FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39271/98 by Valentin KUIBISHEV against Bulgaria

The European Court of Human Rights (First Section), sitting on 19 December 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , 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 5 November 1997,

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 18 January 2001,

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 is a Bulgarian national, who was born in 1954 and lives in Plovdiv . He was represented before the Court by Mr M. Ekimdjiev , a lawyer practising in Plovdiv .

The respondent Government were represented by Mrs V. Djidjeva and Mrs G. Samaras, co-agents, 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. The criminal proceedings against the applicant

On 8 April 1993 a preliminary investigation was opened against the applicant who was suspected of forgery of bank guarantees with a view to obtaining loans for himself and one of his business partners (Article 212 of the Penal Code).

On 14 July 1993 an investigator charged the applicant and ordered his detention pending trial on the ground that there was a danger of his absconding.

Between an unspecified date in 1993 and September 1996 the applicant resided in the Netherlands. He applied unsuccessfully for asylum there. Upon his return to Bulgaria, on 11 September 1996, he was arrested and detained pending trial.

Between September 1996 and March 1997 the investigator examined documentary material, heard ten witnesses, appointed experts, examined their reports and questioned the applicant.

On an unspecified date the preliminary investigation was concluded and on 31 March 1997 the Sofia City Prosecutor’s Office submitted an indictment against the applicant to the Sofia City Court.

A hearing was listed for 4 July 1997. In preparation therefor, in April and May 1997 the Sofia City Court summoned the civil plaintiff and ten witnesses and sought police assistance for the establishment of the address of one of them.

The Sofia City Court held five trial hearings.

On 4 July 1997 the Sofia City Court heard four witnesses, the applicant and two experts. Several witnesses did not appear. Both the prosecution and the applicant sought to adduce additional evidence. The hearing was adjourned until 12 September 1997.

On 12 September 1997 the court heard one witness. The remaining witnesses did not appear. The prosecution requested an adjournment as it considered important the examination of the witnesses who had not appeared. The applicant objected stating that the case was clear. The court granted the prosecutor’s request and listed the next hearing for 10 December 1997.

On that day the Sofia City Court heard one witness. The other witnesses failed to appear. The prosecutor insisted on them being heard and sought an adjournment. The applicant’s lawyers objected, stating that reading out those witnesses’ testimony given before the investigator would be sufficient. The court granted the prosecutor’s request for an adjournment and scheduled the next hearing for 26 January 1998.

On 26 January 1998 the court heard two witnesses. One witness did not appear. The applicant’s lawyers stated that they considered the examination of the remaining witness important and sought an adjournment. The court granted the request. It fixed the next hearing for 15 June 1998.

On the day of the last trial hearing, 15 June 1998, the applicant was found guilty under Articles 212 § 2 and 308 of the Penal Code and sentenced to five years’ imprisonment. He was acquitted on certain of the initial charges. The court reserved its reasoning.

On 25 June 1998 the applicant appealed to the Sofia Appellate Court. The prosecution also appealed.

On an unspecified date in September 1998 the Sofia City Court delivered the reasoning of its judgment of 15 June 1998.

The Sofia Appellate Court listed a hearing for 12 February 1999 which was however cancelled as the prosecution had not supplemented its appeal following the delivery of the reasoning of the first instance judgment .

The hearing took place on 28 May 1999. On the same day the Sofia Appellate Court upheld the applicant’s conviction of forgery of bank guarantees with intention to use them (Article 308 of the Penal Code) and acquitted him for the remainder. It accordingly reduced the applicant’s sentence to three years’ imprisonment.

On 25 June 1999 the applicant lodged an appeal on points of law with the Supreme Court of Cassation . It was dismissed on 10 December 2000.

2. Other criminal proceedings against the applicant

On an unspecified date in 1992 the applicant was sentenced by the Peshtera District Court to a suspended term of imprisonment. It appears that this conviction concerned facts linked to those which were the subject matter of the 1993 - 2000 criminal proceedings.

Separately, on 27 January 1997 the Pazardzik Regional Court found the applicant guilty of mismanagement of assets belonging to a cooperative for which he had been working during the period 1986-1988. He was sentenced to ten months’ imprisonment. The applicant appealed. On 13 October 1997 the Supreme Court of Cassation quashed the judgment and terminated the criminal proceedings as the prosecution had become time-barred.

3. The applicant’s pre-trial detention

On 11 September 1996 the applicant was arrested. On the following day he was placed under pre-trial detention. The parties have not submitted details as regards the applicant’s detention during the preliminary investigation stage of the criminal proceedings.

