FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44062/98 by Nikolai Todorov HAMANOV against Bulgaria

The European Court of Human Rights (First Section), sitting on 6 February 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 7 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 11 May 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolai Todorov Hamanov, is a Bulgarian national who was born in 1963 and lives in Plovdiv, Bulgaria. He was represented before the Court by Mr M. Ekimdjiev , a lawyer practising in Plovdiv. The respondent Government were represented by Mrs G. Samaras, co-agent, of the Ministry of Justice.

A. The circumstances of the case

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

1. Course of the criminal proceedings against the applicant

(a) The investigation

On 11 March 1996 the Plovdiv District Prosecutor’s Office opened an investigation against the applicant, who was a bank branch manager, and several others, in connection with a number of financial transactions effected by them (see Yankov v. Bulgaria (dec.), no. 39084/97, 12 September 2002, unreported, and Belchev v. Bulgaria (dec.), no. 39084/97, 6 February 2003, unreported).

On 12 March 1996 the applicant was charged with having authorised thirty-five wire transfers abroad in breach of his professional duties and with a view to an unlawful gain for others.

In the course of the investigation the applicant was also accused of having guaranteed on behalf of the bank nine promissory notes issued by companies related to a Mr Belchev, and of unlawfully possessing firearm ammunition.

Eight persons were charged in all. The charges were modified several times in the course of the investigation.

During the investigation, which lasted about fourteen months, the investigator heard forty-seven witnesses, examined numerous financial and banking documents, commissioned expert reports, and undertook searches.

Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant’s co-accused against their detention. In practice, upon such an appeal, the entire case file would be transmitted together with the appeal.

On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor.

On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence.

(b) The trial

The trial opened on 17 September 1997. The District Court heard the accused as well as several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment.

The trial resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses were absent as they had not been subpoenaed properly and others, albeit subpoenaed, did not show up. The trial was adjourned to 7 January 1998.

The trial resumed on 7 and 8 January 1998. The court adjourned it to 9 April, as some witnesses did not appear, and ordered an additional financial report.

Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance.

The hearing listed for 9 April 1998 was adjourned to 6 July and then again to 19 October by reason of ill health of one of the applicant’s co ‑ accused.

On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties.

On 30 October 1998 the District Court found the applicant guilty. It sentenced him to nine years’ imprisonment and banned him from holding the post of a director of a bank’s branch for a period of twelve years.

The reasoning of the District Court’s judgment was deposited in the registry of that court on an unspecified date in late January 1999.

(c) The appeal

On an unspecified date in November 1998 the applicant appealed against his conviction and sentence.

More than a year later, on 6 December 1999, the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000 because of health problems of one of the applicant’s co-accused.

On 13 and 14 March 2000 the Regional Court resumed its hearing in the case.

On 5 June 2000 the Regional Court quashed the lower court’s judgment and remitted the case to the investigation stage.

The Regional Prosecutor’s Office, considering that the Regional Court’s judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the time-limit for such an appeal, which was brought by the prosecution authorities to the Supreme Court of Cassation. On 27 November 2000 that court dismissed the prosecution’s request.

As of January 2001 the investigation in the applicant’s case was pending before the prosecution authorities.

2. The applicant’s detention on remand

On 12 March 1996 the applicant was arrested and brought before an investigator who decided to detain him on remand. The decision was later confirmed by a prosecutor.

On 26 September 1997, during the first trial hearing, the applicant applied to the District Court for release. He submitted that he could not abscond because he had a wife and a child of whom he had to take care. He could not interfere with the investigation either, because all evidence had already been gathered. Finally, there was no risk of him committing an offence, because he had been dismissed from the bank where he had worked. The application was denied by the District Court with the following reasoning:

“[The applicant] has been charged with a serious intentional crime. There is still evidence to be gathered. [T]he court therefore considers that there is a real risk that the [applicant] will hinder the investigation.”

On 7 October 1997 the applicant appealed. On 9 October the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 20 October the Regional Court upheld the impugned decision, finding that that applicant had been charged with a serious intentional crime and hence had to be detained.

On 25 November 1997, during the second trial hearing, the applicant made a fresh request for release. He argued that the facts of the case had been elucidated: there were only two more witnesses to be questioned. There was hence no risk of him obstructing the investigation. There was no risk of him re-offending either. The District Court refused, reasoning succinctly that the applicant had been charged with a serious intentional crime, that there were no new circumstances, and that he should hence remain in detention. On 4 December the applicant appealed, arguing that there was no indication that he would flee, obstruct the investigation – especially in view of the fact that the case had progressed to trial –, or try to suborn witnesses or experts. On 5 December the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 15 December the Regional Court dismissed the appeal, finding that the applicant was charged with a serious intentional crime and that hence his remaining in detention was justified, especially in view of the gravity of the alleged offence.

