FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35825/97 by Mohamed Nuri Al AKIDI against Bulgaria

The European Court of Human Rights (First Section), sitting on 20 June 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 , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 20 January 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 19 September 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 Mohamed Nuri Al Akidi , born in 1961, is an Iraqi national, married to a Bulgarian national and living in Bulgaria. He was represented before the Court by Mr M. M. Ekimdjiev , a lawyer practising in Plovdiv . The respondent Government were represented by Mrs G. Samaras, 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

The applicant was arrested on 10 September 1993 on charges that he had used forged documents in order to obtain unlawfully an excise tax refund. The amount at stake, in respect of which the applicant was eventually convicted, was 15,294,000 Bulgarian levs (the equivalent of 558,236US dollars at the relevant time). The applicant had acted in concert with three other persons all of whom later submitted applications to the European Commission of Human Rights raising complaints under Articles 5 and 6 of the Convention (see Ilijkov v. Bulgaria , no. 33977/96, 26 July 2001, unreported, and the pending cases of Hristov v. Bulgaria , no. 35346/97, and Mihov v. Bulgaria , no. 35519/97).

The charges preferred against the applicant were based on Article 212 § 4 of the Penal Code, which provided for a sentence of ten to twenty years’ imprisonment. The accusations concerned alleged false certification of fictitious exports of consignments of cigarettes which in reality had been sold in the country.

On 5 April 1994 the preliminary investigation was completed and an indictment was submitted to the Plovdiv Regional Court. The prosecution relied on 33 witnesses and voluminous documentary material.

The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges.

The first hearing took place on 12 and 13 May 1994 when the Regional Court heard the four co-accused and several witnesses. Some of the witnesses did not appear. The prosecutor and the defence lawyers requested leave to submit further evidence. The court adjourned the hearing. On 16 May 1994 the court, sitting in private, appointed a graphology expert.

Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court’s refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor’s opinion.

The case file was sent to the Supreme Court on 28 May 1994 for one of the co- accused’s appeal against detention to be examined and was returned on 30 June 1994.

The Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence.

The trial resumed on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared and in order to enable the accused persons to submit further evidence. Some of the witnesses who had not appeared were ordered to pay fines.

The next trial hearing took place on 29 and 30 November 1994. The financial expert appointed by the court stated that he had been denied access to certain documents and therefore had not finalised his report. The court ordered a bank and the customs office to provide access to the documents in question. Two additional financial experts were also appointed. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned.

Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention.

The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill.

The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill.

On 12 July 1995 the court sitting in private ordered an expert report.

The hearing listed for 21 September 1995 was adjourned owing to the illness of the applicant’s lawyer. The court also observed that several witnesses had not been summoned properly and that others, albeit summoned, had not appeared.

The applicant and the other accused persons further requested a substitution of the judges examining the case on the ground that they were not impartial, having on several occasions dismissed their applications for release.

Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention.

The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill.

After learning that the lay judges were prevented by illness from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges. On that date the court appointed two additional experts.

The new chamber of the court held a hearing on 26 and 27 March 1996. It heard several witnesses and experts. The hearing was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court’s clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996.

On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained.

Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention.

The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend.

The hearing of 30 October 1996 was further adjourned, because the medical experts considered that one of the co-accused was not in a condition to participate in the hearing as he was on a hunger strike.

Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date.

The hearing resumed on 19 December 1996. One witness and the experts were heard. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment.

The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses.

The last hearing before the Plovdiv Regional Court took place on 28 ‑ 31 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence.

On 31 January 1997 the applicant was found guilty of having forged tax documents with a view to obtaining an unlawful gain. He was sentenced to eleven years’ imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between ten and thiteen years.

The court reserved the reasoning of its judgment . It was prepared on an unspecified date at least three months following the delivery of the judgment .

On 7 February 1997 the applicant appealed to the Supreme Court of Cassation against his conviction and sentence.

