FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37104/97 by Nikolai KITOV against Bulgaria

The European Court of Human Rights, sitting on 17 January 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 E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 22 January 1997 and registered on 29 July 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 9 March 1999,

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 Kitov , is a Bulgarian national, born in 1956 and living in Samokov . Between 1991 and 1994 he was the mayor of Samokov . He is not legally represented. The respondent Government were represented by Mrs G. Samaras, agent, 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 1993 criminal proceedings against the applicant

On 27 May 1993 the District Prosecutor’s Office ( Районна прокуратура ) in Samokov opened criminal proceedings against the applicant. It was alleged that the applicant in his capacity as mayor of Samokov had bestowed unlawfully benefits to individuals by granting tenancy orders and allowing construction works which had caused damage to the environment (abuse of office contrary to Article 282 §§ 1 and 2 of the Penal Code ( Наказателен кодекс ), that he had made a false certification in an official document (Article 311 § 1 of the Penal Code), and that he had used offensive language in respect of several persons (Articles 146 and 148 § 1(3)(4)).

On 16 June 1993 the case was assigned to an investigator. On 14 July 1993 the applicant was formally charged and questioned. On 27 July 1993 the investigator heard one witness. On 11 August 1993 the investigator concluded his work on the case and drew up a report proposing the termination of the proceedings, as the applicant’s acts did not constitute criminal offences.

On 24 September 1993 the District Prosecutor’s Office referred the case back for further investigation. On an unspecified date the case was assigned to another investigator.

On 24 March 1994 the investigator proposed a temporary suspension of the proceedings as an important witness was allegedly in hiding. On 4 April 1994 the case was again referred back for further investigation by decision of the District Prosecutor’s Office.

On 6 September 1994 the investigator reformulated the charges and, in addition, charged the applicant under Articles 172 §§ 1 and 2 and 282 of the Penal Code in respect of allegedly unlawful payments to dismissed municipal employees and his refusal to comply with a judicial order reinstating an employee.

On 31 October 1994 the District Prosecutor’s Office terminated the proceedings in so far as they concerned the charges about payments to dismissed employees and in respect of some of the incidents where the applicant had allegedly used offensive language. On the same date the prosecutor drew up an indictment in respect of the alleged crimes under Articles 282 §§ 1, 2 and 3 and 311 § 1 of the Penal Code and also as regards the applicant’s alleged failure to comply with a judicial order (Article 172 §§ 1 and 2 of the Penal Code) and the remaining incidents where the applicant allegedly employed offensive language (Articles 146 and 148 § 1(3)(4)).

During the preliminary investigation, in the period May 1993 - October 1994, the investigators sought and examined numerous documents. There is a dispute between the parties as to the number of experts’ opinions ordered. According to the applicant they were six or seven, whereas the Government speak of seventy-eight experts’ opinions filed, without submitting the relevant documents. The investigators also heard ten witnesses.

The indictment was submitted to the Samokov District Court ( Районен съд ).

Between 17 January 1995 and 15 May 1996 the District Court held nineteen hearings. The court heard about one hundred witnesses and many experts and admitted voluminous documentary evidence. The hearings were held at regular intervals and most adjournments were necessary to allow for the examination of witnesses that had not appeared or the collection of other evidence requested by the applicant or the prosecution. The District Court worked actively on the case, imposed fines on witnesses who had failed to appear without good cause and sent urgent requests to the police for assistance in respect of witnesses whose whereabouts were unknown.

By judgment of 17 May 1996 the applicant was convicted on some of the charges and was acquitted for the remainder. He was sentenced to one year and three months’ imprisonment, suspended.

On 29 May 1996 the applicant appealed to the Sofia Regional Court ( Окръжен съд ). The prosecutor also appealed and requested that the judgement of the District Court be quashed and the case referred back to the investigation authorities. The Regional Court held a hearing on 8 July 1996.