On 8 January 1998, during the third trial hearing, the applicant again requested release. He averred that in view of the adjournment of the case his detention should not be prolonged any further. There was no risk of him obstructing the investigation or fleeing. The obduracy of the court to refuse his release made pre-trial detention a form of punishment. Indeed, the other accused persons were on bail. The District Court refused in the following terms:

“The court finds the [applicant’s] request for release ill-founded. [He] has been charged with a serious intentional crime and thus has to be kept in detention. ... The fact that the other accused are not detained has nothing to do with the [applicant’s] detention.”

On 16 January 1998 the applicant appealed, averring that the facts of the case had already been clarified, that he had a permanent address and that his family seriously suffered from his continuing detention. On 22 January the District Court confirmed its decision and transmitted the appeal to the Regional Court. On 23 January that court dismissed the appeal, holding that the applicant was charged with a serious intentional crime. Detention was therefore lawful under Article 152 of the CCP, under which persons charged with serious intentional crimes had to be detained on remand, barring special circumstances. There had to be real facts establishing that there was no risk of the applicant absconding, re-offending or hindering the investigation for the exception of Article 152 § 2 to apply. The applicant’s arguments relating to his lack of criminal record, permanent address, etc. were not of a nature to prove the lack of such risk.

On 17 April 1998 the applicant filed an application for release, arguing that he had a permanent address and that he had no intention of absconding or interfering with the investigation. On 23 April the District Court held a hearing on the application, and denied it in the following terms:

“The court finds that the [applicant’s] request for release is ill-founded. The charges against [him] concern a serious intentional crime and there is a risk that he may interfere with the investigation or commit another crime[.]”

On 29 April 1998 the applicant appealed, arguing that his lengthy detention – more than two years – was not warranted. The following day the District Court confirmed its decision and forwarded the appeal to the Regional Court, which in turn dismissed it on 11 May, holding that there were no objective circumstances which could lead to the conclusion that the applicant would not interfere with the investigation. The length of detention was no reason to deviate from the strict requirements of Article 152 of the CCP.

During the trial hearing which took place on 6 July 1998 the applicant again applied for release. He argued that there was no risk of him absconding, re-offending or fleeing. Moreover, given the adjournment of the case, his detention would exceed two and a half years, thus becoming a sort of punishment. The District Court rejected the request, finding briefly that the applicant had been accused of a serious intentional crime and that there had been no change in circumstances. On 15 July the applicant appealed, asserting that the facts of the case had been established and that he had no criminal record. On 22 July the District Court declined to alter its decision and forwarded the appeal to the Regional Court. On 27 July the Regional Court dismissed the appeal in the following terms:

“[The applicant is charged with] a serious intentional crime. Under Article 152 [of the CCP] this is sufficient for the imposition of detention. The exceptions of Article 152 § 2 are not present, as [the applicant] may flee or obstruct the investigation.”

On 12 August 1998 the applicant filed an application for release. He maintained that there were no facts indicating that he could abscond, re ‑ offend or hinder the investigation. On 10 September the District Court held a hearing on the application and rejected it. It held that the applicant had been accused of a serious intentional crime and that there was risk of him impeding the investigation or re-offending. Moreover, the trial was about to finish. The applicant did not appeal to the Regional Court.

All appeals filed by the applicant against the refusals of the District Court to release him were examined by the Regional Court in chambers, without the participation of the parties.

B. Relevant domestic law and practice

1. The offences with which the applicant was charged

Article 282 § 1 of the Criminal Code provides:

“A person [exercising a function of managing another’s property or an official function], who acts in breach or dereliction of his professional duties or exceeds his power or rights with a view to a pecuniary gain for himself or another or damage to another, and thus causes significant harm, shall be punished by up to five years’ imprisonment...”

Article 282 § 3, read in conjunction with the first and the second paragraphs of the same provision, provides for three to ten years’ imprisonment in very grave cases when the resulting damage is substantial or the offender holds a high ranking post.

Article 339 § 1 provides that whoever possesses firearm ammunition without a permit is punishable by up to six years’ imprisonment.

2. Provisions relating to detention on remand

(a) Legal criteria and practice regarding the requirements and justification for detention on remand

Detention on remand was governed by Article 152 of the CCP, which read in relevant part:

“1. Detention on remand shall be imposed [in cases where the charges concern] a serious intentional crime.

2. In the cases falling under paragraph 1 [detention on remand] may possibly not be imposed if there is no risk of the accused evading justice, obstructing the investigation, or committing further crimes. ...”

A “serious” crime is defined by Article 93 § 7 of the Criminal Code as one punishable by more than five years’ imprisonment.

The Supreme Court has held that it was not open to the courts, when examining an appeal against detention on remand, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order ( опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о. ).

According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments in force since 1 January 2000), Article 152 § 1 required that a person charged with a serious intentional crime be detained on remand. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or re-offending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly, or already in custody on other grounds, such as serving a sentence ( опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о. ; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о. ; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г. ).

(b) Judicial review of detention during the trial

The detainee’s appeals against detention at the trial stage are examined by the trial court (Article 304 § 1 of the CCP). Such appeals may be examined in chambers, without the participation of the parties, or at an oral hearing. The law does not require the court to decide within a particular time-limit.