The case was listed for a hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he had known one of the convicted persons and that he wished to withdraw. The examination of the case could not proceed and the hearing was adjourned.

The hearing was held on 23 January 1998.

By judgment of 16 March 1998 the court confirmed the applicant’s conviction and sentence.

On 27 March 1998 date the applicant submitted a petition for review ( cassation ).

On 10 June 1998 the Supreme Court of Cassation held a hearing in the review ( cassation ) proceedings. As one of the co-accused joined the proceedings at that moment, the court adjourned the hearing to enable him to make the necessary submissions, which he did on 22 June 1998.

The hearing resumed on 9 December 1998.

On 22 March 1999 the Supreme Court of Cassation dismissed the petitions for review of the applicant and the other accused persons.

At all stages of the proceedings the applicant was legally represented.

2. The applicant’s detention on remand

On 10 September 1993 the applicant was arrested and detained pending trial.

On 22 September 1993 the applicant’s lawyer filed an application for his client’s release with the Regional Public Prosecutor. The application was dismissed on 1 October 1993 on the grounds that the charges concerned a crime punishable by more than ten years imprisonment and that there were no circumstances excluding the necessity of the detention. In particular, the applicant was a foreign citizen and, therefore, there was a danger of his absconding.

On 26 October 1993 the applicant appealed to the Regional Court stating that he was a political emigrant and could not return to Iraq and that his passport had been confiscated by the Bulgarian authorities. Furthermore, he had been living in Bulgaria for more than 12 years and his Bulgarian wife was expecting a child.

On 3 November 1993 the Regional Court sitting in private dismissed the appeal holding that the applicant had been charged with a serious wilful offence and that there was a danger of his absconding, committing further offences or obstructing the course of justice.

In March 1994 five persons who had been heard as witnesses in the criminal proceedings against the applicant and his accomplices were charged with perjury. Separate proceedings were brought against them.

At the hearing on 6 October 1994 the applicant requested his release on bail stating that he had been detained for more than one year and that he had a family and a permanent address. On the same day the Regional Court dismissed the applications for release filed by all co-accused stating that the charges carried a penalty of ten or more years imprisonment and that there were “no grounds to consider it established that the defendants would not abscond or commit a crime”. The family situation and health condition of the accused persons did not require their release.

On 30 November 1994 the Regional Court refused the applicant’s renewed application for release, stating that there were no new circumstances.

The applicant appealed to the Supreme Court. He stated that the authorities had not provided any evidence as to the existence of a danger of his absconding, re-offending or obstructing the course of justice and that the charges against him had been weak. He also submitted that all relevant evidence had already been collected.

On 4 December 1994 the Plovdiv Regional Court, before transmitting the appeal to the Supreme Court, sitting in private, examined the matter again and refused to reverse its decision of 30 November 1994. The court held, inter alia , that according to the domestic law and the Supreme Court’s practice detention pending trial was prima facie necessary when a person had been accused of having committed a serious wilful offence. To substitute this judicial measure by a more lenient one would only be possible if there had been “not even a hypothetical danger that the accused might abscond or commit further offences”, in particular, ”if he is ill or elderly”.

On 21 February 1995 the Supreme Court dismissed the appeal against the applicant’s detention.

The Supreme Court explained its practice in matters of detention on remand stating that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure detention on remand was mandatory for everyone accused of a crime punishable by ten or more years’ imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused absconding or re-offending. In the Supreme Court’s view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. The Supreme Court referred to its practice on the matter.

The Supreme Court further refused to consider the applicant’s contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with a bail application. Its only task was to examine whether the conditions for detention on remand under Article 152 of the Code of Criminal Procedure had been met.

At the hearing on 21 September 1995 before the Plovdiv Regional Court the applicant again appealed against his detention on the grounds that he had not committed an offence, that he had a permanent address and had been fully co-operating with the authorities during the preliminary investigation.