On 23 April 1997, shortly after the case was brought before the Sofia City Court for trial, the applicant filed with that court an application for release on bail stating that his wife was seriously ill and could not look after their two children.

On 2 May 1997 the judge- rapporteur dismissed the application in private. She found that since other criminal proceedings were pending against the applicant, those concerning mismanagement of assets of a cooperative (see above), Article 152 § 3 of the Code of Criminal Procedure made his remand in custody mandatory. Therefore, it was “not possible to substitute pre-trial detention for a more lenient measure despite the information concerning the [applicant’s] difficult family circumstances”.

On 13 May 1997 the applicant submitted an appeal against the above decision to the Supreme Court of Cassation . In accordance with the relevant law and practice, the appeal was filed with the Sofia City Court. On 16 May 1997 the judge rapporteur at the Sofia City Court, considering erroneously that the appeal of 12 May 1997 was a fresh application for release, dismissed it on the same grounds. At the public hearing of 4 July 1997 before the Sofia City Court the error was noted and the appeal was transmitted to the Supreme Court of Cassation . The matter was eventually struck off on 7 August 1997 as in the meantime there had been another decision of the Sofia City Court on the applicant’s detention.

On 2 July 1997 and at the hearing on 4 July 1997 the applicant reiterated his arguments seeking release on bail. He also made extensive additional submissions arguing that Article 152 § 3 of the Code of Criminal Procedure, which provided for a mandatory detention of persons against whom more than one criminal proceedings were pending and of recidivists, was incompatible with the Convention. Further, he maintained that there was insufficient evidence that he had committed the offence he was charged with.

On the same day, 4 July 1997, the Sofia City Court dismissed the renewed application for bail. It stated, inter alia :

“The court finds that there is a danger of the applicant’s absconding as ... he and his wife sought asylum in the Netherlands at the time when ... the investigation proceedings were pending ...

The charges ... concern an offence allegedly committed during the operational period of [the applicant’s] suspended [imprisonment sentence]... of 1992. That fact is sufficient to justify a finding that there is a danger of reoffending ...”

Addressing the applicant’s arguments against mandatory detention under Article 152 § 3 of the Code of Criminal Procedure, the Sofia City Court stated that it had no power to disregard the law on the ground that it was contrary to the Constitution or international treaties and noted that the Supreme Court had submitted the matter to the Constitutional Court.

On 7 July 1997 the applicant appealed to the Supreme Court of Cassation on the grounds that there was insufficient evidence that he had committed the offence and that there was no danger of obstructing the course of justice. Confiscation of his passport and bail would be sufficient guarantees against absconding.

On 11 August 1997, pursuant to an amendment to the Code of Criminal Procedure, mandatory detention under paragraph 3 of its Article 152 was abolished.

On 12 September 1997, before transmitting the appeal of 7 July 1997 to the Supreme Court of Cassation , the Sofia City Court sitting in private refused to reconsider its decision of 4 July 1997.

In the end of September and the beginning of October 1997 the applicant submitted additional appeals against his detention pending trial.

On 23 October 1997 the Supreme Court of Cassation examined the appeal of 7 July 1997 in closed session in the presence of a prosecutor and in the absence of the applicant or his representative. The prosecutor submitted written comments and made an oral statement inviting the court to dismiss the appeal. The applicant was not informed thereof and could not comment in reply. The Supreme Court of Cassation dismissed the appeal and upheld the Sofia City Court’s decision of 4 July 1997.

The Supreme Court of Cassation considered that the applicant’s detention was justified under Article 152 § 1 of the Code of Criminal Procedure. It also upheld the Sofia City Court’s findings that there was a danger of the applicant’s absconding or committing further offences.

The Supreme Court of Cassation also stated that issues of “sufficient evidence” within the meaning of domestic law or “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention could not be considered in proceedings on applications for bail. They could only be decided by way of judgment on the merits of the criminal case.

At the hearing on 10 December 1997 before the Sofia City Court the applicant renewed his appeal against detention. He referred to the fact that on 13 October 1997 his conviction of 27 January 1997 had been quashed as the prosecution had become time-barred. He also reiterated his previous arguments.

On the same day the Sofia City Court dismissed the appeal, stating that the applicant’s attempt to remain in the Netherlands and the fact that the charges against him concerned an offence allegedly committed during the operational period of his 1992 suspended imprisonment sentence (see above) indicated that there was a danger of his absconding and reoffending . The court also confirmed its earlier position that in the context of the applicant’s appeal against detention it would not entertain arguments as to whether or not the charges were well founded, that being an issue going to the merits of the criminal case.

