FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23057/03 by Krum Iliev DINCHEV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 6 March 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mr S . Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 16 July 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Krum Iliev Dinchev, is a Bulgarian national who was born in 1937 and lives in Vidin .

A. The circumstances of the case

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

At the relevant time the applicant worked as an electrical engineer on a ship on the Danube . At about 9 p.m. on 3 January 1992, while the ship was anchored in Passau, Germany, and the crew were celebrating a birthday onboard, one of them, Mr V.M., who had been drinking alcohol, showed to the others a gas pistol which he had recently bought. He put the barrel close to the first mechanic ’ s head and then went out of the cabin. A few seconds later a shot was heard and Mr V.M. entered the cabin, saying that he had shot the second mechanic. The others admonished him not to play with the pistol, as he could blind somebody. However, Mr V.M. turned towards the applicant and told him that he “[would] be next”. The applicant also warned him not to play with the pistol, but Mr V.M. aimed at him, laughing. The applicant tried to hide his face and went out of the cabin and back in several times. Mr V.M. continued laughing and shot the applicant in the face, from a distance of about 50 or 60 cm. The applicant was blinded and felt numb in his nose, mouth and chin. His eyeglasses were covered with powder.

On the next morning the applicant was taken to a hospital in Passau to undergo treatment. He had a number of black scars on his face.

The applicant brought the matter to the attention of the Bulgarian prosecution authorities on an unspecified date in 1993. On 14 December 1993 the Vidin District Prosecutor ’ s Office opened a criminal investigation into the incident.

On 1 February 1994 Mr V.M. was charged.

On 11 February 1994 the investigator to whom the case had been assigned concluded that Mr V.M. had wilfully inflicted on the applicant intermediate bodily harm, contrary to Article 129 of the Criminal Code of 1968, and recommended that he be committed to trial.

No further procedural actions were undertaken until 15 May 1998, when the Lom District Prosecutor ’ s Office, to which the case had been transferred in February 1994 because the ship where the alleged offence had taken place was registered in Lom, submitted an indictment against Mr V.M. to the Lom District Court, charging him with having negligently inflicted intermediate bodily harm on the applicant, contrary to Article 133 of the Criminal Code of 1968.

In the meantime, in 1994, November 1995 and January 1996, the applicant had contacted the Lom District Prosecutor ’ s Office and had requested the faster processing of the case. In 1996 and 1997 he had also complained about the delay to the Montana Regional Prosecutor ’ s Office.

The first hearing before the Lom District Court, listed for 3 November 1998, failed to take place because none of the witnesses and an expert witness did not show up.

The second hearing took place on 23 February 1999. The court accepted the applicant ’ s claim for damages for examination and gave him leave to participate in the proceedings as a private prosecuting party alongside the public prosecutor. Noting that Mr V.M. was ill, the court adjourned the case.

A hearing scheduled for 15 April 1999 did not take place because Mr V.M. was ill and none of the witnesses had shown up.

A hearing listed for 23 February 2000 was also adjourned because Mr V.M. was absent. The court held that Mr V.M. was evading the proceedings and ordered his detention.

A hearing listed for 5 July 2000 did not take place because Mr V.M. had not received a copy of the indictment.

The next hearing was held on 20 September 2000. The court once again accepted for examination the applicant ’ s claim for damages and gave him leave to participate in the proceedings as a private prosecuting party alongside the public prosecutor. The applicant ’ s lawyer complained about the protracting of the proceedings and on this ground requested the recusal of the formation examining the case. The court turned his request down. It adjourned the case because most of the witnesses were absent.

The next hearing took place on 18 January 2001. The public prosecutor asked the court to discontinue the proceedings because the relevant limitation period had expired. The applicant ’ s counsel objected, stating that the court should do so only after hearing the witnesses and forming a more definite view on the legal characterisation of Mr V.M. ’ s act, which was highly relevant for determining the applicable limitation period. The court decided to discontinue the proceedings, holding that the limitation period for the offence allegedly committed by Mr V.M. had expired. The offence had been allegedly perpetrated on 3 January 1992, the investigation had been opened on 14 December 1993, Mr V.M. had been charged on 1 February 1994, and no procedural steps had been taken until 15 May 1998, when the indictment had been submitted to the court. The offence alleged was one under Article 133 of the Criminal Code of 1968, which provided for up to one year ’ s imprisonment. By Article 80 § 1 (5) of that Code, an alleged offence could no longer be prosecuted after the expiration of two years from its commission.