The prosecutor objected, stating, inter alia , that under the relevant law, and regard being had to the increase in the crime rate in the country, the court was not entitled to release the applicant or the other co-accused.

On 21 September 1995 the Regional Court dismissed the application for bail, holding that there were no new circumstances and that the domestic law required pre-trial detention to be imposed in all cases when a person had been accused of having wilfully committed a serious offence.

Another application for release was dismissed on 19 February 1996 at the trial hearing before the Plovdiv Regional Court on the ground that the applicant was charged with a serious wilful crime which automatically required the imposition of pre-trial detention in accordance with Article 152 § 1 of the Code of Criminal Procedure.

At the hearing on 27 March 1996 the applicant renewed his application for release on bail arguing, inter alia , that since all evidence in his case had already been gathered, there was no danger of his absconding or obstructing the course of justice. He also invoked the Convention. The Regional Court dismissed the application on the same day, holding that there were no new facts which required his release and that the length of pre-trial detention was not limited by statute

On 28 January 1997, at the trial hearing, the applicant applied for release on bail.

On 31 January 1997 the applicant was found guilty and was sentenced to eleven years’ imprisonment.

B. Relevant domestic law and practice

1. Penal Code

Article 212 § 4 lays down that it is an offence to misappropriate very large quantities of possessions by using forged documents. This offence is punishable by ten to twenty years’ imprisonment.

2. Code of Criminal Procedure

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

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 (Decision no. 24 of 23 May 1995 in case no. 268/95, I Chamber, Bulletin 1995, p. 149).

Paragraphs 1 and 2 of Article 152, as in force at the material time (and until 4 June 1995), provided as follows:

“(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment.

(2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or committing further offences.”

These provisions, as worded from 4 June 1995 until August 1997, provided as follows:

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

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

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

With effect from 1 January 2000 Article 152 and other provisions concerning the grounds for detention on remand were amended.

According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of the amendments in force since 1 January 2000) Article 152 § 1 required that a person charged with a serious wilful crime (or with a crime punishable by ten or more years’ imprisonment, according to this provision as in force before June 1995) had to be detained on remand. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any danger of absconding or re-offending was objectively excluded as, for example, in the case of an accused who was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May 1992 in case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995 in case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995 in case no. 768/95, II Chamber; Decision no. 24 in case no. 268/95, I Chamber, Bulletin 1995, p. 149).

(b) Appeals against detention during the trial

According to Article 304 § 1 of the Code of Criminal Procedure, the detainee’s applications for release at the trial stage of criminal proceedings are examined by the trial court.

It follows from Article 304 §§ 1 and 2 that such requests may be examined in private 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 the 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 318 § 2). According to Article 347, after receiving the appeal, the trial court, sitting in private, shall decide whether there exist grounds to annul or vary its decision. If it does not find a reason to do so the trial court transmits the appeal to the higher court.

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

Article 348 provides that the appeals court may examine the appeal in private or, if it considers it necessary, at an oral hearing. The law does not require the appeal court to decide within a particular time-limit.

(c) Lay judges

Article 259 of the Code of Criminal Procedure is entitled “Substitute judges and lay judges”. Paragraph 1 provides:

“Where the examination of the case will be lengthy, a substitute judge or lay judge may be appointed.”

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that his detention pending trial had not been justified and had been unreasonably long.

The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been excessively lengthy.

He also submitted that the proceedings had not been fair. In particular, the judges of the Plovdiv Regional Court who had convicted him had been partial as they had previously taken decisions on his pre-trial detention and had repeatedly refused to release him on bail.

THE LAW

1. Complaint of the alleged lack of justification for and excessive length of the applicant’s detention (Article 5 § 3 of the Convention)

Article 5 § 3 of the Convention, insofar as relevant, provides:

“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. Release may be conditioned by guarantees to appear for trial.”

a) The Government’s objection as to the exhaustion of domestic remedies

The Government submitted that the domestic remedies had not been exhausted as the applicant had allegedly never appealed to “the higher prosecutor”. Furthermore, he had challenged before the Supreme Court only one of the Regional Court’s refusals to release him.

