service and that in the Sofia Central Prison he was under a special regime and was in contact with convicted prisoners and recidivists.

15. The applicant complained under Article 6 § 1 of the Convention that the Sofia City Court had disregarded his claim for compensation of 12 July 2001 and had refused to initiate proceedings against the Minister of Justice.

THE LAW

1. Complaints under Article 5 §§ 3, 4 and 5 of the Convention

The applicant complained about the length of his detention on remand. He also complained that the domestic courts had not duly scrutinised his appeals against his pre ‑ trial detention, and that the proceedings pursuant to these appeals had not been truly adversarial. Finally, he complained about the lack of an enforceable right to compensation for these alleged breaches of Article 5 of the Convention

The relevant parts of Article 5 of the Convention provide as follows:

“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.....

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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant ’ s complaint s about the length of his detention; the scope of review of the appeals against his pre ‑ trial detention examined on the merits by the domestic courts after August 2000 ; the lack of guarantees for an adversarial procedure in the proceedings before the Sofia Appellate Court where the prosecutor made submissions on 11 April and 23 May 2002 ; and the lack of an enforceable right to compensation for these alleged breaches of Article 5 of the Convention. 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.

2 . Complaint under Article 6 § 1 of the Convention about the length of the criminal proceedings against the applicant

The relevant part of Article 6 § 1 of the Convention provides:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

3. Complaints under Article 8 of the Convention about the censorship of the applicant ’ s correspondence

The relevant part of Article 8 of the Convention provides:

“1. Everyone has the right to respect for his [...] correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant ’ s complaint s relating to the censorship of his general correspondence until 18 April 2006, and his correspondence with his lawyer until 22 December 2000. 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.

4. Complaints under Article 6 §§ 1 and 3 (b) and (c) of the Convention

In respect of his complaints about the alleged unfairness of the criminal proceedings against him and the alleged interference with the organisation of his defence the applicant relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, which provide, as relevant:

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

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

The Court considers that a complaint under Article 6 of the Convention concerning alleged unfairness of criminal proceedings would in principle be premature when these proceedings are still pending. An applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a fair trial in respect of proceedings which have not been concluded (see Belchev v. Bulgaria (dec.), no. 39270/98, 11 May 2000, unreported; and Zhbanov v. Bulgaria (dec.), no. 45563/99, 19 June 2003, unreported).

The Court notes that the criminal proceedings against the applicant are still pending on appeal before the Sofia Appellate Court . The Court is consequently not in a position to make an overall examination of the se proceedings and considers that it cannot speculate either on what the Sofia Appellate Court will decide or on what the outcome of a n ensuing appeal on points of law might be (see Dikme v. Turkey , no. 20869/92, § 111 , ECHR 2000 ‑ VIII )

It follows that the applicant cannot, at this stage, claim to be a victim of the alleged violations of his right to fair trial under Article 6 §§ 1 and 3 of the Convention and that, therefore, these complaints are inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

5. Complaints Articles 6 § 2 and 13 of the Convention

The applicant complained about the wording of the decision of the investigator of 9 May 1998, the decision of the Sofia City Court of 13 October 1998, the statement of the Minister of Internal Affairs of 15 May 1998, and the media campaign relating to the criminal proceedings against him, as well as about the lack of effective remedies therefor.

The Court considers that the applicant ’ s complaints fall to be examined under Articles 6 § 2 and 13 of the Convention.

Article 6 § 2 provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 13 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 Court reiterates that the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of a fair trial that is required by paragraph 1 (see Deweer v. Belgium , judgment of 27 February 1980, Series A no. 35, § 56; Allenet de Ribemont v. France , judgment of 10 February 1995, Series A no. 308, § 35; Daktaras v. Lithuania , no. 42095/98, § 41 , ECHR 2000 ‑ X ; and Butkevičius v. Lithuania , no. 48297/99, § 49 , ECHR 2002 ‑ II (extracts) )

Concerning the decision of the investigator of 9 May 1998 and the decision of the Sofia City Court of 13 October 1998, both made in the context of the criminal case against the applicant, the Court notes that there has been no final judgment determining the charges against him and that the proceedings are still pending. It is therefore still open to him to raise complaints in this regard in the course of the proceedings, also before the Supreme Court of Cassation. The Court cannot speculate about the outcome of the pendin g proceedings. The complaints in this regard are accordingly premature and the applicant has not exhausted all domestic remedies within the meaning of Article 35 § 1 of the Convention (see Rokhlina v. Russia (dec.), no. 54071/00, 9 September 2004; and Staikov v. Bulgaria (dec.), no. 49438/99, 9 December 2004 ). This part of the application must therefore be rejected in accordance with Article 35 § 4.

In addition, the Court considers that the applicant ’ s complaints under Article 6 § 2 relating to the statement of the Minister of Internal Affairs are manifestly ill ‑ founded for the following reasons.

Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress ( Allenet de Ribemont , cited above, § 38). Moreover, in a democratic society it is inevitable that information is imparted, especially when it concerned a matter of general public interest such as the organisation of police operations and the protection of life police officers. However, respect for the presumption of innocence requires that the authorities use all the necessary discretion and circumspection (see Allenet de Ribemont , cited above, § 38 ). In this respect, the Court has emphasised the importance of the choice of words by public officials in their statements to the press before a person has been tried and found guilty of an offence ( see Daktaras, cited above, §§ 41 and 44 ; and Butkevičius , cited above , §§ 49 ‑ 50).

The Court notes that in the present case the subject-matter of the Minister ’ s statement was the organisation of the police operation of 9 May 1998 in which one police officer was killed. In depicting the course of the actions the Minister mentioned the perpetrators of the offence, using predominantly impersonal and neutral phrases such as “the shooting persons” and “the person who had put up armed resistance”. It is true that he referred once to the arrested person as “the criminal”, however, at no point did he mention the applicant ’ s name (contrast, for example, Butkevičius , cited above, §§ 26 ‑ 30; and Zollmann v. the United Kingdom (dec.), no. 62902/00, ECHR 2003 ‑ XII ). In these circumstances, the Court does not consider that in presenting a report about the police operation of 9 May 1998 in the National Assembly the Minister of Internal Affairs overstepped the boundaries of discretion imposed by Article 6 § 2.

Finally, in so far as the applicant may be taken to complain about the appellations used by journalists in his respect, this complaint is inadmissible ratione personae as the impugned statements were made by private persons and were not attributable to the State. Moreover, the applicant has not availed himself of any domestic remedy in this respect.

6. The remainder of the applicant ’ s complaints

The Court has examined the remainder of the applicant ’ s complaints as submitted by him. 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.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints about the length of his pre ‑ trial detention ; the scope of review of the appeals against his pre ‑ trial detention examined on the merits by the domestic courts after August 2000 ; the lack of guarantees for an adversarial procedure in the proceedings before the Sofia Appellate Court where the prosecutor made submissions on 11 April and 23 May 2002 ; the lack of an enforceable right to compensation for these alleged breaches of Article 5 of the Convention; the interference with the applicant ’ s general correspondence before 18 April 2006 and with his correspondence with his lawyer before 22 December 2000; and the length of the criminal proceedings against the applicant ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President