FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44625/98 by D.E. and Others against Bulgaria

The European Court of Human Rights (First Section) , sitting on 14 November 2002 as a Chamber composed of

Mrs F. Tulkens , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , 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 12 May 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 deliberated, decides as follows:

THE FACTS

The first applicant, Mr D.E., is a Bulgarian national who was born in 1973 and lives in Gabrovo. The second and the third applicants are his father and mother.

A. The circumstances of the case

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

1. Criminal proceedings against the first applicant

(a) First criminal proceedings

In July 1989 the first applicant, then a juvenile, was charged with theft. Later that year he was found guilty and sentenced to a term of imprisonment, suspended.

(b) Second criminal proceedings

On 28 September 1990 criminal proceedings were opened against the first applicant for theft. During the investigation it was discovered that another person whose identity was unknown had also participated in committing the alleged offence. On 11 December 1990 the proceedings were stayed so that the other person could be identified. No further steps were undertaken until 18 January 2000. On 21 February 2000 the District prosecutor’s office made an order for the discontinuation of the proceedings, finding that the relevant limitation period had expired. In accordance with the applicable procedure, that order was confirmed by the Regional prosecutor’s office and on 10 March 2000 by the Regional Court.

(c) Third criminal proceedings

In 1993 the first applicant was charged with unlawfully taking possession of a motor vehicle. By judgment of the Varna Military Court of 6 December 1994 he was convicted and sentenced to one year and two months’ imprisonment, suspended. He did not lodge an appeal against the judgement.

(d) Fourth criminal proceedings

In 1994 the first applicant was charged with several counts of unlawfully taking possession of a motor vehicle. By judgment of 28 March 1995 the Plovdiv Military Court found him guilty and sentenced him to one year and two months’ imprisonment. The first applicant’s appeal against the conviction and sentence was dismissed by a three-member panel of the Supreme Court on 9 May 1995. The first applicant did not lodge a petition for review (cassation) of the judgement. He was released from prison on 7 June 1996.

(e) Fifth criminal proceedings and the first applicant’s detention on remand

At 1 a.m. on 5 February 1997 the first applicant and another person were arrested in the home of a person who had called the police indicating that the two were trying to steal from his car. A criminal investigation was opened the same day and the first applicant was detained on remand under Article 152 § 4 (1) of the Code of Criminal Procedure.

On 7 February 1997 the first applicant and the other person were charged with having committed a number of thefts during the period 23 January  – 5 February 1997. The first applicant was questioned by an investigator in the presence of counsel.

The first applicant was also questioned on 28 March and 8 April 1997.

On 14 April 1997 he was confronted with the other accused.

In the end of April 1997 the case file was forwarded to the Gabrovo district prosecutor’s office. That office referred the case back to the investigator with instructions to collect more evidence, to appoint counsel for the other accused and to update the valuation of the allegedly stolen chattels.

It seems that during the pre-trial stage of the proceedings the applicant made several unsuccessful requests for release to the prosecution authorities.

On 31 July 1997 the District prosecutor’s office submitted an indictment against the first applicant to the Gabrovo District Court.

On 5 August 1997 the second applicant lodged an appeal against the first applicant’s detention with the Gabrovo regional prosecutor’s office. He argued that there was no indication that the first applicant would commit an offence if released. The prosecutor’s office forwarded the appeal to the District Court. On 3 September 1997 the court returned the appeal to the second applicant with instructions to present a power of attorney by the first applicant. He did so on an unspecified later date. On 15 September 1997 the court dismissed the appeal. It found that the first applicant had a history of convictions for crimes against property and that other criminal proceedings were pending against him as well. Accordingly, it concluded that there was a real risk that he would commit an offence if released.

On 19 December 1997 the second applicant filed an appeal against the first applicant’s detention with the Gabrovo regional prosecutor’s office, with a copy to the Gabrovo Regional Court. The appeal was returned, as it had not been filed by the detained person or a duly authorised representative.

The first hearing before the District Court took place on 23 October 1997. Hearings were also held on 16 December 1997, 20 January, 30 January and 4 February 1998.

On 4 February 1998 the District Court found the first applicant guilty of numerous thefts and sentenced him to three years and six months’ imprisonment.

The first applicant lodged an appeal with the Gabrovo Regional Court. By judgment of 7 April 1998 the court dismissed the appeal. The first applicant did not lodge an appeal on points of law with the Supreme Court of Cassation.