The applicant disputed the existence of any effective remedy at the relevant time, noting that the scope of the judicial control of lawfulness of detentions was extremely limited.

The Court considers that the applicant undoubtedly made normal use of the remedies available under Bulgarian law in respect of the justification and the length of his detention on remand by filing a number of appeals to the competent courts. The Government’s objection must therefore be dismissed.

b) The parties’ submissions

The Government submitted that the necessity of the applicant’s detention had been presumed on the basis of the severity of the charges against him. Release had only been possible if the applicant had proven before the national authorities sufficient facts establishing that any danger of absconding or committing an offence had been excluded. He had not done so.

The Government were of the opinion that, furthermore, the authorities had handled the case with due diligence and had worked on it very actively. The preliminary investigation had lasted only six months. Among the reasons for the delays in the judicial stage of the proceedings there had been “objective” factors. In particular, the case had been very complex: it concerned four accused persons having committed customs offences and forged documents, the case-file had been in six volumes and the prosecution had relied on 33 witnesses. The national courts had been under an obligation to take every necessary step to elucidate the facts. Many adjournments had been inevitable as witnesses had not appeared despite the efforts of the Regional Court to ensure their attendance including through police assistance. Other adjournments had been caused by judges having been taken ill.

The Government also submitted that the applicant had on many occasions contributed to the length of the proceedings by making requests for the collection of additional evidence up until the end of the proceedings. Furthermore, one adjournment had been necessary owing to illness of his lawyer.

The applicant stated that the existence of a reasonable suspicion against him and the complexity of the case had not been sufficient to justify his lengthy detention. Neither had been the seriousness of the charges, relied upon the by the authorities as their main argument. The authorities had applied law and practice incompatible with the Convention. According to that law and practice the seriousness of the charges had triggered automatic detention.

The applicant further maintained that the Plovdiv Regional Court had been responsible for undue delays and objected against the Government’s assertion that he had contributed to the delays. He stressed that the trial had re-commenced two years after its beginning owing to the authorities’ failure to make use of the legal possibility to start the trial with a reserve lay judge. He referred to the above cited case of Ilijkov , one of the applicant’s co-accused, where violations of Articles 5 § 3 and 6 § 1 of the Convention had been found in respect of the length of the same criminal proceedings.

c) 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. The complaint is therefore admissible.

2. Complaint that the criminal charges against the applicant were not determined within a reasonable time (Article 6 § 1 of the Convention).

The parties referred to their submissions under Article 5 § 3 of the Convention (see above).

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. The complaint is therefore admissible.

3. Complaint of the alleged unfairness of the proceedings (Article 6 § 1 of the Convention).

The applicant submitted that the proceedings had been unfair as the judges of the Regional Court had inevitably become partial after having repeatedly refused his requests for release on bail.

Article 6 § 1 of the Convention, insofar as relevant, provides:

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

The Government stated that the complaint was unsubstantiated and inadmissible.

The Court reiterates that the mere fact that a trial judge has made decisions on detention on remand cannot be held as in itself justifying fears that he is not impartial. Normally questions which the judge has to answer when deciding on detention on remand are not the same as those which are decisive for his final judgment (see, among other authorities, the Lutz v. Germany judgment of 25 August 1987, Series A no. 123-A, pp. 25 ‑ 26, § 62). Only special circumstances may in a given case be such as to warrant a different conclusion (see the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154).

In the present case the Court does not find any indication that the judges of the Plovdiv Regional Court were partial or that the proceedings before that court or before the Supreme Court of Cassation were otherwise unfairly conducted.

It follows that that part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with its Article 35 § 4

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the justification and the length of his detention on remand (Article 5 § 3) and the length of the criminal proceedings (Article 6 § 1);

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President