By judgement of 23 July 1996 the Regional Court upheld the applicant’s conviction under Article 311 § 1 and his acquittal under Article 172 §§ 1 and 2 of the Penal Code, quashed the remainder of the District Court’s judgement and referred the latter part of the case back to the investigation authorities. Thus, in respect of the applicant’s conviction for false certification in an official document under Article 311 § 1 of the Penal Code the proceedings ended on 28 February 1997, when the Supreme Court of Cassation ( Върховен касационен съд ) dismissed his petition for review ( cassation ). As regards the alleged crimes under Articles 146 and 148 § 1(3)(4) and Article 282 §§ 1 and 2 of the Penal Code the criminal proceedings continued at the preliminary investigation stage.

No investigation was carried out between July 1996 and April 1997 as, following the judgment of 23 July 1996, the case-file only reached the District Prosecutor’s Office in October 1996, but had to be transmitted in November 1996 to the Supreme Court of Cassation in relation to the applicant’s appeal and, after the 28 February 1997 judgment , reached the competent investigatior in April 1997.

On each of the dates 7 May, 12 May and 2 June 1997 the investigator heard one witness.

By letters of 8 August, 27 August, 23 September and 29 September 1997 the applicant inquired with the District Prosecutor’s Office in Samokov about the course of the proceedings and requested the collection of evidence.

On 31 October 1997 the investigator reformulated the charges against the applicant. On 7 November 1997 the applicant was informed thereof and was questioned. The applicant had five meetings with the investigator until 25 November 1997. The applicant refused to give explanations. He requested the collection of additional documentary material.

On 20 January 1998 the investigator sent requests for documentary material to several institutions.

By letters of 26 February and 21 May 1998 the applicant protested against the delays in the proceedings.

On 5, 6 and 7 August 1998 the investigator provided access to the case-file to three persons, the alleged victims. On 10 August 1998 the applicant appeared before the investigator, the material in the case was officially communicated to him and he was given the possibility to submit requests or objections. The applicant made a number of requests and remarks.

On 21 August 1998 the investigator finalised the case and submitted it to the competent prosecutor proposing indictment. The prosecutor ordered further investigation to which the investigator objected. The ensuing dispute required the interference of the Regional Prosecutor’s Office. Having examined the matter, on 11 June 1999 it ordered additional investigation.

On 1 October 1999 the applicant was questioned by the investigator. On 5 October 1999 the applicant was provided access to all material in the case and invited to submit his final comments on the investigation. Thereafter the case was transmitted to the competent prosecutor.

By order of 17 November 1999 the District Prosecutor’s Office terminated the proceedings in respect of the majority of the charges. The applicant appealed stating, inter alia , that the order did not clarify the outstanding charges, so as to enable him to organise his defence.

On 17 August 2000 the Regional Prosecutor’s Office modified the order of 17 November 1999, accepting that it had been unclear and wrongly reasoned.

As a result, the charges on three counts of abuse of office under Article 282 of the Penal Code were dropped on the ground that the acts imputed to the applicant did not constitute criminal offences and some other charges were abandoned as unproven. The remaining accusations were modified.

As of March 2001 the proceedings were still pending at the preliminary investigation stage.

2. The 1995 criminal proceedings against the applicant

In 1994 the local post office in Samokov requested the opening of criminal proceedings in respect of the restitution of a plot of land to a Mr S. The restitution order had been issued in 1992 by the applicant in his capacity of mayor.

The property in question belonged to Mr S. until 1961 when the State had acquired it for the needs of the local post office. In 1992 Parliament enacted a law providing for the restitution of property nationalised under several pieces of legislation passed in the 1940s and 1950s. The plot of Mr S. had been acquired by the State in 1961 under other legislation and thus did not fall within the scope of the 1992 restitution law. Nevertheless, on 7 July 1992 the applicant had granted Mr S.’s request for restitution, citing as legal ground the 1992 restitution law.

On 27 March 1995 criminal proceedings were opened against the applicant on suspicion that on 7 July 1992, at the time when he was mayor of Samokov , he had contravened Article 282 § 1 of the Penal Code (abuse of office) by ordering unlawfully the restitution of State property to a private person.