(f) Sixth criminal proceedings

On an unspecified date in 1996 criminal proceedings were brought against the first applicant for having unlawfully taken possession of a vehicle in 1993. By judgment of 16 April 1998 the Gabrovo District Court acquitted him.

2. Search carried out in the apartment of the first applicant and in the apartments of the second and the third applicants and of their other son

On 5 February 1997, shortly after the first applicant’s arrest, a search was carried out by the police in his apartment and in the apartments of the second and the third applicants and of their other son. Apparently the prosecutor’s warrant authorising the search related solely to the first applicant’s apartment. A cassette-player, which allegedly belonged to the second applicant, was seized.

On 4 February 1998 the second applicant requested from the court examining the case against the first applicant to return the cassette player. It seems that the court refused and advised the second applicant that he could commence civil proceedings against the investigation service.

3. Alleged ill-treatment after the first applicant’s arrest on 5 February 1997 and subsequent lack of investigation

(a) Alleged ill-treatment and later repercussions on the first applicant’s health

After his arrest in the early hours of 5 February 1997 the first applicant was taken to the regional police department in Gabrovo.

( i ) Allegations of the applicants

The first applicant alleges that when he was brought to the department, several police officers started to shout at him, to kick his legs and to hit him in the stomach and in the kidneys. When he said that “[he did not] know about any thefts”, one police officer started to beat his head and back with a rubber hose. The others joined him with truncheons. Then the first applicant was thrown to the ground and kicked.

At approximately 9 a.m. the following morning the first applicant was brought for questioning to a room on the third floor of the police department. He submits that when he denied involvement in the commission of the alleged thefts the two officers who were questioning him began to hit him with wooden bats. He sustained blows all over his body, fell on the floor, and tried to hide under a table. The two officers then started kicking him. One kick in the face allegedly broke two of his teeth.

Later that day the first applicant was transferred to a pre-trial detention centre, where he requested to be examined by a paramedic. The paramedic allegedly refused. The applicant was not seen by a doctor and in the following months had to ask his relatives to provide him with analgesics, as his jaw had swelled and he was experiencing pain in the area of the broken teeth.

As the medical facilities in the pre-trial detention centre and in the prison, where the first applicant was transferred on 15 April 1997, lacked the necessary material, the broken teeth could not be treated and had to be removed.

(ii) Evidence submitted by the applicants

In a written statement the person who was arrested with the first applicant on 5 February 1997 and co-accused with him submits that the first applicant and himself were beaten by police officers immediately after their arrest. He also submits that he was later refused examination by a doctor. A police officer with whom he talked several days later told him that the first applicant had also been seriously beaten later. Lastly, he submits that at the confrontation which took place on 14 April 1997 (see above) he saw that the first applicant was “swollen and blue”.

A medical certificate issued by a Gabrovo dental clinic on 22 October 1998 indicates that on 23 December 1997 the first applicant underwent surgical treatment for an abscess of the soft tissues of the upper jaw.

A medical certificate issued by the prison authorities on 24 March 2000 indicates that the first applicant underwent extraction of teeth roots as follows: root of the 8th upper left tooth extracted on 23 March 1998; root of the 5th lower right tooth extracted on 26 March 1998; roots of the 4th and 5th upper left teeth extracted on 27 May 1998; roots of the 6th and 7th upper right teeth extracted on 28 October 1998; and root of the 3rd upper right tooth extracted on 25 November 1998.

(b) Information to the authorities about the ill-treatment of the first applicant

When the first applicant was questioned by an investigator on 7 February 1997 (see above), he stated that he had been beaten by the police after his arrest.

In the appeal against the first applicant’s detention which the second applicant filed on 19 December 1997 (see above) he alleged, inter alia , that his son had been ill-treated by two police officers after his arrest with the purpose of extracting a confession.

The applicants also submit that during the trial the first applicant complained about the beating in open court.

B. Relevant domestic law

1. Duty to investigate ill-treatment by the police

Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another person. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his or her duties the offence is an aggravated one. The offence is publicly prosecuted (Article 161).

Under Bulgarian law criminal proceedings for publicly prosecuted offences can be commenced only by decision of a prosecutor or of an investigator (Article 192 of the Code of Criminal Procedure). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190). If the information is not supported by evidence, the prosecutor may order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation is warranted (Article 191).