On 16 December 1997 the applicant appealed to the Supreme Court of Cassation against the decision of 10 December 1997. On 17 December 1997, before transmitting the appeal, the Sofia City Court refused to reconsider its decision.

The Supreme Court of Cassation examined the appeal on 15 January 1998 sitting in closed session in the presence of a prosecutor and in the absence of the applicant and his representative. The court heard the prosecutor’s opinion that the appeal should be dismissed. The court dismissed the appeal.

It stated that remand in custody was justified under Article 152 § 1 of the Code of Criminal Procedure as the applicant was charged with a serious offence within the meaning of the Code. Furthermore, the applicant’s attempt to settle in the Netherlands with his family demonstrated a clear danger of absconding. The court also found that there had been no unjustified delays in the criminal proceedings.

At the hearing on 26 January 1998 before the Sofia City Court the applicant again requested his release. He argued that the facts had been clarified and that therefore there would be no danger of him obstructing the course of justice.

The appeal was dismissed on the same day. The Sofia City Court reiterated the reasoning of the previous decisions, emphasising that there was a danger of absconding and reoffending and that there had been no unjustified delays.

On 29 January 1998 the applicant appealed against the above decision to the Supreme Court of Cassation . On 11 March 1998 the appeal was dismissed on the same grounds. The court also noted that the proceedings would in all likelihood be completed on 15 June 1998. The appeal was dealt with in closed session in the presence of a prosecutor who sought its dismissal and in the absence of the applicant and his representative.

On 15 June 1998 the Sofia City Court convicted the applicant on some of the charges, acquitted him for the remainder and sentenced him to five years imprisonment.

B. Relevant domestic law and practice

1. Legal grounds for detention pending trial

(a) The general rules (Article 152 §§ 1 and 2 of the Code of Criminal Procedure) and the authorities’ approach

Paragraphs 1 and 2 of Article 152 of the Code of Criminal Procedure, as worded at the material time, provided as follows:

“(1) Detention pending trial shall be ordered [in cases where the charges concern] a serious intentional offence.

(2) In cases falling under paragraph 1 [detention pending trial] may be dispensed with if there is no danger of the accused’s absconding, obstructing the investigation, or committing further offences.”

According to Article 93 § 7 of the Penal Code a “serious” offence is one punishable by more than five years’ imprisonment.

The Supreme Court’s practice at the relevant time (which has since become obsolete as a result of the amendments in force since 1 January 2000) was to construe Article 152 § 1 of the Code of Criminal Procedure as requiring that a person charged with a serious intentional offence had to be remanded in custody. An exception was only possible, in accordance with Article 152 § 2, where it was clear and beyond doubt that any danger of absconding or reoffending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May1992, case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995, case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995, case no. 768/95, II Chamber; Decision no. 24, case no. 268/95, I Chamber, Bulletin 1995, p. 149).

In some other decisions, the Supreme Court nevertheless embarked on an analysis of the particular facts to justify findings that there existed a danger of absconding or of offending (Decision No. 76 of 25.07.1997, case no. 507/97 II Chamber, Bulletin no. 9-10/97, p. 5; Decision no. 107 of 27.05.1998, case no. 257/98, II Chamber, Bulletin no. 3-4/98, p. 12).

(b) Mandatory detention under Article 152 § 3 of the Code of Criminal Procedure

That provision, as in force at the relevant time and until 11 August 1997, when it was repealed, was worded as follows:

“The exception set out in paragraph 2 [of Article 152] shall not be applicable when another preliminary investigation is pending against the detainee as well as in the cases of recidivism.”

On 21 March 1997 the Supreme Court of Cassation examined a request by the Chief Public Prosecutor for an interpretative decision on Article 152 of the Code of Criminal Procedure. The Supreme Court of Cassation considered that Article 152 § 3 of the Code was incompatible with the Constitution, the Convention and the International Covenant on Civil and Political Rights. It therefore decided to submit the matter to the Constitutional Court which is competent to rule on the compatibility of legislation with the Constitution and international treaties. Eventually, the Constitutional Court did not decide on the merits as the impugned provision was repealed with effect from 11 August 1997.

2. Appeals against remand in custody

The Supreme Court has stated that it is not open to the courts, when examining an appeal against detention on remand, to inquire whether there exists sufficient evidence to support the charges against the detainee. The courts must only examine the lawfulness of the detention order under domestic law (Decision no. 24 of 23 May 1995 in case no. 268/95, I Chamber, Bulletin 1995, p. 149).