According to the charges, the procedure for examination of restitution requests by a commission of experts had not been followed. Furthermore, the order had no valid legal grounds and was issued by the applicant with the intention to bestow a benefit on Mr S.

In the meantime, on an unspecified date in 1994 the post office brought a civil action against Mr S. claiming the property back. Several months later, in 1995, the Regional Governor quashed the 1992 restitution order issued by the applicant and, upon the appeal of Mr S., separate civil proceedings commenced between him and the Regional Governor. In a third set of civil proceedings Mr S. sought to prove against the post office that the 1961 acquisition had been null and void. The proceedings involving the Regional Governor ended in 1997, and those between the post office and Mr S. in 2000. The 1992 restitution order was eventually quashed and the plot of land returned to the local post office.

In the criminal investigation against the applicant, between 12 April and 31 July 1995 the investigator heard at least fifteen witnesses, questioned the applicant, commissioned three expert reports, and obtained documentary material from several institutions.

On 8 November 1995 the investigator concluded his work on the case and proposed to the competent prosecutor to submit an indictment in court. However, the proceedings remained dormant until August 1997.

On 4 August 1997 the prosecutor in charge of the criminal investigation against the applicant transmitted the file back to the investigator considering that the accusation was not supported by sufficient evidence and that, therefore, further investigation was necessary. In particular, it was necessary to establish the applicable rules and practice in the examination of restitution requests so as to clarify whether the applicant had acted in excess of his powers. The prosecutor also mentioned that the investigator should verify the outcome of the civil disputes concerning the ownership of the plot of land in question.

On 20 August 1999 the investigator drew up a concluding report and transmitted the file to the prosecutor.

On 15 October 1999 the prosecutor terminated the proceedings finding that the applicant’s intention to bestow an unlawful benefit had not been proven.

In his decision, in the summary of facts, the prosecutor mentioned one of the two sets of civil proceedings described above, those opposing Mr S. against the local post office. Those proceedings were still pending at that time. The prosecutor’s decision did not contain any statement as to the relevance of the civil case to the criminal proceedings against the applicant.

3. The 1998 preliminary inquiry against the applicant

On 5 May 1998 an audit in the municipality of Samokov revealed an unaccounted sum of money, spent in 1993. The ensuing preliminary inquiry, conducted by the competent prosecutor with the purpose to establish whether criminal proceedings should be brought against the applicant and/or other persons ended with a non-prosecution decision of 25 September 1998.

B. Relevant domestic law

According to Article 282 §§ 1 and 2 of the Penal Code, the offence of acting in an official capacity in excess of competence in order to obtain a benefit or cause harm (abuse of office), where the acts in question are capable of bringing about damage, carries a term of one to eight years’ imprisonment.

Article 311 § 1 of the Penal Code provides for a punishment of up to five years’ imprisonment for a person convicted of having made a false certification in a document issued in the exercise of this person’s official functions, if this is done with the intention to make use of the document.

Articles 146 and 148 § 1(3)(4) of the Penal Code, taken together, provide for a punishment of up to two years’ imprisonment or a fine for a person convicted of having used offensive language when acting in an official capacity in respect of another person acting in an official capacity.

Under Article 172 §§ 1 and 2 a person who, acting in an official capacity, knowingly fails to abide by a judicial order for the reinstatement of an unlawfully dismissed employee shall be punished by up to three years’ imprisonment.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention of the length of the three sets of criminal proceedings against him.

THE LAW

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

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

1. The Government’s objections of abuse of petition and non-exhaustion of remedies

The Government, pleading the rejection of the application as an abuse of the right of petition, alleged that the applicant had knowingly misled the Court by describing the 1998 preliminary inquiry as criminal proceedings.

They further claimed that the applicant had not exhausted all domestic remedies. In particular, his petition for review ( cassation ) against the judgment of the Regional Court of 23 July 1996 only concerned the conviction part, whereas he could have also challenged the other part of the same judgment , that quashing his conviction on some of the charges. Had he done so, the Regional Court’s order referring the case back to the investigator could have been reversed and the proceedings could have been finalised earlier.