2. Detention on remand

(a) Legal criteria for detention on remand

Article 152 of the Code of Criminal Procedure, as in force at the relevant time, provided as follows:

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

2. In the cases falling under paragraph 1 [detention on remand] may possibly not be imposed if there is no danger of the accused’s obstructing the course of justice, absconding or committing further offences.

3. ...

4. In cases [where the charges do not concern a serious intentional offence] detention on remand shall be imposed if the charges concern an offence punishable with imprisonment, if:

(1) there is a danger of the accused’s absconding, obstructing the course of justice, or committing further offences. ...”

According to the Supreme Court’s practice, Article 152 § 1 required that a person charged with a “serious intentional offence” be detained pending trial. The only exception was provided for by Article 152 § 2, under which an accused could be released if it was clear beyond doubt that there was no danger of his absconding or committing further offences. By contrast, where detention was imposed under Article 152 § 4 (1), the danger of the accused’s absconding or committing an offence had to be “real”, as opposed to “hypothetical” ( опред. № 1 от 4 май 1992 г. по н.д. 1/92 на ВС II н.о. ).

(b) Appeals against detention before the trial

Article 152 § 5 of the Code of Criminal Procedure, as in force at the relevant time, provided as follows:

“The detained person shall be provided immediately with a possibility of filing an appeal with the competent court against the [imposition of detention]. The court shall rule within a time-limit of three days from the filing of the appeal by means of a final decision.”

3. Search of premises

According to Article 134 of the Code of Criminal Procedure, a search of premises may be carried out if there is probable cause to believe that objects or documents which may be relevant to the case will be found in them. At the relevant time a search could be ordered by the court (during the trial) or by the prosecutor (during the pre-trial proceedings) (Article 135). There was no special procedure through which a search warrant issued by a prosecutor could be challenged. Thus, the only possible appeal was a hierarchical one to the higher prosecutor (Article 182), which did not have suspensive effect (Article 183).

COMPLAINTS

1. The first applicant complains under Article 3 of the Convention that he was ill-treated after his arrest. He also complains that the authorities did not investigate the allegations about his ill-treatment.

2. The first applicant complains under Article 5 § 1 (c) and 3 about the lawfulness and the length of his detention on remand. In particular, he submits that no order was made for his detention on 5 February 1997, whereas the order of 7 February 1997 simply referred to that non-existent previous order without imposing detention itself. Thus, he was never properly placed in detention. In addition, the applicant alleges that the reliance of the District Court on another pending criminal investigation against him to ground its refusal to release him in September 1997 was misplaced, as he was later found not guilty of the offences for which that other investigation was conducted.

3. The first applicant complains under Article 6 §§ 1 and 3 of the Convention about the fairness of the third, fourth, and fifth criminal proceedings against him.

4. The first applicant complains under Article 6 of the Convention about the length of the fourth and fifth criminal proceedings against him.

5. The second and the third applicants complain under Article 8 of the Convention about the search conducted in their apartment and in the apartment of their other son. They submit that it was unlawful as it was not covered by the warrant issued by the prosecutor. In addition, the second applicant complains about the allegedly unlawful seizure of a cassette-player from his apartment.

THE LAW

1. The first applicant complains under Article 3 of the Convention that he was ill-treated after his arrest. He also complains that the authorities did not investigate the allegations about his ill-treatment.

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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The first applicant complains under Article 5 §§ 1 (c) and 3 about the lawfulness and the length of his detention on remand.

The first applicant was arrested on 5 February 1997 and was convicted by the Gabrovo District Court on 4 February 1998. The period to be taken into consideration is therefore one year. However, the Court notes at the outset that during the preliminary investigation stage of the proceedings, between February and August 1997, the first applicant did not appeal to a court under section 152 § 5 of the Code of Criminal Procedure against his detention on remand. During that period of time his requests for release were addressed only to the prosecution authorities which, indeed, were competent to order his release.

The Court need not decide whether or not in these circumstances the first applicant may be considered as having exhausted all domestic remedies in respect of his pre-trial detention and whether or not a certain period of this detention should be deducted in the assessment of the “reasonable time” requirement under Article 5 § 3 of the Convention, as his complaint is in any event manifestly ill-founded.