Upon the appeal of the applicant, in a decision of 14 June 2001 the Montana Regional Court quashed the discontinuation and remitted the case. It found that, contrary to the rules of procedure, Mr V.M. had not been asked whether he wished to profit from the expiration of the limitation period or waived that benefit and preferred to be tried on the charges against him.

At a hearing held on 14 November 2001 the Lom District Court, having heard Mr V.M. ’ s declaration that he wanted to avail himself of the expiration of the limitation period, discontinued the proceedings, giving the same reasons as before.

The applicant appealed, arguing, inter alia , that the court had erred by not examining the legal characterisation of the offence independently, but blindly accepting the one given in the indictment. There were serious indications that Mr V.M. had perpetrated his act wilfully. In a decision of 22 April 2002 the Montana Regional Court upheld the discontinuation. It held that the lower court had not erred by examining the case in line with the legal characterisation of the alleged offence set out in the indictment – negligent intermediate bodily harm – and by finding that the offence of which Mr V.M. had stood accused could no longer be prosecuted. It was evident that the limitation period had expired before the indictment had been submitted to the court. The lower court had omitted to spot that at the outset, but had later rightly discontinued the proceedings on that ground.

The applicant appealed to the Supreme Court of Cassation, arguing that the legal characterisation of the alleged offence – and hence the applicable limitation period – had been incorrect, as there were indications that Mr V.M. had perpetrated his act wilfully. In a judgment of 20 January 2003 the Supreme Court of Cassation affirmed, holding that at the time when Mr V.M. had been indicted the absolute limitation period for prosecuting his alleged offence – three years – had expired. The court did not comment on the legal characterisation of the offence.

B. Relevant domestic law and practice

1. Bodily harm

Article 133 of the Criminal Code of 1968 makes it an offence punishable by up to one year ’ s imprisonment or, at the relevant time, forced labour, to negligently inflict grievous or intermediate bodily harm on another. The wilful inflicting of intermediate bodily harm is an offence punishable by up to five years ’ imprisonment (Article 129 § 1 of the Code). Both are publicly prosecutable offences (Article 161 of the Code).

2. Statute of limitations for the prosecution of criminal offences

By Article 80 § 1 of the Criminal Code of 1968, the prosecution of an offence is precluded after a certain period of time. This limitation period varies in relation to the penalty provided for the offence and ranges from twenty years for offences punishable by life imprisonment to two years for offences punishable by one year ’ s imprisonment or less. The period starts to run from the completion of the offence (Article 80 § 3 of the Code) and is interrupted by every act effected by the competent authorities with a view to prosecuting the offender (Article 81 § 2 of the Code). Such interruptions notwithstanding, prosecution is no longer possible if the time elapsed since the perpetration of the alleged offence is more than 1½ times longer than the limitation period (Article 81 § 3 of the Code). Accordingly, the prosecution an offence punishable by one year ’ s imprisonment or less is barred after the expiration of three years (1½ times two years) from its perpetration, whereas the prosecution of an offence punishable by up to five years ’ imprisonment is barred after the expiration of fifteen years (½ times ten years) from its perpetration (Article 81 § 3 of the Code in conjunction with Article 80(3) and (5) thereof).

Upon the expiration of the limitation period, the proceedings against the alleged offender must be discontinued (Article 21 § 1 (3) of the Code of Criminal Procedure of 1974, presently replaced by Article 24 § 1 (3) of the Code of Criminal Procedure of 2005). However, the accused may waive this benefit and prefer to be tried on the charges against him. In that case the proceedings have to continue (Article 21 § 2 of the Code of 1974, presently replaced by Article 24 § 2 of the Code of 2005).

3. Tort claims in civil proceedings and in the context of criminal proceedings

The victim of a tort which is also a publicly prosecutable criminal offence has a choice of bringing a civil action against the alleged tortfeasor, with the result that the proceedings will be stayed in anticipation of the outcome of the pending or impending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the Code of Civil Procedure of 1952), or of making a civil claim in the context of the criminal proceedings instituted by the prosecution authorities (Article 60 § 1 of the Code of Criminal Procedure of 1974, presently replaced by Article 84 § 1 of the Code of Criminal Procedure of 2005). Until June 2003 the civil claim could be made even during the preliminary investigation, before the case had been brought to trial (Article 60 § 1 of the Code of 1974, as in force until June 2003). Presently it can be made only after the case has been brought to trial (Article 60 § 1 of the Code of 1974, as in force after June 2003, and Article 84 § 1 of the Code of 2005).