Under Article 304 § 1 of the Code of Criminal Procedure, the detainee’s requests for release at the trial stage of the criminal proceedings are examined by the trial court. The Code does not provide for any limitation on the number or frequency of the requests for release. It follows from Article 304 §§ 1 and 2 that such requests may be examined in camera or at an oral hearing. The law does not require the trial court to decide within a particular time-limit.

The trial court’s decision, as regards a request for release, is subject to appeal to a higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 317, until February 1998, and Article 318). According to Article 347, after receiving the appeal, the trial court, sitting in private, shall decide whether there are reasons to reconsider its decision. If it finds no such reasons, the trial court transmits the appeal to the higher court.

Article 348 provides that the second level jurisdiction may examine the appeal in private or, if it considers it necessary, at a public hearing. The law does not require the appellate court to rule within a particular time-limit. As a matter of practice, a prosecutor participates and submits written comments which are not communicated to the detainee.

3. Provisions of the Penal Code under which the applicant was charged

Article 212 provides that a person who misappropriated funds with the use of a forged document shall be sentenced to up to eight years’ imprisonment. In serious cases the perpetrator may be sentenced to a term of imprisonment between ten and twenty years.

Article 308 provides that forgery of an official document with intention of using it is punishable by a term of imprisonment of up to three years.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that upon his arrest he was not brought before a judge or other officer authorised by law to exercise judicial power, investigators and prosecutors under the Bulgarian system not meeting the relevant criteria of independence and dissociation from the parties to the criminal proceedings.

The applicant complained under Article 5 § 3 of the Convention that his detention was unjustified and unreasonably long.

He complained under Article 5 § 4 of the Convention that the Sofia City Court on 2 May 1997 and the Supreme Court of Cassation on 7 August 1997, 23 October 1997 and 15 January 1998 dealt with his appeals against detention in private, in breach of the “equality of arms” principle.

Relying on the same provision, Article 5 § 4 of the Convention, the applicant alleged that the judicial review of his detention was purely formal and that the appeals were not examined speedily.

He also stated, referring to Article 13 of the Convention, that he did not have effective remedies against the violations of Article 5 § 3.

He further complained under Article 6 § 1 of the Convention that the criminal proceedings against him were unreasonably long.

THE LAW

1. The Government’s objections as regards the exhaustion of domestic remedies and alleged abuse

The Government, noting that the applicant did not address requests for release to the prosecution authorities, that he only filed his first judicial appeal against detention several months after his arrest and that he did not submit a civil action for damages, stated that he had failed to exhaust all domestic remedies. As a result, and in view of the fact that the applicant had allegedly contributed to certain delays in the criminal proceedings, the application was abusive.

The applicant stated that he had used all effective domestic remedies in respect of the violations of his rights.

The Court observes, firstly, that it has not been maintained that there existed a remedy against the alleged breach of the applicant’s right to be brought before a judge or other officer exercising judicial power, that complaint being based on arguments concerning the institutional structure and functions of the prosecution and investigation services under Bulgarian law.

Secondly, in respect of the right to trial within a reasonable time or release pending trial, it is undisputed that the applicant appealed against his deprivation of liberty to the competent courts repeatedly, including during the last several months of his pre-trial detention. He thus made normal use of the remedies provided for under Bulgarian law in this regard.

Furthermore, and also as regards exhaustion of domestic remedies against the alleged violations of Article 5 § 4 and Article 6 § 1 of the Convention, the Government have not shown that at the relevant time there was an established practice demonstrating that a civil action for damages would have had chances of success.

Finally, the allegation of abuse is groundless.

The Government’s objections are therefore dismissed.

2. Alleged violation of the applicant’s right under Article 5 § 3 of the Convention to be brought before a judge or other officer authorised by law to exercise judicial power

The Government maintained that at the relevant time it was still not entirely clear whether prosecutors and investigators under the Bulgarian system could be considered “officers authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention. After the Court’s judgment in the case of Assenov and Others v. Bulgaria ( judgment of 28 October 1998, Reports 1998-), the system was promptly reformed, with effect as from 1 January 2000.

The applicant reiterated his complaint.

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 should depend on 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.

3. Alleged violation of the applicant’s right under Article 5 § 3 of the Convention to trial within a reasonable time or release pending trial

(a) The parties’ submissions

The Government concentrated on issues concerning the course of the proceedings, maintaining that the authorities had displayed the diligence due in the handling of proceedings against persons in pre-trial detention.