As regards the existence of a “reasonable suspicion”, the Court observes that the applicant was arrested at the scene of a crime. It was later found that during the two weeks preceding his arrest he and an accomplice were on a crime spree, committing a number of thefts at various locations. It could therefore be concluded that reasonable suspicion existed both at the time of the first applicant’s arrest and throughout his subsequent detention on remand.

As to the other reasons justifying the detention, the Court notes that, unlike the case of Ilijkov v. Bulgaria (no. 33977/97, §§ 59 and 79, 26 July 2001, unreported) where the courts had relied on Article 152 §§ 1 and 2 of the Code of Criminal Procedure – which, as construed by the Supreme Court, contained a presumption that detention on remand was always necessary barring special circumstances –, in the case at hand the court embarked on an analysis in concreto of the relevant circumstances. Referring to the previous convictions of the applicant and in particular to the judgment of the Plovdiv Military Court in the fourth criminal proceedings against him, the court found that the first applicant was apparently a persistent offender who had a history of convictions for crimes against property. Moreover, another criminal investigation (the sixth criminal proceedings) for similar offences was pending against him at that time.

The fact that the first applicant was subsequently acquitted of the charges in that other investigation cannot wipe out the fact that the authorities had ample reason to believe that, if released, he could re-offend. It can therefore be concluded that there existed “relevant” and “sufficient” grounds justifying his detention.

The Court must also establish whether the proceedings were conducted with the requisite diligence. In this connection, it finds that their total length – one year from commencement to conviction – was not of itself excessive. The case was factually complex, as the authorities had to unravel the details of a number of thefts committed by the applicant and his accomplice. The initial stages of the investigation proceeded at a good pace. It is true that some delay occurred between the end of April and July 1997, when the case was twice referred back by the prosecutor. However, later, at the trial stage, hearings were held at regular intervals, and, as a whole, the proceedings were concluded rapidly.

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

3. The first applicant complains under Article 6 §§ 1 and 3 of the Convention about the fairness of the third, fourth, and fifth criminal proceedings against him.

However, the Court notes that the first applicant did not lodge an appeal against the judgment of the Varna Military Court of 6 December 1994. Likewise, the he did not submit a petition for review (cassation) of the judgment of the three-member panel of the Supreme Court of Cassation of 9 May 1995, nor did he lodge an appeal on points of law against the judgment of the Gabrovo Regional Court of 7 April 1998.

It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. The first applicant complains under Article 6 of the Convention about the length of the fourth and the fifth criminal proceedings against him.

As regards the fourth criminal proceedings, the Court notes that they ended by judgment of 9 May 1995. Thus, insofar as the complaint relates to them, it has been submitted out of the six-months’ time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As to the length of the fifth criminal proceedings, the Court observes that they commenced on 5 February 1997 and ended by the appellate judgment of the Gabrovo Regional Court of 7 April 1998. Their total length was thus one year, two months and two days.

Referring to its above findings in respect of the conducting of the proceedings from commencement to conviction and noting that the time between the conviction and its upholding by the appellate court was approximately two months, the Court concludes that the length of the proceedings was reasonable.

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

5. The second and the third applicants complain under Article 8 of the Convention about the search in their apartment and in the apartment of their other son.

Insofar as the complaint relates to the search in the apartment of the other son of the second and the third applicant, they do not have the quality of a victim, as required by Article 34 of the Convention.

In that respect, the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

As regards the search carried out in their apartment, the Court first notes that the second and the third applicants were not parties to the criminal proceedings against their son, and in any event those criminal proceedings could not be considered as a remedy against a breach of Article 8 of the Convention (see Khan v. the United Kingdom , no. 35394/97, § 44, ECHR 2000 ‑ V).

The second and the third applicants have not instituted any domestic proceedings against the bodies allegedly responsible for the unlawful search and, even assuming that no effective remedies were available, they have submitted this complaint to the Court more than six months after the carrying out of the search. Insofar as the second applicant may be taken to complain under Article 1 of Protocol No. 1 to the Convention about the allegedly unlawful seizure of a cassette-player, he has not commenced any proceedings in order to try to recover it.

It follows that this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaint concerning the alleged ill-treatment after his arrest on 5 February 1997 and the lack of an investigation ;

Declares the remainder of the application inadmissible.

Søren Nielsen Françoise Tulkens              Deputy Registrar President