By Article 64 § 2 of the Code of 1974 (presently replaced by Article 88 § 2 of the Code of 2005), the examination of the civil claim may not bring about the adjournment of the criminal case. If the criminal proceedings are discontinued, the civil claim is not examined, but may be brought additionally in a civil court (Article 64 § 3 of the Code of 1974, presently replaced by Article 88 § 3 of the Code of 2005).

4. Limitation periods for tort claims

All tort claims are extinguished after the expiration of five years from the commission of the tort or the discovering of the tortfeasor (sections 110 and 114(3) of the Contracts and Obligations Act of 1951 („ Закон за задълженията и договорите “)). This limitation period can be interrupted (sections 116 and 117 of the Act). By section 115 (j) of the Act, it is tolled during the pendency of the “judicial proceedings relating to the claim”. After some hesitation ( реш. № 456 от 18 май 2000 г . по н . д . № 435/1999 г ., ВКС, I н . о . ) the Supreme Court of Cassation eventually held, in a binding interpretative decision, that criminal proceedings where no civil claim has been made are not “judicial proceedings relating to the claim” for the purposes of this provision. The limitation period is thus tolled only with the bringing of a civil claim, either in the context of the criminal proceedings or in separate civil proceedings ( тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС ). Unlike the criminal limitation period, the civil one has no absolute cap.

5. Private prosecuting parties in criminal proceedings instituted by the prosecution authorities

The persons who have suffered damage from a publicly prosecutable offence may participate in the criminal proceedings as private prosecuting parties alongside the public prosecutor (Article 52 of the of the Code of Criminal Procedure of 1974, presently replaced by Article 76 of the Code of Criminal Procedure of 2005). They may press the charges even if those are dropped by the public prosecutor (Article 54 § 2 of the Code of 1974, presently replaced by Article 78 § 2 of the Code of 2005), but may not seek a legal characterisation of the offence that is different from the one given in the indictment drafted by the public prosecutor ( реш. № 713 от 6 декември 1999 г. по н.д. 541/1999 г., ВКС, ІІ н.о. ) .

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against Mr V.M. were protracted and eventually discontinued due to the expiration of the limitation period. He submits that as a result he was denied a fair trial.

2. The applicant complains that as a result of the discontinuation of the proceedings he was deprived of an effective avenue of redress against the ill ‑ treatment he had suffered from Mr V.M.

THE LAW

1. In respect of his complaint that he was denied a fair trial the applicant relied on Article 6 § 1 of the Convention. That provision reads, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... 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.

2. The Court considers that the applicant ’ s complaint that he was deprived of an effective avenue of redress against the ill ‑ treatment he had suffered from Mr V.M. falls to be examined under Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

T he obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires them to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom , judgment of 23 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom , no. 33218/96, 26 November 2002 ). In some cases, this may imply recourse to criminal ‑ law measures (see, mutatis mutandis , M.C. v. Bulgaria , no. 39272/98, § 151 , ECHR 2003 ‑ XII ).

However, the Court notes that the alleged ill ‑ treatment suffered by the applicant took place on 3 January 1992, whereas the Convention entered in force in respect of Bulgaria more than eight months later, on 7 September 1992. According to the generally recognised rules of international law, the Convention only applies in respect of each Contracting Party to facts subsequent to its coming in force for that Party. Therefore, at the material time Bulgaria was not yet under any obligations stemming from Article 3 of the Convention, including the duty to ensure that individuals within its jurisdiction are not subjected to ill ‑ treatment. It is true that the criminal proceedings concerning the applicant ’ s alleged ill ‑ treatment continued after the ratification of the Convention by the Bulgaria . However, that fact does not in itself make the complaint compatible ratione temporis with the provisions of the Convention (see Moldovan and Others v. Romania (dec.), no. 41138/98, 13 March 2001; Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005; and Kholodovy v. Russia (dec.), no. 30651/05, 14 September 2006) .

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaint that as a result of the discontinuation of the criminal proceedings against Mr V.M. the applicant was deprived of a fair trial;

Declares the remainder of the application inadmissible.

Stephen Phillips Peer Lorenzen Deputy R egistrar President