In particular, the Government submitted that there had been no delays attributable to the authorities, that the Sofia City Court had fixed hearings in reasonable intervals and that the adjournments had been indispensable in order to ensure the proper establishment of the facts. The court could not be held responsible for the difficulties caused by the failure of summoned witnesses to appear. It had taken special care to minimise possible delays. At the same time the applicant, who had been represented by three lawyers, had insisted on the questioning of a witness who had failed to appear, thus causing an adjournment.

The Government also submitted that the case was complex.

The applicant stated that the reasons given by the authorities had not been relevant and sufficient to justify his deprivation of liberty. In particular, he had returned voluntarily from the Netherlands, although he had known about the criminal proceedings against him.

While he agreed that the preliminary investigation, which was carried out between September 1996 and March 1997, had been completed within a reasonable time, the applicant stated that unacceptable delays had occurred at the trial stage. In particular, the failure of the authorities to ensure the appearance in court of all witnesses had caused almost all adjournments. Further, the intervals between the hearings could not be described as reasonable.

(b) The Court’s decision on admissibility

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 should depend on 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.

4. Alleged violations of Articles 5 § 4 and 13 of the Convention

(a) As regards the six months time limit under Article 35 § 1 of the Convention

The Government stated that the complaints concerning the examination of the applicant’s appeal of 23 April 1997, dismissed by the Sofia City Court on 2 May 1997, were time-barred. In their view the present application was eceived by the former Commission.

The Court observes that at the relevant time domestic law provided for two levels of jurisdiction in pre-trial detention cases. The proceedings which began on 23 April 1997 ended on 7 August 1997 when the Supreme Court of Cassation struck off the case. It follows that the six months time limit under Article 35 § 1 of the Convention started running after 7 August 1997.

As the application was introduced by letter dated 5 November 1997 and postmarked 11 November 1997, the Government’s objection must be dismissed.

(b) The parties’ submissions

The Government stated that as a matter of practice the Supreme Court of Cassation did not hold hearings in pre-trail detention cases as that would slow down the proceedings considerably. However, the Supreme Court of Cassation had before it the full case file and the applicant’s appeal. He was free to offer additional submissions. On that basis the Government invited the Court to accept that the equality of arms principle had not been breached.

Addressing the complaint that the courts did not provide judicial review on all aspects of the detention’s lawfulness, the Government submitted that the courts had analysed all elements relevant under domestic law. In particular, under Article 152 §§ 1 and 2 of the Code of Criminal Procedure as in force at the pertinent time, the most important factor had been the gravity of the accusation. As he had been charged with having committed a serious offence, the applicant was bound to remain in pre-trial detention failing proof of exceptional circumstances objectively excluding any danger of absconding or reoffending . The courts had examined that question. Further, as regards the existence of a reasonable suspicion, it was clear from the material in the case that that condition had been satisfied.

The applicant stated that the Supreme Court of Cassation should provide the same procedural guarantees as those applicable to the first level of jurisdiction in pre-trial detention matters and should therefore hold public hearings in such matters. Furthermore, the fact that the applicant was unable to reply to the prosecutor’s arguments made before the Supreme Court of Cassation was in itself a violation of Article 5 § 4 of the Convention.

As regards the scope of judicial control the applicant referred to the Court’s judgment in Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999- ) where a violation of the Convention was found in almost identical circumstances.

Further, the applicant submitted that the delay in the examination of his appeals was incompatible with the “speediness” requirement of Article 5 § 4 of the Convention.

Relying on Article 13 of the Convention, he also stated that he did not have an effective remedy against the alleged violations of his rights to be brought before a judge and in respect of the justification and length of his detention pending trial.

(c) The Court’s decision on admissibility

The Court considers, in the light of the parties’ submissions, that the above complaints raise serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

5. Alleged violation of the applicant’s right under Article 6 § 1 of the Convention to a trial within a reasonable time

The Government, referring to their submissions made under Article 5 § 3 of the Convention and to the fact that the applicant left Bulgaria in 1993 and returned in 1996, stated that the proceedings had been completed within a reasonable time.

The applicant accepted that the period to be examined started with his arrest on 11 September 1996 and ended on 10 December 2000. He also referred to his submissions under Article 5 § 3 of the Convention and added that the hearing before the Sofia Appellate Court of 12 February 1999 had been adjourned without any valid reason and that the time taken by the Supreme Court of Cassation to decide on the case, more than eighteen months, was excessive.

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