The applicant disputed the Government’s position.

The Court finds no element in the file to support the Government’s position that there has been an abuse of the right to petition within the meaning of Article 35 § 3 of the Convention.

The Court further considers that, with regard to the length of proceedings complaint, Article 35 § 1 of the Convention cannot be interpreted as requiring the applicant to appeal against a judgment quashing his conviction.

The Government’s objections in these respects are therefore dismissed.

2. The 1993 criminal proceedings against the applicant

The Government submitted that the criminal case was of an exceptional complexity. It concerned accusations relating to several series of events. In particular, there were 67 counts of unlawful granting of tenancy rights. Enormous documentary material had to be collected and analysed, experts had to be appointed and witnesses had to be heard. The case-file consisted of sixteen volumes. Furthermore, numerous issues of administrative or civil law nature were of relevance to the determination of the criminal charges.

As regards the conduct of the authorities, the Government stressed the exemplary work of the District Court which held nineteen hearings, heard about one hundred witnesses and examined voluminous material within only one year. The Regional Court also decided within a very short time.

In contrast, according to the Government, the applicant contributed to the delays. In particular, he did not object against the adjournments, refused to answer certain questions and repeatedly requested the collection of additional evidence. He cited ninety-three witnesses not before the fifth hearing of the District Court. In one case he requested adjournment because his lawyer was ill, although he had two lawyers. Moreover, he submitted appeals against the alleged inactivity of the authorities, thus causing delay, as the examination of the appeals took time.

A number of delays were objectively inevitable: after the referral of the case back to the investigator, it was assigned to a new investigator who had to study the case-file. Also, the failure of witnesses to appear caused adjournments.

The applicant submitted that the accusations against him were in their majority so evidently ill-founded that they did not require complex analysis. As of January 2001 ninety percent of the initial charges brought in 1993 had been dropped. However, that was only done after many years during which the proceedings were unnecessarily complicated and delayed by the prosecution authorities.

The applicant considered that the prosecutors and the investigators were responsible for the excessive length of the proceedings. The preliminary investigation between May 1993 and October 1994 did not proceed speedily as the case was returned in September 1993 for renewed investigation. The applicant agreed with the Government that no undue delays occurred in the proceedings before the District Court and the Regional Court between January 1995 and July 1996. However, he criticised the conduct of the authorities after July 1996. In particular, the work done by the authorities on his case between July 1996 and September 1999 was so little that it could have been completed within two months. Instead, three years and two months passed.

The applicant further protested against the allegation that he had been responsible for certain delays. In particular, most of the ninety-three witnesses cited by him were also called by the prosecution.

The applicant added that the work done in the investigation against him between September 1999 and March 2001 did not require more than one month. He finally stressed that the grounds on which the charges against him were being dropped, one after the other, were known already in 1993.

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.

3. The 1995 criminal proceedings against the applicant

The Government submitted that the delay in these proceedings was due to the fact that the prosecutors needed to await the outcome of the civil proceedings concerning the ownership of the plot of land that the applicant had ordered back to Mr S.

The applicant noted that nothing had been done in the case for several years. He disputed the Government’s statements.

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.

4. The 1998 preliminary inquiry against the applicant

The Government submitted that Article 6 was not applicable as the complaint concerned an inquiry against the applicant, without him being formally a party to criminal proceedings.

The applicant replied that he was clearly the accused person, albeit never charged, as he was mentioned in the audit report as the possible perpetrator. He suspected that the investigation was carried out in the form of a preliminary inquiry only to allow freedom of action to the authorities and to avoid the procedural constraints of formally instituted criminal proceedings.

The Court need not decide whether there existed against the applicant a “criminal charge” in the sense of Article 6 § 1 of the Convention and, consequently, whether that provision was applicable. The complaint is in any event manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It suffices to note that the inquiry was terminated within four months.

It follows that this complaint must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the 1993 and 1995 criminal proceedings against him;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President