The trial court’s decision is subject to appeal to the higher court (Article 344 § 3). The appeal must be filed within seven days (Article 345) with the trial court (Article 318 § 2 in conjunction with Article 348 § 4). After receiving the appeal, the trial court, sitting in private, decides whether there exist grounds to annul or vary its decision. If it does not find this to be the case, it forwards the appeal to the higher court (Article 347).

Before doing so, the trial court must communicate the appeal to the other party (the prosecutor) and receive its written observations (Articles 320 and 321 in conjunction with Article 348 § 4). The law does not provide for the prosecutor’s observations to be communicated to the appellant.

The higher court may examine the appeal in chambers without the parties being present or, if it deems necessary, at an oral hearing (Article 348 § 1). The law does not require the court to decide within a particular time-limit.

2. Other relevant provisions

Section 2 of the State Responsibility for Damage Act of 1988 ( Закон за отговорността на държавата за вреди, причинени на граждани ) provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the court ... for unlawful:

1. detention ..., if [the detention order] has been overturned for lack of lawful grounds[.]”

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been unreasonably lengthy, that there had been no sufficient reasons justifying it and that there had been delays in the proceedings.

2. The applicant complained under Article 5 § 4 of the Convention that the judicial review of his detention had been only a formality, that his appeals against detention to the competent court had not been examined speedily and had been examined in chambers, without him being present.

3. In addition, the applicant complained under Article 5 § 5 of the Convention that he had no enforceable right to compensation in respect of the alleged breaches of Article 5.

4. Finally, the applicant complained under Article 6 of the Convention about the length of the criminal proceedings against him.

THE LAW

A. Complaint under Article 5 § 3 that the applicant’s detention on remand was unjustified and unreasonably lengthy

The applicant contended that his continued detention entailed a breach of Article 5 § 3, which reads, insofar as relevant:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. ...”

The Government submitted that the necessity of detention on remand had been presumed on the basis of the severity of the charges against the applicant. Release had only been possible if he had substantiated that any risk, however remote, of absconding or committing an offence had been excluded. He had not done so.

The Government further submitted that the authorities had worked on the case with the required diligence. The case had been very complex: it had concerned eight persons accused of offences relating to complex financial operations. The case file had ran to twenty binders. At the trial the prosecution had relied on approximately sixty witnesses and the defence had called more. The difficulties in subpoenaing so many persons had inevitably led to adjournments. The applicant and some of his co-accused had been responsible for a number of adjournments because they had sought to adduce additional evidence and because of illness. Furthermore, the case file had been transmitted to the higher court eight times for the examination of appeals against detention. The District Court had taken all necessary measures to reduce the delay: it had listed hearings in three-months intervals and had sought police assistance for subpoenaing witnesses.

The applicant replied that the authorities had not established the existence of any risk of him absconding or committing an offence. As he had never been convicted, had a family, an established professional life and a permanent residence, he should have not been kept in detention.

The applicant stated that he was prepared to accept the Government’s contention that the investigation had been concluded promptly, but that there had been excessive delays during the trial.

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

B. Complaint under Article 5 § 4 of the Convention about the lack of effective judicial review of the applicant’s detention

The applicant alleged that he could not obtain a fully-fledged judicial review of his pre-trial detention, contrary to Article 5 § 4 of the Convention, which reads as follows:

“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.”

The Government argued that this complaint was manifestly ill-founded as the courts had taken into account all relevant factors and had acted lawfully and diligently.

The applicant stated that according to the domestic law and practice at the relevant time the scope of judicial review of detention on remand had been very limited. As a result, none of the decisions in the applicant’s case had included a proper analysis of all factors determining the lawfulness of the detention.

The applicant further stated that his appeals had not been examined speedily and that the requirements of adversarial proceedings were violated in that the Regional Court had examined all his appeals in chambers without him being present.

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

C. Complaint under Article 5 § 5 of the Convention about the alleged lack of an enforceable right to compensation

The applicant claimed that the impossibility to obtain compensation of the alleged breaches of Article 5 §§ 3 and 4 of the Convention was violative of paragraph 5 of the same Article, which provides:

“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 Government did not comment on this complaint.

The applicant submitted that under Bulgarian law it was not possible to obtain compensation for detention which violated the Convention but was effected in accordance with the requirements of the CCP. He stressed that there had never been a single precedent of a detainee obtaining compensation in such circumstances.

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

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

In respect of his complaint about the length of the criminal proceedings the applicant relied on Article 6 of the Convention which in its relevant part provides as follows:

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

The Government referred to their submissions under Article 5 § 3 and stressed the complexity of the case which had required more time.

The applicant also referred to his submissions under Article 5 § 3 and added that nine months had elapsed between the delivery of the District Court’s reasoning in January 1999 and the first hearing before the Regional Court. Furthermore, the case had been remitted to the investigation stage and was likely to continue for several more years.

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

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President